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97-0904_CC_Minutes_Adjourned Regular Meeting305 ' SEPTEMBER 4, 1997 ADJOURNED REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA The Adjourned Regular Meeting of the City Council of the City of San Juan Capistrano, California was called to order by Mayor Swerdlin at 4:07 p.m. in the City Council Chamber, to hear a presentation by Thomas F. Gede, Special Assistant Attorney General. ROLL CALL: PRESENT: David M. Swerdlin, Mayor Gil Jones, Mayor pro tem Collene Campbell, Council Member John Greiner, Council Member Wyatt Hart, Council Member ABSENT: None STAFF PRESENT: George Scarborough, City Manager; Jennifer Murray, Assistant City Manager; John Shaw, Interim City Attorney; Cheryl Johnson, City Clerk; Thomas Tomlinson, Planning Director; and Lt. Paul Sullivan, Orange County Sheriffs Department. ORAL COMMUNICATIONS I None COUNCILMANIC ITEMS PRESENTATION BY SPECIAL ASSISTANT ATTORNEY GENERAL THOMAS F. GEDE REGARDING INDIAN GAMING CASINOS (910.60) Proposal: Mr. Gede had been invited to assist the City Council in understanding the complex issues involving Indian gaining laws and to provide an overview and summary of Federal and State philosophy and laws that may apply to Indian gaming. Presentation: Council Member Campbell introduced Mr. Thomas F. Gede, Special Assistant Attorney General, stating that she felt there was no one more prepared or qualified to address Council's concerns. She noted that he serves as policy advisor and counsel on public rights matters, including Indian gaming laws; that he has worked as a member of a task force negotiating and drafting amendments to the Indian Gaming Regulatory Act of 1988; and, that he has served as Counsel of Record in United States Supreme Court and Circuit Court multiple briefs concerning the 10th and 11th Constitutional Amendments as applied to the Indian Gaming Regulatory Act of 1988. ' Mr. Gede described how Indian affairs came to be handled entirely by the Federal government, advising that it was a trustee -type relationship carried out by the Secretary of the Interior. He discussed the historical California/Indian relationship and the resulting City Council Minutes -1- 9/4/97 306 difficulty for California Indian tribes trying to achieve recognition under Title 25 of the Code of Federal Regulations Part 83. He advised that tribes in California and Florida had together examined gambling as an opportunity for developing self -economic determination, and in 1988 President Reagan signed into the law the Indian Gaming Regulatory Act. He noted that in the early 1950's Public Law 280 had been adopted to give states the power to enforce criminal law in Indian country, and California had been one of 6 original states applying that law. However, the question of Indian tribes engaging in gambling without breaking criminal law was pre-empted by the Indian Gaming Regulatory Act. Mr. Gede advised that Congress had created 3 classes of gaming. Class 1 gaming was the traditional social gaming or ceremonial gaming, conducted solely under the authority of the tribe and conducted only on tribal lands. Class 2 gaming was bingo and bingo -related games, and non-bank card games, which were also to be conducted on tribal lands. All other types of gaming were considered Class 3 gaming. Congress had also specified that the laws of the states should be respected to the degree that whatever Class 3 gaming was permitted by the state would be that which tribes could engage in, after they had negotiated with the state for a tribal compact. He advised that California's position was that the only Class 3 gaming allowed was parimutuel wagering on horse racing and lottery. He noted that many tribes had felt lottery opened the door to full-scale casino gambling and had started introducing slot machines, banking -style games, etc. Ensuing Court decisions have held that tribes may ask for Class 3 lottery -style gaming to be delivered by whatever means is not a slot machine. Subsequently, the California State Governor had agreed to negotiate with a non -gaming tribe, the Pala Band of Mission Indians, to craft a model or master compact for a form of lottery gaming that would be consistent with both State and Federal law. He noted that the negotiations are continuing. He clarified that the requirements for Indian gaming include the following: (1) a tribe must be Federally -recognized; (2) gaming must occur on Indian lands within the definition that Congress provided, which could be trust lands, reservation lands and other kinds of Indian lands such as allotments and dependent Indian communities. Tribes which are newly -recognized or re -recognized, and who have no land, could petition to the Secretary of the Interior to acquire land for them; or, such tribes could acquire land and offer it to the Secretary of the Interior to place in trust. Once the land is in trust, it is considered Indian land for the purpose of gaming and the tribe could automatically set up Class 2 gaming and ask the Governor for a compact for Class 3 lottery gaming. Mr. Gede discussed the Confederated Tribes of Siletz Indians of Oregon v. the USA et. al case, and a subsequent opinion in the 9th Circuit Court of Appeals, which held that if a tribe was going to use land off the reservation for gaming, the state governor must agree that it would not be detrimental to the surrounding community for gaming to occur. However, in cases where there is no land, or a tribe has been restored to recognition after the recognition was taken away and new land is given to the tribe, the gubernatorial requirement does not apply. Mr. Gede reiterated that to engage in Class 3 gaming a tribe must still have a compact with the State. He noted that if an existing, Federally -recognized tribe started casino gaming in California, they would be in violation of at least three Federal