Appeal Raises Questions About How Indian Law Applies To Tribal Gaming

July 24, 2023
By appealing a judge’s ruling in a California casino case, the U.S. Department of Justice is raising the question of how Indian law canons apply to tribal gaming — if at all.


By appealing a judge’s ruling in a California casino case, the U.S. Department of Justice is raising the question of how Indian law canons apply to tribal gaming — if at all.

For years, courts have followed “Indian canons of construction” to ensure U.S. treaties with Native Americans are liberally interpreted so that all ambiguities are resolved to the benefit of tribes.

The goal is to protect tribal sovereignty and to prevent the federal government from taking advantage of Indians in negotiations.

On July 14, the Justice Department appealed a federal judge’s order requiring the U.S. Department of the Interior to reconsider its rejection of a California tribe’s request for the government to take land into trust for a proposed casino.

The Scotts Valley Band of Pomo Indians, a landless tribe of about 300 members, wants to build a $700m casino in Vallejo, California, about 45 miles north of San Francisco.

President Joe Biden is in the awkward position of defending a 2019 decision by the Trump administration rejecting the Scotts Valley Band’s application.

The Scotts Valley Band’s case also has sparked an internecine conflict among other tribes in California, as well as objections from prominent members of the Golden State’s congressional delegation.

The Justice Department is appealing a decision by U.S. District Judge Amy Berman Jackson of Washington, D.C., who concluded the Interior Department’s rejection of the Scotts Valley Band’s land application was arbitrary and capricious and violated the Indian canons of construction.

Jackson first announced her ruling on September 30, 2022, and after she affirmed her decision without comment on May 8, 2023, the Justice Department appealed.

In explaining their rejections, the Biden and Trump administrations have claimed the Scotts Valley Band failed to meet the requirement of “significant historical connections” to the land in Vallejo.

“I believe this appeal would be problematic for both Indian tribes and the government,” Patrick Bergin, an attorney representing the Scotts Valley Band, told VIXIO GamblingCompliance in an email.

Bergin, who works for the Peebles Kidder firm in Sacramento, noted Judge Jackson is not ordering the Interior Department to approve the application.

“The agency still has the flexibility to utilize the canon(s) in a manner that allows them to evaluate and weigh historical evidence while retaining their decision-making authority,” Bergin said.

The U.S. Circuit Court of Appeals for the D.C. Circuit has not yet set a date for oral arguments in the Scotts Valley Band case.

Even before the Justice Department’s appeal, other California tribes began expressing their support or opposition to the proposed Indian casino in Vallejo.

In a June 16 letter to officials at the Interior and Justice Departments, Guidiville Rancheria tribal chair Donald Duncan supported Jackson’s ruling and argued against an appeal.

“We never thought that we would see the day when a few tribes and DOI [Interior Department] are advocating for the DOI to not follow the law,” Duncan wrote.

Nine days before Duncan’s letter, Pechanga tribal chair Mark Macarro voiced support for the Justice Department’s appeal.

“The Indian law canons of construction are rules of judicial construction to interpret statutes, not rules governing federal agency decision-making, and the canons cannot be allowed to usurp the [Interior] Department’s ability to uphold its trust responsibility to all tribes,” Macarro wrote in his June 7 letter to officials at the Interior and Justice Departments.

Meanwhile, U.S. Senator Dianne Feinstein, an implacable foe of off-reservation gambling in California, joined four other Democrats in the California congressional delegation, including U.S. Senator Alex Padilla, in supporting the Justice Department’s appeal.

“In applying the Indian canon law in this case, Judge Jackson suggests the canon may be enforced for the benefit of one tribe at the expense of others,” the California lawmakers wrote in a June 27 letter to U.S. Attorney General Merrick Garland and Interior Secretary Deb Haaland.

“We are concerned that if this decision is not clarified, there will be unintended consequences, as well as situations where factual disputes between tribes would be resolved in favor of whichever tribe presents their case before a decisionmaker first,” the California lawmakers said.

Kathryn Rand, a law professor at the University of North Dakota, said “the trick for the DOJ on appeal will be to defend agency discretion while supporting tribal sovereignty.”

Steven Light, who along with Rand is a co-director of the Institute for the Study of Tribal Gaming Law & Policy, said the outcome of the Scotts Valley Band case likely will be consequential for gaming tribes.

“Yet again, implications related to Indian gaming raise the stakes for individual tribes, and also for coalitions of established gaming tribes, especially in competitive markets like that in Northern California,” Light said.

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