# Stand up for California v. State of Cal.

> California Court of Appeal · December 12, 2016 · 6 Cal. App. 5th 686

URL: https://www.frixlaw.com/law-library/cases/4106630

## Case

- **Full name:** STAND UP FOR CALIFORNIA! Et Al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA Et Al., Defendants and Respondents; NORTH FORK RANCHERIA OF MONO INDIANS, Intervener and Respondent
- **Court:** California Court of Appeal
- **Decided:** December 12, 2016
- **Citations:** 6 Cal. App. 5th 686; 211 Cal. Rptr. 3d 490; 2016 Cal. App. LEXIS 1078
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Smith, Detjen, Franson
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4106630

## Opinion text

Filed 12/12/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

STAND UP FOR CALIFORNIA! et al.,
F069302
Plaintiffs and Appellants,
(Super. Ct. No. MCV062850)
v.

STATE OF CALIFORNIA et al., OPINION
Defendants and Respondents;

NORTH FORK RANCHERIA OF MONO
INDIANS,

Intervener and Respondent.

APPEAL from a judgment of the Superior Court of Madera County. Michael J.
Jurkovich, Judge.
Snell & Wilmer, Sean M. Sherlock, Todd E. Lundell, and Brian A. Daluiso for
Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Sara J. Drake, Assistant Attorney General,
William P. Torngren and Timothy M. Muscat, Deputy Attorneys General, for Defendants
and Respondents.
Maier, Pfeffer, Kim, Geary & Cohen, John A. Maier; Wilmer, Cutler, Pickering,
Hale & Dorr, Danielle Spinelli and Christopher E. Babbitt for Intervener and Respondent.
-ooOoo-

SEE CONCURRING AND DISSENTING OPINIONS
Plaintiffs Stand Up for California! and Barbara Leach (plaintiffs) initiated this
litigation by filing a complaint challenging the Governor’s authority to concur in the
decision of the Secretary of the United States Department of the Interior to take land in
Madera County into trust for defendant North Fork Rancheria of Mono Indians (North
Fork) for the purpose of operating a casino for class III gaming. The Governor’s
concurrence was a necessary element under federal law for the granting of permission to
North Fork to operate the casino on the land. While the case was pending, the
Legislature passed a statute ratifying a compact previously negotiated and executed with
North Fork by the Governor. This compact is a device authorized by federal law to allow
a state to agree with an Indian tribe on the terms and conditions under which gambling
can take place on Indian land within the state. Plaintiffs then initiated Proposition 48, a
referendum by which, at the 2014 general election, the voters disapproved the ratification
statute. North Fork, having intervened, filed a cross-complaint alleging that the
ratification statute was not subject to the referendum process.
North Fork and the state defendants—the Governor, the Attorney General, the
California Gambling Control Commission, the Bureau of Gambling Control, and the
State of California—demurred to plaintiffs’ complaint challenging the Governor’s
concurrence authority. Plaintiffs and the state defendants demurred to North Fork’s
cross-complaint challenging the referendum.
The trial court sustained all the demurrers without leave to amend. The complaint
and cross-complaint were dismissed. The result was that the land remained in trust for
North Fork, but the compact was not ratified, so class III gaming on the land was not
approved. Subsequently, however, as a product of federal litigation between North Fork
and the state, a set of procedures designed to function as an alternative to a state-
approved compact was approved by the Secretary of the Interior.
Appeals were filed from both judgments of dismissal, but the parties agreed to
dismiss North Fork’s appeal in the case challenging the referendum, leaving only the

2.
concurrence issue. In my view, for reasons related to the lack of a state-approved
compact or any future prospect of a state-approved compact for gambling on the land,
any authority the Governor might have had to concur in a decision of the Secretary of the
Interior to take the land into trust for purposes of gaming was inapplicable in this case, so
the demurrers to plaintiffs’ claims on that issue should have been overruled.
FACTS AND PROCEDURAL HISTORY1
North Fork is a federally recognized Indian tribe with about 1,900 tribal citizens.
It possesses a small rancheria in the Sierra Nevada foothills near the unincorporated
community of North Fork. In March 2005, North Fork applied to the United States
Department of the Interior (DOI) pursuant to the federal Indian Gaming Regulatory Act
(18 U.S.C. §§ 1166-1167; 25 U.S.C. § 2701 et seq.) (IGRA) to have the federal
government take into trust for North Fork’s benefit a 305-acre parcel in Madera County
about 40 miles from the rancheria. The parcel, owned by North Fork’s development
partner, is located on State Route 99 adjacent to the City of Madera. North Fork
proposed building a hotel and casino on the site. Federal action taking the land into trust
was a precondition to legal class III gaming under federal law. (25 U.S.C. § 2719(b)(1).)
Class III gaming is the type of gambling practiced in casinos in Nevada. (25 U.S.C.
§ 2703(6)-(8).)
In September 2011, DOI made a finding that, within the meaning of IGRA, taking
the land into trust for the purpose of gaming would be in the best interest of North Fork
and would not be detrimental to the surrounding community. (25 U.S.C.
§ 2719(b)(1)(A).) The Governor, fulfilling a role delineated in IGRA, concurred in this
determination in August 2012. (25 U.S.C. § 2719(b)(1)(A).) The Secretary of the

1North Fork’s appeal, case No. F070327, has been dismissed, but I take judicial
notice of the record in that case for purposes of this statement of the facts and procedural
history.

3.
Interior decided to take the land into trust in November 2012, and the conveyance was
completed on February 5, 2013.
Concurrently with this process, the Governor pursued a tribal-state compact under
Government Code section 12012.25 and article IV, section 19, subdivision (f), of the
California Constitution. Under IGRA, a tribal-state compact is one of the methods of
legalizing class III gaming on Indian land. (25 U.S.C. § 2710(d)(1)(C).) In August 2012,
the Governor announced that he had negotiated and signed a compact with North Fork for
gaming on the 305-acre parcel and was forwarding the compact to the Legislature for
ratification.
Plaintiffs filed their complaint on March 27, 2013. As amended, the complaint
named as defendants the State of California, the Governor, the Attorney General, the
Gambling Control Commission, and the Bureau of Gambling Control. It alleged that the
Governor’s concurrence in the Secretary of the Interior’s determination violated the
California Constitution because such a concurrence was not within the Governor’s power.
The complaint prayed for a writ of mandate setting aside the concurrence.
A statute ratifying the compact, designated Assembly Bill No. 277, was passed by
both houses of the Legislature. The Governor signed it on July 3, 2013, and it became
chapter 51 of the Statutes of 2013. In addition to ratifying the compact, the statute
exempted the casino project from compliance with the California Environmental Quality
Act (Pub. Resources Code, § 21000 et seq.) (CEQA). (Stats. 2013, ch. 51, § 1(b).) The
compact contained provisions, however, that required North Fork to produce a tribal
environmental impact report similar to a CEQA environmental impact report. The
compact was forwarded to the Secretary of the Interior, who published a notice in the
Federal Register on October 22, 2013, stating that the compact was approved and was
taking effect to the extent it was consistent with IGRA. (78 Fed.Reg. 62649 (Oct. 22,
2013).)

4.
In the compact, the state authorized North Fork to conduct class III gaming on the
305-acre parcel, and North Fork agreed not to conduct gaming on its environmentally
sensitive rancheria or elsewhere in California. North Fork agreed to make payments to
the Chukchansi Tribe to mitigate the economic impact of the new casino on the existing
Chukchansi casino. North Fork also agreed to share revenue with the Wiyot Tribe in
order to enable that tribe to forgo gaming on its environmentally sensitive land near
Humboldt Bay National Wildlife Refuge. North Fork further agreed to participate in a
revenue-sharing scheme to benefit other tribes without casinos. The compact included
many additional terms, including North Fork’s submission to detailed regulations for the
operation of its casino.
On July 8, 2013, Cheryl Schmit, using the letterhead of Stand Up for California!,
asked the Attorney General for a title and summary for a proposed statewide referendum
rejecting the compact ratification statute, chapter 51 of the Statutes of 2013. The
Attorney General issued the title and summary, and signatures were gathered. The
referendum qualified for the November 2014 general election ballot.
North Fork, which was not originally a party to the litigation initiated by plaintiffs’
complaint, was granted leave to intervene on August 23, 2013. North Fork filed its cross-
complaint on February 27, 2014, naming the state defendants as cross-defendants.
Schmit, the official proponent of the referendum petition, was named as a real party in
interest. The cross-complaint sought a declaratory judgment stating that the referendum
petition was invalid.
North Fork and the state defendants demurred to plaintiffs’ complaint (alleging
that the Governor’s concurrence was unauthorized), and the trial court ruled on the
demurrers on March 3, 2014. In its written ruling, the court stated that the Governor’s
power to concur arose by implication from his authority to negotiate and execute tribal-
state compacts, as set forth in article IV, section 19, subdivision (f), of the California
Constitution. Because the Governor was authorized to negotiate compacts for gaming on

5.
Indian land, and some such compacts, including the one at issue in this case, cannot come
into effect unless the land in question is taken into trust by the federal government with
the Governor’s concurrence, the Governor must have the power to concur. The court
rejected plaintiffs’ argument that when the voters added article IV, section 19,
subdivision (f), to the California Constitution via Proposition 1A in 2000, they intended
to deny to the state the authority to approve Indian casinos on land that was not yet Indian
land at the time, so that there could be no casinos on newly added trust land. Plaintiffs
conceded they could not cure their complaint by amendment, so the demurrers were
sustained without leave to amend. A defense judgment was entered on March 12, 2014.
Plaintiffs, Schmit, and the state defendants demurred to North Fork’s cross-
complaint (challenging the validity of the referendum), and the trial court ruled on the
demurrers on June 26, 2014. The court wrote that the plain language of article II,
section 9, subdivision (a), of the California Constitution was controlling. That provision
states that the referendum power allows the voters to reject “statutes or parts of statutes
except urgency statutes, statutes calling elections, and statutes providing for tax levies or
appropriations for usual current expenses of the State.” It was undisputed that chapter 51
of the Statutes of 2013 was a statute and not within one of those three exceptions. The
court rejected North Fork’s argument that the ratification of the compact was in substance
administrative, not legislative, so it was not subject to referendum despite its statutory
form. The court also rejected North Fork’s argument that, in order to avoid a conflict
between state law and IGRA, state law must be interpreted to deny the voters power to
invalidate a tribal-state compact. North Fork declared it would not attempt to cure its
cross-complaint by amendment, so the demurrers were sustained without leave to amend.
Judgment dismissing the cross-complaint was entered on July 9, 2014.
The referendum was designated Proposition 48. A majority of voters voted “no”
on Proposition 48 on November 4, 2014, thereby rejecting the Legislature’s ratification of

6.
the compact. (Historical and Statutory Notes, 32E pt. 1 West’s Ann. Gov. Code (2016
supp.) foll. § 12012.59, p. 13.)
Plaintiffs appealed from the dismissal of their complaint. North Fork appealed
from the dismissal of its cross-complaint. On May 25, 2016, however, the parties filed a
stipulation to dismiss North Fork’s appeal, thus removing the referendum issue from the
case. Only the question of the Governor’s concurrence power remains.
On August 3, 2016, plaintiffs filed an unopposed request for judicial notice of
action by DOI to approve a document called Secretarial Procedures for the North Fork
Rancheria of Mono Indians (the secretarial procedures). According to a letter from DOI
included in the request for judicial notice, the secretarial procedures were issued as a
remedy for North Fork in litigation in federal court. In this litigation, as a consequence of
the voters’ rejection of the compact via Proposition 48, the court found the state failed to
negotiate with North Fork in good faith. This led to court-ordered mediation, which,
producing no settlement, led in turn to the district court’s approval a set of procedures
proposed by North Fork to regulate gambling on the 305-acre site in the absence of a
state-approved compact. These procedures were submitted to DOI and, upon approval by
the Secretary of the Interior, became the secretarial procedures. The letter, dated July 29,
2016, states that the secretarial procedures are in effect. This request for judicial notice is
granted.2

2On August 25, 2016, this court directed the parties to submit supplemental
briefing. All parties filed supplemental briefs. On October 4, 2016, plaintiffs filed a
motion to strike portions of North Fork’s supplemental brief on the ground that it cited
various court opinions and other materials in which certain facts were recited. Plaintiffs
contended the facts in question were not subject to judicial notice. No facts influencing
the result in this appeal have been introduced into the record through materials cited in
North Fork’s supplemental brief. Plaintiffs’ motion to strike therefore is moot.

