BILL ANALYSIS Ó
AB 1767
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CONCURRENCE IN SENATE AMENDMENTS
AB
1767 (Bigelow)
As Amended June 30, 2016
2/3 vote. Urgency
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|ASSEMBLY: | |(May 19, 2016) |SENATE: |39-0 |(August 17, |
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(vote not relevant)
Original Committee Reference: G.O.
SUMMARY: Ratifies the amended tribal-state gaming compact
(Amended Compact or Compact) entered into between the State of
California and the Jackson Rancheria Band of Miwuk Indians
(Tribe) executed on June 22, 2016. Additionally, this bill
provides that, in deference to tribal sovereignty, certain
actions are not deemed projects for purposes of the California
Environmental Quality Act (CEQA); and, stipulates, except as
expressly provided, that none of the provisions shall be
construed to exempt a city, county, or city and county, or the
Department of Transportation from CEQA requirements.
The Senate amendments delete the Assembly version of this bill,
and instead:
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1)Ratify amendments to the Tribal-State Compact entered into
between the State of California and the Jackson Rancheria Band
of Miwuk Indians, executed June 22, 2016.
2)Modifies provisions regarding the Tribe's payments to the
Revenue Sharing Trust Fund (RSTF) and Tribal Nation Grant Fund
(TGNF). Specifically, the Amended Compact provides for a 6%
of net win, or equivalent, payment instead of 8%, into the
RSTF or the TNGF, and an annual credit for the Tribe of up to
60% instead of 40%, with no reference to a minimum payment for
900 gaming devices. This Amended Compact also makes technical
clarifications about the use of credits, as specified. All
other provisions of the existing compact remain intact.
3)Provide that, in deference to tribal sovereignty, certain
actions are not deemed projects for purposes of the California
Environmental Quality Act (CEQA); and, stipulate, except as
expressly provided, that none of the provisions shall be
construed to exempt a city, county, or city and county, or the
Department of Transportation from CEQA requirements.
4)Contain an urgency clause, allowing this bill to take effect
immediately upon enactment.
EXISTING LAW:
1)Provides, under the Indian Gaming Regulatory Act (IGRA), for
the negotiation and conclusion of compacts between federally
recognized Indian tribes and the State for the purpose of
conducting Class III gaming activities on Indian lands within
a State as a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments.
2)Authorizes expressly a number of tribal-state gaming compacts
between the State of California and specified Indian tribes.
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3)Authorizes the conduct of Class III gaming activities to the
extent such activities are permitted by state law, a gaming
compact has been concluded by a federally recognized tribe and
the State, and the compact has been approved by the Secretary
of the Interior.
4)Limits the operation of Class III gaming activities to Indian
lands acquired on or before October 17, 1988. Provides for
certain exceptions to conduct gaming activities on Indian
lands acquired after October 17, 1988.
5)Defines Indian lands to mean all lands within the limits of
any Indian reservation, and any lands title to which is either
held in trust by the United States (U.S.) for the benefit of
any Indian tribe, or individual, or held by any Indian tribe
or individual subject to restriction by the U.S. against
alienation and over which an Indian tribe exercises
governmental power.
6)Requires the State to negotiate to conclude a compact in good
faith with an Indian tribe having jurisdiction over the Indian
lands upon which the Class III gaming activity is to be
conducted. Provides the U.S. district courts with
jurisdiction over any cause of action initiated by a tribal
government alleging that the State failed to negotiate in good
faith to conclude a compact. Prescribes the remedy, mediation
supervised by the courts, if it is found that the State failed
to negotiate in good faith to conclude a compact.
7)Authorizes the Governor, under the California Constitution, to
negotiate and conclude compacts, subject to ratification by
the Legislature.
FISCAL EFFECT: Unknown
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COMMENTS: On August 11, 2016, the Assembly Governmental
Organization Committee held an informational hearing on the
amended tribal gaming compact entered into between the State of
California and the Jackson Rancheria Band of Miwuk Indians.
