From League of California Cities Executive Director Chris McKenzie: Governor Issues Key Indian Gaming Proclamation Opposes Future Urban Casinos and Insists on Local Government and Community Support Outside Urbanized Areas
On May 18, 2005, Governor Arnold Schwarzenegger issued a new proclamation, laying out the limited conditions under which he will consider negotiating future Indian gaming compacts. The proclamation gives local governments and local voters a major say in the approval of new casinos outside of urban area. The proclamation clearly states his opposition to newly acquired "trust" lands within an "urbanized area". The term "urbanized area" is defined to have the same meaning as in CEQA, covering the following California cities (see list). While stating he will continue to support legislative ratification and federal approval of each compact or amended compact his administration has negotiated (including one he approved last year in the City of San Pablo which has not yet been ratified by the legislature), the Governor said all future negotiations would follow these guidelines:
1. He will oppose proposals for the federal acquisition of lands within any urbanized area where the lands sought to be acquired in trust are to be used to conduct or facilitate gaming activities.
2. He will decline to engage in negotiations for tribal-state gaming compacts where the Indian tribe does not have Indian lands eligible for class III gaming.
3. He will consider requests for a gubernatorial concurrence under section 20(b)(1)(A) of IGRA, that would allow a tribe to conduct class III gaming on newly acquired land, only in cases where each of the following criteria is satisfied:
a) The land that is sought for class III gaming is not within any urbanized area.
b) The local jurisdiction in which the tribe's proposed gaming project is located supports the project.
c) The tribe and the local jurisdiction demonstrate that the affected local community supports the project, such as by a local advisory vote.
d) The project substantially serves a clear, independent public policy, separate and apart from any increased economic benefit or financial contribution to the State, community, or the Indian tribe that may arise from gaming.
The League appreciates the continued partnership with the Governor and his focus on protecting the interests of cities and counties and their residents. A listing of the cities defined as "urbanized areas" is attached. The proclamation reads as follows:
PROCLAMATION
BY THE GOVENOR OF THE STATE OF CALIFORNIA
WHEREAS, the federal Indian Gaming Regulatory Act of 1988 (IGRA) authorizes federally recognized Indian tribes to conduct class III gaming on Indian lands, as defined by IGRA, to the extent such games are permitted by state law, and pursuant to a gaming compact negotiated between a tribe and the State; and
WHEREAS, IGRA requires the State to negotiate in good faith for the conclusion of tribal-state gaming compacts with Indian tribes that request such negotiations when those tribes have eligible Indian lands located in the State; and
WHEREAS, in 1998, California voters approved Proposition 5, a statutory measure designed to allow for the operation of slot machine and house banked card gaming by California Indian tribes on Indian lands in accordance with federal law; and
WHEREAS, in 2000, California voters approved Proposition 1A, a measure that amended the California Constitution to authorize the Governor to negotiate and conclude compacts, subject to ratification by the Legislature, for the operation of slot machines, lottery games and banked and percentage card games by federally recognized Indian tribes on Indian lands in California in accordance with federal law; and
WHEREAS, during the campaigns to approve Propositions 5 and 1A, California voters were assured that approval of these measures would not result in tribal casinos being located in urban areas; and
WHEREAS, the constitutionality of tribal exclusivity over the forms of gaming authorized by Proposition 1A is premised upon the limitation of these activities to Indian lands; and
WHEREAS, there are over 100 federally recognized Indian tribes in California and many of those tribes already have Indian lands within the meaning of IGRA that are eligible for class III gaming; and
WHEREAS, California Government Code section 12012.25, subdivision (d), designates the Governor as the state official with authority to negotiate and execute tribal gaming compacts on behalf of the State; and
WHEREAS, California Government Code section 12012.25, subdivisions (c) and (e), provide that tribal-state gaming compacts negotiated by the Governor are subject to ratification by the Legislature; and
WHEREAS, in 1999, Governor Gray Davis concluded, and the Legislature ratified, compacts with 57 tribes, in anticipation of the voters' approval of Proposition 1A; and
WHEREAS, since 1999, seven additional tribes have concluded compacts that have been ratified by the Legislature, seven tribes have amended the terms of their 1999 compacts, which amendments have been ratified by the Legislature, and one tribe with Indian lands in an urban area concluded a compact that was not ratified; and
WHEREAS, in the general election of 2004, two initiative measures, Propositions 68 and 70, that would have expanded gaming activities in urban areas were placed before the California voters; and
