United Auburn Indian Community of the Auburn Rancheria v. Newsom

IN THE SUPREME COURT OF

CALIFORNIA

UNITED AUBURN INDIAN COMMUNITY OF THE

AUBURN RANCHERIA,

Plaintiff and Appellant,

v.

GAVIN C. NEWSOM, as Governor, etc.,

Defendant and Respondent.

S238544

Third Appellate District

C075126

Sacramento County Superior Court

34-2013-80001412CUWMGDS

August 31, 2020

Justice Cuéllar authored the opinion of the Court, in which

Justices Chin, Corrigan, Kruger, and Fybel* concurred.

*

Associate Justice of the Court of Appeal, Fourth

Appellate District, Division Three, assigned by the Chief

Justice pursuant to article VI, section 6 of the California

Constitution.

UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN

RANCHERIA v. NEWSOM

Opinion of the Court by Cuéllar, J.

Chief Justice Cantil-Sakauye filed a dissenting opinion, in

which Justice Liu concurred.

UNITED AUBURN INDIAN COMMUNITY OF THE

AUBURN RANCHERIA v. NEWSOM

S238544

Opinion of the Court by Cuéllar, J.

This is a case about how California law applies to the

delicate juncture of executive power, federalism, and tribal

sovereignty. Under the federal Indian Gaming Regulatory Act

(IGRA; 25 U.S.C. § 2701 et seq.), the United States Secretary

of the Interior (Interior Secretary) may permit casino-style

gaming on certain land taken into federal trust for an Indian

tribe, so long as the Governor of the state where the land is

located concurs. But nowhere in the California Constitution is

the Governor granted explicit authority to concur in this

cooperative-federalism scheme. We must decide whether the

Governor nonetheless has the authority to concur in the

Interior Secretary’s determination to allow gaming on tribal

trust land in California.1

What we hold is that California law empowers the

Governor to concur. As amended in 2000, the California

Constitution permits casino-style gaming under certain

conditions on “Indian” and “tribal” lands — terms that

1

The action was brought against Governor Edmund G.

Brown, Jr., who concurred in the Interior Secretary’s

determination. Because Governor Gavin C. Newsom has since

assumed office, we have substituted him as the defendant and

respondent. (Code of Civ. Proc., § 368.5.)

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Opinion of the Court by Cuéllar, J.

encompass land where the Governor’s concurrence is required

before casino-style gaming may occur. Our decision is

supported by the Governor’s historical practice of concurring

under a variety of federal statutes, the legislatively enacted

expectation that the Governor represent the state’s interests in

negotiations or proceedings involving the federal government,

and the absence of any explicit constitutional or statutory

limits on the Governor’s power to concur in the Interior

Secretary’s determination under IGRA.

These markers of the legal terrain help us map a zone of

twilight between the powers of the Governor and the

Legislature. But they also convey why legislative changes can,

by bringing any implicit gubernatorial power to “its lowest ebb”

in this domain, restrict or eliminate the Governor’s

concurrence power. (Youngstown Co. v. Sawyer (1952) 343

U.S. 579, 637 (conc. opn. of Jackson, J.) (Youngstown).)

Because the Legislature has imposed no such restriction,

however, we conclude the Governor acted lawfully when he

concurred in the Interior Secretary’s determination. The Court

of Appeal reached the same conclusion, so we affirm.

I.

The California Constitution specifically mentions casino-

style gaming, “federally recognized Indian tribes,” and lands

that are “Indian” and “tribal” “in accordance with federal law.”

(Cal. Const., art. IV, § 19, subd. (f).) As these provisions — like

IGRA — were enacted against the backdrop of longstanding

tribal efforts to establish casino-style gaming operations on

land under their control, we begin with a survey of the relevant

history.

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A.

Long before this country’s founding, Indian tribes already

existed as “self-governing sovereign political communities,”

each with their own distinct lands. (United States v. Wheeler

(1978) 435 U.S. 313, 322–323.) Tribes haven’t “possessed [] the

full attributes of sovereignty” since the federal Constitution

was signed, but they remain a “separate people, with the power

of regulating their internal and social relations.” (United

States v. Kagama (1886) 118 U.S. 375, 381–382.) Yet that

power is bounded, too: Under the Indian commerce clause of

the United States Constitution, Congress possesses the

“plenary power to legislate in the field of Indian affairs” and to

limit the powers that tribes otherwise possess. (Cotton

Petroleum Corp. v. New Mexico (1989) 490 U.S. 163, 192.) So

the sovereignty of Indian tribes “is of a unique and limited

character[:] It exists [] at the sufferance of Congress and is

subject to complete defeasance” if and when Congress acts.

(Wheeler, supra, 435 U.S. at p. 323.)

These implicit contradictions have catalyzed conflicting

expectations and struggles for power, with tribal gaming as a

recurring flashpoint. Gaming is a significant enterprise for

Indian tribes — it “cannot be understood as . . . wholly

separate from the Tribes’ core governmental functions.”

(Michigan v. Bay Mills Indian Community (2014) 572 U.S. 782,

810 (conc. opn. of Sotomayor, J.).) Gambling operations serve

as a means for tribes “to assert their sovereign status and

achieve economic independence.” (Mason, Indian Gaming:

Tribal Sovereignty and American Politics (2000) p. 4.) It is

partly symbolic: “Gaming [] represents a stand for political

independence as tribes assert their sovereign right to

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determine for themselves what they can control on tribal

lands.” (Ibid.) But gaming also serves a practical function:

Because of the limits placed on tribal governments’ ability to

impose taxes, gaming “may be the only means by which a tribe

can raise revenues.” (Struve, Tribal Immunity and Tribal

Courts (2004) 36 Ariz.St. L.J. 137, 169.) In that sense, gaming

operations are often essential to tribes’ economic self-

sufficiency.

Yet from the start, federal and state governments sought

to curtail gaming on Indian land. (See Indian Gaming

Regulatory Act, Hearing before House Com. on Interior and

Insular Affairs on H.R. No. 964 and H.R. No. 2507, 100th

Cong., 1st Sess., at p. 158 (1987), written testimony of Sen.

Reid [unless Indian gaming is regulated, “the hope for

controlling organized crime in this country will be lost

forever”].) To prevent the perverse consequences some

legislators believed would arise from such activities, Congress

enacted legislation such as the Johnson Act of 1951 (15 U.S.C.

§ 1175(a)), which outlawed the manufacture, possession, or use

of gambling devices, and the Organized Crime Control Act of

1970 (18 U.S.C. § 1955), which made it a federal offense to

engage in any for-profit gambling business that was prohibited

under state law.

Because of Congress’s plenary power over Indian affairs,

states initially lacked the authority to regulate tribal gaming.

But in 1953, Congress enacted Public Law 280, which

empowered six states — including California — to exercise

criminal jurisdiction over Indian land. (18 U.S.C. § 1162; 25

U.S.C. §§ 1321–1326; 28 U.S.C. § 1360.) When California

sought to enforce its state gambling law — which permitted,

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Opinion of the Court by Cuéllar, J.

subject to criminal penalties, gaming only when operated by

certain charitable organizations with restrictions on prizes —

against two Indian tribes, the tribes challenged the state’s

power to do so. The Supreme Court soon offered a partial

answer to the question: To what extent did states have

jurisdiction to enforce their own laws against tribes? Ruling in

the tribes’ favor, the Court distinguished between laws that

were “prohibitory” and those that were “regulatory”: Although

Congress had allowed states to enforce prohibitions on

gambling against Indian tribes, it hadn’t bestowed states with

“civil regulatory power over Indian reservations.” (California

v. Cabazon Band of Mission Indians (1987) 480 U.S. 202, 210,

208.) Because California’s gambling law was regulatory in

nature — “California regulates rather than prohibits gambling

in general and bingo in particular” — the Court concluded that

the state lacked the power to restrict tribal gaming. (Id. at p.

211.) Following Cabazon, states couldn’t restrict or otherwise

regulate Indian gaming operations unless they prohibited all

gaming.

B.

Congress responded to Cabazon’s new strictures on state

regulation of Indian gaming by enacting IGRA. (25 U.S.C.

§ 2701 et seq.) Following centuries of conflict over gaming

between tribes, states, and the federal government, Congress’s

purpose was to “balance the need for sound enforcement of

gaming laws and regulations, with the strong Federal interest

in preserving the sovereign rights of tribal governments to

regulate activities and enforce laws on Indian land.” (Sen.Rep.

No. 100-446, 2d Sess., p. 5 (1988), reprinted in 1988 U.S. Code

Cong. & Admin. News, p. 3075.) To that end, IGRA divided

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gaming into three categories: class I, class II, and class III.

Class I gaming, those played for “prizes of minimal value,”

would be regulated exclusively by Indian tribes. (25 U.S.C.

§ 2703(6).) Class II gaming, which includes higher-stakes

games such as bingo, was also under the control of Indian

tribes, unless a state prohibited such gaming for any purpose.

(25 U.S.C. §§ 2703(7)(A)(i), 2710.)

This dispute concerns class III gaming. All forms of

gaming that aren’t covered by class I or class II gaming come

within the ambit of class III — including casino-style games

such as slot machines, roulette, and blackjack. (25 U.S.C.

§ 2703(8).) Because class III gaming can be “a source of

substantial revenue for the Indian tribes and a significant rival

for traditional private sector gaming facilities,” its regulation

“has been the most controversial part of [] IGRA and the

subject of considerable litigation between various Indian tribes

and the states.” (Flynt v. California Gambling Control

Commission (2002) 104 Cal.App.4th 1125, 1134.) Before a

tribe can conduct class III gaming, it must satisfy several

requirements under IGRA — such as forming a tribal-state

compact, in which the tribe and the state agree on issues

surrounding tribal gaming operations.2

2

Class III gaming must also satisfy other requirements

under IGRA: It must be authorized by an ordinance or

resolution adopted by the governing body of the Indian tribe

and the Chairman of the National Indian Gaming Commission

and located in a state that permits such gaming for any

purpose by any person, organization, or entity. These

requirements are not at issue in this case.

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IGRA also imposes additional requirements for Indian

tribes wishing to conduct class III gaming on certain types of

land. The federal government has, throughout our nation’s

history, adopted policies that have removed Indian tribes from

their native reservations and radically reduced their land

bases. In an effort to rectify these past wrongs and to

reconstitute these land bases, Congress enacted the Indian

Reorganization Act of 1934 (IRA). (25 U.S.C. § 5101 et seq.;

see Cohen’s Handbook of Federal Indian Law (2019 ed.)

§ 4.04(3)(a).) The IRA allows the Interior Secretary to acquire

and take land into trust for an Indian tribe. (25 U.S.C.

§ 5108.) Class III gaming on land taken into trust after

October 17, 1988 — the date Congress enacted IGRA — may

occur only under certain conditions set forth in the federal

statute. The condition at issue here requires that the Interior

Secretary, “after consultation with the Indian tribe and

appropriate State and local officials, . . . determine[] that a

gaming establishment on [those] acquired lands would be in

the best interest of the Indian tribe and its members, and

would not be detrimental to the surrounding community.” (25

U.S.C. § 2719(b)(1)(A).) “[T]he Governor of the State in which

the gaming” will occur must also “concur[] in the [Interior]

Secretary’s determination.” (Ibid.)

C.

In 2002, the Enterprise Rancheria of Maidu Indians (the

Enterprise Tribe) made a request culminating in the

gubernatorial concurrence at the heart of this case. The tribe

sought for the Interior Secretary to acquire land in Yuba

County in trust on the tribe’s behalf so the Enterprise Tribe

could build a casino featuring class III gaming. Before taking

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Opinion of the Court by Cuéllar, J.

the land into trust, the Interior Secretary determined that the

proposed venue was in the best interest of the tribe and wasn’t

detrimental to the surrounding community. In accordance

with IGRA’s requirements, the Interior Secretary notified the

Governor in 2011 and sought his concurrence in the

determination.

Nearly a decade after the Enterprise Tribe’s initial

request, in 2012, the Governor concurred. He explained that

conducting class III gaming on that land would “directly

benefit” a “large tribal population” of “more than 800 native

Californians who face serious economic hardship.” (Governor

Edmund G. Brown, Jr., letter to Interior Secretary Kenneth L.

Salazar, Aug. 30, 2012.) The casino would “create jobs and

generate revenue for Yuba County,” which had “a 16%

unemployment rate” at the time. (Ibid.) On the same day he

sent his concurrence letter, the Governor executed a tribal-

state gaming compact between the state and the Enterprise

Tribe. A few months later, the Interior Secretary took the land

into trust for the Enterprise Tribe.

United Auburn Indian Community owns and operates

the Thunder Valley Casino Resort, located about 20 miles from

the proposed site of the Enterprise Tribe’s casino.3 Believing

3

The Enterprise Tribe’s casino resort, the Hard Rock

Hotel & Casino Sacramento at Fire Mountain, has since

opened. (See McGough, Ready to ‘Rock’: Hard Rock Hotel &

Casino Sacramento unveils opening date, Sac. Bee (Sept. 6,

2019) <https://www.sacbee.com/article234801132.html> [as of

Aug. 28, 2020]; all Internet citations in this opinion are

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that the Governor’s concurrence was unlawful under state law,

United Auburn filed a petition for a writ of mandate and

complaint for injunctive relief. The Governor demurred to the

complaint, arguing that the California Constitution and state

statutes empowered him to concur in the Interior Secretary’s

determination, and that his concurrence didn’t violate the

separation of powers. The superior court sustained the

demurrer and entered judgment in the Governor’s favor.

