United Auburn Indian Community of the Auburn Rancheria v. Gavin C. Newsom, as Governor, etc.

This is a case about how California law applies to the

delicate juncture of executive power, federalism, and tribal

sovereignty. Under the federal Indian Gaming Regulatory Act

(IGRA; 25 U.S.C. § 2701 et seq.), the United States Secretary

of the Interior (Interior Secretary) may permit casino-style

gaming on certain land taken into federal trust for an Indian

tribe, so long as the Governor of the state where the land is

located concurs. But nowhere in the California Constitution is

the Governor granted explicit authority to concur in this

cooperative-federalism scheme. We must decide whether the

Governor nonetheless has the authority to concur in the

Interior Secretary’s determination to allow gaming on tribal

trust land in California.1

What we hold is that California law empowers the

Governor to concur. As amended in 2000, the California

Constitution permits casino-style gaming under certain

conditions on “Indian” and “tribal” lands — terms that



1 The action was brought against Governor Edmund G.

Brown, Jr., who concurred in the Interior Secretary’s

determination. Because Governor Gavin C. Newsom has since

assumed office, we have substituted him as the defendant and

respondent. (Code of Civ. Proc., § 368.5.)

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encompass land where the Governor’s concurrence is required

before casino-style gaming may occur. Our decision is

supported by the Governor’s historical practice of concurring

under a variety of federal statutes, the legislatively enacted

expectation that the Governor represent the state’s interests in

negotiations or proceedings involving the federal government,

and the absence of any explicit constitutional or statutory

limits on the Governor’s power to concur in the Interior

Secretary’s determination under IGRA.

These markers of the legal terrain help us map a zone of

twilight between the powers of the Governor and the

Legislature. But they also convey why legislative changes can,

by bringing any implicit gubernatorial power to “its lowest ebb”

in this domain, restrict or eliminate the Governor’s

concurrence power. (Youngstown Co. v. Sawyer (1952) 343

U.S. 579, 637 (conc. opn. of Jackson, J.) (Youngstown).)

Because the Legislature has imposed no such restriction,

however, we conclude the Governor acted lawfully when he

concurred in the Interior Secretary’s determination. The Court

of Appeal reached the same conclusion, so we affirm.

I.

The California Constitution specifically mentions casinostyle gaming, “federally recognized Indian tribes,” and lands

that are “Indian” and “tribal” “in accordance with federal law.”

(Cal. Const., art. IV, § 19, subd. (f).) As these provisions — like

IGRA — were enacted against the backdrop of longstanding

tribal efforts to establish casino-style gaming operations on

land under their control, we begin with a survey of the relevant

history.

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A.

Long before this country’s founding, Indian tribes already

existed as “self-governing sovereign political communities,”

each with their own distinct lands. (United States v. Wheeler

(1978) 435 U.S. 313, 322–323.) Tribes haven’t “possessed [] the

full attributes of sovereignty” since the federal Constitution

was signed, but they remain a “separate people, with the power

of regulating their internal and social relations.” (United

States v. Kagama (1886) 118 U.S. 375, 381–382.) Yet that

power is bounded, too: Under the Indian commerce clause of

the United States Constitution, Congress possesses the

“plenary power to legislate in the field of Indian affairs” and to

limit the powers that tribes otherwise possess. (Cotton

Petroleum Corp. v. New Mexico (1989) 490 U.S. 163, 192.) So

the sovereignty of Indian tribes “is of a unique and limited

character[:] It exists [] at the sufferance of Congress and is

subject to complete defeasance” if and when Congress acts.

(Wheeler, supra, 435 U.S. at p. 323.)

These implicit contradictions have catalyzed conflicting

expectations and struggles for power, with tribal gaming as a

recurring flashpoint. Gaming is a significant enterprise for

Indian tribes — it “cannot be understood as . . . wholly

separate from the Tribes’ core governmental functions.”

(Michigan v. Bay Mills Indian Community (2014) 572 U.S. 782,

810 (conc. opn. of Sotomayor, J.).) Gambling operations serve

as a means for tribes “to assert their sovereign status and

achieve economic independence.” (Mason, Indian Gaming:

Tribal Sovereignty and American Politics (2000) p. 4.) It is

partly symbolic: “Gaming [] represents a stand for political

independence as tribes assert their sovereign right to

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determine for themselves what they can control on tribal

lands.” (Ibid.) But gaming also serves a practical function:

Because of the limits placed on tribal governments’ ability to

impose taxes, gaming “may be the only means by which a tribe

can raise revenues.” (Struve, Tribal Immunity and Tribal

Courts (2004) 36 Ariz.St. L.J. 137, 169.) In that sense, gaming

operations are often essential to tribes’ economic selfsufficiency.

Yet from the start, federal and state governments sought

to curtail gaming on Indian land. (See Indian Gaming

Regulatory Act, Hearing before House Com. on Interior and

Insular Affairs on H.R. No. 964 and H.R. No. 2507, 100th

Cong., 1st Sess., at p. 158 (1987), written testimony of Sen.

Reid [unless Indian gaming is regulated, “the hope for

controlling organized crime in this country will be lost

forever”].) To prevent the perverse consequences some

legislators believed would arise from such activities, Congress

enacted legislation such as the Johnson Act of 1951 (15 U.S.C.

§ 1175(a)), which outlawed the manufacture, possession, or use

of gambling devices, and the Organized Crime Control Act of

1970 (18 U.S.C. § 1955), which made it a federal offense to

engage in any for-profit gambling business that was prohibited

under state law.

Because of Congress’s plenary power over Indian affairs,

states initially lacked the authority to regulate tribal gaming.

But in 1953, Congress enacted Public Law 280, which

empowered six states — including California — to exercise

criminal jurisdiction over Indian land. (18 U.S.C. § 1162; 25

U.S.C. §§ 1321–1326; 28 U.S.C. § 1360.) When California

sought to enforce its state gambling law — which permitted,

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subject to criminal penalties, gaming only when operated by

certain charitable organizations with restrictions on prizes —

against two Indian tribes, the tribes challenged the state’s

power to do so. The Supreme Court soon offered a partial

answer to the question: To what extent did states have

jurisdiction to enforce their own laws against tribes? Ruling in

the tribes’ favor, the Court distinguished between laws that

were “prohibitory” and those that were “regulatory”: Although

Congress had allowed states to enforce prohibitions on

gambling against Indian tribes, it hadn’t bestowed states with

“civil regulatory power over Indian reservations.” (California

v. Cabazon Band of Mission Indians (1987) 480 U.S. 202, 210,

208.) Because California’s gambling law was regulatory in

nature — “California regulates rather than prohibits gambling

in general and bingo in particular” — the Court concluded that

the state lacked the power to restrict tribal gaming. (Id. at p.

211.) Following Cabazon, states couldn’t restrict or otherwise

regulate Indian gaming operations unless they prohibited all

gaming.

B.

Congress responded to Cabazon’s new strictures on state

regulation of Indian gaming by enacting IGRA. (25 U.S.C.

§ 2701 et seq.) Following centuries of conflict over gaming

between tribes, states, and the federal government, Congress’s

purpose was to “balance the need for sound enforcement of

gaming laws and regulations, with the strong Federal interest

in preserving the sovereign rights of tribal governments to

regulate activities and enforce laws on Indian land.” (Sen.Rep.

