Beating the Odds

California tribes stretch limits of IGRA

The Maidu Indians of the Enterprise Rancheria in the 1800s lived along the Feather River near Oroville, California, a once-lush waterway some 70 miles north of Sacramento that vanished with construction of the Oroville Dam in the 1960s.

“The river was central to our people’s lives,” tribal Chairwoman Glenda Nelson of the Estom Yumeka Maidu Tribe told the Marysville Appeal-Democrat. “We would fish from its waters and gather along its banks. Our ancestors went where the river flowed.”

The Mono Indians of the North Fork Rancheria resided in the 1800s in the Eastern San Joaquin Valley and Sierra Nevada foothills near Yosemite.

“There was no Madera, no Merced, no Modesto and no Fresno,” wrote Joe Kinsman, who settled the area in 1849, married a Mono Indian and raised children who are ancestors of the tribe. “All of the settlements were in the foothills. The entire valley was desolate of human habitation.

“Antelope, deer, elk and wild horses ranged all over the valley and adjacent foothills.”

Roughly 170 years later, Maidu and Mono Indians of Central California—victims of a tortured history of genocide and stolen land spurred by the Gold Rush and European settlement—are about to embark on a new and prosperous era as operators of tribal government casino resorts.

Enterprise Rancheria, in partnership with Hard Rock International, a corporation owed by the Seminole Tribe of Florida, was scheduled in mid-February to top off an eight-story, $470 million gambling resort near Maryville in Yuba County.

And North Fork Rancheria, in the wake of a January U.S. Supreme Court decision not to hear a lawsuit by opponents to its casino project, can now proceed with construction of a gambling resort on Highway 99 in Madera County, a partnership with Station Casinos of Las Vegas.

 

Doing the Two-Step

Acquiring ancestral lands and getting necessary state and federal approvals for the casinos have proven to be arduous and expensive undertakings for the two tribes, an endeavor lasting more than 17 years.

The projects have been stalled by bureaucratic procedures, legislative opposition and a litany of failed litigation by opponents of the gambling resorts, including casino tribes fearful of competition.

But tribes seeking to enter the gambling industry have come to expect similar obstacles.

“Given the complex web of federal, state, local and tribal interests involved, the land-into-trust process is long and arduous,” wrote attorney Heidi McNeil Staudenmaier in the Nevada Law Journal, particularly when the land is for casino gambling.

And it is likely Enterprise and North Fork will be among the last new casino developments in a maturing and in some regions saturated tribal government casino industry comprised of 500 gambling operations in 29 states.

The Indian Gaming Regulatory Act (IGRA) largely limits casino development to tribal trust lands in existence when the act was passed in 1988. But there are Section 20 exceptions for newly recognized and restored tribes and property acquired in federal Indian land claims.

IGRA also allows tribes to develop casinos on land off existing reservations, a process referred to as “two-part determinations” because it requires approval from the governor and proof a casino is in the best interest of the tribe and not harmful to nearby Indian and non-Indian communities. That is the process utilized by Enterprise and North Fork.

But getting approval from the U.S. Department of the Interior and its Bureau of Indian Affairs under any Section 20 exemption is a long and expensive endeavor, often fraught with politics and likely to result in years of litigation. The process grew more complex with the 2009 U.S. Supreme Court ruling in Carcieri v. Salazar, which limited Interior’s authority to place land in trust for tribes.

“It’s a high bar to clear,” says Bryan Newland, chairman of the Bays Mills Indian Community of Michigan and a former counsel with Interior. “You have to incur millions of dollars of expense to compile the material needed to get through the bureaucratic process. Then, if you get a favorable decision, there’s the legal cost to defend the decision in court.

“The process has become very difficult.”

Meanwhile, opportunities in what has become a $32 billion tribal casino industry have dried up. About 250 of 370 tribes in the lower 48 states operate reservation casinos. Another 80 or so receive funds from tribal casinos or lease machines. Others are too remote or lack land on which to build casinos.

“With some exception, the Indian gaming market is fully developed,” Newland says. “There are tribes seeking to become new entrants into the gaming market. But by and large, most federally recognized tribes that want to engage in gaming are already doing it. That is another reason we’re seeing fewer and fewer of these applications.”

“Clearly, the market is getting saturated,” agrees Dentons attorney George Skibine, an Oklahoma Osage and former high-ranking Interior official. “So many tribes already have gaming establishments. That will be the reason for the diminishing applications, not necessarily the fact that the process is expensive and takes such a long time.”

“The easy ones have already been done,” tribal attorney Judith Shapiro says of the trust land casino development in the early years of IGRA. “There hasn’t been a lot of growth. That’s been true for a long time.”

 

Building Out A Mid-State Market

North Fork and Enterprise are planning to build out a mid-state region that already consists of Thunder Valley Casino Resort, Table Mountain Casino, Cache Creek Casino, Colusa Casino Resort, Chukchansi Gold Resort & Casino and others.