7.
DISCUSSION
I. Standard of review
The standard of review is well-established:

“In an appeal from a judgment dismissing an action after a general
demurrer is sustained without leave to amend, our Supreme Court has
imposed the following standard of review. ‘The reviewing court gives the
complaint a reasonable interpretation, and treats the demurrer as admitting
all material facts properly pleaded. [Citations.] The court does not,
however, assume the truth of contentions, deductions or conclusions of law.
[Citation.] The judgment must be affirmed “if any one of the several
grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is
error for a trial court to sustain a demurrer when the plaintiff has stated a
cause of action under any possible legal theory. [Citation.] And it is an
abuse of discretion to sustain a demurrer without leave to amend if the
plaintiff shows there is a reasonable possibility any defect identified by the
defendant can be cured by amendment. [Citation.]’ [Citations.].” (Genesis
Environmental Services v. San Joaquin Valley Unified Air Pollution
Control Dist. (2003) 113 Cal.App.4th 597, 603.)
II. Legal framework for Indian gaming
IGRA was enacted in 1988. (Pub.L. No. 100-497 (Oct. 17, 1998) 102 Stat. 2467.)
Its primary purpose is “to provide a statutory basis for the operation of gaming by Indian
tribes as a means of promoting tribal economic development, self-sufficiency, and strong
tribal governments.” (25 U.S.C. § 2702(1).)
Under IGRA, gambling is divided into three classes. Class I is “social games
solely for prizes of minimal value or traditional forms of Indian gaming” connected with
“tribal ceremonies or celebrations.” (25 U.S.C. § 2703(6).) On Indian lands, class I
gaming is not subject to IGRA and is within the exclusive jurisdiction of Indian tribes.
(25 U.S.C. § 2710(a)(1).) Class II is bingo, games similar to bingo, and certain card
games. (25 U.S.C. § 2703(7).) IGRA places class II gaming on Indian lands under tribal
jurisdiction in any state in which class II gaming is ever permitted by state law, subject to
regulations in IGRA itself. (25 U.S.C. § 2710(b).)

8.
Class III is all other gaming. (25 U.S.C. § 2703(8).) It includes “‘high-stakes
casino-style’ gaming” and encompasses slot machines, casino games, banking card
games, dog racing and lotteries, among other things. (Keweenaw Bay Indian Community
v. United States (6th Cir. 1998) 136 F.3d 469, 473.) IGRA permits class III gaming on
Indian lands in any state in which class III gaming is ever permitted by state law,
provided that the state and tribe enter into a tribal-state compact setting forth terms under
which the gaming is to be conducted. (25 U.S.C. § 2710(d).)
Upon request by a tribe, a state is required to negotiate in good faith to enter into a
tribal-state compact.3 (25 U.S.C. § 2710(d)(3)(A).) After a state and a tribe enter into a
compact, the compact is submitted to the Secretary of the Interior for review. The
secretary has 45 days to approve or disapprove the compact; if he or she does not act
within 45 days, the compact is deemed approved. The Secretary is authorized to
disapprove a compact only if it fails to conform to federal law. (25 U.S.C.
§ 2710(d)(3)(B), (d)(8).)
IGRA provides that, in general, gaming is not authorized on land acquired by the
DOI in trust for an Indian tribe after the effective date of the statute, October 17, 1988.
(25 U.S.C. § 2719(a).) One exception is when “the Secretary, after consultation with the
Indian tribe and appropriate State and local officials, including officials of other nearby
Indian tribes, determines that a gaming establishment on newly acquired lands would be
in the best interest of the Indian tribe and its members, and would not be detrimental to
the surrounding community, but only if the Governor of the State in which the gaming

3IGRA provides that if a state fails to negotiate in good faith, a tribe has a cause of
action, and the federal courts have jurisdiction over that action. A federal court then can
order the state and tribe to engage in a mediation process, which, if unsuccessful, leads to
the approval of gaming under terms imposed by the Secretary of the Interior. (25 U.S.C.
§ 2710(d)(7).) In Seminole Tribe of Florida v. Florida (1996) 517 U.S. 44, 47, however,
the United States Supreme Court held that a state can obtain dismissal of such a lawsuit
by invoking sovereign immunity under the Eleventh Amendment.

9.
activity is to be conducted concurs in the Secretary’s determination .…” (25 U.S.C.
§ 2719(b)(1)(A).) This is the provision, involving what is often referred to as the two-
part determination, under which the Governor concurred in the conversion of the 305-
acre parcel to trust status in this case.
When IGRA was enacted, the California Constitution prohibited all casino-type
gambling statewide. (Cal. Const., art. IV, § 19, subd. (e); California Commerce Casino,
Inc. v. Schwarzenegger (2007) 146 Cal.App.4th 1406, 1411.) An initiative statute passed
in 1998, Proposition 5, purported to authorize the state to enter into tribal-state compacts
as contemplated by IGRA, but because the measure was only statutory, it was held to be
invalid in light of the constitutional gambling prohibition. (Hotel Employees &
Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 589-590 (Hotel
Employees).) In 2000, the voters approved Proposition 1A, which amended the
California Constitution to authorize the state to enter into tribal-state compacts. (Cal.
Const., art. IV, § 19, subd. (f); Historical Notes, 1E West’s Ann. Cal. Const. (2012 ed.)
foll. art. IV, § 19, p. 604.) The Legislature enacted Government Code section 12012.25,
authorizing the Governor to negotiate and execute tribal-state compacts and requiring the
Governor to submit executed compacts to the Legislature for ratification. (Gov. Code,
§ 12012.25, subds. (d)-(e).)4
III. Governor’s concurrence power
Plaintiffs maintain that no authority can be found in state law empowering the
Governor to concur in a finding by the Secretary of the Interior that taking land into trust
for an Indian tribe for gaming purposes is in the best interest of the tribe and not

4In light of the holding in Hotel Employees, supra, 21 Cal.4th 585, it is really the
constitutional provision, not the statute, that is doing the work of authorizing tribal-state
compacts in California. For this reason, in the remainder of this opinion, I will refer to
Proposition 1A as the law that gives the Governor the power to negotiate and execute
compacts.

10.
detrimental to the surrounding community, within the meaning of IGRA. North Fork and
the state defendants argued in the trial court, and argue again now, that the Governor
should be found to have this authority according to three different analyses: (1) the
Governor’s authority to concur arises by implication from his express authority to
negotiate and execute compacts; (2) the Governor has authority to concur as part of his
inherent authority as head of the executive branch of government; and (3) the Legislature
impliedly ratified the concurrence when it ratified the compact, effectively supplying the
Governor with authority after the fact. The trial court agreed with the first argument and
did not address the others.
The parties agree that no statutory, constitutional, or other authority under state
law explicitly authorizes the Governor to exercise the concurrence power contemplated
by IGRA. Further, as plaintiffs point out, it has been held that any authority with which
the Governor acts in granting his concurrence under IGRA must be based on state law;
IGRA itself does not supply that authority:

“When the Governor exercises authority under IGRA, the Governor
is exercising state authority. If the Governor concurs, or refuses to concur,
it is as a State executive, under the authority of state law. The concurrence
(or lack thereof) is given effect under federal law, but the authority to act is
provided by state law.… In the present case, the consequences of the
Governor’s exercise of discretion under state law will affect how the
Secretary of the Interior will proceed to execute IGRA. No doubt, federal
law provides the Governor with an opportunity to participate in the
determination of whether gaming will be allowed on newly acquired trust
land. But when the Governor responds to the Secretary’s request for a
concurrence, the Governor acts under state law, as a state executive,
pursuant to state interests.” (Confederated Tribes of Siletz Indians of
Oregon v. United States (9th Cir. 1997) 110 F.3d 688, 697-698
(Confederated Tribes).)
The Ninth Circuit made this point to show that, when a governor concurs or
refuses to concur, he or she does not exercise significant authority under federal law, and
does not possess primary responsibility for protecting a federal interest, and therefore

11.
IGRA’s employment of a state official to carry out a part of the statutory scheme does not
violate the appointments clause of the federal Constitution. (Confederated Tribes, supra,
110 F.3d at pp. 696-698.) Under this reasoning, it follows that if no state law authorized
the Governor to concur, then he lacked authority to do it.
In my view, the argument adopted by the trial court is indeed the most plausible of
the arguments made by plaintiffs: The needed authority, if it exists, is found by
implication in state law authorizing the Governor to negotiate and execute tribal-state
compacts. Article IV, section 19, subdivision (f), of the California Constitution, which
was added by Proposition 1A in 2000, states: “[T]he Governor is authorized to negotiate
and conclude compacts, subject to ratification by the Legislature, for the operation of slot
machines and for the conduct of lottery games and banking and percentage card games by
federally recognized Indian tribes on Indian lands in California in accordance with
federal law.” The Legislature provided substantially the same authority in Government
Code section 12012.25, subdivision (d): “The Governor is the designated state officer
responsible for negotiating and executing, on behalf of the state, tribal-state gaming
compacts with federally recognized Indian tribes located within the State of California
pursuant to the federal Indian Gaming Regulatory Act of 1988 (18 U.S.C. Sec. 1166 to
1168, incl., and 25 U.S.C. Sec. 2701 et seq.) for the purpose of authorizing class III
gaming, as defined in that act, on Indian lands within this state.” In the opinion of the
tribe, the state defendants and the trial court, this constitutional provision and this statute
are rightly construed as empowering the Governor to concur in the Secretary of the
Interior’s determination under title 25 of United States Code section 2719(b)(1)(A)
because of the unrestricted reference in both to “Indian lands.” As I will explain,
however, I need neither endorse nor reject that reasoning in this case. Even if it is
correct, the Governor’s implied concurrence power would not extend to lands as to which
there is no state-approved compact, nor any prospect of one, since the point of the
implied concurrence power would be to give effect to the state’s compacting power.

12.
In interpreting a statute, our objective is “to ascertain and effectuate legislative
intent.” (People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) To the extent the language
in the statute may be unclear, we look to legislative history and the statutory scheme of
which the statute is a part. (People v. Bartlett (1990) 226 Cal.App.3d 244, 250.) We
look to the entire statutory scheme in interpreting particular provisions “so that the whole
may be harmonized and retain effectiveness.” (Clean Air Constituency v. California
State Air Resources Bd. (1974) 11 Cal.3d 801, 814.) “In the end, we ‘“must select the
construction that comports most closely with the apparent intent of the Legislature, with a
view to promoting rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.” [Citation.]’” (Torres v.
Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) The same principles apply to
the interpretation of a voter initiative. Analyses and arguments contained in the official
ballot pamphlet are relevant when the language of the enactment is unclear. (Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 900-901.)
As the tribe and the state defendants point out, the term “Indian lands” includes
both land on Indian reservations and land taken into trust by the federal government for
the benefit of Indian tribes. (25 U.S.C. § 2703(4).) Trust lands include those taken into
trust for gaming purposes after 1988 under title 25 of United States Code
section 2719(b)(1)(A), the provision requiring the Secretary of the Interior’s findings and
the Governor’s concurrence. Thus, the argument goes, the Governor cannot
meaningfully negotiate and execute tribal-state compacts for some Indian lands—those
taken into trust after 1988 under title 25 of United States Code section 2719(b)(1)(A)—
unless he can also exercise the concurrence power contemplated by that provision. It is
well established that governmental officials in California have implied power to take
action necessary for the administration of powers expressly granted by law. (Dickey v.
Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 810; Crawford v. Imperial Irrig. Dist.
(1927) 200 Cal. 318, 334; Watt v. Smith (1891) 89 Cal. 602, 604.) It follows, the tribe

13.
and the state defendants aver, that the Governor must have the power to concur in a
determination to take land into trust for gaming when the state’s power to make a
compact for gaming on that land is exercised.
The trouble for this argument in this case is that we now know the state’s power to
make a compact is not being exercised for gaming on the 305-acre parcel. The voters
decided to reject the compact that was negotiated and ratified; the tribe has dismissed its
appeal in the litigation that was designed to revive that compact; and no new compact has
been proposed by any party. Instead, the casino project is poised to proceed, but for the
issue in this appeal, based on the secretarial procedures, which have been imposed
against the state’s will.
I do not believe an implied concurrence power can be held to exist under these
circumstances. Laws are deemed to have implied provisions and confer implied powers
only when necessary for the carrying out of express provisions and powers. An implied
power should have no greater scope than this necessity requires. “‘“[F]or a consequence
to be implied from a statute there must be greater justification for its inclusion than a
consistency or compatibility with the act from which it is implied. ‘A necessary
implication within the meaning of the law is one that is so strong in its probability that
the contrary thereof cannot reasonably be supposed.’”’” (Lubner v. City of Los Angeles
(1996) 45 Cal.App.4th 525, 529.) It may be appropriate (there is no need to decide) to
say that the Governor’s concurrence power is necessary under this standard to carry out
the provisions of Proposition 1A because those provisions contemplate the possibility of
state-approved tribal-state compacts for class III gaming on any Indian lands as defined
by law, and some such compacts (those for post-1988 trust lands) cannot be made
effective without a gubernatorial concurrence in a DOI finding regarding the land in
question. But it would make no sense to say the gubernatorial concurrence power arises
by necessary implication from the compacting power in Proposition 1A because
secretarial procedures that have been issued cannot meaningfully become effective

