An HDR shot of the Morongo Casino, Resort & Spa in Cabazon, CA.
Thirty years ago, the U.S. Supreme Court issued a landmark ruling, in California v. Cabazon Band of Mission Indians. The ruling led to the passage of the Indian Gaming Regulatory Act of 1988, setting the principle that sovereign tribes could offer the same kind of gaming approved in the state where they were located. It was the true birth of Indian gaming.
The nondescript stucco building with the sign “Cabazon Card Casino” was packed with about 100 poker players the night of February 15, 1983, when Brenda Soulliere, then 21 and working the cashier’s cage, prepared to leave for a shift change.
Soulliere, a member of the Cabazon Band of Mission Indians Tribal Council, was oblivious as several Riverside County Sheriff deputies entered the building. Deputies acting as players rose from their chairs. Still others emerged from a bathroom.
“Suddenly, there were sheriff’s deputies everywhere,” Soulliere recalls of the 16 law enforcement officers who participated in the raid.
“Don’t leave me here!” screamed a woman cage employee.
“I went back and locked the door,” Soulliere says. “It was a big, heavy door with a deadbolt lock. The GM (Philip Nichols) was shouting at me, ‘Don’t open the door!’ A sheriff’s deputy was banging on the door, yelling, ‘Open the door!’
“They had guns,” Soulliere says of the deputies. “So I opened the door.”
Deputies shoved Soulliere against a wall and began rifling through her purse.
“I asked them why,” she says. “They said they were looking for a bazooka.”
Authorities issued misdemeanor citations to Soulliere and 30 other tribal members, employees and patrons and confiscated $3,000 in cash, records, cards and chips.
The Riverside County raid and an earlier, October 18, 1981 card room bust by Indio police launched a six-year legal war over the tribe’s right to operate gambling that culminated in the landmark 1987 U.S. Supreme Court ruling in California v. Cabazon Band of Mission Indians.
The high court’s 6-3 decision for the Cabazon Tribe—combined with congressional passage a year later of the Indian Gaming Regulatory Act (IGRA)—planted the seeds of what is today a $30 billion American Indian casino industry with some 480 operations in 28 states.
Indian gambling is credited with strengthening tribal governments, rebuilding economies and revitalizing indigenous communities decimated by generations of war, broken treaties and failed paternalistic federal Indian policies that included efforts to terminate tribes.
Considering the tortured history of indigenous Americans, it is, perhaps, appropriate that a small, economically deprived band of Desert Cahuilla Indians on a barren and remote reservation would strike a crucial legal blow for tribal sovereignty and self-sufficiency.
Building A Community
“There was nothing out there but sand and sagebrush,” tribal attorney Glenn Feldman says of the roughly 1,700-acre Cabazon Indian Reservation, which in the late ’70s was home to fewer than five families. Tribal headquarters was a room in a nearby low-rent motel.
Desperate for economic development, the band, which at the time consisted of fewer than 25 members, grew jojoba beans for two years before the bottom fell out of the market.
The tribe then launched a mail-order cigarette operation, and later a packaged liquor business. Both enterprises were shut down for violating federal and state tax laws.
“We were frustrated,” Soulliere recalls. “We just wanted some economic development to create jobs for ourselves. It was that simple. We wanted jobs on the reservation.”
It was at that point tribal Chairman Art Welmas and the council decided to get into the gambling business.
A handful of indigenous governments—notably the Seminole Tribe of Florida—had in the late ’70s opened high-stakes bingo operations, most of which were quickly embroiled in legal disputes with state and local officials.
“We had seen what had happened in Florida and we decided we would take the safe route. We’d go after a card room,” former tribal CEO Mark Nichols told Ambrose Lane, author of Return of the Buffalo.
“After all, they are all over California,” Nichols said of the hundreds of municipalities with licensed card rooms. “Who could argue with local option?”
Indio city officials and later Riverside County sued to shut down the card room for violating anti-gambling laws.