Brief Overview of the Tribe/Compact: The Jackson Rancheria has
been a federally recognized band of Miwuk Indians since 1895 and
occupies over 1,400 acres of land near the city of Jackson in
Amador County. According to information provided by the Tribe,
the Jackson Rancheria is a small tribe (18-voting members) that
is deeply involved in the community and economic life of the
County. The Tribe is a responsible steward of its tribal lands,
which encompass a diverse ecosystem in the Sierra foothills.
In 1991, with backing from investors, Jackson Indian Bingo
opened its doors. Following the passage of Proposition 5, the
Tribal Government Gaming and Economic Self-Sufficiency Act, in
1998, Jackson was one of 57 tribes that signed compacts with the
State of California to operate Class III gaming.
Over the years the metal building that housed the first Bingo
Hall has grown into a casino complex (Jackson Rancheria Casino
Resort) that includes multiple restaurants, a Hotel, RV Park,
General Store & Gas Station, and the first LEED certified
building in the county. The Tribe has also built new homes for
its residents, a medical and dental clinic, water and sewage
treatment plants, an auto mechanic shop, childcare center for
employees' children, and an off-reservation apartment complex.
The Jackson Rancheria Casino Resort is now the largest employer
in the County, has spent, and donated tens of millions of
dollars into the local economy.
In June 2015, the Tribe was the first of a significant number of
California tribes that had not previously amended or
renegotiated their 1999 compacts to enter into a new Class III
gaming compact with the State. According to the Tribe, the
ratified Compact (AB 475 (Bigelow), Chapter 8, Statutes of 2015)
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represented a significant improvement over the 1999 Compact.
The Tribe states that this newly Amended Compact will further
secure the long-term viability of the casino and the Tribe's
ability to continue to contribute to the State of California.
The amendments in this Compact modify a specific section of last
year's agreement, which was approved by the Secretary of the
Interior on October 16, 2015 by bringing revenue contribution
amounts in line with more recently executed and ratified
Tribal-State compacts. Those compacts provided that a tribe pay
6.0% of its "Net Win" from its operation of gaming devices in
excess of 350 to the RSTF or TNGF rather than 8.0% as Jackson
pays under its 2015 Compact. In addition, this Compact extends
incentives for the Tribe to work directly with city, county, and
other local governing bodies by rebating back to the Tribe up to
60% of its RSTF payments rather than 40% under the existing 2015
Compact provisions for projects undertaken by the Tribe designed
to mitigate the impact of the casino on the surrounding
communities.
The Compact provides that its terms may be amended at any time
by mutual agreement of the parties.
Specific Compact Details:
Amends provisions relating to the RSTF and TNGF: The Tribe will
contribute approximately 6% of its "Net Win" from gaming devices
to the RSTF and TNGF, which benefit non-gaming or limited gaming
tribes in California, in excess of 350 (currently, Jackson
operates 1,650 Class III gaming devices). The Tribe may take
credits for up to 60% of its payments to the RSTF and TNGF for
the following:
1)Payments to Amador County and local jurisdictions for purposes
of improved fire, law enforcement, public transit, education,
tourism, and other services and infrastructure improvements
intended to serve off-reservation needs of County residents;
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2)Payments to reimburse Amador County for any loss of specified
sales tax revenues to the County that would otherwise be due
if the gaming facility and hotel were not located on Indian
lands;
3)Non-gaming related capital investments and economic
development projects by the Tribe on tribal trust lands that
provide mutual benefits to the Tribe and the State because,
for instance, they have cultural, social, or environmental
value or diversify the sources of revenue for the Tribe's
general fund;
4)Investments in renewable energy projects.
5)Payments to support capital improvements or operating expenses
for facilities that provide health care services to tribal
members and other members of the community.
Deletes provision from 2015 Compact: During any quarter in
which the Tribe operates less than 900 gaming devices, the Tribe
shall pay to the California Gambling Control Commission (CGCC)
the sum paid in the most recent quarter in which it operated at
least 900 gaming devices in order to ensure the solvency of the
RSTF.
Additional Background Information:
Rincon Decision: In 2004, the Rincon Band of Mission Indians
sued the State in federal court after negotiations for a new
gambling agreement with then-Governor Schwarzenegger fell apart.
The Tribe believed the Governor was violating federal law by
insisting that tribes pay money into the state's General Fund in
exchange for more slot machines.
