October, 2011: Who Will Defend the 1999 Compacts After the Decision of the Ninth Circuit in Rincon?
Indian Gaming Magazine
October 28, 2011: Contract requires county silence on proposed Spokane Tribe casino
October 26, 2011:FORUM: Historic moment for county, Rincon Band
North County Times
October 11, 2011:
Rincon-county agreement could mean millions for services
San Diego Union Tribune
October 11, 2011: Rincon To Spend More Gaming Revenues Locally
KPBS Radio News
Sept. 30, 2011:Courts Deal Second Blow To Schwarzenegger Casino Compacts
Sept. 28, 2011: California Compact Negotiations Revised In Light Of Rincon Ruling
August 3, 2011 - Judge McCurrine Orders Commencement of Remedy Process: State Has Sixty Days to Reach New Compact Agreement With Tribe.
July 1, 2011: Federal District Court Dismisses Lawsuit Filed Against Rincon Band Seeking to Avoid Tribal Court’s Eviction Order
Order of Dismissal
June 28, 2011: 9th Circuit Appeals Court issued Mandate in Rincon v. Schwarzenegger
Mandate to District Court
More Press Coverage on Rincon v. Schwarzenegger
Indian Gaming Magazine: July 2011
Supreme Court Say Schwarzenegger Illegally Taxed Tribe
Mondaq: July 28, 2011
The Rincon Decision and Why It Matters
California Lawyer (KQED) July 8, 2011
State Poised to Lose Indian Casino Cash
Blog:Golden State Liberty: July 8, 2011
More Cracks in the Armor of the New Budget
Gambling Compliance: July 7, 2011
Indian Country, Interior Weigh Rincon Ruling Impact
North County Times: July 5, 2011
North County Tribe Wants to Renegotiate Gambling Deal
Intergame: July 1, 2011
U.S. Court in Landmark Tribal Gaming Decision
Gambling Compliance: July 1, 2011
California Compacts Challanged by Rincon Ruling
San Diego Union Tribune Editorial: July 1, 2011
One More Budget Trick Exposed
Sacramento Bee: June 28, 2011
High Court Ruling Against California Boost Indian Tribes’ Power
June 27, 2011: United States Supreme Court denies California’s Petition to review 9th Circuit Appeals Court in Rincon v. SchwarzeneggerOrder (3rd item on page 4)Press ReleaseLos Angeles Times Editorial: • Play Fair With Indian CasinosSan Diego Union Tribune coverage: • Supreme Court Gives Local Gaming Tribe Big WinGambling Compliance coverage: • U.S. Supreme Court Rejects Rincon Ruling AppealSacramento Bee/McClatchy News Service coverage • Supreme Court Declines California Appeal on Indian CasinosNorth County Times coverage: • Supreme Court Declines to Hear Rincon Gambling CasePress Enterprise coverage: • Supreme Court Turns Down State Appeal on Tribal Casino Deal
January 20, 2011 – Article by Gyasi Ross or Crowell Law Office: A Native perspective on the inquest into the shooting of John T. Williams
October 4, 2010: Series of Court decisions advances Rincon Band’s litigation regarding the Tribe’s ability to regulate activities on non-Indian fee land within the external boundaries of the Rincon Reservation (Montana’s second exception).
Rincon v. Schwarzenegger Decision Sent to the Solicitor General - Added December 13, 2010
Statement of Tribal Chairman Bo Mazzetti
Order re Dismissal RMCA v. Mazzetti, et al
Order re Dismissal Donius v. Mazzetti, et al
Order of Preliminary Injunction Rincon Band v. Donius et al
September 28, 2010: San Diego County Board of Commissioners approve Resolution on Mitigation of Gaming-Related Impacts
Board Letter on County Resolution by Comm’r Horn
September 23, 2010: Spokane Tribe submits testimony on Department of the Interior’s Consultation regarding two-part applications to qualify newly-acquired lands for gaming.
Spokane Statement 09-23-2010
September 7, 2010: Schwarzenegger Administration files request for the Suprement Court of the United States to issue a Writ of Certiorari (agree to review) of the Ninth Circuit decision in Rincon Band v. Schwarzenegger.
Petition for Cert.pdf
* This page is only updated periodically, so “current” is a relative term. This page was last updated on October 4, 2010
Date: April 21, 2010
FEDERAL APPEALS COURT FINDS THE GOVERNOR ILLEGALLY TAXING THE RINCON TRIBE
For Immediate Release (Rincon, CA) The Ninth Circuit Court of Appeals affirmed the decision of a San Diego federal judge that Governor Arnold Schwarzenegger negotiated in bad faith by demanding an illegal tax in tribal/state compact negotiations with the Rincon Band of Luiseño Indians.“We applaud this decision because it confirms one of the basic foundations of the relationship between American Indian tribes and states, that Indian tribes are sovereign governments, which, like other governments, cannot be taxed,” said Rincon Chairman Bo Mazzetti.
