No Dice for California Indian Casinos?

By:     Kele Bigknife | Intern | kele.bigknife@procopio.com

Theodore J. Griswold | Partner | ted.griswold@procopio.com

If you have ever ventured onto the gaming floor of one of the many Indian casinos in California, you have likely been puzzled by the diceless craps tables, or the roulette games conspicuously missing the iconic ball-bearing wheel. These games are often wildly popular in casinos. The history behind these creative work-arounds lies in the origins of gambling in California, the enactment of California’s Gambling Control laws, and Tribal-state gaming compacts negotiated as early as 1999.

Beginning largely in the mid-1800’s, the allure of “striking it rich in the west” brought copious amounts of miners to the golden-state of California in search of their share of the riches. As settlement camps grew larger with an abundance of mostly risk-loving men, gambling tents flourished. However, soon after, public opinion turned in the United States with many viewing gambling as socially immoral. In 1860, California banned all banked games (games where the player bets against the house) with Penal Code § 330. Fast forward to the mid-1980’s, the Supreme Court of the United States handed down its decision in California v. Cabazon, which concluded that while States in a Public Law 280 state could prohibit activities on Tribal lands as part of a general law, if the activity is regulated rather than prohibited, the State did not have jurisdiction. This decision culminated in the passage of the 1988 federal gaming statute, the Indian Gaming Regulatory Act (IGRA).

IGRA provides the legislative and regulatory framework for Tribes to establish gaming operations in an effort to promote tribal economic development, self-sufficiency, and strong tribal governments. IGRA defines three classes of games that each have their own regulatory scheme, with Class III including the games commonly associated with Las Vegas-style gambling including roulette and craps. Before a Tribe can lawfully operate a class III gaming operation, Tribes must do the following: (1) look to see if the chosen form of class III gaming is regulated in the state where the Tribe is located, (2) negotiate a compact with the state that is approved by the Secretary of the Interior, and (3) adopt a Tribal gaming ordinance that has been approved by the Chairman of the National Indian Gaming Commission.

In 1999, the Governor of California negotiated gaming compacts with many of California’s federally recognized Indian Tribes. As part of these Tribal-state negotiations, house-banked card games were regulated, but certain games such as craps, roulette, and dice-games based on chance remained prohibited under the state constitution and laws. Essentially, California forbids games where a ball or dice alone determines the outcome. With these restrictions in mind, Tribal casinos got clever and invented new games that simulated the same or similar odds to craps and roulette, but retained the legal definition of house-banked card games.

California Roulette varies from casino to casino, but the idea remains consistent. Players wager bets on a typical roulette layout, but the ultimate winning pick is based on a card numbered and colored identical to that of a roulette wheel. Some casinos have a spinning card wheel that uses a flapper to stop on the winning card. Others casinos draw three random cards and place them face-down on three regions on the table labeled “1-12”, “13-24”, and “25-36”; representative of the range of numbers. A roulette wheel is spun, and the number range that the ball lands in determines which card is flipped over to reveal the winning card.

California Craps sidesteps the dice “chance” prohibition by using a combination of dice and playing cards, or cards alone. Again, the variations differ from casino to casino, but the essential idea is that cards are representative of the winning “dice” numbers, thus making it a house-banked card game.

The California Division of Gambling Control has released Tribal Casino Advisory bulletins in favor of allowing California Roulette and diceless forms of California Craps, but has explicitly called out some variations of California Craps, stating that it considers any house-banked games played with dice, whether or not they incorporate the use of cards, to be unauthorized Class III gaming activities. While these advisory opinions have scared some Tribes into doing away with any form of craps or roulette, it is important to remember that the advisory opinions do not constitute legal advice. As long as Tribes can continue to present the viable argument that the particular game is a house-banked card game, the Tribal casinos are functioning within the boundaries of their Compacts, and players can continue to “roll the dice.”

Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him at ted.griswold@procopio.com and 619.515.3277.

Another Win-Lose Situation: Reactions to SCOTUS decision in U.S. v. Bryant

By: Heather Torres | Intern | heather.torres@procopio.com

On June 13, 2016 in its decision on U.S. v. Bryant, the Supreme Court held that uncounseled tribal court convictions that are compliant with the Indian Civil Rights Act (ICRA), are predicate offenses under the Indian Country domestic assault habitual offender statute. 18 U.S.C. §117(a). Section 117(a) was enacted in response to the deplorably high rates of domestic violence against Native American women. It provides that any person who commits domestic assault in Indian Country and has two prior domestic violence convictions in federal, state, or tribal court can be subject to federal fines, prison, or both.

