Tribal Casinos Unconstitutional in Oregon? We'll Find Out.

Opponents of all casino gambling may finally have their day in court. This week the Oregon Court of Appeals revived a lawsuit challenging a gaming compact for the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians which allowed siting of the Three Rivers Casino.

In 1976 voters in Oregon approved a state Constitutional amendment banning casino gambling. Article XV, Sec 4 (12) ”The Legislative Assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon.” Federal law, the Indian Gaming Regulatory Act allows, but does not require, states to enter into compacts with tribes for establishing casinos on tribal lands.

Indian gaming (the industry prefers "gaming" to "gambling") is therefore governed by a complex interplay between federal and state laws as well as tribal-state compacts negotiated by each tribe within a state. In Oregon that means political pressure, local development and land use issues, mega-bucks public relations campaigns and lengthy challenges. The power play among tribes over the proposal to site a tribal casino in the Columbia River Gorge is but one example. But even more fundamental is the possible violation of the voter amendment banning casinos.

Opponents of a tribal casino in Florence have won a round in court, giving renewed life to their argument that the Governor has no authority under the Oregon Constitution to approve a casino on Indian lands.

Several years ago, the United States Supreme Court refused to hear an Indian Gaming Regulatory Act case, leaving state courts with no guidance. In that case opponents questioned the authority of the Governor of New York to negotiate a compact with the Mohawks. In response, the NY legislature approved a revenue-sharing compact. SCOTUS refused to get into the fray over Indian gambling by declining, without comment, to review the case. A series of state-law challenges have ensued nationwide.

Here in Oregon, the Confederated Tribes opened the Three Rivers Casino in Florence in 2004 after legal challenges to the Indian lands status of the gaming site were rejected in the federal and state courts.

Opponents also sought a remedy under a special procedure called mandamus which challenged the governor's authority to enter into tribal gaming compacts despite the Oregon Constitution’s ban on casinos. For procedural reasons, appellate review of the dismissal of the mandamus action has been abated. Now, in a unanimous ruling on Wednesday, the Court of Appeals ordered the case returned to the Lane County Circuit Court.

Once again, opponents may directly challenge the Governor and question whether his office has the authority to enter into a compact with tribes when the Oregon Constitution prohibits casinos.

This case could have a very significant impact.