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Influencing Idaho's Constitution

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Voters look at tribal gambling and term limits

On November 5, 2002, voters are expected to step behind the striped curtain and ascertain who should be our political leaders in Idaho, and what our Constitution should state in regard to gaming and term limits. As for deciding who should be leading us, that is a process of becoming familiar with the candidates, their credentials, and their political style or agenda. Determining how to vote on propositions requires reading the language of the law, and analyzing whether the language accurately fulfills the intent of the measure.

    There are two propositions on the ballot this November; one is an initiative and the other is a referendum.     Proposition One is an initiative defining tribal or Indian gaming. It amends the Idaho constitution to add language defining tribal video gaming machines, amends language associated with the “contract” or “compact” that exists between tribes and the state of Idaho, defines percentages for increased growth, and targets percentages for revenue sharing with educational programs.

    In the state of Idaho, gambling is not legal, but on property legally defined as Indian reservations, gaming is legal. The difference between gambling and gaming is a subtle one to the average person, and is focused principally on how you get information.

    Proponents contend their machines are essentially electronic tickets, much like the state lottery. There are no handles on the machines, and the machines produce tickets instead of coins or cash. A slot machine, which is associated with gambling, gives the player instant cash or coins if they win. Opponents believe the differentiation is too inconsequential to draw a distinction, instead contending that a change to the law for tribal gaming is an endorsement of gambling which contradicts the constitution. Thus, if voters endorse the additional language to Idaho code, adding Idaho Code 67-429B, then the tribes are covered within the parameters of gaming machines without handles, or lottery-style machines.

    The initiative also calls for the addition of Idaho Code 67-429C, which allows for the amendment of state-tribal compacts. Gaming agreements, referred to as compacts, identify how Indian gaming will be conducted in a state, and in Idaho these compacts were negotiated beginning in 1992.

    The right for Indians to have gaming activities comes from the federal Indian Gaming Regulatory Act of 1988, so states have a limited role in what terms can be negotiated. If Section C is added to Code 67-429, then specifics such as the number of machines tribes have and the growth rate are defined. Specifically, the language would limit the number of machines to those in a tribe's possession as of January 1, 2002, with a growth rate of 5% per year, not to exceed 25% over ten years, and allowing for a re-negotiation in ten years.

    Additional language would amend the section and provide for a tribal contribution of 5% of annual net gaming income for educational programs and schools on or near the reservations. It would limit gaming to Indian lands, and would provide for automatic approval by the State without necessity of executive or legislative action, once the Secretary of State confirmed the vote count.

    For voters that do not go and game, or gamble, as the average person refers to the activity, this initiative seems to have dropped out of nowhere. However, there has been a long standing contest to get a negotiated compact into place, and the tribes have been to court and lost on several occasions, attempting to get the courts to differentiate the terminology.     This information is noted in the rebuttal sections in the Idaho Voter's Pamphlet. It is also more subtly acknowledged on the Idaho State Page Media Center which reflects Governor Kempthorne’s statement on gaming as of June 16, 2002. Referred to as a statement, perhaps because it lacks a specific position, the press release does graciously acknowledge a professional working relationship between the tribes and the state, and identifies a number of points that were clearly not settled upon in the development of the legislative language.     The statement identifies an upcoming court date in February 2003, inferring there is still time for legislative action, and notes that the negotiations and the proposed initiative part ways on the following points: percentage of growth per year (the state proposed 15% versus 25%); the length of time growth can be achieved (the state proposed ten years versus 5 years); the lack of specific language about an alcohol policy (currently alcohol is prohibited; the lack of specific language prohibiting gambling on navigable waters; and the absence of language prohibiting “Nevada or New Jersey style gambling.”

    So it's clear the state did come to terms with the tribe's requests and so the tribes have turned to the voters instead. There is a large coalition, “the Idaho Coalition for Indian Self-Reliance” which has identified many positive outcomes as a result of the gaming initiatives already in place. It was noted in the Idaho Statesman that “a University of Idaho study paid for by the tribes found that Idaho's American Indian gaming facilities support 4,455 jobs in the state, attract more than a million out-of-state visitors annually, and generate $83 million in wages and earnings, $250 million in sales, and $10 million in state and local taxes each year.” Local schools near the Kootenai, Nez Perce and Coeur d’Alene tribes have all received financial resources as a result of the tribe's 'good will toward neighbor' policies. And from the tribe's standpoint, arguments about the detriments of gambling should not overshadow the need for self-reliance and the capacity for economic development.

