History of Tribal Government Gaming in California
During the Spanish Mission Period (1769-1826), the invading Spanish were accompanied by Franciscan missionaries, under the direction of Father Junipero Serra, and were charged with “reducing” the natives to Catholic Christianity. The fathers were directed to educate the “natives in civilized pursuits to make them working-class citizens of the Spanish Empire.”
The reality was that the original Californians were taken as prisoners and forced to work as slaves for the Spanish. Lands were confiscated for the missions and for Spanish immigrants who were granted large tracts of land by the Spanish crown. Not only did the conquerors introduce their religion, they also introduced Old World diseases that decimated local Indian populations. The story was much the same during the Mexican Period (1826-1848), which resulted in the destruction of the missions through a policy of secularization, also having a severe effect on Indians. The Mexican government dismissed prior commitments made to Hispanicized Indians by the Spanish. Many Indians who lived on property turned over to Mexican nationals became peon laborers. Essentially prisoners on their former lands, the Indians were often restricted to the ranchero, requiring a pass from the majordomo to leave. Indian bands engaged in numerous uprisings and revolts against the Mexicans during this time in San Diego.
The American Period, which began in 1848 with the Treaty of Guadalupe-Hidalgo, has been marked with promises made and broken, and additional lands taken from the Indians with denial of their rights and protection under the treaty. Over the years, official practices of the U.S. Government have ranged from Extermination, Assimilation and Termination, to Self-Determination.
When the U.S. Department of the Interior was created in 1849, a special agent was sent to untangle the land rights of the so-called Mission Indians and Mexican settlers and ranchero grantees, but instead became rich from land speculation.
Though 18 Indian treaties were negotiated with the United States in 1850 with the promise of nine million acres of reservations, these treaties were opposed by the state of California and never ratified. Instead, the Indians who survived the Spanish invasion, the Mission Period, enslavement by Mexicans and the brutal Gold Rush of the mid-1800s, were pushed onto meager land parcels throughout the state. Meanwhile, waves of immigrants moved west and continued to confiscate tribal lands and evict Indians from their villages and homes. The majority of reservations and rancherias finally established were on desolate rural lands with little or no economic potential.
California’s policy at the time of statehood was best exemplified by Gov. Peter H. Burnett, who stated in 1851, “that the war of extermination will continue to be waged until the Indian race becomes extinct, must be expected.” This was one year after California entered the Union as a non-slave state, but the state Legislature enslaved Indians under the “Act for the Government and Protection of Indians,” which permitted Indians to be kidnapped and sold as de facto slaves and forced to work as indentured servants. Male children could be indentured until 18 years of age, and females until age 15. The California law also declared, “in no case shall a white man be convicted of any illegal act or offense upon the testimony of an Indian.” In 1851 and 1852, the California Legislature authorized payment of claims exceeding $1 million, and in 1857 issued bonds for more than $400,000 to pay the expenses of the voluntary militia engaged in “Indian extermination.”
Atrocities against Indians in California were the norm. The New York Century, a newspaper of the time, wrote of this period, “In the Atlantic and Western states, Indians have suffered wrongs and cruelties at the hands of the stronger race. But history has no parallel to the atrocities perpetrated in California.”
In the mid 1700s, California’s Indian population stood at approximately 300,000. In 1860, after the Gold Rush, the Indian population dropped 80 percent to 60,000. In the late 1800s, California’s Indian population was approximately 30,000, and 15,000 in 1900.
Termination and Assimilation
The lack of services and the geographic dispersion of California’s tribal communities made California tribes prime candidates for a federal postwar assimilation policy known as “Termination.” Beginning with Public Law 280 (PL280), Congress, without discussion with California Indians, conferred criminal jurisdiction over tribal matters to the state. In addition to usurping authority for enforcing criminal activities on tribal land, PL280 gave the state jurisdiction over areas of private rights, such as divorce, accidents, child custody, probate and other domestic issues, seriously violating the rights of Indian tribes as sovereign nations protected by the U.S. Constitution. In addition, federal funds for Indians, save those related to land trusteeship, were given to the state, which agreed to be responsible for the welfare of the reservations. In San Diego, in 1954, as a result of PL280, Indians were regularly and shamefully denied health, elderly care, and Aid to Families with Dependent Children. Unable to obtain care from the county hospital (which was accepting funds for Indian services), the Kumeyaay opened their own health services clinic. Children were taken from Indian homes and placed with non-Indians without cause or legal proceedings. In 1950, Indians had segregated school facilities and were still being labeled retarded as a result of IQ tests that failed to register cultural differences in children. Not one Indian graduated from high school in San Diego in 1950.
