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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
RANCHERIA v. NEWSOM
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
RANCHERIA v. NEWSOM
Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
RANCHERIA v. NEWSOM
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) [as of
Aug. 28, 2020]; all Internet citations in this opinion are
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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
RANCHERIA v. NEWSOM
Opinion of the Court by Cuéllar, J.
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
.)
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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
RANCHERIA v. NEWSOM
Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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Opinion of the Court by Cuéllar, J.
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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Opinion of the Court by Cuéllar, J.
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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Opinion of the Court by Cuéllar, J.
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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Opinion of the Court by Cuéllar, J.
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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Opinion of the Court by Cuéllar, J.
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)
[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)
[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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Opinion of the Court by Cuéllar, J.
“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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Opinion of the Court by Cuéllar, J.
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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Opinion of the Court by Cuéllar, J.
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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Opinion of the Court by Cuéllar, J.
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)
[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:
[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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Opinion of the Court by Cuéllar, J.
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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RANCHERIA v. NEWSOM
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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Opinion of the Court by Cuéllar, J.
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
RANCHERIA v. NEWSOM
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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UNITED AUBURN INDIAN COMMUNITY OF THE
AUBURN RANCHERIA v. NEWSOM
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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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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Cantil-Sakauye, C. J., dissenting
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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UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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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
9
UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN
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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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Cantil-Sakauye, C. J., dissenting
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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Cantil-Sakauye, C. J., dissenting
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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Cantil-Sakauye, C. J., dissenting
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)
[as of Aug. 28, 2020], italics added; this citation is archived by
year, docket number, and case name at
.) Regardless of whether
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Cantil-Sakauye, C. J., dissenting
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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Cantil-Sakauye, C. J., dissenting
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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Cantil-Sakauye, C. J., dissenting
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.
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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