Court Hears Debate on Tribal Initiative

Proposition 5, the Indian gaming initiative overwhelmingly approved by state voters in November, turns California’s governor into a “trained monkey” directed by Indian tribes, a lawyer opposed to the measure told the California Supreme Court on Tuesday.

In a packed courtroom, the court listened attentively as lawyers debated the constitutionality of the initiative that authorized Indian tribes to maintain and expand casinos on their reservations. The measure has been on hold since December, when the state high court blocked it pending a review of its constitutionality.

Some justices appeared skeptical of the tribes’ arguments in favor of the measure, but the court gave no clear indication of where it is headed. A decision is expected within 90 days.

“The governor by this proposition is turned into a trained monkey to do whatever he is required to do by the tribes,” Richard McCracken, a lawyer for the Hotel Employees and Restaurant Employees International Union, told the court.

The AFL-CIO union, which challenged the initiative in a suit, is trying to organize non-Indian workers at tribal casinos. The initiative does not allow for such organizing.

A group of homeowners and businesses also filed a suit, financed by the Nevada gambling industry, to block the measure.

McCracken called Proposition 5 a

“perpetual contract” that can only be changed by the tribes. It sets up model compacts--agreements that entitle tribes to certain kinds of gaming--and compels the government to approve them, he said.

“The governor is required to sign this compact regardless of whether the governor has serious reservations about its constitutionality,” McCracken said.

A lawyer for the tribes countered that the court should honor the wishes of the nearly 63% of voters who approved Proposition 5. The vote followed a nearly $90-million campaign, the most expensive ever for a U.S. ballot measure.

“The fairest interpretation is to jealously guard the people’s power,” said the attorney, Mark H. Epstein.

Several justices noted that a 1984 constitutional amendment that created the state lottery also imposed a ban on Nevada- and New Jersey-style casinos. That ballot measure prohibited the Legislature from approving such casinos without a new constitutional amendment.

Justices asked Tuesday whether that prohibition also applies to citizen initiatives.

Lawyers opposed to Proposition 5 contended that the ban applies to initiatives such as the one passed by voters last fall. But Epstein argued that it did not and contended that in any case the gaming allowed under Proposition 5 differs significantly from that in Las Vegas and New Jersey casinos.

Attorneys on both sides of the issue said after the session that they were pleased with the arguments and the court’s questions.

As lawyers have prepared in recent days to debate the constitutionality of the ballot measure, talks have been underway on a separate track between Indian tribes and Gov. Gray Davis to craft casino operating agreements acceptable to all sides.

Davis has been friendly with Indians and unions, and received campaign contributions from both.