MENDOCINO CO. 8/2/22 — In a 2-1 decision, the U.S. Ninth Circuit Court of Appeals upheld a district court ruling in favor of five Indigenous tribes claiming the state did not negotiate gaming compacts in good faith. The tribes include Mendocino County’s Hopland Band of Pomo Indians along with Chicken Ranch Rancheria, Robinson Rancheria, the Chemehuevi Indian Tribe, and Blue Lake Rancheria. In the ruling, the court wrote the state attempted to push “policy objectives” on the tribes beyond the scope of gaming compacts.
This case revolved around compacts set to expire in 2023 after being extended during contentious negotiations. The state and individual tribes that want to conduct Class III gaming, also known as Vegas-style gaming, must come to an agreement on the terms, and it must be approved by the Department of the Interior. Under a 1988 law, the Indian Gaming Regulatory Act, the state may set some conditions during negotiations, but they must fall under seven categories. One category, “any other subjects that are directly related to the operation of gaming activities,” was at core issue in the case, with the state and the tribes differing on “directly related.”
The tribes claimed the state overreached, attempting to incorporate tort reform, family law provisions, and roughly 30 pages of environmental regulations into the compact. The court agreed. “All the disputed provisions, we hasten to add,” wrote the court, “strike at core aspects of tribal sovereignty concerning the tribes’ governance over their land and people and their decisions about how to structure entire areas of tribal law.”
Tribal members argue this is a matter of sovereignty, with the state imposing regulatory authority in areas where it does not have jurisdiction and setting a precedent that could be used across California. In a press release, Ukiah-based attorney of record Lester J. Marson said: “This decision will prevent the State of California from using future gaming compacts to expand its regulatory authority over tribes, in violation of their right to govern themselves on their reservations.”
Dissenting Circuit Judge Patrick J. Bumatay agreed with his colleagues regarding the overbroad scope of the topics of discussion under the compact, but still felt the state was engaging in good faith negotiations. In his dissent, he argued the case should be remanded to the lower courts for further discussion.
Notably, the Department of the Interior recently disapproved a proposed gaming compact on the grounds that it exceeded the scope of the IGRA. In another recent disapproval letter, the agency wrote that it had issued “ four such guidance letters to the State of California in the past decade highlighting concern over the State’s practice of asserting greater control over tribal land use decisions.”
According to the state’s Gambling Control Commission, 63 of the state’s 109 tribes run 66 casinos, while the state has negotiated compacts with 75. Under the IGRA, uses of gaming revenue are restricted, and include economic development, tribal welfare, charitable donations, and funding tribal government. In addition to disbursing funds to tribal members, it’s also permissible to engage in revenue-sharing with another tribe that does not have a gambling compact.
The full court decision can be read here. The state has the option to appeal to the U.S. Supreme Court.