Jason Markusoff; with files from the Canadian Press
Published: Saturday, February 10, 2007
EDMONTON – There is a glimmer of hope the Alexander First Nation can successfully fend off a showdown the government has threatened over the band’s attempts to create a haven for online casinos, legal experts say.
The Alberta Gaming and Liquor Commission is investigating the Edmonton-area band, which is offering licences for online poker, casino or sports-betting houses, but has apparently not started operations. The provincial body deems that any gaming schemes taking place outside its regulations is against the Criminal Code.
“Being illegal — we will take every action to ensure that it doesn’t happen in Alberta,” said Solicitor General Fred Lindsay, minister responsible for the AGLC.
Just as other aboriginal groups have established constitutional self-governing rights to logging, fishing and hunting, the Alexander band could get a legal OK to host offshore Internet gambling firms if it can prove that wagering was a major part of their ancestral heritage, gaming-industry lawyer Michael Lipton said.
Several bands have failed at the Supreme Court and lower courts to have gambling declared as an inherent right. However, the most recent high court case in 1996 that upheld convictions against Ontario bands has helped set the test for what Alexander or other groups must prove to qualify for sovereignty over gambling, he said.
“If the facts exist to demonstrate that a rudimentary — very rudimentary — form of gambling exists, be it in the form of stones and sticks or beads or whatever the case may be, the law says that if they’ve got the facts, this is the law, they have to follow it,” said Lipton, head of an international association of gaming lawyers.
Morden C. Lazarus wrote an article last summer in the journal Gaming Law Review about the legal case behind the longstanding online casino venture run by the Kahnawake Mohawk of Quebec.
Although authorities have never cracked down on the Kahnawake scheme authorities believe is illegal, Lazarus argues the Mohawk have centuries-old traditional gaming practices they can prove should they ever be hauled into court. “It’s the entitlement test,” he said. “If they can survive the entitlement test the Supreme Court of Canada set out, then they would have the ability to succeed.”
Officials with the upstart Alexander Gaming Commission did not return calls seeking comment for the third successive day. The group wants to charge up to $40,000 annually, plus startup fees, to offshore companies which set up computer servers on the Alexander reserve’s new data centre.
The chief of the Enoch Cree Nation, which has longtime cultural links to Alexander, said the region’s aboriginal people organized wagering games long before contact with European colonizers.
Law professor Moe Litman of the University of Alberta acknowledged the possibility that Alexander could succeed where other bands have failed in getting courts to view gaming as an inherent aboriginal right.
“But the technicalities of doing that make it a very, very uphill battle,” said Litman, an expert in aboriginal self-government law. “You have to essentially prove that … it’s the kind of activity that was an integral part of pre-contact culture. It’s a pretty difficult thing to do.”
Band’s online gambling bid has outside chance, experts say
Would have to show betting was an ancestral activity
Jason Markusoff, The Edmonton Journal; with files from the Canadian Press
Published: Saturday, February 10, 2007
Litman suggested a band would likely have to find documentary evidence of the activities and their cultural importance, such as explorers’ journal entries, oral tradition and other documentary proof.
Meanwhile, Alberta Justice is working with the AGLC on the Alexander band investigation, ministry spokesman David Dear said.
Last March, the AGLC’s Gaming Investigation Team raided and shut down an illegal gambling house in Edmonton and charged 12 people under the Criminal Code. In a news release announcing the shutdown, the director of investigations said such illegal operations take money away from the charities that benefit from legitimate gambling
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