Gov. Kate Brown has pushed for a pause on the Oregon Racing Commission’s consideration of an application for 225 betting terminals at the Flying Lark, a destination resort that the founder of Dutch Bros. Coffee is set to open in Grants Pass.
“Thank you for your work on behalf of Oregonians to carry out the statutory responsibilities of the Oregon Racing Commission,” Brown wrote Nov. 9. “I write today to emphasize the importance of one of those responsibilities, the statutory obligation to meaningfully consult with Tribes on issues that may significantly impact them.”
The letter, to Diego Conde, the commission’s chairman, and Jack McGrail, its executive director, came shortly after WW asked the governor’s office questions about why the Flying Lark was proceeding without regard to the objections of Oregon’s Indigenous tribes, who depend on gambling revenue to pay for tribal services.
The Oregon Constitution prohibits off-reservation casinos. The Flying Lark hopes to take advantage of a 2013 law that allows commercial horse tracks to offer betting on “historical horse racing” machines. The tribes argue that such machines no longer meet the statutory definition of parimutuel betting in which bettors wager against each other but instead are akin to video slot machines in which bettors wager against the house.
In her letter, Brown highlighted a bill she worked on two decades ago, the first of its kind in the nation to elevate a state’s communications with tribes to a higher level.
“As a legislator, I helped to pass Senate Bill 770, the bill that became ORS 182.162-168, Oregon’s tribal consultation statutes,” Brown wrote. “This law enshrines our shared commitment to strong government-to-government relations between the state and the nine sovereign, federally recognized Tribes that inhabit the land now known as Oregon. Robust consultation is a critical element of the working relationship between our governments, and an obligation that all agencies, boards, and commissions must satisfy.”
Pushback to the Flying Lark is led by the Cow Creek Band of Umpqua Indians, whose Seven Feathers Casino is just 45 minutes north of the Grants Pass Downs racetrack, and the Confederated Tribes of the Grand Ronde, whose Spirit Mountain Casino near Sheridan is the state’s largest. The tribes have argued that lawmakers failed to heed their request for a pause on any expansion of gambling in the state.
The tribes also say that the racing commission has proposed moving forward on the Flying Lark without sufficient public process or debate. At a minimum, the tribes seek a state legal analysis of whether 225 betting machines violates the ban on off-reservation casinos and whether the historic horse racing machines the Flying Lark proposes to install conform with the definition of parimutuel betting.
Earlier this week, McGrail, the racing commission’s executive director, told WW his commission would defer the scheduled Nov. 18 agenda item on the Flying Lark.
Brown’s letter raises the possibility that deferral could push the item into next year, when lawmakers in the short 2022 session could take a second look at forming a task force that would bring all interested parties to the table to discuss the future of gambling in Oregon.
Although Brown is sticking to her stance that she won’t tell the commission what it should do, her closing words are a pretty clear instruction to slow down.
“Although it is not my role as governor to weigh in on agency licensing decisions, it is nonetheless my expectation that, as part of its regulatory licensing function, the Oregon Racing Commission will satisfy its statutory obligation to meaningfully consult with tribal governments. That obligation includes consultation before any significant change to gaming activity that may affect the Tribes,” Brown wrote.
“Thank you for your commitment to continued engagement with the Tribes. If you have questions about the proper scope and form of consultation, I recommend having conversations directly with the Tribes, and I also encourage you to reach out to the Legislative Commission on Indian Services and the Oregon Department of Justice.”
McGrail says the commission will do that. “The ORC and Chair Conde take its obligation to consult seriously and has made outreach to Tribal groups a priority,” he says.