The Court of Appeal affirmed. It rejected each of United

Auburn’s contentions: that the Governor lacked the power to

concur under California law, that the Governor’s concurrence

was a legislative act that violated the separation of powers,

and that the Governor exceeded his authority by entering into

compact negotiations for land that hadn’t yet been taken into

trust by the Interior Secretary. (United Auburn Indian

Community of the Auburn Rancheria v. Brown (2016) 4

Cal.App.5th 36, 54.) Shortly after that decision, a different

appellate court held that the Governor lacked the authority to

concur in the Interior Secretary’s determination. (Stand Up

for California! v. State of California (2016) 6 Cal.App.5th 686,

705.) We granted review to resolve the split.

II.

Under IGRA, the Interior Secretary may allow class III

gaming on land the federal government takes into trust for an

Indian tribe after IGRA was enacted if she determines that

gaming would be in the best interest of the tribe and would not

archived by year, docket number, and case name at

<http://www.courts.ca.gov/38324.htm>.)

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be detrimental to the surrounding community. But it is only

with the concurrence of the Governor from the state where

gaming would occur that IGRA allows the Interior Secretary’s

decision to take effect. (25 U.S.C. § 2719(b)(1)(A).) What IGRA

does not resolve is whether the Governor has a legal basis to

concur; gubernatorial power arises from state constitutional

and statutory authority. Although the Governor’s “concurrence

(or lack thereof) is given effect under federal law, [] the

authority to act is provided by state law.” (Confederated Tribes

of Siletz Indians of Oregon v. U.S. (9th Cir. 1997) 110 F.3d 688,

697.) So we must determine whether California law empowers

the Governor to concur.4

A.

The power of the Governor is rooted in our state

Constitution and further structured by statutes that must

themselves conform to constitutional constraints. (See

generally Cal. Const., art. V; Professional Engineers in

California Government v. Schwarzenegger (2010) 50 Cal.4th

989, 1041.) A brief history of gambling in California helps

inform the scope of the Governor’s power in the sphere of tribal

gaming.

4

That IGRA requires the Governor’s concurrence before

class III gaming can occur on certain trust lands arguably

demonstrates a legislatively enacted expectation that state

governors generally possess the concurrence power. It’s

unlikely that lawmakers would require governors to exercise a

concurrence power they believed they lacked. Regardless of

what federal lawmakers believed, however, it is in California

law that the Governor must find authority.

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The California Constitution, as enacted in 1849,

prohibited lotteries and the sale of lottery tickets. (Cal. Const.

of 1849, art. IV, § 27.) And when the Penal Code was enacted

in 1872, it prohibited several activities that fall within the

ambit of gambling, including slot machines, roulette, and —

whatever it means — hokey-pokey.5 (Pen. Code, §§ 330, 330a.)

Over time, however, our supreme charter has been amended

several times to loosen those prohibitions. In 1933, for

example, an amendment to the Constitution authorized the

Legislature to allow horse races and horse race wagering. (Cal.

Const., art. IV, § 19, subd. (b).) In 1976, the Constitution was

amended again to authorize the Legislature to permit bingo

gaming for charitable purposes. (Cal. Const., art. IV, § 19,

subd. (c).) And a 1984 constitutional amendment “authorized

the establishment of a California State Lottery.” (Cal. Const.,

art. IV, § 19, subd. (d).) These exceptions did not, however,

encompass the casino-style gaming at issue in this case.

Indeed, “[i]n 1984, the people of California amended our

Constitution to state a fundamental public policy against the

5

Just about the only thing that’s clear about the term

“hokey-pokey” is that it wasn’t a reference to the traditional

children’s dance song. Former Attorney General of California

Frederick Howser acknowledged that hokey-pokey “cannot be

defined by consulting any standard reference work,” and even

“[e]xhaustive research” had failed to yield any mention of the

illicit game. (“Stud-Horse Poker” and “Hokey-Pokey” Are Illegal

Card Games, Healdsburg Tribune (Mar. 28, 1947) p. 7.) It

appears to have been a variation on poker. (See Singsen,

Where Will the Buck Stop on California Penal Code Section

330: Solving the Stud-Horse Poker Conundrum (1988) 11

Hastings Comm./Ent. L.J. 95, 138–139.)

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legalization in California of casino gambling.” (Hotel

Employees & Restaurant Employees Internat. Union v. Davis

(1999) 21 Cal.4th 585, 589; see Cal. Const., art. IV, § 19, subd.

(e).) What the Constitution was amended to convey is that

“[t]he Legislature has no power to authorize, and shall

prohibit, casinos of the type currently operating in Nevada and

New Jersey.” (Cal. Const., art. IV, § 19, subd. (e).)

That prohibition lasted until 2000. That year, California

voters enacted Proposition 1A, which amended the

Constitution to give the Governor authority “to negotiate and

conclude compacts, subject to ratification by the Legislature,

for the operation of slot machines and [other class III gaming]

by federally recognized Indian tribes on Indian lands in

California in accordance with federal law.” (Cal. Const., art.

IV, § 19, subd. (f).) Notwithstanding the Constitution’s general

restriction on casino-style gaming, Proposition 1A allowed that

type of gaming “to be conducted and operated on tribal lands

subject to [tribal-state] compacts.” (Cal. Const., art. IV, § 19,

subd. (f).)

The parties agree that Proposition 1A provides the

starting point for our analysis. They also agree that

Proposition 1A doesn’t expressly grant the Governor the power

to concur — it only authorizes him “to negotiate and conclude

compacts . . . for the operation of slot machines and [other class

III gaming].” (Cal. Const., art. IV, § 19, subd. (f).) Where they

differ in their views is whether the ballot initiative’s language,

context, and history, taken together, prohibit the Governor

from concurring, and whether the Governor’s concurrence

violates the separation of powers.

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B.

The Governor’s initial argument is a sweeping one: He

contends that, although Proposition 1A doesn’t expressly grant

the Governor the power to concur, it nevertheless “presupposes

that the Governor possesses [that] power.” Because

Proposition 1A allows casino-style gaming “in accordance with

federal law,” and because federal law — IGRA — is designed

on the premise that state governors may concur in the Interior

Secretary’s determination to allow gaming on that land, the

Governor argues that the California Constitution implicitly

bestows on him the power to offer the requisite concurrence

under IGRA. Under the Governor’s proposed interpretation of

Proposition 1A, the California Constitution allows gaming to

the full extent that federal law permits it — and no other

provision of state law restricts such gaming. But this precise

argument, we conclude, lacks support in the language of

Proposition 1A. Gubernatorial powers aren’t limited to

explicitly enumerated grants of authority. But given the

preexisting, constitutionally enshrined policy against casino-

style gaming in California, the Governor fails to demonstrate

that the most reasonable reading of Proposition 1A’s phrase “in

accordance with federal law” is one automatically allowing him

to exercise any conceivable power that IGRA contemplates

governors may exercise over gaming. Nor does anything in

IGRA’s text, structure, or history suggest Congress sought to

use federal authority — assuming it was enough to preempt

state law in this manner — to unilaterally grant governors the

power to concur. So Proposition 1A’s mere reference to federal

law does not, by itself, bestow the Governor with the

concurrence power.

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That Proposition 1A, by itself, falls short of granting the

Governor the power to concur does not resolve the question

before us. Even in the absence of an express grant of

authority, each branch of government possesses certain

inherent and implied powers. (See Spear v. Reeves (1906) 148

Cal. 501, 504.) We’ve often discussed such powers in the

context of the judiciary — courts possess an inherent power “to

admit and to discipline attorneys” (In re Attorney Discipline

System (1998) 19 Cal.4th 582, 592) and “ ‘to punish [parties] for

contempt’ ” (Burns v. Superior Court of City and County of San

Francisco (1903) 140 Cal. 1, 4). The Legislature can wield

certain implied and inherent powers as well, such as the power

to investigate (Howard Jarvis Taxpayers Assn. v. Padilla

(2016) 62 Cal.4th 486, 499) and the “power to create any

agency it wishes unless the power is denied it by the

Constitution” (County of Sonoma v. State Energy Resources

Conservation etc. Com. (1985) 40 Cal.3d 361, 375, fn. 4 (dis.

opn. of Mosk, J.)). Some of the powers that inhere to the

executive arise by implication, too. It’s “well settled,” for

example, that an executive officer “may exercise . . . powers as

are necessary for the due and efficient administration of

powers expressly granted by statute” or “may fairly be implied

from the statute granting the powers.” (Dickey v. Raisin

Proration Zone (1944) 24 Cal.2d 796, 810, italics omitted.) The

Governor’s implied powers include the authority to add a

reasonable condition to a prisoner’s pardon or commutation.

(Ex parte Kelly (1908) 155 Cal. 39, 41.)

United Auburn contends that even if inherent and

implied powers are within the ambit of the Governor’s

authority, the power to concur in the Interior Secretary’s

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determination isn’t among them. Its argument is rooted in

article IV, section 19, subdivision (e) of the California

Constitution — which, as United Auburn characterizes it,

“states a broad and far-reaching prohibition on [casino-style]

gaming.” According to United Auburn, the Governor may not

concur in the Interior Secretary’s determination to allow class

III gaming on Indian land taken into trust because California

law prohibits class III gaming.

That argument, however, overlooks the pivotal role

Proposition 1A plays in the story of how California has

regulated gaming. That ballot initiative amended the

California Constitution to allow casino-style gaming “by

federally recognized Indian tribes on Indian lands” and “on

tribal lands” in California, “in accordance with federal law.”

(Cal. Const., art. IV, § 19, subd. (f), italics added.) United

Auburn first urges us to construe this language as referring

only to land for which the Governor’s concurrence isn’t

required to conduct class III gaming. So according to United

Auburn, the voters enacting Proposition 1A would have

understood they were allowing for casino-style gaming on

Indian reservations, as well as on land taken into trust before

IGRA was enacted and certain land taken into trust after

IGRA was enacted — on which casino-style gaming may take

place without the Governor’s concurrence — but not on land

taken into trust after IGRA’s effective date if the Governor’s

concurrence is required for class III gaming on such land.

That assertion clashes with the meaning of Indian land

under federal law. IGRA defines “Indian lands” to include “any

lands title to which is [] held in trust by the United States for

the benefit of any Indian tribe or individual.” (25 U.S.C.

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§ 2703(4)(B).) When the federal government takes land into

trust for an Indian tribe, therefore, that land necessarily

becomes Indian land. This definition of Indian land — which

encompasses reservation land and tribal trust land, regardless

of whether the Governor’s concurrence is required for gaming

on the land — is supported by federal Indian law more

generally. (See Oklahoma Tax Comm’n v. Potawatomi Tribe

(1991) 498 U.S. 505, 511 [“[No] precedent of this Court has

ever drawn the distinction between tribal trust land and

reservations”]; Cohen’s Handbook of Federal Indian Law (2019

ed.) § 3.04(2)(c)(ii) [“The Supreme Court has [] held that tribal

trust land is the equivalent of a reservation and thus Indian

country”]; Rest., Law of American Indians (Tent. Draft No. 2,

Mar. 13, 2018) § 15, subd. (a) [defining “Indian lands” to

include “lands held by the United States in trust for an Indian

tribe or individual members of an Indian tribe”].) When

construing initiatives such as Proposition 1A, we presume

electors “to [have been] aware of existing laws and judicial

construction[s] thereof” when they voted. (In re Lance W.

(1985) 37 Cal.3d 873, 890, fn. 11.) Nowhere did Proposition 1A

offer its own definition of “Indian lands” or “tribal lands.” And

Proposition 1A’s Voter Information Guide explained to voters

that federal law regulated gaming on Indian land (Voter

Information Guide, Primary Elec. (Mar. 7, 2000) analysis of

Prop. 1A by Legis. Analyst, p. 4) — indeed, the text of the

ballot proposition said it was allowing class III gaming “on

Indian lands in California in accordance with federal law” (id.,

text of Prop. 1A, p. 90). None of this bolsters the case for

assuming that the terms “Indian lands” and “tribal lands” in

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Proposition 1A have a narrow, bespoke content different from

their ordinary meaning under federal law.

United Auburn then seeks to buttress its argument by

offering a somewhat different definition of “tribal lands” and

“Indian lands”: land recognized as Indian land when IGRA

was enacted, but not after. This proposed interpretation of the

terms pivots not on whether casino-style gaming would require

the Governor’s concurrence, but instead on whether the Indian

land was acquired after IGRA was enacted — irrespective of

whether that land has become “Indian” or “tribal” land “under

federal law” in the decades since IGRA’s effective date.

