Is California ‘imposing jurisdiction’ on Chukchansi? The Department of Interior thinks so
The future of the Chukchansi casino on Highway 41 north of Fresno appears to hinge on a power struggle between the state of California and the federal government.
Despite nearly two years of consideration, the U.S. Department of Interior hasn’t approved a new tribal-state compact required for the Picayune Rancheria of Chukchansi Indians to conduct casino-type gaming activities.
The federal watchdog cites violations of gaming laws. However, the violations mostly appear to be related to the state’s efforts to regulate the tribe, a slippery slope given issues of tribal sovereignty.
The casino is operating under an extension of the tribal-state compact that runs until Dec. 31. The original compact was entered into in 1999 and was set to go through Dec. 31, 2020, but it was extended to June 30, 2022. On Sept. 24, 2021, Chukchansi submitted a new compact to the Department of Interior for approval.
The biggest sticking point appears to be over the regulation of tobacco products. Chukchansi’s new compact with the state included prohibiting the sale of tobacco to people under the age of 21. (The tribe runs several businesses near the casino including the Willow Glen Smoke Shop.)
In its disapproval letter, the Department of Interior pointed out that in 2004 and 2012, the department disapproved of compacts in Oklahoma and Massachusetts over similar issues. In nearly two decades, those appear to be the only instances of tobacco regulations causing an issue.
“In both cases the Department pointed to IGRA’s (Indian Gaming Regulatory Act) text and legislative history as prohibiting states from using the IGRA compact process as subterfuge for imposing state jurisdiction on Tribes concerning issues not related to gaming,” the Nov. 5, 2021 letter says.
Joshua Barnett, director of the Office of Public Affairs-Indian Affairs at the Department of Interior, said it’s not unusual for the department to not approve a gaming compact in general. The Department of Interior, he said, often disapproves compacts that violate gaming laws and often declines to approve compacts that present concerns with provisions that could be read or implemented in a way that violates IGRA.
“The Department of the Interior has determined that certain provisions of the compact submitted by the Picayune Rancheria of Chukchansi Indians of California violate the IGRA,” Barnett told The Bee in an email.
A spokesperson with the governor’s office said the Department of Interior’s disapproval of Chukchansi’s compact “was not common at the time it occurred.”
“Previously, the majority of compacts with tribes in California were deemed approved under the Indian Gaming Regulatory Act,” the spokesperson told The Bee in an email. “Subsequently, there have been four compacts disapproved by the Department of the Interior for reasons similar to those for the Picayune Rancheria, including two with the Santa Rosa Indian Community of the Santa Rosa Rancheria” — which owns Tachi Palace Hotel & Casinoo near Lemoore.
In August 2022, the spokesperson said, the state signed a third compact with the Santa Rosa Indian Community. “That agreement, along with a compact with the Tejon Indian Tribe, were affirmatively approved by the Department of the Interior in November 2022,” the spokesperson said.
The IGRA requires a “class III compact” for tribes to conduct class III gaming, Barnett said.
Class III gaming is everything related to casino activities which bring in most of the revenue for tribes. The local tribe owns the Chukchansi Gold Resort & Casino near Coarsegold. The significance of having a compact in place is for the tribe to be allowed to continue to conduct gaming activities at the casino.
Without it, Barnett said, the tribe cannot conduct casino-type gaming.
State responds, feds push back
The tobacco provision in the new Chukchansi tribal-state compact, the Department of Interior’s disapproval letter says, directly regulated the tribe’s sale of tobacco products, which is not related to gaming.
The state of California responded to the Department of Interior’s concerns by saying federal law currently prohibits the sale of tobacco products to anyone under the age of 21. Therefore, under federal law, Chukchansi is “not authorized to sell tobacco products to anyone under the age of 21.”
The Department of Interior, however, said the state’s explanation didn’t change its concerns on the issue, according to the letter.
“The regulation of the sales of tobacco is well beyond the permitted scope of a class III gaming compact, therefore a clear violation of IGRA, and must be disapproved here, as in the other compacts where it appeared,” the disapproval letter says.
Diane Vitols, attorney general for Chukchansi, said she had no comment as she’s not authorized to speak on behalf of the tribe.
Chukchansi Tribal Council Chairwoman Janet K. Bill and other councilmembers didn’t respond to a request for comment.
Danella Debel, a spokeswoman in the governor’s office, only said that as a result of the November 2021 disapproval by the Department of Interior, the 1999 compact signed by the state with Chukchansi remains in place.
Debel said Chukchansi is able to continue gaming activities through Dec. 31. However, at that point, a new compact or another extension would need to be in place.
Barnett, with the Department of Interior, said there is no limit to the number of extensions Chukchanis and the state could enter into.
Other violations cited by Department of Interior
Other violations identified by the Department of Interior are also tied to what the department believes is the state imposing more control over the tribe.
For example, a Department of Interior conclusion was that the state “is impermissibly using the Compact to regulate beyond Gaming Spaces” through the use of broad definitions and a new environmental provision.
The Department of Interior took issue with an environmental provision included in the new agreement that requires the “Tribe to enter into intergovernmental agreements with the County, the City, and Caltrans prior to commencement of a project.” This provision also requires the intergovernmental agreements to include compensation from the tribe to the local governments for mitigation of effects on public safety and for public services provided by the tribe.
The provision would apply to any renovations or projects on the resort complex and on-reservation business operated by the tribe’s gaming enterprise. “Moreover the requirement to enter into an intergovernmental agreement prior to commencement of a project provides local governments an effective veto over an on-reservation Tribal project,” the disapproval letter says. “Therefore, these provisions, as written, fall outside of the narrow range of topics IGRA permits in a compact and must be disapproved.”
Throughout the environmental review process under the new compact, Chukchansi would have been required to notify the state of its determinations and allow the state to object. Arbitration could be triggered if both sides were unable to reach a resolution.
“Further, requiring a Tribe to adopt state law or its equivalent and permitting for the State to review and object to the Tribe’s environmental review is effectively one step removed from the direct application of State law on the Tribe’s reservation,” the letter reads.
Chukchansi and the state provided the Department of Interior additional information on the environmental provision. The state also argued the review would be “effectuated not through application of state law within the reservation, but through a Tribal Environmental Protection Ordinance.” The department, however, was “unpersuaded,” according to the letter.
The Secretary of Interior “may disapprove a compact only if the agreement violates IGRA, any other provisions of Federal law that does not relate to jurisdiction over gaming on Indian lands, or the trust obligation of the United States to Indians,” the disapproval letter says.
“Not only have we found certain provisions blatantly in violation of IGRA, but we have concerns with many of the provisions that seek to impose state control where it does not belong,” the letter reads.
Where does the application stand?
Barnett, with the Department of Interior, wouldn’t say whether Chukchansi, specifically, is working to submit an amended new compact for approval before the December deadline.
“The Department is aware of several Tribes that are continuing to negotiate class III compacts with the State with the goal of having approved compacts before the extensions expire,” he told The Bee in an email.
The governor’s office spokesperson said the office doesn’t comment on the status, if any, of specific compact negotiations.
It doesn’t appear that Chukchansi’s continued disenrollments are a factor in the acceptance by the Department of Interior of the compact. Affected members and those who fear they will be next say the Chukchansi Tribal Council’s actions are in violation of their constitutional rights and the tribe’s constitution itself.
But on that issue last month, Secretary of Interior Deb Haaland’s office only said: “nothing from us on this.”
This story was originally published February 10, 2023 at 7:30 AM.
CORRECTION: The original story stated an incorrect date for Chukchansi’s first compact extension. The tribe’s compact was first extended to June 30, 2022.
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