SACRAMENTO, Calif. Stemming from concerns about the possible spread of
tribal casinos into urban areas, two California lawmakers have proposed a
nearly three-year moratorium on gaming negotiations.
Assembly members Joe Nation, D-San Rafael and Loni Hancock, D-El Cerrito,
have proposed a constitutional amendment to place a moratorium on the
state's ability to negotiate gaming deals until Jan. 1, 2008. Nation
further called for establishing a 13-member panel, ostensibly to conduct an
in-depth study of several gaming-related issues, during the moratorium.
Among the issues to be studied is the effect of gaming on local governments
and social repercussions. Another is the possible casino consolidation by
tribes, which could allow several tribes to pool their resources to run a
The California Nations Indian Gaming Association (CNIGA), the state's
largest Indian gaming lobby group, has yet to take a position on either
measure. CNIGA spokesman Susan Jensen said legislative measures usually
must clear the state Legislative Analyst's Office before her organization
will take a position and present the proposed legislation to CNIGA member
Attorney George Forman, who has worked with several tribes, said the plan
could have unintended consequences for the state: the interplay of federal
and state laws could cause the issue to end up in federal hands if the
state chooses not to negotiate the issue.
"It's kind of a peculiar thing in that the [proposed amendment's] intention
is to stop tribes from getting compacts, but the whole thing could backfire
on them," said Forman.
If a tribe has a compact proposal, he contends, and the state refuses to
negotiate within a six-month period and does not enter into negotiations in
good faith, that tribe can sue. If the court finds that the state failed to
negotiate in good faith, the court can order the state or tribe to
negotiate in 60 days. If at the end of the 60 days there is not compact, it
goes to a mediator.
Each side must submit a compact to the mediator; if the state does not
supply a compact, only the tribal version will be submitted. The mediator
has to choose the compact that best agrees with terms of the federal Indian
Gaming Regulatory Act (IGRA) and any other applicable federal laws and
findings. That will be the gaming compact if the state consents to the
proposed compact during the 60-day period.
If the state declines, the compact goes to the Secretary of the Interior
who will proscribe the conditions of gaming on that tribe's land. Forman
said the Interior Secretary has no power to order the state to do anything,
including state revenue sharing and oversight.
"What you might have as a result of this is Class III gaming being imposed
on the state by a federal court or mediator," said attorney Howard
Dickstein, who represents several California tribes.
Forman and Dickstein cite a provision in a 1998 ballot initiative,
Proposition 5, which was passed by voters but struck down by the courts.
One provision kept by the courts was the state's waiver of sovereign
immunity regarding bad-faith negotiations under IGRA. The attorneys said
the state's refusal to negotiate would be construed as bad faith according
Nation's chief of staff, Jim DeBoo, said there would be no conflict with
IGRA: "We think that it's perfectly parallel to what IGRA wants to do." He
also noted that Nation has consulted with attorneys who said there is no
precedent for this kind of case.
The amendment does not technically stop negotiations between the tribes and
the state. DeBoo said the amendment would not stop tribes from negotiating
with the governor, but only prevent the Legislature from ratifying gaming
Under the California legal process, the governor approves gaming compacts
and the state Legislature ratifies them. Constitutional amendments must
pass both houses of the Legislature by a two-thirds margin and then go