That definition is also implausible. The language of

Proposition 1A offers no indication that voters enshrined in the

Constitution the technical, inside-baseball distinction between

gaming on federally designated Indian land before IGRA’s

effective date (what United Auburn proposes to be true

“Indian” or “tribal” lands), and after. IGRA, for its part, allows

class III gaming on certain land taken into trust for an Indian

tribe after the statute’s effective date without the Governor’s

concurrence, so long as the Governor executes a tribal-state

compact. (See 25 U.S.C. § 2719(b)(1)(B)(i)–(iii) [casino-style

gaming on “lands [] taken into trust as part of[:] [¶] (i) a

settlement of a land claim”; “(ii) the initial reservation of an

Indian tribe acknowledged by the [Interior] Secretary under

the Federal acknowledgment process”; or “(iii) the restoration

of lands for an Indian tribe that is restored to Federal

recognition” does not require the Governor’s assent].) Under

United Auburn’s argument, however, Proposition 1A prohibits

class III gaming from taking place even on these lands.

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We are not persuaded. United Auburn’s contention lacks

support in the language of Proposition 1A, which explicitly

empowers the Governor to negotiate and conclude compacts for

class III gaming on “Indian lands . . . in accordance with

federal law” and “permit[s]” class III gaming “on tribal lands

subject to those compacts.” (Cal. Const., art. IV, § 19, subd.

(f).) Because Proposition 1A allows class III gaming on “Indian

lands in California in accordance with federal law,” it makes

little sense to interpret article IV, section 19 as prohibiting

such gaming on certain trust lands — considered Indian lands

under federal law — for which IGRA does not even require the

Governor’s concurrence before class III gaming may occur.

(Ibid.) United Auburn’s interpretation would also cut against

the cooperative-federalism scheme created by IGRA to permit

class III gaming on Indian land. We decline to create such a

conflict between state and federal law where none exists.6 (See

California ARCO Distributors, Inc. v. Atlantic Richfield Co.

(1984) 158 Cal.App.3d 349, 359 [“State and federal laws should

be accommodated and harmonized where possible”]; Huron

Cement Co. v. Detroit (1960) 362 U.S. 440, 446 [“[The Supreme]

Court’s decisions [] enjoin seeking out conflicts between state

and federal regulation where none clearly exists”].)

What we find more persuasive is the most reasonable

inference from Proposition 1A’s text and context: The terms

6

United Auburn itself appears to abandon this proposed

reading of “Indian lands” and “tribal lands” in its reply brief,

reverting to its previous argument that “the voters [who

enacted Proposition 1A] meant to facilitate gaming that

required no concurrence.”

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“Indian” and “tribal” lands — which appear in close proximity

to the phrase “in accordance with federal law” — are best

understood, as they are under federal law, to include Indian

reservation land and all land the federal government has

acquired in trust for the benefit of Indian tribes. (Voter

Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop.

1A, p. 90.) In the absence of any specialized definition of the

terms within Proposition 1A, the most reasonable

understanding of voters’ purpose in enacting Proposition 1A is

that they sought to permit casino-style gaming on all Indian

land in accordance with federal law — notwithstanding the

California Constitution’s general restriction on casino-style

gaming. (Compare Cal. Const., art. IV, § 19, subd. (e) with Cal.

Const., art. IV, § 19, subd. (f).)

That Indian land encompasses reservation land as well

as land taken into trust for Indian tribes bears on another of

United Auburn’s arguments. It points our attention to the fact

that Proposition 1A empowers the Governor only “to negotiate

and conclude compacts” for gaming on Indian land — not to

concur in the Interior Secretary’s determination. (Cal. Const.,

art. IV, § 19, subd. (f).) Because compacting and concurring

are distinct actions, United Auburn contends, the Governor’s

authority to compact doesn’t imply his power to concur.

We agree that the power to negotiate compacts with

Indian tribes does not, by itself, imply the power to concur.

But neither does Proposition 1A’s failure to expressly mention

the power to concur imply any sort of limitation on the

Governor’s inherent powers — including his power to concur.

The ballot initiative amended the Constitution to bestow the

Governor with the power “to negotiate and conclude compacts .

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. . for the operation of [casino-style gaming] . . . on Indian lands

in California.” (Cal. Const., art. IV, § 19, subd. (f).) Because

casino-style gaming cannot occur on some Indian lands —

certain land taken into trust for an Indian tribe after IGRA

was enacted — without the Governor’s concurrence, the power

to negotiate compacts for class III gaming on those lands is

consistent with the Governor exercising his inherent power to

concur to allow class III gaming to occur on those lands.

Suppose voters had limited the Governor’s compacting

power to land on which casino-style gaming could occur

without his concurrence. One might then reasonably expect

that the Proposition would have limited the Governor’s power

to negotiate compacts only where the land in question was

“reservation land,” land designated as “Indian land” before

IGRA was enacted, or “Indian land not requiring a

concurrence.” Yet nothing close to this limitation appears in

the language of Proposition 1A. (Cf. City of Port Hueneme v.

City of Oxnard (1959) 52 Cal.2d 385, 395 [a statute’s omission

of a term used elsewhere “ ‘is significant to show’ ” a different

intended purpose].) What Proposition 1A’s language conveys

instead is that the Governor’s power to negotiate and conclude

compacts for class III gaming extends to all land that counts as

“Indian” or “tribal” under federal law, with no intricate pre- or

post-IGRA, concurrence or no concurrence proviso. That the

Governor has the power to negotiate and conclude compacts for

class III gaming on “Indian” and “tribal” land thus

demonstrates that article IV, section 19, subdivision (e)’s

general ban on casino-style gaming doesn’t apply to gaming on

land taken into trust after IGRA was enacted for which the

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Governor’s concurrence is required. (See Cal. Const., art. IV,

§ 19, subd. (e).)

Unable to ground its argument in the four corners of the

ballot proposition, United Auburn seeks firmer footing in

Proposition 1A’s ballot materials. It explains that Proposition

1A’s proponents advocated for passage of the ballot proposition

“so we can keep the gaming we have on our reservations.”

(Voter Information Guide, Primary Elec. (Mar. 7, 2000)

argument in favor of Prop. 1A, p. 6.) United Auburn also

contends that the primary motivation for Proposition 1A

appears to have been to ratify 57 compacts that California had

negotiated before 2000 — compacts for land on which gaming

could occur without the Governor’s concurrence. (Id., analysis

of Prop. 1A by Legis. Analyst, pp. 4–5.) And it calls our

attention to a back-and-forth exchange between supporters and

opponents of the initiative included in the ballot materials, in

which proponents of Proposition 1A wrote: “ ‘Proposition 1A

and federal law strictly limit Indian gaming to tribal land. The

[opponents’] claim that casinos could be built anywhere [if

Proposition 1A is enacted] is totally false.’ ” (Id., rebuttal to

argument against Prop. 1A, p. 7.)

It’s true that ballot materials sometimes illuminate how

we interpret voter initiatives. (See People v. Valencia (2017) 3

Cal.5th 347, 364.) But these materials don’t support the

weight United Auburn hoists onto them, and they don’t

override our understanding of Proposition 1A’s language: that

class III gaming may occur on Indian land. (See California

Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 934

(California Cannabis Coalition) [“we may consider extrinsic

sources, such as an initiative’s ballot materials” only if “the

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provision[’s] intended purpose [] remains opaque” after

analysis of its text].) The Governor’s interpretation, too, fits

with the maxim of Proposition 1A’s proponents: That the

proposed ballot initiative “ ‘strictly limit[s] Indian gaming to

tribal land,’ ” and that “ ‘the claim[s] that casinos could be built

anywhere is totally false.’ ” (Voter Information Guide, Primary

Elec. (Mar. 7, 2000) rebuttal to argument against Prop. 1A, p.

7.) Class III gaming, after all, may occur only on reservation

land or land the federal government has converted to Indian

land by taking it into trust for an Indian tribe. We

acknowledge that the language included in these materials

arguably supports the conclusion that the predominant

rationale behind Proposition 1A was to allow Indian tribes to

conduct class III gaming on land for which the Governor’s

concurrence wasn’t required — including on land for which

California had negotiated 57 compacts before 2000. What the

materials do not suggest, however, is that the most defensible

account of Proposition 1A’s purpose was to allow casino-style

gaming only on lands associated with those compacts.

In response to this line of argument, the dissent invokes

a private website, www.yeson1A.net, that Proposition 1A’s

proponents cited in their rebuttal to arguments against the

ballot proposition. Because that website “equated ‘Indian

lands’ and ‘tribal lands’ with ‘reservation lands,’ and indicated

that tribal casinos would be limited to these lands,” the dissent

contends, voters would have construed Proposition 1A to

authorize casinos only on Indian reservations. (Dis. opn., post,

at p. 22, fn. 4.) Not even United Auburn advances such a

narrow construction of Proposition 1A — as we’ve explained,

both definitions of “Indian” and “tribal” lands offered by United

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Auburn encompass some kinds of Indian trust land in addition

to Indian reservations. Taking account of a private website

that showed up as a link in one of the ballot statements —

even if there’s no particular evidence that many voters

examined its contents — could conceivably make sense in light

of how we consider appropriate extrinsic sources when the

initiatives we interpret are unclear. (See California Cannabis

Coalition, supra, 3 Cal.5th at p. 934.) What makes less sense

is to give outsized importance to its peculiar interpretation

when there’s no particular logic or argument persuasively

supporting its theory, and it goes beyond what the ballot

materials themselves imply. In any event, we parse the

website differently. The website’s homepage explained that

“Prop 1A . . . simply allows federally-recognized California

tribes to continue to have gaming on federally-designated

tribal land, as provided by federal law” — and the very next

sentence identified IGRA as the relevant federal law. (Yes on

1A, Proposition 1A . . . The California Indian Self-Reliance

Amendment on the March 2000 State Ballot (Mar. 6, 2000)

<http://digital.library.ucla.edu/websites/2000_999_028/> [as of

Aug. 28, 2020].) The dissent cites a different portion of the

website, but the point it conveys is the same: It stated that

“federal law strictly limits tribal gaming to Indian lands only”

before explaining that Congress enacted “[t]he Indian Gaming

Regulatory Act . . . in 1988.” (Yes on 1A, Proposition 1A:

Answers to Common Questions (Mar. 6, 2000)

<http://digital.library.ucla.edu/websites/2000_999_028/> [as of

Aug. 28, 2020].)

Elsewhere the dissent suggests that Proposition 1A may

have used “Indian lands” as a term of art — one referring to

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“reservation lands and after-acquired trust lands for which no

concurrence is required.” (Dis. opn., post, at p. 19.) Like

United Auburn, however, the dissent fails to persuasively

explain why the “Indian lands” term of art would happen to

encompass only those trust lands on which gaming may occur

without the Governor’s concurrence, but not other trust lands

which require the Governor’s concurrence for class III gaming.

That federal law draws a line to distinguish “Indian lands”

from other lands is not in dispute. What that line fails to do is

draw any distinction between lands where gaming may occur

with or without a governor’s concurrence. Instead, as we’ve

explained, federal law defines all these lands as Indian land.

(See Cohen’s Handbook of Federal Indian Law (2019 ed.)

§ 3.04(2)(c)(ii).) So whereas the dissent questions the

transparency of Proposition 1A’s ballot materials (dis. opn.,

post, at p. 26), we read those materials to reiterate a consistent

message as it’s relevant to this case: Proposition 1A would

allow class III gaming on all Indian land, as defined by IGRA.

Nor have we any reason to conclude that our

interpretation would “put[] gambling casinos right in

everyone’s backyard,” as opponents of Proposition 1A warned.

(Voter Information Guide, Primary Elec. (Mar. 7, 2000)

argument against Prop. 1A, p. 7.) Amicus curiae North Fork

Rancheria observes that the Interior Secretary has requested

gubernatorial concurrences only 16 times nationwide in the 31

years since IGRA was enacted, and state governors have

concurred in only 10 of those determinations. So in the subset

of instances where the Interior Secretary agrees that land held

in trust for a tribe may be used for gaming, the required

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gubernatorial concurrence further narrows where gaming may

occur.7

We find no reason to conclude from these ballot

materials, from Proposition 1A’s language, or from any other

7

The dissent claims that our opinion allows “a single state

official, the Governor,” to exercise the “consequential power” of

allowing class III gaming on land taken into trust after IGRA

was enacted. (Dis. opn., post, at p. 17–18.) What this bold

assertion seems to miss is that nothing in our opinion anoints

the Governor Emperor of tribal gaming. The dissent’s reading

of our conclusion overlooks several pieces of an intricate jigsaw

puzzle that must fall into place before class III gaming can

occur on land taken into trust after IGRA’s effective date: An

Indian tribe must duly authorize casino-style gaming. (25

U.S.C. § 2710(d)(1)(A).) A state must permit that type of

gaming for any purpose by any person, organization, or entity.

(Id., § 2710(d)(1)(B).) The gaming must abide by the terms of a

tribal-state compact. (Id., § 2710(d)(1)(C).) For land that

doesn’t satisfy other conditions in IGRA, the Interior Secretary

must determine that gaming would be in the best interest of

the tribe and wouldn’t be detrimental to the surrounding

community. (Id., § 2719(b)(1)(A).) And the Legislature

remains free to restrict the Governor’s concurrence power if it

so chooses. (See ante, pp. 35–37.) What our opinion does

conclude is that the Governor may concur in the Interior

Secretary’s determination to allow class III gaming — if (and

only if) all the other necessary conditions for class III gaming

are satisfied in this cooperative-federalism scheme. Nowhere

does the dissent persuasively justify its assumptions that

article IV, section 19 of the California Constitution imposes a

“flat prohibition of Nevada and New Jersey-style casinos”

despite Proposition 1A’s explicit amendment of the state

Constitution in 2000 to permit some class III gaming, or that a

gubernatorial concurrence under IGRA is prohibited unless it’s

expressly authorized. (Dis. opn., post, at pp. 25–26.)

