News Archives – (See Home Page for Current Articles)
June 23, 2014
Indian Country Hopeful Of Another Legal Win As ‘Big Lagoon’ Reheard
Supreme Court Ruling Leaves States With Anti-Casino Ammunition
May 20, 2014
Tribal Panel Warns Of State Regulatory Creep In Compact Talks
April 18, 2014
9th Circuit hears dispute over Redding Rancheria gaming site
Judge tosses Pojoaque gambling suit, clearing way for federal Action
February 25, 2014
Under New Leadership,Wampanoag Tribe of Gay Head (Aquinnah) Presses Ahead With Casino Plans
January 2, 1014
Rincon Ruling Stirs New Mexico Compact Talks | GamblingCompliance
December 31, 2013
Casino issue belongs in federal court, island tribe says
December 30, 2013
Wampanoag Tribe of Gay Head (Aquinnah) filed the necessary paperwork to remove the Commonwealth’s lawsuit against the Tribe from state court to federal court
December 17, 2913
Pojoaque Pueblo sues state over gambling compact | ABQJournal Online
December 6, 2013
December 3-4, 2013
Aquinnah vows to fight state’s casino lawsuit
State files lawsuit to block Martha’s Vineyard casino
Tribes Holding All The Aces In Michigan Compact Talks
November 17, 2013
Federal agency backs Vineyard tribe’s casino rights – Boston Globe
November 14, 2013
Tribe Says It Can Open Casino on Martha’s Vineyard – WSJ.com
Feds May Throw Regulatory Wrench in Cuomo Casino Plans – GamblingCompliance
November 12, 2013
Aquinnah Plan To Start Small On Vineyard, Seek Compact Talks With Guv – State House News
Wampanoag tribe says it has federal approval to build casino on Martha’s Vineyard
Aquinnah’s vineyard plans seen as “Big curveball” on gambling front
August 8, 2013
Departure Of Key Brown Aide Clouds California Tribal Policy | GamblingCompliance
June 25, 2013
Revised Class II Rules Give Tribes Leverage In Compact Talks
June 19, 2013
NY Oneida Agreement May Raise Eyebrows At Interior
March20, 2013
The National Law Review – Tribal Gaming Revenue Sharing in California
February, 2013
18th Annual Western Indian Gaming Conference
WIGC Presentation February 2013
February 21, 2013
After seven years Rincon tribe has a new gaming compact
February 13, 2013
Rincon Band Becomes First California Tribe To Renegotiate Tribal-State Gaming Compact With Federal Courts
February 11, 2013
Rincon Signs ‘Historic’ Gambling Compact
February 8, 2013
California’s First Federally Litigated Gaming Compact Approved by Secretarial Procedures
January 31, 2013
Rincon Indians hail limit to California powers over gambling pacts – latimes
January 30, 2013
States Face Struggle For Share Of Indian Gaming Revenues
..
