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Like it or Not, Gov. Jerry Brown's Approval of Limited Off-Reservation Gaming Is Lawful and Supportive of Tribal Sovereignty

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Recently, the California Governor, Jerry Brown, authorized the Class III gaming compacts of two landless tribes, the North Fork Rancheria of Mono Indians and Estom Yumeka Maidu (Enterprise Rancheria), who had petitioned the state to operate tribal gaming facilities outside of their traditional reservation lands. Commonly known and ignorantly referred to as “reservation shopping”, the Governor’s decision, while somewhat controversial is both consistent with the State’s policy towards Indians and Indian gaming, supportive of tribal sovereignty and consistent with the Indian Gaming Regulatory Act of 1988 (IGRA).

States Indian Policy and Tribal Sovereignty

Governor Brown’s decision is consistent with the State’s policy of regulating Indian gaming as voted on by the public in Proposition 1A, the voter initiative passed in 2000, that California voters enacted to amend the California constitution to permit federally recognized tribes to operate gaming facilities within the state.

Proposition 1A was a watershed moment for California Indians whose ancestors were subject a prior history of unratified treaties, resulting in the confiscation of millions of acres of the most fertile state lands, rampant mass murder of Indians and forced removals of Indians from traditional aboriginal lands. These atrocious acts were not only permitted and encouraged by the State but were often supported and codified in State and local laws specifically targeted at Indian peoples. One such act, the 1850’s Act for the Protection of Indians, an act passed by the California legislature, required the forced removal of Indians from ancestral lands, leading to the destruction of Indian families. The Act was also interpreted to authorize a form of “indentured servitude” of Indian families, including Indian children. During this period the state not only encouraged, but required local governments to form militias to conduct expeditions specifically to eradicate and or enslave Indian people.

With the passage of proposition 1A, California’s former policies against Indians took a three hundred and sixty degree turn. Tribes are now provided the opportunity to engage in tribal gaming, creating a sub-economy which advances tribal sovereignty and has surpassed $8 billion annually in California alone. Tribal gaming has provided much needed support to tribes in the form of stronger governance, housing, medical and dental services, education and other benefits-that keep tribal members off public assistance. Tribal gaming also has proven to not only stimulate, but grow local economies. As most employees of tribal casinos are mostly non-native, these employees purchase gas, require housing, clothes and food, provided by local vendors, pouring much needed cash into local economies and government coffers.

Tribes have also paid their “fair share” to state and local governments for operating their casinos. Since the first compacts were signed by 61 Tribe’s in 1999, state and local governments have received millions of dollars to mitigate the negative effects of gaming. These tribal dollars resulted in local and state infrastructure, road and utility upgrades and additional public safety personnel, police and fire, and equipment for counties and cities. Tribes also provide in-lieu hotel and property tax payments - much needed dollars and assistance for already exhausted county and city coffers. The Special Distribution Fund (SDF), paid for by gaming tribes, has also provided local governments, non-profits and schools millions in grants that assist local, mostly non-native communities. The Revenue Sharing Trust Fund (RSTF), also funded by gaming tribes, provides much needed revenue to non-gaming and limited gaming tribes - which again assists to reduce tribal members impact on local and state services. No other business in California is required to pay a percentage of net revenues to the State for various purposes as required by California’s gaming tribes.

Brown’s actions in permitting these tribes right to game off traditional lands supports the State’s new policy concerning Indians and Indian gaming. This policy is more collaborative than destructive, a policy that helps to at least in part, right numerous past historical wrongs and permits tribes to become financially sovereign.

North Fork and Enterprise Rancheria’s Unique Circumstances

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Although the United States government attempted to provide small reservations for homeless Indians, called “Rancherias” in the early 1900’s, these purchases were most often of land in remote areas, lacking water, roads, were unsuitable for growing crops, and in some cases, even lacked access.

Both tribes that Brown authorized to game lack land suitable for economic activity, much less gaming activity. In the case of the North Fork Tribe, a “technically landless tribe” their former Rancheria lands, now held under private ownership, are located in the hills of Madera County, where access, much less a population base to support economic activity in general is lacking. North Fork intends to build their casino on 300-plus acres of land, some twenty plus miles away from their former Rancheria lands, located off highway 99 near Fresno.

Enterprise Rancheria, a tribe located near Marysville, California, has no land for economic development. This Tribe has received authorization to build their Casino on forty acres of land designated as an entertainment zone by Yuba County. This area, near the confluence of highways 70 and 65 currently houses a large concert and entertainment venue.

By approving the North Fork and Enterprise compacts, the Governor has acknowledged these tribes sovereignty, which includes their right to participate in Indian gaming and its financial benefits, along with other California tribes. This was a bold and highly controversial, but necessary statement.

The Indian Gaming Regulatory Act and Governor Brown’s “Concurrence” Under Section 20

Governor Brown’s action in authorizing both tribes ability to game on non-traditional lands, is also consistent with the Indian Gaming Regulatory Act, the IGRA, the federal law that provides the regulatory framework within which Indian gaming is to occur within the United States. Under IGRA, gaming must occur on “Indian lands”, which is strictly defined within the IGRA and by the National Indian Gaming Commission (NIGC) regulations. Also, gaming can only occur on lands acquired by a tribe after IGRA’s 1988 enactment under certain exceptions. The exception used by Governor Brown in approving the North Fork and Enterprise tribal gaming compacts is referred to as the IGRA “Section 20” exception. This section requires the State Governor’s “concurrence” with the Tribe’s desire to game on lands outside their reservation. In short, the Governor is required to weigh the positives and negatives of the request and make a decision. Such concurrence happens rarely and in fact has only happened several times since IGRA’s enactment.

While the public, anti-gaming groups and most surely some tribes will see the Governor’s actions in approving both compacts as “opening the flood gates” to more off-reservation gaming, and wholly unfair to their interests, the Governor is well advised to address this concern for future Section 20 decisions by developing a succinct, publically vetted, IGRA Section 20 policy. This policy would result in an in-depth case by case analysis in cases where Tribe’s desire to game on lands outside their reservation. Some factors could include the Tribe’s history, the benefits to the Tribe and the local economy, weighed against the impacts on the local area and impacts on local tribes (included in the North Fork compact is a provision for North Fork to make payments to the Picayune Rancheria of Chukchansi Indians, a local tribe, to assist with potential economic impacts as a result of the Section 20 decision) who cannot move their operations to better, more visible and frequented locations. This policy could also be used to assist tribes, who hold lands in environmentally sensitive areas, areas not economically viable, or areas that lack appropriate or developed infrastructure, to directly participate in the gaming revenues of a Section 20 tribe, as a means of gaining self-sufficiency.

Tribes who may be impacted by a Section 20 decision should also be more open to collaborating with their Section 20 neighbor to create economies of scale, cost savings and to increase revenues for both Tribes. Use of the Section 20 exception too freely by the Governor or subjecting it to an overly politicized process may well spell doom for Indian gaming in California, possibly violate previously negotiated tribal compacts and erode the public’s trust and clear desire that tribal gaming be limited to “reservation lands” when they voted to affirm Proposition 1A.

Jack Duran is affiliated with the Ysleta del Sur Pueblo of El Paso, Texas and is the owner of Duran Law Office, a Roseville, California, based Native American law firm.