California Propositions 94, 95, 96, & 97

If you live in California, then you have been bombarded lately with advertisements in favor of, and opposed to, Propositions 94-97. These propositions are referred to collectively as "referendum(s) on the amendment to Indian Gaming Compact." By the text, they seem to allow specific tribes to have more slot machines, to omit certain projects that would normally be subject to the California Environmental Quality Act, and require the tribes to pay into the state's general fund a larger lump payment, and/or a percentage of revenue of the additional slots.

Groups on both sides have hired sincere looking native americans, teachers, and others to appear in ads and either proclaim that these propositions benefit both tribes and the rest of california, or, in the alternative, that these propositions only benefit "rich" tribes and fail to provide enough funds for California's struggling budget.

With more than a little embarrassment, I must admit that I am somewhat ignorant when it comes to the interplay of the sovereign rights of native american tribes and the roles of the federal and state governments. Why, exactly, California voters are voting on a proposition amending a compact between California and several tribes left me puzzled. Shouldn't this be something dealt with by the feds? I mean, if tribes are treated as sovereign nations, doesn't that mean that the feds have to execute treaties or at least executive agreements with them? Or, since reservations are governed, in part, by the feds (the aptly named "Bureau of Indian Affairs," for example), why does the state, let alone individual voters, have any say in this at all? Others have expressed to me similar confusion, and I had no good answers. And the voter guide, let alone the ads, provide little information. So, I decided to do some research myself. Hope it is helpful for someone.

In a 1987 case called California v. Cabazon Band of Mission Indians (480 U.S. 202, for the ambitious among you), the Supreme Court invalidated an attempt by California to enforce a portion of the penal code against tribes that operated bingo halls. The Court noted that

Indian tribes retain "attributes of sovereignty over both their members and their territory,' . . . and that "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States" . . . It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided.

The Court found that Congress had granted California the authority to enforce criminal provisions, not civil or regulatory provisions, of state law. Since California permitted some gambling, including some bingo, the Court held that the bingo statute was regulatory, not criminal, and therefore, could not be enforced on Indian lands.

A concerned and confused Congress reacted by passing the "Indian Gaming Regulatory Act" ("IGRA") (this was back in the day before they started giving legislation lofty and emotional-laden names like the "Patriot Act" or "No child left behind"). Congress was also confused about the interplay between the tribes and federal and state authority, so they decided to lay down a framework for gaming regulation.

IGRA creates three classes of gaming, each of which is subject to a different level of regulation. Class I gaming covers "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies or celebrations." Class II gaming includes bingo and card games, but not banked card games or slot machines, that are explicitly authorized by a state or "not explicitly prohibited by the laws of the State and are [legally] played at any location in the State."

Class III gaming includes "all forms of gaming that are not class I gaming or class II gaming," and thus includes the most controversial high-stakes games usually associated with casinos, as well as slot machines.

Under IGRA, Class III gaming is lawful on Indian lands only if three conditions are satisfied:

(1) authorization by aordinance or resolution of the governing body of the Indian tribe and the Chair of the National Indian Gaming Commission ("NIGC");

(2) location in a state that permits such gaming for any purpose by any person, organization, or entity; and

(3) the existence of a Tribal-State compact approved by the Secretary of the Interior.

Okay, this is starting to make sense now, right? In order to have the good stuff, the tribes HAD to negotiate some sort of pact with the state.

Well, unfortunately for California tribes, they did not find much of an audience with then governor Pete Wilson, who refused to negotiate with the tribes. The tribes brought suit, arguing that the state had an obligation to negotiate a compact. The tribes lost in a case called Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir. 1996). The Ninth Circuit found that IGRA does not require a state to negotiate over Class III gaming.

In response to their loss, a coalition of tribes went to California voters and put Proposition 5 on the ballot, which required the governor to execute compacts within 30 days after any tribe requested one, or the compacts were deemed approved. In 1998, the voters approved Proposition 5.

Proposition 5 was then put on hold when it was challenged based on the California constitution's prohibition on class III gaming. Before the California Supreme Court had a chance to rule on it, Governor Gray Davis took office and sought to negotiate gaming compacts with the tribes. By September 1999, 57 such compacts had been concluded.

The California Supreme Court then issued an opinion, holding that the state did not have the authority to execute the compacts. To address this problem, the Davis administration proposed Proposition 1A, which amended the California constitution so that Indian tribes would be exempt from the state's constitutional prohibition. In 2000, California voters ratified Proposition 1A. This cleared the way for the governor to execute tribal-state compacts as contemplated Congress via IGRA.

Whew. So that is why and how we have state-tribal compacts. The compacts that are in place today were adopted after a series of negotations between the state and the tribes. Only in the final round of negotiations did the state allow slot machines as well as an exclusive right to conduct Class III gaming in the state in exchange for a percent of tribal gaming revenue.

Propositions 94-97 amend these compacts (to allow more slot machines as well as allow them to operate outside of certain state environmental regulations, but pay more money to the state). The amendments were already negotiated between these specific tribes and the state, and were approved by the legislature.

So why are we voting on them?

Normally these would have gone into effect without voter approval, but somehow these propositions were qualified, and thus these amendments need voter approval. I'm going to guess that some of the other gaming industry, like horse racing tracks, were behind the signature drive to get this on the ballot.

So without passing judgment on whether these are good deals or not for California (the numbers are in the voter information pamphlet/guide), what we are actually voting on, is whether or not this fully negotiated agreement should go into effect.

Here's some additional commentary from someone who knows more than me.