Does the Johnson Act Inhibit Riverboat Gaming on the Great Lakes?

In the annals of federal-state relations, the Great Lakes are unique. Their waters variously constitute navigable waterways, state boundaries, an international boundary, and most important for our purposes, "the high seas." 1 The federal government and adjoining states assert concurrent criminal jurisdiction over offenses committed on Great Lakes waters• As one might expect, the legal fiction of inland lakes as "the high seas" does not always fit. The Great Lakes' hybrid status has led to some interesting disputes.3 New questions arise from the advent of Midwestern riverboat gaming, heretofore limited to navigable rivers. In 1993, Indiana became the first state to authorize riverboat gaming on one of the Great Lakes • Similar legislation has been proposed in Illinois, Ohio, Wisconsin, and Pennsylvania. Among states that permit riverboat gaming, "cruising" requirements vary widelyS. Boat operators cite factors such as adverse weather conditions, obstructions to navigation, and hazardous traffic conditions as reasons for keeping boats at the dock6• "The Wreck of the Edmund Fitzgerald" chronicles the Great Lakes' legendary inhospitality to winter navigation. The latest tempest is legal. As Indiana prepares to authorize gaming vessels docked on its Lake Michigan shore, legislators and law-enforcement officials debate whether the Johnson Act? constitutes another obstacle to Great Lakes riverboat garning8• Section 1175 of Title 15, the argument goes, prohibits possession or use of gaming devices in the "special maritime and territorial jurisdiction of the United States." The special maritime and territorial jurisdiction includes "the high seas," and the high seas, by tradition and by statute, include the Great Lakes • Although the recognized boundary of every Great Lakes state includes the adjacent lake, concerns still arise that the Johnson Act might override state law. It doesn't. This Comment will analyze the Johnson Act and the concept of "the special territorial and maritime jurisdiction of the United States," to demonstrate that ( 1) Congress intended to support, not supplant, state laws regulating gaming; and (2) in any event, "the high seas" status of the Great Lakes applies only to "open and unenclosed waters," not to waters within harbors or breakwaters. Well-drafted state legislation and administrative foresight will allow riverboat gaming on the Great Lakes without Johnson Act hindrance.