Tribe's casino stays open pending appeal of closure

The Shoalwater Bay Tribe can keep operating its Tokeland-area casino -- with most of its slot machines -- while appealing a National Indian Gaming Commission closure order, the tribe's lawyer said yesterday.

The commission issued a notice of violation and temporary closure order on Aug. 11, tribal lawyer Scott Crowell said. The tribe appealed the ruling Aug. 18, and an agreement was reached to allow the casino to remain open under certain conditions while the appeal is pending, he said.

As part of the agreement, the tribe said it would cease all Class III gaming at the casino within 48 hours of a final notice upholding this month's ruling, commission spokesman Kyle Nayback said.

Class III gaming, generally Nevada-style gambling, includes slot machines and use of a house bank for card games.

The tribe also agreed to immediately stop offering roulette, a card game called Pai Gow and one type of gambling machine in exchange for being able to continue offering 100 other video gaming machines as well as blackjack and poker tables.

"It's a good deal for the tribe in that it allows us to stay open while we litigate," tribal Chairman Herbert Whitish said.

The National Indian Gambling Commission, an independent government body that reports to the White House, agreed in its ruling with federal and state authorities who say the tribe violated the Indian Gaming Regulatory Act by not having an agreement with the state.

Crowell contends the tribe is legally operating the casino despite not having a compact with the state of Washington.

Crowell cited a March 1997 ruling by the 9th U.S. Circuit Court of Appeals "which said when the reason the tribe doesn't have a compact is because the state hasn't agreed to the process, enforcement is inappropriate."

The tribe contends that the state has refused to negotiate a compact and instead told tribes to agree to the state's rules or not be authorized to open a casino.

State officials said they could not comment because they had not yet received a copy of the commission's ruling.

"We're stuck in the middle," Whitish said. "We either have to take the compact offered or not have anything. That's what led us to the situation today."

Last September, U.S. marshals seized 108 slot machines at the tribe's casino on Southwest Washington's Willapa Bay, saying the slots were illegal.

"That sort of blew us out of the water and left us with no ability to fight the fight after the seizure," Whitish said.

"At least this time we'll be able to operate in the meantime and keep people working."

The tribe installed 80 new machines in March that tribal leaders said did not meet the legal definition of a slot machine because they do not have computerized random number generators.

U.S. Attorney Kate Pflaumer, who ordered the seizure, said the National Indian Gaming Commission's decision was completely separate from last year's enforcement action, an appeal of which is pending in the 9th Circuit.

"They have done their own investigation of the machines the Shoalwaters brought in and concluded the machines were in violation" of the Indian Gaming Regulatory Act, Pflaumer said.

Crowell said the tribe could appeal to federal court if the National Indian Gaming Commission's final ruling upholds the closure order. The hearing date has not yet been scheduled, he said.

"All we're trying to do is get a fair shake. This is a small tribe that has a lot of needs," he said. "We're just trying to find a way to balance the books."

"It's not like we're going out and buying helicopters and stuff like that. We're trying to provide the bare necessities for our people."

The Shoalwater, the Colville and the Spokane tribes all operate casinos without the state's consent.

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