The court directed the San Diego District Court Judge William McCurine to proceed with a 60-day negotiation between the state and tribe and if no agreement is reached , a court appointed mediator will resolve any impasse. This “baseball arbitration” remedy was established by Congress when it passed the federal Indian Gaming Regulatory Act (IGRA).
Mazzetti noted, “Rincon has been and is willing to pay our fair share, but we have to oppose revenue sharing fees that exceed common business sense, violates federal law, and is used for impermissible purposes, Rincon rejected the State’s demands and instead proposed that modest increases in fees be directed to local government to improve infrastructure and mitigate impacts.”
“The court decision is a victory for local governments as it offers the opportunity to keep casino revenue sharing in the rural communities where they are most needed, not lost in the state's general fund where it does not help pay for fire, police, roads and other services,” Mazzetti explained.
Mazzetti added that the court case brings resolution to the issue of bad faith and impasse in tribal/state agreements through impartial arbitration, “enabling tribes to say ‘no’ when confronted by a state that demands illegal fees from tribes. This does not just apply to Rincon, but to all tribes in all states and lays out a roadmap for fair, government-to-government negotiations.”
Read Entire Opinion Here
Date: March 24,2010
JUDGE ORDERS: 55,952 IS THE NUMBER OF SLOT LICENSES AVAILABLE TO CALIFORNIA INDIAN TRIBES
For Immediate Release: (San Diego, CA) U.S. Magistrate Judge William McCurine, Jr., United States District Court of San Diego, ruled that 55,952 slot machine licenses are in the state-wide pool available to California Indian Tribes.
“This is a great decision for all the tribes in the state. It’s been a lonely and expensive road challenging the Governor for breaking federal law by taxing tribes and to get clarification on the true number of licenses available. Protecting tribal sovereignty was our real purpose”, explained Bo Mazzetti, Chairman of the Rincon Band.
Mazzetti added,” We are pleased and humbled to have been able to win a round in the centuries old battles that tribes must fight to draw jurisdictional lines in the sand, reminding the state that we are not political subsets under state rule, but rather governments of equal constitutional stature.
This landmark decision, arising from a lawsuit by the Rincon Band of Luiseño Indians, charging that Governor Arnold Schwarzenegger was understating the number of machines in order to extract unreasonable fees for additional machines. Fees, that the tribe felt amounted to an unfair and illegal tax.
A key element of the case was unraveling years of proposed and assumed numbers of machine licenses, resulting from the tribal-state compacts signed in 1999. Despite disagreement by the tribes, The California Gambling Control Commission had set an arbitrary cap at 32,151. The Judge settled the debate by ordering the aggregate number to be 55,952. Last year, in a separate lawsuit brought by the Colusa Band, another federal court ordered that 42,700 machine licenses are availbe. That decision, which is now on appeal, strck a serious blow to the Governor’s negotiation tactics. Today’s decision could result in another 13, 252 device licenses, bringing an end to the Governor’s manufactured leverage.
Judge McCurine soundly rejected the states analysis and criticized the state for changing its position over the course of the litigation. Earlier the Judge sided with the Rincon Band and declared the fees to be an illegal tax and that the governor was negotiating in bad faith. Court ordered arbitration was rejected by the state, which has appealed to the Ninth Circuit Court of Appeals. That decision is expected soon.
“it is frustrating that we must take this Governor to Court to force him to honor the agreement the State made with the Tribes in 1999. His legacy will be one of extortion. Today’s decision, together with the earlier order in the Rincon litigation that he acted illegally and in bad faith, together with the decision in litigation brought by the Colusa Band will bring and end to this illegal agenda” said Rincon Attorney General Scott Crowell.
READ THE ENTIRE OPINION HERE
APRIL 20, 2010
A NOTE ON JUDGE BYBEE’S DISSENT IN RINCON BAND
April 23, 2010
GARCIA: CASINO REVENUE NO SURE BET
Examiner Staff Writer
April 22, 2010
9TH CIRCUIT RULES CALIFORNIA BROKE LAW IN DEMANDING CASINO MONEY
Dan Levine, The Recorder
APR. 23, 2010
This story is taken from Sacbee / Opinion / Editorials
EDITORIAL: INDIAN COMPACTS COME BACK TO BITE
Gov. Arnold Schwarzenegger has no problem with gambling. He presided over a major expansion of the Indian casino industry during his six years in office, but sought a piece of the action on behalf of the state.He fell far short of his promise to extract a billion dollars from casinos owned by California Indian tribes.But if this week's ruling by the 9th U.S. Circuit Court of Appeals stands, Schwarzenegger and his successors stand little chance of ever raising significant money from the tribes' enterprises and shouldn't even bother trying.
