BILL ANALYSIS
Bill No: ACR
56
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2009-2010 Regular Session
Staff Analysis
ACR 56 Author: Huffman
As Amended: August 18, 2009
Hearing Date: August 25, 2009
Consultant: Chris Lindstrom
SUBJECT
Tribal gaming: local support.
DESCRIPTION
ACR 56 calls upon the G overnor to refrain from negotiating
a T ribal- S tate G aming C ompact (compact) with a federally
recognized tribe until the land on which the gaming is to
occur has been taken into trust for the tribe , the tribe
has jurisdiction over the land, and the local jurisdiction
and the local community supports the project , as specified .
ACR 56 provides that in the absence of local support, the
Legislature will not ratify a compact that allows Indian
gaming on non-Indian lands or on Indian lands not under the
jurisdiction of the tribe.
Specifically, ACR 56:
1)Makes a number of findings and declarations.
2)Resolves, by the California State Assembly, the Senate
concurring, that, with respect to Indian gaming proposals
to conduct class III gaming, the Legislature calls upon
the Governor to refrain from negotiating a compact until:
a) The land on which such gaming will occur has been
taken into trust for the tribe;
b) The tribe has jurisdiction over the land; and,
ACR 56 (Huffman) continued
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c) The local jurisdiction and the local community in
which the tribe's proposed gaming project would be
located actually support the project.
3)Resolves, that the presence or absence of local support
must be demonstrated through both of the following:
a) An advisory vote in the county or counties in which
the tribe's Indian lands are located, either approving
or disapproving a proposed gaming facility; and
b) One or more intergovernmental agreements that are
enforceable in state court, that include provisions to
mitigate the impacts of the proposed gaming and
related activities, executed by the Indian tribe and
the following:
i) The incorporated city or city and county in
which the Indian lands are located, or, if the land
is not located within an incorporated city or city
and county, the county or counties in which the land
is located; and,
ii) Each county that is contiguous to the county in
which the land is located and that is likely to be
substantially impacted by the proposed gaming and
related activities, as reasonably determined by the
board of supervisors of the county and set forth in
a measure specifying the nature of anticipated
impacts, which impacts shall be no more than 75
miles from the proposed gaming facility, and the
estimated costs of mitigation.
4)Resolves, that the Chief Clerk of the Assembly transmit
copies of the resolution to the author for appropriate
distribution.5)
EXISTING LAW
Existing federal law, the federal Indian Gaming Regulatory
Act (IGRA), provides 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 as defined by federal law,
within a state as a means of promoting tribal economic
development, self-sufficiency, and strong tribal
governments. Authorizes the conduct of class III gaming
activities to the extent such activities are permitted by
state law, a gaming compact is concluded by a tribe and the
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Page 3
state, and the compact has been approved by the Secretary
of the Interior.
Existing federal law, IGRA, 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.
Existing federal law, IGRA, 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 for the benefit of any Indian tribe or
individual or held by any Indian tribe or individual
subject to restriction by the United States against
alienation and over which an Indian tribe exercises
governmental power."
Existing federal law, IGRA, requires a state that permits
class III gaming, upon a request from a federally
recognized tribe, to negotiate in good faith to conclude a
compact.
Existing federal law, IGRA, provides the United States
District Courts with jurisdiction over any cause of action
initiated by an Indian tribe arising from the failure of a
State to enter into negotiations with the Indian tribe for
the purpose of entering into a compact or to conduct such
negotiations in good faith to conclude a compact.
Prescribes the remedy if it is found that the state failed
to enter into negotiations within 180 days of a tribe's
request to enter into negotiations or if the state failed
to negotiate in good faith. Provides the court with the
following progressive remedies - court ordered
negotiations, court ordered mediation, selection of a
compact by the mediator, and if those remedies fail,
authorizes the Secretary of the Interior to prescribe
procedures consistent with the proposed compact selected by
the mediator.
Existing law, the California Constitution, authorizes the
Governor, notwithstanding the constitutional prohibitions
against lotteries or the type of gaming operating in Nevada
or New Jersey or any other provision of state law, "to
negotiate and conclude compacts, subject to ratification by
the Legislature, for the operation of slot machines and for
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the conduct of lottery games and banking and percentage
card games by federally recognized Indian tribes on Indian
lands in California in accordance with federal law."
BACKGROUND
Purpose of the bill . According to the author, "p ublic
concern is growing over the location, expansion, and
environmental and traffic impacts of tribal gaming on
non-tribal lands in urban areas as an increasing number of
Indian tribes seek to take new land into trust to conduct
gaming activities. In the past, the Governor has
negotiated tribal-state gaming compacts when land has not
been taken into trust and the local jurisdiction and the
local community does not support the project. "
Further, the author states that "ACR 56 encourages the
Governor to refrain from negotiating a tribal-state gaming
compact until land has been taken into trust, the tribe has
jurisdiction over the land, and the local jurisdiction and
the local community supports the project. ACR 56 also
urges the Legislature to not ratify a compact unless there
is local support."
Background . In 1988, Congress enacted IGRA as a means of
granting states some role in the regulation of Indian
gaming. By enacting IGRA, Congress intended to provide a
statutory basis for the operation of gaming by Indian
tribes as a means to promote tribal economic development,
tribal self-sufficiency, and strong tribal government.
IGRA creates three classes of gaming, each of which is
subject to a different level of regulation. Class III
gaming includes all forms of gaming that are not class I
gaming or class II gaming, and the types of high stakes
games usually associated with casino-style gambling, as
well as slot machines and parimutuel horse-wagering. Of
the three classes of gaming, class III is the most heavily
regulated.
IGRA authorizes federally recognized Indian tribes to
conduct class III gaming on Indian lands acquired on or
before October 17, 1988, to the extent those games are
permitted by state law, a gaming compact is concluded by a
tribe and the state, and the Secretary of the Interior
approves the compact.