Defendant, Michael Bryant, a Northern Cheyenne tribal member, argued that federal prosecution under 117(a) using prior uncounseled tribal court convictions carrying prison sentences as predicate offenses flied in the face of the Sixth Amendment right to counsel. However, the defendant did not challenge the reliability of the tribal court convictions themselves, conceding that the uncounseled charges could be used if the tribal courts imposed a fine instead of a prison sentence. Essentially, Bryant argued that if he was to be prosecuted for a federal crime, then constitutional protections should apply, and the uncounseled tribal court convictions cannot be used against him.

The Supreme Court disagreed. In the Supreme Court’s view, Bryant was being punished for recently committed assaults, and not his previous crimes. Thus, Bryant was represented by a lawyer in this case in comport with the Sixth Amendment. The uncounseled tribal convictions were valid (i.e., ICRA compliant) and thus were able to serve as predicate offenses for 117(a) prosecution.

So, why is this a win-lose situation?

WIN: Bryant seems to be the target of 117(a), a habitual domestic assault offender. Bryant has over 100 convictions in tribal court, with at least 5 for domestic abuse. The affirmation of his previous tribal court domestic assault convictions serves 117(a)’s intent to protect Native American women. Native women are raped or sexually assaulted at 2.5 times of U.S. women in general and as many as 46% experience physical violence by an intimate partner.

LOSE: Who is most likely to appear uncounseled in tribal courts? Indians. This is due to limited tribal criminal jurisdiction and lack of funding for and/or prioritization by Tribal Nations to provide defense counsel. At the end of the day, the Supreme Court’s decision can be viewed as one that forfeits constitutional protections for Native American defendants.

Heather Torres (San Ildefonso Pueblo, Navajo) is a rising 3L enrolled in the Critical Race Studies specialization at the University of California, Los Angeles School of Law. Heather is an Executive Editor for the Indigenous Peoples’ Journal of Law, Culture & Resistance at UCLA. She is a recipient of the 2016 Procopio Native American Internship.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Increasing the Numbers: Effective Recruitment of Native American Law Students

By:      Kiyana Davis Kiel | Attorney | kiyanakiel@gmail.com

Editor’s Note:  With the arrival of our Native American Interns Kele Bigknife (Michigan Law) and Heather Torres (UCLA Law), I asked a colleague at the University of San Diego how law schools were doing in attracting and keeping Native American law students.  Was the Native American Bar increasing?  I learned that law schools are still struggling to attract Native American law students.  Guest blogger Kiyana Kiel, Esq., USD School of Law Director, Academic Success & Bar Programs, provides insight into this problem, and hope for improvement.

Diversity is a hot topic in legal education, specifically, the lack of diversity at American law schools. Though law school admissions professionals strive to build diverse student bodies, the recruitment (and retention) of minority candidates remains stagnant. My experience on admissions committees and anecdotal evidence from other law school admission professionals identifies a primary problem: there are not enough minority candidates.

The number of minority law school applicants is disproportionally small compared to that of their majority (Caucasian) counterparts. The diversity numbers are even more reduced when you look at Native American. According to fall 2015 data from the Law School Admissions Council (LSAC), of the 54,500 applicants for law school admission, only 1,230 were identified as Native American.  Of those, only 840 were admitted to law school (2% of the total applicant pool); with a 68% acceptance rate compared to the 85% acceptance rate of Caucasian applicants.

When confronted with these numbers, the questions for admissions professionals become: (1) what causes the discrepancies in the number of applicants and the acceptance rates between Caucasian and Native American candidates? and (2) what can be done to remedy the cause(s) of it? Research suggests there are many—often interconnected—causes, including:

  • Limited access to competitive, college-preparatory education along the K-12 continuum;
  • Socio-economic background;
  • Status as a first generation college and graduate applicant/student;
  • Size of the Native American applicant pool;
  • Geographic proximity to law schools of interest; and
  • Law school course and program offerings of interest to Native American applicants.