No. 100-446, 2d Sess., p. 5 (1988), reprinted in 1988 U.S. Code

Cong. & Admin. News, p. 3075.) To that end, IGRA divided

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gaming into three categories: class I, class II, and class III.

Class I gaming, those played for “prizes of minimal value,”

would be regulated exclusively by Indian tribes. (25 U.S.C.

§ 2703(6).) Class II gaming, which includes higher-stakes

games such as bingo, was also under the control of Indian

tribes, unless a state prohibited such gaming for any purpose.

(25 U.S.C. §§ 2703(7)(A)(i), 2710.)

This dispute concerns class III gaming. All forms of

gaming that aren’t covered by class I or class II gaming come

within the ambit of class III — including casino-style games

such as slot machines, roulette, and blackjack. (25 U.S.C.

§ 2703(8).) Because class III gaming can be “a source of

substantial revenue for the Indian tribes and a significant rival

for traditional private sector gaming facilities,” its regulation

“has been the most controversial part of [] IGRA and the

subject of considerable litigation between various Indian tribes

and the states.” (Flynt v. California Gambling Control

Commission (2002) 104 Cal.App.4th 1125, 1134.) Before a

tribe can conduct class III gaming, it must satisfy several

requirements under IGRA — such as forming a tribal-state

compact, in which the tribe and the state agree on issues

surrounding tribal gaming operations.

2



2 Class III gaming must also satisfy other requirements

under IGRA: It must be authorized by an ordinance or

resolution adopted by the governing body of the Indian tribe

and the Chairman of the National Indian Gaming Commission

and located in a state that permits such gaming for any

purpose by any person, organization, or entity. These

requirements are not at issue in this case.

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IGRA also imposes additional requirements for Indian

tribes wishing to conduct class III gaming on certain types of

land. The federal government has, throughout our nation’s

history, adopted policies that have removed Indian tribes from

their native reservations and radically reduced their land

bases. In an effort to rectify these past wrongs and to

reconstitute these land bases, Congress enacted the Indian

Reorganization Act of 1934 (IRA). (25 U.S.C. § 5101 et seq.;

see Cohen’s Handbook of Federal Indian Law (2019 ed.)

§ 4.04(3)(a).) The IRA allows the Interior Secretary to acquire

and take land into trust for an Indian tribe. (25 U.S.C.

§ 5108.) Class III gaming on land taken into trust after

October 17, 1988 — the date Congress enacted IGRA — may

occur only under certain conditions set forth in the federal

statute. The condition at issue here requires that the Interior

Secretary, “after consultation with the Indian tribe and

appropriate State and local officials, . . . determine[] that a

gaming establishment on [those] acquired lands would be in

the best interest of the Indian tribe and its members, and

would not be detrimental to the surrounding community.” (25

U.S.C. § 2719(b)(1)(A).) “[T]he Governor of the State in which

the gaming” will occur must also “concur[] in the [Interior]

Secretary’s determination.” (Ibid.)

C.

In 2002, the Enterprise Rancheria of Maidu Indians (the

Enterprise Tribe) made a request culminating in the

gubernatorial concurrence at the heart of this case. The tribe

sought for the Interior Secretary to acquire land in Yuba

County in trust on the tribe’s behalf so the Enterprise Tribe

could build a casino featuring class III gaming. Before taking

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the land into trust, the Interior Secretary determined that the

proposed venue was in the best interest of the tribe and wasn’t

detrimental to the surrounding community. In accordance

with IGRA’s requirements, the Interior Secretary notified the

Governor in 2011 and sought his concurrence in the

determination.

Nearly a decade after the Enterprise Tribe’s initial

request, in 2012, the Governor concurred. He explained that

conducting class III gaming on that land would “directly

benefit” a “large tribal population” of “more than 800 native

Californians who face serious economic hardship.” (Governor

Edmund G. Brown, Jr., letter to Interior Secretary Kenneth L.

Salazar, Aug. 30, 2012.) The casino would “create jobs and

generate revenue for Yuba County,” which had “a 16%

unemployment rate” at the time. (Ibid.) On the same day he

sent his concurrence letter, the Governor executed a tribalstate gaming compact between the state and the Enterprise

Tribe. A few months later, the Interior Secretary took the land

into trust for the Enterprise Tribe.

United Auburn Indian Community owns and operates

the Thunder Valley Casino Resort, located about 20 miles from

the proposed site of the Enterprise Tribe’s casino.3

Believing



3 The Enterprise Tribe’s casino resort, the Hard Rock

Hotel & Casino Sacramento at Fire Mountain, has since

opened. (See McGough, Ready to ‘Rock’: Hard Rock Hotel &

Casino Sacramento unveils opening date, Sac. Bee (Sept. 6,

2019) [as of

Aug. 28, 2020]; all Internet citations in this opinion are

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that the Governor’s concurrence was unlawful under state law,

United Auburn filed a petition for a writ of mandate and

complaint for injunctive relief. The Governor demurred to the

complaint, arguing that the California Constitution and state

statutes empowered him to concur in the Interior Secretary’s

determination, and that his concurrence didn’t violate the

separation of powers. The superior court sustained the

demurrer and entered judgment in the Governor’s favor.

The Court of Appeal affirmed. It rejected each of United

Auburn’s contentions: that the Governor lacked the power to

concur under California law, that the Governor’s concurrence

was a legislative act that violated the separation of powers,

and that the Governor exceeded his authority by entering into

compact negotiations for land that hadn’t yet been taken into

trust by the Interior Secretary. (United Auburn Indian

Community of the Auburn Rancheria v. Brown (2016) 4

Cal.App.5th 36, 54.) Shortly after that decision, a different

appellate court held that the Governor lacked the authority to

concur in the Interior Secretary’s determination. (Stand Up

for California! v. State of California (2016) 6 Cal.App.5th 686,

705.) We granted review to resolve the split.

II.

Under IGRA, the Interior Secretary may allow class III

gaming on land the federal government takes into trust for an

Indian tribe after IGRA was enacted if she determines that

gaming would be in the best interest of the tribe and would not



archived by year, docket number, and case name at

.)

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be detrimental to the surrounding community. But it is only

with the concurrence of the Governor from the state where

gaming would occur that IGRA allows the Interior Secretary’s

decision to take effect. (25 U.S.C. § 2719(b)(1)(A).) What IGRA

does not resolve is whether the Governor has a legal basis to

concur; gubernatorial power arises from state constitutional

and statutory authority. Although the Governor’s “concurrence

(or lack thereof) is given effect under federal law, [] the

authority to act is provided by state law.” (Confederated Tribes

of Siletz Indians of Oregon v. U.S. (9th Cir. 1997) 110 F.3d 688,

697.) So we must determine whether California law empowers

the Governor to concur.4



A.

The power of the Governor is rooted in our state

Constitution and further structured by statutes that must

themselves conform to constitutional constraints. (See

generally Cal. Const., art. V; Professional Engineers in

California Government v. Schwarzenegger (2010) 50 Cal.4th

989, 1041.) A brief history of gambling in California helps

inform the scope of the Governor’s power in the sphere of tribal

gaming.