ACR 56 (Huffman) continued
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IGRA provides for exceptions, on a case-by-case basis, for
gaming to occur on lands acquired and placed in trust after
October 17, 1988. See 25 U.S.C. 2719 et seq. (also known
as "Section 20"). Authorization for those exceptions
resides primarily with the federal government, with the
exception for lands acquired under the so-called "two-part
determination" (described below). Specifically, IGRA
provides that if Indian lands are acquired and placed in
trust after October 17, 1988, the lands may not be used for
gaming, unless:
The lands are located within or contiguous to the
boundaries of the tribe's reservation as it existed on
October 17, 1988 [25 U.S.C. 2719(a)(1)];
The tribe has no reservation on October 17, 1988,
and the lands are located in a State other than
Oklahoma and are within the Indian tribe's last
recognized reservation within the state or states
where the tribe is presently located [25 U.S.C.
2719(a)(2)(B)];
The "lands are taken into trust as part of: (i) the
settlement of a land claim; (ii) the initial
reservation of an Indian tribe acknowledged by the
Secretary under the Federal acknowledgment process; or
(iii) the restoration of lands for an Indian tribe
that is restored to Federal recognition." [25 U.S.C.
2719(b)(1)(B)]
IGRA also provides for an Indian tribe to conduct gaming
activities on after-acquired trust land if it meets the
so-called "two-part determination" exception:
Gaming can occur on the land if the Secretary,
after consultation with appropriate state and local
officials, and officials of nearby tribes, determines
that a gaming establishment on newly-acquired land
will be in the best interest of the tribe and its
members, and would not be detrimental to the
surrounding community, but only if the Governor of the
state in which the gaming activities are to occur
concurs in the Secretary's determination. [25 U.S.C.
2719(b)(1)(A)]
It should be noted that IGRA does not provide the Secretary
ACR 56 (Huffman) continued
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of the Interior authority to take lands into trust. [25
U.S.C. 2719(c)] The Secretary of the Interior's authority
to place lands into trust for tribes that existed prior to
1934 lies within the Indian Reorganization Act ("IRA"). [25
U.S.C. 465] In addition to the conditions imposed by
IGRA, a tribe who seeks to acquire lands for gaming must
also comply with the conditions imposed by the IRA, as
codified in federal regulations. [25 C.F.R. 151 et seq.]
Federal Efforts. Over the past few years, there have been
a number of federal efforts to address the acquisition of
trust land for gaming purposes. The Department of the
Interior (DOI) has written policy letters and guidelines
and has circulated draft regulations regarding taking lands
into trust for gaming. Congress has, and is considering,
legislation on the subject, as well.
Department of Interior communications.
(1) Warm Springs letter. On April 6, 2005, the
Confederated Tribes of Warm Springs and the State of
Oregon signed a compact allowing a casino on
off-reservation land in Cascade Locks. On May 20, 2005,
the Secretary of the Interior disapproved the compact
because the land in question had not yet been approved
as trust land for the Tribe. In the letter denying the
compact, James E. Cason, Associate Deputy Secretary of
Interior, stated the reason for denial was that the
Tribe "will have to undergo a rigorous process under 25
C.F.R. Part 151 (of IRA) before a decision can be made
regarding whether to take the land into trust. In
addition, compliance with the requirements of Section
20(b)(1)(A) of the IGRA will have to be addressed before
the land is eligible for gaming."
(2) Guidance on taking off-reservation land into trust for
gaming purposes. On January 3, 2008, Carl Artman,
Assistant Secretary of the Interior, wrote a memorandum
to provide guidance on taking off-reservation land into
trust for gaming purposes. The memo states that the
guidance will apply to all applications, pending or yet
to be received, that involve requests to take land into
trust that is off-reservation. At the time the memo was
written, there were 30 applications from Indian tribes
to take off-reservation land into trust for gaming
purposes under the Section 20 two-part determination.
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Specifically, the guidance will provide greater scrutiny
to a land-into-trust application for an off-reservation
casino in order to determine the impact on a tribe's
sovereignty. According to the guidance memo, if the
land to be acquired is greater than a commutable
distance (commutable distance is not defined) from the
reservation for tribal members to commute to jobs at an
off-reservation casino, the land acquisition for gaming
is not in the best interest of the tribe, since tribal
members would be required to move from the reservation
in order to become employed at the casino. Further, the
policy also gives greater weight to concerns raised by
local and state governments.
(3) Existing federal checklist for gaming acquisitions.
Although IGRA has been in effect for nearly 20 years,
the federal government has yet to prepare regulations to
address the manner in which lands are to be acquired for
gaming acquisitions pursuant to the two-part
determination. Instead, the Secretary has relied upon a
"checklist" which has, from time to time, been modified.
On September 21, 2007, the "checklist" was further
modified to require tribes to satisfy the conditions for
taking lands into trust pursuant to 25 C.F.R. Part 151
et seq. before the Secretary processed a tribe's request
to acquire the lands for gaming pursuant to the two-part
determination process.
(4) Proposed federal rules on gaming on after acquired
trust lands ("Section 20 Regulations"). On October 5,
2006, DOI issued a notice of proposed rulemaking to
establish procedures that an Indian tribe must follow in
seeking to conduct gaming on lands acquired under
Section 20 of IGRA. These rules are to replace the
existing federal checklist for gaming acquisitions. The
proposed rules are still in circulation for comment.
The proposed rules do not propose drastic changes to the
Section 20 process. However, these regulations have no
impact upon the existing land into trust regulatory
authority, as discussed below.