In later Congressional action, 42 California rancherias and reservations were terminated under the California Rancheria Act of 1958, and federal services to the remaining tribes were eliminated or greatly diminished.
In the 1970s, the federal Indian policy pendulum swung away from forced assimilation and termination toward tribal self-determination, where it remains today. Of course, increasing the responsibilities of tribal governments requires increased funding. Given their dwindling populations, geographical fragmentation, small land bases and lack of treaties, California Indians received less in federal funds and services than Indians in other states. Small reservation populations and land areas, ranging from four acres to 17,000 acres, worked against tribes in securing adequate support, because funding formulas have traditionally been based upon treaties (there are none in California), population, and land mass. Additionally, recent years have seen dramatic cuts in Bureau of Indian Affairs programs, and efforts are underway to further reduce federal support allocations for many California tribes.
Today, tribal government gaming is often the only viable source of employment and government revenue available to many tribes.
Tribes understand that gaming is not an end in and of itself. Rather, it is a bridge to help regain what was lost long ago—self-respect, self-determination, and economic self-sufficiency. Many tribes are looking beyond gaming, diversifying their economies and developing other businesses. By 1980, the California Indian population had risen to approximately 200,000. The skills and resources that tribes are amassing through gaming will help assure their future and the future of their people for generations to come.
California State Government Gaming: $2.9 Billion a Year Business
As state lotteries began to proliferate in the early 1980s, several Indian tribes in Florida and California began raising revenues by operating bingo games with prizes larger than those allowed under state law. When the states threatened to close the operations, the tribes sued in federal court.
In what has become a series of legal victories, the Indians prevailed. A California District Court declared the state and county to be without jurisdiction to enforce state bingo and card room laws upon the Indian reservations. The state and county appealed. On Feb. 25, 1987, the U.S. Supreme Court, in a 6-3 vote, affirmed an earlier federal 9th Circuit Court of Appeals decision in California v. Cabazon and Morongo Bands of Mission Indians, holding that the state was not allowed enforcement of its bingo laws upon tribal governments. Instead, the courts recognized the rights of Indian governments to legally operate gaming on their reservations. In making this decision, the court attached great weight to the federal policy of self-determination and to the fact that, like the states, tribes are governments, and in states where gaming is allowed, a tribe had the same right. The court also observed that gaming activities provided the sole source of revenues for the operation of many tribal governments.
Today in the United States, 47 state governments and the District of Columbia receive revenues from various forms of gambling, ranging from full-scale casino gaming in Nevada, Louisiana, Iowa, Mississippi, Missouri, Indiana, Illinois, Colorado, New Jersey, Michigan and South Dakota, to lotteries, keno, and other electronic gaming, plus the popular scratch-off games.
In 1984, California voters passed the Lottery Act, which amended the state constitution to permit state government gaming in the form of the lottery, with the revenues going to support local schools. During fiscal 2001, the California Lottery, for all sales, had gross revenues of $2.9 billion. In the first 17 years after California began its government gaming, gross revenues reached $37.3 billion by the end of fiscal 2002, with a net $14 billion going to fund public education.
Today, the Viejas Band of Kumeyaay Indians operates gaming only to do what the government of California does: to operate government gaming to fund tribal government programs. The Viejas Band and other tribes in California and across the nation view this as a matter of equity, following hundreds of years of broken promises.
Federal Indian Gaming Regulatory Act
In light of the Cabazon decision, a panic followed in the U.S. Congress to restrict tribal government gaming. States and commercial gaming interests outside of California carried considerable weight in influencing the language of the law enacted in 1988 as The Indian Gaming Regulatory Act (IGRA). IGRA separated gaming into three classes: Class I, traditional Indian social gaming; Class II, bingo, similar games and card games lawful in the state; and Class III, all other forms of gaming. IGRA essentially affirmed federal jurisdiction over Indian tribes, but in a compromise strongly opposed by the tribes, it gave limited jurisdiction for joint regulation of tribal government gaming to the states in the case of Class III games. This was accomplished through a treaty/compacting process involving negotiation, mediation and litigation. The states, including California, pushed for and agreed to this limited jurisdiction.
There is no question that tribal government gaming has begun to accomplish many congressional objectives beneficial to gaming tribes. Unemployment has been drastically reduced and welfare eliminated on gaming reservations, such as those in San Diego County. Tribal governments have begun to raise the revenues they have lacked for decades to fund basic governmental services, such as police, fire, health care, education, and other government-provided programs that non-Indians take for granted.
