The law behind gaming at Point Molate

Critics of the proposed Point Molate casino warn that approving the project could transform the East Bay into Las Vegas. Both the governor and California’s two senators oppose allowing a tribe to open an urban casino. But the final decision rests in one federal bureaucrat’s hands.

If Secretary of the Interior Ken Salazar agrees that the Guidiville Band of Pomo Indians have an historical tie to the Richmond land and determines that the casino is supported by the surrounding communities, then the tribe is expected to get its casino.

The Point Molate Casino wouldn’t be the first urban casino. The Lytton Band of Pomo Indians took over San Pablo Lytton Casino in 2005, which had operated as a state-licensed card room since 1996.

But unlike other urban gaming operations that allow visitors to play only poker and bingo, the Point Molate casino would be the first casino to offer slots and blackjack outside of a rural Indian reservation.

Ordinarily the decision to allow such a casino to open would fall on Governor Arnold Schwarzenegger, but a narrow exception carved into a 1988 law could let the tribe move forward without his approval.

In 1983 California sued a tribe near Palm Springs for running unlicensed bingo. Four years later the Supreme Court ruled that it is illegal to deny tribes the right to offer any games already played legally in the state. In other words, because charities and other groups are sometimes allowed to host bingo games, the state could not deny tribes – which are sovereign entities — the same opportunity.

Following the Supreme Court’s decision, the United States Congress passed the Indian Gaming Regulatory Act in 1988. Under the Act, states were given the authority to ban all gaming, but tribes would be allowed to offer any games on their reservation that are allowed in the state. The law also created an opportunity for states to establish compacts, or written agreements, to allow tribes to offer additional games that would otherwise be illegal. Under these compacts, the state is able to establish fees and other terms governing the arrangement.

The law created three different classes of gaming on Indian lands. Class I gaming includes traditional tribal games for inexpensive prizes. Class II includes bingo and whatever games are already permitted under state law. For example, in California, the state licenses card houses to offer poker — a game in which players compete against one another. But blackjack and other games in which players compete against the house are not allowed in Class II casinos. Slot machines and these casino-style card games are considered Class III games under the Act.

Tribes are normally able to open casinos only on their reservations, but since the Guidiville Band doesn’t have a reservation, the tribe is relying on an exception written into the federal gaming act.

The Secretary of the Interior can approve gambling on newly acquired lands under section 2719 of the Act, if he determines it would be in the best interest of the tribe and the community that surrounds the proposed casino.

Normally the governor, who has said he opposes the plan to open a casino at Point Molate, would also have to approve the agreement, but there is another provision within the Act that may leave Schwarzenegger powerless.

Tribes that lost their official recognition from the federal government but have since had it restored are able to move forward with their plans without the governor’s approval.

On Oct. 12, the Governor’s legal affairs secretary, Andrea Lynn Hoch, sent a letter to the Bureau of Indian Affairs and the city of Richmond in opposition to the Point Molate proposal.

“The Governor’s Office urges the Bureau of Indian Affairs and the Secretary of the Interior to exercise its discretion to reject the Guidiville trust application and all other similar acquisitions,” said the letter. “Granting the Guidiville application would be contrary to the State’s public policy and the California electorate’s good faith.”

Schwarzenegger first opposed urban gaming in 2005 when the Lytton Band moved to take over San Pablo Casino. He maintains that Indian casinos should be relegated to reservations, which are typically in remote areas. Based on promises made during past ballot measure campaigns to expand Indian gambling, Schwarzenegger also contends the state’s voters don’t want casinos in urban areas.

Of the 108 tribes recognized by the state of California, 67 of them have ratified tribal compacts with the state to operate Class III casinos, according to the California Gambling Control Commission. Of those, there are 57 tribes currently operating 58 casinos, it said.

In March 2000, 64.4 percent of California voters approved Proposition 1A, which opened the door for Class III gaming. Proposition 5, a similar 1998 measure, passed with 62.4 percent of voters supporting it, but didn’t survive a legal challenge.