In July 2011, the United States Supreme Court declined to review
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a Ninth Circuit Court's decision that ruled the state could not
require the Rincon Band tribe to pay a percentage of slot
machine revenue into California's General Fund for more gaming
devices. The Ninth Circuit had affirmed a lower court decision
that the new financial concessions were nothing more than a
state tax on tribal casino revenues, which is prohibited by
IGRA. The court concluded that a "non-negotiable, mandatory
payment of 10% of net win into the State treasury for
unrestricted use yields public revenue and is [therefore] a tax
and that the court was therefore required to consider the
State's demand as evidence of bad faith under IGRA's statutes."
The Rincon decision has changed the dynamics of tribal-state
compact negotiations in California.
SDF: Existing law creates the SDF in the State Treasury for the
receipt of revenue contributions made by tribal governments
pursuant to the terms of the 1999 model Tribal-State Gaming
compacts and authorizes the Legislature to appropriate money
from the SDF for the following purposes: 1) grants for programs
designed to address gambling addiction; 2) grants for the
support of state and local government agencies impacted by
tribal government gaming; 3) compensation for regulatory costs
incurred by CGCC and the DOJ in connection with the
implementation and administration of compacts; 4) payment of
shortfalls that may occur in the Indian Gaming RSTF; 5)
disbursements for the purpose of implementing the terms of
tribal labor relations ordinances promulgated in accordance with
the terms of the 1999 compacts; and, 6) any other purpose
specified by law. The distribution formula "sunsets" on January
1, 2021.
RSTF: Existing law also creates in the State Treasury the RSTF
for the receipt and deposit of moneys derived from gaming device
license fees that are paid into the RSTF pursuant to the terms
of specified tribal-state gaming compacts for the purpose of
making distributions to non-compacted tribes (e.g.,
federally-recognized non-gaming and tribes that operate casinos
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with fewer than 350 slot machines). Revenue in the RSTF is
available to CGCC, upon appropriation by the Legislature, for
making distributions of $1.1 million annually to non-compact
tribes. The RSTF was created as part of the 1999 compacts,
which, in conjunction with the passage of Proposition 1A (2000),
created gaming compacts with approximately 60 California tribes.
Non-compact tribes are considered third-party beneficiaries of
the 1999 compacts.
According to CGCC, which administers the RSTF, a revenue
shortfall of approximately $15.5 million is anticipated this
fiscal year. According to the Department of Finance (DOF), the
SDF has sufficient funds in it for fiscal year 2016-2017 to
cover the RSTF shortfall. However, DOF indicates that it
projects a $1.6 million SDF balance deficiency in fiscal year
2017-2018 assuming a $25 million transfer to the RSTF. To cover
the anticipated shortfall in 2017-2018, approximately $1.6
million will need to be transferred from the General Fund in
order to ensure full RSTF payments are made to non-gaming and
limited-gaming tribes. A similar amount was redirected in
2015-2016. Recent compacts, including this one, have attempted
to alleviate the shortfall situation by requiring payments by
Tribes directly to the RSTF. This model appears to be a template
for future compacts, as well.
TNGF: The TNGF was created in the Graton Rancheria compact [AB
517 (Hall), Chapter 12, Statutes of 2012], as a new destination
for gaming revenue for distribution of funds to non-gaming and
limited-gaming tribes, upon application of such tribes for
purposes related to effective self-governance, self-determined
community, and economic development. The fund is designed to be
fluid and payments are intended to be made to non-gaming tribes
on a "need" basis, upon application by non-gaming tribes. The
TNGF currently does not receive funding.
Related legislation: AB 629 (Gonzalez) of the current
legislative session. Would ratify the tribal-state gaming
compact entered into between the State and the Pala Band of
Mission Indians, executed on May 6, 2016.
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SB 187 (Hall) of the current legislative session. Would ratify
the tribal-state gaming compact entered into between the State
and the Jamul Indian Village, executed August 8, 2016.
AB 2915 (Eduardo Garcia) of the current legislative session.
Provides for the ratification of a new Tribal-State gaming
compact between the State and Agua Caliente Band of Cahuilla
Indians, executed on August 4, 2016.
