If there’s one thing California voters pride themselves on, it’s
their ability to make their own laws via ballot initiatives. A
corollary of this is their ability to use popular referenda for
vetoing laws passed by elected officials.
If there’s one thing California voters pride themselves on, it’s their ability to make their own laws via ballot initiatives. A corollary of this is their ability to use popular referenda for vetoing laws passed by elected officials.
So it was perfectly normal when Californians signed enough petitions to spur a popular vote seeking to nix four new gambling compacts approved by state legislators and Gov. Arnold Schwarzenegger last year. Those petitions produced Propositions 94 through 97.
But almost as soon as the referenda officially qualified for the Feb. 5 ballot, the federal Interior Department took an action apparently designed to render the vote moot.
Remember, the Department of the Interior, parent of the Bureau of Indian Affairs, has rarely declined to allow an Indian tribe to build, operate or expand a casino.
Expansion is the issue in the current propositions. The compacts approved in Sacramento would allow four already large casinos operated by the Morongo, Sycuan, Pechanga and Agua Caliente tribes in Riverside and San Diego counties to add 17,000 slot machines to the 8,000 they now operate. Not surprisingly, the fine print posted on TV screens at the conclusion of every commercial backing the compacts shows those tribes are the only parties paying for the ads.
Schwarzenegger and the four wealthy tribes like to tout the $9 billion they would pay the state over about 20 years and their ballot arguments against the propositions claim defeating the compacts would have a major impact on the state budget.
But their contentions ignore the ill effects of gaming, both on the people who have to lose many billions of dollars before the casinos can make big payments to the state, and on the local environment via added traffic and other problems inevitably caused by significant casino expansion.
A coalition of labor unions, racetracks and Indian tribes not involved in the new compacts financed the campaign that produced the referenda.
But all that and anything else gambling skeptics in California may want to do about the huge casino expansions enabled by the compacts might just be irrelevant because of the Interior action.
Federal law says that once a tribal gaming compact with a state has been approved by Interior, those compacts “shall take effect” when notice of approval has been published in the Federal Register.
For the compacts at issue, that notice was published in December.
So the compacts might already be up and running. Except that there can be no federal approval before states negotiate compacts and they actually exist. And no California law that’s been subjected to possible rejection via a referendum can take effect until after such a measure has been defeated, if that’s the way the vote goes.
Which means the Department of the Interior may have approved non-existing compacts. Or perhaps it acted just before the referenda qualified for the ballot. No one is quite sure.
If anything ever looked like a lawyer’s paradise, this is it. For if  voters reject the compacts, the way is now open for tribal attorneys to argue that all voting on the referenda was moot because the federal action came before the compacts had been suspended. Those agreements were submitted to Interior on Sept. 5, even though they weren’t due to take effect until Jan. 1, in accord with a procedure Secretary of State Debra Bowen’s office said is outlined in government codes.
On the other side, lawyers can argue that everyone involved – including federal officials – knew the referenda were in the works long before they actually qualified for the ballot and that the Interior Department action was merely a ham-handed attempt to subvert California’s own deliberative process.
For sure, spokeswoman Nedra Darling of the Bureau of Indian Affairs could offer no solid answers when asked why the compacts were approved before the voters had their say.
Meanwhile, Schwarzenegger – who calls himself “the people’s governor,” pronounced the Interior Department action “good news” even though it may run counter to the wishes of the people.
None of this, of course, has affected the highly-visible campaigns both sides are mounting over the referenda. For as long as no one knows for sure whether the federal action will stand if the compacts are nixed at the polls, neither side feels it can take a chance on losing.
But one thing is clear: An Interior Department that has consistently been allied with the richest casino Indian tribes now seeks to let the rich get even richer, saying in effect that decisions of the voters simply don’t matter.
Ultimately, it may be up to the courts to decide whether the federal agency can get away with that.