4 That IGRA requires the Governor’s concurrence before

class III gaming can occur on certain trust lands arguably

demonstrates a legislatively enacted expectation that state

governors generally possess the concurrence power. It’s

unlikely that lawmakers would require governors to exercise a

concurrence power they believed they lacked. Regardless of

what federal lawmakers believed, however, it is in California

law that the Governor must find authority.

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The California Constitution, as enacted in 1849,

prohibited lotteries and the sale of lottery tickets. (Cal. Const.

of 1849, art. IV, § 27.) And when the Penal Code was enacted

in 1872, it prohibited several activities that fall within the

ambit of gambling, including slot machines, roulette, and —

whatever it means — hokey-pokey.5

(Pen. Code, §§ 330, 330a.)

Over time, however, our supreme charter has been amended

several times to loosen those prohibitions. In 1933, for

example, an amendment to the Constitution authorized the

Legislature to allow horse races and horse race wagering. (Cal.

Const., art. IV, § 19, subd. (b).) In 1976, the Constitution was

amended again to authorize the Legislature to permit bingo

gaming for charitable purposes. (Cal. Const., art. IV, § 19,

subd. (c).) And a 1984 constitutional amendment “authorized

the establishment of a California State Lottery.” (Cal. Const.,

art. IV, § 19, subd. (d).) These exceptions did not, however,

encompass the casino-style gaming at issue in this case.

Indeed, “[i]n 1984, the people of California amended our

Constitution to state a fundamental public policy against the



5 Just about the only thing that’s clear about the term

“hokey-pokey” is that it wasn’t a reference to the traditional

children’s dance song. Former Attorney General of California

Frederick Howser acknowledged that hokey-pokey “cannot be

defined by consulting any standard reference work,” and even

“[e]xhaustive research” had failed to yield any mention of the

illicit game. (“Stud-Horse Poker” and “Hokey-Pokey” Are Illegal

Card Games, Healdsburg Tribune (Mar. 28, 1947) p. 7.) It

appears to have been a variation on poker. (See Singsen,

Where Will the Buck Stop on California Penal Code Section

330: Solving the Stud-Horse Poker Conundrum (1988) 11

Hastings Comm./Ent. L.J. 95, 138–139.)

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legalization in California of casino gambling.” (Hotel

Employees & Restaurant Employees Internat. Union v. Davis

(1999) 21 Cal.4th 585, 589; see Cal. Const., art. IV, § 19, subd.

(e).) What the Constitution was amended to convey is that

“[t]he Legislature has no power to authorize, and shall

prohibit, casinos of the type currently operating in Nevada and

New Jersey.” (Cal. Const., art. IV, § 19, subd. (e).)

That prohibition lasted until 2000. That year, California

voters enacted Proposition 1A, which amended the

Constitution to give the Governor authority “to negotiate and

conclude compacts, subject to ratification by the Legislature,

for the operation of slot machines and [other class III gaming]

by federally recognized Indian tribes on Indian lands in

California in accordance with federal law.” (Cal. Const., art.

IV, § 19, subd. (f).) Notwithstanding the Constitution’s general

restriction on casino-style gaming, Proposition 1A allowed that

type of gaming “to be conducted and operated on tribal lands

subject to [tribal-state] compacts.” (Cal. Const., art. IV, § 19,

subd. (f).)

The parties agree that Proposition 1A provides the

starting point for our analysis. They also agree that

Proposition 1A doesn’t expressly grant the Governor the power

to concur — it only authorizes him “to negotiate and conclude

compacts . . . for the operation of slot machines and [other class

III gaming].” (Cal. Const., art. IV, § 19, subd. (f).) Where they

differ in their views is whether the ballot initiative’s language,

context, and history, taken together, prohibit the Governor

from concurring, and whether the Governor’s concurrence

violates the separation of powers.

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B.

The Governor’s initial argument is a sweeping one: He

contends that, although Proposition 1A doesn’t expressly grant

the Governor the power to concur, it nevertheless “presupposes

that the Governor possesses [that] power.” Because

Proposition 1A allows casino-style gaming “in accordance with

federal law,” and because federal law — IGRA — is designed

on the premise that state governors may concur in the Interior

Secretary’s determination to allow gaming on that land, the

Governor argues that the California Constitution implicitly

bestows on him the power to offer the requisite concurrence

under IGRA. Under the Governor’s proposed interpretation of

Proposition 1A, the California Constitution allows gaming to

the full extent that federal law permits it — and no other

provision of state law restricts such gaming. But this precise

argument, we conclude, lacks support in the language of

Proposition 1A. Gubernatorial powers aren’t limited to

explicitly enumerated grants of authority. But given the

preexisting, constitutionally enshrined policy against casinostyle gaming in California, the Governor fails to demonstrate

that the most reasonable reading of Proposition 1A’s phrase “in

accordance with federal law” is one automatically allowing him

to exercise any conceivable power that IGRA contemplates

governors may exercise over gaming. Nor does anything in

IGRA’s text, structure, or history suggest Congress sought to

use federal authority — assuming it was enough to preempt

state law in this manner — to unilaterally grant governors the

power to concur. So Proposition 1A’s mere reference to federal

law does not, by itself, bestow the Governor with the

concurrence power.

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That Proposition 1A, by itself, falls short of granting the

Governor the power to concur does not resolve the question

before us. Even in the absence of an express grant of

authority, each branch of government possesses certain

inherent and implied powers. (See Spear v. Reeves (1906) 148

Cal. 501, 504.) We’ve often discussed such powers in the

context of the judiciary — courts possess an inherent power “to

admit and to discipline attorneys” (In re Attorney Discipline

System (1998) 19 Cal.4th 582, 592) and “ ‘to punish [parties] for

contempt’ ” (Burns v. Superior Court of City and County of San

Francisco (1903) 140 Cal. 1, 4). The Legislature can wield

certain implied and inherent powers as well, such as the power

to investigate (Howard Jarvis Taxpayers Assn. v. Padilla

(2016) 62 Cal.4th 486, 499) and the “power to create any

agency it wishes unless the power is denied it by the

Constitution” (County of Sonoma v. State Energy Resources

Conservation etc. Com. (1985) 40 Cal.3d 361, 375, fn. 4 (dis.

opn. of Mosk, J.)). Some of the powers that inhere to the

executive arise by implication, too. It’s “well settled,” for

example, that an executive officer “may exercise . . . powers as

are necessary for the due and efficient administration of

powers expressly granted by statute” or “may fairly be implied

from the statute granting the powers.” (Dickey v. Raisin

Proration Zone (1944) 24 Cal.2d 796, 810, italics omitted.) The

Governor’s implied powers include the authority to add a

reasonable condition to a prisoner’s pardon or commutation.

(Ex parte Kelly (1908) 155 Cal. 39, 41.)

United Auburn contends that even if inherent and

implied powers are within the ambit of the Governor’s

authority, the power to concur in the Interior Secretary’s

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determination isn’t among them. Its argument is rooted in

article IV, section 19, subdivision (e) of the California

Constitution — which, as United Auburn characterizes it,

“states a broad and far-reaching prohibition on [casino-style]

gaming.” According to United Auburn, the Governor may not

concur in the Interior Secretary’s determination to allow class

III gaming on Indian land taken into trust because California

law prohibits class III gaming.