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provision of the California Constitution that the Governor is

barred from concurring in the Interior Secretary’s

determination to allow class III gaming on land taken into

trust for an Indian tribe after IGRA was enacted. What we

find instead is that article IV, section 19, subdivision (f) —

added to the California Constitution by Proposition 1A —

allows class III gaming to occur “subject to [Governor-

negotiated] compacts” on all “Indian” or “tribal” lands.

Included among these lands are those that require the

Governor to concur before class III gaming is permitted. To

somehow find among these words a categorical rule against

gubernatorial concurrences is to place on the constitutional

provision’s delicate frame a weight it cannot bear.

C.

United Auburn also argues that separation of powers

concerns cut against recognition of a concurrence power here.

Even if the California Constitution — as amended by

Proposition 1A — doesn’t prohibit the Governor from

concurring in the Interior Secretary’s determination, United

Auburn posits, the Governor lacks that power because

concurring is a legislative function, not an executive one. To

find otherwise, claims United Auburn, infringes on the

Legislature’s prerogatives. That the language enshrined in the

Constitution by Proposition 1A appears in article IV of the

Constitution — a section that contains other legislative powers

— underscores for United Auburn that concurrence is a

legislative function.

Although we endeavor to read constitutional provisions

in context, the placement of a provision isn’t dispositive to our

analysis. Consider the constitutional provision authorizing

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this court to recommend (or decline to recommend) that an

application for executive pardon or clemency be granted to a

defendant who has been “twice convicted of a felony.” (Cal.

Const., art. V, § 8, subd. (a).) That power — primarily judicial

in nature — doesn’t become an executive one simply because it

appears in article V of the Constitution, which contains

executive functions. So we decline to characterize the

Governor’s concurrence as a legislative act simply because

Proposition 1A added a provision to article IV of the California

Constitution.

Nor can we assume, as United Auburn’s argument

presumes, that we can in every instance neatly disaggregate

executive, legislative, and judicial power. Treating these

domains as entirely separate and independent spheres

contrasts with the more nuanced treatment of these powers —

and their frequent overlap — under our state constitutional

system. (See Superior Court v. County of Mendocino (1996) 13

Cal.4th 45, 52 [“California decisions long have recognized that,

in reality, the separation of powers doctrine ‘ “does not mean

that the three departments of our government are not in many

respects mutually dependent” ’ ”].) Indeed, our Constitution’s

history “strongly supports a flexible, nonformalist

understanding of separation of powers in which the functions

of the offices are fluid.” (Zasloff, Taking Politics Seriously: A

Theory of California’s Separation of Powers (2004) 51 UCLA

L.Rev. 1079, 1106; cf. Seila Law LLC v. Consumer Financial

Protection Bureau (2020) 140 S.Ct. 2183, 2226 (dis. opn. of

Kagan, J.) [“[T]he separation of powers is, by design, neither

rigid nor complete”].) Rather than attempt to characterize the

Governor’s concurrence power as a wholly legislative or

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executive one, we construe the power as containing features

that cut across both categories.

That fact isn’t fatal to the Governor’s exercise of the

concurrence power, for nothing in our separation of powers

jurisprudence demands “ ‘a hermetic sealing off of the three

branches of Government from one another.’ ” (Hustedt v.

Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338.) We’ve

instead recognized “that the three branches of government are

interdependent,” and so government officials frequently

perform — and are permitted to perform — actions that “may

‘significantly affect those of another branch.’ ” (Carmel Valley

Fire Protection Dist. v. State of California (2001) 25 Cal.4th

287, 298.) What the doctrine prohibits is “one branch of

government [] exercising the complete power constitutionally

vested in another” (Younger v. Superior Court (1978) 21 Cal.3d

102, 117), or exercising power in a way “ ‘ “that undermine[s]

the authority and independence of one or another coordinate

[b]ranch” ’ ” (Carmel Valley, supra, 25 Cal.4th at p. 297). So

the question before us is whether concurring in the Interior

Secretary’s determination unduly limits the role and function

of the legislative branch.

We begin our analysis, once again, with Proposition 1A.

Although the constitutional amendment doesn’t expressly

authorize the Governor to concur, it does allow casino-style

gaming to occur on Indian land in accordance with federal law.

Proposition 1A was significant because it amended the

Constitution to signal a policy of greater openness toward

casino-style gaming — which California had previously

prohibited. (See Cal. Const., art. IV, § 19, subd. (e).) When he

concurs in the Interior Secretary’s determination to allow class

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III gaming on land taken into trust for an Indian tribe,

therefore, the Governor acts consistently with the state’s policy

toward gaming on Indian land, as established by voters. He is

not, as United Auburn would have us believe, engaging in

“gubernatorial legislation.”

That the Governor has historically been tasked with

concurring — or declining to concur — under a variety of

federal statutes also supports our conclusion that the

concurrence power is an executive one. (See In re Battelle

(1929) 207 Cal. 227, 242.) Since 1958, federal law has required

gubernatorial consent before the secretary of a military

department may order Army or Air National reservists to

active duty. (10 U.S.C. § 12301(b).) The Migratory Bird

Conservation Act, enacted in 1961, requires the Governor’s

approval before land can be acquired from the migratory bird

conservation fund. (16 U.S.C. § 715k-5.) Since 1970, the Clean

Air Act has required the consent of the Governor before the

Administrator of the Environmental Protection Agency (EPA)

may grant waivers to allow the construction of certain new

source polluters. (42 U.S.C. § 7411(j)(1)(A).) The National

Estuary Program, established in 1987, requires gubernatorial

concurrence before the EPA Administrator may approve a

conservation and management plan for an estuary. (33 U.S.C.

§ 1330(f)(1).) And the Temporary Assistance for Needy

Families Program, enacted in 1996, prohibits parents from

receiving benefits if they are not employed or participating in

community service unless the “chief executive officer of the

State opts out.” (42 U.S.C. § 602(a)(l)(B)(iv).)

The concurrence power isn’t a hollow one — the Governor

has exercised it throughout our state’s history. (E.g. California

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Society of Anesthesiologists v. Brown (2012) 204 Cal.App.4th

390, 395 [“Governor Arnold Schwarzenegger . . . exercised his

discretion under federal law [42 C.F.R. § 482.52(c)(1) (2020)]

[to opt] California out of the federal physician supervision

Medicare reimbursement requirement”]; Fort Ord Reuse

Authority, Media Release: Major Event in Completion of Early

Transfer of Former Fort Ord Property (Aug. 12, 2008)

<https://dtsc.ca.gov/wp-content/uploads/sites/31/2019/04/

FORA_MediaRelease.pdf> [as of Aug. 28, 2020] [Governor

Schwarzenegger’s concurrence in the transfer of 3,337 acres of

land for economic reuse “provide[d] approval to begin a $100

million privatized munitions and explosives cleanup program”

under the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601

et seq.]; U.S. Gen. Accounting Off., Rep. to the Ranking

Minority Member, Com. on Commerce, H.R., Hazardous

Waste: Information on Potential Superfund Sites (Nov. 1998),

at pp. 350–352 [Governor of California declined to approve

placement of three sites on the National Priorities List for

hazardous waste cleanup under CERCLA]; Governor Pete

Wilson, letter to Administrator Carol Browner, Nov. 17, 1993

[concurring in the EPA Administrator’s conservation and

management plan for an estuary under the National Estuary

Program]; Governor Edmund G. Brown, Jr., letter to Doctor

Robert M. White8 [approving a proposed management program

8

Governor Brown’s letter is available at:

<https://books.google.com/books?id=By75Tpr47w4C&lpg=PA15

&dq=Combined%20CCMP%20%26%20Final%20EIS&pg=PA7#

v=onepage&q&f=false> [as of Aug. 28, 2020].

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under the Coastal Zone Management Act of 1972, 16 U.S.C. §

1451 et seq.].) And although the Legislature has expressly

authorized the Governor to concur under some of these

schemes (see, e.g., Fish & G. Code, § 10680), it has remained

silent regarding the Governor’s concurrence power under most

of them. Historical practice thus demonstrates that the

Governor has the authority to concur in cooperative-federalism

schemes such as IGRA without express legislative

authorization, so long as the Governor’s concurrence is

consistent with state law.

United Auburn seeks to distinguish the Governor’s

concurrence here by asserting that it “has massive land-use

and tax-base consequences.” The Governor’s concurrence

causes the land taken into trust for an Indian tribe to no longer

“be subject to California’s civil, criminal, and tax jurisdiction.”

According to United Auburn, the pivotal role a concurrence

plays in the Interior Secretary’s determination — and how that

determination triggers these significant results — makes it

unlawful for the Governor to exercise that power.

United Auburn’s acute concern about the consequences of

a gubernatorial decision is misplaced. United Auburn is

correct that taking land into trust for an Indian tribe causes

that land to no longer be subject to state or local taxes. (25

U.S.C. § 5108.) But because it is the Interior Secretary — not

the Governor — who retains exclusive authority over whether

to take land into trust (25 C.F.R. § 151.3 (2020)), it is not the

Governor’s concurrence that carries with it that effect. In any

event, closer scrutiny demonstrates that the effect of the

Governor’s concurrence under IGRA isn’t materially distinct

from that under other cooperative-federalism schemes

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requiring his concurrence. Consider the federal law requiring

the United States Secretary of Energy to consult with and

obtain the consent of the Governor of a state where land will be

acquired for the purpose of disposing radioactive waste. (42

U.S.C. § 7916.) Or the requirement that the Interior Secretary

obtain a governor’s concurrence before acquiring land in

national parks for the establishment of an airport. (54 U.S.C.

§ 101501(c)(2).) These examples illustrate how gubernatorial

decisions routinely trigger enormous consequences for local

communities. For these reasons, the consequences of the

Governor’s concurrence in the Interior Secretary’s

determination don’t affect the scope of his power, so long as his

concurrence is consistent with state law.

The concurrence power is also consistent with the

Governor’s historic role as the state’s representative — a role

he has held since before the California Constitution was

enacted. At the 1849 constitutional convention, delegates

agreed that “it is a well[-]established principle” that the

Governor ought to communicate directly with, and represent

the state to, the federal executive branch. (Browne, Report of

the Debates in the Convention of California on the Formation

of the State Constitution in September and October, 1849

(1850) p. 277.) The Legislature later codified the Governor’s

station as “the sole official organ of communication between

the government of this State and the government of . . . the

United States” when it enacted Government Code section

12012. This provision, which readily demonstrates a

legislatively enacted expectation that the Governor serve as

the state’s representative to the federal government, bolsters

the argument that the Governor is capable of playing a role in

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federal schemes that depend on the state government to convey

an official position on behalf of the state of California. (Cf.

Dames & Moore v. Regan (1981) 453 U.S. 654, 677 [“statutes

[are] highly relevant in the looser sense of indicating” the scope

of executive power, even in the absence of express

constitutional authority].)

Indeed, finding the Governor unable to concur in the

Interior Secretary’s determination under IGRA would be in

tension with his legislatively enacted authority under

Government Code section 12012. At oral argument, United

Auburn conceded that the Governor’s executive power

encompasses consulting informally with federal officials who

seek his perspective on decisions that may affect the state.

United Auburn nevertheless seeks to distinguish that

correspondence from IGRA’s requirement that the Interior

Secretary consult with and obtain the Governor’s concurrence

before class III gaming may occur on land taken into trust for

an Indian tribe after IGRA’s effective date. Yet the Governor’s

concurrence under IGRA is akin to analogous communications

with the federal government in which he serves as the state’s

representative — particularly when the federal officer with

whom he communicates makes the discretionary decision to

assign significant weight to the Governor’s views. That

Congress required the Interior Secretary to garner the

concurrence of state governors, rather than leaving that

decision to the Interior Secretary’s discretion, doesn’t by itself

strip the Governor of power to serve as “the sole official organ

of communication” between the state and the federal

government. (Gov. Code, § 12012.)

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Opinion of the Court by Cuéllar, J.

The resulting constitutional and statutory picture in this

case reveals not only nuances about how California has chosen

to conduct relations between the state and the federal

government, but also the subtle shades depicting the precise

limits of the respective powers of the Governor and the

Legislature here. Recall that the California Constitution and

other state law once prohibited casino-style gaming. (See Cal.

Const., art. IV, § 19, subd. (e); Pen. Code, §§ 330, 330a.) But in

2000, voters amended the Constitution to allow that type of

gambling under certain conditions. (Cal. Const., art. IV, § 19,

subd. (f).) In so doing, they bestowed certain powers on the

Governor — the power to “negotiate and conclude compacts”

for class III gaming “on Indian lands in California in

accordance with federal law” — and other powers on the

Legislature — the authority to ratify (or decline to ratify) those

compacts. (Ibid.)

