Quote:
Originally Posted by PokerXanadu
Quote:
Originally Posted by mindgames911
Hey Poker Xanadu, do you think this adjusted bill will be enough for it to please the tribal side? Do you think it will pass now?
I'm not completely certain about this. The provision of the bill about tribal sovereignty was completely rewritten. It seems to say the same thing as before but with better wording. I don't know if the tribes who objected on this issue (relinquishing their sovereignty for the purposes of license application and site regulation) just had an objection to the original wording, which could have more easily been interpreted to cover a wider scope, or they have an objection to the principle of relinquishing their sovereignty for any purpose.
The bill was changed to be poker only, so the amendments will please the tribes as regards casino gaming.
My best guess is that the CA legislators must have worked with the tribes to satisfy them, so the tribes will now all support it.
The other important modification that is along the same lines, is that the bill no longer explicitly attempts to regulate poker on both tribal and nontribal lands. While it does still state "throughout California", not having the verbiage about explicitly intending to regulate play on tribal lands is a good change.
Unfortunately, the changes do not go far enough along these lines. The US Congress explicitly found that indian tribes have the exclusive right to regulate gaming on tribal lands (with some restrictions) [NOTE 1]. Thus, the State does not have the right to authorize internet poker on tribal lands. Internet poker (i.e. Class III games [NOTE 2]) on tribal lands can only be regulated by the tribe and are subject to Tribal-State compacts. The changes in the bill should have made it explicit that a license issued under this bill does not authorize the licensee to offer games on tribal lands. It is possible that some wording could be added such that tribal lands may be included later when/if there is an explicit agreement between the State and the tribe on whose lands it is being offered.
Having the bill explicitly not authorize licensees to offer games on tribal lands would eliminate a clear, and to be expected, legal challenge to this, or any other state's, licensing program (i.e. that federal law explicitly says that gaming on tribal lands is exclusively regulated by the tribes, thus the state law is invalid as is attempts to authorize something which the state explicitly lacks the power to do).
If desired by the state, authorization of licensees on each tribe's lands is something that could be negotiated as part of each compact at the time they are updated/renewed. It should be noted that there is a legal process that is mandated for Class III games to be authorized by a tribal government. This process would also need to be followed in order to be in compliance with federal law.
One possibility for having some tribal lands be permitted is that it could be a condition of obtaining a license that any tribe which applies for, and obtains, a license explicitly allow, as a reciprocal agreement, any other licensee under this bill to offer games within their lands. I expect that this is at least similar to the type of reciprocal agreement that would be expected from any other sovereign entity (e.g. another state) wanting to share player pools with California. For instance, it is not reasonable to believe that California would agree to player pool sharing where the other state was permitted offer games to Californians, but California companies were not permitted to offer games to the residents of the other state.
There is a spectrum of possibilities as to how the bill could implement explicitly not authorizing games to be offered on tribal lands. It could be as simple (for the bill) as stating that the license is valid throughout California, except on tribal lands. This would leave the implementation up to each licensee, and enforcement of the tribe's right to authorize each provider up to the tribes. It is, after all, not up to the State to enforce the sovereignty of the tribe. Alternately, it would be possible for the bill to include a method for licensees to determine if an individual player is located on tribal lands upon which the bill does not authorize offering play [e.g. mandate that ISPs have a range of IP addresses which are only assigned to individuals on tribal lands and such range of IP addresses are reported to the commission/department. Licensees then get the list of non-authorized IP addresses from the commission/department.].
NOTE 1: See
25 USC § 2701 (5),
25 USC § 2710, etc. (Poker, if done non-electronically, is a Class II gaming activity under this title. Electronic versions of poker (e.g. internet poker) are Class III gaming activities.)
NOTE 2: For in-person poker to be a class II game on tribal lands it must comply with any state regulations on hours of play and limits on wagers and pot sizes. The classification of internet poker as a Class III gaming activity under the IGRA is something that could be, and probably will be, litigated. What the IGRA states is that class II gaming does not include "electronic or electromechanical facsimiles of any game of chance or slot machines of any kind." See
25 USC § 2710 (7)(B)(ii) [This might open up the whole chance/skill argument wrt. Ipoker being a Class II vs. a Class III game. But let's not go there.]