14.
unless the Governor’s concurrence makes the land available. The concept of necessity
limits the scope of any implied concurrence power to situations in which gambling on the
land in question will be conducted pursuant to a state-approved compact, and the
concurrence power is necessary to make such a compact effective. The concurrence
power is not necessary to the carrying out of the compacting power in cases in which the
compacting power is not being exercised.
In summary, it would be perverse to find the Governor has an implied authority
based on an express power that the state has finally decided not to exercise, after
protracted consideration by the Governor, the Legislature, and the voters. It is no
denigration of the Governor’s authority to say he cannot exercise an implied power in a
case where the voters have vetoed an exercise of the express power on which the implied
power is purportedly based.
The effect of this conclusion is that the Governor’s concurrence for the 305-acre
parcel is invalid without a state-approved compact for gaming on that parcel. Would that
concurrence become valid if a new state-approved compact should come into being? It is
not necessary to answer that question in this opinion.
IV. Inherent authority and implied ratification
North Fork and the state defendants argue that, even if there is no implied
gubernatorial concurrence authority in the Proposition 1A compacting power, the
Governor had inherent authority to give his concurrence, and the Legislature provided
any missing authority by impliedly ratifying the concurrence when it ratified the
compact. I turn to these arguments now.
A. Inherent executive authority
The notion that the Governor has inherent power to grant his concurrence is
approached from several angles in the briefs for North Fork and the state defendants. The
state defendants and North Fork both undertake to rebut the idea that there would be a
separation-of-powers violation if the Governor had the concurrence power because, in

15.
exercising the concurrence power, the Governor infringes on or usurps a legislative
function. The Governor’s action is invalid because there is a lack of authority for it in the
first place, not because the action infringes on the Legislature’s domain, so there is no
need to address this contention.5 North Fork also argues, however, that the concurrence
power is “[i]nherently [e]xecutive” and that the power “is a natural consequence of [the
Governor’s] role as the head of the administrative state.” North Fork cites article V of
the California Constitution, which states that “[t]he supreme executive power of this State
is vested in the Governor,” and “[t]he Governor shall see that the law is faithfully
executed.” (Cal. Const., art. V, § 1.) I understand these contentions to mean that the
Governor is entitled to exercise the concurrence power contemplated by IGRA simply
because he is the Governor; no specific express or implied grant of power is necessary
under this view.
Among the cases cited by North Fork in connection with this argument, two seem
most relevant: United States v. 1,216.83 Acres of Land (Wash. 1978) 574 P.2d 375
(1,216.83 Acres) and Lac Courte Oreilles Band of Lake Superior Chippewa Indians of
Wisconsin v. United States (7th Cir. 2004) 367 F.3d 650 (Lac Courte Oreilles). But
neither of these shows that the Governor has inherent executive authority, independent of
any specific express or implied grant of power, to issue concurrences as contemplated by
IGRA.
In 1,216.83 Acres, the question was whether the governor of the State of
Washington had authority to designate the state’s game commission as the agency
responsible for approving federal land acquisitions for purposes of establishing migratory
bird refuges pursuant to a federal statute, the Migratory Bird Conservation Act.

5Forthis reason, it is unnecessary to analyze United Auburn Indian Community of
the Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36), which holds only that the
Governor’s exercise of the concurrence power does not violate separation-of-powers
principles.

16.
(1,216.83 Acres, supra, 574 P.2d at pp. 376-377.) The federal law provided that such
acquisitions had to be approved by the governor or appropriate state agency in each state.
(Id. at p. 376.) The Washington Supreme Court held that the game commission had the
necessary authority to grant the approvals because a state statute expressly conferred on
the commission authority to enter into agreements with the United States on all matters
regarding wildlife conservation. (Ibid.) Then the court held that, although there was no
state statute or state constitutional provision specifically authorizing the governor to
designate the commission, there was implied authority in “the Governor’s position as
head of the executive branch of government.” (Id. at p. 379.) Further, the Governor’s
authority to designate the agency was apparent “[i]n view of the extensive authority the
Governor has already been given by statute over the game department and its
personnel .…” (Ibid.)
The situation in 1,216.83 Acres is not similar to the situation here. The Migratory
Bird Conservation Act called for certain action by an appropriate state agency, and a
Washington statute named the agency responsible for such action. In designating that
agency, the Governor of Washington merely pointed out what the state statute had
already made clear. It was obvious that the governor had inherent authority to follow a
state statute and direct a state agency to follow it. The Supreme Court of Washington
rightly devoted only a single paragraph of analysis to this easy question. In our case,
there is no state statute or other state law explicitly giving anyone responsibility for
participating in the two-part determination necessary to take land into trust for gambling
under IGRA. Further, even if I thought Proposition 1A impliedly gave the Governor the
necessary authority in general, I would conclude that the authority is limited to land on
which gambling will be conducted under a state-approved compact.
In Lac Courte Oreilles, the Governor of Wisconsin refused to concur in the
Secretary of the Interior’s two-part determination for land on which three tribes proposed
to operate a casino. (Lac Courte Oreilles, supra, 367 F.3d at p. 653.) The tribes sued for

17.
a declaration that the concurrence requirement in IGRA was unconstitutional. (Lac
Courte Oreilles, supra, at p. 652.) One argument the tribes made was that the
concurrence provision violated principles of federalism because it required governors to
create state public policy, a function state constitutions commit to state legislatures. (Id.
at p. 664.) Rejecting this contention, the Seventh Circuit reasoned that Wisconsin already
had a policy on gambling expressed in its laws authorizing a state lottery and allowing
bingo and raffles by certain nonprofit organizations. (Ibid.) Applying California v.
Cabazon Band of Mission Indians (1987) 480 U.S. 202 (Cabazon), the Seventh Circuit
then concluded that, because the state did not prohibit all gambling, its policy was to
tolerate gaming on Indian lands (since Cabazon held that a state cannot prohibit gaming
on Indian lands if it chooses to permit any gambling elsewhere). The Governor, in
deciding whether to grant or withhold a requested concurrence, thus made no new policy
but was guided by the old policy and acted in a manner “typical of the executive’s
responsibility to render decisions based on existing policy.” (Lac Courte Oreilles, supra,
at p. 664.)
North Fork argues that, from the rationale of Lac Courte Oreilles, it follows that
the Governor is merely acting within existing California gambling policy when he
concurs in a two-part determination by the Secretary of the Interior, and therefore he
needs no specific authority to do it.
I do not believe Lac Courte Oreilles supports this conclusion. The question in that
case was whether the concurrence provision violated federalism principles because it
involved the federal government compelling a governor to create state public policy, an
act reserved by the state constitution to the state legislature. The answer given by the
Seventh Circuit was that there was no such violation of federalism principles because,
under the reasoning of Cabazon, the state already had a policy regarding Indian casinos,
so the governor did not create a new policy by concurring or declining to concur. Under
Cabazon and Lac Courte Oreilles, California would also properly be said to have a policy

18.
regarding Indian casinos and the Governor’s exercise of the concurrence power would
not create that policy. This does not show, however, that the power to concur is inherent
in the Governor’s office. There is no rule that the Governor has inherent authority to take
any action he pleases in areas in which the state has an existing public policy.
In sum, Lac Courte Oreilles held only that the concurrence provision does not
violate the federal Constitution because it does not force governors to usurp state
legislative authority by making state public policy. It did not consider the question of
whether any governor has inherent executive authority to exercise the concurrence power
under any state’s law. “Language used in any opinion is of course to be understood in the
light of the facts and the issue then before the court, and an opinion is not authority for a
proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
North Fork next says there are many federal statutes that call on the Governor to
take actions without specific authority under state law, and “chaos would ensue” if such
specific authority were held to be required. For instance, one section of a federal law on
the establishment of airports in national parks provides that the Secretary of the Interior
can acquire the necessary land, but only with “the consent of the Governor of the State,
and the consent of chief executive official of the State political subdivision, in which the
land is located.” (54 U.S.C. § 101501(c)(2).) Similarly, under the Uranium Mill Tailings
Radiation Control Act, the Secretary of Energy is allowed to acquire land for radioactive
materials disposal but in certain states must obtain “the consent of the Governor of such
State.” (42 U.S.C. § 7916.) North Fork claims there is no specific authority in California
law that would allow the Governor to give consent under these statutes.
My analysis implies nothing regarding the Governor’s authority to act in
connection with these other federal laws. I do not go beyond the proposition that there is
no concurrence power when, on the land at issue, the proposed gambling establishment
would be operated under authority other than a state-approved compact. In other words,
if the concurrence power exists, it is limited by the purposes of the state law in

19.
connection with which it would be exercised, that is, the purposes of Proposition 1A.
Those purposes involve the legalization of gambling in casinos regulated by state-
approved compacts, not those regulated by secretarial procedures imposed over the
state’s resistance. I think this limit would exist even if the Governor’s power were
supported by inherent executive authority. If a statute limits the power of the Governor,
the Governor would not be entitled to exceed that limit based on the theory that the power
is part of his inherent authority. So it would be, at least, if the statutory limit did not
amount to an unconstitutional legislative infringement on executive authority.
In short, I draw no conclusion about whether the Governor has inherent authority
to grant concurrences under IGRA in general, let alone whether he has authority to give
consent to federal actions under other federal laws. I aver only that any authority he has
to grant concurrences under IGRA is limited to land on which gambling will be subject to
a state-approved compact.
Finally, North Fork claims the concurrence power is authorized by the Governor’s
statutory role as the “sole official organ of communication” between California and the
United States (Gov. Code, § 12012) and his statutory authority to “require executive
officers and agencies and their employees to furnish information relating to their duties”
(Cal. Const., art. V, § 4). This is not persuasive. The concurrence power involves more
than communication or furnishing information.
B. Implied ratification
North Fork’s final argument is that when the Legislature ratified the compact, it
impliedly also ratified the Governor’s concurrence, thereby supplying any authority that
might have been lacking. This argument might have been persuasive had the compact
been upheld in the 2014 election. As I have explained, however, any concurrence power
the Governor possesses can operate only with respect to land on which gambling will be
regulated by a state-approved compact. The voters have defeated the ratification of the
compact, North Fork has withdrawn its legal challenge to the validity of the referendum,

20.
the state has declined to agree to a new compact via court-ordered mediation, secretarial
procedures have been issued, and no party claims there is now any prospect of a state-
approved compact for gambling on the 305-acre parcel. Even if the Governor’s
concurrence would have been valid otherwise, it is not valid under these circumstances.
V. Dismissal of state defendants other than the Governor
The state defendants argue that the claims against all of them except the
Governor—that is, the Attorney General, the California Gambling Control Commission,
the Bureau of Gambling Control and the State of California—should be dismissed as
moot because plaintiffs sought only a judgment prohibiting them from enforcing or
implementing provisions of the compact. Section 8.2 of the secretarial procedures,
however, gives the state the option of participating in the regulation of gambling on the
305-acre site under those procedures. In light of this, plaintiffs might still wish to pursue
relief against all the state defendants and might be able to amend their complaint
accordingly. Consequently, I conclude that plaintiffs’ claims against these defendants are
not moot.
DISPOSITION
The judgment is reversed. The Governor’s concurrence is invalid under the facts
alleged in this case. Plaintiffs have stated a cause of action for a writ of mandate to set
the concurrence aside on the ground that it is unsupported by legal authority. The matter
is remanded for further proceedings, and the trial court is directed to vacate its order
sustaining the demurrers and enter a new order overruling them.
The request for judicial notice filed by plaintiffs on August 3, 2016, is granted.
The motion filed by plaintiffs on October 4, 2016, to strike portions of North
Fork’s supplemental brief is denied.

21.
Appellants are awarded costs on appeal.

_____________________
Smith, J.

22.
DETJEN, J., Concurring and Dissenting.

I join in the disposition as stated in the lead opinion. The trial court erred in
sustaining the demurrers. I do not, however, think the analysis reaches the question of
whether the Governor has “concurring” authority because, on the facts of this case, he
could not exercise the limited authority to compact granted to him by article IV,
section 19, subdivision (f) of the California Constitution (added by Prop. 1A, eff. Mar. 7,
2000).
This case arises from a complicated interplay between the federal law governing
the acquisition and use of lands held in trust for Indian tribes, and the federal and state
interests in regulating such land when used for gambling and related gaming activities.
The parties1 initially briefed and argued a difficult question in this arena—whether, in
order to execute the express constitutional authority to negotiate and conclude gaming
compacts granted under Proposition 1A, the Governor has been implicitly granted the
power to concur in the United States Secretary of the Interior’s (Secretary) determination
that it would be in the best interest of the tribe and its citizens, and not detrimental to the
surrounding community, to permit gaming on Indian lands. Upon our request, the parties
submitted supplemental briefing on five questions, including whether “the failure of the
305-acre parcel to be ‘Indian lands’ prior to the time the Governor negotiated and
executed the compact deprive[d] him of the authority to negotiate and execute the
compact when he did” (italics omitted) and whether the voters’ defeat of the compact
ratification or the recent approval of substitute procedures for gaming by the United
States Department of the Interior affected this case.

