Maine Supreme Court Won’t Weigh in on Tribal Casino Question

Posted on: November 21, 2018, 04:38h. 

Last updated on: November 21, 2018, 04:38h.

Philip Conneller @casinoorgphilc Read More
Expertise: Gaming Business, Regulation, Tribal Gaming.

The Maine Supreme Court has declined to rule on whether the state’s tribes can operate casino gaming legally without the approval of the legislature, declaring the question was “not of a serious and immediate nature.”

Maine Supreme Court
Henry Bear is a non-voting state representative in Maine from the Houlton Band of Maliseet Indians. He has been trying for years to make headway in bringing Indian gaming to a state where recognized tribes have fewer sovereign rights than those in other states. (Image: Troy Bennet/Bangor Daily News)

The question was asked by tribal Representative Henry Bear of the Houlton Band of Maliseet Indians, who has tried to push through several measures on tribal gaming since his election to the House in 2013 but has been voted down on each occasion.

In August, the House for once voted in favor of Bear’s proposal to petition the Supreme Court but neglected to file a brief to the court to say it was a pressing matter.

Maine’s constitution allows the governor, the House, or the Senate to refer questions to the court but only if they are “important questions of law,” and “upon solemn occasions.”

This sends the dogged Bear back to square one in his fight to bring economic self-determination to Maine’s federally recognized tribes.

Murky Waters

Maine has no tribal gaming, but it does have two commercial racinos, the Hollywood Casino in Bangor and the Oxford Casino.

Under the Indian Gaming Regulatory Act (1988), tribes across the US are permitted to offer class II gaming such as poker and bingo without state approval, provided it is legal elsewhere in the state.

But this is usually only the case if the tribe was recognized by the Indian Affairs Bureau of the US Department of the Interior before 1934, although Congress can make exceptions. None of Maine’s four federally recognized tribes were.

Matters are complicated further by the Maine Indian Claims Settlement Act (1980) — under which three of the four tribes were recognized. The act limits tribal sovereignty, stating that federal Indian law does not apply to the tribes after 1980 unless the law specifically mentions Maine, which would appear to exclude them from 1988’s IGRA.

Bear’s rebuffed query to the State Supreme Court specifically asked whether the US Supreme Court’s 1987 ruling in California v. Cabazon Band of Mission Indians — the case that established Indian gaming rights and gave rise to IGRA — permitted his own tribe to offer gaming.

New England Market Saturation

“We need jobs. We want to pay our own way,” Bear said during a House debate in April. “That’s the simple response to the question to us of ‘why do you want to do it? Why do you want gaming?’”

Currently, the Houlton Maliseet farm potatoes, barley, and clover on their lands, and also own a roller skating rink. Bear says a casino would benefit the tribe on numerous public health and infrastructure issues.

But the House’s failure to file a brief to the Supreme Court suggests there is still little appetite for tribal gaming among the legislature. The New England casino market has become saturated in the last decade and the state’s two racinos are already feeling the pinch from recent gambling expansion in Massachusetts.

In 2003, voters in a public referendum shot down the authorization of tribal gaming in Maine by a margin of 2:1. At the same time, they opted to approve a ballot measure authorizing slot machine gaming at the Bangor racino, leading the tribes to claim racism.