Page 1
Ninth Circuit:
California Failed to Negotiate in Good Faith With Tribes
Majority Says Conditioning Extension of Permission to Operate High-Stakes Casinos on Such Bases As Enforcing State Family Law Orders As to Employees and Adopting Features of State Law As Tribal Law Was Unlawful
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1 opinion, that California acted in bad faith in attempting, in negotiations, to condition the renewal of compacts allowing high-stakes Las Vegas-style gambling on reservations of native Americans tribes on their agreeing to such matters as enforcing state spousal and support orders imposed on casino employees.
Judge Daniel Aaron Bress authored the majority opinion; Judge Kim Wardlaw indicated, in a concurring opinion, her agreement with him; Judge Patrick J. Bumatay dissented.
The action was brought by the Chicken Ranch Rancheria of Me-Wuk Indians and four other federally recognized tribes. They contended that California is in violation of the Indian Gaming Regulatory Act (“IGRA”) by refusing to negotiate in good faith an extension of permission to conduct “Class III” gambling which includes baccarat, blackjack, roulette, and craps.
The tribes contended in their pleading that without an extension of the compacts, the operations would have to cease and they would “not be able to generate the revenue necessary to fund essential governmental services on their respective reservations.”
|
|
|
Pictured is the Chicken Ranch casino operated by a native American tribe, a plaintiff in an action to establish the bad faith of California in negotiating for a renewal of a compact under which it may offer high-stakes gambling. The Ninth U.S. Circuit Court of Appeals yesterday affirmed a District Court decision in the tribes’ favor. |
District Court Ruling
Granting summary judgment in favor of the tribes on March 31, 2021, Senior District Court Judge Anthony W. Ishii of the Eastern District of California said:
“With spousal and child support, the State Defendants were arguably trying to regulate the relationship between the employees and third party family members who have no connection with the gaming activity; the nexus of those relationships was not the gaming activity. This is a topic which pulled the negotiations into a field wholly collateral to the operation of gaming facilities.”
He declared:
“The State Defendants’ attempt to negotiate the issue of spousal and child support is per se evidence of bad faith.”
Bress’s Opinion
Bress concluded that other concessions the state sought are also unreasonable, such as insisting on the tribes adopting California tort law as tribal law in certain situations not relating to the gambling operations and observing several requirements of INGRA California’s Environmental Quality Act. He wrote:
“We hold in this case that California failed to act in good faith in its compact negotiations with the plaintiff Tribes. The central problem with California’s approach was this: it for years demanded that the Tribes agree to compact provisions relating to family law, environmental regulation, and tort law that were unrelated to the operation of gaming activities and far outside the bounds of permissible negotiation under IGRA. Through its negotiating demands. California effectively sought to use the Class III contracting process as leverage to impose its general policy objectives on the Tribes, which a state may not do. California thereby failed to act in good faith, triggering IGRA’s remedial provisions.”
The jurist said that under the IGRA, condition imposed on tribes must be “directly related” to gaming. There are seven enumerated topics on which negotiations may take place, he pointed out, with the list being exhaustive, and California, Bress declared, strayed from that list.
“We have little difficulty concluding that the disputed topics well exceed IGRA’s bounds,” he said. “While there may be close cases in which states slightly overstep the ‘directly related’ to the operation of gaming activities line, this is not one of them.” Wardlaw said she agrees with Bress’s analysis and wrote separately to point to statutory ambiguity.
Bumatay’s Dissent
In his dissent, Bumatay took the stance that “if a tribe has introduced evidence that a State sought provisions outside the confines of the…list” of permissible subjects for negotiations, “then the tribe has satisfied its burden to show the State’s bad faith and the burden shifts to the State to prove its good faith.”
He argued that “a State’s negotiation for an off-list subject doesn’t automatically lead to a finding of bad faith” and that “a State may prove that its off-list negotiations still amounted to good faith.”
Bress commented in his opinion that “the dissent renders the exhaustive list of negotiating topics” in IGRA “non-exhaustive” which he asserted “is directly contrary to the statutory text, IGRA’s core objectives, and binding circuit precedent, which all make clear that the list of negotiating topics is exhaustive, and indeed must be exhaustive, in order to prevent states from unduly intruding on tribal governance.”
The case is Chicken Ranch Rancheria v. State of California, 21-15751.
Copyright 2022, Metropolitan News Company