The Schwarzenegger administration is right to appeal. We, too, urge the full 9th Circuit to reconsider the ruling.
The case, as described by The Bee's Peter Hecht, involves the Rincon Band of Luiseño Mission Indians. The San Diego County tribe owns a 1,600-slot-machine casino operated in partnership with Harrah's Entertainment Inc., which bills itself as the "world's largest provider of branded casino entertainment through operating subsidiaries."By a 2-1 margin, the three-judge panel has put a halt to the state's effort to collect payments from Rincon, and perhaps by extension, other tribes that operate casinos. The court concluded that the administration bargained in bad faith when it sought payments from Rincon in exchange for granting it another 900 slot machines.
According to the majority, negotiations between the state and Rincon stalled when the administration sought annual payments of $38 million from the tribe. That's significant money. But Rincon could retain $61 million in net revenue. The tribe rejected the offer and sued, claiming the state acted in bad faith.The 9th Circuit panel agreed, holding "a state may not take a 'hard line' when it results in a 'take it or leave it offer' to the tribe to either accept nonbeneficial provisions outside the permissible scope of (the law) or go without a compact."
In our view, negotiators ought to play hardball, especially when the issue involves lucrative slot machines.The state estimates that a single slot at Harrah's Rincon would net $369 a day. That's $134,700 a year. Multiplied by 900, that is $121 million, net.In the majority's limited view, Rincon might need to submit to more regulation in exchange for more slots, and perhaps pay for the added oversight. But the tribe "need not … submit to demands that it assist the State in addressing its budget crisis."The dissenter, Judge Jay Bybee, says the majority decision calls into question gambling deals with tribes across California and the nation. Dozens of deals here and in other states contain similar provisions related to payments."If the majority is correct, then there is nothing for California to do but to authorize whatever devices the Band wants. The Band wins. Everything," Bybee wrote.
California's 100-plus tribes won the right at the polls in 2000 to a monopoly over Nevada-style casino gambling in California. The state ought have the right to seek payment in return.
RINCON TRIBE REAFFIRMS GOVERNMENTAL JURISDICTION OVER RESERVATION BOUNDARIES
For Immediate Release (Rincon, CA) In three separate lawsuits over the past several weeks, the jurisdiction of the Rincon Band of Luiseno Indians and the authority of the tribe to enforce its governmental laws were challenged. Setting significant precedent for future actions of the tribe and other tribes, the Rincon Tribe prevailed in all three lawsuits.
These decisions advance the efforts of the tribe to establish and implement governmental policy within the reservation boundaries applied equally to tribal members and non-members, trust lands, allotments, and even non-Indian fee lands. In addition, the decisions provide clarification and precedent in areas that have remained unresolved about tribal government rights on reservation land, and would have continued to hamper the goal of the tribe to improve conditions within the community.
Commenting on the significance of these legal developments, Tribal Chairman Bo Mazzetti said, “These cases, collectively, demonstrate the Rincon Band intends to exercise sound governmental practices, through policies and ordinances and make sure they are applied fairly and impartially through the courts if necessary. Like any government, we feel the need to challenge any activity that threatens or has some direct effect on the political integrity, environmental protection, and economic security, or the health or welfare of the Rincon community. We have an obligation not only to our members and other residents, who live or do business on the reservation, but also to the neighboring communities.
First, in Rincon Band v. Donius, the tribe pursued a civil lawsuit in the Inter-Tribal Court of Southern California against Marvin Donius. He was sued for violating the tribe’s signage ordinance on fee land property he owns within the reservation boundaries. Land, on which, he has operated and subleased many businesses in defiance of tribal law.
Donius filed an appearance challenging the tribe’s authority over him and over his non-Indian fee lands. Judge Brandenburg held a hearing on the jurisdictional issues and ruled the Rincon Band has jurisdiction over both Donius and the fee lands. Donius thereafter failed to appear before the court. Default judgment was entered against him on June 29, 2009, he was ordered to remove the signs and after defying the Order, on July 21, 2009, the tribe physically removed the signs from the fee lands.