laws; the Indian Gaming Regulatory Act, which requires a compact with the State and gubernatorial concurrence; the Johnson Act, which prohibits gambling devices such as slot machines on federal lands, and, the Organized Crime Control Act, which prohibits anyone on Indian lands from engaging in gambling that is otherwise criminalized in the State. City Council Minutes 2_ 9/4/97 307 Public Question and Answer Session: ' Mayor Swerdlin introduced Orange County 5th District Supervisor Thomas Wilson, who requested clarification that if at some time in future the State allowed casino gambling, then any recognized Indian group could become involved in casino gambling. Mr. Gede responded that once the State permits casino gambling anywhere, the tribes will be entitled to negotiate for it. In response to Supervisor Wilson, Mr. Gede further clarified that in relation to the acquisition of Indian land, there is no restriction to State, County, or City boundaries with respect to implementation of Federal law. After following certain procedures, the Secretary of the Interior is entitled to acquire land for Indian tribes. While the Secretary has an obligation to respect contiguous lines of cities, counties and states, he has no legal requirement to do so. Mr. Gede clarified that the only authority a City would have with respect to Indian gaming would be persuasive in urging the Secretary to respect its zoning laws. Supervisor Wilson and Council Member Greiner left at 4:37 p.m. Wick Lobo, 25222 Adelanto, Laguna Niguel, expressed appreciation for the information given by Mr. Gede. He inquired about tribes that were conducting Class 3 gaming and Mr. Gede indicated that there were tribes engaged in Class 3 gaming without a compact. United States Attorney General Janet Reno had directed United States Attorneys to take some sort of enforcement action; however, they had been reluctant to proceed. Mr. Lobo received additional clarification regarding the situation with Indian gaming in New Mexico and how it differs from the situation in California. Mr. Lobo expressed his opinion regarding past ' statements that had been made by the City Council, and regarding certain terminology used during the current meeting. He indicated that the Juaneno tribe is working toward Federal recognition and will explore every avenue for economic development. Ed Nunez, 31392 La Matanza, felt that the newly -elected Tribal Council would be willing to work with the City Council; that once Federal recognition had been received the Tribal Council would work with State, Federal and local governments. He stated that the Juaneno people were from this area and were also concerned for San Juan Capistrano. He expressed appreciation to Mr. Gede for his presentation. Council Comments: Council Member Hart felt that the City Council now had a better understanding of the casino gaming issue and would also be willing to work with Juaneno tribe. Council Member Campbell questioned how the Federal government might view the situation wherein a tribe such as the Juaneno band, obtained Federal recognition and then received land donated to them by an organization with Las Vegas casino interests. Mr. Gede advised there were many considerations to be taken into account when looking at the capitalization of the purchase of land by a tribe in California from a casino in Nevada, including whether all prerequisites of the Indian Gaming Regulatory Act could be met; whether there were any violations of Federal law; and, what type of tribal indebtedness would be involved. He felt the scenario was unlikely. ' The City Attorney inquired about how the Federal government would view bringing land into trust that had been acquired through outside interests fronting the funds for that acquisition. City Council Minutes -3- 9/4/97 308 Mr. Gede advised that the United States government would not take land into fee ownership and subsequently put that land into trust without assurance that all impediments to the title were clear. The City Manager inquired about how a contractual relationship that did not create a lien on the title would be viewed. Mr. Gede advised that the United States is a trustee for Indian tribes and may not view certain arrangements as in the best interests of a tribe; further, the Secretary of the Interior would have to approve contractual relationships/obligations above a certain threshold. He noted that Part 83 of Title 25 of the Code of Federal Regulations says that a tribal governing organization must demonstrate that it is fully and independently capable of self determination. Mr. Lobo again addressed Council, stating h„ felt that a new premise was being discussed that casinos bring certain types of crime into a town; it was a hypothetical situation that could be applied to organizations such as churches; and, that he wished to take issue with it. He felt what was being discussed was a number of "what ifs" with no merit. He felt the situation could be different in the future and there could be other options to discuss. Council Member Campbell expressed appreciation to Mr. Gede for his willingness to come to San Juan Capistrano and answer Council's questions. Mayor Swerdlin noted the situation with the card club in Bell Gardens and the types of crime that had been associated with it. He felt that even with federal and state laws in effect to control such gaming, it had gotten out of hand, and that was the reason why this City Council was concerned with the issue of gaming, whether Indian gaming or any other type of gaming. COUNCIL COMMENTS None ADJOURNMENT There being no further business before the Council, the meeting was adjourned at 5:25 p.m. to the next regular meeting date of Tuesday, September 16, 1997, at 5:00 p.m. in the City Council Chambers. ATTEST: CW11—UNM4. S RD MAYOR City Council Minutes Respectfully submitted, CHERYL JOSONv, CITY CLERK -4- 9/4/97