    On the opposing side, the principle points focus on the generally negative trends that are found in geographic areas focused on gambling. Often crime rates rise, gambling additions flourish, and the already impoverished are overcome by slick media campaigns because of their economic vulnerability. The National Gambling Impact Study Commission noted in their final recommendation report that “Heavy governmental promotion of lotteries, largely located in neighborhoods, may contribute disproportionately to the culture of casual gambling in the United States. The Commission, therefore, recommends that states curtail the growth of new lottery games, reduce lottery advertising, and limit locations for lottery machines.” Yet the Commission does not condone tribal gambling – in fact the link to the report is listed on the State’s page under proponents. It notes that much litigation has been the result of tribal gaming expansion, and encourages states and tribes to work together.

    But as opponents contend, it does state, in Section 6.1, “The Commission recommends that IGRA’s classes of gambling must be clearly defined so that there is no confusion as to what forms of gambling constitute Class II and Class III gambling activities. Further, the Commission recommends that Class III gambling activities should not include any activities that are not available to other citizens, entities, or organizations in a state, regardless of technological similarities. Indian gambling should not be inconsistent with the state’s overall gambling policy.”

    Class III gambling includes banking card games, casino games, slot machines and electronic facsimiles of any game of chance. Hence, opponents, who are opposed to opening this form of gambling in Idaho, for socio-economic and constitutional reasons, believe that voting no is appropriate.

    As reported in the Statesman, this is the single most expensive issue campaign in the state of Idaho. The tribes have collected and contributed over $2 million dollars since June. There is a great deal at stake. Whether the social ills associated with the expansion of gaming come as part of the package deal will probably have a great deal to do with the relationships built between the tribes and their regional counsel (city, county and Legislative) peers. Gambling brings jobs, but only the voters can decide if it is the flavor of economic development that has the sweetest return.

Term Limits

    Proposition Two is even more of a nightmare to understand than Proposition One. It is one of those, “who worded this?” kind of referendums that only pundits thrive on. As you probably know, Idaho voters have gone to the polls and voted twice to enact term limits at every level of Idaho government. Twice these propositions have passed, the Idaho Supreme Court has upheld court challenges and the Governor vetoed the legislation that was passed overturning the referendum. Of course, to be fair, the Governor knew that the Legislature had enough votes to override the veto, so the man had enough sense not to commit political suicide, but nonetheless, a stake in the ground is what a veto is under these circumstances. So here we are again, voting to decide if you want to keep the Legislative language in place ( a yes vote) and eliminate term limits, or overturn the legislative language (a no vote) and thus retract the legislation and restore the original, albeit revised, Idaho Code that makes it impossible to serve more than eight years in office.

    Those that say “vote yes” are referred to as “Idahoans for Voter Rights.” The basis of their argument is that if you arbitrary eliminate the opportunity to have experienced people operate in their position, or profession, then you have: 1) reduced the opportunity to have your representative hold a senior position, 2) ensured that inexperienced people are continually put into place and 3) essentially reduced your options as a voter to select the most qualified individual. The basis of their platform is, make your own decision. Do not enact regulations that make decisions on your behalf.

    Those that say “vote no” are represented by “the Committee to Repeal the Repeal” (I am assuming a marketing major did not invent this committee name). This is a coalition of very angry people. The essence of this argument is “what part of no don’t you get?” The basis of the platform is that, by majority, we the voters went to the polls and clearly messaged that we want to get the lifetime incumbents out of office. We are not going away, and we know that the Idaho Supreme Court backs the legality of our argument. You, the legislature, decided that you didn’t like what we said, so you changed the law back again.

    So what is a person to do? Suppose you vote yes. Then you are agreeing that the legislature did the right thing, and that its constituents really want to use the exclusive means of voting to regulate representation. If you vote no, then can the legislature turn around and do the same thing? The argument could be made both ways.

    Do we really want to restrict our rights to choose? Voters will answer that question on Nov. 5th.


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Carol Curtis

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