What the newly amended Constitution didn’t address, at

least not expressly, was whether the Governor has the power

to concur in the Interior Secretary’s determination to allow

class III gaming on certain land taken into trust for an Indian

tribe after IGRA was enacted, or the division of authority

between the executive and legislative branch over that task.

Yet in the years since Proposition 1A was enacted, our

Legislature has not — in contrast to the lawmaking bodies of

other states (see, e.g., Ariz. Rev. Stat., § 5-601(a), (c)

[authorizing the Arizona Governor to negotiate and execute

compacts but expressly prohibiting the Governor from

concurring in the Interior Secretary’s determination]) —

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exercised its authority to enact legislation limiting the

Governor’s power to concur.9

In the absence of an express grant or denial of authority,

we conclude that the Governor’s concurrence falls within a

“zone of twilight in which he and [the Legislature] may have

concurrent authority” and where legislative “inertia,

indifference or quiescence” invites the exercise of executive

power. (Youngstown, supra, 343 U.S. at p. 637 (conc. opn. of

Jackson, J.).) By opening the door for class III gaming on

“Indian” and “tribal” lands — some of which require a

gubernatorial concurrence before class III gaming may occur —

Proposition 1A put an end to California’s “flat prohibition of

Nevada and New Jersey-style casinos” (dis. opn., post, at p. 25),

thereby opening the door for the Governor to concur in the

9

Indeed, the Legislature has declined to restrict the

Governor’s power to concur under IGRA despite being given

the opportunity to do so. Assembly Bill No. 1377 (2017-2018

Reg. Sess.), introduced in February 2017, would’ve required

the Governor to seek the Legislature’s approval before

concurring in the Interior Secretary’s determination to allow

casino-style gaming on land taken into trust for an Indian tribe

after IGRA was enacted. The bill failed to pass before the end

of the 2017–2018 regular session and died on January 31, 2018

under article IV, section 10, subdivision (c) of the California

Constitution. (Assem. Bill No. 1377 (2017–2018 Reg. Sess.).)

Although “[w]e have often said that mere legislative inaction is

a ‘weak reed’ upon which to rest any conclusion about the

Legislature's intent” (Prachasaisoradej v. Ralphs Grocery Co.,

Inc. (2007) 42 Cal.4th 217, 243), the Assembly’s consideration

and rejection of Assembly Bill No. 1377 arguably demonstrates

some measure of acquiesce by the Legislature in the

Governor’s concurrence power.

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Interior Secretary’s determination allowing gaming on those

lands. (Cal. Const., art. IV, § 19, subd. (f).) The Governor’s

concurrence in that determination is consistent with his

historic practice of concurring in a variety of cooperative-

federalism schemes, and his role as the state’s representative

under Government Code section 12012. So we find it

consistent with Proposition 1A and our separation of powers

jurisprudence to conclude that, despite the absence of specific

legislative authorization, California law empowers the

Governor to concur.

That power, however, isn’t an indefeasible one. Although

our analysis of Proposition 1A and other state law supports the

finding that the Governor has the power to concur, it also

demonstrates that the legislative branch is capable of enacting

legislation that would reduce the Governor’s concurrence

power to “its lowest ebb.” (Youngstown, supra, 343 U.S. at p.

637 (conc. opn. of Jackson, J.).) The Legislature may, for

example, require the Governor to obtain legislative

authorization before concurring in the Interior Secretary’s

determination — just as Proposition 1A requires the

Legislature to ratify compacts that the Governor negotiates

and concludes before they become effective. (See Cal. Const.,

art. IV, § 19, subd. (f).) Because neither the California

Constitution nor other state law speaks directly to the

Governor’s concurrence power under IGRA, California law is

not inconsistent with this conclusion: That the Legislature

may restrict or eliminate the Governor’s implicit power to

concur. In the absence of state law creating such a limitation,

however, we may not enact one on the Legislature’s behalf. We

conclude that current California law permits the Governor’s

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Opinion of the Court by Cuéllar, J.

concurrence in the Interior Secretary’s determination to allow

class III gaming on Indian land taken into trust for an Indian

tribe after IGRA was enacted.10

III.

United Auburn argues that even if the Governor

generally has the power to concur, he lacks that power in this

particular case. Its argument relies on the Governor’s order of

operations. According to United Auburn, the California

Constitution limits any gubernatorial power to negotiate and

conclude compacts for class III gaming, and to concur in the

Interior Secretary’s determination permitting gaming, to land

designated as “Indian land” at the time of the compact

negotiations. Because the land at issue in this case hadn’t yet

been taken into trust for the Enterprise Tribe when the

Governor negotiated and concluded the compact to allow

gaming, United Auburn contends that the Governor’s compact

and concurrence were invalid.

The language of our constitutional charter belies this

argument. By amending the Constitution to add article IV,

10

Because we conclude that the Legislature may restrict

the Governor’s power to concur, we reject the argument of

amicus curiae Picayune Rancheria: that Congress has violated

the anticommandeering doctrine by prohibiting other branches

of government from constraining the Governor’s power to

concur. Our conclusion that California law, rather than

federal law, empowers the Governor to concur also dispels

United Auburn’s suggestion that IGRA “almost certainly run[s]

afoul of the [Tenth] Amendment of the U.S. Constitution” by

bestowing the Governor with the concurrence power.

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Opinion of the Court by Cuéllar, J.

section 19, subdivision (f), Proposition 1A empowered the

Governor to negotiate and conclude compacts “for the operation

. . . and for the conduct of [class III gaming] by federally

recognized Indian tribes on Indian lands in California.” Those

requirements were satisfied here — when the Enterprise Tribe

engaged in class III gaming, it did so on land the federal

government had, by that point, designated as Indian land by

holding it in trust for the Enterprise Tribe.

Nothing in the Constitution restricts the Governor’s

power to negotiate and conclude compacts to parcels

designated “Indian land” at the time the negotiation happens.

That there’s no such constraint makes sense in light of

historical practice: The 57 compacts negotiated and executed

by California, which Proposition 1A ratified, allowed class III

gaming to occur on land that hadn’t yet been taken into trust

and didn’t otherwise constitute Indian land at the time of

negotiation. Indeed, the land ultimately taken into trust for

United Auburn wasn’t yet Indian land when California and the

tribe negotiated and concluded the compact for class III

gaming on the tribe’s land. (See City of Roseville v. Norton

(D.D.C. 2002) 219 F.Supp.2d 130, 135–136.) We decline to

read into the Constitution a requirement that not only appears

nowhere in its text but would also invalidate the gaming

operations of Indian tribes across the state — including those

of United Auburn.

IV.

For decades, California imposed on itself a categorical

prohibition on casino-style gaming that surely restricted not

only legislative authority, but gubernatorial power. Yet as the

wheel of time spun, voters placed their bets on a Constitution

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Opinion of the Court by Cuéllar, J.

that regulated — rather than prohibited — casino-style (class

III) gaming and empowered the Governor to negotiate and

conclude compacts for casino-style gaming on Indian land in

California. In doing so, voters enacted Proposition 1A and

changed the situation materially. They amended state law to

allow class III gaming on all “Indian” and “tribal” lands “in

accordance with federal law.” (Cal. Const., art. IV, § 19, subd.

(f).) The Governor’s historical practice of concurring in a range

of other cooperative-federalism schemes, and his longstanding

and legislatively enacted role as the state’s representative to

the federal government, demonstrate that he may concur in

the Interior Secretary’s determination without violating the

Legislature’s prerogatives.

The Legislature nonetheless plays a robust role in

responding to the use, and defining the scope, of executive

power. Nearly seven decades have passed since Justice

Jackson emphasized that constitutions of separated powers

“enjoin[] upon its branches separateness but

interdependence” — “autonomy but reciprocity.” (Youngstown,

supra, 343 U.S. at p. 635 (conc. opn. of Jackson, J.).) And while

the materials before us are not quite as “enigmatic as the

dreams Joseph was called upon to interpret for Pharaoh” (id.

at p. 634), they nonetheless require nuanced interpretation for

us to discern how California’s Constitution allows executive

and legislative prerogatives to coexist in the continuing story of

its calibrated approach to tribal gaming. Although lawmakers

haven’t done so yet, they remain free to restrict or eliminate

the Governor’s authority to concur. That the Legislature has

enacted no such law means the power to concur remains in the

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Opinion of the Court by Cuéllar, J.

Governor’s hands. As for the power that remains in our hands,

we affirm the judgment of the Court of Appeal.

CUÉLLAR, J.

We Concur:

CHIN, J.

CORRIGAN, J.

KRUGER, J.

FYBEL, J.*

*

Associate Justice of the Court of Appeal, Fourth

Appellate District, Division Three, assigned by the Chief

Justice pursuant to article VI, section 6 of the California

Constitution.

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S238544

Dissenting Opinion by Chief Justice Cantil-Sakauye

I respectfully dissent. “In the case of a voters’ initiative

statute . . . we may not properly interpret the measure in a

way that the electorate did not contemplate: the voters should

get what they enacted, not more and not less.” (Hodges v.

Superior Court (1999) 21 Cal.4th 109, 114.) This same

principle applies when we interpret a legislative constitutional

amendment approved by the voters.

The outcome here turns on the interpretation of

Proposition 1A, a ballot measure through which the electorate

amended the state Constitution in 2000 to carve out a limited

exception to the prevailing state policy against “casinos of the

type currently operating in Nevada and New Jersey.” (Cal.

Const., art. IV, § 19, subd. (e).) The majority holds that as

amended by Proposition 1A to allow for gaming compacts

between the state and individual Indian tribes, the state

Constitution allows the Governor to concur with a federal

determination that it would be appropriate to situate a

gambling facility on certain off-reservation lands that may be

placed into trust for a tribe by the federal government. This

concurrence represents the only authorization by a California

state official that is absolutely required under federal law for

sophisticated gaming, including slot machines and banked card

games, to take place on these lands. Whether the Governor

possesses the power to concur is therefore an issue of great

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Cantil-Sakauye, C. J., dissenting

significance to the Indian tribes of this state that engage or

want to engage in casino operations, not to mention anyone

else interested in where gambling can occur within state

boundaries.

I would hold that the Governor lacks such a power. The

voters who approved Proposition 1A endorsed gaming

compacts, and only compacts. The measure is not properly

read as authorizing concurrences as well. An average voter

would not have understood such a consequential power as

implied or otherwise envisioned by Proposition 1A’s

authorization of gaming compacts, for reasons including the

fact that the power to concur is not invariably or even normally

necessary to effectuate the compacting power. That

Proposition 1A did not entail a power to concur becomes even

more apparent when its provisions are read in legal and

historical context and in the light cast by the relevant ballot

materials. These resources clarify why voters might have

authorized tribal gaming at locations that do not require a

concurrence but not at those sites where a concurrence is a

prerequisite; and they confirm that Proposition 1A is best

construed as striking such a balance.

For these reasons, as elaborated below, it is my view that

the court’s decision today recognizing a power to concur gives

the voters who approved Proposition 1A quite a bit more — or

depending on one’s perspective, less — than they bargained

for. I would reverse the judgment of the Court of Appeal and

remand for further proceedings.

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Cantil-Sakauye, C. J., dissenting

I. BACKGROUND

My understanding of what the state Constitution, as

amended by Proposition 1A, does and does not allow derives

from a review of federal and state law applicable to tribal

gaming and how this body of law developed over time.

A summary of these principles and events follows.

Our state has long forbidden, limited, or regulated

different forms of gambling. (See Hotel Employees &

Restaurant Employees Internat. Union v. Davis (1999) 21

Cal.4th 585, 591–594 (Hotel Employees).) Well along in this

history, in 1984 the electorate approved Proposition 37, which

authorized a state lottery (Cal. Const., art. IV, § 19, subd. (d))

as an exception to the general prohibition on lotteries and

lottery tickets that appears at article IV, section 19,

subdivision (a) of the state Constitution. Proposition 37 also

added subdivision (e) to article IV, section 19 of the state

charter (article IV, section 19(e)). This provision announces,

“The Legislature has no power to authorize, and shall prohibit,

casinos of the type currently operating in Nevada and New

Jersey.” This bar on casino gaming “was designed . . . to

elevate statutory prohibitions on a set of gambling activities to

a constitutional level.” (Hotel Employees, at pp. 605–606.)

A. The Indian Gaming Regulatory Act

Four years later, after the decision of the United States

Supreme Court in California v. Cabazon Band of Mission

Indians (1987) 480 U.S. 202 upended state constraints on

tribal gaming, Congress enacted the Indian Gaming

Regulatory Act, or IGRA. (Pub.L. No. 100-497 (Oct. 17, 1988)

102 Stat. 2467, as amended & codified at 25 U.S.C. § 2701 et

seq., 18 U.S.C. § 1166 et seq.) This law provides a framework

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Cantil-Sakauye, C. J., dissenting

through which Indian tribes can develop gaming operations in

a manner that allows for the assertion of legitimate state

interests that may be implicated by such activity. (See

Confederated Tribes of Siletz Indians v. U.S. (9th Cir. 1997)

110 F.3d 688, 693 (Confederated Tribes).)

1. The compact requirement for class III gaming

IGRA recognizes three different tiers, or “classes” of

gaming that may occur on Indian lands if the necessary

prerequisites are satisfied. “ ‘ “Class I” consists of social games

for minimal prizes and traditional Indian games; “Class II”

includes Bingo and similar games of chance such as pull tabs

and lotto; “Class III” includes all games not included in Classes

I or II.’ ” (Rumsey Indian Rancheria of Wintun Ind. v. Wilson

(9th Cir. 1994) 64 F.3d 1250, 1255–1256 (Rumsey Indian

Rancheria).)