Caesars Entetainment and Boyd Gaming are also developing properties in the Sacramento area.

“The bottom line is you’re introducing a large competitor—in fact, more than one—into an existing market that is already very competitive,” says Alan Meister, CEO of Meister Economic Consulting and author of the annual Indian Gaming Industry Report. “You’re talking about adding very high-quality facilities with a lot of amenities.

“There’s no doubt introduction of new facilities is going to impact the existing casinos. The question is how much.”

A California casino executive who requested anonymity says Hard Rock will both cannibalize and grow the mid-state market, enticing gamblers from San Francisco and Lake Tahoe.

“It is a highly competitive area,” the executive says. “You’ve got some significant powerhouses here in this region with Cache Creek, Thunder Valley and some smaller properties north of here.

“It’s not a brand new market. I wouldn’t call it a mature market, either. It’s somewhere in the middle as it continues to grow. The population continues to build here and there’s demand.

“Is there capacity for the market to double? I don’t know. Hard Rock will probably steal some market share, but it will grow the market as well. It will draw people from Tahoe and San Francisco and even more south and north than what existing operators are bringing.”

Doug Elmets, spokesman for the United Auburn Indian Community, operators of Thunder Valley, believes Hard Rock will have a “limited impact” on the resort’s business.

United Auburn is one of the tribes that sued to block the Enterprise project, working in conjunction with Stand Up For California. The Chukchansi and Colusa tribes lobbied against the North Fork effort.

“Thunder Valley is the dominant casino for the region, for a good reason. We have the best location,” Elmets says of the casino’s proximity to Sacramento. “We also have invested heavily for years in marketing and advertising and customer loyalty programs.”

The resort, initially operated by Station Casinos, has a highly experienced management team.

“That’s not an exaggeration,” Elmets says. “The level of experience is invaluable when faced with new players in the market.”

Lori Nelson, vice president of corporate communications for Station Casinos, would not discuss the North Fork project.

“If/when the time comes to share any news or updates, we’ll make sure to give you a call or have someone from the tribe speak with you,” Nelson said in an email.

North Fork Tribal Chairwoman Elaine Bethel-Fink discussed the project in a brief telephone interview but cut the conversation short and did not respond to additional telephone and email requests for comment.

 

Two-Parts Are Rare

Since IGRA was enacted in 1988, only seven tribes—including Enterprise and North Fork—have managed to successfully hurdle the bureaucratic, political and legal obstacles involved in a two-part determination exemption to launch a casino operation.

From 30 to 40 other tribal groups established casinos on newly established reservations through the other Section 20 exemptions, also long and expensive but much easier than the often politically volatile two-part determinations. Other tribes have pursued federal recognition, trust lands and later casino ventures through congressional legislation outside Section 20.

Neither Enterprise nor North Fork had much choice, both lacking suitable land for a casino.

Enterprise Rancheria, created by the federal government in 1915, consisted of two, 40-acre parcels in remote foothills north of Oroville. One parcel was sold in the 1960s to build the dam.

The tribe, consisting of 800 members, purchased 40 acres of land near Highway 65 in Yuba County, roughly 36 miles from its tribal headquarters in Oroville, seeking to place the land in trust for a casino.

The North Fork Rancheria, though it has 1,800 members, consisted of 80 acres of inaccessible foothills in Madera County. The land was held in trust by fewer than five members of the tribe. The tribe purchased 305 acres of land along Highway 99, also about 40 miles from its rancheria.

“Our tribe is located in a poor, rural county with high rates of unemployment and poverty,” Bethel-Fink said in a letter to a local newspaper.

The Rancheria, she wrote, “is a remote, inaccessible piece of land that is owned by individual tribal citizens (not the tribe) and is wholly inadequate to conduct meaningful economic development for our people or the surrounding community.

“Lacking a functional reservation, we remain essentially landless, but not hopeless.”

The projects complied with Interior rules and regulations. Interior on September 1, 2011 issued favorable rulings to place their land in trust status for gaming.

“Both tribes have historical connections to the proposed gaming sites and both proposals have strong support from the local community, which are important factors in our review,” Larry Echo Hawk, former U.S. assistant secretary for Indian affairs, said in approving trust lands for the projects.

Governor Jerry Brown signed onto tribal-state compacts the following year.

But the bureaucratic process was interrupted by a slew of lawsuits by nearby casino tribes and Stand Up For California, a self-described community watchdog group.

Voters, in a 2014 referendum targeting North Fork’s tribal-state compact, rejected “off-reservation gaming.” It was an odd ballot initiative in that it would not have not have prevented the tribe from operating a Class II bingo casino on the site.

