United Auburn Indian Cmty. of the Auburn Rancheria v. Newsom

Decision Date31 August 2020
Docket NumberS238544
Citation10 Cal.5th 538,472 P.3d 1064,268 Cal.Rptr.3d 690
CourtCalifornia Supreme Court
Parties UNITED AUBURN INDIAN COMMUNITY OF the AUBURN RANCHERIA, Plaintiff and Appellant, v. Gavin C. NEWSOM, as Governor, etc., Defendant and Respondent.

Bingham McCutchen, Morgan, Lewis & Bockius, Thomas F. Gede and Colin C. West, San Francisco, for Plaintiff and Appellant.

Snell & Wilmer, Sean M. Sherlock, Todd Lundell and Jenny Hua, Costa Mesa, for Stand Up For California! as Amicus Curiae on behalf of Plaintiff and Appellant.

Fredericks Peebles & Morgan and Michael A. Robinson, Sacramento, for Picayune Rancheria of Chukchansi Indians as Amicus Curiae on behalf of Plaintiff and Appellant.

Law Office of Frank Lawrence, Frank R. Lawrence, Zehava Zevit, Grass Valley; Forman & Associates, George Forman, Jay B. Shapiro and Margaret Rosenfeld, San Rafael, for the Mooretown Rancheria of Maidu Indians of California and Cachil Dehe Band of Wintun Indians of the Colusa Indian Community as Amici Curiae on behalf of Plaintiff and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael J. Mongan, State Solicitor General, Sara J. Drake, Assistant Attorney General, William P. Torngren and Timothy M. Muscat, Deputy Attorneys General, Max Carter-Oberstone, Deputy State Solicitor General, and Janill L. Richards, Principal State Deputy Solicitor General, for Defendant and Respondent.

Dentons US, Charles A. Bird, Matthew G. Adams ; Maier Pfeffer Kim Geary & Cohen, Michael S. Pfeffer, Oakland, and John A. Maier for the Estom Yumeka Maidu Tribe of the Enterprise Rancheria, California as Amicus Curiae on behalf of Defendant and Respondent.

Maier Pfeffer Kim Geary & Cohen, John A. Maier; Wilmer Cutler Pickering Hale and Dorr, Danielle Spinelli, Christopher E. Babbitt, Jonathan A. Bressler and Claire Chung for North Fork Rancheria of Mono Indians as Amicus Curiae on behalf of Defendant and Respondent.

Opinion of the Court by Cuéllar, J.

This is a case about how California law applies to the delicate juncture of executive power, federalism, and tribal sovereignty. Under the federal Indian Gaming Regulatory Act (IGRA; 25 U.S.C. § 2701 et seq. ), the United States Secretary of the Interior (Interior Secretary) may permit casino-style gaming on certain land taken into federal trust for an Indian tribe, so long as the Governor of the state where the land is located concurs. But nowhere in the California Constitution is the Governor granted explicit authority to concur in this cooperative-federalism scheme. We must decide whether the Governor nonetheless has the authority to concur in the Interior Secretary's determination to allow gaming on tribal trust land in California. 1

What we hold is that California law empowers the Governor to concur. As amended in 2000, the California Constitution permits casino-style gaming under certain conditions on "Indian" and "tribal" lands — terms that encompass land where the Governor's concurrence is required before casino-style gaming may occur. Our decision is supported by the Governor's historical practice of concurring under a variety of federal statutes, the legislatively enacted expectation that the Governor represent the state's interests in negotiations or proceedings involving the federal government, and the absence of any explicit constitutional or statutory limits on the Governor's power to concur in the Interior Secretary's determination under IGRA.

These markers of the legal terrain help us map a zone of twilight between the powers of the Governor and the Legislature. But they also convey why legislative changes can, by bringing any implicit gubernatorial power to "its lowest ebb" in this domain, restrict or eliminate the Governor's concurrence power. ( Youngstown Co. v. Sawyer (1952) 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (conc. opn. of Jackson, J.) ( Youngstown ).) Because the Legislature has imposed no such restriction, however, we conclude the Governor acted lawfully when he concurred in the Interior Secretary's determination. The Court of Appeal reached the same conclusion, so we affirm.

I.

The California Constitution specifically mentions casino-style gaming, "federally recognized Indian tribes," and lands that are "Indian" and "tribal" "in accordance with federal law." ( Cal. Const., art. IV, § 19, subd. (f).) As these provisions — like IGRA — were enacted against the backdrop of longstanding tribal efforts to establish casino-style gaming operations on land under their control, we begin with a survey of the relevant history.

A.

