Tribal attorneys argue California’s tribes must have a
judicial remedy to enforce the provisions of the Tribal-State
Gaming Compacts.
Tribal attorneys say rule paves the way for state to dismiss
gaming-pact cases
By Chet Barfield, UNION-TRIBUNE STAFF WRITER, June 7, 2006,
SignOnSanDiago.com
http://www.signonsandiego.com/news/metro/20060607-9999-1n7lawsuits.html
Attorneys for tribes challenging the state in disputes over
California's Indian gaming compacts say they're being trumped by a
legal defense all but guaranteed to get any such lawsuit
dismissed.
The state has invoked this defense to quash four gaming-compact
suits tribes have brought since 2004, including one dismissed last
month by a federal judge in Sacramento.
“The state gets to dictate the meaning of every provision of
this compact,” said George Forman, attorney for the Central
Valley tribe whose suit over slot machine licenses was dismissed
May 16. “There's no way anyone can challenge the state's
calculations.”
At issue is a federal civil regulation called Rule 19. It requires
any party deemed “necessary and indispensable” to be included
as a plaintiff or defendant. If that can't be done, case
dismissed.
Most of California's 61 tribal compacts are boilerplate agreements
signed by former Gov. Gray Davis in 1999. In all four court
challenges, the state has successfully argued that claims raised
by the plaintiff tribe would affect others in California, making
them indispensable parties.
The rule could apply to any or all of California's 107 tribes,
even those without casinos. The compacts include provisions for
gaming tribes to provide revenue-sharing funds for all those that
have no casinos or very small ones.
The pacts outline three steps to resolve disputes. First, either
the governor or a tribe can demand “meet and confer” sessions
to address a disagreement.
If that doesn't do it, either side can request binding
arbitration, but both must agree. The state has yet to arbitrate a
compact dispute.
Litigation was supposed to be a last resort.
“What good is an agreement . . . if we're not able to get a
judicial determination of what it means?” asked Rincon attorney
Scott Crowell, whose client tribe is appealing a compact challenge
dismissed last year.
Another North County tribe, San Pasqual, filed suit in federal
court May 3, contending the state is wrongly depriving Valley View
Casino of more than 400 slot licenses.
Attorney Stephen Solomon said if the state invokes Rule 19, San
Pasqual will argue that its suit would not deprive any other tribe
of slots, licenses or revenue-sharing funds.
“This only adds to (the license pool); it doesn't take away from
anybody,” he said. “If you take the state's position to its
logical sequence, no tribe could ever sue the state for
anything.”
Solomon, Crowell and Forman contend the Schwarzenegger
administration is blocking the suits to force tribes to
renegotiate their compacts and pay more money to the state, as
nine tribes have done.
Schwarzenegger's press office referred inquiries to Attorney
General Bill Lockyer. A Lockyer spokesman provided a statement
prepared by state attorneys.
“The rule does not apply to every dispute that arises under the
1999 compact,” it said. “Dismissal based on indispensability
of parties comes into play only when the dispute involves
application of compact provisions that affect some or all of the
compact tribes, or some or all of the non-compact tribes.”
One tribal attorney whose view differs from most is Howard
Dickstein, who represents Pala and two Northern California tribes
that signed revised compacts with Schwarzenegger in 2004.
Dickstein said tribes, which have governmental immunity from most
suits, have been using Rule 19 for decades to get cases dismissed
in their favor. He called it ironic for tribal attorneys to
complain about the state invoking it.
“What you can't litigate are issues that are common to multiple
tribes unless those tribes agree to the lawsuit,” he said.
“Once you entered into compacts with many common provisions,
that was very clear from Day One that that could be an outcome. I
don't know why anyone's surprised about this.”
Solomon, Saltsman & Jamieson are
attorneys practicing in the areas of ABC law, ABC Appeals Board
cases, and all related Land Use Matters such as City and County
Conditional Use Permits, Variances, Police and Fire permits,
Entertainment law, and Gambling Law; as well as Business and
Personal Injury litigation. Solomon, Saltsman & Jamieson can
be reached at 800 405 4222."
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