Violence and Gaming in Riverside County

The New York Times reported on violence on the Soboba Band's reservation in southern California, fueled, according to the tribe, by the Riverside County Sheriff's Department. Since December 2007, five tribal members have been killed in shoot-outs with the Sheriff's Department. The Sheriff's Department claims that crime has risen dramatically on the reservation since 2006, when the tribe cancelled its contract with the Sheriff's Department to provide law enforcement.

The tribe has implemented a policy requiring Sheriff's deputies to check in and travel with an escort on the reservation. The Sheriff's Department has asked the NIGC to close the tribe's casino, arguing that there is imminent danger to casino patrons, employees, and nearby residents.

In the meantime, responding to complaints from groups like Stand Up for California, the governor's office is investigating whether the security restrictions or the increase in violent crime violate the tribal-state compact.

Riverside County Sheriff Stanley Sniff accused the tribe of having a "culture of violence" while tribal chair Robert Salgado charged that the Sheriff's Department was acting more like a 19th-century frontier cavalry.

Read more in the Times at Clash with Tribe Spurs Effort to Shut a Casino

Per Capita Payments and Tribal Membership

The San Pasqual Band of Mission Indians withheld per capita gaming payments from about 50 members and also fired several members from casino and other leadership positions. The issue centers on the validity of their status as tribal members. The Band requires "blood quantum" for tribal membership. Each member must, at the least, have a great-grandparent who was a "full-blooded" member of the tribe. The dispute over the 50 members arose from questions about whether the relative from whom they were descended was adopted, rather than being a "blood" member of the tribe.

The San Pasqual Band is a relatively small tribe of about 300 members, and it issues monthly checks of about $4,000 to each of its members under its per capita payment plan. IGRA permits a tribe to make per capita distributions of net gaming revenue to its members if the uses mandated in section 2710(b)(2)(B) (these include funding tribal government operations, providing for the welfare of tribal members, promoting tribal economic development, making charitable donations, and assisting in funding local government operations) are adequately met and the tribe's distribution plan is approved by the Interior Secretary. Because per capita payments are limited to tribal members, the membership determinations of some tribes come under scrutiny. Generally speaking, of course, tribal sovereignty encompasses a tribe's exclusive right to make membership determinations. Accordingly, federal courts have been reluctant to review a tribe's distribution of such payments. At least one court, however, has made a distinction between reviewing a tribe's membership determinations and reviewing a tribe's compliance with its per capita payment plan. (See Smith v. Babbitt, 875 F. Supp. 1353 (D. Minn. 1995), aff'd, 100 F. 3d 556 (8th Cir. 1996).)

Interestingly, though, the local BIA superintendent said that the San Pasqual Band's membership determinations must be approved by the BIA. The BIA superintendent reported the withheld checks to the NIGC as a potential violation of the Band's per capita payment plan, explaining that the disputed members are "members until such time as the BIA changes its mind."

Read more here in Onell Soto’s article in the San Diego Union Tribune.

Wow – California Negotiated in Bad Faith?

As we discussed in our last post, a federal district court has held that California's revenue sharing demands in its negotiations with the Rincon Band of Luiseno Mission Indians amounted to an illegal tax, and therefore were evidence of the state's bad faith. What was the Band hoping to do – and what are the implications of this holding?

The Band sought to add 900 slot machines at its Harrah's Rincon Casino & Resort. In return, the state sought annual payments of 15% of the average net win for each of the new machines, as well as 10% of the net win on the existing machines. According to numbers crunched by Prof. Bill Eadington, who served as an expert witness for California, this would mean that the state would receive nearly $38M, while the Band's new profits from the deal, after making the required revenue sharing payments to the state, would be less than $2M. (The tribe’s income with or without the new machines would hover around $60 million.) The concessions offered by the state were "an agreement to reduce its fee payment in the future should gaming one day be opened up to non-tribal gaming establishments (a scenario the Court finds speculative and unlikely . . .), 900 more machines and five additional years to operate under its Compact." The court concluded that "[i]t is difficult to regard the State's proposed plan as anything more than a tax." And, the court expressly found that California negotiated in bad faith: "[T]he Court finds that the State's insistence on the payment of such a large fee to its general fund in return for concessions of markedly lesser value was in bad faith . . . ."

We believe this may be the first time a federal court has found that a state has negotiated in bad faith. In an early "scope of gaming" case, Mashantucket Pequot Tribe v. Connecticut, the Second Circuit avoided finding that the state had negotiated in bad faith, noting that the state's refusal to negotiate, whether or not in bad faith, could trigger IGRA's mediated negotiation process. The district court in Lac du Flambeau Band v. Wisconsin similarly avoided a finding of bad faith on the part of the state. Are we right? Let us know what you think!

Read more in Onell Soto's story in the San Diego Union-Tribune by clicking here.