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Casinos: The Last Frontier for Smoking?

By Mark Brunswick, Star Tribune, MinneapolisMcClatchy-Tribune Business News

Mar. 26, 2007 - For a look at the possible future of smoking in Minnesota, witness a recent late afternoon at the Treasure Island Resort and Casino near Red Wing.

Shortly after 4 p.m., when the Tradewinds buffet opened, a line snaked around the slot machines to take advantage of the $12.99 dinner. A father with his daughter on his shoulders stood behind the rope guideline, one of many families in line. A few feet away, a woman playing the Star Drifter slot machine sat, her legs crossed at the knee, flicking cigarette after cigarette into an ashtray as blue smoke lazily made its way upward.

Minnesota stands poised to enact a statewide smoking ban that would prohibit smoking in bars and restaurants across the state. So far, attempts to mediate the impact of the ban by exempting such places as American Legion and VFW halls have fallen short. Gov. Tim Pawlenty has pledged to sign the bill.

If the measure is enacted, the few places that smoking would be permitted would be the state's 18 Indian casinos, which would not be covered by the law.

The debate over a statewide smoking ban is reaching a potential denouement at the Capitol, with a Senate vote possibly as early as this week. As the debate has continued, never far beneath the surface is the issue of the casinos, the Indians and tribal sovereignty.

Sovereignty, which has come to mean that Indian land is beyond the reach of most state and local laws, is always a hot-button issue, whether over gaming compacts that allow for Indian monopolies on casinos in the state, or for separate regulations covering hunting and fishing rights on reservations.

The smoking ban has been framed as a way to protect workers from the dangers of secondhand smoke. The tribes' responsibility toward their employees has emerged as a key issue in the debate.

At a House committee hearing recently, Rep. Joyce Pepin, R-Rogers, introduced an amendment to the smoking ban bill that would make it effective only after the governing body of each tribe in Minnesota enforces identical language on their lands. The amendment failed but served as an example of the tensions that arise over the issue of Indian sovereignty.

"Workers at casinos or on tribal property are no more or less important than any other worker in the state," said Rep. Matt Dean, R-Dellwood, who supported the Pepin amendment.

Elsewhere, attempts to enforce state smoking bans at Indian casinos over the worker health issue have been soundly rebuffed. Connecticut's attorney general has argued that the tribes who operate the state's Mohegan Sun and Foxwood casinos should be required to comply with the state's smoking ban because they signed state gaming contracts.

Earlier this year, the Connecticut Supreme Court upheld a four-year-old state ban on smoking in bars and restaurants, rejecting claims that the law is unfair because it doesn't apply to private clubs and tribal casinos. The ruling argued that lawmakers had good reason to be wary of attempting to legislate for the "sovereign nations" and to worry about the state's ability to enforce a smoking ban on Indian land.

Through the course of history, the federal government has determined that the tribes have retained the inherent right to manage their land and their affairs that take place on their land.

There are some exceptions, though. Minnesota, for instance, is one of six states in the country that has some criminal jurisdiction over tribal land. Except for Red Lake Nation, state criminal laws can be enforced over Indians within as well as outside the state's tribal lands. The proposed smoking ban, however, would be regulatory in nature, not prohibitive, so it is believed the law generally would not apply.

In addition, questions have arisen over land a tribe may use that might not be in federal trust or on the reservation. Whether those "fee lands" might be subjected to a ban could be the subject of debate and possible court action if the statewide ban becomes law.

"People do seem to be able to litigate anything," said Wilda Wahpepeh, an attorney with Dorsey & Whitney who specializes in Indian gaming law.

An Indian casino in Washington state recently constructed a massive non-smoking building. Two tribes in Ontario, Canada, opted to made their casinos completely smoke-free last year to match the province's smoking ban, but did so on their own accord. To date in the United States, though, no Indian casino has been successfully forced to abide by any state-imposed smoking ban, according to several experts in the field.

"State smoking bans don't apply. Tribal self-governments pre-empts state law," said Shenan Atcitty, a partner in the law firm Holland & Knight. Atcitty serves as the head of the firm's American Indian legal and lobbying practice based in Washington, D.C.

John McCarthy, executive director of the Minnesota Indian Gaming Association, which represents nine of the 11 tribes with casinos in the state, said several tribes over the years have voluntarily developed non-smoking areas, installing what he called smoke-eater ventilation systems or glassing off areas. Given their sovereignty, the tribes have been noticeably quiet in the current smoking ban debate.

"Some of these folks say the tribes are behind [a ban] because they are going to get more business," McCarthy said. "It's like saying the bar owners in Wisconsin are behind it. It's just not something that there's been a big discussion about as far as the tribes are concerned."

Treasure Island, which is not part of the Minnesota Indian Gaming Association, was the first casino in Minnesota to offer a smoke-free area, with nearly 30,000 smoke-free square feet, including more than 450 gaming machines, a poker room, 126 hotel rooms and dining in several restaurants.

Recently at Treasure Island, operated by the Prairie Island Indian Community, the casino's non-smoking section had a steady stream of customers at the slots and blackjack tables, but noticeably fewer than elsewhere in the casino.

With an entrance separated only by a small sign announcing the section, it is between the larger smoking area on one side and the glass-enclosed bingo section on the other, where ashtrays on the table awaited the night's customers. The air was less smoky, but not by much.

Most tribes have found that guests prefer smoking areas, and MIGA's McCarthy said he was not aware of anyone approaching tribal leaders about participating in a statewide smoking ban. Even if they did, McCarthy said it was doubtful any tribes would cooperate.

"You can look at this from the other side," he said. "They are saying that 70-80 percent of the folks in Minnesota want a smoking ban. If that's true the tribes may stand to lose business if people go there and don't like the smoking."

Mark Brunswick -- 651-222-1636 -- mbrunswick@startribune.com

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Copyright (c) 2007, Star Tribune, Minneapolis

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