Class I gaming on Indian lands is within the exclusive

jurisdiction of tribes. (25 U.S.C. § 2710(a)(1).) Class II gaming

on these lands is generally permitted if “located within a State

that permits such gaming for any purpose by any person,

organization or entity (and such gaming is not otherwise

specifically prohibited on Indian lands by Federal law),” and

“the governing body of the Indian tribe adopts an ordinance or

resolution which is approved by the” tribe’s chairperson. (25

U.S.C. § 2710(b)(1)(A), (B).)

Class III gaming, which includes slot machines and

banked card games, is by far the most lucrative of the three

gaming categories and “is subject to a greater degree of federal-

state regulation than either class I or class II gaming.” (In re

Indian Gaming Related Cases (9th Cir. 2003) 331 F.3d 1094,

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1097.) Section 11 of IGRA provides that “Class III gaming

activities shall be lawful on Indian lands only if such activities

are” duly authorized by a tribe, “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.” (25

U.S.C. § 2710(d)(1)(A), (B), (C).) “IGRA’s compact requirement

grants States the right to negotiate with tribes located within

their borders regarding aspects of class III tribal gaming that

might affect legitimate State interests.” (In re Indian Gaming

Related Cases, 331 F.3d at p. 1097.) Through this mechanism,

“[t]he compacting process gives to states civil regulatory

authority that they otherwise would lack under Cabazon, while

granting to tribes the ability to offer legal class III gaming.”

(Artichoke Joe’s California Grand Casino v. Norton (9th Cir.

2003) 353 F.3d 712, 716.)

A compact between a tribe and a state may contain the

parties’ agreement on matters such as the kinds of class III

gaming that will occur, how this gaming will be regulated, and

various other matters relevant to these operations. (25 U.S.C.

§ 2710(d)(3)(C).) Compacts also require federal approval to

become effective. (Id., § 2710(d)(3)(B).) A state that allows

class III gaming must negotiate in good faith with a tribe that

requests a gaming compact. (Id., § 2710(d)(3)(A).)1 If a tribe

1

There is a split of authority regarding whether a state

must engage in good faith negotiations concerning class III

gaming if it allows any kind of class III game, or if a state must

so negotiate only if it allows the specific class III game(s) that a

tribe wants to pursue. (Compare Rumsey Indian Rancheria,

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Cantil-Sakauye, C. J., dissenting

believes the state has failed to satisfy this responsibility, IGRA

provides for a cause of action in federal court, enforceable

against a state that has waived its immunity under the

Eleventh Amendment to the United States Constitution.

(25 U.S.C. § 2710(d)(7)(A)(i); Seminole Tribe of Florida v.

Florida (1996) 517 U.S. 44, 76.) Through such an action, a

tribe can obtain court intervention and mediation to help

secure a compact. (25 U.S.C. § 2710(d)(7)(B)(i)–(vi).) If these

efforts fail to yield an agreement, IGRA directs the federal

Secretary of the Interior (hereinafter referred to as the

Secretary) to impose “procedures” upon a state specifying how

class III gaming by the tribe is to occur. (25 U.S.C.

§ 2710(d)(7)(b)(vii).)

2. The concurrence requirement for gaming on certain

after-acquired lands

IGRA authorizes tribal gaming on “Indian lands,” defined

as “(A) all lands within the limits of any Indian reservation;

and [¶] (B) any lands title to which is either held in trust by

the United States for the benefit of any Indian tribe or

individual or held by any Indian tribe or individual subject to

restriction by the United States against alienation and over

which an Indian tribe exercises governmental power.” (25

U.S.C. § 2703(4)(A)–(B); see also id., § 5108 [authorizing the

Secretary to acquire land in trust for a tribe]; 25 C.F.R.

§§ 151.10, 151.11 (2020) [articulating criteria to be considered

by the Secretary in determining whether to place land into

supra, 64 F.3d at p. 1258 with Mashantucket Pequot Tribe v.

State of Conn. (2d Cir. 1990) 913 F.2d 1024, 1030.)

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Cantil-Sakauye, C. J., dissenting

trust for a tribe].)2 But the statute generally prohibits class II

and class III gaming on lands acquired by the federal

government in trust for the benefit of an Indian tribe after

October 17, 1988, the statute’s date of enactment. (25 U.S.C.

§ 2719(a).) This proscription responds to concerns raised in

Congress “about the possibility that tribal governments might

acquire land in or near metropolitan areas on which they

might open bingo or even casino facilities.” (Boylan,

Reflections on IGRA 20 Years After Enactment (2010) 42

Ariz.St. L.J. 1, 9–10.)

The statute provides for several exceptions that moderate

the general rule prohibiting class II and class III gaming on

“after-acquired” trust lands. Among them, the prohibition does

2

A federal regulation promulgated in 2008 (Gaming on

Trust Lands Acquired After October 17, 1988, 73 Fed. Reg.

29354 (May 20, 2008)) defines “reservation” as “(1) Land set

aside by the United States by final ratified treaty, agreement,

Executive Order, Proclamation, Secretarial Order or Federal

statute for the tribe, notwithstanding the issuance of any

patent; [¶] (2) Land of Indian colonies and rancherias

(including rancherias restored by judicial action) set aside by

the United States for the permanent settlement of the Indians

as its homeland; [¶] (3) Land acquired by the United States to

reorganize adult Indians pursuant to statute; or [¶] (4) Land

acquired by a tribe through a grant from a sovereign, including

pueblo lands, which is subject to a Federal restriction against

alienation.” (25 C.F.R. § 292.2 (2020).) Prior to the

promulgation of this regulation, the meaning of “reservation,”

as used in the relevant provisions of IGRA, was less certain.

(Compare Sac and Fox Nation of Missouri v. Norton (10th Cir.

2001) 240 F.3d 1250, 1267 with Exposing Truth about Casinos

v. Kempthorne (D.C. Cir. 2007) 492 F.3d 460, 465.)

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Cantil-Sakauye, C. J., dissenting

not apply to trust lands that are “located within or contiguous

to the boundaries of the reservation of the Indian tribe on

October 17, 1988” (25 U.S.C. § 2719(a)(1)), or when “lands are

taken into trust as part of — [¶] (i) a settlement of a land

claim, [¶] (ii) the initial reservation of an Indian tribe

acknowledged by the Secretary under the Federal

acknowledgment process, or [¶] (iii) the restoration of lands for

an Indian tribe that is restored to Federal recognition” (id.,

§ 2719(b)(1)(B); see also 25 C.F.R. §§ 292.3–292.12 (2020)).

These exceptions have been described as either “so obvious

that they might be seen as merely technical corrections to the

general definition of ‘Indian lands’ ” or “relatively

noncontroversial from a conceptual standpoint because they

too have history behind them.” (Jensen, Indian Gaming on

Newly Acquired Lands (2008) 47 Washburn L.J. 675, 687

(hereinafter Jensen).) “[A]ll require, at least indirectly,

demonstrating a strong link between the tribe and the land at

issue . . . .” (Id., at p. 688.) Furthermore, “because these

provisions deal with circumstances that are exceptional, they

are less likely to be of general public interest” than the

exception that depends on the existence and exercise of the

power to concur. (Ibid.)

This additional exception involving the power to concur

appears at section 20(b)(1)(A) of IGRA, which provides that

tribal gaming may occur on land taken into trust by the federal

government for a tribe after IGRA’s date of enactment 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 establishment

on [the] newly acquired lands would be in the best interest of

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Cantil-Sakauye, C. J., dissenting

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. § 2719(b)(1)(A).) A positive two-part determination by

the Secretary does not absolutely require a showing that the

property involved is close to a tribe’s existing reservation

lands, or that the tribe has a historical connection to the site,

although these are among the facts considered by the

Secretary in determining whether a gaming establishment

would be in the best interest of the tribe and its members and

whether it would or would not be detrimental to the

surrounding community. (25 C.F.R. §§ 292.16, 292.17,

292.21(a) (2020); see also id., § 151.11(b) (2020) [identifying the

location of off-reservation land proposed to be taken into trust

for a tribe, relative to a tribe’s reservation, as a factor to be

considered by the Secretary in deciding whether to take the

land into trust].)

Section 20(b)(1)(A) of IGRA, with its requirements of a

two-part determination by the Secretary and a concurrence by

the appropriate governor, “is Section 20’s only truly

discretionary exception.” (All, John McCain and the Indian

Gaming “Backlash”: The Unfortunate Irony of S. 2078 (2006)

15 Kan. J.L. & Pub. Pol’y 295, 302 (hereinafter All).) Because

the sequence described by section 20(b)(1)(A) “could apply to

any tribe, it is by definition a broader exception than any of the

mandatory exceptions” IGRA provides to the law’s general

prohibition of gaming on after-acquired lands. (All, at p. 303.)

As one scholar has explained, this is the exception for “newly

acquired lands most likely to have broad application — and

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Cantil-Sakauye, C. J., dissenting

most likely therefore to generate public discussion and, for

some, dismay.” (Jensen, supra, 47 Washburn L.J. at p. 688.)

Although IGRA is the source of the concurrence

procedure, whether an individual state governor has the power

to concur is a matter of state law. (Confederated Tribes, supra,

110 F.3d at p. 697.) And in contrast with IGRA’s provision of a

cause of action when a state does not engage in good faith

compact negotiations, nothing within the statute allows a tribe

to seek judicial review of a Governor’s refusal to issue a

concurrence. Thus, the concurrence requirement “essentially

provides veto power to the Governor of the State in which the

land [proposed as a site for gaming operations] is located.”

(Sheppard, Taking Indian Land into Trust (1999) 44 S.D.

L.Rev. 681, 687.)

B. Proposition 5

The enactment of IGRA did not quell the debates in this

state over tribal gaming. “Despite IGRA’s negotiation and

compact framework, several unresolved conflicts . . . developed

between the State of California and Indian tribes surrounding

class III gaming and, especially, gaming devices in casinos.”

(Hotel Employees, supra, 21 Cal.4th at p. 596.)

Proposition 5, an initiative measure appearing on the

November 1998 ballot, was designed to better define the

parameters for tribal gaming within the state. This measure

included a model gaming compact that, if requested by a tribe,

was to be promptly approved by the Governor as a ministerial

matter. (Gov. Code, § 98002, subd. (a).) The model compact

authorized class III card games and certain slot machines, so

long as the payouts drew from a “players’ pool” funded by

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player wagers. (Id., § 98004.) Another provision within

Proposition 5 authorized the Governor to negotiate gaming

compacts with terms different from those contained in the

model compact and to reach agreement with tribes on such

compacts. (Gov. Code, § 98002, subd. (b).) Nothing within

Proposition 5 expressly conferred a power to concur upon the

Governor.

Proposition 5 passed, but that victory was short-lived.

We determined in Hotel Employees that the proposition’s model

compact authorized gaming that the state Constitution

precluded as representative of “casinos of the type currently

operating in Nevada and New Jersey.” (Cal. Const., art. IV,

§ 19, subd. (e).) On that basis, we concluded that the vast

majority of the initiative, including its model compact, was

invalid and unenforceable. (Hotel Employees, supra, 21 Cal.4th

at p. 615.) We held that only the initiative’s waiver of

sovereign immunity for certain claims brought in federal

court — part of section 98005 of the Government Code — was

severable from the invalid portions of Proposition 5 and

survived. (Hotel Employees, at pp. 614–615.)

C. Proposition 1A

Within weeks of our decision in Hotel Employees,

overwhelming majorities in both the Senate and the Assembly

voted to place Proposition 1A before the electorate at the

March 2000 primary election. Through Proposition 1A, voters

were asked to decide whether to add a new subdivision (f) to

article IV, section 19 of the state Constitution (article IV,

section 19(f)), providing in part that notwithstanding

constitutional constraints on gaming, “the Governor is

authorized to negotiate and conclude compacts, subject to

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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.” (Voter Information Guide, Primary Elec. (Mar. 7, 2000)

text of Prop. 1A, p. 90 (Voter Information Guide).)

Coincident with Proposition 1A’s placement on the ballot,

then-Governor Gray Davis negotiated gaming compacts with

57 tribes. (In re Indian Gaming Related Cases, supra, 331 F.3d

at pp. 1105–1106.) None of these compacts required a

concurrence. The Legislature promptly ratified the compacts

(Stats. 1999, ch. 874, § 1, pp. 6257–6260), which authorized

forms of class III gaming (e.g., banked card games) that were

not permitted under the model compact found within

Proposition 5.

Because of the constitutional prohibition on gaming,

however, these negotiated compacts would become effective

only if Proposition 1A passed. Which it did: Proposition 1A

was approved by voters at the March 2000 primary election.

