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Prop. 5 Lawsuit Scorecard

10 February 2000

The court battles over Indian gaming in California have been raging for more than 14 years. Now, with the passage of Prop. 5, even more suits have been filed.

Still, it is possible to unravel the conflicting arguments, and maybe even predict the winners. Let's start with a little history.

Cabazon (1987) - The foundation upon which all Indian gaming law is built. The U.S. Supreme Court ruled that the state's "public policy" is the test whether a tribe in California could offer gambling. The Court found California -- with a state lottery, charity bingo and card clubs -- did not have a public policy of prohibiting gambling. So, tribes could offer self-regulated high-stakes bingo and non-banking card games.

Indian Gaming Regulatory Act (1988) - Congress responded to Cabazon by enacting IGRA, which divided all gambling into three classes. A tribe can offer gaming that falls under Class II (bingo and non-banking card games) and Class III (casino banking and percentage games, slot machines, lottery and pari-mutuel wagering) if the state permits anyone to have such gaming. Class III gaming also requires a tribal-state compact. Tribes can file suit in federal court if states do not negotiate in good faith.

Seminole (1996) - The U.S. Supreme Court declared that the provisions in IGRA allowing a state to be sued without its consent were unconstitutional. No one knows what this means for the rest of IGRA. The two leading positions are:

1) All of IGRA is unconstitutional; or
2) When a state refuses to negotiate and will not consent to be sued, the Secretary of Interior can authorize the Indian Class III gaming.

These are not major issues for California, because Congress has temporarily ordered the Secretary of Interior not to issue regulations, and, the state, many years ago, waived its immunity from suit.

Rumsey I - The state and several tribes agreed to let federal courts decide whether tribes in California could get slot machines and banking card games under IGRA.

In 1993, Sacramento-based trial Judge Garland Burrell applied the Cabazon public policy test to broad categories of gambling: California completely prohibits all banking games, so tribes may not deal casino-style blackjack. However, the state lottery uses electronic devices, so tribes may also use gaming devices, even if those devices are slot machines.

In 1996, the 9th Circuit Court of Appeals reversed. The Court held Class III gaming was to be examined game by game, and allowed on Indian land only if permitted by a specific state law.

The U.S. Supreme Court refused to hear the appeal and the case was remanded back to Judge Burrell.

Rumsey II (1998 - 1999) - On September 16, 1998, Judge Burrell ruled that nothing in the state lottery Act allows slot machines. The case was again appealed.

The 9th Circuit now has to decide whether Prop. 5, approved by voters on November 3, 1998, is a valid state law under IGRA.

In re Indian Gaming Related Cases (1998 - 1999) - Tribes in northern California filed federal lawsuits, alleging the state had not negotiated in good faith. If Prop. 5 is upheld, the cases would be moot, because Prop. 5 eliminates the state's power to negotiate. So, the parties agreed to put the proceedings on hold.

U.S. v. Santa Ynez (1998 - 1999) - After nearly a decade, U.S. Attorneys finally filed civil suits to close down the estimated 14,000 non-compacted gaming devices in California. This case has gone the furthest.

In October, 1998, federal trial Judge J. Spenser Letts issued a permanent injunction, ordering tribes from Santa Barbara through Palm Springs to close down their slots -- a few day after the November election.

He ruled that former Gov. Pete Wilson did not act in bad faith when he refused to talk to tribes running non-compacted games. Even if the state is required to sign a compact, it is illegal to operate Class III gaming until the compact has been signed.

Following the passage of Prop. 5, the tribes got a temporary stay of Judge Letts' order from the 9th Circuit.

Because thousands of casino workers' jobs are at stake, the 9th Circuit will probably allow the non-compacted slots to remain, until the California Supreme Court rules on Prop. 5.

Polanco, Tule River Indian Tribe v. Wilson (1998 - 1999) - Former Gov. Wilson signed a model compact with the Pala tribe in March 1998. Tribes may have limited numbers of "Indian Video Lottery Terminals," which play like slot machines. In June, State Superior Court Judge Lloyd G. Connelly ruled that the governor does not have the power to make such a change in state policy. Although the Legislature later approved the Pala compact, Gov. Wilson appealed.