1 The parties are: plaintiffs and appellants, Stand Up for California! and Barbara
Leach (collectively, appellants); defendants and respondents, State of California, the
Governor of California, the Attorney General of California, California Gambling Control
Commission, and Bureau of Gambling Control (collectively, respondents); and intervener
and respondent, North Fork Rancheria of Mono Indians (intervener).
Justice Smith opines state authority authorizing the Governor to concur most
likely exists by implication in the language of Proposition 1A that authorizes the
Governor to negotiate and execute tribal-state compacts. He concludes however that,
since California voters vetoed the tribal-state compact through Proposition 48 in the
November 4, 2014, General Election, the express power from which the power of
concurrence could be implied no longer exists. An implied concurrence power, the
analysis goes, cannot be exercised when the compact no longer exists.
Justice Franson concludes no state authority authorizes the Governor to concur; it
is neither stated in nor implied from Proposition 1A.2 He opines an implied grant of that
power is not necessary under the principles of California law. He does not believe the
authority can be found in general executive power.

2 Justice Franson’s concurrence and dissent attempts to completely resolve the
scope of the Governor’s concurring power by claiming the average voter would not have
understood Proposition 1A to resolve the controversial issue of off-reservation casinos.
(Conc. & dis. opn. of Franson, J., post, at pp. 2-3.) The issue before us is not so broad,
being limited to whether the Governor has concurring power in the context of land not
yet taken into trust. To the extent Justice Franson’s position is premised on the notion no
power to concur could be intoned from Proposition 1A because the proposition did not
affect off-reservation casinos, I disagree. The Indian Gaming Regulation Act (IGRA)
wholly bans class III gaming on Indian lands in states which do not permit such gaming
“by any person, organization, or entity.” (25 U.S.C.S. § 2710(d)(1)(B).) As discussed,
post, by passing Proposition 1A the voters opened California to gaming under the IGRA.
Justice Franson’s recitation of the full scope of the IGRA’s gaming provisions shows this
authorization resolved whether off-reservation casinos would be permitted on lands not
subject to the concurrence provisions at issue here by allowing the Governor to compact
for, and thus approve, casinos on lands taken into trust at any time that are contiguous to
the boundaries of Indian reservations; on lands taken as part of a settlement of a land
claim; on lands obtained through restoration; and on lands held by an Indian tribe or
individual subject to restriction by the United States against alienation. (25 U.S.C.S.
§§ 2703(4); 2719(a), (b).) In light of the limited scope of the alleged facts in this case, it
is unnecessary to conclude Proposition 1A cannot support any form of concurring power,
particularly in the context of lands held in trust for non-gaming purposes which would
require a concurrence to permit future gaming. I take no position on that issue and
therefore cannot agree with Justice Franson’s broader conclusions.

2
In arguing the issues, the parties initially assumed the Governor was appropriately
exercising the authority granted under Proposition 1A to negotiate gaming compacts in
the first instance. In the supplemental briefing, appellants asserted the Governor lacked
authority to compact in the first instance. Due to the unique structure of California’s
constitutional provisions regarding casino-style gaming, I believe this later position is
correct.
OVERVIEW OF THE RELEVANT LAW
“The Indian Reorganization Act . . . authorizes the Secretary . . . to acquire land
and hold it in trust ‘for the purpose of providing land for Indians.’ ” (Carcieri v. Salazar
(2009) 555 U.S. 379, 381-382.) The operative statute for this authority is 25 United
States Code Service section 5108 (formerly, 25 U.S.C. § 465), which provides that the
“Secretary . . . is . . . authorized, in his [or her] discretion, to acquire through purchase,
relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or
surface rights to lands, within or without existing reservations, including trust or
otherwise restricted allotments[,] whether the allottee be living or deceased, for the
purpose of providing land for Indians.”
As with many federal laws, there are additional federal regulations delineating
how this authority will be exercised. In the case of accepting land into trust, these
regulations are detailed at 25 Code of Federal Regulations parts 151.1 through 151.15.
Under part 151.3, “land may be acquired for a tribe in trust status” in three
circumstances: (1) when the property is “located within the exterior boundaries of the
tribe’s reservation or adjacent thereto, or within a tribal consolidation area”; (2) when
“the tribe already owns an interest in the land”; or (3) when the Secretary . . . “determines
that the acquisition of the land is necessary to facilitate tribal self-determination,
economic development, or Indian housing.” With respect to accepting off-reservation
land offered into trust under the third basis, the Secretary is guided by part 151.11, which
lists several factors to consider, including the need of the tribe for the land, the purposes

3
for which the land will be used, the impact on the state from removing the land from the
tax rolls, potential conflicts of land use which may arise, the location of the land relative
to state boundaries and the boundaries of the tribe’s reservation, and, in the case where
land is being acquired for business purposes, the tribe’s plan specifying the anticipated
economic benefits associated with the proposed use. (25 C.F.R. § 151.11(a)-(c)
[incorporating 25 C.F.R. § 151.10(a)-(c) & (e)-(f)].)
Comparatively, the primary purpose of the Indian Gaming Regulatory Act (IGRA)
is “to provide a statutory basis for the operation of gaming by Indian tribes as a means of
promoting tribal economic development, self-sufficiency, and strong tribal governments.”
(25 U.S.C.S. § 2702(1).) Generally, class III gaming activities “shall be lawful on Indian
lands” only when they are authorized by the tribe and approved by the Chairman of the
Indian Gaming Commission, “located in a State that permits such gaming for any purpose
by any person, organization, or entity,” and “conducted in conformance with a Tribal-
State compact entered into by the Indian tribe and the State.” (Id., § 2710(d)(1).) Under
the IGRA, any tribe “having jurisdiction over the Indian lands upon which a class III
gaming activity is being conducted, or is to be conducted, shall request the State in which
such lands are located to enter into negotiations for the purpose of entering into a Tribal-
State compact.” (25 U.S.C.S. § 2710(d)(3).) The IGRA specifically defines “ ‘Indian
lands’ ” as all land within the limits of any Indian reservation and “any lands title to
which is . . . held in trust by the United States for the benefit of any Indian tribe . . . and
over which an Indian tribe exercises governmental power.” (25 U.S.C.S. § 2703(4).)
However, the IGRA excludes any land taken into trust after October 17, 1988,
from being used for gaming purposes unless certain exceptions apply. (25 U.S.C.S.
§ 2719(a).) Relevant here, land taken into trust after October 17, 1988, which is not
otherwise permitted to be used for gaming by the IGRA, may be converted to such use if
“the Secretary, after consultation with the Indian tribe and appropriate State and local
officials, including officials of other nearby Indian tribes, determines that a gaming

4
establishment on newly acquired lands would be in the best interest of the Indian tribe
and its members, and would not be detrimental to the surrounding community, but only if
the Governor of the State in which the gaming activity is to be conducted concurs in the
Secretary’s determination.” (25 U.S.C.S. § 2719(b)(1)(A).)
Like the Indian Reorganization Act (IRA), the IGRA is also the subject of multiple
federal regulations. (25 C.F.R. §§ 292.1-292.26.) Relevant to this appeal, the regulations
define the phrase “[n]ewly acquired lands” as “land that has been taken, or will be taken,
in trust for the benefit of an Indian tribe by the United States after October 17, 1988.”
(25 C.F.R. § 292.2.) The regulations allow the Secretary to streamline the process for
taking lands into trust for the purpose of allowing gaming to occur. The regulations
demonstrate, however, that taking land into trust and allowing gaming to occur remain
two separate processes. (See id., §§ 292.3(b) [“If the tribe seeks to game on newly
acquired lands that require a land-into-trust application . . . the tribe must submit a
request for an opinion to the Office of Indian Gaming.”]; 292.15 [“A tribe can apply for a
Secretarial Determination under § 292.13 for land not yet held in trust at the same time
that it applies under part 151 of this chapter to have the land taken into trust.”].) Indeed,
if in these dual processes, the Secretary notices an intent to take the land into trust for
gaming purposes, but the Governor of the affected state issues a written non-concurrence,
“the Secretary will withdraw that notice pending a revised application for a non-gaming
purpose” and the land will not be taken into trust. (Id., § 292.23(a)(2).) If the land is
already in trust or otherwise under control of the tribe, the tribe “may use the newly
acquired lands only for non-gaming purposes.” (Id., § 292.23(a)(1).)
California’s Constitution generally bans what is categorized as class III gaming
under the IGRA. (Cal. Const., art. IV, § 19, subd. (e) [“The Legislature has no power to
authorize, and shall prohibit, casinos of the type currently operating in Nevada and New
Jersey.”].) As our Supreme Court explained: “In 1984, the people of California amended
our Constitution to state a fundamental public policy against the legalization in California

5
of casino gambling of the sort then associated with Las Vegas and Atlantic City.” (Hotel
Employees & Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 589
(Hotel Employees).) This prohibition led to the downfall of the first attempt to permit
class III gaming on Indian land in California: Proposition 5. That proposition, which
attempted to grant a statutory procedure for authorizing gaming on Indian lands, was held
invalid3 in the face of California’s constitutional ban on casinos. (Hotel Employees,
supra, 21 Cal.4th at p. 615.) In response, the California Constitution was amended
through Proposition 1A.
Proposition 1A added article IV, section 19, subdivision (f), to the California
Constitution: “Notwithstanding subdivisions (a) and (e), and any other provision of state
law, the Governor is authorized to negotiate and conclude compacts, subject to
ratification by the Legislature, for the operation of slot machines and for the conduct of
lottery games and banking and percentage card games by federally recognized Indian
tribes on Indian lands in California in accordance with federal law. Accordingly, slot
machines, lottery games, and banking and percentage card games are hereby permitted to
be conducted and operated on tribal lands subject to those compacts.”
DISCUSSION
The core issue in this case is the effect of Proposition 1A. The parties and my
colleagues appear to agree that, if no state authority grants the Governor power to concur
in the Secretary’s determination, then the Governor has no authority to concur. (See
Confederated Tribes of Siletz Indians v. U.S. (9th Cir. 1997) 110 F.3d 688, 697-698
(Confederated Tribes) [noting the Governor acts under the authority of state law].)
My colleagues then split on whether the authority to concur in the Secretary’s
determination that newly acquired land is suitable for gaming is implied from the

3 With the exception of the final sentence of Government Code section 98005, not
relevant here.

6
Governor’s compacting authority under Proposition 1A, with the lead opinion avoiding
the impact of that split by relying on a later revocation of the compact by voters. This
analysis is one step too far down the road. Under the facts alleged in the complaint,
appellants could state a legitimate claim that the Governor exceeded any constitutionally
granted authority when concurring because, even if the power to concur was necessary to
or implied within the authority to compact, the Governor was not properly executing the
authority to compact.
Given that the Governor may only compact or concur if authorized under State
law, a point discussed more fully, post, and that without authorization to act the
California Constitution bars any conduct which would create Nevada- or New Jersey-
style casinos, the meaning of the law defining the Governor’s authority is of paramount
importance. (Hotel Employees, supra, 21 Cal.4th at p. 589; Confederated Tribes, supra,
110 F.3d at pp. 697-698.) The basic principles of statutory interpretation must therefore,
in the first instance, be applied to the scope of the Governor’s authority under Proposition
1A.
I. Grammatical Structure of the Governor’s Compacting Authority.
Proposition 1A grants a narrow and specific constitutional authority, providing the
Governor “is authorized to negotiate and conclude compacts, subject to ratification by the
Legislature, for the operation of slot machines and for the conduct of lottery games and
banking and percentage card games by federally recognized Indian tribes on Indian lands
in California in accordance with federal law.” (Cal. Const., art. IV, § 19, subd. (f).) By
applying some non-substantive simplifications,4 the following sentence diagram can be
generated:

4 These simplifications generally reduce the sentence to its non-redundant parts.
In this process, the ratification clause is irrelevant to the issue at hand and can be
completely eliminated. The “operation” and “conduct” phrases can be combined to
simply authorize the operation of slot machines, as the remaining games are redundant
with respect to the analysis. Likewise, “negotiate and conclude” can be expressed simply

7
This shows the Governor’s authority to negotiate compacts was substantially
limited. The Governor’s compacting authority was limited in both the scope of gaming
the compacts could grant, and the groups that could conduct that gaming, to “the
operation of slot machines and for the conduct of lottery games and banking and
percentage card games by federally recognized Indian tribes” (Cal. Const., art. IV, § 19,
subd. (f)), which corresponds roughly to the class III gaming permitted by the IGRA. It
was also limited as to where the Governor could compact for that gaming to occur,
namely “on Indian lands in California.” (Cal. Const., art. IV, § 19, subd. (f).) And it was
limited such that the compacts and restrictions must be considered “in accordance with
federal law.” (Ibid.) In this case, it is the restriction to compacting for operations on
Indian lands which precludes the Governor’s actions under the alleged facts of this case.
II. The Meaning of “Indian lands” as Used in Proposition 1A.
There is no direct definition of “Indian lands” in Proposition 1A. However, as is
apparent from the general legal framework governing this issue, the proposition is readily

as “negotiate.” And the copular phrase “is authorized to” can be succinctly stated as the
modal verb “may” without causing any harm to the section’s meaning. (Garner, Garner’s
Modern English Usage (4th ed. 2016) pp. 113 [“Verb phrases containing be-verbs are
often merely roundabout ways of saying something better said with a simple verb. . . . [¶]
. . . [¶] Many such wordy constructions are more naturally phrased in the present-tense
singular: . . . is authorized to (may) . . . .”], 221 [defining copula as “(1) a linking verb,
such as be, feel, or seem, that expresses a state of being rather than action; or (2) a link or
connection in general”].)