That argument, however, overlooks the pivotal role

Proposition 1A plays in the story of how California has

regulated gaming. That ballot initiative amended the

California Constitution to allow casino-style gaming “by

federally recognized Indian tribes on Indian lands” and “on

tribal lands” in California, “in accordance with federal law.”

(Cal. Const., art. IV, § 19, subd. (f), italics added.) United

Auburn first urges us to construe this language as referring

only to land for which the Governor’s concurrence isn’t

required to conduct class III gaming. So according to United

Auburn, the voters enacting Proposition 1A would have

understood they were allowing for casino-style gaming on

Indian reservations, as well as on land taken into trust before

IGRA was enacted and certain land taken into trust after

IGRA was enacted — on which casino-style gaming may take

place without the Governor’s concurrence — but not on land

taken into trust after IGRA’s effective date if the Governor’s

concurrence is required for class III gaming on such land.

That assertion clashes with the meaning of Indian land

under federal law. IGRA defines “Indian lands” to include “any

lands title to which is [] held in trust by the United States for

the benefit of any Indian tribe or individual.” (25 U.S.C.

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§ 2703(4)(B).) When the federal government takes land into

trust for an Indian tribe, therefore, that land necessarily

becomes Indian land. This definition of Indian land — which

encompasses reservation land and tribal trust land, regardless

of whether the Governor’s concurrence is required for gaming

on the land — is supported by federal Indian law more

generally. (See Oklahoma Tax Comm’n v. Potawatomi Tribe

(1991) 498 U.S. 505, 511 [“[No] precedent of this Court has

ever drawn the distinction between tribal trust land and

reservations”]; Cohen’s Handbook of Federal Indian Law (2019

ed.) § 3.04(2)(c)(ii) [“The Supreme Court has [] held that tribal

trust land is the equivalent of a reservation and thus Indian

country”]; Rest., Law of American Indians (Tent. Draft No. 2,

Mar. 13, 2018) § 15, subd. (a) [defining “Indian lands” to

include “lands held by the United States in trust for an Indian

tribe or individual members of an Indian tribe”].) When

construing initiatives such as Proposition 1A, we presume

electors “to [have been] aware of existing laws and judicial

construction[s] thereof” when they voted. (In re Lance W.

(1985) 37 Cal.3d 873, 890, fn. 11.) Nowhere did Proposition 1A

offer its own definition of “Indian lands” or “tribal lands.” And

Proposition 1A’s Voter Information Guide explained to voters

that federal law regulated gaming on Indian land (Voter

Information Guide, Primary Elec. (Mar. 7, 2000) analysis of

Prop. 1A by Legis. Analyst, p. 4) — indeed, the text of the

ballot proposition said it was allowing class III gaming “on

Indian lands in California in accordance with federal law” (id.,

text of Prop. 1A, p. 90). None of this bolsters the case for

assuming that the terms “Indian lands” and “tribal lands” in

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Proposition 1A have a narrow, bespoke content different from

their ordinary meaning under federal law.

United Auburn then seeks to buttress its argument by

offering a somewhat different definition of “tribal lands” and

“Indian lands”: land recognized as Indian land when IGRA

was enacted, but not after. This proposed interpretation of the

terms pivots not on whether casino-style gaming would require

the Governor’s concurrence, but instead on whether the Indian

land was acquired after IGRA was enacted — irrespective of

whether that land has become “Indian” or “tribal” land “under

federal law” in the decades since IGRA’s effective date.

That definition is also implausible. The language of

Proposition 1A offers no indication that voters enshrined in the

Constitution the technical, inside-baseball distinction between

gaming on federally designated Indian land before IGRA’s

effective date (what United Auburn proposes to be true

“Indian” or “tribal” lands), and after. IGRA, for its part, allows

class III gaming on certain land taken into trust for an Indian

tribe after the statute’s effective date without the Governor’s

concurrence, so long as the Governor executes a tribal-state

compact. (See 25 U.S.C. § 2719(b)(1)(B)(i)–(iii) [casino-style

gaming on “lands [] taken into trust as part of[:] [¶] (i) a

settlement of a land claim”; “(ii) the initial reservation of an

Indian tribe acknowledged by the [Interior] Secretary under

the Federal acknowledgment process”; or “(iii) the restoration

of lands for an Indian tribe that is restored to Federal

recognition” does not require the Governor’s assent].) Under

United Auburn’s argument, however, Proposition 1A prohibits

class III gaming from taking place even on these lands.

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We are not persuaded. United Auburn’s contention lacks

support in the language of Proposition 1A, which explicitly

empowers the Governor to negotiate and conclude compacts for

class III gaming on “Indian lands . . . in accordance with

federal law” and “permit[s]” class III gaming “on tribal lands

subject to those compacts.” (Cal. Const., art. IV, § 19, subd.

(f).) Because Proposition 1A allows class III gaming on “Indian

lands in California in accordance with federal law,” it makes

little sense to interpret article IV, section 19 as prohibiting

such gaming on certain trust lands — considered Indian lands

under federal law — for which IGRA does not even require the

Governor’s concurrence before class III gaming may occur.

(Ibid.) United Auburn’s interpretation would also cut against

the cooperative-federalism scheme created by IGRA to permit

class III gaming on Indian land. We decline to create such a

conflict between state and federal law where none exists.6

(See

California ARCO Distributors, Inc. v. Atlantic Richfield Co.

(1984) 158 Cal.App.3d 349, 359 [“State and federal laws should

be accommodated and harmonized where possible”]; Huron

Cement Co. v. Detroit (1960) 362 U.S. 440, 446 [“[The Supreme]

Court’s decisions [] enjoin seeking out conflicts between state

and federal regulation where none clearly exists”].)

What we find more persuasive is the most reasonable

inference from Proposition 1A’s text and context: The terms



6 United Auburn itself appears to abandon this proposed

reading of “Indian lands” and “tribal lands” in its reply brief,

reverting to its previous argument that “the voters [who

enacted Proposition 1A] meant to facilitate gaming that

required no concurrence.”

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“Indian” and “tribal” lands — which appear in close proximity

to the phrase “in accordance with federal law” — are best

understood, as they are under federal law, to include Indian

reservation land and all land the federal government has

acquired in trust for the benefit of Indian tribes. (Voter

Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop.

1A, p. 90.) In the absence of any specialized definition of the

terms within Proposition 1A, the most reasonable

understanding of voters’ purpose in enacting Proposition 1A is

that they sought to permit casino-style gaming on all Indian

land in accordance with federal law — notwithstanding the

California Constitution’s general restriction on casino-style

gaming. (Compare Cal. Const., art. IV, § 19, subd. (e) with Cal.

Const., art. IV, § 19, subd. (f).)

That Indian land encompasses reservation land as well

as land taken into trust for Indian tribes bears on another of

United Auburn’s arguments. It points our attention to the fact

that Proposition 1A empowers the Governor only “to negotiate

and conclude compacts” for gaming on Indian land — not to

concur in the Interior Secretary’s determination. (Cal. Const.,

art. IV, § 19, subd. (f).) Because compacting and concurring

are distinct actions, United Auburn contends, the Governor’s

authority to compact doesn’t imply his power to concur.

