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Decision Complicates Seminole Gaming Pact

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By CATHERINE DOLINSKI

cdolinski@tampatrib.com

Published: October 5, 2008

TALLAHASSEE - Last year, Gov. Charlie Crist signed off on a gaming compact between Florida and the Seminole Tribe. Now Florida's Supreme Court has ruled that Crist lacked authority to do that.

So ... now what? Now the issue of tribal gaming gets really complicated.

Seminole casinos are still offering games approved in the compact that are otherwise illegal in Florida. Legally, the state can't stop them. Both the state and tribe could gain from negotiating a new compact - but state leaders are divided on whether to start those talks, so long as the tribe continues to offer the games. Only federal authorities can compel the tribe to stop.

But they haven't, so the games play on. Here's a breakdown of this jurisdictional round robin, and where it might lead:

•THE COMPACT: Federal law allows Indian tribes to offer gambling activities that are legal elsewhere in their state. In November 2007, Crist negotiated a compact allowing Seminoles to offer not only the class-III slots permitted in South Florida, but also "banked" card games such as blackjack that are otherwise illegal in the state. In exchange, the state would receive billions of dollars over 25 years. The U.S. Interior Department had threatened to enforce its own gaming rules for the Seminoles if Florida did not reach an accord with the tribe.
Florida Attorney General Bill McCollum sued the Interior Department in late 2007, without success, to stop the compact from taking effect. State House Speaker Marco Rubio then filed suit against Crist, arguing that the compact needed legislative approval. Rubio won at the state Supreme Court, which confirmed its opinion in August.

•THE STATUS QUO: A U.S. Department of Justice attorney testified during McCollum's court case in January that if the state Supreme Court were to find that the governor lacked authority to enter into the compact, "the compact is deemed invalid" and the tribe "can't do the things they want."

But the fact remains that only the feds can enforce tribal gaming law, and neither the Justice Department nor federal gaming authorities have been eager to intervene or even talk about the Seminoles case since the state Supreme Court's ruling.

McCollum asked the National Indian Gaming Commission last month to stop the games. McCollum also has contacted the U.S. Attorney's Office in South Florida, since both the U.S. Department of Justice and federal gaming authorities have jurisdiction.

Responses so far, according to McCollum's staff: none.

Sean Pensoneau, spokesman for the gaming commission, said it continues to review the issue and had no comment on whether the compact is now invalid.

"We will not be commenting on this matter," said Alicia Valle, special counsel to the U.S. attorney.

•HANDS OFF: That's typical, said Kathryn Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota. Once a compact is entered, she said, the federal government rarely intervenes.

"There have been a few situations in the past where a state Supreme Court has struck down all or part of a gaming compact based on its inconsistency with state law," Rand said. "Generally speaking, the federal government has maintained a hands-off approach."

Crist remains mum on whether the games should continue, but wants to negotiate a new compact. Without one, the state has no guarantee that it will keep receiving its slice of the profits.

The tribe has paid the state $50 million upfront for its gaming rights and plans to keep paying, per the existing compact, said Barry Richard, attorney for the Seminoles.

The tribe's leverage, Rand said: the revenue sharing. "That's why, I think, you see the kind of paralysis you do on the part of the state. Do they actually want to push this? What if they just quietly allowed the status quo to occur?"

•WHAT'S NEXT?: Many lawmakers think the state can negotiate a better deal than the one Crist brokered last year.

Among them: Mike Haridopolos, chairman of the Senate and Finance Tax Committee, who wants to raise the gaming proceeds received by the state - from the Seminoles, and possibly from other gambling enterprises. He would use the money, he said, to offset lowered taxes.

"We need to take a second and third look at this," said Haridopolos, R-Melbourne. "I've heard members consistently say that if you taxed all gaming that takes place in the state of Florida at Las Vegas or Louisiana rates, you'd bring in $1 billion a year. That could lower taxes. It's a viable issue to consider."

Senate Minority Leader Steve Geller, a lawyer with gaming law expertise who is leaving office this year because of term limits, said he hopes that lawmakers will close a "loophole" in the current compact that could easily cost the state its share of the take.

"The compact says that if the Seminoles complain to the state that there's illegal gambling going on somewhere - like poker games in people's houses, or gray market machines at VFW posts - and the state doesn't make a good-faith effort to close it down, the tribe doesn't have to pay us any longer," he said.

Geller, who represents part of Broward County where Class-III slots are legal, also would like lawmakers to expand gaming rights for parimutuels competing with the tribe's casinos. He and other lawmakers have promoted expanding taxable gaming in the past as one means of shoring up the state budget, which lawmakers may have to cut this year and next by several billion dollars.

But the Legislature includes plenty of other members who philosophically oppose expanded gaming - including House Speaker Ray Sansom, R-Destin.

Last month, the Speaker-designate backed McCollum's call to halt the exclusive gaming at Seminole casinos. Sansom also issued a written ultimatum for the Seminoles: "If the Tribe wants to work with the state to resolve the compact issue, the Tribe must first comply with the laws of Florida and of the United States."

Nonetheless, Richard said the tribe expects to negotiate with Crist and lawmakers soon, once the latter install their new leaders in November. The tribe wants to keep its guaranteed exclusivity rights, Richard said; that requires a valid compact.

"We have every intention of sitting down with the new leadership, as soon as they take office," he said. "It's in the best interest of the tribe to have an agreement with the state."

Reporter Catherine Dolinski can be reached at (850) 222-8382.

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