Interior in 2016 invoked secretarial procedures to allow Class III, casino-style gambling for both Enterprise and North Fork, accusing the state of bad-faith negotiations.

 

Carcieri, Competition Muddy IGRA Waters

While IGRA essentially limits gambling to reservations established when the law was enacted in 1988, framers of the act added Section 20 exemptions to provide “equal footing” for tribes not initially eligible for casinos.

“Section 20 made it clear that Congress wanted an avenue for tribes newly recognized or had land acquired in trust to have the same opportunity as everybody else,” Newland says.

Alex Skibine, an Oklahoma Osage and University of Utah law professor, who served as deputy counsel for the House Committee on Interior and Insular Affairs when IGRA was drafted, says limits on tribal gambling were a political necessity. But so were Section 20 exemptions.

“We basically compromised in drafting the act,” says Skibine, brother of attorney George Skibine, who was quoted earlier in this article. “But we said we wanted to have those exceptions.”

“If you’re a tribe that was deprived of land—whether your land was stolen or whether federal recognition was terminated or never acknowledged—when you come back you’re supposed to be equal with everybody else,” tribal attorney Shapiro says.

Most legal scholars commend IGRA’s authors for drafting Section 20 exemptions that have worked well for tribes and stood up to legal scrutiny.

But signees to the act didn’t contemplate how successful the industry would be, or that it would create cutthroat competition between existing tribal casino operators and new entrants to the market.

They also did not anticipate the 2009 Supreme Court decision in Carcieri v. Salazar where justices ruled that Interior could not place land in trust for tribes not “under federal jurisdiction” with enactment of the Indian Reorganization Act of 1934.

Justices did not define “under federal jurisdiction,” giving anti-gambling groups and tribes opposed to new competition legal ammunition to contest Section 20 petitions. The opponents may have lost the legal battles, but the lawsuits and appeals seriously delayed projects.

“The opposition from existing tribal casinos was not anticipated,” Alex Skibine says, “nor was Carcieri,” which allows opponents to question whether Interior has the authority to place land in trust for gambling.

“The problem is not with IGRA,” Shapiro says of the difficulty in acquiring land for casinos. “The problem is with Carcieri.”

Many Indian scholars contend Section 20 allows tribes to establish casinos outside their ancestral lands, encroaching on the territory of other indigenous groups.

Newland says it is a “natural response” for gambling tribes to oppose new Indian casinos encroaching on their market, particularly when one takes into consideration the fact casinos generate government revenues.

“If you have a tribe with gambling revenues generating $50 million for its tribal government, the tribe over time becomes reliant on those funds,” Newland says. “Some tribes generate more than enough to provide for their tribal governments. But I’m not interested in making moral judgments.

“Tribes use gaming revenues to fund their governments. But tribal gaming is a business. Tribal facilities compete with one another. Opposition to new casinos is a natural, competitive response.”

A tribal source who requested anonymity says opponents to the Enterprise and North Fork projects knew IGRA exemptions would stand up to court scrutiny.

“It would have been a danger to tribal sovereignty if any of these lawsuits prevailed,” the source says. “But it was all stalling tactics from day one.

“They (opponents) wanted to make it so onerous and difficult for any tribe to pursue a two-part determination that there would never be another two-part endeavor in the state.

“I think they succeeded. They succeeded in making the two-part process almost impossible.”

Pamunkey tribal Chief Robert Gray says he would consider operating a casino in Norfolk, Virginia under commercial law rather than IGRA.

Attorney Rory Dilweg, who for a dozen years represented the Menominee Tribe in its failed attempt to build a casino in southern Wisconsin, agrees it may be easier to operate outside of IGRA’s two-part determination process.

“Settlement of a land claim is pretty straightforward. And it’s still worthwhile going for initial reservation exemptions,” Dilweg says. But a two-part determination “can be delayed so long by lawsuits a tribe is better off seeking a commercial license and operating on fee lands.”

The Loyal Shawnee of Oklahoma recently reached agreement with Interior and Governor Mary Fallin on a two-part determination to build a casino on newly acquired trust land near Guymon, 370 miles west of the tribe’s headquarters.

“We’ve worked hard to set ourselves on the path to a better future, and this project will help us achieve our goals of tribal self-sufficiency through economic progress,” tribal Chief Ron Sparkman says.

And North Fork Chairwoman Bethel-Fink, in her brief telephone interview, encouraged tribes to do whatever it takes to avail themselves of the benefits of government gambling.

“All tribes have the right to game,” she said. “One of the things I would say is to persevere, to move on. It can be a long road and there are all kinds of bumps in the road.”

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Dave Palermo is an award-winning metropolitan newspaper reporter. He has written about American Indian governments for more than 20 years, working as an advocate for several tribes and tribal associations. He also has co-authored books on gambling and gambling law. He can be reached at dgpalermo1@gmail.com.