AB 1977 (Wood) of the current legislative session. Would ratify
the first amendment to the 2006 tribal-state gaming compact
entered into between the State and the Yurok Tribe, executed
August 4, 2016.
SB 1313 (Hall) of the current legislative session. Would ratify
the tribal-state gaming compact entered into between the State
and the Yocha Dehe Wintun Nation, executed on August 4, 2016.
AB 1282 (Gray) of the current legislative session. Would ratify
the tribal-state gaming compact entered into between the State
and the Buena Vista Rancheria of Me-Wuk Indians, executed on
June 28, 2016.
AB 2358 (Gonzalez) of the current legislative session. Would
ratify the tribal-state gaming compact entered into between the
State and the Pechanga Band of Luiseno Indians, executed August
4, 2016.
SB 404 (De León) of the current legislative session. Would
ratify the tribal-state gaming compact entered into between the
State and the Viejas Band of Kumeyaay Indians, executed on June
22, 2016.
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AB 291 (Atkins) of the current legislative session. Would
ratify the tribal-state gaming compact entered into between the
State and the Barona Band of Mission Indians, executed on June
22, 2016.
Prior legislation: AB 795 (Atkins), Chapter 520, Statutes of
2015. Ratified the tribal state gaming compact entered into
between the State and the Sycuan Band of Kumeyaay Nation,
executed on September 2, 2015.
AB 1540 (Gray), Chapter 531, Statutes of 2015. Ratified the
tribal-state gaming compact entered into between the State and
the Santa Ynez Band of Chumash Indians, executed on August 26,
2015.
AB 315 (Bigelow), Chapter 512, Statutes of 2015. Ratified the
amended and restated tribal-state gaming compact entered into
between the State and the United Auburn Indian Community,
executed on August 14, 2015.
AB 475 (Bigelow), Chapter 8, Statutes of 2015. Ratified the
tribal-state gaming compact entered into between the State and
Jackson Rancheria Band of Miwuk Indians, executed on February 1,
2015.
SB 1356 (De León), Chapter 314, Statutes of 2014. Ratified the
amendment to the tribal-state gaming compact entered into
between the State and the Viejas Band of Kumeyaay Indians,
executed on August 12, 2014.
SB 1224 (Correa), Chapter 300, Statutes of 2014. Ratified the
tribal-state gaming compact entered into between the State and
the Karuk Tribe, executed on December 4, 2013.
AB 1245 (V. Manuel Perez), Chapter 462, Statutes of 2013.
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Ratified the tribal-state gaming compact entered into between
the State and the Ramona Band of Cahuilla Indians located in
Riverside County, executed on June 10, 2013.
AB 277 (Hall), Chapter 51, Statutes of 2013. Ratified two new
compacts entered into between the State and the following
tribes: North Fork Rancheria, executed on August 31, 2012, and
the Wiyot Tribe, executed on March 20, 2013.
AB 1267 (Hall), Chapter 6, Statutes of 2013. Ratified the
amended tribal-state gaming compact entered into between the
State and the Shingle Springs Band of Miwok Indians, executed on
November 15, 2012.
SB 668 (Fuller), Chapter 67, Statutes of 2013. Ratified the
tribal-state gaming compact entered into between the State and
the Fort Independence Indian Community of Paiute Indians,
executed on February 28, 2013.
AB 517 (Hall), Chapter 12, Statutes of 2012. Ratified the
tribal-state gaming compact entered into between the State and
the Federated Indians of Graton Rancheria of Sonoma County,
executed on March 27, 2012.
AB 787 (Chesbro), Chapter 340, Statutes of 2012. Ratified the
amendment to the tribal-state gaming compact entered into
between the State and the Coyote Valley Band of Pomo Indians,
executed on July 25, 2012.
AB 1418 (Hall), Chapter 412, Statutes of 2011. Repealed those
provisions ratifying the tribal-state gaming compact entered
into between the State and Pinoleville Pomo Nation, executed on
March 9, 2009, and instead ratified the tribal-state gaming
compact entered into between the State and the Pinoleville Pomo
Nation, executed on August 8, 2011.
