Update on State Compacting Authority Litigation CWAG August 2009 Stephanie Striffler Senior Assistant Attorney General Oregon Dept of Justice

Background: relationship of state and federal law

Indian Gaming Regulatory Act 25 U.S.C. Sec. 2710(d)(1)(C) requires that Class III gaming be “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State...that is in effect.” 25 U.S.C. Sec. 2710(d)(1)(C) requires that Class III gaming be “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State...that is in effect.” The compact takes effect only when approval by the Secretary of Interior is published. 25 U.S.C. sec. 2710(d)(3)(B). The compact takes effect only when approval by the Secretary of Interior is published. 25 U.S.C. sec. 2710(d)(3)(B). Secretarial approval can not cure a defect in state authority. Pueblo of Santa Ana v. Kelly, 104 F3d 1546 (10th Cir ). Secretarial approval can not cure a defect in state authority. Pueblo of Santa Ana v. Kelly, 104 F3d 1546 (10th Cir ).

Kinds of challenges and forms of invalidity

Separation of powers Invalidation based on view that matters negotiated in compacts are matters of policy for the legislature that the legislature has not authorized. Invalidation based on view that matters negotiated in compacts are matters of policy for the legislature that the legislature has not authorized. E.g., State ex rel Stephan v. Finney, 836 P2d 1169 (Kan. 1992): “We conclude the legislature has enacted no legislation authorizing the Governor to negotiate the compact herein and bind the State thereby.” E.g., State ex rel Stephan v. Finney, 836 P2d 1169 (Kan. 1992): “We conclude the legislature has enacted no legislation authorizing the Governor to negotiate the compact herein and bind the State thereby.”

Illegal gaming authorized Invalidation based compact authorizing Invalidation based compact authorizing tribes to engage in forms of gaming not tribes to engage in forms of gaming not otherwise authorized in state law. otherwise authorized in state law. E.g. Florida House of Representatives v. Crist, 999 So.2d 601 (Fla. 2008), cert den ___US___, 129 S Ct 1526, 173 L Ed2d 657 (2009) E.g. Florida House of Representatives v. Crist, 999 So.2d 601 (Fla. 2008), cert den ___US___, 129 S Ct 1526, 173 L Ed2d 657 (2009)

Compacting Authority Initiative or other legislative compact Initiative or other legislative compact Legislative delegation Legislative delegation Legislative ratification Legislative ratification

Issues in Litigation Standing Standing Indispensable parties Indispensable parties

Recent Cases

Taxpayers of Michigan Against Casinos v. Michigan (TOMAC II), 732 NW2d 487 (Mich. 2007) Taxpayers of Michigan Against Casinos v. Michigan (TOMAC II), 732 NW2d 487 (Mich. 2007) Florida House of Representatives v. Crist, 999 So.2d 601 (Fla 2008), cert den. ___US___, 129 S Ct 1526, 173 L Ed2d 657 (2009) Florida House of Representatives v. Crist, 999 So.2d 601 (Fla 2008), cert den. ___US___, 129 S Ct 1526, 173 L Ed2d 657 (2009) Mudarri v. State, 196 P3d 153, rev den 203 P3d 1123 (Wash App 2009) Mudarri v. State, 196 P3d 153, rev den 203 P3d 1123 (Wash App 2009) Dewberry v. Kulongoski, ___Or___ (Or June 18, 2009) Dewberry v. Kulongoski, ___Or___ (Or June 18, 2009)

Mudarri v. State of Washington Suit by private casino operator on numerous grounds Suit by private casino operator on numerous grounds The court held : The court held : 1) The tribe was an indispensable party to challenge to compact, so did not address challenges 1) The tribe was an indispensable party to challenge to compact, so did not address challenges 2) The equal protection claim failed because plaintiff was not similarly situated to the Tribe. By entering compact with the tribe, the state was not conferring a privilege to a “citizen or class of citizens” under the state Privileges and Immunities clause. 2) The equal protection claim failed because plaintiff was not similarly situated to the Tribe. By entering compact with the tribe, the state was not conferring a privilege to a “citizen or class of citizens” under the state Privileges and Immunities clause.

Taxpayers of Michigan Against Casinos v. Michigan (TOMAC II) Legislature approved gaming compacts – Under TOMAC I form of legislation was constitutional Legislature approved gaming compacts – Under TOMAC I form of legislation was constitutional The court held: amendatory provision of legislatively approved compact did not violate separation of powers. “The Legislature chose to approve an amendment procedure that gives the Governor broad power to amend the compacts, and the Legislature was well within its authority to make such a decision.” The court held: amendatory provision of legislatively approved compact did not violate separation of powers. “The Legislature chose to approve an amendment procedure that gives the Governor broad power to amend the compacts, and the Legislature was well within its authority to make such a decision.”

Florida House of Representatives v. Crist Governor did not have authority to execute compact, violation of separation of powers. Governor did not have authority to execute compact, violation of separation of powers. Compact authorized games prohibited under Florida law, such as house-banked card games – did not consider whether other compact provisions encroached on legislature’s policymaking authority. Compact authorized games prohibited under Florida law, such as house-banked card games – did not consider whether other compact provisions encroached on legislature’s policymaking authority. “Necessary business” clause does not authorize governor to executive compacts to create exceptions to the law. “Necessary business” clause does not authorize governor to executive compacts to create exceptions to the law.

Dewberry v. Kulongoski Challenge by “People Against a Casino Town” Challenge by “People Against a Casino Town” Federal court, 406 F. Supp. 2d 1136 (D. Or. 2005) held Federal court, 406 F. Supp. 2d 1136 (D. Or. 2005) held Tribes were indispensable parties Tribes were indispensable parties Governor had statutory and constitutional authority to enter compact Governor had statutory and constitutional authority to enter compact Compact did not authorize prohibited games Compact did not authorize prohibited games

Oregon Supreme Court reversed and remanded mandamus dismissal, holding: Oregon Supreme Court reversed and remanded mandamus dismissal, holding: Indispensable party rule did not apply in mandamus Indispensable party rule did not apply in mandamus Plaintiffs did not have adequate alternate remedy Plaintiffs did not have adequate alternate remedy