D. Factual and Procedural Background

The Enterprise Rancheria of Maidu Indians (the

Enterprise Tribe) was federally recognized as a sovereign

Indian tribe in 1915. In June 2002, the Enterprise Tribe asked

the federal government to take approximately 40 acres of off-

reservation land into trust for the tribe. This parcel is in Yuba

County, near the community of Olivehurst. It is situated

approximately 36 miles by car from where the Enterprise Tribe

maintains its core governmental functions. The Enterprise

Tribe subsequently confirmed that the purpose of the proposed

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trust acquisition was to host a class III gaming facility. The

tribe supported its application for a casino with documentation

of the economic benefits that would accrue to the tribe and the

surrounding community if the casino project went forward.

In September 2011, the Secretary issued a favorable two-

part determination pursuant to section 20(b)(1)(A) of IGRA.

The Secretary concluded that gaming on the parcel would be in

the best interest of the Enterprise Tribe and would not be

detrimental to the surrounding community or to neighboring

tribes. The Secretary also found that the Enterprise Tribe had

a “significant historical connection” to the site.

The Secretary requested that then-Governor Jerry Brown

concur in this determination. The Governor issued his

concurrence in August 2012. In 2013, the Secretary took the

land into trust for the tribe for the purpose of gaming.

On behalf of the state, the Governor negotiated a

compact for class III gaming with the Enterprise Tribe. The

proposed compact was submitted to the Legislature for

approval. The Legislature failed to ratify the agreement,

however, and it died by its own terms in 2014. The Enterprise

Tribe invoked IGRA’s judicial failsafe, arguing that the

Legislature’s inaction amounted to a failure by the state to

proceed in good faith. The federal district court rejected the

state’s assertion of sovereign immunity under the Eleventh

Amendment as inconsistent with the waiver appearing at

section 98005 of the Government Code. (Estom Yumeka Maidu

Tribe v. California (E.D.Cal. 2016) 163 F.Supp.3d 769, 776–

777.) The court concluded that the state had not met its

burden of showing it had negotiated in good faith. (Id., at p.

786.) It ordered the parties to conclude a compact within 60

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days. (Id., at pp. 786–787; see also 25 U.S.C.

§ 2710(d)(7)(B)(iii).)

Neither this order nor subsequent mediation led to a

compact. In August 2016, the Secretary issued secretarial

procedures for the conduct of class III gaming on the parcel.

The Enterprise Tribe’s casino property — the Hard Rock Hotel

& Casino Sacramento at Fire Mountain — has since opened at

the Olivehurst site.

Plaintiff United Auburn Indian Community of the

Auburn Rancheria operates the Thunder Valley Casino Resort

in Lincoln, California. This casino is located within 25 miles of

the Hard Rock Hotel & Casino Sacramento at Fire Mountain.

United Auburn asserts that the new casino will siphon

business away from its facility, with negative economic

consequences for the tribe. In this lawsuit, United Auburn

contends that as a matter of state law, the Governor lacks the

power to concur in the Secretary’s two-part determination.

The superior court rejected United Auburn’s argument, as did

the Court of Appeal. (United Auburn Indian Community of

Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36, 42.)

E. Other Litigation

While this case was pending before us, we granted review

in another matter that also presents the question whether the

Governor has the power to concur. In Stand Up for California!

v. State of California (2016) 6 Cal.App.5th 686 (Stand Up!), the

Fifth District Court of Appeal concluded that the Governor

lacked such authority, at least given the specific facts as

alleged in that case.

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In Stand Up!, the Governor issued a concurrence in

connection with an off-reservation casino proposed by the

North Fork Rancheria of Mono Indians and negotiated a

compact for gaming operations by the tribe. The off-

reservation land where the casino would be situated was then

taken into trust by the federal government. Unlike here, the

Legislature ratified the compact that the Governor had

negotiated. But the compact was made subject to a voter

referendum (Proposition 48) at the November 2014 election, at

which time it was rejected by the voters. (See Stand Up!,

supra, 6 Cal.App.5th at pp. 691–694 [recounting these events].)

All three justices on the Stand Up! panel concluded that

under the circumstances, the Governor lacked the authority to

concur with the Secretary’s two-part determination. Justice

Smith, emphasizing that voters had rejected the gaming

compact the Governor had negotiated, determined that “it

would be perverse to find the Governor has an implied

authority based on an express power [to compact] that the

state has finally decided not to exercise, after protracted

consideration by the Governor, the Legislature, and the

voters.” (Stand Up!, supra, 6 Cal.App.5th at p. 700.)

Concurring and dissenting in Stand Up!, Justice Detjen

focused on the fact that a concurrence had been issued and a

compact had been negotiated before the federal government

acquired the land in trust for the tribe. She explained,

“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.”

(Stand Up!, supra, 6 Cal.App.5th at p. 715 (conc. & dis. opn. of

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Detjen, J.).) Because the concurrence related to what Justice

Detjen regarded as an improper exercise of the compacting

power, it too was invalid. (Id., at pp. 710, 718–719 (conc. & dis.

opn. of Detjen, J.).)

Also concurring and dissenting, Justice Franson took the

position that regardless of whether a gaming compact has or

has not been approved, the state Constitution, as amended by

Proposition 1A, does not grant the Governor the power to

concur. Regarding Proposition 1A, he explained, “[E]xpanding

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.” (Stand Up!, supra, 6 Cal.App.5th at p.

723 (conc. & dis. opn. of Franson, J.).)3

II. DISCUSSION

“ ‘In construing constitutional and statutory provisions,

whether enacted by the Legislature or by initiative, the intent

of the enacting body is the paramount consideration.’ ”

(Legislature v. Eu (1991) 54 Cal.3d 492, 505.) We construe the

language of a measure approved by the electorate as it would

3

Justice Franson’s concurring and dissenting opinion in

Stand Up! used “the phrase ‘off-reservation casinos’ to mean

casinos located on ‘after-acquired trust land’ for which the

Secretary of the Interior’s . . . two-part determination and the

Governor’s concurrence is required before casino-type gambling

may proceed at that location.” (Stand Up!, supra,

6 Cal.App.5th at p. 722, fn. 1 (conc. & dis. opn. of Franson, J.).)

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be understood by an average voter. (People v. Adelmann (2018)

4 Cal.5th 1071, 1080 [“ ‘[t]he particularized meaning of words

in complex, legislatively enacted statutes has little bearing on

the interpretation of words in an initiative, which we construe

according to their ordinary meanings as understood by ‘the

average voter’ ”]; see also Robert L. v. Superior Court (2003) 30

Cal.4th 894, 902; Wallace v. Zinman (1927) 200 Cal. 585, 592.)

This general rule whereby we construe words as carrying their

normal, everyday meanings is subject to an exception when it

appears that voters would have understood a term as having a

special or technical meaning in its specific context. (Steinhart

v. County of Los Angeles (2010) 47 Cal.4th 1298, 1318; Kaiser v.

Hopkins (1936) 6 Cal.2d 537, 538.) We also presume that the

average voter is aware of existing law, but this presumption is

“not conclusive.” (Santos v. Brown (2015) 238 Cal.App.4th 398,

410.)

A. Article IV, Section 19(f) Does Not Confer a

Power To Concur

As added by Proposition 1A, article IV, section 19(f)

carves out a limited exception to the general prohibitions on

lotteries and casino gaming that appear elsewhere in the same

section of the state Constitution. Article IV, section 19(f)

provides, in full, “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

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games are hereby permitted to be conducted and operated on

tribal lands subject to those compacts.”

As Justice Franson determined in his concurring and

dissenting opinion in Stand Up!, an average voter would not

have understood this language as giving the Governor the

power to concur. Article IV, section 19(f) speaks only of

compacts to be ratified by the Legislature, not gubernatorial

concurrences. This cannot be regarded as an inadvertent

oversight. By giving or withholding a concurrence, a governor

exercises veto power over the application of section 20(b)(1)(A)

of IGRA, the broadest and perhaps most controversial of the

exceptions to the general prohibition against gaming on after-

acquired tribal lands. (All, supra, 15 Kan. J.L. & Pub. Pol’y at

p. 304; Jensen, supra, 47 Washburn L.J. at p. 688.) Given how

federal courts have construed Government Code section 98005,

recognizing a power to concur means that a determination by a

single state official, the Governor, imposes upon the state an

obligation to negotiate in good faith for class III gaming on

property associated with a positive two-part determination by

the Secretary. In fact, the Governor’s concurrence is the only

authorization by the state that is absolutely necessary for a

casino offering this kind of gaming to open at such a site. The

facts of this case demonstrate as much — the Hard Rock Hotel

& Casino Sacramento at Fire Mountain has become

operational without the Legislature ever having ratified a

compact, with secretarial procedures for the conduct of gaming

having been imposed upon the state instead. Nothing within

article IV, section 19(f) reasonably conveys that it gives the

Governor such a consequential power. (Cf. In re Christian S.

(1994) 7 Cal.4th 768, 782 [“We are not persuaded the

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Legislature would have silently, or at best obscurely, decided

so important and controversial a public policy matter and

created a significant departure from the existing law”].)

Nor is the existence of a power to concur somehow

implied by Proposition 1A’s authorization of gaming compacts.

The Governor’s involvement with a compact is “of a

qualitatively different nature from his concurrence in the

Interior Secretary’s discretionary ‘best-interests’ waiver of

§ 2719’s general gaming prohibition.” (Keweenaw Bay Indian

Community v. U.S. (6th Cir. 1998) 136 F.3d 469, 477.) Under

IGRA, compacts and concurrences are distinct acts with

different consequences. (See Keweenaw Bay, at p. 475 [“the

existence of a valid, approved compact does not eliminate other

statutory requirements, in this case, conformity with § 2719”].)

Class II gaming can occur on off-reservation lands pursuant to

a concurrence, without the need for a gaming compact. And

compacts can be completed and ratified even if the Governor

lacks the power to concur, provided that they authorize only

class III gaming operations on trust lands acquired on or

before October 17, 1988, or on after-acquired trust lands for

which no concurrence is required. These are in fact the most

common kinds of gaming compacts; as previously mentioned,

not one of the compacts directly before the voters at the March

2000 primary election required a concurrence to become

effective.

In short, a voter in the March 2000 primary election

would not have understood Proposition 1A’s authorization of

gaming compacts as subsuming an implied power to concur.

By authorizing compacts but not concurrences, Proposition 1A

struck a balance. The measure permitted a relatively broad

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array of class III tribal gaming (at least compared to what was

previously allowed) on reservation lands and after-acquired

trust lands for which no concurrence is required, but it did not

open the door to the most open-ended and potentially

controversial category of class III casino developments, those

requiring the exercise of the concurrence power.

B. The Ballot Materials for Proposition 1A Do Not

Support a Power To Concur

The ballot materials associated with Proposition 1A

provide additional indications that the voters who approved

that measure did not intend to confer the power to concur.

Where, as here, a constitutional amendment has been

approved by the voters, “the ballot summary and arguments

and analysis presented to the electorate in connection with a

particular measure may be helpful in determining the probable

meaning of uncertain language.” (Amador Valley Joint Union

High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d

208, 245–246.) Nothing within the voter pamphlet for the

March 2000 primary election explained to voters that

Proposition 1A would give the Governor the power to concur.

To the contrary, through such silence and the affirmative

representations of the measure’s proponents, these materials

suggested that Proposition 1A would not pave the way for class

III casinos on after-acquired trust lands through section

20(b)(1)(A) of IGRA.

Beginning with the Legislative Analyst’s analysis of the

measure, this description never raised the possibility that

Proposition 1A could lead to off-reservation gaming that

requires a concurrence. The analysis addressed Proposition 5,

our Hotel Employees decision, and the gaming compacts with

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57 tribes that would become effective if Proposition 1A passed

and the federal government gave its approval. (Voter

Information Guide, supra, analysis of Prop. 1A by Legis.

Analyst, pp. 4–5.) The analysis also explained that Proposition

1A “amends the State Constitution to permit Indian tribes to

conduct and operate slot machines, lottery games, and banked

and percentage card games on Indian land. These gambling

activities could only occur if (1) the Governor and an Indian

tribe reach agreement on a compact, (2) the Legislature

approves the compact, and (3) the federal government approves

the compact.” (Voter Information Guide, analysis of Prop. 1A

by Legis. Analyst, p. 5.) By failing to include a concurrence

among the prerequisites for class III gaming, this analysis

conveyed that the measure authorized only gaming operations

for which no concurrence is required.

The arguments by proponents of Proposition 1A that

appeared within the spring 2000 ballot pamphlet carried a

similar message. The argument in favor of Proposition 1A

advised that voter approval was necessary to preserve tribal

gaming where it was currently being conducted: “We are

asking you to vote YES on Proposition 1A so we can keep the

gaming we have on our reservations.” (Voter Information

Guide, supra, argument in favor of Prop. 1A, p. 6.) This

argument also explained, “Prop 1A has been put on the March

ballot to . . . establish clearly that Indian gaming on tribal

lands is legal in California.” (Ibid.) In response to opponents’

arguments that “[c]asinos won’t be limited to remote locations”

(Voter Information Guide, argument against Prop. 1A, p. 7)

and “Indian tribes are already buying up prime property for

casinos in our towns and cities” (ibid.), proponents quoted a

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former field investigator for the National Indian Gaming

Commission as saying, “ ‘Proposition 1A and federal law

strictly limit Indian gaming to tribal land. The claim that

casinos could be built anywhere is totally false’ ” (Voter

Information Guide, rebuttal to argument against Prop. 1A, p.