(5) Existing fee to trust regulations. 25 C.F.R. Part
151, et seq. addresses the procedures and requirements
tribes must follow in order to apply to the Secretary of
the Interior to take lands into trust. Existing
regulations require the Secretary to give greater
ACR 56 (Huffman) continued
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scrutiny to a tribe's fee-to-trust application the
greater the distance the land sought to be acquired is
from a tribe's existing reservation. Further the
Secretary is required to give greater weight to the
concerns of the state and local governments having
regulatory jurisdiction over the land to be acquired (25
C.F.R. Part 151.11). On January 16, 2001, the
Department published in the Federal Register a new
version of the Part 151 Regulations. Subpart C of the
regulations-Discretionary Acquisitions
Off-Reservation-created objective standards for the
Secretary to use in making decisions to take
off-reservation land into trust. However, these
regulations were withdrawn by the Bush Administration
shortly after taking office.
Federal legislation. In the 111th Congress, U.S. Sen.
Diane Feinstein introduced S. 338. titled, a bill to amend
the Omnibus Indian Advancement Act to modify the date as of
which certain tribal land of the Lytton Rancheria of
California is deemed to be held in trust and to provide for
the conduct of certain activities on the land. The bill
will amend the Omnibus Indian Advancement Act to repeal the
declaration that specified land accepted by the Secretary
of the Interior for the benefit of the Lytton Rancheria in
California shall be deemed to have been held in trust and
part of the reservation of the Rancheria prior to October
17, 1988. (The date on the recorded deed is October 16,
2000.) Allows the Lytton Rancheria to conduct activities
for class II gaming on the land taken into trust.
Prohibits the Lytton Rancheria from expanding the exterior
physical measurements of any facility on the Rancheria in
use for class II gaming activities. States that, for class
III gaming purposes, the land taken into trust shall be
treated, for purposes of provisions relating to gaming on
lands acquired in trust after October 17, 1988, as if the
land was acquired on October 9, 2003, the date on which the
Secretary took it into trust.
In the 110th Congress, U.S. Sen. David Vitter introduced S.
2676, titled, the Common Sense Indian Gambling Reform Act
of 2008. The bill would have eliminated the two-part
determination process of IGRA. Newly recognized tribes and
restored tribes would have had to demonstrate geographic,
social, and historical ties to the land they wanted in
trust. Before the land is acquired in trust, the BIA would
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have to consult local communities, conduct an economic
impact study of businesses within a 60-mile radius and
obtain the approval of the affected state's governor and
the state's legislative body. Tribes with land claims
would have no longer been able to use IGRA to open casinos
on settlement lands. These tribes would have had to follow
the same requirements as newly recognized tribes and
restored tribes.
In the 109th Congress, Senator Diane Feinstein introduced
legislation that would have undone a congressional act that
mandated the Secretary of the Interior to take land into
trust and backdate the acquisition date to pre-IGRA. It
would have required the tribe to undergo the same
regulatory oversight process for building a casino as any
other tribe that acquired land after October 17, 1988.
U.S. Rep. Richard Pombo introduced legislation that would
have allowed tribal governments to construct
off-reservation gaming facilities in one of two Indian
Economic Opportunity Zones. Pombo's bill would have
required state and local government approval before the
Indian Economic Opportunity Zones could be established for
gaming purposes. U.S. Rep. Charlie Dent introduced
legislation that would have authorized tribal governments
to only acquire lands for gaming activities on lands
adjacent to existing reservations or if the tribe has no
reservation on October 17, 1988, lands within the tribe's
last recognized reservation. All other lands, such as
those taken into trust as part of a settlement of a land
claim, the initial reservation of an Indian tribe
acknowledged by the Secretary of the Interior under the
federal acknowledgement process, or the restoration of
lands for an Indian tribe that is restored to federal
recognition would have no longer been eligible for gaming
purposes. The two part determination process for the
acquisition of Indian lands for gaming would have required
the Governor's and State Legislature's approval. Also,
Dent's bill would have precluded tribes from basing a claim
on land deals reached before the formation of the United
States of America as a governmental entity. Finally,
Senator John McCain introduced legislation that would have
eliminated the two-part determination process and the land
claim settlement exception from IGRA. It would have
required initial reservations of recognized tribes and
restored tribes to demonstrate historical, geographical and
temporal ties to the land they want to use for gaming. It
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would have required tribes that successfully reclaim lands
to obtain congressional confirmation and the lands must be
within the state where the tribe has or had its last
reservation.
Tribal government comments on the 109th Congressional
efforts. Tribal governments in California expressed their
belief that IGRA works to authorize tribal governments to
conduct lawful, regulated gaming operations on Indian land.
Moreover, these tribal governments contended that the
current federal Indian policy acknowledges the federal
government's trust responsibility to provide overall
supervision and regulation of gaming operations on Indian
lands, including the Secretary of Interior's role in
approving gaming activities on Indian lands. IGRA contains
a delicate political compromise among federal, tribal
interests and the interest of the state and local
governments. Since 1988, there have only been three
gubernatorial concurrences to take land into trust for
gaming purposes pursuant to the two-part determination
exception, indicating the need for amendments to existing
law are unnecessary.
State efforts. Over the last three legislative sessions,
efforts have been made at the state level to address class
III gaming on after acquired trust lands. The Governor
issued a proclamation, legislation was introduced (see the
Related Legislation section of the analysis, below), ballot
measures were initiated, and the Governor concluded but
never submitted to the Legislature a compact to authorize
class III gaming on after acquired trust lands in an urban
area.
Governor's Proclamation. On May 18, 2005, Governor
Schwarzenegger issued a proclamation related to Indian
gaming on newly acquired trust land located in urban areas.