We agree that the power to negotiate compacts with

Indian tribes does not, by itself, imply the power to concur.

But neither does Proposition 1A’s failure to expressly mention

the power to concur imply any sort of limitation on the

Governor’s inherent powers — including his power to concur.

The ballot initiative amended the Constitution to bestow the

Governor with the power “to negotiate and conclude compacts .

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. . for the operation of [casino-style gaming] . . . on Indian lands

in California.” (Cal. Const., art. IV, § 19, subd. (f).) Because

casino-style gaming cannot occur on some Indian lands —

certain land taken into trust for an Indian tribe after IGRA

was enacted — without the Governor’s concurrence, the power

to negotiate compacts for class III gaming on those lands is

consistent with the Governor exercising his inherent power to

concur to allow class III gaming to occur on those lands.

Suppose voters had limited the Governor’s compacting

power to land on which casino-style gaming could occur

without his concurrence. One might then reasonably expect

that the Proposition would have limited the Governor’s power

to negotiate compacts only where the land in question was

“reservation land,” land designated as “Indian land” before

IGRA was enacted, or “Indian land not requiring a

concurrence.” Yet nothing close to this limitation appears in

the language of Proposition 1A. (Cf. City of Port Hueneme v.

City of Oxnard (1959) 52 Cal.2d 385, 395 [a statute’s omission

of a term used elsewhere “ ‘is significant to show’ ” a different

intended purpose].) What Proposition 1A’s language conveys

instead is that the Governor’s power to negotiate and conclude

compacts for class III gaming extends to all land that counts as

“Indian” or “tribal” under federal law, with no intricate pre- or

post-IGRA, concurrence or no concurrence proviso. That the

Governor has the power to negotiate and conclude compacts for

class III gaming on “Indian” and “tribal” land thus

demonstrates that article IV, section 19, subdivision (e)’s

general ban on casino-style gaming doesn’t apply to gaming on

land taken into trust after IGRA was enacted for which the

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Governor’s concurrence is required. (See Cal. Const., art. IV,

§ 19, subd. (e).)

Unable to ground its argument in the four corners of the

ballot proposition, United Auburn seeks firmer footing in

Proposition 1A’s ballot materials. It explains that Proposition

1A’s proponents advocated for passage of the ballot proposition

“so we can keep the gaming we have on our reservations.”

(Voter Information Guide, Primary Elec. (Mar. 7, 2000)

argument in favor of Prop. 1A, p. 6.) United Auburn also

contends that the primary motivation for Proposition 1A

appears to have been to ratify 57 compacts that California had

negotiated before 2000 — compacts for land on which gaming

could occur without the Governor’s concurrence. (Id., analysis

of Prop. 1A by Legis. Analyst, pp. 4–5.) And it calls our

attention to a back-and-forth exchange between supporters and

opponents of the initiative included in the ballot materials, in

which proponents of Proposition 1A wrote: “ ‘Proposition 1A

and federal law strictly limit Indian gaming to tribal land. The

[opponents’] claim that casinos could be built anywhere [if

Proposition 1A is enacted] is totally false.’ ” (Id., rebuttal to

argument against Prop. 1A, p. 7.)

It’s true that ballot materials sometimes illuminate how

we interpret voter initiatives. (See People v. Valencia (2017) 3

Cal.5th 347, 364.) But these materials don’t support the

weight United Auburn hoists onto them, and they don’t

override our understanding of Proposition 1A’s language: that

class III gaming may occur on Indian land. (See California

Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 934

(California Cannabis Coalition) [“we may consider extrinsic

sources, such as an initiative’s ballot materials” only if “the

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provision[’s] intended purpose [] remains opaque” after

analysis of its text].) The Governor’s interpretation, too, fits

with the maxim of Proposition 1A’s proponents: That the

proposed ballot initiative “ ‘strictly limit[s] Indian gaming to

tribal land,’ ” and that “ ‘the claim[s] that casinos could be built

anywhere is totally false.’ ” (Voter Information Guide, Primary

Elec. (Mar. 7, 2000) rebuttal to argument against Prop. 1A, p.

7.) Class III gaming, after all, may occur only on reservation

land or land the federal government has converted to Indian

land by taking it into trust for an Indian tribe. We

acknowledge that the language included in these materials

arguably supports the conclusion that the predominant

rationale behind Proposition 1A was to allow Indian tribes to

conduct class III gaming on land for which the Governor’s

concurrence wasn’t required — including on land for which

California had negotiated 57 compacts before 2000. What the

materials do not suggest, however, is that the most defensible

account of Proposition 1A’s purpose was to allow casino-style

gaming only on lands associated with those compacts.

In response to this line of argument, the dissent invokes

a private website, www.yeson1A.net, that Proposition 1A’s

proponents cited in their rebuttal to arguments against the

ballot proposition. Because that website “equated ‘Indian

lands’ and ‘tribal lands’ with ‘reservation lands,’ and indicated

that tribal casinos would be limited to these lands,” the dissent

contends, voters would have construed Proposition 1A to

authorize casinos only on Indian reservations. (Dis. opn., post,

at p. 22, fn. 4.) Not even United Auburn advances such a

narrow construction of Proposition 1A — as we’ve explained,

both definitions of “Indian” and “tribal” lands offered by United

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Auburn encompass some kinds of Indian trust land in addition

to Indian reservations. Taking account of a private website

that showed up as a link in one of the ballot statements —

even if there’s no particular evidence that many voters

examined its contents — could conceivably make sense in light

of how we consider appropriate extrinsic sources when the

initiatives we interpret are unclear. (See California Cannabis

Coalition, supra, 3 Cal.5th at p. 934.) What makes less sense

is to give outsized importance to its peculiar interpretation

when there’s no particular logic or argument persuasively

supporting its theory, and it goes beyond what the ballot

materials themselves imply. In any event, we parse the

website differently. The website’s homepage explained that

“Prop 1A . . . simply allows federally-recognized California

tribes to continue to have gaming on federally-designated

tribal land, as provided by federal law” — and the very next

sentence identified IGRA as the relevant federal law. (Yes on

1A, Proposition 1A . . . The California Indian Self-Reliance

Amendment on the March 2000 State Ballot (Mar. 6, 2000)

[as of

Aug. 28, 2020].) The dissent cites a different portion of the

website, but the point it conveys is the same: It stated that

“federal law strictly limits tribal gaming to Indian lands only”

before explaining that Congress enacted “[t]he Indian Gaming

Regulatory Act . . . in 1988.” (Yes on 1A, Proposition 1A:

Answers to Common Questions (Mar. 6, 2000)

[as of

Aug. 28, 2020].)

Elsewhere the dissent suggests that Proposition 1A may

have used “Indian lands” as a term of art — one referring to

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“reservation lands and after-acquired trust lands for which no

concurrence is required.” (Dis. opn., post, at p. 19.) Like

United Auburn, however, the dissent fails to persuasively

explain why the “Indian lands” term of art would happen to

encompass only those trust lands on which gaming may occur

without the Governor’s concurrence, but not other trust lands

which require the Governor’s concurrence for class III gaming.