The legal battle for three years centered on whether the card room was on city property. Cabazon won that dispute, proving the land was never legally annexed by the municipality.
The court victory prompted the Riverside County raid, after which Feldman was able to obtain a preliminary injunction allowing the card room to remain open during the lengthy litigation. The tribe in 1983 opened a bingo hall across from the poker room.
California intervened in the litigation. A lawsuit by the nearby Morongo Band of Mission Indians, operators of a bingo hall also threatened with closure by the county, was consolidated with the Cabazon litigation.
The legal dispute centered on what, if any, jurisdiction state and local governments have over Indian trust lands. The issue was convoluted by the fact California was one of six states operating under Public Law 280, which gave states criminal and limited civil jurisdiction over indigenous communities.
Federal appeals courts in Seminole v. Butterworth (1981) and Barona Band of Mission Indians v. Duffy (1982) upheld the right of tribes to operate gambling on Indian lands without state interference. Judges in both cases made a distinction between PL 280 criminal/prohibitory and civil/regulatory matters. If gambling was otherwise legal in a state, they ruled, it had no jurisdiction over tribal governments also engaged in gambling.
The 9th Circuit Court of Appeals in February 1986 reached a similar ruling, issuing a summary judgment for the Cabazon and Morongo bands and ordering a permanent injunction preventing California and Riverside County from applying their gambling laws on the reservations.
The Supreme Court declined to hear the Barona and Seminole cases on appeal. But it agreed to review the Cabazon/Morongo case, leaving the bands with the responsibility of fighting a crucial legal battle over the right of indigenous communities to engage in gambling on tribal lands.
On the 30th anniversary of the high court ruling, Cabazon and Morongo are operating upscale gambling resorts in the Coachella Valley.
“We had to fight, legally, every step of the way, for everything we did,” Soulliere recalls.
Supreme Court Interest was a Bad Omen
Attorney Feldman was moving his family from Washington, D.C., to Phoenix, Arizona, in the summer of 1986 when he stopped for gas in Amarillo, Texas. Cell phones were not popular, and he sought out a pay phone to check with his office.
“My secretary told me, ‘Guess what? We just got the order from the Supreme Court,’” Feldman recalls. Justices had issued a certiorari, or writ, to review the 9th Circuit Court of Appeals ruling upholding the right of Cabazon and Morongo to operate gambling on their reservations.
“I was surprised and disappointed,” says Feldman, who represented the tribes in the federal case. “The conventional wisdom was they took the case to reverse the 9th Circuit.
“My thought was we had better get to Phoenix and do some research, because we’ve got a brief to write.”
The concern among tribal leaders that the high court would reverse the 9th Circuit was, indeed, widespread. About 1,600 miles east in Washington, D.C., Frank Ducheneaux hurriedly re-drafted proposed legislation to regulate gambling on Indian lands, a precursor to IGRA.
More than 100 tribes impacted by President Ronald Reagan budget cuts had by 1986 turned to some form of gambling—largely high-stakes bingo—to generate needed revenue to fund government services to their citizens. The Bureau of Indian Affairs said 106 tribes were operating some form of gambling in 1985, 93 of them high-stakes bingo.
“With the draconian reduction in funding of federal programs under the Reagan administration, gaming seemed an ideal source of revenue, and there was a mini-explosion of tribal high-stakes bingo and pull-tab operations,” says Ducheneaux, then counsel to the House Interior Committee on Insular Affairs.
The growth of Indian gambling prompted Congress to debate legislation to provide states some regulatory control over the industry. Because tribes had been successful in federal courts, draft versions of the legislation gave tribes regulatory primacy over their operations.
As is the case with the current version of IGRA, early drafts of what was then the Indian Gaming Control Act, or HR 1920, distinguished between Class I traditional Indian games, Class II bingo and poker and Class III casino-style gambling. Tribes were given regulatory primary over traditional and Class II gambling with states having limited oversight of Class III casinos.
But Indian law experts feared the Supreme Court’s decision to review California v. Cabazon meant justices would reverse the 9th Circuit and give states total jurisdiction over tribal gambling.