8
understood to reference the IGRA through its specific provisions, its reference to
allowing gaming operations “in accordance with federal law,” and its enactment
following the failure of Proposition 5. (See Flynt v. California Gambling Control Com.
(2002) 104 Cal.App.4th 1125, 1132-1137 [outlining the history of Indian gaming in
California].) Indeed, the analysis by the Legislative Analyst for Proposition 1A preceded
its explanation of how the changes proposed by Proposition 1A would affect gaming in
California with a detailed explanation of how gaming regulations under the IGRA
worked. Partially in light of this history, respondents concede that, in this appeal,
“article IV, section 19, subdivision (f)’s plain meaning is to authorize the Governor to
negotiate compacts for certain forms of otherwise illegal class III gaming to be conducted
on Indian lands in California pursuant to IGRA.” As intervener puts it, the “history of
Proposition 1A indicates that (1) the Governor may act ‘in accordance with federal law’
and (2) Indian tribes may conduct gaming on ‘Indian lands’ as that term is defined in
IGRA . . . .”
I agree with respondents that, given the history of Proposition 1A, the term
“Indian lands” should be understood to have the same meaning as used in the IGRA.
And, turning to the IGRA, there is, in fact, a definition of “Indian lands” to apply. As
noted above, this definition covers all land within the limits of any Indian reservation and
“any lands title to which is . . . held in trust by the United States for the benefit of any
Indian tribe . . . and over which an Indian tribe exercises governmental power.” (25
U.S.C.S. § 2703(4).) Under this definition, the Governor’s authority under
Proposition 1A is limited to compacting for gaming on lands held in trust by the United
States and over which an Indian tribe exercises governmental power.
III. Proposition 1A is a Conditional Authorization of Authority.
Given that the Legislature faces a blanket constitutional prohibition on authorizing
Nevada- and New Jersey-style casinos under article IV, section 19, subdivision (e), of the
state Constitution subject only to a limited compacting authority delegated to the

9
Governor for such gaming on trust lands pursuant to subdivision (f), the notion that the
Governor is vested with a broad authority to negotiate any compact which could
ultimately result in gaming on later-created Indian lands (and has the concurring authority
to enact those compacts) is difficult to defend. In support of this claim, respondents and
intervener argue that a restriction on the Governor’s authority requiring the existence of
“Indian lands” operates as an improper temporal limitation. As intervener further argues,
the disputed provision “is a limitation on the content of compacts, not the time during
which the Governor may negotiate and conclude the compacts.”
Although this argument generally contradicts the grammatical structure of the
sentence which naturally reads such that the prepositional phrase “on Indian lands”
modifies “for the operation” as opposed to “compacts,” in the abstract one could argue, as
respondents and intervener do, that the language is simply a limitation on where the
operation of slot machines must ultimately occur and not a limitation on the Governor’s
authority to act in the first instance. However, such an argument ignores a key
component of statutory construction – the contested terms must be understood both in the
context of the section as a whole and in its contemporary legal context. (Graham County
v. United States ex rel. Wilson (2005) 545 U.S. 409, 415 [explaining that “[s]tatutory
language has meaning only in context”]; Stevens, Essay: The Shakespeare Canon of
Statutory Construction (1992) 140 U.Pa. L.Rev. 1373, 1374-1381 [describing the first
three cannons of statutory interpretation as “ ‘Read the statute,’ ” “ ‘Read the entire
statute,’ ” and ensure “that the text be read in its contemporary context,”] italics omitted.)
In the broader context of article IV, section 19, subdivision (f) of the state
Constitution is a limited authorization of authority carved out of a blanket prohibition.
And in the broader social context, subdivision (f) was only enacted through Proposition
1A because other attempts to grant Indian tribes the authority to engage in gaming on
Indian lands had been overturned by the California Supreme Court. Thus, the suggestion
the Governor’s compacting authority is ever-present, provided that what is negotiated

10
satisfies the authorizing statute at the time of implementation, runs contrary to the
broader section’s text and the contemporary purpose for enacting Proposition 1A. The
disputed limitation on the Governor’s authority to act is not temporal but conditional.
In other words, the fact the Governor’s authority can only be exercised when the
conditions triggering that authority are met is not a temporal restriction on an existing
authority. Like other conditional powers, the Governor’s authority only exists upon
satisfying the condition needed to bring the right to act into existence. (Cf. Board of
Trustees v. Garrett (2001) 531 U.S. 356, 374 [“Congress is the final authority as to
desirable public policy, but in order to authorize private individuals to recover money
damages against the States, there must be a pattern of discrimination by the States which
violates the Fourteenth Amendment, and the remedy imposed by Congress must be
congruent and proportional to the targeted violation.”]; City of Boerne v. Flores (1997)
521 U.S. 507, 517-520 [positive grant of legislative power to enforce 14th Amend.
cannot be exercised unless record shows Congress is acting within that power by passing
appropriate legislation]; see Lac Courte Oreilles Band of Lake Superior Chippewa
Indians v. U.S. (7th Cir. 2004) 367 F.3d 650, 656-657 (Lac Courte Oreilles) [explaining
how the IGRA is a conditional statute, where the authority to act requires certain factual
predicates to exist before the Secretary may proceed (i.e. – the Secretary could not agree
to take land into trust on the assumption that, by the time the act was complete, the
Governor would concur)].) As an example, picture a pet-sitting business. Assume a
client says to the business, “You may take my dog for a walk on the sidewalk.” The most
natural reading of this command is that the business is not permitted to take the dog for a
walk unless that walk occurs on a sidewalk. If there is no sidewalk on which to walk,
the business lacks authority to take the dog. If the business prepares for a walk, believing
there is a sidewalk outside, it risks the possibility of being wrong and thus lacking
authority to take the dog on a walk. And if the business nonetheless proceeds to take the
dog on a walk, expecting a sidewalk to appear around the corner, the business has begun

11
the walk without authority. Here too, while the Governor may wish to proceed with a
compact, expecting Indian lands to appear prior to any gaming occurring, the Governor
will be acting without authority at all times there are no Indian lands because the
condition necessary to trigger the Governor’s authority to compact has not arisen.

IV. On the Facts Pled, the Governor Could Not Exercise His Compacting
Authority.
Having determined the initial limits of the Governor’s compacting authority under
Proposition 1A, the question becomes whether the complaint “has stated a cause of action
under any legal theory.” (Genesis Environmental Services v. San Joaquin Valley Unified
Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.) The relevant facts, as set
forth throughout the first amended complaint, are as follows:
On March 1, 2005, intervener applied to have “the Madera [s]ite taken into trust
for the purposes of conducting class III gaming.” By letter dated September 1, 2011, the
Assistant Secretary for Indian Affairs noted a favorable determination under the two-part
analysis required by 25 United States Code Service section 2719 had been reached and
requested the Governor concur. On August 31, 2012, the Governor responded by letter,
concurring. When the Governor issued this concurrence letter, “he also announced that
he had already negotiated a Compact with the Tribe.” The complaint then alleges the
Governor’s concurrence “exceeded his authority under state law.”
Although the focus of the complaint is clearly on the Governor’s power to concur,
the facts detailed above are sufficient to demonstrate the Governor exceeded the authority
granted under state law as alleged. This is so because the Governor was alleged to have
negotiated a compact for gaming on lands that were not “Indian lands.”5 At the time the

5 Further facts developed in the record show that the Secretary only took the Madera
property into trust after receiving the Governor’s letter. As expected, it did so “pursuant
to the [IRA], 25 [United States Code Service section 5108, formerly United States Code
section] 465, and its implementing regulations at 25 [Code of Federal Regulations p]art
151[.1 et seq.]” However, this fact did not necessarily need to be pled to state a cause of

12
Governor negotiated the compact and gave the disputed concurrence, the Secretary had
not accepted the Madera property into trust under the only authority permitting such
conduct, 25 United States Code Service section 5108. Without this acceptance, the land
cannot be considered as held in trust by the United States. (25 C.F.R. § 151.3 [“No
acquisition of land in trust status, including a transfer of land already held in trust or
restricted status, shall be valid unless the acquisition is approved by the Secretary.”].)
Because the land was not held in trust at the time the Governor negotiated the announced
compact, the Governor was not negotiating a compact for gaming on Indian lands and,
thus, exceeded any authority granted by Proposition 1A.
V. The Parties’ Framing of this Issue.
The parties have framed this issue in the context of the Governor’s power to
concur in light of the constitutional power to compact, disputing whether such power
would grant the Governor the ability to take lands from California for Indian use, thereby
usurping the Legislature’s role in setting public policy and resolving land use issues. As
appellants argued, the “primary issue in this appeal is whether the Governor has authority
to authorize the Secretary to create new Indian land in California for the purposes of
gaming by concurring in the Secretary’s two-part determination.” While respondents
generally worked to rebut appellants’ claims, they too suggested authorization in the
Governor to concur in the taking of lands into trust under the IGRA, writing: “When a
tribe seeks a compact for gaming on Indian lands that are not taken into trust through the
Secretary’s powers under 25 [United States Code Service section] 2719(b)(1)(A), a
gubernatorial concurrence is not required.” It further directed the issue to this point by

action, as the complaint directly alleged the Madera property was not in trust when the
application was made and did not indicate it had gone into trust at any point prior to the
Governor’s concurrence.

13
arguing that “[a]s long as Indian lands are established ‘in accordance with federal law,’
meaning IGRA, those lands become eligible for gaming.”6
I agree with the general idea that the historical exclusion of casino gaming in
California coupled with the history of Proposition 1A would not inform a voter that
Proposition 1A was granting to the Governor the concurring authority to convert non-
Indian land to Indian land in a manner which would authorize Nevada- or New Jersey-
style casinos.
As the summary of the various laws and regulations show, however, this framing
misses the mark. There is no provision of law in the IGRA which permits the Secretary
to take lands into trust. The trust determination is wholly driven by the provisions of the
IRA. And, while regulations may allow both proceedings to progress in tandem, the
authority to concur in a determination that “newly acquired lands” are suitable for
gaming purposes in no way grants the Secretary a right to take the land into trust under
the IRA. At most, such a concurrence would support the Secretary’s determination that
taking the land into trust would benefit the tribe because gaming would not be blocked at
a later date and, thus, the economic impacts of the decision would be clearer.
All parties appear to recognize this fact, at least implicitly, at some point in their
briefing. For example, respondents explain in their summary of the law, that while “the
IRA governs federal action to take land into trust for Indian tribes, IGRA governs a
federal decision to allow such trust land’s use” for gaming purposes. Likewise,

6 To intervener’s credit, it generally kept the issues separate (despite wrongly
claiming that 25 U.S.C.S. § 2703(4) defines “ ‘Indian lands’ ” to include “lands acquired
through two-part determination”) contending “the Governor does not unilaterally make
new policy or exercise plenary power to create new Indian land when concurring in the
Secretary’s determination” while arguing the trial court correctly concluded “the
California Constitution grants the Governor authority to concur in the Secretary of the
Interior’s two-part determination to permit gaming on Indian lands acquired by the
Secretary after 1988 . . . .” Intervener does not, however, explain how the Madera
property qualified as “Indian lands” under the facts of this case.

