Regulatory Updates

Rincon Wins Vital Lawsuit That Could Legally Define “Fair Share” in Future Compact Negotiations

John D. Currier
John D. Currier

John D. Currier, former Rincon Tribal Chairman and Lead Gaming Negotiator
Rincon San Luiseno Band of Mission Indians

On April 29, 2008, U.S. Magistrate Judge William McCurine, Jr. of the San Diego Federal District Court ruled that Governor Schwarzenegger’s administration “failed to negotiate in good faith” with the Rincon San Luiseno Band of Mission Indians by attempting to impose a tax as a condition of compact negotiation. The decision has huge positive ramifications for Rincon, will have probable effects for other tribes throughout California, and could even be meaningful on a national level as a standard in compact negotiation. If this ruling is upheld, the effect is expected to bring great detriment to the State of California’s agenda of imposing taxation on Indian tribes in gaming compact negotiations.

History will show that gray area gaming, the victories of propositions 5 and 1A, and the signing of the 1999 compacts were huge legislative and political endeavors by California Indian tribes and paramount to California Indian Gaming. But from a standpoint of legally defending gaming rights in California in compact negotiations, no other single event is as momentous to California Indian gaming rights as this judicial pronouncement of complaint.

Although this is a great first level court decree, Rincon will have to wait for the outcome of an appeal by the state of California, which could take as long as three years. But when the U.S. 9th District Court of Appeals upholds Judge McCurines’ decision, Rincon will have been provided justice. This justice will specifically include a playing field for compact negotiations just as Congress intended it to be. Rincon, along with other tribes, will no longer have to sit and be bullied and plundered at a lopsided negotiating table and no longer face extortion by the state’s misuse of their role in compact negotiations, therefore leaving the tribe as the primary beneficiary of their gaming operations, which is one of the principle Indian policies of the U.S. Congress.

When Congress wrote the Indian Gaming Regulatory Act (IGRA), although they did provide a role for the “State’s Interest” in compact negotiations, they only intended a limited interest for the state and had a specific concern to protect the interest of Indian tribes. If one were to read the Indian Gaming Regulatory Act (IGRA), they would find that Congress intended that a state, a sovereign, specifically not tax an Indian tribe, another generally equal sovereign, specifically to gaming rights.

Background
Prior to the Schwarzenegger administration taking office, former Governor Gray Davis, on September 10, 1999, entered into landmark historical compacts for Indian gaming in California with what would soon be 61 tribes, including the Rincon San Luiseno Band of Mission Indians. This compact, which is a legal contract, was approved by heavy bi-partisan support from both the California State Assembly and Senate. Both bodies of the state legislature further approved an amendment to the California Constitution, which had to be put to a vote and approved by the California voters. In March of 2000, the voters of California overwhelmingly approved proposition 1A with over 66% of the voters supporting the exclusive right for Indian tribes to game throughout California, allowing each tribe to operate up to 2,000 class III gaming machines. Although the 1999 compacts were ambiguous and not perfect, they provided significant concessions and benefits to the California tribes, the people of California, and provided for the state’s regulatory interest, as was intended by the Indian Gaming Regulatory Act.

About six years ago, Arnold Schwarzenegger ran a campaign that was disingenuous to federal law, promising California voters that he was going to make Indian tribes pay their fair share. Although federal law, specifically IGRA, stated to the contrary, the future governor was clear from the get go that he wanted to siphon taxes from tribal gaming operations.

This promise of taxing tribes was based on creating a false illusionary premise that tribes weren’t paying their fair share, thus creating a perceptional, not legal, interpretation of what fair share is suppose to be. The truth is that “fair share” is supposed to be the state’s interest in regulation, not taxation, with the broadest involvement being limited to making sure that there are reasonable mitigation protections for environmental related impacts in the areas that they affect, not redistributing tribal gaming funds throughout the state of California as they deemed fit.

Regardless of the law, shortly after Schwarzenegger won his bid for election, his administration, by intentional disobedience to the law, concocted a strategy to first only negotiate with tribes that would likely agree to pay high taxes and agree to a generally modeled compact that would be shoved down all other tribes’ throats in a take-it-or-leave-it, “under my thumb” fashion.

This one-size-fits-all negotiating position of taxing tribes as a primary goal was an atrocious abandonment of what the U.S. Congress intended when they passed into federal law the Indian Gaming Regulatory Act (IGRA) in 1988. Equally unconscionable was this administration’s unethical and tragic reproduction of history where once again a state mocked previous legal agreements, just as they did treaties, which were entered into between a previous administration and an Indian tribe.

Instead of Schwarzenegger’s administration respecting Congress’ deliberate intent to make sure tribes were the primary beneficiary of their gaming operations, his administration attempted to take back Rincon’s 1999 compact and the concessions that it contained, giving it a new hairdo, only to resell the same compact to Rincon for about 18 times more than what Rincon originally paid.

The state’s insistence of mocking Rincon with these appalling offers only produced a cornered badger that had to defend its lawful territory and created a David that had to use every ounce of his diligent wit and energy to bring this Goliath down. If Rincon is successful at the appellant level, and I strongly believe they will be, then we in Indian Country can say that we witnessed justice with regard to Indian rights during a period when it is needed most.

Rincon, stay the course because it is the legal, moral, and right business thing to do for your people and Indian gaming rights.

John D. Currier is the former Rincon Tribal Chairman and Lead Gaming Negotiator for the Rincon San Luiseno Band of Mission Indians. He can be reached by calling (619) 985-4770 or email currierplumbing@aol.com.