By Clint Buehler
ALEXANDER FIRST NATION, AB – The Alexander First Nation (AFN) wants to carve out a piece of the burgeoning on-line gaming action for itself.
To achieve that goal, the Alexander Band Council has established the Alexander Gaming Commission (AGC), set up a website to promote the initiative and has completely renovated an old hockey rink to create a 2,300-square-metre business and state-of-the-art data centre on reserve to host the websites of internet gambling operators.
The group wants to charge up to $40,000 a year. Plus start up fees, to offshore companies which set up computer servers on the new data centre.
The AGC promises on its website and in a media release that it has established rules to ensure “a safe, high quality environment for on-line gamers.”
The Alberta Gaming and Liquor Commission (AGLC) contends that what the AFN is proposing is illegal under the Criminal Code, and that the AGLC has the sole authority over gambling in the province.
While admitting that as far as he knows the AGC has only established a website to solicit potential customers who are on-line casino operators, Norm Peterson, the CEO of the AGLC, says the regulatory body would take action to shut down the operation as it would any other “illegal” gambling activity.
That stand has been echoed by Alberta Solicitor General Fred Lindsay, the minister responsible for the AGLC, who said of the Alexander initiative, “being illegal . . . we will take every action to ensure that it doesn’t happen in Alberta.”
(The AGLC reported $1.4 billion in revenue from gambling last year.)
But the AFN counters that because the operation is located on sovereign Indian land, it is not subject to the restrictions of Alberta and Canada.
“We’re establishing that concept under the Indian Act,” says Alexander Chief Raymond Arcand. “We’re on federal land, we’re under the federal responsibility, and under the Indian Act it gives us authority to make our own laws pertaining to this issue.”
However, Kelly Payn, a spokeswoman for the federal Department of Indian Affairs, which oversees the Indian Act, told the Edmonton Journal the department agrees with the AGLC position.
There is a precedent, although it has never been tested by the courts.The Mohawk Territory of Kahnawake in Quebec has one of the largest hosts for online gambling in the world. It has operated the Kahnawake Gaming Commission since 1996, and now hosts hundreds of mostly offshore licensed casino and poker websites, earning millions of dollars in profits in the process.
Although Loto-Quebec and Quebec’s attorney general have said in the past the Kahnawake-based on-line gambling is illegal, charges have never been laid. There is far from agreement on this issue in the legal community, with some legal experts arguing the Kahnawake has found a loophole and its gambling activities are a right protected by the Canadian Constitution, while others says it’s a violation of the Criminal Code.
Internet gambling is not regulated by the federal government, except for Criminal Code provisions requiring that all computerized gambling is operated under provincial gambling authorities.
With the United States Congress coming down hard on U.S.-based on-line gambling sites, Alexander is looking to operators in Asia, Europe and elsewhere to become their customers, and estimate the venture can provide as many as 40 jobs, and generate millions of dollars in profit annually.
It affirms on its website that casino operators it hosts must abide by the tough new American laws banning the processing of payments for gambling websites, and cannot accept bets from Canadian residents.
Alexander’s best defense may lie in the history and culture of its people, by proving that gambling was an inherent part of their pre-contact culture.
It falls under the same justifications that have enabled Aboriginal groups to establish self-governing rights to logging, fishing and hunting. Therefore, if Alexander can show gambling was integral to the history and culture of their people, it could get approval to host off-shore gaming websites.
Alexander could cite the instances where Aboriginal groups have established constitutional self-governing rights to logging, fishing and hunting as precedents that also apply to gambling.
Several bands have had their arguments that gambling is an ancestral tradition and inherent right rejected by lower courts, and even the Supreme Court. The high court, in a decision in 1996 ruling against Ontario bands, provides some guidelines as to how Alexander and other bands might establish sovereignty over gambling.
As gaming industry lawyer Michael Lipton told the Edmonton Journal, “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.”
In a recent article in the Gaming Law Review journal regarding the Kahnawake online casino venture, Morden C. Lazarus writes that although authorities have never cracked down on the Kahnawake scheme even though they think it is illegal, the Mohawk have centuries-old traditional gaming practices they can proves should they ever be hauled into court. He says “it’s the entitlement test. If they can survive the entitlement test the Supreme Court of Canada set out, then they would have the ability to succeed.”
Chief Ron Morin of the Enoch Cree Nation, which opened the $182 million River Cree Resort and Casino on its reserve on the western outskirts of Edmonton last fall, and which has longtime cultural links to Alexander, says the region’s Aboriginal people organized wagering games long before contact with European colonizers.