The Governor's proclamation puts forth a policy statement
that he will:
a)Oppose proposals for the federal acquisition of lands
within any urbanized area where the lands sought to be
acquired in trust are to be used to conduct or facilitate
gaming activities.
b)Decline to engage in negotiations for compacts where the
Indian tribe does not have Indian lands eligible for
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class III gaming.
c)Consider requests for a gubernatorial concurrence under
section 20(b)(1)(A) of IGRA that would allow a tribe to
conduct class III gaming on newly acquired land, only in
cases where each of the following criteria is satisfied:
c) The land sought for class III gaming is not within
any urbanized area;
c) The local jurisdiction in which the tribe's
proposed gaming project is located supports the
project;
c) The tribe and the local jurisdiction demonstrate
that the affected local community supports the
project, such as by a local advisory vote; and
c) The project substantially serves a clear,
independent public policy, separate and apart from any
increased economic benefit or financial contribution
to the State, community, or the Indian tribe that may
arise from gaming.
d) In order to ensure adherence to the foregoing policies,
the Governor will direct the Governor's Office of
Planning and Research (OPR) to provide to the Attorney
General and the following departments, boards, and
commissions copies of every notice of a tribal
application to have land taken into trust by the federal
government:
i) The Department of Parks and Recreation
ii) The Department of Water Resources
iii) The Department of Fish and Game
iv) The Native American Heritage Commission
v) The Department of Transportation
vi) The California Highway Patrol
vii) The Air Resources Board
viii) The Department of Conservation
ix) The appropriate regional office of the Regional
Water Quality Control Board
The Governor will further direct the Resources Agency,
Environmental Protection Agency, and Health and Human
Services Agency to distribute a copy of the notice to any
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of their respective departments that may be able to
provide input on a particular application. The
departments referenced above will be directed to promptly
review the notices and provide comments to the Legal
Affairs Secretary for a determination as to whether any
comment on an application to have land taken into trust
should be provided to the Bureau of Indian Affairs. The
boards and commissions listed above will be invited to
provide comments on said notices to the Legal Affairs
Secretary.
e) Support legislative ratifications and DOI approval of
each compact or negotiated compact by the Schwarzenegger
administration, including the one compact for a casino
in an urban area that is not yet ratified by the
Legislature.
f) Pursuant to the Governor's proclamation, "urbanized
area" has the same meaning as that in Public Resources
Code (PRC) Section 21071. PRC 21071 defines "urbanized
area" to mean cities that have a population of at least
100,000 people (5,000 people per square mile).
Initiatives that never qualified for the ballot. In 2005,
three initiatives were submitted to the Attorney General's
office for title and summary, however, the number of
signatures collected were inadequate to qualify the
initiatives for the ballot. The details of each of the
proposed initiatives (SA2005RF0056, SA2005RF0057,
SA2005RF0058) vary slightly, but each would have placed
before the voters "The No Urban Casino Act" that would have
precluded the Governor from entering into a tribal-state
gaming compact in or near urban areas except on land that
was both eligible for gaming and actually taken into trust
for a tribe into a tribal-state gaming compact ratified by
the Legislature on or before January 1, 2005.
Compacts approved in California before the Indian lands
were taken in trust on behalf of the tribe. A number of
bills have come before the Legislature to ratify compacts
for tribes that at the time did not have land held in trust
on their behalf. The Legislature has ratified five
compacts in which the lands where the gaming was to occur
was not in trust - United Auburn Indian Community (United
Auburn), September 1999; Paskenta Band of Nomelaki Indians
(Paskenta), September 1999; Ewiiaapaayp Band of Kumeyaay
ACR 56 (Huffman) continued
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Indians, August 2004; Fort Mojave Indian Tribe, August
2004, and Sycuan Band of Mission Indians, June 2007. With
the exception of Sycuan's compact (which included 1,600
acres on which a second casino could have been built
arguably under the "contiguous" land exception), the other
four Legislative approvals occurred before the DOI's May
20, 2005 decision on the Warm Springs compact.
The Legislature also rejected ratification of two compacts
(Big Lagoon and Los Coyotes, June 2006) that would have
authorized Indian casinos on after-acquired trust land.
The Legislature used as its primary argument the federal
policy as established by the Warm Springs letter. Two
other compacts concluded by the Governor would authorize
gaming on after-acquired lands. One was the Lytton Band of
Pomo Indians (August 2004) compact that would have
authorized an urban casino in Richmond on land that was put
into trust by a Congressional act that statutorily
pre-dated the taking of land into trust to pre-October
1988. The Governor never submitted the compact to the
Legislature. The other compact, North Fork Rancheria-Wiyot
Tribe (2007), was concluded by the Governor, submitted to
the Legislature, but was not introduced in a bill for
ratification. North Fork has committed to get their land
into trust before they proceed with a ratification bill.
Good faith negotiations and federal court jurisdiction.
IGRA establishes the framework by which a federally
recognized tribe can require a state to enter into
negotiations concerning the establishment of a gaming
facility. Under IGRA, a federally recognized tribe
initiates the negotiation process by making a formal
request to enter negotiations with the state. Upon
receiving the tribe's request, the state shall negotiate
with the Indian tribe in good faith to enter into such a
compact. IGRA further provides that the tribe may initiate
a federal cause of action where, 180 days after the tribe's
request for negotiations, the state fails to enter into
negotiations concerning a compact or fails to conduct such
negotiations in good faith. Under IGRA, the court shall
order the State and the Indian Tribe to conclude the
compact within a 60-day period.
If the state and tribe fail to conclude a compact within
the 60-day period, a mediator will select, from the state's
and the tribe's proposed compacts, the compact that best
ACR 56 (Huffman) continued
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comports with IGRA and other applicable laws. If the state
does not consent to a proposed compact submitted by the
mediator, the Secretary of the Interior shall prescribe, in
consultation with the Indian tribe, procedures under which
class III gaming may be conducted on the Indian lands over
which the Indian tribe has jurisdiction.
Arguments in support . Open Space Water Resource Protection
Land Use (OWL) Foundation writes, "there have been numerous
examples in California where so-called "reservation
shopping" has led to federal water rights being established
on top of seriously depleted or outright over-drafted
groundwater reservoirs.