That federal law draws a line to distinguish “Indian lands”

from other lands is not in dispute. What that line fails to do is

draw any distinction between lands where gaming may occur

with or without a governor’s concurrence. Instead, as we’ve

explained, federal law defines all these lands as Indian land.

(See Cohen’s Handbook of Federal Indian Law (2019 ed.)

§ 3.04(2)(c)(ii).) So whereas the dissent questions the

transparency of Proposition 1A’s ballot materials (dis. opn.,

post, at p. 26), we read those materials to reiterate a consistent

message as it’s relevant to this case: Proposition 1A would

allow class III gaming on all Indian land, as defined by IGRA.

Nor have we any reason to conclude that our

interpretation would “put[] gambling casinos right in

everyone’s backyard,” as opponents of Proposition 1A warned.

(Voter Information Guide, Primary Elec. (Mar. 7, 2000)

argument against Prop. 1A, p. 7.) Amicus curiae North Fork

Rancheria observes that the Interior Secretary has requested

gubernatorial concurrences only 16 times nationwide in the 31

years since IGRA was enacted, and state governors have

concurred in only 10 of those determinations. So in the subset

of instances where the Interior Secretary agrees that land held

in trust for a tribe may be used for gaming, the required

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gubernatorial concurrence further narrows where gaming may

occur.7



We find no reason to conclude from these ballot

materials, from Proposition 1A’s language, or from any other



7 The dissent claims that our opinion allows “a single state

official, the Governor,” to exercise the “consequential power” of

allowing class III gaming on land taken into trust after IGRA

was enacted. (Dis. opn., post, at p. 17–18.) What this bold

assertion seems to miss is that nothing in our opinion anoints

the Governor Emperor of tribal gaming. The dissent’s reading

of our conclusion overlooks several pieces of an intricate jigsaw

puzzle that must fall into place before class III gaming can

occur on land taken into trust after IGRA’s effective date: An

Indian tribe must duly authorize casino-style gaming. (25

U.S.C. § 2710(d)(1)(A).) A state must permit that type of

gaming for any purpose by any person, organization, or entity.

(Id., § 2710(d)(1)(B).) The gaming must abide by the terms of a

tribal-state compact. (Id., § 2710(d)(1)(C).) For land that

doesn’t satisfy other conditions in IGRA, the Interior Secretary

must determine that gaming would be in the best interest of

the tribe and wouldn’t be detrimental to the surrounding

community. (Id., § 2719(b)(1)(A).) And the Legislature

remains free to restrict the Governor’s concurrence power if it

so chooses. (See ante, pp. 35–37.) What our opinion does

conclude is that the Governor may concur in the Interior

Secretary’s determination to allow class III gaming — if (and

only if) all the other necessary conditions for class III gaming

are satisfied in this cooperative-federalism scheme. Nowhere

does the dissent persuasively justify its assumptions that

article IV, section 19 of the California Constitution imposes a

“flat prohibition of Nevada and New Jersey-style casinos”

despite Proposition 1A’s explicit amendment of the state

Constitution in 2000 to permit some class III gaming, or that a

gubernatorial concurrence under IGRA is prohibited unless it’s

expressly authorized. (Dis. opn., post, at pp. 25–26.)

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provision of the California Constitution that the Governor is

barred from concurring in the Interior Secretary’s

determination to allow class III gaming on land taken into

trust for an Indian tribe after IGRA was enacted. What we

find instead is that article IV, section 19, subdivision (f) —

added to the California Constitution by Proposition 1A —

allows class III gaming to occur “subject to [Governornegotiated] compacts” on all “Indian” or “tribal” lands.

Included among these lands are those that require the

Governor to concur before class III gaming is permitted. To

somehow find among these words a categorical rule against

gubernatorial concurrences is to place on the constitutional

provision’s delicate frame a weight it cannot bear.

C.

United Auburn also argues that separation of powers

concerns cut against recognition of a concurrence power here.

Even if the California Constitution — as amended by

Proposition 1A — doesn’t prohibit the Governor from

concurring in the Interior Secretary’s determination, United

Auburn posits, the Governor lacks that power because

concurring is a legislative function, not an executive one. To

find otherwise, claims United Auburn, infringes on the

Legislature’s prerogatives. That the language enshrined in the

Constitution by Proposition 1A appears in article IV of the

Constitution — a section that contains other legislative powers

— underscores for United Auburn that concurrence is a

legislative function.

Although we endeavor to read constitutional provisions

in context, the placement of a provision isn’t dispositive to our

analysis. Consider the constitutional provision authorizing

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this court to recommend (or decline to recommend) that an

application for executive pardon or clemency be granted to a

defendant who has been “twice convicted of a felony.” (Cal.

Const., art. V, § 8, subd. (a).) That power — primarily judicial

in nature — doesn’t become an executive one simply because it

appears in article V of the Constitution, which contains

executive functions. So we decline to characterize the

Governor’s concurrence as a legislative act simply because

Proposition 1A added a provision to article IV of the California

Constitution.

Nor can we assume, as United Auburn’s argument

presumes, that we can in every instance neatly disaggregate

executive, legislative, and judicial power. Treating these

domains as entirely separate and independent spheres

contrasts with the more nuanced treatment of these powers —

and their frequent overlap — under our state constitutional

system. (See Superior Court v. County of Mendocino (1996) 13

Cal.4th 45, 52 [“California decisions long have recognized that,

in reality, the separation of powers doctrine ‘ “does not mean

that the three departments of our government are not in many

respects mutually dependent” ’ ”].) Indeed, our Constitution’s

history “strongly supports a flexible, nonformalist

understanding of separation of powers in which the functions

of the offices are fluid.” (Zasloff, Taking Politics Seriously: A

Theory of California’s Separation of Powers (2004) 51 UCLA

L.Rev. 1079, 1106; cf. Seila Law LLC v. Consumer Financial

Protection Bureau (2020) 140 S.Ct. 2183, 2226 (dis. opn. of

Kagan, J.) [“[T]he separation of powers is, by design, neither

rigid nor complete”].) Rather than attempt to characterize the

Governor’s concurrence power as a wholly legislative or

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executive one, we construe the power as containing features

that cut across both categories.

That fact isn’t fatal to the Governor’s exercise of the

concurrence power, for nothing in our separation of powers

jurisprudence demands “ ‘a hermetic sealing off of the three

branches of Government from one another.’ ” (Hustedt v.

Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338.) We’ve

instead recognized “that the three branches of government are

interdependent,” and so government officials frequently

perform — and are permitted to perform — actions that “may

‘significantly affect those of another branch.’ ” (Carmel Valley

Fire Protection Dist. v. State of California (2001) 25 Cal.4th

287, 298.) What the doctrine prohibits is “one branch of

government [] exercising the complete power constitutionally

vested in another” (Younger v. Superior Court (1978) 21 Cal.3d

102, 117), or exercising power in a way “ ‘ “that undermine[s]

the authority and independence of one or another coordinate

[b]ranch” ’ ” (Carmel Valley, supra, 25 Cal.4th at p. 297). So

the question before us is whether concurring in the Interior

Secretary’s determination unduly limits the role and function

of the legislative branch.

