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When Gov. Arnold Schwarzenegger wrapped himself in an ornamental Native American blanket and signed a new gambling compact with five of California’s 107 Indian tribes, he hailed the accord as one that “respects the tribes’ sovereignty.” But representatives of some of the tribes who haven’t come to an agreement with Schwarzenegger say they are troubled that the new deal gives California law a greater foothold on Indian lands, where tribal law has traditionally prevailed. “The principles of sovereignty are being trampled,” said Richard Milanovich, tribal council chairman for the Agua Caliente Band of Cahuilla Indians, which has placed its own Indian gaming initiative on the November ballot. The new compact codifies practices that some, but not all, of the state’s 61 tribal gaming facilities already impose. The contract was signed by the Pauma Band of Luiseno Indians, the Pala Band of Mission Indians and the Viejas Band of Kumeyaay Indians — all of San Diego County — as well as the United Auburn Indian Community of Placer County and the Rumsey Band of Wintun Indians of Yolo County. The new compacts make clear that California tort law, rather than tribal law, cover all claims of injury or property damage connected to gaming activity on Indian lands. The deals expressly state that the signing tribes must waive their rights to “assert sovereign immunity” when claims are arbitrated up to the limits of each tribe’s insurance policy. Under the new agreements, that limit is $10 million per incident — twice the amount mandated under the 1999 agreements. Gibson, Dunn & Crutcher partner Daniel Kolkey, who negotiated the new compacts on behalf of the state, said loss of tribal sovereignty wasn’t “a deal-breaker” with tribes interested in a new state agreement. The intent was to provide a uniform legal framework. “One casino would have one set of laws, another would have another set,” said Kolkey, a former Third District Court of Appeal justice who also handled tribal legal issues as ex-Gov. Pete Wilson’s legal affairs secretary. “The only uniform law really is California tort law.” The tribes also agreed to take some disputes to binding arbitration, and to take part in a modified environmental impact process for new casino projects. One Indian gaming lawyer said the governor shouldn’t force California law on tribes when tribal law had adequately handled disputes. “It’s perfectly OK if tribes want to themselves address a particular body of law,” said George Forman, a San Rafael lawyer representing six tribes with casinos still operating under the compact signed under former Gov. Gray Davis. “It’s not okay to try and force tribes to change the deal they negotiated in 1999 and that voters approved in 2000. “If one tribe is not doing what the compact requires, that should get treated as a compact violation” and not a reason for wholesale renegotiations, Forman said. In exchange for the concessions — which include a one-time, $1 billion payment to the state, plus multimillion-dollar annual payments in later years — the tribes that signed the new compacts will be allowed to add slot machines, and, in some cases, expand their exclusive rights to operate casinos into broader geographical areas. The governor has vowed to oppose two November ballot initiatives addressing gambling in the state, one of them sponsored by the Agua Caliente tribe. The other was placed on the ballot by a group of card rooms and racetracks. Another tribe, the Rincon Band of Mission Indians, filed suit in federal court earlier this month alleging that the tribes negotiating with the governor gained an unfair competitive advantage over those still operating under the 1999 agreements. Several attorneys representing California tribes point out that elements of tort law were already being used to resolve disputes at Indian casinos. “It codifies much of what the tribe has [already] been doing,” said Howard Dickstein, a Sacramento attorney representing three of the tribes that signed the new compact. Michael Pfeffer, executive director of the California Indian Legal Services, said he wasn’t worried that this week’s accord would necessarily give California law an unprecedented legal foothold in other tribal matters. “It’s only for limited gaming operations,” said Pfeffer. “I don’t think it sets a precedent for other applications of general state law for any other tribal operations. It was a recognition that when you are going to have these type of large, commercial operations, that it involves the larger community.” Milanovich disagrees. “It always starts out narrow, then it gets wider,” he said. Tribal leaders may be too caught up in their quest for additional revenue to understand the precedent they have set, Milanovich added. But Don Trimble, CEO of the Coyote Valley Shodakai Casino near Ukiah, which was closed temporarily by federal regulators earlier this month because it never had a compact with the state, said agreements hashed out by the governor don’t seem unreasonable. “It’s a business decision,” said Trimble, who is in the midst of his own compact negotiations with the state. At Coyote Valley, patrons can take casino disputes worth less than $500 to an on-site administrator, said Trimble. Disputes worth more than that require the immediate involvement of the gaming commissioner responsible for the casino. On-site injuries are turned over to the casino’s insurance agency and handled “the same as if it were in a Macy’s parking lot,” said Trimble. Trimble said the casino’s primary concern is extending a welcome to visitors. “We want to do our best for our customers,” said Trimble. “We want to make them feel as comfortable at our casinos as they do anywhere else.”

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