Ducheneaux quickly redrafted HR 1920 giving states enhanced jurisdiction.
“I was trying to get a bill well on its way through the committee and Congress to save what we could before the Supreme Court made its decision,” Ducheneaux recalls.
“I don’t remember the concessions I made to the other side,” Ducheneaux says of opponents to Indian gaming, “but it was not a very good bill. We conceded in the bill state jurisdiction.”
What Ducheneaux terms the “sell-out bill” was offered as a compromise to Indian gambling opponents on Capitol Hill, notably Democratic Rep. Tony Coelho of California. They rejected it.
“We took it to Coelho and his people,” Ducheneaux says of the legislation sponsored by then-Indian advocate and House Democrat Mark “Mo” Udall of Arizona. “In effect I was saying, ‘We know the court’s going to screw us so we’re going to go ahead and screw ourselves a little bit.’
“They rejected it out of hand. They wouldn’t take the damn thing, thank God. They were convinced they were going to get a slam dunk from the Supreme Court.
“I don’t know what I would have done if Coelho and his people had taken the sell-out bill,” Ducheneaux says. “I don’t know whether I could have had Mo take it off the table.”
Cabazon Argued on the Big Stage
Despite the dire predictions circulating throughout Indian Country, Feldman was confident he could convince justices to rule for the tribes. The court set December 9, 1986 for oral arguments. Each side was given half an hour to make their case.
“The law was the law, the cases were the cases; the precedents were all there,” Feldman says. “We had addressed all the issues in the 9th Circuit. It wasn’t Perry Mason. There were not going to be any surprises pulled out of somebody’s briefcase to change the dynamics of the case.”
Nonetheless, he says, “We knew we had a Supreme Court that at least had some questions or concerns about what the 9th Circuit had decided.”
Cabazon/Morongo had a federal appeals court record that gave justices some comfort to rule for the tribes; not only the Seminole and Barona cases and a similar 1981 federal court ruling involving the Oneida Tribe of Wisconsin, but a 1976 Supreme Court decision in Bryan v. Itasca, which upheld tribal jurisdiction in a Minnesota tax case.
There were affidavits from Interior officials that tribal gambling as a tool for self-governance was consistent with U.S. Department of Interior policy and directives from the Reagan administration.
There was a stipulation by both sides that there was no evidence of organized crime activity on the Cabazon and Morongo reservations.
And there was acknowledgment that tribes were not among the hundreds of California organizations eligible to operate charitable bingo games.
Justices peppered Feldman about gambling regulations, equating wagering with local government options to legalized cockfighting, drugs and prostitution. The attorney was unflappable.
“Every time somebody threw him a strange question he would respond to it, even if it were far afield from the subject at hand, and just regain his equilibrium,” attorney Patricia Zell recalls in the book Sovereign. “I’ve never seen anything like it.
“He was comfortable, he made everybody else comfortable, and the confidence he exuded really carried the day in terms of the justices’ receptivity to the merits of what he was saying.
“It was just masterful.”
Meanwhile, California Deputy Attorney General Roderick Walston stumbled on factual issues and was dismissive of Cabazon’s claim of sovereignty.
“It is difficult for us to imagine that an Indian tribe with only 25 members can be equated with, say, the sovereign state of California or, for that matter, any other sovereign state,” Walston said.
Six of the nine justices disagreed, ruling on February 25, 1987 that tribes have a right to operate gambling on Indians lands without interference from state and local governments.
Chief Justice William Rehnquist and Justices William Brennan, Byron White, Thurgood Marshall, Harry Blackmum and Lewis Powell made up the majority. Sandra Day O’Connor, John Stevens and Antonin Scalia voted with the minority.
The surprise support came from Rehnquist, who had reviewed legal assaults on the doctrine of tribal sovereignty.
“We got in at the very end of a period when tribal sovereignty, tribal self-governance and those concepts still carried a fair amount of weight at the federal court level and the Supreme Court in particular,” Feldman says.