"Indeed, an actual attempt to do exactly this is in
progress for the over-drafted groundwater basin in the
Santa Rosa Plain adjacent to the City of Rohnert Park. The
Federated Indians of Graton Rancheria are attempting to
establish a federal water right on top of a profoundly
over-drafted groundwater basin. If this project is
permitted to occur, all of the water rights in this
groundwater basin would be placed in legal jeopardy.
"This land must be fully vetted by the federal government,
the NEPA process and other legal exercises before it can be
taken into trust. We strongly urge the Governor to be
prudent in this matter and to not jump ahead of this
official process and wait until these challenges are met
and the land is taken into federal trust before conducting
any negotiations that might lead to a tribal-state gaming
compact."
Stand Up For California writes ACR 56 "provides guidance to
the Legislature when a tribal state compact is submitted
for ratification. It is important that State Legislators do
not limit or give away their "political power" with regard
to federal laws and policy governing tribal gaming and
governments that is within the jurisdiction of the State of
California.
ACR 56 respectfully requests that a Governor of the
State "refrain from negotiating a tribal state gaming
compact until the land on which such gaming will occur
has been taken into trust for the tribe?" This does
not limit the authority of the Governor or the
Legislators to act when extraordinary circumstances
ACR 56 (Huffman) continued
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necessitating comprehensive solutions over the growth
and management of tribal gaming exist.
ACR 56 provides the important and necessary
guideline for when to consider a tribal state compact
for ratification that has been negotiated and
concluded. The resolution is consistent with the shift
in federal policy expressed in 25 CFR 292, the new
regulation which addresses after acquired lands in
Section 20 of the Indian Gaming Regulatory Act.
ACR 56 provides adequate safeguards to all affected
parties to express their concerns through
participation in the federal fee-to-trust process
without the worry of political influences on the
regulatory process.
ACR 56 provides guidance criteria by which the
Legislature can enter into a deliberate process for
the establishment of gaming policy ensuring the
welfare of all citizens of the State.
"Many of the affected local governments today are
experiencing shortfalls in their general funds. Perhaps ACR
56 should be slightly amended to require the promoters or
developers of an off reservation casino project to provide
the necessary funds for the advisory election.
"It seems pretty clear that the development of a local
agreement cannot be the only consideration for community
support. How can it be a legitimate agreement supported by
the larger population if there has not been any public
comment accepted in its development, public hearings with
an opportunity to debate the agreement or more
significantly a vote of the electorate to amend the cities
own ordinances on the prohibition of gaming expansion
beyond charitable Bingo. Nor can agreements be made up of
unenforceable promises such as jobs and job training to
local residents only.
"The process must indicate that all affected parties were
included. There must be more than a letter from the
developers who stand to make money on the sale of the
property, or the signatures of citizens who have received
free gifts, or a job by the developer to promote the
facility. Is the support unsolicited and non-paid?
ACR 56 (Huffman) continued
Page 16
"Tribal State compacts must promote a balance between
tribal powers and state powers. There must be assurances
in the language that prevents unfair competition between
similar businesses, and unintended consequences to the
limited shared natural resources."
Arguments in opposition . The California Nations Indian
Gaming Association (CNIGA) argues that the "resolution
infringes directly on the right of a federally recognized
tribe to enter into negations with the Governor. Tribes
are sovereign governments. Making public support and
approval of cities and counties a must for compact
negotiations undermines the tribal/state compacting
process.
"Under IGRA, the state is required to negotiate a compact
in good faith with a federally recognized tribe. This
negotiation takes place between two sovereign governments:
the state (Governor) and the tribal government.
"During government-to-government negotiations, the Governor
has the power to take local support and/or opposition under
advisement. In fact, on May 18, 2005 the Governor issued a
proclamation clearly outlining his general policy on
matters related to tribal gaming. CNIGA opposes adding a
"third party" negotiating layer to this already lengthy
process.
"CNIGA also opposed adding the contiguous counties within
the 75 mile radius. We believe this gives ineligible
counties the opportunity to apply for funds from the
Special Distribution Fund and would take monies away from
cities and counties that actually are impacted by tribal
gaming facilities.
"Tribal governments work hard to maintain good relationship
with local governments. Tribes throughout the state have
voluntarily entered into agreements with local governments
to mitigate issues that are brought to the table. Forcing
tribes to waive their sovereignty is unacceptable and yet
another attempt by the State of California to erode our
inherent sovereign rights."
The Federated Indians of Graton Rancheria argue that this
resolution "proposes a standard that would unfairly
ACR 56 (Huffman) continued
Page 17
discriminate against Indian tribes by subjecting tribal
projects to a unique mitigation standard far beyond what is
required of non-Indian developers. ACR 56 would require
that any tribe seeking a compact must mitigate substantial
impacts on any county within 75 miles of the gaming
facility as determined by that county's board of
supervisors. This goes far beyond what is required under
the California Environmental Quality Act or any other
statute for a non-tribal project. As discussed further
below, our Tribe already has entered into agreements with
the City of Rohnert Park and Sonoma County to mitigate
project impacts. If the standard set forth in this
resolution were to be adopted, it would additionally
require our Tribe to satisfy Marin, San Francisco, Napa,
Mendocino, Lake, and Contra Costa Counties before we could
build and operate a project that will provide tremendous
economic benefits to the local community and the State of
California. This resolution also requires that tribes
demonstrate local support through an advisory vote contrary
to federal law. These are draconian requirements that
would empower remote county elected officials to dictate
mitigation requirements to sovereign tribal governments and
allow discriminatory treatment of tribal projects.
"ACR 56 is also a resolution in search of a problem. The
Department of the Interior has issued new regulations and
policies which address many of the concerns that ACR 56
purports to address. Similarly, the Governor has
discretion to consider and issue an Executive Order
endorsing the importance of local support. But those
policies differ dramatically from the "local" support
standard in ACR 56. ACR 56 is tantamount to a regional
empowerment resolution to extract unjust mitigation from
tribes across California.
