Clock ticking on Robinson Rancheria’s slot machines in Lake County

Five Indigenous California tribes, including two based in Mendocino and Lake counties, are locked in a legal dispute with Gov. Gavin Newsom’s office over renewing their gambling compacts with the state.

The outcome of the case, experts say, has potential implications for every California tribe that holds casino rights.

And while the points of contention are technical, the possibility of immediate fallout is stark for some tribes. They could see the slot machines at their casinos unplugged as soon as April 1 if they are unable to reach some sort of accommodation.

One of those tribes is Robinson Rancheria in Nice, about 75 miles north of Santa Rosa. The casino is owned by a band of Pomo who don’t have to guess what a government-imposed shutdown would mean for their budget.

“We closed ourselves for 125 days during the pandemic,” said Beniakem Cromwell, the Robinson Rancheria chairman. “We know how devastating it is.”

Another timeout would affect many of the tribe’s social programs, he said. And as the chairman pointed out, Robinson Rancheria is one of the poorest communities in one of the poorest counties in California.

“This has nothing to do with revenue,” said Cromwell, 45. “It’s education for members in higher education or vocational school. It’s elders’ monthly social welfare. We use that revenue for after-school programs, sports teams. We fund employees at our elder center, our education center, our tutors.”

The lawsuit at the heart of the conflict has to do with compacts that 61 tribal nations reached with Gov. Gray Davis in 1999. Those contracts were to renew in December 2020, but an automatic 18-month extension kicked in. The deadline is now June 30.

Other tribes, like Federated Indians of Graton Rancheria, which signed its compact in 2012, are not immediately affected.

Most of the tribes with 1999 compacts have already entered new agreements, or signaled a willingness to do so.

But five — Robinson Rancheria, the Hopland Band of Pomo Indians in Mendocino County, the Chicken Ranch Rancheria of Me-Wuk Indians (based in Tuolumne County), Blue Lake Rancheria (Humboldt County) and the Chemehuevi Indian Tribe (San Bernardino County) — have objected to a number of provisions the state sought to add to the compacts.

Those five tribes sued in a case commonly referenced as Chicken Ranch Rancheria v. Gavin Newsom, insisting the new provisions violate the federal Indian Gaming Regulatory Act (IGRA). The suit also argues that the state did not bargain in good faith.

The new provisions include enforcing spousal and child support orders, as well as state laws pertaining to the environment, minimum wage, anti-discrimination and other elements of tort law and the labor code. The tribal plaintiffs also want to modify the trust fund, established in 1999, that redistributes a portion of revenue from tribes that own casinos to those that don’t.

Those protections “are exactly what the state should be asking for,” said I. Nelson Rose, who has spent decades studying tribal gaming law as a lawyer, law professor and government consultant. “To not discriminate on the basis of race, to establish a minimum wage — winning on those points is nothing a tribe should be bragging about. To an outsider, it’s unseemly even to be making these arguments.”

That’s beyond the point, said Les Marston, a Ukiah-based attorney who is representing four of the five tribes, including Hopland and Robinson Rancheria. The issue is not the merits of the provisions, Marston said, but who determines the rules governing these sovereign nations.

“Supporting children. Making sure spouses are adequately compensated. You really think tribes aren’t going to do that on their own?” Marston said. “How paternalistic is that? The issue here is the tribes’ right to govern themselves under their own laws, which is guaranteed them by the Constitution of the United States.”

The Governor’s Office declined to comment on the matter “as it relates to ongoing litigation,” a spokesperson said.

But in Chicken Ranch v. Newsom, state attorneys argued that all of the proposed provisions are “proper IGRA negotiation topics.”

“Moreover,” they wrote to Judge Anthony Ishii, “even if any of the topics exceeded IGRA’s scope, the State could lawfully negotiate and offer the Plaintiff Tribes meaningful concessions to include them in new compacts.”

The case made it to the U.S. District Court for the Eastern District of California a year ago. There, as Marston describes it, Ishii delivered a resounding victory for the five tribes.

“The Tribal Plaintiffs have met their burden of producing evidence the State Defendants did not negotiate in good faith by raising topics in negotiations that were beyond the scope permitted by IGRA or which required some form of meaningful concession in return,” Ishii wrote in his opinion.

But at least one analyst calls Marston’s characterization misleading.

“He said the tribes won on all the issues,” said Rose, who is based in Logan, Utah, and writes a blog called Gambling and the Law. “Actually, the state won on almost all of them.”

Indeed, Ishii’s decision questioned the state’s right to negotiate only two of eight points — the provision on spousal and child support, and the reformulated trust fund. He ruled that while Newsom’s office does not have the right to unilaterally impose the other provisions, all of them are fair game for further negotiations.

The state lost that round not because of the substantive issues, Rose said, but because of procedural points. Specifically, Ishii said the state had failed to link specific new provisions with specific government concessions.

That technical ruling is bound to fall apart as the case proceeds to higher courts, Rose said.

“This is a burden that is completely impossible when you’re dealing with a massive, complex negotiation like this,” Rose argued. “There are dozens, if not hundreds of separate points, negotiated over years. You can’t say, ‘We’re asking you to enforce child support court orders, and in return we’re letting you have, let’s say, the casino stay open 24 hours a day rather than 22.’

“Basically, it’s unfair to the state, which means it’s unfair to the people of California.”

Rose and Marston do agree on a couple of issues, though. One is that the case could set an important precedent for Indian casinos all over California. A number of tribes have pending negotiations over their gaming compacts. And even those that have already signed agreements would probably be able to demand a return to the bargaining table if the plaintiffs are successful in Chicken Ranch v. Newsom.

Presumably, that would include the Santa Rosa Rancheria Tachi Yokut Tribe and the Middletown Rancheria of Pomo Indians, both of which are the latest California nations to secure state compacts, the governor’s office announced.

Rose also acknowledged that the April deadline is real for Robinson Rancheria Resort & Casino — and would have been for the Hopland Band of Pomo as well, except they closed their Sho-Ka-Wah Casino during the pandemic and have yet to reopen it.

The upcoming timeline is just as complicated as the legal doctrine.

The two sides argued before the U.S. Court of Appeals for the Ninth Circuit on Dec. 9, and Marston expects Ishii to reach a decision within the next month. If that ruling favors the tribes and arrives by April 1, the attorney said, his clients will likely have enough time to exhaust the IGRA remedial process, which would include nonbinding arbitration. If it comes after April 15 (and barring an extension), the casinos will have to cease Class III gaming operations, including slot machines.

If Ishii rules in their favor sometime between April 1 and April 15, Marston said, the tribes will be in a race to complete the IGRA procedures, and simply might run out of time.

There is a less drastic option. On March 9, California’s senior adviser for tribal negotiations, Nathan Voegeli, wrote to Marston offering a one-year extension to sort out the impasse. At least one of the tribes, Robinson Rancheria, has little inclination to accept it.

“When we opened this casino, we did not make the wrong decision,” Cromwell said. “We made the right decision, based on a law that was passed in 1999. Now we feel like we’re being punished for doing the right thing, because the state can wait it out. I don’t want to feel like we’re being punished for taking a stand.”

You can reach Phil Barber at 707-521-5263 or phil.barber@pressdemocrat.com. On Twitter @Skinny_Post.