During the campaigns for Propositions 5 and 1A, said Jeff Macedo, a spokesman for the Governor, the California Nations Indian Gaming Association promised the voters that tribes would not use their new powers to build casinos in major cities.

The Guidiville Band’s attempt to open a casino in Richmond breaks these tribal promises not to expand gaming into urban areas across the state, said Macedo.

The California Nations Indian Gaming Association didn’t return repeated calls for comment.

One of the few Native American opponents of the Point Molate Casino is Joe Alberta, a spokesman for Picayune Rancheria of the Chukchansi Indians, a tribe in the Central Valley that opposes Indian gaming in urban areas. Alberta said allowing the Guidiville Band to open a casino at Point Molate would create a dangerous precedent that could lead to tribes opening casinos in major cities throughout the state.

“You can’t make a reservation there for people that never even lived there,” Alberta said. “They’re just doing it for gaming purposes. It’s not for their heritage or their cultural practices. … It’s like California moving into Arizona.”

Alberta said he knows of six other tribes looking to open casinos outside of a reservation.

Guidiville tribal leaders say they have proven the legally required historical connection to Richmond in a study submitted with their federal application for trust land, but not released publicly. Currently, the tribe has land in Mendocino County, but tribal lawyer Little Fawn Boland said the tribe is not allowed to build governmental structures on the land.

A map of the “California Indian Pre-contact Tribal Territories,” by the California Indian Library Collections at UC Berkeley, appears to indicate that Richmond is actually within the Coastal Miwok’s tribal land.

But that tribe, which is now known as the Federated Indians of Graton Rancheria, is looking to obtain land in Santa Rosa for their own casino and did not return calls seeking comment.

Casino San Pablo had previously tried to expand into a Class III casino, but its efforts were rejected after numerous officials, including state Sen. Loni Hancock (D-Oakland) voiced opposition to the move.

Had the move gone through, one-fourth of the casino’s winnings would have gone to the state. But tribal governments are not required to pay taxes on money earned through “Class II” gaming, said Nathan Rapp, a spokesman for Hancock.

Despite the unprecedented state budget crisis, Rapp said the Senator doesn’t believe Indian gaming can play a role in solving the problem.

“A casino is not going to resolve the state budget. … Our numbers are entirely too big,” said Rapp. “It’s not really fair, nor is it accurate, to say that Indian casinos are going to rescue California’s budget.”

Unlike the resorts that litter the Las Vegas landscape, the casino at Point Molate would be located on sovereign tribal land and outside of state and federal regulations, said Rapp.

“If you take a bunch of workers and put them in a casino where there’s no structured labor laws or anything, then basically anything goes,” said Rapp. “It’s not fair to the employees.”

The tribe and developer have agreed to pay casino employees the city’s living wage, which is significantly above the state’s minimum wage, but the tribe would not be legally required to observe other federal workplace protections. And the Senator feels that the people of Richmond deserve better opportunities.

“Are these the kind of jobs that we want for Richmond long-term?” said Rapp. “The Senator’s response is ‘No, I believe Richmond is better than that. I believe Richmond has much more potential than that. We have to start training and educating people towards that rather then putting a casino in the middle of the city.'”

Still, with the city’s unemployment rate at 18 percent, some say that any new jobs would be a good thing for Richmond. Council member Nat Bates said that the jobs at the casino — ranging from cooks and cashiers to janitors — are ideal because they won’t require a lot of training.

But in the end, it won’t be up to the Council or other elected leaders to decide whether the Guidiville Band of Pomo Indians will get to build their casino. No, the final decision will be made in Washington by Secretary of the Interior Salazar.

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Tomorrow: The Guidiville tribe petitions for trust land to build its casino.

The story so far:

Before Napa there was Winehaven (Oct. 13)
County supervisors willing to be wooed (Nov. 3)
County unanimous support for casino (Nov. 11)
Local casino opposition crumbling (Nov. 11)
The law behind gaming at Point Molate (Nov. 12)