Second, in Rincon Mushroom Corporation of America v. SDG&E, the note holders of Donius’ fee lands filed a lawsuit in the California State Court against San Diego Gas and Electric because the utility had honored Rincon tribal law and refused to provide a power reconnect to the Donius property, without the proper tribal permits. The utility cross-claimed against the tribe in San Diego County Superior Court. The Rincon Band sought to dismiss the action because the tribe had not waived its sovereign immunity and state courts cannot resolve the issue of the tribal jurisdiction without its inclusion in the lawsuit. Notably, San Diego County was also sued by SDG&E and the county joined in the tribe’s motions, averring that the tribe, not the county, has proper jurisdiction over the matter.
“The county agrees that the tribe, or local government, in this case, the Rincon Tribe, has the ability to adequately provide public safety, at no cost to county taxpayers,” noted Mazzetti.
Superior Court Judge Michael Orfield granted the tribe’s motions and dismissed the case, stating that, “The Tribe has several ‘interests’ in this action which meet the standards of CCP § 389(a)(2),(state statute requiring a lawsuit to include all interested parties) including interests related to the same sovereign immunity and the tribe’s authority to govern the reservation, and the tribe’s ability to ensure fire protection and safety on the reservation.”
Third, in Rincon Band v. SDG&E, the tribe pursued a civil lawsuit against SDG&E, and tribal members, George, Rik and Candi Mazzetti for hooking up power to a pole that had been constructed without proper tribal permits. Both SDG&E and the Mazzettis filed motions, challenging the tribal government’s ordinances and jurisdiction. The court denied the motions, rejecting the Mazzettis’ arguments that the tribe’s authority does not extend to allotments. That case will now proceed to trial.
Rincon Attorney General, Scott Crowell, who represented the tribe throughout the series of litigations, stated that, “It is an honor to represent a tribe so principled and so committed to the responsible exercise of governmental authority it needs to protect its legitimate interests. Undoubtedly, future challenges will be made, but these cases send the message that the Rincon Band will vigorously defend its sovereign authority, regardless of the court, the status of the individual or company, or the status of the land.”
Additional Links to Rincon Cases
Rincon Band v. Donius
Rincon Mushroom Corporation v. SDG&E
Roach v. HCAL Corp.
California can't demand that Indian tribes share gambling revenue to reduce the state's deficit as the price of expanding their casinos, a federal appeals court ruled Tuesday.
Gov. Arnold Schwarzenegger's insistence that tribes turn over some of their proceeds to the state general fund amounts to a tax that federal law prohibits, the Ninth U.S. Circuit Court of Appeals in San Francisco said in a ruling with multimillion-dollar consequences.
For the Rincon Band of Luiseño Mission Indians, which is trying to negotiate an expansion of its casino in San Diego County, the case is "a question of economic survival," said Scott Crowell, a lawyer for the tribe. He said the Rincon Harrah's casino in northeast San Diego County is the tribe's chief source of income.
The dissenter from the 2-1 ruling, Judge Jay Bybee, predicted that 15 California tribes would cite the case as grounds for trying to repudiate revenue-sharing agreements they had previously signed.
"The result is going to be chaos as tribe after tribe seeks to reopen negotiations," Bybee said. He argued that the court majority had confused taxes, which the government unilaterally imposes, with revenue-sharing deals.
The 15 tribal contracts will generate about $370 million for the state this fiscal year, the state Finance Department said. In the case before the court, the Schwarzenegger administration was seeking $38 million of the $40 million annual profit projected from the Rincon Band's proposed addition of 900 slot machines to the 1,600 it already has at its casino.
Schwarzenegger will ask the full appeals court for a rehearing, spokesman Jeff Macedo said. He said the court was improperly "telling the state what it can and can't do."
If the ruling stands, the dispute will go to a mediator, who will have the last word if the two sides can't agree. In that event, Bybee said in his dissent, the tribe will get the added slot machines and the state will get nothing.
Federal law requires Indian tribes to negotiate agreements with their state to operate casinos. The law prohibits states from taxing tribes but allows a state and a tribe to agree to use casino revenue to help pay state regulatory costs, defray local governments' expenses and subsidize tribes that lack casinos.
The Rincon Band negotiated a 20-year contract with California in 1999. After the tribe proposed more slots in 2003, the Schwarzenegger administration demanded much of the added revenue for the general fund.
The Republican governor successfully sought the same concession from other tribes renegotiating their contracts, but the Rincon Band refused and went to court in 2004.
Upholding a federal judge's ruling, the appeals court said the state's demand is an attempt to impose a tax forbidden by federal law.
The law was designed to give states a voice in Indian gambling, but it was not intended to give them complete control "such that each state can put the opportunity to operate casinos up for sale to the tribe willing to pay the highest price," Judge Milan Smith said in the majority opinion.