June 23, 2014
Indian Country Hopeful Of Another Legal Win As ‘Big Lagoon’ Reheard
May 29, 2014
Supreme Court Ruling Leaves States With Anti-Casino Ammunition
May 20, 2014
Tribal Panel Warns Of State Regulatory Creep In Compact Talks
April 18, 2014
9th Circuit hears dispute over Redding Rancheria gaming site
Judge tosses Pojoaque gambling suit, clearing way for federal Action
February 25, 2014
Under New Leadership,Wampanoag Tribe of Gay Head (Aquinnah) Presses Ahead With Casino Plans
January 2, 1014
Rincon Ruling Stirs New Mexico Compact Talks | GamblingCompliance
December 31, 2013
Casino issue belongs in federal court, island tribe says
December 30, 2013
Wampanoag Tribe of Gay Head (Aquinnah) filed the necessary paperwork to remove the Commonwealth’s lawsuit against the Tribe from state court to federal court
December 17, 2913
Pojoaque Pueblo sues state over gambling compact | ABQJournal Online
December 6, 2013
December 3-4, 2013
Aquinnah vows to fight state’s casino lawsuit
State files lawsuit to block Martha’s Vineyard casino
Tribes Holding All The Aces In Michigan Compact Talks
November 17, 2013
Federal agency backs Vineyard tribe’s casino rights – Boston Globe
November 14, 2013
Tribe Says It Can Open Casino on Martha’s Vineyard – WSJ.com
Feds May Throw Regulatory Wrench in Cuomo Casino Plans – GamblingCompliance
November 12, 2013
Aquinnah Plan To Start Small On Vineyard, Seek Compact Talks With Guv – State House News
Wampanoag tribe says it has federal approval to build casino on Martha’s Vineyard
Aquinnah’s vineyard plans seen as “Big curveball” on gambling front
August 8, 2013
Departure Of Key Brown Aide Clouds California Tribal Policy | GamblingCompliance
June 25, 2013
Revised Class II Rules Give Tribes Leverage In Compact Talks
June 19, 2013
NY Oneida Agreement May Raise Eyebrows At Interior
March20, 2013
The National Law Review – Tribal Gaming Revenue Sharing in California
February, 2013
18th Annual Western Indian Gaming Conference
WIGC Presentation February 2013
February 21, 2013
After seven years Rincon tribe has a new gaming compact
February 13, 2013
Rincon Band Becomes First California Tribe To Renegotiate Tribal-State Gaming Compact With Federal Courts
February 11, 2013
Rincon Signs ‘Historic’ Gambling Compact
February 8, 2013
California’s First Federally Litigated Gaming Compact Approved by Secretarial Procedures
January 31, 2013
Rincon Indians hail limit to California powers over gambling pacts – latimes
January 30, 2013
States Face Struggle For Share Of Indian Gaming Revenues
Official Documents regarding Pueblo of Pojoaque’s Igra Bad Faith
Negotiation Lawsuit against State of New Mexico
Complaint, Pueblo of Pojoaque v. State of New Mexico
Materials from 11th Annual Northwest Gaming Law Summit
The final powerpoint, 11th Northwest Gaming Law Summit as a PDF
News from 2012
July 19, 2012
“Federal Appeals Court Sends Rincon Case Regarding Tribal Jurisdiction Over Activities on Fee Lands Back to Tribal Court”
Courts Opinion
June 13, 2012
“Mediator Selects Rincon Compact in Bad Faith Litigation Against State”
May 11, 2012
Aquinnah Resolute in Defending its Position
Vineyard Gazette
May 6, 2012
Aquinnah Prepared to Challenge State on Casinos
Cape Cod Times
April 26, 2012
Rincon Vows to Seek rehearing Regarding Jurisdiction Over Private Property
North County Times
March 7, 2012
Aquinnah Tribe on Martha’s Vineyard Shows Its Hand
Cape Cod Times
March 5, 2012
Study Says Spokane Tribal Casino Would Have Little Impact
KXLY Channel 4January 11, 2012
Obama Officials Promise Scrutiny of Tribal Revenue Deals
Gambling Compliance Magazine
TAG TEAM PRESENTATIONS AT THE NINTH ANNUAL NORTHWEST GAMING LAW SUMMIT DECEMBER 1ST AND 2ND (2011), SEATTLE, WASHINGTON
View and Download Panel Materials – Click on links below each subject area
Four TAG Team members will be making presentations at the 9th Annual Northwest Gaming Law Summit
View and Download Summit Brochure
TAG Team member Scott Crowell will kick off the seminar with his annual “National and Northwest Gaming Litigation Update” for Indian Country on Thursday, December 1st at 9:00 AM
View and Download Litigation Update outline
View and Download Litigation Update Supplement
TAG Team member Scott Crowell will also present on a panel entitled “Status and Nationwide Impact of the Rincon Decision“ on Thursday, December 1st at 2:00 P.M.
