Tribal courts written into three compacts

If a trio of gaming compacts before the Legislature this year become law, casinos patrons eventually could find themselves in an unfamiliar place: tribal court.

This has some people worried that tribal courts could expand their power over time, taking on new areas of law. Tribal representatives counter that the new rules strengthen legal protections for casino customers, and the “tribal courts” described in the compacts are years away.

At issue is language in the amended compacts for the Agua Caliente, Pechanga and San Manuel tribes. Each compact contains a section heading, “Patron disputes,” that outlines new procedures for arbitrating disputes between casinos and patrons.

The last paragraph in this section in each of these threes compacts outlines how the tribes may establish “a tribal court system” that would have jurisdiction over outsiders who have disputes with the tribe. In each case, such a system would only come after negotiations between the state and the tribe. Three other pending compacts–for the Morongo, Sycuan and Yurok tribes–contain most of the same clauses of the “patron disputes” sections, but not the provisions for creating tribal courts.

The court provisions have caught the eye of some Republicans, who have been circulating an analysis of the Agua Caliente compact written by Richard Paul, a consultant with the Senate Republican Office of Policy. Paul writes: “The same entity that owns and profits from the casino will have the authority to, not only hand patron complaints but, also, adjudicate the final appeals of those complaints. It may be appropriate to apply the ancient and time-honored analogy of ‘the fox guarding the hen-house’ in this situation.”

Michelle Carr, in-house counsel for the Agua Caliente Band of Cahuilla Indians, took issue with this characterization. In the latest compacts, she said, tribes are waiving significant aspects of their sovereignty, not expanding their power.
“The whole theme of the 2006 compacts are higher protections and increased oversight,” she said.

The latest compacts do far more to protect casino patrons than the old ones, she said, by explicitly laying out procedures for patron disputes that the first round of 1999 compact left vague.

Under the new compacts, patrons have three days after an incident to file a dispute with the Tribal Gaming Agency of the tribe in question. Each tribe has one of these bodies; Agua Caliente’s agency has two tribal members and three members from outside the tribe. That agency than has 15 days to respond. This would be followed by state-sponsored arbitration as laid on the in the JAMS optional arbitration-appeal procedures.

Even if tribal-court systems are established, it would only be after negotiations with the state. The language in the compacts lays out rules for these negotiations, calling on the state “to give due respect to the sovereign rights of the Tribe,” while the tribe is supposed to respect due process and recognize plaintiffs’ rights to appeal, possibly into state and federal courts.
Carr said that she didn’t have any figures on how often disputes come up with gambling patrons. However, it has frequently been noted that gambling is a competitive industry in which casinos generally try not to antagonize their customers.

The bigger fear for some is that tribal courts get involved in other types of disputes with outsiders–especially if those courts eventually start to delve into employee issues or environmental law.

The compacts–and especially the tribal court provisions–violate the principle of “rational anticipation,” according to Dr. Elisabeth Galvin, a spokeswoman for the group No More Slots, who has a Ph.D. in public finance. Because of the money that casinos pump into local economies, she said, people already have a hard time getting a fair shake, from local police and courts, if they want to bring action against a casino. She pointed to sexual harassment claims brought against the Chumash Casino in Santa Ynez as an example.

C.J. Jackson of Santa Ynez Concerned Citizens echoed these thoughts, pointing to the courts as another example of the state Legislature not fully examining the
implications of the compacts. He said the taxes and campaign contributions pouring out of casinos perverting the political process.

“We’re concerned that rural communities are being treated like a piggybank by the state legislature and the government,” Jackson said.

Frank Russo, publisher of the California Progress Report, has been a frequent critic of tribal compacts–and particularly of Agua Caliente. He said he was “not surprised” by the tribal-courts language because it mirrors issues around auditing casino profits in order to see how much should go to the state. Big payouts to the state are a major selling point of the compacts; Agua’s annual payments to the state could jump from about $12 million to nearly $60 million under its new compact, according to a Department of Finance estimate.

But Russo and others have pointed out what they see as a flaw–one that, like the courts issue, arises from the paradox of sovereign tribal governments operating within the state.

“They don’t allow for auditing,” Russo said. “We’re supposed to trust them on the millions of dollars they are supposed to pay.”

This brings up a potentially rich irony: The fear that a court system controlled by the a class of people who have been routinely mistreated in U.S. courts could gain the power to mistreat U.S. citizens. There are some limited examples of tribal courts within California, and Oklahoma has numerous tribal courts. But these have usually served tribal members, and did not apply to outsiders.
Again, Carr said, these concerns are overblown.

“It’s very far off in the future and it’s not even guaranteed,” Carr said of tribal courts.

Contact Malcolm Maclachlan at

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