"Moreover, all new and amended compacts since 2004 require
tribes to mitigate off-reservation impacts on local
jurisdictions based on an environmental impact report.
This resolution attempts to substitute this established
environmental process with the judgment of a
self-interested political body. If enacted, the resolution
would lead to endless litigation by tribes over whether a
board of supervisors within 75 miles of a project site
acted "reasonably" in determining whether a project would
have a substantial impact on their county. It also creates
a reprehensible double standard that requires tribal
ACR 56 (Huffman) continued
Page 18
projects to meet a radically different standard than
private sector projects.
"ACR 56 would also be very costly to the State. Tribes who
are unable or unwilling to be subject to this heightened
standard may decide to offer class II gaming instead of
class III gaming. Class II gaming facilities present
similar concerns as class III facilities for the State but
do not require a compact. Without a compact, the State
loses its ability to secure a percentage of tribal gaming
revenues from such facilities, any right to regulate the
gaming at such facilities, the right to require an
environmental impact report for new construction, and the
right to impose the various health, safety, and consumer
protections found in recent compacts.
"Similarly, tribes who are unable or unwilling to be
subject to the requirements of ACR 56 could also sue the
State under the Indian Gaming Regulatory Act ("IGRA") for
negotiating in bad faith. Assuming the tribes prevailed,
the Secretary of the Interior would then prescribe
procedures for class III gaming by the affected tribe in
lieu of a compact pursuant to 25 U.S.C.
2710(d)(7)(B)(vii). The procedures prescribed by the
Secretary would comply with federal requirements but not
necessarily the additional state requirements found in
recent compacts. Thus, ACR 56 could deprive the State of
its ability to protect community interests and would result
in the loss of hundreds of millions of dollars in General
Fund revenues at a time of record state budget deficits.
"Further, ACR 56 would also be very costly to State
residents and undermine federal and State efforts to
stimulate economic growth. Our project alone would create
over 700 construction jobs and 2,500 permanent jobs. These
jobs would offer a living wage as evidenced by our
agreements with the Building and Construction Trades and
with UNITE HERE. Rather than promote these good paying
jobs, ACR 56 instead would strike yet another blow to the
hard working men and women of California striving to
survive in these difficult times. ACR 56 would also impede
our Tribe's efforts to provide for the health, education,
and general welfare of our nearly 1,200 tribal members,
including many who reside in northern California.
"Finally, this resolution is grossly unfair in that it
ACR 56 (Huffman) continued
Page 19
ignores the efforts by tribes to address local concerns
under existing law. For example, when Congress restored
our Tribe's federally recognized status in 2000, it
provided us the right, but not the money, to reestablish a
reservation within our aboriginal area. So in 2003, we
announced plans to partner with a developer to purchase
land and build a resort that would benefit our Tribe and
the local community. Since then, our Tribe has incurred
extraordinary expense in moving twice to identify a
location that satisfies local land use and environmental
concerns and to pay for an extensive environmental impact
statement. In the process, our Tribe donated its $4.2
million purchase option to the Sonoma Land Trust to help
preserve several thousand acres of our aboriginal land
along San Pablo Bay in southern Sonoma County. In 2003, we
entered into a binding agreement with the City of Rohnert
Park to provide the City with over $200 million, over 20
years, to mitigate project impacts and for charitable
giving. Since then, our Tribe has contributed over $2.5
million to the City for a program that has dramatically
reduced gang violence and illegal drug use. In addition,
our Tribe has entered into a binding agreement with Sonoma
County to negotiate a mitigation agreement based on the
final EIS. Our Tribe has further agreed to implement
dozens of mitigation measures identified in the final EIS.
Finally, our Tribe is prepared to pay a fair share of our
gaming revenues to the State under a future compact."
Other policy considerations .
1)Concurrent Resolution - Process: A concurrent resolution
is a resolution adopted by both houses of a bicameral
legislature that does not have the force of law and does
not require the signature of the chief executive. A
concurrent resolution is a formal statement passed by one
house, with the other house in agreement, which states
the opinion or expresses the ideas of a bicameral
legislature on a particular subject.
ACR 56 makes a formal statement as it relates to the
responsibilities of the Governor and Legislature,
respectively, in the negotiation and ratification of
compacts authorizing class III gaming activities on
Indian lands taken into trust after October 1988. Given
the fact that these conditions are non-binding and do not
have the force of law, the Governor and Legislature can
ACR 56 (Huffman) continued
Page 20
ignore these conditions when carrying out their
responsibilities in negotiating and ratifying compacts
that authorize tribal gaming on after acquired trust
lands. Therefore, it may be questioned what practical
purpose this ACR serves.
An example is found in the intent language contained SB 621
(Battin), Chapter 858, Statutes of 2003. That bill
declared legislative intent that the revenue sharing
provided by tribes to the state in compacts and/or
amended compacts concluded after the operative date of SB
621 would be applied on a pro rata basis to fund the
state's costs for the regulation of Indian gaming and
problem gambling prevention programs in the Office of
Problem and Pathological Gambling within the State
Department of Alcohol and Drug Programs.
Further, SB 621 stated legislative intent that future
compacts and amended compacts that require distributions
to nongaming or noncompact tribes shall result in a
decrease in the amount that the Legislature appropriates
to the Indian Gaming Revenue Sharing Trust Fund. The
Governor and Legislature have essentially ignored the
intent language contained in SB 621.
Additionally, as it relates to the process, ACR 56 asks the
California State Senate to concur to the Assembly's
resolution before the Assembly itself has approved the
formal statement. Given the fact that there are no
legislative deadlines prohibiting the introduction of
concurrent resolutions similar to those governing bill
introductions, it may be appropriate for the author to
introduce and seek approval of a new concurrent
resolution in the house of origin first, rather than
gutting and amending a concurrent resolution located in
the second, concurring house.