Fond du Lac NOV.pdf
Upperlake denial 08 17 10.pdf
UL 2011 letter of explanation.pdf
Pinoleville-denial.pdf
Big Lagoon decision.pdf
US Cert Brief Brown-v-Rincon-10-330-.pdf
FINAL DRAFT Rincon panel. 9th Annual Northwest Gaming Summit – cases – 2009.pdf
TAG Team member Gyasi Ross will present on a panel entitled “Federal and State Legalization of Internet Gaming: Are We There Yet?” on Friday, December 2nd at 8:50 A.M.
NIGA_Internet_Gaming_Resolution_2010-1.pdf
NCAI RESOLUTION INternet Poker.pdf
Law Blog Internet Gaming Hearing, Was the Poker Community Heard.pdf
TAG Team member Scott Wheat will present on a panel entitled “Fee-to-Trust Acquisitions for Gaming Purposes” on Friday, December 2nd at 1:00 P.M.
Article re ASIA Announcement.pdf
Article re ILD Decisions.pdf
ASIA Memo re 292 Artman.pdf
CTBA Response.pdf
DOI ILD Announcement.pdf
Enterprise Fact Sheet.pdf
Guidiville Fact Sheet.pdf
Jemez Pueblo Fact Sheet.pdf
North Fork Fact Sheet.pdf
Notice Part 292 Consulations.pdf
Sec corr ASIA re ILDs.pdf
October, 2011:Who Will Defend the 1999 Compacts After the Decision of the Ninth Circuit in Rincon?Indian Gaming MagazineOctober 28, 2011:Contract requires county silence on proposed Spokane Tribe casinoThe Spokesman-ReviewOctober 26, 2011:FORUM: Historic moment for county, Rincon BandNorth County TimesOctober 11, 2011:Rincon-county agreement could mean millions for servicesSan Diego Union Tribune
October 11, 2011:Rincon To Spend More Gaming Revenues LocallyKPBS Radio News
Sept. 30, 2011:Courts Deal Second Blow To Schwarzenegger Casino CompactsGambling ComplianceSept. 28, 2011: California Compact Negotiations Revised In Light Of Rincon RulingGambling ComplianceAugust 3, 2011 – Judge McCurrine Orders Commencement of Remedy Process: State Has Sixty Days to Reach New Compact Agreement With Tribe.Commencement Orders
July 1, 2011: Federal District Court Dismisses Lawsuit Filed Against Rincon Band Seeking to Avoid Tribal Court’s Eviction Order
June 28, 2011: 9th Circuit Appeals Court issued Mandate in Rincon v. Schwarzenegger
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
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. Schwarzenegger
Order (3rd item on page 4)
Los Angeles Times Editorial:
• Play Fair With Indian Casinos
San Diego Union Tribune coverage:
• Supreme Court Gives Local Gaming Tribe Big Win
Gambling Compliance coverage:
• U.S. Supreme Court Rejects Rincon Ruling Appeal
Sacramento Bee/McClatchy News Service coverage
• Supreme Court Declines California Appeal on Indian Casinos
North County Times coverage:
• Supreme Court Declines to Hear Rincon Gambling Case
Press Enterprise coverage:
• Supreme Court Turns Down State Appeal on Tribal Casino Deal
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.
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.
* 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.”
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.
APRIL 20, 2010
A NOTE ON JUDGE BYBEE’S DISSENT IN RINCON BAND
http://turtletalk.wordpress.com/2010/04/20/a-note-on-judge-bybees-dissent-in-rincon-band/
April 23, 2010
GARCIA: CASINO REVENUE NO SURE BET
Ken Garcia Examiner Staff Writer
http://www.sfexaminer.com/bios/28003819.html
April 22, 2010
9TH CIRCUIT RULES CALIFORNIA BROKE LAW IN DEMANDING CASINO MONEY
Dan Levine, The Recorder
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202448465991
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 Mushroom Corporation v. SDG&E
State can’t tie revenue to casino expansion
Bob Egelko, Chronicle Staff Writer
Tuesday, April 20, 2010
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.
