Hindsight: 12 Years Ago

On August 23, 1999, the California Supreme Court struck down Proposition 5, a ballot initiative that authorized casino gambling on tribal lands in California. The justices reasoned that, as a statutory measure, the Tribal Government Gaming and Economic Self-Sufficiency Act of 1998 was trumped by the California Constitution (Hotel Employees and Rest. Employees Int'l. Union v. Davis, 21 Cal. 4th 585 (1999)).

"The Legislature has no power to authorize, and shall prohibit casinos of the type currently operating in Nevada and New Jersey," declares a constitutional amendment approved in 1984 to create the state lottery. (Cal. Const. art. IV, § 19(e).)

But three years after the lottery became law, the U.S. Supreme Court had opened the door to Indian gaming when it ruled that California's bingo regulations could not be applied on tribal lands (California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)). The decision held that the unique sovereignty of Indian nations meant no laws entirely prohibiting a form of gambling can be enacted at the state level, though restrictions are allowed.

After the state Supreme Court nixed Prop. 5 in the Hotel ruling--a decision dissenting Justice Joyce Kennard excoriated, noting it was the public's initiative rather than the Legislature's--California voters soon rallied behind another constitutional amendment: Proposition 1A, passed in March 2000, authorizes casino-style gaming on tribal land--provided that the tribes adopt an ordinance and negotiate a gaming compact with the state.

The initiative was immediately attacked on several grounds--including claims that it violated the federal Equal Protection Clause as well as the Indian Gaming Regulatory Act (25 U.S.C. § 2710-2721)--but the courts upheld the measure. (See Artichoke Joe's v. Norton, 353 F.3d 712 (9th Cir. 2003).)

---