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AB 1020 (Chesbro), Chapter 27, Statutes of 2011. Repealed the
ratification of the tribal-state gaming compact entered into
between the State and the Habematolel Pomo of Upper Lake,
executed on September 2, 2009, and instead ratified a new
tribal-state gaming compact entered into between the State and
the Habematolel Pomo of Upper Lake, executed on March 17, 2011.
SB 89 (Budget and Fiscal Review Committee), Chapter 1, Statutes
of 2010. Ratified the tribal-state gaming compact entered into
between the State and the Habematolel Pomo of Upper Lake,
executed on September 2, 2009.
AB 122 (Coto), Chapter 3, Statutes of 2010. Ratified the
tribal-state gaming compact entered into between the State and
the Pinoleville Pomo Nation, executed on March 10, 2009.
AB 3072 (Price), Chapter 334, Statutes of 2008. Ratified the
first amendment to a tribal-state gaming compact entered into
between the State and the Shingle Springs Band of Miwok Indians,
executed on June 30, 2008.
SB 106 (Wiggins), Chapter 37, Statutes of 2007. Ratified a new
compact between the State and the Yurok Tribe of the Yurok
Reservation.
SB 174 (Ducheny), Chapter 38, Statutes of 2007. Ratified the
first compact amendment to the compact between the State and
Sycuan.
SB 175 (Ducheny), Chapter 39, Statutes of 2007. Ratified the
first compact amendment to the compact between the State and
Morongo.
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SB 903 (Padilla), Chapter 40, Statutes of 2007. Ratified the
first compact amendment to the compact between the State and
Pechanga.
SB 941 (Padilla), Chapter 226, Statutes of 2007. Ratified the
first compact amendment to the compact between the State and San
Manuel.
SB 957 (Torlakson), Chapter 41, Statutes of 2007. Ratified the
first compact amendment to the compact between the State and
Agua Caliente.
SB 470 (Ducheny), Chapter 527, Statutes of 2006. Ratified the
first amendment to the compact between the State and the Quechan
Tribe of the Fort Yuma Reservation.
SB 1117 (Burton), Chapter 856, Statutes of 2004. Ratified two
new and two amended compacts entered into between the State and
the following tribes: Coyote Valley Band of Pomo Indians (new
compact); Fort Mojave Indian Tribe (new compact); Buena Vista
Rancheria of Me-Wuk Indians (amended compact); and, Ewiiaapaayp
Band of Kumeyaay Indians (amended compact).
AB 687 (Núñez), Chapter 91, Statutes of 2004. Ratified
amendments to five compacts entered into between the State and
the following tribes: Pala Band of Mission Indians; Pauma Band
of Luiseno Mission Indians of the Pauma and Yuima Reservation;
Rumsey Band of Wintun Indians; United Auburn Indian Communities;
and, Viejas Group of Kumeyaay Indians.
SB 930 (Burton), Chapter 802, Statutes of 2003. Ratified a
compact between the State and the Torres-Martinez Desert
Cahuilla Indians.
SB 411 (Ducheny), Chapter 790, Statutes of 2003. Ratified
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compacts between the State and the La Posta Band of Diegueno
Mission Indians and the Santa Ysabel Band of Diegueno Mission
Indians in San Diego County.
Proposition 1A, adopted by the people of California on March 7,
2000. Modified the prohibition against casinos and lotteries in
the California Constitution to authorize the Governor to
negotiate compacts, subject to legislative ratification, for the
operation of slot machines, lottery games, and banking and
percentage card games by federally recognized Indian tribes on
Indian lands in California, in accordance with federal law.
Authorized slot machines, lottery games, and banking and
percentage card games to be conducted and operated on Indian
lands subject to the compacts.
AB 1385 (Battin), Chapter 874, Statutes of 1999. Designated the
Governor as the state officer responsible for negotiating and
executing compacts between the State and federally recognized
Indian tribes located in the State. Also, ratified 57 compacts
and created two special funds in the State Treasury (SDF and
RSTF), as specified.
SB 287 (Burton), Chapter 409, Statutes of 1998. Ratified 11
compacts negotiated between the State and Indian tribes that
permitted class III video gaming devices on tribal lands and
established a process for ratifying other compacts.
Analysis Prepared by:
Eric Johnson / G.O. / (916) 319-2531 FN:
0004422
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