WHEREAS, Proposition 68 was defeated with 83.8 percent of the electorate voting against it and Proposition 70 was defeated with 76.3 percent of the electorate voting against it; and
WHEREAS, events demonstrate increasing public concern over the location and expansion of tribal gaming enterprises in California; and
WHEREAS, the State of California exercises jurisdiction over land within the territorial boundaries of the State, except to the extent such jurisdiction is expressly reserved by, or ceded to, the federal government or is preempted by operation of federal law; and
WHEREAS, IGRA generally prohibits Indian gaming on lands acquired by the federal government in trust for Indian tribes after October 17, 1988, the effective date of IGRA; and
WHEREAS, exceptions exist that authorize class III gaming on lands acquired in trust after October 17, 1988, (1) if the lands are taken into trust as part of (i) a settlement of a land claim, or (ii) the restoration of lands for an Indian tribe that is restored to federal recognition, (2) if the lands are taken into trust as part of the initial reservation of an Indian tribe acknowledged by the Secretary of Interior under the federal acknowledgement process, or (3) if the Secretary of Interior determines that a gaming establishment on lands acquired after October 17, 1988, would be in the best interest of the Indian tribe and its members, would not be detrimental to the surrounding community, and the Governor of the State in which the land is situated concurs in the Secretary's determination that such land can be used for gaming (a Section 20 concurrence); and
WHEREAS, an increasing number of Indian tribes are seeking to take new land into trust for purposes of conducting class III gaming activities pursuant to the provisions of IGRA, often in urban areas; and
WHEREAS, it is in the best interests of all Californians that there be a clear statement of policy identifying the Governor's positions with respect to Indian gaming on newly acquired trust land located in urban areas.
NOW, THEREFORE, I, ARNOLD SCHWARZENEGGER, Governor of the State of California, do hereby proclaim the following statements as my general policy on the specified matters related to tribal gaming:
1. I shall oppose proposals for the federal acquisition of lands within any urbanized area where the lands sought to be acquired in trust are to be used to conduct or facilitate gaming activities.
2. I shall decline to engage in negotiations for tribal-state gaming compacts where the Indian tribe does not have Indian lands eligible for class III gaming.
3. I shall consider requests for a gubernatorial concurrence under section 20(b)(1)(A)of IGRA, that would allow a tribe to conduct class III gaming on newly acquired land, only in cases where each of the following criteria is satisfied:
a) The land that is sought for class III gaming is not within any urbanized area.
b) The local jurisdiction in which the tribe's proposed gaming project is located supports the project.
c) The tribe and the local jurisdiction demonstrate that the affected local community supports the project, such as by a local advisory vote.
d) The project substantially serves a clear, independent public policy, separate and apart from any increased economic benefit or financial contribution to the State, community, or the Indian tribe that may arise from gaming.
4. In order to ensure adherence to the foregoing policies, I will direct the Governor's Office of Planning and Research (OPR) to provide to the Attorney General and the following departments, boards, and commissions copies of every notice of a tribal application to have land taken into trust by the federal government:
a) The Department of Parks and Recreation
b) The Department of Water Resources
c) The Department of Fish and Game
d) The Native American Heritage Commission
e) The Department of Transportation
f) The California Highway Patrol
g) The Air Resources Board
h) The Department of Conservation
i) The appropriate regional office of the Regional Water Quality Control Board
I will further direct the Resources Agency, Environmental Protection Agency, and Health and Human Services Agency to distribute a copy of the notice to any of their respective departments that may be able to provide input on a particular application. The departments referenced above will be directed to promptly review the notices and provide comments to the Legal Affairs Secretary for a determination as to whether any comment on an application to have land taken into trust should be provided to the Bureau of Indian Affairs. The boards and commissions listed above will be invited to provide comments on said notices to the Legal Affairs Secretary.
5. I shall support legislative ratification and Department of Interior approval of each compact or amended compact negotiated by my administration, including the one compact for a casino in an urban area that is not yet ratified by the Legislature.
6. For purpose of this Proclamation, "urbanized area" means the definition of that term as defined in Public Resources Code section 21071, subdivision (a). A list of the cities meeting this definition as of the date of this Proclamation is attached hereto.
IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of the State of California to be affixed this 18th day of May, 2005.
Arnold Schwarzenegger
Governor of California
ATTEST:
BRUCE McPHERSON
Secretary of State
View Cities in "Urbanized Areas" Chaptered or Enrolled Bills AB 675 (Kehoe): Indian Gaming Special Distribution Fund
AB 3089 (Governmental Organization Committee): Indian Gaming Special Distribution Fund
AB 673 (Horton): Gambling
SB 621 (Battin): Indian Gaming
SB 930 (Ducheny): Indian Gaming: Tribal-State Compacts
November Ballot Initiatives Proposition 68 Proposition 70
Passed on August 26, 2004 and sent to the Governor's office for signature, this bill revises the composition of the Indian Gaming Local Community Benefit Committee (Benefit Committee) in San Diego County. The bill makes legislative findings and declarations as to the necessity of the statutory change and provides that no reimbursement is required. It makes legislative findings and declarations that a special law is necessary because the method of composing the Benefit Committee under general law does not appropriately apportion representation in San Diego County where only one city meets that requirements and the three tribes in the county that are paying into the Indian Gaming Special Distribution Fund.
http://www.leginfo.ca.gov/pub/bill/asm/ab_0651-0700/ab_675_bill_20040908_status.html
Passed on April 29, 2004 and sent to the Governor's office for signature, this bill provides that if an eligible county does not have a tribe operating a tribal casino that pays into the Indian Gaming Special Distribution Fund, the money available for those discretionary grants would be available for distribution to local jurisdictions impacted by tribes paying into the fund.
http://www.leginfo.ca.gov/pub/bill/asm/ab_3051-3100/ab_3089_bill_20040914_status.html
Passed on July 27, 2003 and sent to the Governor's office for signature, this bill provides for allocation of funds from the Indian Gaming Special Distribution Fund (IGSDF) for the purpose of backfilling shortfalls in the Indian Gaming Revenue Sharing Trust Fund (IGRSTF), and for a problem gambling prevention program.
http://www.leginfo.ca.gov/pub/bill/asm/ab_0651-0700/ab_673_bill_20030811_chaptered.html
Passed on September 12, 2003 and chaptered on October 11, 2003, this law establishes priorities and procedures for funding to local governments from the Indian Gaming Special Distribution Fund for the purpose of mitigating impacts from tribal casinos.
http://www.leginfo.ca.gov/pub/bill/sen/sb_0601-0650/sb_621_bill_20031015_status.html
Passed on September 11, 2003 and chaptered on October 11, 2003, this law ratifies the tribal-state gaming compact entered into between the Torres-Martinez Tribe and the state of California.
http://www.leginfo.ca.gov/pub/bill/sen/sb_0901-0950/sb_930_bill_20040809_status.html
Non-Tribal Commercial Gambling Expansion. Tribal Gaming Compact Amendments. Revenues, Tax Exemptions. Initiative Constitutional Amendments and Statute.
This proposition authorizes the Governor to negotiate tribal compact amendments requiring that Indian tribes pay 25% of slot machine/gaming device revenues to government fund, comply with multiple state laws, and accept state court jurisdiction. If compacted tribes don't unanimously accept required amendments within 90 days, or if determined unlawful, authorizes sixteen specified non-tribal racetracks and gambling establishments to operate 30,000 slot machines/gaming devices, paying 33% of net revenues to fund government public safety, regulatory, social programs. The proposition also provides exemption from specified state/local tax increases.
http://www.ss.ca.gov/elections/bp_nov04/prop_68_entire.pdf
Tribal Gaming Compacts. Exclusive Gaming Rights. Contributions to State. Initiative Constitutional Amendment and Statute.
This proposition states that upon request by federally-recognized Indian tribe, the Governor must execute renewable 99-year gaming compact. It grants exclusive tribal gaming rights; no limits on number of machines, facilities, types of games on Indian land. The Tribes contribute a percentage of net gaming income, based on prevailing state corporate tax rate, to state fund. Contributions would cease if non-tribal casino-type gaming is permitted. Contributions are in lieu of any other fees, taxes, levies. This proposition also requires off-reservation impact assessments, public notice/comment opportunities before significant
expansion or construction of gaming facilities.
http://www.ss.ca.gov/elections/bp_nov04/prop_70_entire.pdf