We begin our analysis, once again, with Proposition 1A.

Although the constitutional amendment doesn’t expressly

authorize the Governor to concur, it does allow casino-style

gaming to occur on Indian land in accordance with federal law.

Proposition 1A was significant because it amended the

Constitution to signal a policy of greater openness toward

casino-style gaming — which California had previously

prohibited. (See Cal. Const., art. IV, § 19, subd. (e).) When he

concurs in the Interior Secretary’s determination to allow class

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III gaming on land taken into trust for an Indian tribe,

therefore, the Governor acts consistently with the state’s policy

toward gaming on Indian land, as established by voters. He is

not, as United Auburn would have us believe, engaging in

“gubernatorial legislation.”

That the Governor has historically been tasked with

concurring — or declining to concur — under a variety of

federal statutes also supports our conclusion that the

concurrence power is an executive one. (See In re Battelle

(1929) 207 Cal. 227, 242.) Since 1958, federal law has required

gubernatorial consent before the secretary of a military

department may order Army or Air National reservists to

active duty. (10 U.S.C. § 12301(b).) The Migratory Bird

Conservation Act, enacted in 1961, requires the Governor’s

approval before land can be acquired from the migratory bird

conservation fund. (16 U.S.C. § 715k-5.) Since 1970, the Clean

Air Act has required the consent of the Governor before the

Administrator of the Environmental Protection Agency (EPA)

may grant waivers to allow the construction of certain new

source polluters. (42 U.S.C. § 7411(j)(1)(A).) The National

Estuary Program, established in 1987, requires gubernatorial

concurrence before the EPA Administrator may approve a

conservation and management plan for an estuary. (33 U.S.C.

§ 1330(f)(1).) And the Temporary Assistance for Needy

Families Program, enacted in 1996, prohibits parents from

receiving benefits if they are not employed or participating in

community service unless the “chief executive officer of the

State opts out.” (42 U.S.C. § 602(a)(l)(B)(iv).)

The concurrence power isn’t a hollow one — the Governor

has exercised it throughout our state’s history. (E.g. California

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Society of Anesthesiologists v. Brown (2012) 204 Cal.App.4th

390, 395 [“Governor Arnold Schwarzenegger . . . exercised his

discretion under federal law [42 C.F.R. § 482.52(c)(1) (2020)]

[to opt] California out of the federal physician supervision

Medicare reimbursement requirement”]; Fort Ord Reuse

Authority, Media Release: Major Event in Completion of Early

Transfer of Former Fort Ord Property (Aug. 12, 2008)

[as of Aug. 28, 2020] [Governor

Schwarzenegger’s concurrence in the transfer of 3,337 acres of

land for economic reuse “provide[d] approval to begin a $100

million privatized munitions and explosives cleanup program”

under the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601

et seq.]; U.S. Gen. Accounting Off., Rep. to the Ranking

Minority Member, Com. on Commerce, H.R., Hazardous

Waste: Information on Potential Superfund Sites (Nov. 1998),

at pp. 350–352 [Governor of California declined to approve

placement of three sites on the National Priorities List for

hazardous waste cleanup under CERCLA]; Governor Pete

Wilson, letter to Administrator Carol Browner, Nov. 17, 1993

[concurring in the EPA Administrator’s conservation and

management plan for an estuary under the National Estuary

Program]; Governor Edmund G. Brown, Jr., letter to Doctor

Robert M. White8

[approving a proposed management program



8 Governor Brown’s letter is available at:

[as of Aug. 28, 2020].

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under the Coastal Zone Management Act of 1972, 16 U.S.C. §

1451 et seq.].) And although the Legislature has expressly

authorized the Governor to concur under some of these

schemes (see, e.g., Fish & G. Code, § 10680), it has remained

silent regarding the Governor’s concurrence power under most

of them. Historical practice thus demonstrates that the

Governor has the authority to concur in cooperative-federalism

schemes such as IGRA without express legislative

authorization, so long as the Governor’s concurrence is

consistent with state law.

United Auburn seeks to distinguish the Governor’s

concurrence here by asserting that it “has massive land-use

and tax-base consequences.” The Governor’s concurrence

causes the land taken into trust for an Indian tribe to no longer

“be subject to California’s civil, criminal, and tax jurisdiction.”

According to United Auburn, the pivotal role a concurrence

plays in the Interior Secretary’s determination — and how that

determination triggers these significant results — makes it

unlawful for the Governor to exercise that power.

United Auburn’s acute concern about the consequences of

a gubernatorial decision is misplaced. United Auburn is

correct that taking land into trust for an Indian tribe causes

that land to no longer be subject to state or local taxes. (25

U.S.C. § 5108.) But because it is the Interior Secretary — not

the Governor — who retains exclusive authority over whether

to take land into trust (25 C.F.R. § 151.3 (2020)), it is not the

Governor’s concurrence that carries with it that effect. In any

event, closer scrutiny demonstrates that the effect of the

Governor’s concurrence under IGRA isn’t materially distinct

from that under other cooperative-federalism schemes

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requiring his concurrence. Consider the federal law requiring

the United States Secretary of Energy to consult with and

obtain the consent of the Governor of a state where land will be

acquired for the purpose of disposing radioactive waste. (42

U.S.C. § 7916.) Or the requirement that the Interior Secretary

obtain a governor’s concurrence before acquiring land in

national parks for the establishment of an airport. (54 U.S.C.

§ 101501(c)(2).) These examples illustrate how gubernatorial

decisions routinely trigger enormous consequences for local

communities. For these reasons, the consequences of the

Governor’s concurrence in the Interior Secretary’s

determination don’t affect the scope of his power, so long as his

concurrence is consistent with state law.

The concurrence power is also consistent with the

Governor’s historic role as the state’s representative — a role

he has held since before the California Constitution was

enacted. At the 1849 constitutional convention, delegates

agreed that “it is a well[-]established principle” that the

Governor ought to communicate directly with, and represent

the state to, the federal executive branch. (Browne, Report of

the Debates in the Convention of California on the Formation

of the State Constitution in September and October, 1849

(1850) p. 277.) The Legislature later codified the Governor’s

station as “the sole official organ of communication between

the government of this State and the government of . . . the

United States” when it enacted Government Code section

12012. This provision, which readily demonstrates a

legislatively enacted expectation that the Governor serve as

the state’s representative to the federal government, bolsters

the argument that the Governor is capable of playing a role in

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federal schemes that depend on the state government to convey

an official position on behalf of the state of California. (Cf.

Dames & Moore v. Regan (1981) 453 U.S. 654, 677 [“statutes

[are] highly relevant in the looser sense of indicating” the scope

of executive power, even in the absence of express

constitutional authority].)

Indeed, finding the Governor unable to concur in the

Interior Secretary’s determination under IGRA would be in

tension with his legislatively enacted authority under

Government Code section 12012. At oral argument, United

Auburn conceded that the Governor’s executive power

encompasses consulting informally with federal officials who

seek his perspective on decisions that may affect the state.

