The landmark ballot referendum proposing to reverse the
California Legislature's ratification of two off-reservation
tribal casinos is being challenged in state court litigation
seeking to block the referendum from appearing on the general
election ballot in November.
The North Fork Rancheria of Mono Indians has just filed the
litigation in Madera County Superior Court proposing to preserve
the compact signed by Governor Jerry Brown in July 2013 and
approved through operation of federal law on October 22, 2013.
Formal notice of the compact approval was published in the Federal
Register on that same day. The status of the second compact likely
will be determined in this litigation although that tribe is not a
party to this litigation.
The Legislature approved the two compacts pursuant to
California's state law requiring legislative ratification of
such documents. California is one of the states requiring
legislative confirmation of tribal compacts. California's
Constitution allows statutes enacted by the Legislature to be
challenged through petition and referendum, and the required number
of signatures to put the measure on the ballot were collected
within the requisite period of time. The petition drive was
conducted by a Sacramento area casino watchdog organization and was
funded primarily by two casino tribes and a New York City
investment firm that has a significant investment in one of the
tribal casinos opposing the project. The latest estimate of the
total amount spent in the petition/ referendum effort is $2
The new litigation challenges the referendum on two major legal
theories. The first theory alleges that the compact is final
because federal law allows tribes to conduct casino gaming so long
as the state does not – as a matter of criminal law and
public policy – prohibit such gaming activity. However, the
gaming must be conducted in accordance with the provisions of a
compact negotiated by the Governor and approved by the Secretary of
the Interior. Thus, the state court will have to address whether a
post-ratification challenge at the ballot box can be used to
deratify a compact that has been approved by the federal government
pursuant to applicable federal laws. The second theory raises the
question of whether legislative ratification of a contract between
the State and a tribe is subject to the petition/ referendum
The stakes in this litigation are enormous for California and
its booming Indian gaming industry, as well as neighboring states
that permit casino gaming operations. This is litigation that
likely will be in higher courts before it is fully resolved.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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