14
intervener clearly explains that the IRA “governs the federal government’s acquisition of
land for the benefit of Indian tribes” while the IGRA aims only to “facilitate ‘the
operation of gaming by Indian tribes.’ ” This split in framing and understanding appears
to arise from a conflict that may be unique to California and derives from California’s
start and stop history in regulating Indian gaming.
In the federal regulatory scheme, the Secretary is permitted to conduct analyses
with respect to the suitability of gaming on “newly acquired lands.” (25 U.S.C.S.
§ 2719(b)(1)(A); 25 C.F.R. § 292.13.) By regulatory definition, such lands include not
only those already held in trust, but also those that “will be taken” into trust. (25 C.F.R.
§ 292.2.) In contrast, California’s Proposition 1A arose in part as a mechanism to ratify
several previously negotiated compacts. (California Commerce Casino, Inc. v.
Schwarzenegger (2007) 146 Cal.App.4th 1406, 1412.) In doing so, it approved the
Governor’s prior unauthorized compacting, weakened the constitutional restriction on the
Legislature’s authority to permit Nevada- and New Jersey-style casinos, and delegated
compact power to the Governor, subject to ratification by the Legislature. As part of this
change, Proposition 1A tightly limited the Governor’s future authority to compact such
that he could only negotiate for gaming “on Indian lands.” (Cal. Const., art. IV, § 19,
subd. (f).) In this way, California’s Constitution was amended to grant the Governor a
right to compact which covers only half of the potential proceedings occurring under the
federal regulatory scheme.7, 8

7 It appears appellants may have belatedly recognized this fact in their reply brief.
There appellants complained respondents’ argument that the “concurrence was
authorized because the concurrence is the mechanism under federal law by which the
land in question here would become Indian land on which gaming could occur” was
“circular,” explaining the “existence of Indian land on which gaming can occur is the
precondition to the Governor’s authority to negotiate a compact pursuant to which such
gaming on that land would be regulated.” Appellants, however, fully embraced this
limitation in their supplemental briefing.

15
It must be noted that the Seventh Circuit, in Lac Courte Oreilles, supra, 367 F.3d
at page 656, wrote, “Unless and until the appropriate governor issues a concurrence, the
Secretary of the Interior has no authority under [25 United States Code Service section]
2719(b)(1)(A) to take land into trust for the benefit of an Indian tribe for the purpose of
the operation of a gaming establishment.” While this statement would appear to
contradict the prior analysis, I find it distinguishable on at least three grounds.
First, the issue under consideration in Lac Courte Oreilles was whether the
IGRA’s concurrence provision was an unconstitutional violation of the separation of
powers doctrine. (Lac Courte Oreilles, supra, 367 F.3d at p. 655.) The court’s
understanding of the basis for invoking the request for concurrence, as authority to take
the land into trust or authority to permit gaming on newly acquired land, was therefore
immaterial to the resolution, rendering this analysis dicta. Indeed, the court used the
above statement in order to analogize the legislation to other examples of “contingent
legislation” which had been held constitutional. (Id. at p. 656.)
Second, the factual scenario considered in Lac Courte Oreilles was different in a
material way. In Lac Courte Oreilles, the Governor had declined to concur in the
Secretary’s findings, precluding the requested authorization for gaming and triggering a
dispute concerning the Governor’s authority to affect federal law. (Lac Courte Oreilles,

8 I recognize that the interplay of the various regulatory schemes creates the
potential for significant gubernatorial power over the placement of class III gaming
facilities within California should the Governor have authority to concur once lands are
Indian lands. While the Governor has no direct role in determining which lands are taken
into trust, there appears to be no legal reason why the Secretary could not take lands into
trust for the purpose of providing future revenue as a gaming location or other similar
reason. Once the lands are in trust, the Governor would appear to have both the power to
negotiate compacts under state law and the power to preclude gaming by withholding his
necessary concurrence under federal law, thereby precluding gaming under a federal
compact. Whether this was the desired outcome of the electorate when passing
Proposition 1A is not before us. Regardless, it is the province of the Legislature to
resolve any unintended consequences.

16
supra, 367 F.3d at p. 653.) As such there was no detailed discussion of Wisconsin’s laws
or policies with respect to the Governor’s authority to act. In contrast, here the Governor
concurred with the Secretary, triggering a different dispute concerning whether, under
California law, the Governor had the authority to issue that concurrence.
Finally, and most importantly, the court’s statement in Lac Courte Oreilles is not
accurate. There is no technical reason under the law, provided the proper Administrative
Procedure Act (APA) requirements are met, that the Secretary could not take land into
trust for the purpose of gaming without the Governor’s concurrence.9 This is so because
the authority to act arises under 25 United States Code Service section 5108 and not
section 2719. Should the Secretary so act and survive the likely challenge under the
APA, however, 25 United States Code Service section 2719 would still bar class II or III
gaming on the property unless and until an exception applied – such as the Governor’s
concurrence provision. Thus, in the context of a dispute arising when a request for a trust
determination was made under 25 United States Code Service section 5108 at the same
time as a request for a determination that the newly acquired property is suitable for
gaming under 25 United States Code Service section 2719, it would be understandable,
though not wholly correct, to claim the property could not be taken into trust for the
purpose of gaming unless the Governor concurred. To the extent Lac Courte Oreilles
suggests the Governor’s concurrence is required to take land into trust, I do not find it
persuasive authority.
VI. The Governor’s Executive Authority.

9 This is particularly true if the land is taken into trust for class I gaming, which is
not regulated by the IGRA and thus not subject to the post-1988 Indian land gaming
prohibition. (See 25 U.S.C.S. §§ 2710(a)(1) [“Class I gaming on Indian lands is within
the exclusive jurisdiction of the Indian tribes and shall not be subject to the provisions of
this act.”]; 2719(a) [“Except as provided in subsection (b), gaming regulated by this act
shall not be conducted on lands acquired by the Secretary . . . .”].)

17
The Governor’s concurrence could still be accepted as valid in this case if the
Governor held the authority to concur as a power inherent to the chief executive of the
state. I concur with and join Justice Franson’s conclusion that no such authority exists. I
find persuasive his analysis showing that the California Constitution expressly bans the
creation of Nevada- or New Jersey-style casinos. (Cal. Const., art. IV, § 19, subd. (e).)
This general prohibition demonstrates forcefully that the Governor does not
possess the power to act in a manner which would result in the authorization to operate
Nevada- or New Jersey-style casinos within California absent some express grant of that
right. While it is true the Governor’s concurrence does not, by itself, create permission to
operate such casinos in California, that authority being expressly found only in the
Secretary, there can be no doubt the practical effect is the same. (See Lac Courte
Oreilles, supra, 367 F.3d at p. 663 [rejecting argument that impact of gubernatorial
inaction violated federalism principles because federal government could grant states
input into execution of federal law]; Confederated Tribes, supra, 110 F.3d at p. 698
[noting that Secretary must comply with guidelines expressed by Congress and that
Governor plays limited role by concurring once the Secretary has determined gaming
would be appropriate].) At the time the Secretary requests concurrence, a preliminary
determination that operation of class III gaming on the identified lands is appropriate has
already been reached. (See 25 C.F.R. § 292.13; Lac Courte Oreilles, supra, 367 F.3d at
p. 663 [explaining that due to the transparent nature of the IGRA, “if the Secretary of the
Interior issues a favorable finding, but ultimately denies the application, the constituents
will gather that the governor likely declined to issue a concurrence”].) Given that the
California Constitution expressly forbids the authorization of such gaming, and that the
exception created by Proposition 1A only applies to “Indian lands,” there can be no

18
inherent authority in the Governor to concur in the conclusion that gaming may occur on
“newly acquired lands” which are not already in trust.10
I also find this constitutional prohibition is confirmation that the underlying
authority to concur in the Secretary’s determination to authorize Nevada- or New Jersey-
style casinos on newly acquired lands is inherently and wholly legislative. By expressly
removing the authority to authorize Nevada- and New-Jersey style casinos from within
the broad plenary powers of the Legislature, then placing partial authority to compact for
such casinos with the Governor, subject to express ratification from the Legislature, the
California Constitution leaves no doubt that the authority to authorize such casinos
cannot exist within the Governor’s inherent executive authority. During our
consideration of this case, another court of appeal reached a contradictory result in United
Auburn Indian Community of Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36
(United Auburn). United Auburn reviewed three general legislative spheres and found
the Governor’s concurring power did not fall exclusively within any of those three. (Id.
at pp. 47-51.) Then, relying on Lac Courte Oreilles, the court determined the concurring
power had some “[e]xecutive [c]haracteristics,” while failing to expressly call it an
executive power, because it allegedly involves the implementation of existing Indian
gaming policy in California. (United Auburn, supra, 4 Cal.App.5th at pp. 51-52.) I am
not persuaded by this analysis.

10 Due to the expressly stated policy against such gaming, this is not a case, as
intervener suggests, where the Governor is acting in the face of silence. The People of
California amended the state Constitution in a manner that excludes any assertion of
inherent authority and, indeed, respondents do not rely on this justification in their own
briefing. For similar reasons, I find intervener’s reliance on United States v. 1216.83
Acres of Land (Wash. 1978) 574 P.2d 375, 379 misplaced. Unlike 1216.83 Acres of
Land, where broad powers were granted to the Governor to control the consenting agency
and its policies, the policy outlined in California’s Constitution is directly opposed to the
Governor’s conduct in this case, limiting his ability to act.

19
As the court in United Auburn noted, case law in California stands “for the
unremarkable proposition that the Governor may not exercise a legislative power without
express authority from the Legislature.” (United Auburn, supra, 4 Cal.App.5th at p. 47.)
California’s constitutional ban on the legislative authority to authorize gaming and the
later amendment granting limited powers to the Governor in that context demonstrates
forcefully that this proposition is the controlling law. Yet, United Auburn makes no
reference to this history or its implication.
Similarly, United Auburn’s reliance on Lac Courte Oreilles to conclude
concurring has an executive characteristic under California law is misplaced. As United
Auburn noted, Lac Courte Oreilles found extensive gaming regulations in Wisconsin
meant there was a general policy, consistent with the Wisconsin Constitution, which the
Governor was simply enforcing. (United Auburn, supra, 4 Cal.App.5th at pp. 51-52.)
Lac Courte Oreilles conducted its analysis by following an earlier United States Supreme
Court case considering California’s authorization of bingo. In that case, California v.
Cabazon Band of Mission Indians (1987) 480 U.S. 202 (Cabazon), the Supreme Court
noted that California allowed several forms of gambling to occur, including bingo and the
card games being operated by the tribe, but had sought to criminalize high stakes,
unregulated bingo. (Id. at p. 211.) In the context of these facts, the Supreme Court found
“California regulates rather than prohibits gambling in general and bingo in particular”
and, thus, could not enforce its stricter bingo regulations on reservations. (Id. at pp. 211-
212.)
In contrast to both Lac Courte Oreilles and Cabazon, there is no regulation of
Nevada- and New Jersey-style gaming under California law generally. Rather, the
general rule is a constitutional prohibition on such actions. As such, if not for
Proposition 1A there would be no doubt that California prohibited rather than regulated
such gaming and, thus, the Governor could exercise no executive authority in this area.
(See Artichoke Joe’s California Grand Casino v. Norton (2003) 353 F.3d 712, 721

20
[noting that post-Cabazon “the general criminal jurisdiction that California exercises
under Public Law No. 280 allowed California to prohibit gaming for Indian tribes, if the
scheme was prohibitory rather than regulatory”].) Yet, in the face of federal regulations
permitting gambling on Indian lands, California has granted a limited exception to this
general prohibition which permits Nevada- and New Jersey-style gaming operations on
land already taken from the State to benefit Indian tribes. Such a limited exception to the
general prohibition cannot be understood as a switch from prohibition to regulation given
the broader constitutional ban. Indeed, on the federal side of the analysis, California’s
grant of limited gaming rights is generally not considered to invoke a broader grant of all
gaming rights under federal law. (Rumsey Indian Rancheria of Wintun Indians v. Wilson
(1994) 64 F.3d 1250, 1258 [“IGRA does not require a state to negotiate over one form of
Class III gaming activity simply because it has legalized another, albeit similar form of
gaming . . . . In other words, a state need only allow Indian tribes to operate games that
others can operate, but need not give tribes what others cannot have.”] fn. omitted.)
California has determined not only that the ability to authorize Nevada- and New Jersey-
style casinos is a legislative function, but has constitutionalized a general prohibition to
such gaming activities subject to a single regulatory exception available where the land in
question is “Indian land” and thus not subject to the general California constitutional
prohibition. This is not a basis for broad gubernatorial authority.
VII. Remaining Issues.
I concur and join in Justice Smith’s determination the claims against certain
respondents, the Attorney General, the California Gambling Control Commission, the
Bureau of Gambling Control and the State of California are not moot for the reasons he
states.
I do not join in the guidance asserted in section VII of Justice Franson’s opinion. I
take no position on how the differing views in our opinions should affect further

21
proceedings upon remand. The issues are complex and intertwined with federal law.11
The parties and the trial court are in the best position to work through the import of our
disposition.
VIII. Conclusion.
In summary, I conclude the demurrers should have been overruled. Constitutional
authority to negotiate a tribal-state compact authorizing class III gaming requires that the
land at issue be Indian land. At the time of this tribal-state compact, the 305-acre parcel
in Madera was not Indian land. On the facts pled by appellants, the Governor exceeded
his constitutional authority.