Although Wilson was wrong -- IGRA requires tribal-state, not tribal-governor compacts -- the issue of who has the power to make compacts is of vital importance to Prop. 5, an initiative approved by voters but not by the Legislature.

Cortez and Hotel & Restaurant Employees Int'l. Union (1998 - 1999) - Opponents persuaded the State Supreme Court to prevent Prop. 5 from going into effect. The main issue is California Constitution article IV, section 19(e): "The Legislature has no power to authorize, and shall prohibit casinos of the type currently operating in Nevada and New Jersey."

I predict the high Court will find the games allowed by Prop. 5 are slot machines and banking card games, and therefore, that Prop. 5 is unconstitutional.

Which means the whole process will start again, with a $100 million campaign to amend the state constitution.

Recent Articles
Best of I. Nelson Rose
I. Nelson Rose

Professor I. Nelson Rose is an internationally known scholar, public speaker and writer and is recognized as one of the world's leading authorities on gambling law. A 1979 graduate of Harvard Law School, he is a tenured full Professor at Whittier Law School in Costa Mesa, California, where he teaches one of the first law school classes on gaming law.

Professor Rose is the author of more than 300 books, articles, book chapters columns. He is best known for his internationally syndicated column, "Gambling and the Law ®," and his landmark 1986 book by the same name. His most recent book is a collection of columns and analysis, co-authored with Bob Loeb, on Blackjack and the Law.

A consultant to governments and industry, Professor Rose has testified as an expert witness in administrative, civil and criminal cases in the U.S., Australia and New Zealand, and has acted as a consultant to major law firms, international corporations, licensed casinos, players, Indian tribes, and local, state and national governments, including Arizona, California, Florida, Illinois, Michigan, New Jersey, Texas and the federal governments of Canada and the United States.

With the rising interest in gambling throughout the world, Professor Rose has spoken before such diverse groups as the F.B.I., National Conference of State Legislatures, Congress of State Lotteries of Europe, United States Conference of Mayors, and the National Academy of Sciences. He has presented scholarly papers on gambling in Nevada, New Jersey, Puerto Rico, England, Australia, Antigua, Portugal, Italy, Argentina and the Czech Republic.

He is the author of Internet Gaming Law (1st & 2nd editions), Blackjack and the Law and Gaming Law: Cases and Materials.

I. Nelson Rose Websites:

www.gamblingandthelaw.com

Books by I. Nelson Rose:

> More Books By I. Nelson Rose

I. Nelson Rose
Professor I. Nelson Rose is an internationally known scholar, public speaker and writer and is recognized as one of the world's leading authorities on gambling law. A 1979 graduate of Harvard Law School, he is a tenured full Professor at Whittier Law School in Costa Mesa, California, where he teaches one of the first law school classes on gaming law.

Professor Rose is the author of more than 300 books, articles, book chapters columns. He is best known for his internationally syndicated column, "Gambling and the Law ®," and his landmark 1986 book by the same name. His most recent book is a collection of columns and analysis, co-authored with Bob Loeb, on Blackjack and the Law.

A consultant to governments and industry, Professor Rose has testified as an expert witness in administrative, civil and criminal cases in the U.S., Australia and New Zealand, and has acted as a consultant to major law firms, international corporations, licensed casinos, players, Indian tribes, and local, state and national governments, including Arizona, California, Florida, Illinois, Michigan, New Jersey, Texas and the federal governments of Canada and the United States.

With the rising interest in gambling throughout the world, Professor Rose has spoken before such diverse groups as the F.B.I., National Conference of State Legislatures, Congress of State Lotteries of Europe, United States Conference of Mayors, and the National Academy of Sciences. He has presented scholarly papers on gambling in Nevada, New Jersey, Puerto Rico, England, Australia, Antigua, Portugal, Italy, Argentina and the Czech Republic.

He is the author of Internet Gaming Law (1st & 2nd editions), Blackjack and the Law and Gaming Law: Cases and Materials.

I. Nelson Rose Websites:

www.gamblingandthelaw.com

Books by I. Nelson Rose:

Gambling and the Law

> More Books By I. Nelson Rose