September 21, 2001

  Native American Press / Ojibwe News
Attorney General rules Indian gambling audits are public information

by Clara NiiSka

In a ruling dated Friday, September 14th, Alan Gilbert, Solicitor General and Chief Deputy of Minnesota Attorney General Mike Hatch ruled that State-held audits of Indian tribal gambling enterprises are public information.  The Attorney General’s Office overturned Commissioner of Administration David Fisher’s August 29th approval of Commissioner of Public Safety Charlie Weaver’s request to reclassify the audits as nonpublic, disapproving both the form and the legal basis of Fisher’s data reclassification request.  The Solicitor General’s September 14th letter to Commissioner Fisher is published in this issue of Press/ON, beginning on page 1.

The September 14th ruling—made despite obvious pressure by Indian gambling interests—rejects the Department of Public Safety’s (DPS) arguments that the gambling enterprise audits should be reclassified as nonpublic because “public access to the data would render unworkable a program authorized by law.”  In upholding DPS Commissioner Weaver’s request to bar public access to the audits, Administration Commissioner Fisher had argued that “if the tribal governments refused to provide the audit data,” State enforcement of the State-Tribal gambling compacts and compact-mandated State monitoring of Indian casinos would be “practically impossible.”

The Attorney General’s Office rejected that argument, writing to Fisher at the beginning of the analysis, “You apparently believed that the Department had no legal recourse …”  In the last paragraph of his Analysis, the Attorney General’s Solicitor details full legal recourse: “Under the compacts and the IGRA, and consistent with the case law cited above, the Indian bands and communities must provide the audit data upon written request of the State as a part of their ability to engage in legal gaming in the State of Minnesota” [emphasis added].

The Attorney General’s Office also pointedly draws attention to the fact that the problems cited by Weaver and Fisher would not result from the release of casino audits, but rather from Indian gambling enterprises’ “potential refusal” to provide the audits to the State as required by the gambling compacts.  The Attorney General’s analysis ends with the sharp observation that the State “has legal recourse to enforce the terms of the compact if the bands or communities fail to comply …”

The crux of the September 14th ruling by the Attorney General’s Office is a one-sentence conclusion: “the temporary classification of the data … as nonpublic data … is disapproved as to form and legality pursuant to Minn. Stat. §13.06, subd. 5.”

Press/ON requested the audits of the Red Lake casinos from DPS last February under the Minnesota Data Practices Act, and when DPS refused to provide them, challenged the legality of DPS’s refusal.  In April, Administration Commissioner Fisher ruled that Red Lake casino audits held by the State are public information under State law.  (Such financial information is also “a matter of public record” under Article VII, §1(a) of the 1958 constitution of the Red Lake Band of Chippewa Indians, and Press/ON publisher and Red Lake enrollee Bill Lawrence has also made several attempts to obtain the audits from the Red Lake tribal council.)

On June 15th, Press/ON published excerpts from the 1996-97 Red Lake audit—the only Red Lake casino audit obtained by DPS throughout the decade during which its Alcohol and Gambling Enforcement Division has been responsible for monitoring casino operations run by the Red Lake Band.  Press/ON then requested the other Indian gambling enterprise audits held by DPS, and DPS responded by Commissioner Weaver’s application to reclassify the audits as nonpublic information.

The Attorney General’s Office’s recent ruling that casino audits held by the State are public information under State law could result in the audits being released as early as Friday.  Press/ON requested the audits under the Minnesota Data Practices Act last June.  They have also been formally requested by the Minneapolis Star Tribune, and by State Senate Minority Leader Dick Day.

But, according to an article by David Hawley published by the St. Paul Pioneer Press on September 18, Don Gemberling, director of the Department of Administration’s information policy analysis division, lawsuits challenging the Attorney General’s ruling and seeking injunctions to block the release of the Indian casino audits are likely.  “Most of the letters we got from the tribes that complained about our earlier ruling said they would sue of the audits were made public,” Gemberling is quoted as saying.

In an article published the next day, Minneapolis Star Tribune staff writer Robert Franklin, also indicates that further legal action is likely.  He quotes Minnesota Indian Gaming Association executive director John McCarthy as explaining that, “there’s not too many other avenues” by which release of the Indian gambling enterprise audits could be halted.  (The Minnesota Data Practices Act could also be repealed the State Legislature.)

Challenges to the Attorney General’s ruling by tribal attorneys could escalate the controversy over Indian gambling operations in Minnesota, and could easily result in public pressure to renegotiate the compacts, which likely would result in compacts more favorable to the State.  Minnesota is one of the few states which does not have provisions in its state-tribal compacts mandating that the State receive a percentage of Indian casino revenues.  Court action could also lead to legal decisions ruling that Indian gambling is illegal in Minnesota—as the federal district court has already ruled with respect to Arizona.

Press/ON publisher Bill Lawrence commented on possible legal action by the Indian gambling establishment seeking to preserve the cloak of secrecy which surrounds their $3 billion monopoly: “Let them sue all they want, but the federal courts have already ruled that the data is subject to the respective states’ public records laws, which includes the Minnesota Data Practices Act.  The greedy lawyers are just wasting more of our tribal money trying to fight it.”