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PIERRE, S.D. (AP) – A lawsuit alleging the state has unfairly prevented the Flandreau Santee Sioux Tribe from adding slot machines to its casino is temporarily stalled by a dispute over access to possible evidence, including some records from former Gov. Bill Janklow’s administration held up by claims of executive privilege.
At issue in the lawsuit, filed in March 2007, is an allegation that in the past, state officials had a “gentlemen’s agreement” with the Deadwood casino industry and other kinds of non-Indian gambling to limit the number of slot machines allowed in Indian casinos.
The state contends the only relevant evidence is what occurred during six negotiating sessions over an agreement between the state and tribe before the lawsuit was filed. Those records relate to whether the state has negotiated in good faith, state lawyers have said.
But U.S. District Judge Lawrence Piersol ruled in August 2007 that because the tribe argues the state has followed differing policies for Indian and non-Indian gambling, the tribe can seek discovery of evidence going back to 1989 or 1990. But that evidence can only deal with whether the state had a “gentleman’s agreement” with the non-Indian gambling industry to limit the number of slot machines in Indian casinos, he said.
Discovery is the process in which both sides in a case get evidence from each other before a trial.
The lawsuit says the state negotiated in bad faith as the Flandreau Santee Sioux Tribe sought a gambling agreement that runs for a longer period and allows more slot machines in its Flandreau casino. The lawsuit says state officials have refused to let each Indian casino have more than 250 slot machines but have let the number of slot machines in Deadwood and the number of video lottery machines in casinos statewide skyrocket.
A 1988 federal law, the Indian Gaming Regulatory Act, says tribes generally can conduct the same kind of gambling allowed elsewhere in a state, but the tribe first has to negotiate a compact with the state. Tribes began negotiating compacts to run their own casinos after a South Dakota constitutional amendment allowed casinos to start operating in Deadwood in 1989.
The state argues many records should be off limits because of executive privilege. Those records deal with attorney-client communications, telephone records, or the deliberative process of making decisions.
The tribe contends documents from the administrations of Janklow and former Gov. Walter D. Miller and the late Gov. George Mickelson are relevant.
After his four terms as governor, Janklow deposited 278 boxes of documents at South Dakota State University, and only 11 of them were not sealed. Janklow in 1996 issued an executive order that said the files and records of all governors will be kept confidential and remain sealed until that governor dies or specifically releases those records.
In an affidavit filed in the lawsuit, Janklow declined to open his files and records for the lawsuit filed by the tribe. He said if a judge orders access to any of those files, the information should not be made public.
Janklow also said he never discussed the issues surrounding gambling with Mickelson or Miller, except for a discussion with Miller about the possibility of gambling being allowed on land acquired by another tribe.
“I know nothing of the issues in this litigation as it pertains to anything that was done or not done by Governors Mickelson or Miller and there is and will be nothing contained in my sealed records which contradict this affidavit,” Janklow wrote in an affidavit signed March 4, 2008.
Federal Magistrate John Simpko later required the state to provide some documents for his private review to determine if it should become evidence in the lawsuit. Some of those documents appeared to be those stored by Janklow, the magistrate said.
A number of tribes have complained that the state, under the direction of Gov. Mike Rounds, has not negotiated recent compacts in good faith. They contend the state’s refusal to let them add slot machines is preventing them from getting extra revenue they could use to finance non-gambling projects.
Rounds has said the state negotiates in good faith with tribes. He has argued the South Dakota Constitution permits only limited gambling, so the state cannot allow tribal casinos to have unlimited numbers of slot machines.
Slot machine numbers are limited in video lottery casinos and Deadwood casinos.
The tribe’s lawsuit sought a court order declaring that the state has violated the federal law on Indian gambling and a constitutional provision that guarantees equal protection under the law.
Piersol ruled in March that the equal protection claim does not apply in the lawsuit, which now will focus only on provisions in the 1988 federal law on Indian gambling.
If Piersol eventually rules that the state has not negotiated in good faith with the tribe, he can order the state and tribe to negotiate a compact within 60 days. If the state and tribe fail to reach agreement in that period, the federal judge then would appoint a mediator who would select from among both sides’ last best offers.
If the state consents, the mediator’s proposal becomes the new compact. Otherwise, the case goes to the U.S. interior secretary for a final decision.
Piersol, of Sioux Falls, recently denied a request for a hearing on disputes involving discovery. In his order, he says he intends to rule soon on the discovery disputes.
“As soon as that decision is rendered, we’re full speed ahead,” said Steven Johnson of Sioux Falls, a lawyer representing the tribe.
Eight of the nine Sioux tribes in South Dakota run casinos. The Cheyenne River Sioux Tribe is the only one without a casino.