Eklutna sues federal government in pursuit of tribal gaming operation
Oct. 11, 2019
The Native Village of Eklutna has filed a lawsuit against the U.S. Interior Department in a continuing campaign to open a tribal gaming hall about 20 miles north of downtown Anchorage, in what Anchorage Mayor Ethan Berkowitz, a supporter, has described as a “modest Class II casino."
The tribe’s 38-page complaint , filed in August in federal district court in Washington, D.C., represents the tribal government’s latest attempt to open the first federally licensed gaming facility near the urban heart of Alaska, off the Glenn Highway near the Birchwood Airport in Chugiak.
The tribe has pursued its plan for more than 20 years, arguing that a gaming operation could boost jobs, tourism and the economy.
“After decades of fighting for recognition of our tribal jurisdiction over this tiny fraction of our tribe’s traditional territory, this lawsuit is an important step toward solving longstanding issues and creating new opportunities for the first people of Alaska’s largest city, which have long been denied to us,” said Aaron Leggett, president of the Eklutna tribe, in a written statement.
The facility would not host blackjack, slot machines, and similar Vegas-style games permitted by “Class III” gaming under federal law, games which are not authorized under state law.
Instead, the tribal ordinance would limit activity to "Class II” gaming — pull-tabs, bingo, and lotteries, the complaint says. That could include electronic versions of those games.
Based on games allowed at the only Class II gaming facility operating in Alaska, in Metlakatla in remote Southeast Alaska, the Eklutna tribe, if successful, could potentially allow gamblers to play on electronic bingo machines that look like slot machines but aren’t.
The federal designation means the operation could avoid paying a state gaming tax and fee, said Katrina Mitchell, manager of Alaska’s charitable gaming program.
Complicating Eklutna’s proposal are questions over tribal authority and the land the tribe wants to build on, an 8-acre Native family allotment.
The lawsuit challenges Interior’s 2018 decision that the tribe does not have governmental authority over certain “Indian Country” within its jurisdiction, a reference to the allotment, according to the complaint.
Unlike the Lower 48 with its many Indian reservations, in Alaska, most Native lands are owned by Native corporations representing Native shareholders, following passage of the Alaska Native Claims Settlement Act in 1971.
“Indian Country” in Alaska is limited to Metlakatla , the only Indian reservation in the state, and to allotments.
The Indian Gaming Regulatory Act also has a specific legal definition for what are called “Indian lands." It applies to Indian reservations, trust lands or allotments over which tribes exert government power.
The requirements and limited amount of eligible land in Alaska help explain why the only federally licensed casino in the state can be found in Metlakatla, said Anchorage municipal attorney Rebecca Windt-Pearson.
Also, state law also would not permit Las Vegas-like casinos in Alaska, she said.
The tribe’s complaint says Interior has wrongly determined that the tribe does not have jurisdiction over the allotment. The agency erred when it said the land is not “Indian land” eligible for gaming, the complaint says.
The tribe argues that the allotment falls within its traditional territory, and that it exercises governmental authority over it through land management and environmental protection. It’s built a septic system there, cut trees for fire breaks, had junk cars removed and controlled dogs by ordinance, among other actions.
The complaint points out that in 2006, the gaming commission ruled that a tribe in California could open a casino on an allotment in California. A second, similar ruling took place in 2010 over an allotment in Oklahoma.
“There is no legal basis on which to distinguish allotments (in Alaska) from other Indian allotments,” the tribe’s complaint says.
The Anchorage mayor supports the proposal, his communications director said. Berkowitz was unavailable for an interview this week.
In a 2018 letter to the Interior Department, Berkowitz said the proposed “modest class II casino” would generate a “substantial number” of construction and long-term jobs, helping combat the tribe’s high unemployment.
Rep. Don Young, R-Alaska, supports the idea. Casinos in the Lower 48 have largely helped tribes and their communities improve economically, he said.
“It’s part of their tribal rights as long as the state is agreeable,” Young said in an interview this week. “I still don’t know why the Department of the Interior turned it down.”
Maria Bahr, assistant attorney general for the Alaska Department of Law, said the state is still determining whether or not to intervene in the lawsuit. That decision, she said, will be made by the end of the month.
Bahr did not indicate what position the state might take. Gov. Mike Dunleavy’s office did not comment.
The press secretary for Sen. Dan Sullivan, R-Alaska, said the senator does not have an opinion about the tribe’s action. Sen. Lisa Murkowski’s communications director said she had no comment.
Eklutna officials and an attorney for the tribe declined to specifically describe the plans for the gaming facility.
In Metlakatla, population 1,400, the gaming casino has rows of electronic bingo games -- shown in a video on its Facebook page — that look like slot machines but are not, officials there said. Players compete in-house against other players using the machines.
“It doesn’t have all the bells and whistles of a big casino,” said Joni Hudson, who manages the business.
The Metlakatla casino isn’t subject to state limits on jackpots, and it’s not required to file for state gaming permits.
It doesn’t have to pay taxes to the state, she said. That revenue stays in the community to pay for local services.
“The proceeds benefit the community through the running of the government, health and government, things like that. We’re very small, though,” she said.
More than 10,000 Native allotments exist in Alaska, many stemming from the 1906 allotment act that for decades allowed Natives to apply for parcels of land up to 160 acres.
Windt-Pearson, the Anchorage municipal attorney, said it will be “unprecedented” if Eklutna succeeds in building a gaming hall on a Native allotment in Alaska.
But the “fact-specific test” in federal Indian gaming law would apply to each allotment, possibly limiting similar arrangements, she said.
“They’re not asking for a declaratory ruling that every allotment in Alaska could be deemed ‘Indian lands,'" she said. “They’re asking for a determination that this specific allotment is ‘Indian land.’ ”