Long before this country's founding, Indian tribes already existed as "self-governing sovereign political communities," each with their own distinct lands. ( United States v. Wheeler (1978) 435 U.S. 313, 322–323, 98 S.Ct. 1079, 55 L.Ed.2d 303.) Tribes haven't "possessed [ ] the full attributes of sovereignty" since the federal Constitution was signed, but they remain a "separate people, with the power of regulating their internal and social relations." ( United States v. Kagama (1886) 118 U.S. 375, 381–382, 6 S.Ct. 1109, 30 L.Ed. 228.) Yet that power is bounded, too: Under the Indian commerce clause of the United States Constitution, Congress possesses the "plenary power to legislate in the field of Indian affairs" and to limit the powers that tribes otherwise possess. ( Cotton Petroleum Corp. v. New Mexico (1989) 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209.) So the sovereignty of Indian tribes "is of a unique and limited character[:] It exists [ ] at the sufferance of Congress and is subject to complete defeasance" if and when Congress acts. ( Wheeler , supra , 435 U.S. at p. 323, 98 S.Ct. 1079.)

These implicit contradictions have catalyzed conflicting expectations and struggles for power, with tribal gaming as a recurring flashpoint. Gaming is a significant enterprise for Indian tribes — it "cannot be understood as ... wholly separate from the Tribes’ core governmental functions." ( Michigan v. Bay Mills Indian Community (2014) 572 U.S. 782, 810, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (conc. opn. of Sotomayor, J.).) Gambling operations serve as a means for tribes "to assert their sovereign status and achieve economic independence." (Mason, Indian Gaming: Tribal Sovereignty and American Politics (2000) p. 4.) It is partly symbolic: "Gaming [ ] represents a stand for political independence as tribes assert their sovereign right to determine for themselves what they can control on tribal lands." (Ibid. ) But gaming also serves a practical function: Because of the limits placed on tribal governments’ ability to impose taxes, gaming "may be the only means by which a tribe can raise revenues." (Struve, Tribal Immunity and Tribal Courts (2004) 36 Ariz.St. L.J. 137, 169.) In that sense, gaming operations are often essential to tribes’ economic self-sufficiency.

Yet from the start, federal and state governments sought to curtail gaming on Indian land. (See Indian Gaming Regulatory Act, Hearing before House Com. on Interior and Insular Affairs on H.R. No. 964 and H.R. No. 2507, 100th Cong., 1st Sess., at p. 158 (1987), written testimony of Sen. Reid [unless Indian gaming is regulated, "the hope for controlling organized crime in this country will be lost forever"].) To prevent the perverse consequences some legislators believed would arise from such activities, Congress enacted legislation such as the Johnson Act of 1951 ( 15 U.S.C. § 1175(a) ), which outlawed the manufacture, possession, or use of gambling devices, and the Organized Crime Control Act of 1970 ( 18 U.S.C. § 1955 ), which made it a federal offense to engage in any for-profit gambling business that was prohibited under state law.

Because of Congress's plenary power over Indian affairs, states initially lacked the authority to regulate tribal gaming. But in 1953, Congress enacted Public Law 280, which empowered six states — including California — to exercise criminal jurisdiction over Indian land. ( 18 U.S.C. § 1162 ; 25 U.S.C. §§ 1321 – 1326 ; 28 U.S.C. § 1360.) When California sought to enforce its state gambling law — which permitted, subject to criminal penalties, gaming only when operated by certain charitable organizations with restrictions on prizes — against two Indian tribes, the tribes challenged the state's power to do so. The Supreme Court soon offered a partial answer to the question: To what extent did states have jurisdiction to enforce their own laws against tribes? Ruling in the tribes’ favor, the Court distinguished between laws that were "prohibitory" and those that were "regulatory": Although Congress had allowed states to enforce prohibitions on gambling against Indian tribes, it hadn't bestowed states with "civil regulatory power over Indian reservations." ( California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202, 210, 208, 107 S.Ct. 1083, 94 L.Ed.2d 244.) Because California's gambling law was regulatory in nature — "California regulates rather than prohibits gambling in general and bingo in particular"the Court concluded that the state lacked the power to restrict tribal gaming. ( Id. at p. 211, 107 S.Ct. 1083.) Following Cabazon , states couldn't restrict or otherwise regulate Indian gaming operations unless they prohibited all gaming.

B.

Congress responded to Cabazon ’s new strictures on state regulation of Indian gaming by enacting IGRA. ( 25 U.S.C. § 2701 et seq. ) Following centuries of conflict over gaming between tribes, states, and the federal government, Congress's purpose was to "balance the need for sound enforcement of gaming laws and regulations, with the strong Federal interest in preserving the sovereign rights of tribal governments to regulate activities and enforce laws on Indian land." (Sen.Rep. No. 100-446, 2d Sess., p. 5 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News, p. 3075.) To that end, IGRA divided gaming into three categories: class I, class II, and class III. Class I gaming, those played for "prizes of minimal value," would...

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