We have found the challenge starts very early.  The greatest impact on the number of Native American candidates and law school admission is limited access to competitive, college-preparatory education along the K-12 continuum. A below average K-12 education creates a poor foundation for all educational pursuits that follow, causing a ripple effect that extends to college and graduate school prospects (or lack thereof).  Limited access to college-preparatory education leads to reduced admission to college, which in turn reduces law school admission. In order to reverse this outcome, it is imperative to provide access to opportunities by bridging the gaps that directly affect Native American students in the education pipeline.

Fortunately, there are programs bridging these education-access gaps.  College Horizons is a non-profit organization which focuses exclusively on advising Native American students regarding college and graduate admissions.  College Horizons cites that the high school graduation rate for Native American students is just 51%. Of those high school graduates, only 5% proceed directly to four-year colleges and, of those, only 10% graduate within four years.  Relative to other minorities and to the general US school-age population, Native American school children are at or near the greatest risks of receiving poor education and underperforming at the elementary and secondary levels.

College Horizons reports that of the 2,800 College Horizons’ participants, 99% are admitted to college, 95% attend a four-year institution, and 85% graduate within four to five years.  This is accomplished by partnerships with the Office of Admissions at colleges and universities with multicultural-diversity outreach initiatives to provide individualized college admission advising.

The UCLA Law Fellows Program (“Law Fellows”) is another program bridging the education-access gap for students “whose experiences reflect limited familial exposure to post-collegiate education, career opportunities, mentoring, and social support systems. Additional consideration is given to applicants who have overcome economic and/or educational hardships and challenges, or have come from, or demonstrated leadership experience in, economically or educationally underserved communities.”  This program includes, but is not limited to, Native American students.  Law Fellows bridges the law school-access gap by providing:

  • Professional-level instruction of undergraduate students by law school faculty;
  • A personalized Juris Doctor (law school) Action Plan;
  • Mentoring by current UCLA law students;
  • A full scholarship for one LSAT preparation course;
  • Presentations by practicing attorneys and leaders in the law community;
  • Admissions, financial aid, and LSAT workshops;
  • Legal research primer by law library staff; and
  • Follow-up activities and counseling until law school matriculation.

As an alumnus of Law Fellows, I can attest to the effectiveness of its programs and services. Prior to completing the LSAT preparation course provided through Law Fellows, I scored in the top 50th percentile of test-takers; following the preparation course, I scored in the top 15% of test-takers. This score difference, coupled with my undergraduate GPA, made me a competitive applicant to top 20 law schools—something that would not have been possible without the assistance provided by Law Fellows.

What Can Law Schools Do?

Law schools can make targeted efforts to support and nurture Native American students by creating and participating in strategic partnerships with:

  • K-12 schools with high Native American student populations;
  • Local colleges and universities;
  • Tribal governments; and
  • Organizations serving Native American populations

To mimic programs like College Horizons and Law Fellows in their geographic area. Locally, the American Indian Recruitment Programs (AIR) provides such an opportunity for K-12 Native American students.  AIR promotes higher education and success in academics in the American Indian community by providing supplemental educational instruction through tutoring, mentoring, and even college-level course work for high school students.  AIR has summer and school-year programs that work with partnerships developed with the UCLA, University of San Diego, UCSD, California State University San Marcos, and Palomar and Cuyamaca Community Colleges.

These programs could be volunteer and support initiatives, and do not necessarily need to be funded or organized exclusively by law schools because many colleges and universities have diversity offices and associated diversity initiatives.  The key is developing partnerships and providing support and encouragement starting early in the education process, and continue that support into college and law school.  To improve recruitment of Native American students at the law school level, it is necessary to increase the number of Native American applicants.  By creating and participating in strategic partnerships that bridge the education-access gaps at all levels, law schools position themselves to increase the Native American applicant pool and acceptance rates; thereby beginning to solve the problem of supplying more Native American law school candidates.

Kiyana Kiel received her JD from Boalt Hall – UC Berkeley School of Law and has spent her career working in public law, real estate law and educational pipeline matters.  She currently is the Director of Academic Success and Bar Programs at the University of San Diego School of Law.

Ted Griswold

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

 

The views, opinions and positions expressed in this article are those of the author and do not necessarily represent those of Procopio, Cory, Hargreaves & Savitch LLP.