The Wilson Era
During California Gov. Pete Wilson’s two terms, (January 1991- January 1999), he consistently fought tribal governments over the gaming issue, stalling implementation of the Indian Gaming Regulatory Act in California through a series of battles in state and federal courts.
Throughout most of the 1990s, tribes fought back, and it was only in 1998 that Gov. Wilson completed negotiations with a single California tribe for what he called a “model” tribal-state gaming compact. This compact, known as the “Pala Compact,” was offensive to nearly all other tribes, as it went far beyond the intent of federal law for gaming regulation and mandated unprecedented state intrusion into areas of governmental jurisdiction properly belonging to the tribes within their reservation boundaries. Because California tribes could not sue the state as a result of the Seminole v. Florida decision, and because the Secretary of Interior had been delayed by Congress in implementing regulations providing an alternative tribal-state compacting procedure, tribes were forced into a corner by Gov. Wilson, whose policy essentially was, “take what I say, or be shut down by U.S. attorneys.”
Proposition 5 – California Indian Self-Reliance Act
Though pressured by U.S. Attorneys and finding no assistance from the U.S. Justice Department on their behalf, tribal governments throughout California persisted in their campaign for “jobs and justice,” often taking serious risks of closure by the courts as they continued their battle. During the summer of 1998, California tribes launched a historic and successful signature-gathering campaign to place Proposition 5, the California Indian Self-Reliance Act, on the November general election ballot. Backed by more than 88 tribes, representing 98.8 percent of Indians living on reservations in California, tribal governments spent $63.2 million in the unprecedented campaign against Nevada casino interests, which provided nearly all of the $25.4 million spent against the measure.
In November 1998, California voters affirmed the right of California tribes to conduct limited, regulated, tribal government gaming on their lands by approving Proposition 5 by a landslide 63 percent margin.
State Supreme Court Blocks Proposition 5
One month after voter approval, the California Supreme Court blocked Proposition 5 from going into force, pending a review of two legal challenges.
State Compacts Signed
An atmosphere of confusion clouded the issues in the judicial branch as various federal District Courts handed down conflicting decisions regarding tribal government gaming. On Aug. 23, 1999, the California Supreme Court struck down nearly all of Proposition 5. Without Proposition 5, or an alternative acceptable to the federal government, the U.S. attorney for the central district was poised to shut down video gaming of 10 tribes in the region, pursuant to an earlier order by the U.S. 9th Circuit Court of Appeals. While talks had already been under way between California Gov. Gray Davis’ representatives and tribal governments for several months, negotiations accelerated following the court’s decision.
Economic Independence Day for California Indians came Sept. 10, 1999, when 58 compacts between tribal governments and the state, covering slot machine gaming devices and house-banked card games (like blackjack), were signed by Viejas Tribal Council Chairman Anthony R. Pico, other Indian leaders and Gov. Davis. Three more compacts were signed and approved by the Department of Interior during the next few months, for a total of 61 tribal compacts.
The new compacts limited machines in the state to those already in operation, and 350 for each tribe that did not have a compact with the state on September 1, 1999. There was also a maximum allowance of 2,000 gaming devices per tribe, which included existing devices, plus those drawn from a pool of devices allocated to tribes that do not enter gaming. The compacts call for strict tribal-state-federal regulation of gaming as provided by the federal IGRA and as detailed in the compacts. Additionally, the compacts use funds from gaming device licensing fees for a revenue-sharing fund to provide as much as $1.1 million per year for non-gaming tribes. The compacts also call for the allocation of up to 13 percent of net win revenues per device to cover the state costs of gaming regulation, funding impacts on local governments and a state problem gambling program, as well as appropriations as determined by the Legislature.
Bipartisan majorities approved AB 1385, a law to ratify the compacts, by votes of 31-0 in the state Senate and 68-0 in the Assembly. The Legislature also approved a bill that placed the proposed amendment to the California Constitution before the voters as Proposition 1A.
On March 7, 2000, California voters again affirmed the right of California tribes to conduct limited, regulated, tribal government gaming on their lands by approving Proposition 1A by a resounding 64.6 percent margin.
The voters’ mandate and Indians’ victory is reflected today at Viejas Casino. On June 14, 2000, Viejas Casino became the first tribal gaming facility in California to put into play Las Vegas-style coin operated slot machines. All of Viejas Casino’s 2,000 slots are Las Vegas-style coin operated machines.