Despite Dismissal Of Lawsuit, Tribes Not Done Fighting Against California Cardrooms

Written By Matthew Kredell on December 15, 2020

The latest lawsuit from California Native American tribes — which aimed to force the state to crack down on cardrooms for offering traditionally banked games such as blackjack — failed this month.

The Ninth Circuit Court of Appeals upheld a lower court’s ruling in the lawsuit against California Gov. Gavin Newsom.

The Yocha Dehe Winton Nation, Viejas Band of Kumeyaay Indians and Sycuan Band of Kumeyaay Indians tried to compel the state to enforce their exclusive right to offer banked card games.

PlayCA spoke with representatives of Yocha Dehe and the California Gaming Association to get their reaction to the decision.

California cardrooms celebrate court ruling

California cardrooms haven’t had much to celebrate in 2020, as many of them are currently closed due to stay-at-home orders related to the coronavirus spike while tribal casinos remain open.

But they did just receive good news that they can continue operating as normal when the state returns to normal.

Kyle Kirkland, president of the California Gaming Association, called the lawsuit an attempt by tribal casinos to gain a monopoly.

“We applaud the decision made by the Ninth Circuit Court which supports the right of California cardrooms to operate and dismisses the tribes’ baseless claims,” Kirkland said. “This lawsuit is another attempt by certain tribes to monopolize gaming in California and waste taxpayer dollars defending against the tribes’ false perception of gaming exclusivity. We appreciate the Court recognizing the State has no obligation to enforce tribal opinion.”

Kirkland pointed to the following as the key language in the court decision:

“Nothing in the compacts purports to impose on the State the obligation to enforce its laws against non-Indian cardrooms, and nothing in the contracts suggests the Tribes may seek that remedy based on an alleged breach of any exclusivity guarantee. We would also be reluctant to read such an extraordinary remedy into the compacts because California law does not permit the State to ‘contract away its right to exercise the police power.”

Tribes disagree with lawsuit outcome

Yocha Dehe public information officer Ben Deci said the tribes respect but strongly disagree with the Ninth Circuit’s decision.

“A right without a remedy is meaningless,” Deci said. “The State’s police powers cannot be at issue when, as detailed in the Tribes’ complaint, the State itself has expressly allowed and encouraged the illegal cardroom gaming.”

Deci noted that the Ninth Circuit did not affirm the dismissal on the same grounds as the lower court. The district court found that tribal gaming compacts do not compel the state to protect Tribes’ constitutional rights. Instead, Deci said, the appeals court concluded that any remedy the federal courts could provide would invade the state’s police powers.

“It is important to keep in mind that the State has never disputed the merits of the Tribes’ position that cardrooms are violating the law,” Deci said. “To the contrary, various high-ranking representatives from the Department of Justice, the Bureau of Gambling Control and the Attorney General’s office have admitted that California cardrooms are playing prohibited house-banked card games, and are also playing blackjack, which is illegal under the Penal Code. This illegal gaming could not occur absent the State’s express approval.”

What’s next for tribal-cardroom battle

Yocha Dehe is not ready to say if it will pursue this case any further. But the only place it can go is to the Supreme Court, which isn’t likely to take up the case.

Deci asserted that tribes will continue efforts to preserve the rights guaranteed them by the constitution through whatever means necessary.

They could get additional means if voters approve the tribal sports betting initiative in 2022. Tribes recently submitted signatures for local officials to check for validity. The initiative would allow tribes to file lawsuits directly against cardrooms if the state will not act.

Kirkland is confident the cardrooms would continue to fend off legal challenges from the tribes.

“Just because they say our games are illegal doesn’t make it true,” Kirkland said. “Ask them to point to the law that makes them illegal. Our games are legal and regulated by the Bureau of Gambling Control. The tribes don’t have exclusivity to offer blackjack games. Blackjack is a general term, and the way our games are offered is very different from their games. You couldn’t go into a tribal casino and ask to be the dealer.”

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