concurring and dissenting.
I concur in parts I (Background), II (Jurisdiction), and V (H.J.R. 4 Was Properly Presented to the Electorate as One Amendment). I respectfully dissent from parts III (The Statement of Meaning and Purpose Meets Statutory and Constitutional Requirements), TV (The Arguments in Favor of the Proposed Amendment Fairly Represented the Position of the Proponents), and VI (Conclusion).
THE STATEMENT OF MEANING AND PURPOSE DOES NOT MEET STATUTORY AND CONSTITUTIONAL REQUIREMENTS.
One of the primary purposes of H.J.R. 4 was to prevent casino gambling on Indian reservations. Deputy attorney general High explained this purpose of the proposed amendment to the Legislative Council on June 25, 1992:
The Indian Gaming Regulatory Act was passed by Congress to define the limits of gaming on Indian lands. As you probably know, the Indian Tribes are sovereigns; they are regulated by federal law and to the extent federal law regulates them, that’s the rule. Idaho doesn’t per se regulate on reservations.
And when it comes to matters and nature of public policy such as gaming, Congress did not want to leave the states out of the process and ended up defining a system of regulation involving three classes of gaming. Class 1 gaming were your traditional tribal games that would be played by Indians in several ways or whatever, and those Congress left exclusively to the tribes to deal with. They put in a Class 2 of gaming, which probably the most significant game in that is bingo. As to that, the Congress essentially left — the legislative history suggested they thought there were 45 states where there was some form of bingo and therefore the Indians would be allowed to engage in bingo. It also had some other games which could be operated if the state allowed certain gaming, such as poker.
Then there was a third class of gaming which is, I guess, is considered a higher level of gaming which does include lotteries and includes pari-mutuel racing and includes all of your additional casino-type games. As to this Class 3 type of gaming, Congress provided that such gaming would not be permitted in any state unless there was a compact negotiated between the state and the tribe to regulate this gaming. I think Congress felt that in this area of Class 3 gaming is where really the state interests were involved and state expertise and regulation would be involved, and they felt that the state and the tribe should negotiate in good faith toward an agreement as to what kind of Class 3 gaming should be permitted in the state and how it should be regulated. The Congress clearly acknowledged that the state had an important policy interest in this area by doing that.
I should say that there is a difference in opinion, I think, between our interpretation and what I understand is the tribes’ interpretation of what the effect of that provision that gaming, Class 3 gaming, is what is located in the state that permits such gaming for any purpose by any person. I think the tribes had some understanding — to understand that provision to allow the tribes to conduct all Class 3 *44games if the state allows any Class 3 gaming.
The other interpretation we believe is correct is that the tribes are entitled to conduct all games which the state lets anyone conduct and not subject to the same regulation. And we also think that if the state policy is open enough to allow sufficient gaming, that the whole scheme of the state would be viewed as merely regulatory, that it may be that all games would be open to the tribes.
Okay, so then how does this federal act interplay with where we are with our Idaho Constitution. We have a Constitution which allows the state lottery, which we are not too sure how broad that permits, and charitable games of chance, we’re not too sure how broad that permits, and we have a federal act that allows the tribes to conduct any games which the state would let anyone conduct. I think that the — The real question in our mind is what is the state policy? We have always understood it to be that Idaho has a tradition of opposing casino types of gaming. It has allowed a limited amount of gaming that — in the public’s mind maybe is perceived as a more innocent form — buying some lottery tickets or going to the race track occasionally — charitable fund raisers.
Minutes of Legislative Council, June 25, 1992, 2-5.
The Court’s opinion goes awry when it concludes:
The statement of meaning and purpose is not untrue or misleading just because it does not mention that gambling conducted on Indian reservations in the state of Idaho is included in the prohibition. The statement makes it clear that all casino gambling, Indian or otherwise, is prohibited. Accordingly, to the extent that Indian reservations are governed by the laws of the state of Idaho, they would be subject to the provision of the gambling amendment.
at 41, 867 P.2d at 915. This is clearly incorrect. Indian reservations are not governed by the gambling laws of Idaho.