_____________________
Detjen, J.

11 I do not share Justice Franson’s concerns that an inability to negotiate prior to land
becoming Indian lands “might be considered a violation of IGRA’s requirement for good
faith negotiations.” (Conc. & dis. opn. of Franson, J., post, at p. 67, fn. 29.) Proposition
1A grants the Governor compacting authority over Indian lands. And the federal scheme
does not mandate any negotiations until the land at issue is under tribal control (i.e., is
Indian lands). (See 25 U.S.C.S. § 2710(d)(1)(A)(i) [making class III gaming lawful only
upon passage of ordinance by Indian tribe “having jurisdiction over such lands”]; id.,
(d)(3)(A) [requiring state to negotiate in good faith upon receipt of request from any
“Indian tribe having jurisdiction over the Indian lands upon which a class III gaming
activity is being conducted, or is to be conducted”]; see also Citizens Against Casino
Gambling v. Chauduri (2d Cir. 2015) 802 F.3d 267, 279 [“IGRA requires that any tribe
seeking to conduct gaming on land must have jurisdiction over that land.”].)

22
FRANSON, J., Concurring and Dissenting.
I concur in all parts of the disposition in the lead opinion and agree with its
resolution of some of the legal questions presented. I write separately to identify the
legal issues that I have resolved differently and the points on which I agree.
This appeal addresses the controversial issue of off-reservation casinos1 and
whether the Governor of California has the authority to approve off-reservation gambling
on previously nontribal lands. The specific question of California law is whether the
Governor has the constitutional authority to concur in the Secretary s determination under
IGRA that a proposed off-reservation casino “would be in the best interest of the Indian
tribe and its members” and “would not be detrimental to the surrounding community,”
thereby allowing off-reservation gambling. (25 U.S.C. § 2719(b)(1)(A).) The answer to

1 For purposes of this opinion, I use the phrase “off-reservation casinos” to mean
casinos located on “after-acquired trust land” for which the Secretary of the Interior’s
(Secretary) two-part determination and the Governor’s concurrence is required before
casino-type gambling may proceed at that location.
I use the phrase “after-acquired trust land” to refer to land acquired by the United
States in trust for the benefit of an Indian tribe after October 17, 1988. That date is the
effective date of the Indian Gaming Regulatory Act of 1988. (IGRA; 25 U.S.C. § 2701 et
seq.; cf. 25 U.S.C. § 2719(b)(1)(A) [statute uses term “newly acquired lands”].) The
phrase “after-acquired trust land” is broad and covers both “off-reservation land” and
“nonconcurrence trust land.”
I use the phrase “off-reservation land” to mean after-acquired trust land for which
the Secretary’s two-part determination and the Governor’s concurrence is required before
casino-type gambling may proceed at that location. Accordingly, the phrase “off-
reservation casino” refers to a casino proposed or operating on off-reservation land. The
terms “off-reservation land” and “off-reservation casino” are significant in this appeal
because the site in question is off-reservation land and, thus, the North Fork Rancheria of
Mono Indians’s (North Fork) proposed casino is an off-reservation casino.
I use the phrase “nonconcurrence trust land” to refer to after-acquired trust land
that is not “off-reservation land” but might become the site for a casino under provisions
of federal law that do not require a Governor’s concurrence. This type of land is not
involved in this appeal and the term is defined for use in providing background about
IGRA. (See pt. I.D.6., post.)
this question requires us to interpret Proposition 1A, which the voters passed in
November 2000 to modify the California Constitution’s prohibition of casinos.
My approach to interpreting voter initiatives that amend the California
Constitution is simple. The initiative process functions best when voters are (1) informed
that the initiative addresses a controversial issue with a wide range of impacts for
Californians and (2) told how the initiative resolves that controversial issue. When voters
are so informed, courts can “give effect to the voters’ formally expressed intent, without
speculating about how they might have felt concerning subjects on which they were not
asked to vote.” (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920,
930 (RagingWire).) Furthermore, when the voter initiative creates a specific exception to
a general constitutional prohibition, the exception should not be expanded and the
prohibition reduced to allow an activity on which the electorate was not asked to vote.
Using this approach to interpret Proposition 1A leads to the conclusion that it does
not authorize the Governor to concur. First, the text of Proposition 1A plainly omits any
power to concur in the Secretary’s two-part determination and, thus, does not include a
formally expressed intent to grant such a power. Second, an implied grant of that power
is not “necessary” under the principles of California law that define when an implication
is necessary. Third, the wording of Proposition 1A and the materials in the ballot
pamphlet did not inform the average voter that approving the constitutional amendment
would grant the Governor the power to concur or, more generally, would grant the
Governor authority to veto or approve a proposed off-reservation casino.
In sum, expanding Indian gaming to off-reservation locations was and is a
controversial issue of public policy with a wide range of consequences for Californians.
It is implausible that the average voter would have understood the controversy was being
resolved by an undisclosed, implied grant of the authority to concur. Simply put, there is
absolutely nothing of substance in the historical record, the language or history of

2.
Proposition 1A, or the ballot materials to show that the electors were asked to vote on a
grant of the authority to concur.
Therefore, plaintiffs stated a cause of action on the ground the Governor has no
authority to concur in a federal two-part determination relating to an off-reservation
casino. I concur in the reversal of the judgment of dismissal and the conclusion that
plaintiffs have stated a cause of action for a writ of mandate to set the concurrence aside
on the ground that it is unsupported by legal authority. My interpretation of
Proposition 1A also results in the conclusion that plaintiffs have stated a cause of action
for declaratory relief stating the concurrence was void ab initio.
PROCEEDINGS
The procedural history that led to the judgment of dismissal challenged in this
appeal is described in the lead opinion. The main issue raised in this appeal relates to the
Governor’s concurrence power. The trial court decided an implied concurrence power
existed and the initial briefing in this appeal addressed whether an implied concurrence
power was granted by Proposition 1A. Accordingly, this opinion addresses whether an
implied concurrence power exists.2
DISCUSSION
I. HISTORICAL CONTEXT FOR PROPOSITION 1A
Ascertaining the meaning of a voter initiative such as Proposition 1A requires an
examination of the words and grammar of the initiative, along with the history of the
initiative placed in the wider historical circumstances of its enactment. (B.H. v. County of

2 Under the ripeness branch of California’s doctrine of justiciability, I conclude the
first amended complaint and matters judicially noticed present a set of facts sufficient to
frame the issue of whether the Governor was granted an implied concurrence power.
(See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170
[ripeness and justiciability].) Therefore, I conclude the legal question of whether
Proposition 1A granted the Governor an implied power to concur is ripe and,
accordingly, it is not premature to resolve that issue of constitutional interpretation.

3.
San Bernardino (2015) 62 Cal.4th 168, 190 [wider historical circumstances]; People v.
Manzo (2012) 53 Cal.4th 880, 886 [history and background of provision]; see pt. III.B.3.,
post.) The wider historical circumstances for the adoption of Proposition 1A in 2000
include events that defined the United States’s approach to the sovereignty of tribal lands
and, more recently, the regulation of Indian gaming by federal, state and tribal
governments.
A. Federal Constitution and Sovereignty
1. Federal Constitution
Policies, legislation and litigation involving the possession of Indian land and the
regulation of activity on that land predates the American Revolution. (See generally
Worthen & Fransworth, Who Will Control the Future of Indian Gaming? “A Few Pages
of History Are Worth a Volume of Logic” (1996) 1996 B.Y.U. L.Rev. 407, 412–417
(Worthen).) I pick up the historical trail at the Constitutional Convention, which
considered the question of whether states should have the authority to enter into treaties
and wars with Indians. (Id. at p. 419.) The convention did not produce a clear definition
of the roles held by the federal government and the state governments in matters
involving Indian tribes. Instead, the United States Constitution provides that Congress
shall have the power “[t]o regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes.” (U.S. Const., art. I, § 8, cl. 3.) This provision
is referred to as the Indian commerce clause. (Agua Caliente Band of Cahuilla Indians v.
Superior Court (2006) 40 Cal.4th 239, 249 (Agua Caliente).)
The ambiguous power to regulate commerce with the Indian tribes could be
interpreted to grant the federal government exclusive control of relations with Indians
residing on Indian lands, but some objected to that interpretation based on concerns about
state sovereignty and the creation of enclaves of exclusive federal control within the
states. (Worthen, supra, 1996 B.Y.U. L.Rev. at p. 419.) Two pragmatic considerations

4.
underlying the state sovereignty issue were (1) the denial of access to natural resources
found on tribal lands within a state and (2) the creation of a haven for fugitives from state
law. (Id. at pp. 419–420.) The latter concern is echoed in present day measures designed
to prevent organized crime from infiltrating gambling on Indian reservations.
2. State Sovereignty Over Indian Lands
In 1832, the ambiguity in the Indian commerce clause relating to the sovereignty
of states in their dealings with Indian tribes was addressed by Chief Justice Marshall in
Worcester v. Georgia (1832) 31 U.S. 515 (Worcester). The court struck down Georgia
laws that asserted jurisdiction over Cherokee lands within Georgia’s borders. (See
Worthen, supra, 1996 B.Y.U. L.Rev. at p. 421.) The court concluded the powers
conferred on Congress by the United States Constitution “comprehend all that is required
for the regulation of our intercourse with the Indians. They are not limited by any
restrictions on their free actions.” (Worcester, supra, at p. 559.) In short, the court
determined that “the federal government and not the States had authority over the Indian
Tribes.” (Worthen, supra, at pp. 420–421.)
3. Indian Sovereignty
The nature of Indian sovereignty had been address by the United States Supreme
Court the previous year in a case related to Worcester. (Cherokee Nation v. Georgia
(1831) 30 U.S. 1.) The high court described Indian tribes as “domestic dependent
nations,” which provided Indian tribes with some sovereignty, but distinguished them
from foreign states or independent nations. (Id. at pp. 17, 19–20.) The court stated, “they
are in a state of pupilage. Their relation to the United States resembles that of a ward to
his guardian.”3 (Id. at p. 17.)

3 This language, which makes one cringe today, suggests a policy of assimilation.
Assimilation of Indians into the United States’s European-based society was the federal
policy pursued until the Great Depression.

5.
Indian sovereignty also was discussed in Worcester, supra, 31 U.S. 515, and that
discussion, which had traced the foundation of tribal sovereignty from colonial times,
was summarized recently by the California Supreme Court:

“The court explained that since the arrival of the colonists on American
soil, the tribes were treated as dependant sovereign nations, with distinct
political communities under the protection and dominion of the United
States. (Worcester, supra, 31 U.S. at pp. 549–561.) The tribes possessed
territorial and governance rights with which no state could interfere. (Id. at
p. 561.)” (Agua Caliente, supra, 40 Cal.4th at p. 247.)
As to the source of tribal sovereignty, the United States Supreme Court has
addressed whether it was delegated to the tribes by Congress or is inherent in the tribe.
(United States v. Wheeler (1978) 435 U.S. 313, 322.) The court stated that Indian tribes
are “subject to ultimate federal control,” but “remain ‘a separate people, with the power
of regulating their internal and social relations.’” (Ibid.) Thus, Indian tribes retained
some inherent powers of sovereignty, while some aspects of sovereignty were divested
by incorporation within the territory of the United States, other aspects were yielded by
treaty, and still others were removed by Congress. (Id. at p. 323.) “The sovereignty that
the Indian tribes retain is of a unique and limited character. It exists only at the
sufferance of Congress and is subject to complete defeasance.” (Ibid.)
4. Summary of Principles of Sovereignty
Three main points about sovereignty are relevant to this appeal. First, the federal
government is placed above Indian tribes in the legal hierarchy—that is, tribal
sovereignty is dependent on, and subordinate to, the federal government. (California v.
Cabazon Band of Mission Indians (1987) 480 U.S. 202, 207 (Cabazon).) Second, Indian
tribes retain some, but not all, attributes of sovereignty over their members and their
territory, but that sovereignty is subject to Congress’s plenary control. (Ibid.; United
States v. Wheeler, supra, 435 U.S. at p. 323.) Third, state laws apply to tribal Indians on
their reservations if and only if Congress has expressly so provided. (Cabazon, supra, at