Feds Did Not Work Overtime to Consult with Tribes in Developing the New Overtime Rule

By: Kele Bigknife | Intern | kele.bigknife@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On May 23, 2016, the Department of Labor (DOL) published the final rule colloquially termed the “Overtime Rule” as part of the Fair Labor Standards Act (FLSA). The new rule raises the salary threshold for overtime exempt workers to $47,476 per year, requiring salaried employees paid less than this amount to be paid for overtime work regardless of their work classification. The new rule raised the threshold from $23,660 per year, broadening the scope of salaried employees entitled to overtime pay by 4.2 million workers.

This rule requires employers to either pay qualifying employees time-and-a half for overtime work, raise worker’s salary above the new threshold, limit worker’s hours to 40 hours per week, or to use some combination of these tactics. Additionally, employers may essentially circumvent the new rule by reducing the amount of the employee’s base salary and adding pay to account for overtime hours worked over 40 hours in the workweek, virtually keeping the employee’s weekly pay unchanged. Clearly this new rule will have an impact on tribal businesses (as well as others).

Following the initial June 2015 rule proposal and the subsequent notice-and-comment period, several tribes and tribal organizations submitted comments voicing concern over a lack of representation and consultation in the rulemaking process. Tribal comments vary from concerns over the rule’s disparate impact on rural areas where tribes operate and wages tend to be lower, to the substantial impact on tribal-funded governmental services, such as privately-funded law enforcement and health programs, among other vital services provided to members. By passing on more costs to the tribal employer, funds normally allocated to these governmental services may be diminished, and unlike a state which can simply raise more tax revenue, tribes cannot recoup the losses without making sacrifices in these or other areas.

Some tribes feel slighted because of the clear Tribal governmental implications from the new rule and the DOL’s inadequate consultation on a rule with such a substantial and direct effect on Tribal Government. Executive Order 13175 (2000, reaffirmed by every Executive administration since), directs each agency to have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. “Policies that have tribal implications” refers to regulations that have substantial direct effects on one or more Indian tribes. Before promulgating any regulation that has tribal implications that will impose substantial direct compliance costs on Indian tribal governments, the agency must consult with tribal officials early in the process of developing the proposed regulation. The DOL must also prepare a tribal summary impact statement that details the extent of tribal consultation, a summary of both agency and tribal concerns, and the extent to which the concerns are being met.

In this final rule, the DOL said that it had conducted listening sessions that included tribal governments, and determined that the rule did not have tribal implications, and thus a tribal impact statement was unnecessary. However, many tribes feel that tribal consultation was wrongfully absent or at least deficient, as a direct effect on many tribes is overwhelmingly present. Regardless, the DOL has pushed forward in this final ruling, set to take effect on December 1, 2016.

As a tribal employer, are you complying with the new wage and hour laws? Assuming the FLSA applies to your business (stay tuned for a future blog post outlining the debate of the FLSA’s application in Indian Country), the major change is the salary threshold increase for overtime exempt workers to include those making less than $47,476 per year. To qualify as an overtime exempt worker, which is often referred to as the white collar exemption, an employee must be:

  1. “salaried, meaning that they are paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test”);
  2. be paid more than a specified weekly salary level, which is $913 per week (the equivalent of $47,476 annually for a full-year worker) under this Final Rule (the “salary level test”); and
  3. primarily perform executive, administrative, or professional duties, as defined in the Department’s regulations (the “duties test”).

Additionally, certain employees are not subject to either the salary basis or salary level tests (for example, doctors, teachers, and lawyers). The Department’s regulations also provide an exemption for certain highly compensated employees who earn above a higher total annual compensation level ($134,004 under this Final Rule) and satisfy a minimal duties test” (see FAQ here). Because the DOL explicitly notes that job title does not determine exempt status, a prudent employer should take a look at the Department regulations (here; note that the salary rates have not been updated to reflect the final rule) for the “duties test” definition of specific exempt jobs to ensure that employees are not misclassified as overtime-exempt when they are in fact still non-exempt.

In short, tribal businesses have six months before the final rule takes effect. Until then, Tribal Governments will continue to voice their dissatisfaction with the DOL’s inadequate consultation on the rule’s implementation in Indian Country. The new rule will undoubtedly increase economic strain on tribal businesses, and if this leads to massive reductions in funding for tribal governmental services, we may see litigation challenging the general applicability of the FLSA to Tribal Governments.

Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him at ted.griswold@procopio.com and 619.515.3277.