The ruling can be read at sfgate.com/ZJNS.
By Bo MazzettiOriginally printed at http://www.indiancountrytoday.com/archive/84774007.html
By stacking the deck against tribal governments when negotiating casino compacts, California Gov. Arnold Schwarzenegger was gambling that he could violate federal law with impunity. He bet he could hold the tribes hostage by our need to engage in gaming as our only means to economic development. But, it appears this is one bet he may lose.The United States District Court has ruled that the governor’s negotiation tactics with California’s gaming tribes are illegal and constitute bad faith. The state appealed to the 9th Circuit Appeals Court and a decision is expected soon that may change the way governors throughout the nation negotiate. It may also halt the trend of holding tribes hostage to state politics and charging increasingly higher fees as a condition for signing compacts.
The lawsuit, brought by the Rincon Band of Luiseno Indians of San Diego, alleged Schwarzenegger imposed an illegal and unfair tax on gaming revenues in return for tribal state compact agreements.Gov. Schwarzenegger bet he could hold the tribes hostage by our need to engage in gaming as our only means to economic development.The case is precedent setting because until the Rincon v. Schwarzenegger decision no federal court has ever squarely addressed the reach of federal laws against taxing tribal governments in tribal state compacts.
In six years of negotiations with the governor’s office for machine licenses promised the tribe in the 1999 compacts, along with a minimal expansion, the Rincon Band offered to pay increased revenue to the county, but we refused to turn over 79 percent of our profits to the state. Despite the tribe’s offer to earmark payments to the county for mitigation, and offset regulatory costs, the state was not willing to engage in give and take. Instead, the governor chose only to take. So Rincon sued.
U.S. Magistrate Judge William McCurine Jr. in Rincon v. Schwarzenegger found the state was negotiating in bad faith and awarded remedies provided under the federal Indian Gaming Regulatory Act which governs the compacting rules between tribes and states. Rather than work with Rincon to reach an agreement consistent with the court’s order, what did the state do? The state appealed, until the case finally landed where it currently sits – pending the decision of the 9th Circuit Court.
Bad faith on the part of states has haunted tribal negotiations since 1991, beginning with former Gov. Pete Wilson, who flaunted federal law and refused to negotiate, except on his terms.Until this decision, the courts have not enforced bad faith remedies, nor established a benchmark for fair and legally negotiated fees versus an illegal tax on tribal gaming revenues. McCurine made it clear that federal law prevents states from using compact negotiations to impose a tax on tribal governments for gaming revenues. “Compact negotiations,” he reminded the state, “are between equal sovereigns and fees paid under the terms of a tribal compact are only to be used to mitigate impacts, protect public safety and to establish a framework of regulations with the tribes.”He ruled that the state’s fee demands constitute an improper attempt to impose a tax on Rincon.
The legal and sensible option is to respect that tribes are sovereign subsets of the federal government and to negotiate with tribes in good faith.In 2010, California’s Indian tribes will pay nearly $400 million from tribal gaming into funds controlled by the State Legislature. This money will not be used to offset tribal gaming impacts, or to address needs of local governments near casinos.
The Rincon Band of Luiseno Indians benefits from the well-being of our neighbors and believes tribal revenue sharing should go directly to local communities for improvements to roads and infrastructure, protecting the environment, as well as fire and police protection. In fact, more than 90 percent of improved fire protection in rural areas of San Diego County has come from reservation fire departments funded by casino revenues.
Tribes negotiating any new compacts with Gov. Schwarzenegger are forced to abandon local revenue sharing, and, instead, the fees are placed in the state’s General Fund. There, these funds are lost in the black hole of budget deficits, politics and bureaucracy. At the same time, the governor is reducing and confiscating state revenues owed to local governments. This, while local governments – those entities that provide the majority of direct services to their regions – are also experiencing revenue shortages and cutting services due to the economic meltdown.The legal and sensible option is to respect tribes are sovereign subsets of the federal government and to negotiate with tribes in good faith. Everyone walks away from the negotiation table as winners when tribal contributions are used to mitigate local impacts of casinos or improving community service levels that benefit both tribes and our neighbors.Bo Mazzetti is chairman of the Rincon Band of Luiseño Indians._____________________________________
THE BOTTOM LINE IS A HUGE VICTORY FOR CALIFORNIA TRIBES, LIKELY PROVIDING ENOUGH GAMING DEVICE LICENSES FOR EVERY TRIBE THAT IS SEEKING ADDITIONAL LICENSES, INCLUDING 400 FOR THE RINCON BAND.