6.
p. 207.) Thus, states have no authority to regulate Indian activities on reservation land,
except where Congress has granted that authority.
These points demonstrate the dominant role Congress plays (1) in Indian affairs
and (2) in defining what attempts by state governments to control activities of Indian
tribes are valid. With this background, I turn to the statutes Congress has adopted to
govern (1) the acquisition of new land for the benefit of Indian tribes for gaming and
nongambling purposes and (2) Indian gambling in general.
B. Indian Reorganization Act of 1934 (IRA)
1. General Provisions
The passage of IRA marked a dramatic shift in the federal government’s Indian
policy, as the failure to assimilate tribal members into American society was recognized.
(Worthen, supra, 1996 B.Y.U. L.Rev. at pp. 429–430.) The IRA terminated allotments
of land to individual Indians (which had reduced reservation land), authorized the
incorporation of Indian tribes, and granted Indian tribes the right to organize by adopting
constitutions and bylaws. (25 U.S.C. §§ 5101, 5123, 5124; see County of Yakima v.
Confederated Tribes & Bands of the Yakima Indian Nation (1992) 502 U.S. 251, 255
[IRA brought an abrupt end to federal policy of allotment]; Washburn, Agency Conflict
and Culture: Federal Implementation of the Indian Gaming Regulatory Act by the
National Indian Gaming Commission, the Bureau of Indian Affairs, and the Department
of Justice (2010) 42 Ariz. St. L.J. 303, 329 (Washburn) [IRA’s purpose was to reject
allotment policies and halt erosion of tribal land base].) Although federal policy
oscillated back towards assimilation in the 1950’s, it returned to Indian autonomy and
self-determination under President Nixon. (See Clarkson & Murphy, Tribal Leakage:
How the Curse of Trust Land Impedes Tribal Economic Self-Sustainability (Spring 2016)
12 J.L. Econ. & Policy 177, 187.) Throughout that time, the IRA’s provisions relating to
land acquisition remained in effect.

7.
2. Acquisition of Land: The Fee-to-trust Process
Under section 5 of the IRA, the Secretary is authorized to acquire land, “within or
without existing reservations, … for the purpose of providing land for Indians.” (25
U.S.C. § 5108.) One commentator described this provision of the IRA as giving the
Secretary broad authority “to acquire lands for Indian tribes by virtually any voluntary
means.” (Washburn, supra, 42 Ariz. St. L.J. at p. 329, fn. omitted.)
Section 5 of IRA also provides: “Title to any lands or rights acquired … shall be
taken in the name of the United States in trust for the Indian tribe … for which the land is
acquired, and such lands or rights shall be exempt from state and local taxation.” (25
U.S.C. § 5108.) Land held in trust (1) may not be sold or otherwise alienated without an
act of Congress and (2) is exempt from state and local taxation. (Sheppard, Taking
Indian Land Into Trust (1999) 44 S.D. L.Rev. 681, 682–683.) The acquisition of land
and the holding of title in trust for the benefit of an Indian tribe is sometimes referred to
as the fee-to-trust process. (See generally Comment, Extreme Rubber-Stamping: The
Fee-To-Trust Process of the Indian Reorganization Act of 1934 (2012) 40 Pepperdine
L.Rev. 251.)
Tribes may directly acquire real estate and hold it in fee simple. (Cass County v.
Leech Lake Band of Chippewa Indians (1998) 524 U.S. 103, 111, 115.) However, land
acquired in that manner, even if former reservation land, is subject to state and local
taxation. (Id. at p. 115)
The federal regulations governing the acquisition of land by the United States in
trust for Indian tribes are contained in part 151 of title 25 of the Code of Federal
Regulations. Under these regulations, “land may be acquired for a tribe in trust status” in
three circumstances, including when the Secretary “determines that the acquisition of the
land is necessary to facilitate tribal self-determination, economic development, or Indian
housing.” (25 C.F.R. § 151.3.) Land to be used for Indian gaming falls under this
provision because gaming promotes self-determination and economic development. The

8.
Secretary’s decision whether to take land into trust to facilitate tribal self-determination
and economic development involves the consideration of several factors, including the
need of the tribe for the land, the purposes for which the land will be used, the impact on
the state from removing the land from the tax rolls, potential conflicts of land use that
may arise, the location of the land relative to state boundaries and the boundaries of the
tribe’s reservation, and, in the case where land is being acquired for business purposes,
the tribe’s plan specifying the anticipated economic benefits associated with the proposed
use. (25 C.F.R. § 151.11, subds. (a)–(c); see 25 C.F.R. § 151.10, subds. (a)–(c) & (e)–
(f)].)
IGRA, discussed below, addresses the process the Secretary undertakes to
authorize class III gaming on trust lands, but contains no provision authorizing the
Secretary to take land into trust. Consequently, the Secretary’s statutory authority for
taking land into trust derives from IRA. (Stand Up for California! v. U.S. Dept. of the
Interior (D.D.C. Sept. 6, 2016 ___ F.Supp.3d ___, ___ [2016 U.S. Dist. Lexis 119649,
p. 151].)
To summarize, IRA is the source of the federal authority for taking land into trust
for Indian tribes. This authority is subject to further restrictions when a tribe’s fee-to-
trust application under IRA proposes to use the land for gaming purposes. Those
additional restrictions can be found in IGRA, the federal gaming legislation discussed
below. (See pt. I.D., post.) IGRA and IRA define some of the requirements that must be
met before an Indian tribe can build a casino on after-acquired trust lands. These federal
requirements delineate Congress’s approach to the controversial issue of casinos on after-
acquired trust lands.

9.
C. Developments in the 1980’s
1. Budget Cuts
Shortly after taking office in January 1981, President Reagan moved to abolish or
reduce the funding of a variety of social programs. (Ducheneaux, The Indian Gaming
Regulatory Act: Background and Legislative History (2010) 42 Ariz. St. L.J. 99, 110–
111 (Ducheneaux).) The cuts in federal funding of programs administered by the Bureau
of Indian Affairs (BIA) and the Indian Health Service affected tribal members living on
reservations. (Id. at p. 111.) Indian tribes, lacking a sound tax base or thriving economy,
searched for economic development activities and, partially as the result of federal court
decisions, identified gaming (particularly bingo) as a potential source of revenue. (Ibid.)
2. Lower Court Decisions Relating to Indian Gaming
Part of the historical context for IGRA was established by court decisions
involving attempts by state or county governments to regulate bingo on Indian
reservations. The most important of these cases, Cabazon, supra, 480 U.S. 202, was
decided by the United States Supreme Court in February 1987, shortly after Senator
Daniel K. Inouye introduced the Indian gaming legislation that eventually became IGRA.
(Boylan, Reflections on IGRA 20 Years After Enactment (2010) 42 Ariz. St. L.J. 1, 4
(Boylan); see Pub.L. No 100-497 (Oct. 17, 1988) 102 Stat. 2467.) The legal environment
at the time of the Cabazon decision included the following three cases upholding the
legality of on-reservation bingo. (See Clinton, Enactment of the Indian Gaming
Regulatory Act of 1988: The Return of the Buffalo to Indian Country or Another Federal
Usurpation of Tribal Sovereignty? (2010) 42 Ariz. St. L.J. 17, 42 (Clinton) [Cabazon
“constituted the culmination of the long train of federal judicial analysis of Indian
commercial gaming”].)
In Seminole Tribe of Florida v. Butterworth (S.D.Fla. 1980) 491 F.Supp. 1015
(Seminole), an Indian tribe successfully sought to permanently enjoin a county sheriff
from enforcing Florida’s bingo statute on the tribe’s land. (Id. at p. 1016.) In Oneida

10.
Tribe of Indians v. Wisconsin (W.D.Wisc. 1981) 518 F.Supp. 712 (Oneida), an Indian
tribe filed a civil action and obtained declaratory relief stating that a Wisconsin statute
relating to bingo operations could not be lawfully enforced on its reservation. (Id. at p.
713.) In Barona Group of Capitan Grande Band of Mission Indians v. Duffy (9th Cir.
1982) 694 F.2d 1185 (Barona), the Ninth Circuit of the United States Court of Appeals
held that county and state laws could not be applied to bingo conducted by the tribe on its
reservation in San Diego County, California. (Id. at p. 1190.)
These decisions employed the same method of analysis. The courts recognized
that state law would apply to activities on the reservations only if federal law granted that
authority to the states and, accordingly, addressed whether Public Law No. 83-280
(Aug. 15, 1953) (67 Stat. 588–590) did so.4 That legislation conferred broad criminal
jurisdiction and very limited civil jurisdiction. Consequently, the courts considered
whether the state laws in question should be classified as criminal/prohibitory or
civil/regulatory. (Seminole, supra, 491 F.Supp. at p. 1019; Oneida, supra, 518 F.Supp. at
pp. 719–720; Barona, supra, 694 F.2d at p. 1188.) If the state laws were
criminal/prohibitory, they would fall within Public Law No. 83-280’s grant of criminal
jurisdiction to the states. In contrast, if the state laws were civil/regulatory, the federal
statute did not authorize their enforcement on the reservations. In all three cases, the
courts determined the laws in question were regulatory because they allowed bingo to be
conducted in these states under certain circumstances rather than prohibiting it outright.5

4 This federal statute “conferred criminal and civil jurisdiction over Indian country
to certain states and authorized other states to take the necessary action to assume such
jurisdiction. Six states, including California, were initially granted jurisdiction under
Public Law 83-280. A few others, including Florida, assumed jurisdiction under this Act
….” (Ducheneaux, supra, 42 Ariz. St. L.J. at p. 105, fns. omitted; see 18 U.S.C. § 1162
[criminal jurisdiction]; 28 U.S.C. § 1360 [civil jurisdiction].)
5 For example, the district court in Seminole concluded: “It seems plain that
Florida, in permitting bingo to be run by certain groups in a restricted manner, has
acknowledged certain benefits of bingo and has chosen to regulate rather than prohibit.”

11.
Consequently, the courts held those state laws could not be enforced on the reservations
under the criminal jurisdiction granted to states by Public Law No. 83-280. In sum, if a
state allowed bingo within its borders, it could not dictate how bingo was conducted on
tribal lands.
3. 1987 United States Supreme Court Decision
In Cabazon, supra, 480 U.S. 202, two Indian tribes filed an action seeking a
declaratory judgment that Riverside County had no authority to apply its ordinances or
California’s statutes to bingo, draw poker and other card games conducted on their
reservations. (Id. at pp. 205–206.) The district court granted the Indian tribes’ motion
for summary judgment and, in 1986, the Ninth Circuit affirmed. (Id. at p. 206.) The
United States Supreme Court also affirmed. (Id. at p. 222.) Some have characterized the
Supreme Court’s decision as opening “the floodgates for tribal gaming.” (Johnson,
Fencing the Buffalo: Off-Reservation Gaming and Possible Amendments to Section 20 of
the Indian Gaming Regulatory Act (2014) 5 UNLV Gaming L.J. 101, 106.)
In part I of Cabazon, the Supreme Court accepted the prohibitory/regulatory
distinction as the appropriate test for determining whether Public Law No. 83-280
authorized the state to enforce its laws on an Indian reservation. (Cabazon, supra, 480
U.S. at p. 210.) The Supreme Court noted that bingo was legally sponsored by many
different organizations and was widely played in California. (Id. at p. 211.) Based on
“the fact that California permits a substantial amount of gambling activity, including
bingo, and actually promotes gambling through its state lottery,” the court concluded
“that California regulates rather than prohibits gambling in general and bingo in
particular.” (Ibid.) Consequently, the court concluded that Public Law No. 83-280 did
not authorize the enforcement of California law within the reservations. (Id. at p. 212.)

(Seminole, supra, 491 F.Supp. at p. 1020.) This decision was affirmed in Seminole Tribe
of Florida v. Butterworth (5th Cir. 1981) 658 F.2d 310.

12.
In part II of the Cabazon opinion, the Supreme Court considered the state’s
authority to regulate the activities of non-Indians on the reservations. (Cabazon, supra,
480 U.S. at pp. 215–216.) The court broadly framed the question as “whether the state
may prevent the Tribes from making available high stakes bingo games to non-Indians
coming from outside the reservations.” (Id. at p. 216.) The court then stated the specific
legal issue as “whether state authority is pre-empted by the operation of federal law”—an
inquiry that required the balancing of the federal and tribal interests against the state
interests at stake. (Ibid.)
The court identified the relevant federal and tribal interests by referring to the
congressional goals of Indian self-government, tribal self-sufficiency and economic
development. (Cabazon, supra, 480 U.S. at p. 216.) The court described these as
“important federal interests.” (Id. at p. 217.) The court supported its description by
referring to (1) the President’s po

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4106630. Public record. Not legal advice.