_______________________
April, 2010
Indian Country Today
Rincon decision could change compact negotiations
By Bo Mazzetti
Originally 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.
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JUDGE DAMRELL RULES IN FAVOR OF TRIBES – RULES THAT MORE THAN 10,000 ADDITIONAL GAMING DEVICE LICENSES ARE AVAILABLE IN STATE-WIDE POOL
April 22, 2009. Judge Damrell of the United States District Court for the Eastern District of California issued an Order in the Colusa litigation, ruling in favor of the Colusa and Picayune Tribes on significant causes of action. Most importantly, the Court ruled that an additional 10,549 devices are available. The judge seized on the alternative calculation discussed at oral argument, and expanded in the supplemental briefs. This formula adopted by the court yields 42,700 gaming device licenses. This is smaller than the 55,951 number advanced by the Tribes, but far larger than the 32,151 number advanced by the State.
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.
The next steps will be critical regarding timing. The State will try to appeal (although this is not yet an appealable final judgment) and/or try to stay pending the outcomes in Rincon and San Pasqual. The Tribes will argue that there is no reason to delay, and seek an order compelling the CGCC to hold a draw for 10,549 devices. We will be coordinating with the attorneys for Colusa, Picayune and San Pasqual over the next several days.
SUPREME COURT REJECTS STATE OF CALIFORNIA’S PETITION FOR CERTIORARI – ALLOWS TRIBE’S CLAIMS OF COMPACT VIOLATIONS TO PROCEED ON THE MERITS
April 20, 2009. The State of California has lost in its attempt to have the United States Supreme Court overturn the April 22, 2009 decisions of the Ninth Circuit Appeals Court allowing the compact violation claims brought by the Colusa Band and the Rincon Band to proceed on the merits Read 1Read 2. The Ninth Circuit had rejected the State’s attempt to argue that the court lacked jurisdiction because of the two Tribe’s inability to bring all Tribes with 1999 Proposition 1A compacts in to the same litigation. A similar petition regarding the same decision involving the San Pasqual Band remains pending, but it likely is headed for a similar fate.
JUDGE MCCURINE RULES IN FAVOR OF RINCON BAND ON ALL PENDING PROCEDURAL MOTIONS
April 17, 2009. Activity in Rincon Band vs. Schwarzenegger et. al. Judge McCurrine has DENIED all of the State’s procedural motions, which now postures the case to proceed to the merits of the Rincon Band’s claims as to the number of gaming devices available in the state-wide pool. A copy of the Order is attached. Court Order The Rincon Band has always maintained that there are a sufficient number of licenses available in the state-wide pool to allow the Tribe to expand from 1,600 machines to the 2,000 machine cap in the 1999 Prop 1A Compacts.
The State had asked the court (1) to transfer the claim to the U.S. District Court for the Eastern District for possible consolidation with the Colusa litigation; (2) to stay the litigation pending the State’s Petition for Certiorari (Supreme Court review); and (3) to stay the litigation until Judge Damrell rules on Colusa’s claims. All three motions were denied.
The Court held that the action could have been brought in the Eastern District, but that the Compact’s provisions provide a presumption that the Southern District is the more convenient forum. The Court rejected the State’s arguments that Sacramento is more convenient than San Diego. The Court also rejected the State’s arguments that the matter should be delayed any further.
The next step will be for the Rincon Band to file a motion for summary judgment on the merits regarding the number of machines in the State-wide pool.
PRESIDENT OBAMA NOMINATES LARRY ECHOHAWK FOR DEPARTMENT OF THE INTERIOR ASSISTANT SECRETARY OF INDIAN AFFAIRS.
Statements of Scott Crowell and Scott Wheat in reaction to the appointment can be found at “Echohawk Info Page” with a link to resource materials regarding the nomination
For additional information regarding the Echohawk appointment, click “Echohawk”
ASAI Larry Echohawk – Link to page with additional information