2)Policy statements in the resolution. Although ACR 56
does not have the force of law and does not bind the
Governor or Legislature's future actions as it relates to
negotiating or ratifying compacts, the policy statements
in the resolution may cause concern for tribal, state and
local governments. They are as follows:
a) Calling upon the Governor to refrain from
negotiating a compact until the land on which the
ACR 56 (Huffman) continued
Page 21
class III gaming will occur is held in trust for the
tribe and the tribe has jurisdiction over the land.
Existing federal law establishes the criteria under
which a state must negotiate gaming compacts with
tribal governments. IGRA requires a state that
permits class III gaming, upon a request from a
federally recognized tribe that has jurisdiction over
Indian lands on which the gaming is to occur, to
negotiate in good faith to conclude a compact.
Currently, there are no provisions in federal or state
law that preclude or obligate a Governor to negotiate
a compact with a federally recognized tribe that does
not have jurisdiction over the land on which class III
gaming will occur.
Existing case law, Mechoopda Indian Tribe of Chico
Rancheria v. The State of California, provides that
the state is not obligated to negotiate a compact with
a tribe that does not possess jurisdiction over
"Indian lands", as defined, on which the gaming is to
occur.
Finally, DOI's policy, pursuant to its Warm Springs
letter, is that it will not consider a compact for
gaming on land which is not currently held in trust
for and under the jurisdiction of the tribe.
Possible arguments in support of this provision . There
are four fundamental requisites that must be in place
before a tribal government may commence class III
gaming. The tribe must be federally recognized, must
have jurisdiction over the Indian lands, must have
concluded a compact with the state (that was ratified
by the Legislature, in California), and the compact
must be approved by the Secretary of the Interior and
lodged in the Federal Register.
This resolution reinforces those requisites. For
example, it could be argued that the Governor
shouldn't begin negotiations with a tribe that is not
federally recognized even though federal or state law
doesn't preclude it. Similarly, the Governor
shouldn't negotiate or conclude a compact with a tribe
that doesn't have jurisdiction over the Indian lands
ACR 56 (Huffman) continued
Page 22
on which the gaming is to occur.
Finally, the lack of a restriction precluding the
Governor from entering into compact negotiations with
a tribe that doesn't have jurisdiction over the Indian
lands where gaming is to occur provides financial
speculators with the opportunity to pursue business
arrangements with financially-strapped tribal and
local governments in the hopes of landing lucrative
casino deals. Such attempts waste precious time and
resources of tribal and local governments when there
are no guarantees that the lands will ever be taken
into trust. This could have destructive consequences
on the relationships of all involved - tribal, local,
and state governments.
In the end, said restriction could significantly reduce
the damage caused by speculative ventures and
reinforce case law and DOI's policy pursuant to the
Warm Spring letter.
Arguments in opposition to this provision . Knowing the
details of the scale and scope and the proposed
location of a casino project is essential to
meaningful negotiations. These details will allow
state and local officials to make informed decisions
during negotiations that may shape a project proposal,
assist in land use decisions, and better define the
potential impacts that need to be mitigated.
Also, negotiations with tribes before land is taken into
trust, whether under a mandatory (for a restored
tribe, for example) or discretionary (two-part
determination) exception, may provide the Governor
with an opportunity to negotiate more favorable
compact terms for the state and local governments.
Finally, the resolution does not differentiate between
mandatory or discretionary exceptions. Under a
mandatory exception, the Governor's has no role in
determining whether or not land is taken in trust for
a tribe. Under a two-part determination, of which
there have only been three gubernatorial concurrences
to Secretarial determinations to take land into trust
since the passage of IGRA in 1988, there are no
criteria guiding the Governor's decision. The
ACR 56 (Huffman) continued
Page 23
Governor has the flexibility to use the criteria
outlined in the resolution or other criteria in making
his or her decision. It may be possible to place
restrictions on the actions of the Governor in
concurring in a Secretarial determination to take land
into trust for gaming provided it doesn't violate the
principle of separation of powers under Article III of
the State's Constitution.
b) Calling upon the Governor to refrain from
negotiating a compact until the local jurisdiction and
the local community in which the tribe's proposed
gaming project would be located actually support the
project.
No provisions in federal law require, prior to the
Governor negotiating a compact, both a local advisory
vote and intergovernmental memorandums of
understandings that are enforceable in state court
with the county where the gaming will occur and with
contiguous counties, to mitigate casino and related
impacts up to 75 miles from the gaming facility as
unilaterally determined by the boards of supervisors
of each county.
Under the California Constitution and state law, the
Governor is designated as the state's negotiator on
compacts.
Possible arguments in support of this provision . Local
governments should have a greater say in the
activities that occur within its borders. Further,
local governments should be directly involved with the
negotiations to mitigate the impacts of tribal gaming
before the Governor negotiates a compact, rather than
after a compact in concluded, which weakens the
bargaining position of the locals. Finally, tribal
gaming impacts are not just relegated to the city and
county in which the gaming occurs. The actual impacts
from the gaming facility and its related activities
are extensive, perhaps equivalent to the tribe's core
geographic market, and those impacts should be
mitigated.
Arguments in opposition to this provision . Previously,
community groups argued that a local advisory vote
ACR 56 (Huffman) continued
Page 24
(however defined) and intergovernmental agreements
that mitigate the tribal casino impacts should not be
deemed as local support of a casino project. Now they
argue the opposite and want to insert local
governments in the negotiation process when such a
role is not authorized by law. Further, the proposed
requirements are skewed heavily in favor of the local
governments in the region that they could literally
hold a tribe hostage to extract concessions or they
could kill any casino proposal.
The resolution calls for an advisory vote in the county
or counties in which the tribe's Indian lands are
located. It is not limited to the county where the
gaming facility will be located. Further, for tribes
that have Indian lands in multiple counties, it could
require multiple advisory votes.