Our state constitution acknowledges that “Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States.” Id. Const, art. 21, § 19. As the Court said in State v. McCormack, 117 Idaho 1009, 1011, 793 P.2d 682, 684 (1990): “Indian tribal members are generally under the exclusive jurisdiction of the United States Government; ____” The only exceptions are those matters over which jurisdiction is assumed and accepted by the state, pursuant to Public Law 280, in I.C. § 67-5101, or as to which the governing body of the tribe has consented pursuant to I.C. § 67-5102. I.C. § 67-5101 does not refer to gambling laws, nor is there any evidence that the governing bodies of any Indian tribe in the state has consented to the state’s jurisdiction over gambling on the reservations.
The very purpose of the Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq.), to which deputy attorney general High referred in his comments quoted above, was to provide a means of regulating Indian gaming by federal law. It is federal law, and not state law, that governs gambling on Indian reservations. In the Indian Gaming Regulatory Act, Congress stated:
Indian tribes have the exclusive right to. regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.
25 U.S.C. § 2701(5).
This does not provide that state law governs gaming on Indian reservations, but merely leaves to federal determination whether state “criminal law and public policy, prohibit such gaming activity.”
What the voters of Idaho were not told in the statement of meaning and purpose for H.J.R. 4 was that one of the primary purposes of the amendment proposed was to prohibit casino gambling on Indian reservations. This was not merely an incidental effect of the amendment as the Court’s opinion suggests. It was one of the motivating reasons for H.J.R. 4. The voters should have been told this in the statement of meaning and purpose so that they could been advised of “the actual issue to be deter*45mined.” Lane v. Lukens, 48 Idaho 517, 528, 288 P. 532, 533 (1929). In my view, the sleight of hand performed by the statement of meaning and purpose was not permissible under I.C. § 67-453 or the special version of this statute enacted in H.B. 2 of the 1992 special session of the Idaho legislature.
THE ARGUMENTS IN FAVOR OF THE PROPOSED AMENDMENT DID NOT FAIRLY REPRESENT THE POSITION OF THE PROPONENTS.
The Court’s opinion concludes that the “Statements for the Proposed Amendment” were consistent with the Court’s historical interpretation of Art. 3, § 20 of the Idaho Constitution. I respectfully disagree.
The statements at issue are: “The amendment will confirm Idaho’s long-standing policy against casino gambling. This constitutional policy has existed since statehood.” The Court’s opinion equates “casino gambling” with “lotteries” as defined by the Court in State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953). Nowhere in Village of Garden City is “casino gambling” mentioned. The Court instead said:
All lotteries are gambling. To constitute a lottery, as distinguished from other methods or forms of gambling, it is generally held there are three essential elements, namely, chance, consideration and prize.
Id. at 520, 265 P.2d at 330-31.
To say that Idaho has a long-standing constitutional policy against casino gambling is simply not borne out by a reading of Village of Garden City.
Likewise, Oneida County Fair Bd. v. Smylie, 86 Idaho 341, 386 P.2d 374 (1963) does not support the existence of a long-standing constitutional policy against casino gambling. In Oneida, the Court pointed out that the proceedings of our Constitutional Convention “prove conclusively that the framers of our Constitution distinguished a ‘lottery’ from a ‘game of chance.’ ” Id. at 347, 386 P.2d at 337. The Court carefully drew “the historical distinction between ‘lottery’ and ‘game of chance’ ” and concluded that pari-mutuel wagering on horse racing was not a lottery and was, therefore, not unconstitutional under Art. 3, § 20 of the Idaho Constitution.
Based on Village of Garden City and Oneida, the statement might have been made that Idaho had a long-standing constitutional policy against lotteries. There is no basis for a statement that Idaho had a long-standing constitutional policy against casino gambling.
I would conclude that H.J.R. 4 was not properly presented for voter approval and that the amendment to Art. 3, § 20 was not validly approved.
BISTLINE, J., concurs.