“From the ’70s to the mid ’80s tribes did pretty well in the Supreme Court. Since the ’80s—since Cabazon—the numbers have dropped precipitously. Tribes have been losing far more cases than they have been winning at the Supreme Court. That’s true today.”
“It really was a big surprise when Cabazon was decided the way it was,” says attorney Phil Hogen, former U.S. attorney and former chairman of the National Indian Gaming Commission.
Ducheneaux went back to work, re-drafting legislation to remove pre-Cabazon concessions. “I took the sell-out bill off the table and drafted a bill which Mo later introduced,” Ducheneaux says. “It was basically what IGRA is today.”
Legal Battles Continue
IGRA requires states to enter into good-faith negotiations with tribes seeking to operate Class III, casino-style gambling. But a 1996 federal appeals court decision upheld state immunity against Seminole litigation attempts to compel Florida to negotiate a tribal-state compact.
Lacking leverage, Cabazon, Morongo and some 60 other California tribes fought for nearly a decade to get state officials to negotiate Class III compacts. Federal courts that earlier sided with the tribes failed to support them in their legal war with Governor Pete Wilson.
While tribes applauded the Cabazon ruling, the decision did not extended to Johnson Act prohibitions against the manufacture, use or transportation of Las Vegas-style slot machines on Indian lands.
“That’s what was overlooked by so many who say, ‘Why do we need IGRA? We have Cabazon.’” Hogen says. “Cabazon didn’t solve the Johnson Act problem.
“Tribes were elated with Cabazon and the decision that said tribes could play bingo,” Hogen says. “There wasn’t an immediate realization Indian gaming wasn’t going to work unless tribes got slot machines.”
California tribes stretched the legal envelope, installing “gray area” machines they argued constituted Class II bingo devices permissible under IGRA. By the time Wilson successor Governor Gray Davis took office in 1999, 29 tribes had facilities equipped with the “gray area” machines.
The devices, however, were clumsy and slow, and it quickly became evident Nevada-style slots were necessary to the success of the tribal casino industry. Machines today generate more than 80 percent of the revenue in Indian casinos.
“It didn’t take long to realize where the real money was,” Morongo attorney George Forman says. “The bingo games took too long. There weren’t enough bells and whistles.”
The issue was resolved with passage in 2000 of Proposition 1A, a ballot initiative that amended the state constitution to authorize Class III gambling on Indian lands subject to legislative ratification. Sixty-three California tribes today generate about $8 billion a year.
Cabazon Emerges From Hard Times
The pioneering Desert Cahuilla Indians came upon hard times after the landmark Supreme Court ruling. A prominent tribal member was slain, a non-Indian executive was convicted of murder for hire and another management employee pleaded guilty to embezzlement. Meanwhile, the band defaulted on bond financing for its Fantasy Springs hotel-casino.
The tribe, which now numbers close to 50 members, has reportedly emerged from its financial deficit and is working to create a more diversified economy, which includes a biomass energy plant.
“We’ve had some financial problems,” Soulliere says. “But we’re good.”
“They’ve got a first-class, very stable management team,” Feldman says. “They’ve also got a very good gaming commission with all non-tribal members. Things are going well for them.”
The legal war strained relations with county and local officials.
“We got a lot of bad press,” Soulliere says, and many tribes in California and elsewhere were not supportive of the band’s legal war, which at its core was a battle for sovereignty and self-governance.
“There wasn’t much support at all. I remember tribes saying, ‘We don’t want to go into gambling.’ At the time ‘gambling’ was a bad word.”
The late tribal Chairman Art Welmas subscribed to the “use it or lose it” theory of tribal sovereignty, says Feldman. He recalls Welmas as a “tough old guy” who fought for the band’s right to pursue economic gain, whether it was jojoba beans, cigarettes, liquor or gambling.
“Welmas and the citizens of Cabazon were confident and aggressive,” Feldman says. “They were determined to take things as far as they could, because they believed they were right.”