The proposal does not indicate how or when an advisory
vote needs to be held, who initiates the process, or
who pays for it. A county could simply not hold an
advisory vote and a tribe would be precluded from ever
entering into negations, let alone obtaining, a
compact.
The other provisions in the resolution that could become
part of any future compact are more stringent that
provisions in previous compacts. For example, the
resolution requires intergovernmental agreements with
contiguous counties, when previous compacts generally
required agreements with the host county, host city,
and adjacent cities.
It requires mitigation of impacts up to 75 miles away
from the gaming project, which is a far greater
distance than in previous compacts, the formula for
Indian Gaming Special Distribution Fund local
mitigation grants, or even many of the core geographic
markets in compacts. Also, the mitigation is for
impacts defined by the boards of supervisors of the
eligible counties, however that may work.
Once again, if intergovernmental agreements aren't
achieved, there will be no compact negotiations. A
very powerful leveraging tool for the locals.
ACR 56 (Huffman) continued
Page 25
It is highly likely that if the Governor refused to
negotiate or the Legislature refused to ratify a
compact with a tribe that had jurisdiction over Indian
lands on which the gaming was to occur but didn't have
local support, as specified, the Governor or
Legislature would be subject to a "good faith"
lawsuit. The end result could be a compact in which
the terms are prescribed by the Secretary of the
Interior, with no state or local input, which may not
be in the best interest of the state or the locals.
Or, finally, a tribe may just opt to offer class II
gaming, which would mean no revenue sharing with the
state, perhaps even the locals. No regulatory
oversight by the state, none of the other protections
that have been highly touted by some in recent
compacts, such as patron and employee protections,
third party liability, building and health and safety
code compliance, etc.
PRIOR/RELATED LEGISLATION
AB 1443 (Huffman), 2009-2010 Legislative Session . Requires
the Governor to consider the presence or absence of local
support when negotiating a compact to allow class III
gaming on Indian lands, as specified. States that, in the
absence of local support, it is the intent of the
Legislature not to ratify the compact. (Gutted and amended
in Senate Natural Resources and Water. In Senate Rules.)
SB 1695 (Florez), 2007-2008 Legislative Session . Would
have prohibited the Governor from negotiating a compact
with a tribe that does not have lands in trust on which the
gaming is to occur and that is not federally recognized.
(Set but never presented in Assembly G.O.)
SB 175 (Ducheny), Chapter 39, Statutes of 2007 . Ratifies
the amendment to the compact concluded on August 30, 2006,
between the State of California and the Sycuan Band of the
Kumeyaay Nation (Sycuan). Authorizes Sycuan to operate not
more than two gaming facilities on its existing lands or on
1,600 acres that are contiguous to the existing reservation
boundaries. The 1,600 acres are not trust lands.
ACA 15 (Nation), 2005-2006 Legislative Session . Would have
placed before the voters a constitutional amendment that
ACR 56 (Huffman) continued
Page 26
would modify the Governor's authority to conclude compacts
for class III gaming activities on Indian lands in urban
areas and on Indian lands acquired after July 1, 2006.
(The bill was gutted and amended to relate to eminent
domain and died in the Assembly)
ACA 35 (Nation), 2005-2006 Legislative Session . Would have
placed before the voters a constitutional amendment that
would modify the Governor's authority to conclude compacts
for class III gaming activities on Indian lands in urban
areas and on Indian lands acquired after July 1, 2007.
(The bill was never heard in the Assembly)
SR 20 (Florez), 2005-2006 Legislative Session . Would have
provided that a gaming compact negotiated between an Indian
tribe and the State of California governing the conduct of
class III gaming activities on lands that are not
federally-recognized Indian lands, as defined by IGRA, at
the time the compact is presented to the Senate, shall not
be ratified or considered for ratification. Provided that
the resolution would not apply to any gaming compact
negotiated by the Governor between an Indian tribe and the
State of California governing the conduct of class III
gaming activities on lands that were not federally
recognized Indian lands on or before September 30, 2005.
(Failed passage in Senate G.O. Withdrawn from Senate G.O.
and re-referred Senate Rules. Held in Senate Rules)
SB 1117 (Burton), Chapter 856, Statutes of 2004 . Ratified,
among others, amendments to compacts executed on August 23,
2004, between the State of California and the Buena Vista
Rancheria of Me-Wuk Indians (Buena Vista) and the State of
California and the Ewiiaapaayp Band of Kumeyaay Indians
(Ewiiaapaayp). Buena Vista does not have lands in trust.
The Ewiiaapaayp compact authorized the Tribe to operate up
to two casinos on the Viejas Band of Kumeyaay Indians'
Indian lands, however, the compact was not approved by the
Secretary of the Interior on March 19, 2008.
AB 2272 (Dymally), 2003-2004 Legislative Session . Would
have established a state recognized Indian reservation for
the Gabrielino-Tongva Tribe, a non-federally recognized
Indian tribe, in the City of Compton, in Los Angeles
County. Specified that the Tongva Reservation qualifies as
Indian lands for purposes of entering into a compact. (The
bill was never heard in the Assembly)
ACR 56 (Huffman) continued
Page 27
SUPPORT: As of August 21, 2009:
Artichoke Joe's Casino
Dehesa Valley Community Council
Dianne Jacob, Chairwoman, San Diego County Board of
Supervisors
Hollywood Park Casino
Marvin Pederson, Attorney-at-Law
Mike Healy, Petaluma City Council
Open Space Water Resource Protection Land Use (OWL)
Foundation
Petaluma River Council
Reclaim Our Environmental Rights
Stand Up For California
Stop the Casino 101 Coalition
OPPOSE: As of August 21, 2009:
California Association of Tribal Governments
California Nations Indian Gaming Association
Ewiiaapaayp Band of Kumeyaay Indians
Federated Indians of Graton Rancheria
Morongo Band of Mission Indians
Pechanga Band of Luise?o Indians
FISCAL COMMITTEE: No.
**********