7), and repeated an economist’s assertion that ‘‘ ‘[t]he majority

of Indian Tribes are located on remote reservations and the

fact is their markets will only support a limited number of

machines’ ” (ibid.).

At oral argument, counsel for the Governor characterized

at least the first of these responses as “clever” and technically

correct. But when reviewing a ballot argument for insight into

voter intent, the question is not whether a party to the debate

earns points for artful wordplay. What matters instead is how

an argument contributed, if at all, to a voter’s understanding of

the measure to which it pertains. Here, an average voter

would have understood these responses as addressing the

opponents’ assertion that if Proposition 1A passed, casinos

could crop up in towns and cities across the state. The

responses imparted to an average voter that this claim was

false, and that the casinos authorized by Proposition 1A would

be situated on “ ‘remote reservations’ ” (Voter Information

Guide, supra, rebuttal to argument against Prop. 1A, p. 7), or

at least where tribes were “ ‘located’ ” (ibid.). By implication,

these responses corroborated what an average voter already

would have gleaned from the proposition’s text: that the

measure did not confer the power to concur. For as has been

explained, if the Governor does have this power, it can open

the door to gaming facilities situated on any land within the

state that the federal government has found suitable for

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gaming and agrees to take into trust for a tribe — decisions

that do not strictly demand that the property be close to an

existing reservation or that the tribe have a historical

relationship to the proposed trust land.4

4

Similarly, on www.yeson1A.net, a website that

Proposition 1A’s proponents directed voters toward in the

ballot materials (Voter Information Guide, supra, rebuttal to

argument against Prop. 1A, p. 7), the most pertinent

explanation of the measure’s effect on where tribal gaming

could take place equated “Indian lands” and “tribal lands” with

“reservation lands,” and indicated that tribal casinos would be

limited to these lands. The website included the following

exchange: “Q. How would the number of casinos be limited

under the compact and would the passage of Prop 1A allow

Indian tribes to build casinos outside of tribal lands? [¶]

A. There are several clear limitations: First, existing federal

law strictly limits tribal gaming to Indian lands only. The

Indian Gaming Regulatory Act (IGRA) passed by Congress in

1988, mandates that Indian casinos can only be located on

tribal reservation lands. [¶] Second, under the recent tribal-

state compact signed by the Governor, a California tribe is

specifically prohibited from operating more than two casinos

on their reservation. [¶] Third, the economic reality will

continue to limit the number of Indian casinos in our state. In

most areas where Indian gaming is economically viable, the

local tribes already have a casino. Most non-gaming tribes are

located too far from population centers, in remote areas where

an Indian casino simply would not be practical. In Nevada,

casinos are legal everywhere but you can drive for miles

through that state without seeing a casino in non-urban areas

because the market to support them does not exist.” (Yes on

1A, Proposition 1A: Answers to Common Questions (Mar. 6,

2000) <http://digital.library.ucla.edu/websites/2000_999_028/>

[as of Aug. 28, 2020], italics added; this citation is archived by

year, docket number, and case name at

<http://www.courts.ca.gov/38324.htm>.) Regardless of whether

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All in all, I agree with Justice Franson’s conclusion in

Stand Up! that Proposition 1A cannot properly be construed as

giving the Governor the power to concur. As he recapped, after

an exhaustive analysis of the issue, “First, the text of

Proposition 1A plainly omits the power to concur in the

Secretary’s two-part determination. Second, an implied grant

of that power is not necessary under the principles of

California law that govern necessary implications. Third, the

wording of Proposition 1A and the materials in the ballot

pamphlet did not inform the average voter that approving

Proposition 1A would grant the Governor the power to concur

or, more generally, would grant the Governor the authority to

either veto or approve a proposed off-reservation casino.

Fourth, expanding Indian gaming to off-reservation locations

was and is a controversial question of public policy with a wide

range of consequences, and it is implausible that the average

voter would have understood that Proposition 1A granted the

Governor an implied authority to concur and thereby allowed

off-reservation casinos. The controversy should not be resolved

by implication when the voters were not informed that such an

Proposition 1A actually limited casinos to reservation lands, as

opposed to reservation lands and a limited array of off-

reservation lands where no concurrence would be required for

the institution of casino operations, this description of where

casinos could appear if Proposition 1A passed is more

consistent with an interpretation of the measure as not

encompassing a power to concur than it is with the majority’s

construction of the constitutional amendment as authorizing

the more open-ended siting of casinos in the state.

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implication existed.” (Stand Up!, supra, 6 Cal.App.5th at p.

767 (conc. & dis. opn. of Franson, J.).)

C. The Arguments for Recognizing a Power To

Concur Are Unpersuasive

The most weighty argument in favor of the majority’s

interpretation of Proposition 1A derives from the use of the

term “Indian lands” within article IV, section 19(f)’s

authorization of compacts for gaming “by federally recognized

Indian tribes on Indian lands in California in accordance with

federal law.” As previously observed, IGRA provides a

framework for tribal gaming on “Indian lands,” which the

statute defines as “(A) all lands within the limits of any Indian

reservation; and [¶] (B) any lands title to which is either held

in trust by the United States for the benefit of any Indian tribe

or individual or held by any Indian tribe or individual subject

to restriction by the United States against alienation and over

which an Indian tribe exercises governmental power.” (25

U.S.C. § 2703(4)(A)–(B).) This definition leads to an argument

in favor of recognizing a power to concur that proceeds as

follows: Proposition 1A authorizes compacts for gaming on

“Indian lands”; IGRA supplies a broad definition of “Indian

lands”; an average voter would have understood Proposition 1A

as authorizing compacts for casinos located on any such lands;

therefore, article IV, section 19(f) incorporates an implied

power to concur, because a concurrence is necessary for class

III gaming operations on certain after-acquired Indian lands.

I find this argument unpersuasive. First, it is unclear at

best that an average voter would have understood “Indian

lands,” as that term is used in article IV, section 19(f), as

carrying the technical meaning assigned to it by section 4 of

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IGRA. Article IV, section 19(f) uses “Indian lands”

interchangeably with another term, “tribal lands,” that

appears nowhere in the federal statute. A voter could have

regarded this use of different phrasing as communicating that

Proposition 1A did not embrace the definition IGRA attaches to

one, and only one, of these terms. Second, even assuming that

voters did understand “Indian lands” within Proposition 1A as

invoking IGRA’s definition of this term, article IV, section 19(f)

does not say that gaming may occur on any or all of these

lands. Instead, this provision allows the Governor to

“negotiate and conclude compacts, subject to ratification by the

Legislature” through which certain specified forms of gaming

may occur on Indian lands, and repeats that this gaming may

occur “on tribal lands subject to those compacts.” Without any

reference to a power to concur, an average voter would have

understood article IV, section 19(f) as envisioning class III

gaming only on those “Indian lands” or “tribal lands” on which

a compact, and a compact alone, provides sufficient state

authorization for the institution of gaming operations.

The majority also claims that the Governor possesses the

“inherent power to concur to allow class III gaming.” (Maj.

opn., ante, at p. 20.) But this bold assertion is exactly that —

mere assertion. The majority nowhere explains why the

Governor possesses such inherent authority in a sphere

controlled by the state Constitution’s flat prohibition of Nevada

and New Jersey-style casinos and its specification of a limited

exception for tribal gaming. These provisions of article IV,

section 19 establish that the Governor has no such inherent

power. That which is not authorized by article IV, section 19(f)

remains forbidden by article IV, section 19(e). And as I have

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explained, neither the text nor the context of article IV, section

19(f) supports an interpretation of this provision as authorizing

the Governor to concur. In light of article IV, section 19(e)’s

broad prohibition of Nevada and New Jersey-style casinos, this

conclusion resolves the question before us. The electorate that

approved Proposition 1A was not required to go further and

explicitly deny the Governor the power to concur in order to

prevent its exercise. (See maj. opn., ante, at pp. 19–20, 35–37.)

To draw from Justice Franson’s concurring and

dissenting opinion in Stand Up! one final time, “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 . . . .)”

(Stand Up!, supra, 6 Cal.App.5th at pp. 722–723 (conc. & dis.

opn. of Franson, J.).) Today’s decision does not advance the

goal of transparency. Proposition 1A’s text and ballot

materials emphasized legislative approval for gaming

compacts, they did not disclose the existence of the power to

concur, and they did not portray the proposition as opening the

door to off-reservation gaming to the extent that concurrences

can. Under the circumstances, it is a mistake to conclude that

the voters who approved the measure intended to give the

Governor the power to concur.

27

UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN

RANCHERIA v. NEWSOM

Cantil-Sakauye, C. J., dissenting

III. CONCLUSION

Legislative constitutional amendments, like initiatives,

provide concrete examples of direct democracy in action.

Courts must review the electorate’s handiwork carefully. If we

give voters more or less than what they approved, our

interpretations can sow cynicism and distrust of the process.

To accurately capture the intent behind a measure

approved by the electorate, we must appreciate how average

voters genuinely would have understood what was put before

them. Realistically, the average voter at the March 2000

election would not have understood article IV, section 19(f) as

going beyond its plain language regarding compacts and also

giving the Governor the power to concur. Such a voter would

not have locked into article IV, section 19(f)’s reference to

“Indian lands,” consulted IGRA, and concluded that even

though the constitutional amendment did not mention a power

to concur, it necessarily contemplated casinos that could exist

only through the exercise of such a power. And such a voter

would not have understood Proposition 1A, with its focus on

legislatively ratified compacts, as nevertheless allowing a

casino to be built on off-reservation land such as that involved

here even without a compact, so long as the Governor

concurred and other prerequisites were met.

Voters clearly have the power to authorize tribal gaming

on off-reservation trust lands to a greater extent than they did

with Proposition 1A. But by all indications, they chose a path

that steps out of the shadow of the general state policy against

Nevada and New Jersey-style casinos only so far as to allow

class III gaming on those lands where no gubernatorial

concurrence is required. Where the majority sees twilight, I

28

UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN

RANCHERIA v. NEWSOM

Cantil-Sakauye, C. J., dissenting

see a series of decisions by the electorate — first prohibiting

certain kinds of casino operations, then relaxing this

restriction to a limited degree — to which we must defer.

Because I believe that today’s decision gives voters something

different from what they bargained for, I respectfully dissent.

CANTIL-SAKAUYE, C. J.

I Concur:

LIU, J.

29

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion United Auburn Indian Community of the Auburn Rancheria v. Newsom

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 4 Cal.App.5th 36

Rehearing Granted

__________________________________________________________________________________

Opinion No. S238544

Date Filed: August 31, 2020

__________________________________________________________________________________

Court: Superior

County: Sacramento

Judge: Eugene L. Balonon

__________________________________________________________________________________

Counsel:

Bingham McCutchen, Morgan, Lewis & Bockius, Thomas F. Gede and Colin C. West for Plaintiff and

Appellant.

Snell & Wilmer, Sean M. Sherlock, Todd Lundell and Jenny Hua for Stand Up For California! as Amicus

Curiae on behalf of Plaintiff and Appellant.

Fredericks Peebles & Morgan and Michael A. Robinson for Picayune Rancheria of Chukchansi Indians as

Amicus Curiae on behalf of Plaintiff and Appellant.

Law Office of Frank Lawrence, Frank R. Lawrence, Zehava Zevit; Forman & Associates, George Forman,

Jay B. Shapiro and Margaret Rosenfeld for the Mooretown Rancheria of Maidu Indians of California and

Cachil Dehe Band of Wintun Indians of the Colusa Indian Community as Amici Curiae on behalf of

Plaintiff and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael J. Mongan, State Solicitor General, Sara

J. Drake, Assistant Attorney General, William P. Torngren and Timothy M. Muscat, Deputy Attorneys

General, Max Carter-Oberstone, Deputy State Solicitor General, and Janill L. Richards, Principal State

Deputy Solicitor General, for Defendant and Respondent.

Dentons US, Charles A. Bird, Matthew G. Adams; Maier Pfeffer Kim Geary & Cohen, Michael S. Pfeffer

and John A. Maier for the Estom Yumeka Maidu Tribe of the Enterprise Rancheria, California as Amicus

Curiae on behalf of Defendant and Respondent.

Maier Pfeffer Kim Geary & Cohen, John A. Maier; Wilmer Cutler Pickering Hale and Dorr, Danielle

Spinelli, Christopher E. Babbitt, Jonathan A. Bressler and Claire Chung for North Fork Rancheria of Mono

Indians as Amicus Curiae on behalf of Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Thomas Gede

Morgan, Lewis, & Bockius LLP

One Market Street, Spear Tower

San Francisco, CA 94105

(415) 442-1000

Michael J. Mongan

State Solicitor General

455 Golden Gate Ave., Suite 11000

San Francisco, CA 94102-7004

(415) 510-3920