People Against a Casino Town
News from PACT
Questions and Answers about PACT's lawsuit
February 7, 2004

Q:  What is the lawsuit about?
                                  
A:  PACT’s lawsuit challenges the authority by which former Governor Kitzhaber entered into (and present Governor Kulongoski is proceeding with) the State-Tribal Compact relating to a casino proposed by the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians.
                                  
Q:  What is the basis of PACT’S challenge?
                                  
A:  The legal challenge is based on the Oregon Constitution and the amendment to it which was adopted by the vote of the people in 1984.
                                  
The 1984 amendment to the Oregon Constitution clearly states that “The legislative assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon.” (Article XV, section 4(12)).
                                  
As in the Constitution of the United States and the other states in the Union, the Oregon Constitution separates governmental powers into three branches, legislative, executive and judicial, and prohibits an official of one branch from exercising  “any of the functions of another, except as in this Constitution expressly provided.”  (Article IV, section 1.) The highest courts of a
number of other states with similar constitutional provisions have already determined that entering into a state-tribal gambling compact is an exercise of legislative authority
                              
Therefore, not only is the Tribal-State Compact an unconstitutional exercise by the executive department (Governor Kulongoski) of a legislative power, the Oregon Legislature itself has no power to grant such authority to the governor.
                                  
Q:  Has the constitutionality of casinos been challenged in other states?
                                  
A:  The highest courts of a number of other states with similar constitutional provisions, including New Mexico, California and Arizona, have upheld challenges to the unilateral action of their governors, which are similar to PACT’s.  Most recently, the United States Supreme Court refused to accept for review the decision of New York’s highest court that its governor
 had acted unconstitutionally in entering into a state-tribal compact.
                                  
Q:  Doesn’t federal law allowing tribal gambling supercede state law?
                                  
A:  The federal Indian Gaming Regulatory Act of 1988 (IGRA) which governs tribal gambling states that “Class III gaming activities shall be lawful on Indian lands only if such activities are located in a State that permits such gaming for any purpose by any person, organization or entity.” (25 USC 2710 (d)(1) (B). Since casino gambling is prohibited by the Oregon Constitution to its citizens, it is also prohibited to the tribes under IGRA.
                                  
Q:  If PACT wins the lawsuit, what happens?
                                  
A:  The State-Tribal Compact relating to the casino proposed in Florence would be null and void.  Because a compact is a prerequisite under IGRA to the operation of a tribal casino, the tribes would be without legal authority to operate a casino on the Hatch Tract.
                                  
Q:  What if a casino gets built before the case gets heard in court?
                                  
A: See previous Q & A.
                                  
Q:  What have Oregon courts said about the merits of PACT’s challenge?
                                  
A:  Nothing to date. PACT has been seeking the speediest route to a judicial determination - while Governor Kulongoski has focused his legal efforts on erecting procedural roadblocks to evade the constitutional questions raised by PACT. Clearly, Governor Kulongoski’s strategy is to win by attrition rather than have to face the merits. But, with the continued support of the people of Florence, PACT is determined to outlast this procedural maneuvering and have the constitutional challenge determined on its legal merits. The people of Florence and of Oregon have a right to know if their constitution means what it says, rather than what the governor - for his own purposes - says what it says.   
                                  
Q:  If casinos in Oregon are unconstitutional, why do we have eight casinos in our state?
                                  
A:  Simply put: because the eight casinos presently operating in Oregon were not rigorously opposed by affected citizens. Where casinos were rigorously opposed in politically significant locales – Salem, Springfield, Portland – the proposals were quashed. But, where there was no politically effective challenge, casinos were deemed politically expedient by Oregon governors who conveniently overlooked the constitutional constraints on their authority. Governor Kulongoski’s implied justification is, “if it ain’t broke, don’t fix it”. PACT is the first opposition group to refuse to accept this as a valid rationale and challenge the constitutionality of casinos in the Oregon courts.
                                  
Q:  Why should the people of Oregon be concerned about the Governor’s unabashed disregard of our laws?
                                  
A:  There are at least six other Oregon tribal groups presently seeking federal recognition. In addition, any of Oregon’s currently-recognized confederated tribes can split into their component parts. Each one of these would-be entities represents a new casino that potentially can intrude into any Oregon community. If the governor can ignore the constitutional
safeguards against casinos, every Oregon community across the state faces the possibility of a casino inserted in their midst, enabled by an uncaring governor whose political motivations leave them - as Florence has been left - with no say in the future of their community.  

Related Links:
PACT   SEARCH   FACTS   LAWSUIT   LINKS   NEWS   RESEARCH   ACTION