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California Strikes Down Proposition 5: Now What?

By Charles Flowers

SACRAMENTO, CA - By a vote of 6-1, the California State Supreme Court ruled the pro-Indian gaming Proposition 5 unconstitutional on Aug. 23. Since the measure passed by a 2-1 vote last November, the implications of the ruling are not yet clear.

"In light of last year's overwhelming vote in favor of Indian gaming," Gov. Gray Davis said, "I intend to work diligently to find a constitutionally acceptable means of implementing the people's express will. I intend to work with the Legislature, the tribes and all interested parties to achieve that result."

Not only is Gov. Davis seeking an answer that reflects the will of voters, but the nation's most populous state may hold the key to the balance of political power in the new millenium. The outcome of next year's elections could tip the balance in Congress back to the Democrats, and have much to say about who will succeed Bill Clinton as President.

Now is not the time to anger voters.

"Voters already have made clear their feelings on the issue," said state Sen. James Brulte, the Republican minority caucus leader. "The Legislature ought to heed that."

The court ruling, considered a victory for Nevada casino gaming interests who rely on traffic from California, along with other Indian gaming foes, may be short-lived.

Campaign spending on Proposition 5 set records for the most expensive ballot initiative in American history. More than $100 million was spent on both sides of the issue, and both camps maintained extensive, and expensive, Internet websites to further their causes.

Then, in a vote that surprised even the Indian gaming proponents, nearly 63 percent of California voters said "yes" to expanded Tribal gaming last fall.

The result sent shock waves as far east as Florida, where state officials have clung to the dubious idea that voters who have nixed casino gambling in the past (most recently 1994) have been heard on Tribal gaming in the present.

If Californians are the trend-setters in fashion and manners, maybe they are trying to tell us something about public opinion of Tribal gaming. Fully one-sixth of all Indian casinos operate in that state (41) with more than one-sixth of the total revenues ($1.7 billion).

But the state Supreme Court raised serious questions about their continued ability to operate.

Justice Kathryn Mickle Werdegar, writing for the majority, said the card games and slot machines authorized by Proposition 5 "amount to prohibited casinos."

The Tribal casinos had tried to get around the state constitutional prohibition of "Nevada-style" games by offering the same kind of payouts as the state lottery.

"A slot machine is no less a slot machine under California law" she noted, if it dispenses chips or electronic credits rather than coins, or is activated by buttons rather than levers.

Justice Joyce Kennard, who was the lone dissenter in the ruling, said it came down to a question of sovereignty.

"It is utterly beyond the sovereign power of California to authorize or prohibit gambling on Indian lands within the state," she wrote.

However, unless the Supreme Court ruling is appealed, that opinion is moot. That appeal appears unlikely, according to an attorney who represented the tribes before the California Supreme Court.

One answer for the tribes could be a challenge to the Constitution - an amendment that could grant them the exception voters seemed to favor. Tribes collected more than enough signatures to get the constitutional question on the ballot last November.

Another scenario: the Davis administration itself could place that amendment on the March 2000 ballot. Tribal leaders have been negotiating with the governor, who has said he wants to limit both the kind and number of slot machines in the state.

Under the federal Indian Gaming Regulatory Act (IGRA), which has been challenged by the states of Florida and Alabama, governors like Davis are free to negotiate compacts with Tribes setting such terms. The compacts are then subject to approval by the state legislature, and could be amended by future governors and tribal leaders.

In Florida, a proposed compact was submitted to former Gov. Lawton Chiles last year by the Seminole Tribe. But negotiations stalled, which led the state to sue Interior Secretary Bruce Babbitt in April.

Seminole General Counsel Jim Shore has said that suit - which may further define the powers between the states and the federal government with respect to Indian tribes - seems headed for the U.S. Supreme Court, ensuring the status quo for another three years.

However, neither Congress nor the states may remain silent that long. Tribal-state compacts up for re-negotiation in several states, including Arizona, Louisiana, and New Mexico, show states hungry for a bigger slice of the Tribal gaming pie.

The high court's vote in California has lessons for Indian tribes across America. But the decision begs the question: Did the tribes ask for too much? Or too little?

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