United Auburn nevertheless seeks to distinguish that

correspondence from IGRA’s requirement that the Interior

Secretary consult with and obtain the Governor’s concurrence

before class III gaming may occur on land taken into trust for

an Indian tribe after IGRA’s effective date. Yet the Governor’s

concurrence under IGRA is akin to analogous communications

with the federal government in which he serves as the state’s

representative — particularly when the federal officer with

whom he communicates makes the discretionary decision to

assign significant weight to the Governor’s views. That

Congress required the Interior Secretary to garner the

concurrence of state governors, rather than leaving that

decision to the Interior Secretary’s discretion, doesn’t by itself

strip the Governor of power to serve as “the sole official organ

of communication” between the state and the federal

government. (Gov. Code, § 12012.)

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The resulting constitutional and statutory picture in this

case reveals not only nuances about how California has chosen

to conduct relations between the state and the federal

government, but also the subtle shades depicting the precise

limits of the respective powers of the Governor and the

Legislature here. Recall that the California Constitution and

other state law once prohibited casino-style gaming. (See Cal.

Const., art. IV, § 19, subd. (e); Pen. Code, §§ 330, 330a.) But in

2000, voters amended the Constitution to allow that type of

gambling under certain conditions. (Cal. Const., art. IV, § 19,

subd. (f).) In so doing, they bestowed certain powers on the

Governor — the power to “negotiate and conclude compacts”

for class III gaming “on Indian lands in California in

accordance with federal law” — and other powers on the

Legislature — the authority to ratify (or decline to ratify) those

compacts. (Ibid.)

What the newly amended Constitution didn’t address, at

least not expressly, was whether the Governor has the power

to concur in the Interior Secretary’s determination to allow

class III gaming on certain land taken into trust for an Indian

tribe after IGRA was enacted, or the division of authority

between the executive and legislative branch over that task.

Yet in the years since Proposition 1A was enacted, our

Legislature has not — in contrast to the lawmaking bodies of

other states (see, e.g., Ariz. Rev. Stat., § 5-601(a), (c)

[authorizing the Arizona Governor to negotiate and execute

compacts but expressly prohibiting the Governor from

concurring in the Interior Secretary’s determination]) —

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exercised its authority to enact legislation limiting the

Governor’s power to concur.9

In the absence of an express grant or denial of authority,

we conclude that the Governor’s concurrence falls within a

“zone of twilight in which he and [the Legislature] may have

concurrent authority” and where legislative “inertia,

indifference or quiescence” invites the exercise of executive

power. (Youngstown, supra, 343 U.S. at p. 637 (conc. opn. of

Jackson, J.).) By opening the door for class III gaming on

“Indian” and “tribal” lands — some of which require a

gubernatorial concurrence before class III gaming may occur —

Proposition 1A put an end to California’s “flat prohibition of

Nevada and New Jersey-style casinos” (dis. opn., post, at p. 25),

thereby opening the door for the Governor to concur in the



9

Indeed, the Legislature has declined to restrict the

Governor’s power to concur under IGRA despite being given

the opportunity to do so. Assembly Bill No. 1377 (2017-2018

Reg. Sess.), introduced in February 2017, would’ve required

the Governor to seek the Legislature’s approval before

concurring in the Interior Secretary’s determination to allow

casino-style gaming on land taken into trust for an Indian tribe

after IGRA was enacted. The bill failed to pass before the end

of the 2017–2018 regular session and died on January 31, 2018

under article IV, section 10, subdivision (c) of the California

Constitution. (Assem. Bill No. 1377 (2017–2018 Reg. Sess.).)

Although “[w]e have often said that mere legislative inaction is

a ‘weak reed’ upon which to rest any conclusion about the

Legislature's intent” (Prachasaisoradej v. Ralphs Grocery Co.,

Inc. (2007) 42 Cal.4th 217, 243), the Assembly’s consideration

and rejection of Assembly Bill No. 1377 arguably demonstrates

some measure of acquiesce by the Legislature in the

Governor’s concurrence power.

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Interior Secretary’s determination allowing gaming on those

lands. (Cal. Const., art. IV, § 19, subd. (f).) The Governor’s

concurrence in that determination is consistent with his

historic practice of concurring in a variety of cooperativefederalism schemes, and his role as the state’s representative

under Government Code section 12012. So we find it

consistent with Proposition 1A and our separation of powers

jurisprudence to conclude that, despite the absence of specific

legislative authorization, California law empowers the

Governor to concur.

That power, however, isn’t an indefeasible one. Although

our analysis of Proposition 1A and other state law supports the

finding that the Governor has the power to concur, it also

demonstrates that the legislative branch is capable of enacting

legislation that would reduce the Governor’s concurrence

power to “its lowest ebb.” (Youngstown, supra, 343 U.S. at p.

637 (conc. opn. of Jackson, J.).) The Legislature may, for

example, require the Governor to obtain legislative

authorization before concurring in the Interior Secretary’s

determination — just as Proposition 1A requires the

Legislature to ratify compacts that the Governor negotiates

and concludes before they become effective. (See Cal. Const.,

art. IV, § 19, subd. (f).) Because neither the California

Constitution nor other state law speaks directly to the

Governor’s concurrence power under IGRA, California law is

not inconsistent with this conclusion: That the Legislature

may restrict or eliminate the Governor’s implicit power to

concur. In the absence of state law creating such a limitation,

however, we may not enact one on the Legislature’s behalf. We

conclude that current California law permits the Governor’s

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concurrence in the Interior Secretary’s determination to allow

class III gaming on Indian land taken into trust for an Indian

tribe after IGRA was enacted.

10



III.

United Auburn argues that even if the Governor

generally has the power to concur, he lacks that power in this

particular case. Its argument relies on the Governor’s order of

operations. According to United Auburn, the California

Constitution limits any gubernatorial power to negotiate and

conclude compacts for class III gaming, and to concur in the

Interior Secretary’s determination permitting gaming, to land

designated as “Indian land” at the time of the compact

negotiations. Because the land at issue in this case hadn’t yet

been taken into trust for the Enterprise Tribe when the

Governor negotiated and concluded the compact to allow

gaming, United Auburn contends that the Governor’s compact

and concurrence were invalid.

The language of our constitutional charter belies this

argument. By amending the Constitution to add article IV,



10 Because we conclude that the Legislature may restrict

the Governor’s power to concur, we reject the argument of

amicus curiae Picayune Rancheria: that Congress has violated

the anticommandeering doctrine by prohibiting other branches

of government from constraining the Governor’s power to

concur. Our conclusion that California law, rather than

federal law, empowers the Governor to concur also dispels

United Auburn’s suggestion that IGRA “almost certainly run[s]

afoul of the [Tenth] Amendment of the U.S. Constitution” by

bestowing the Governor with the concurrence power.

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section 19, subdivision (f), Proposition 1A empowered the

Governor to negotiate and conclude compacts “for the operation

. . . and for the conduct of [class III gaming] by federally

recognized Indian tribes on Indian lands in California.” Those

requirements were satisfied here — when the Enterprise Tribe

engaged in class III gaming, it did so on land the federal

government had, by that point, designated as Indian land by

holding it in trust for the Enterprise Tribe.

Nothing in the Constitution restricts the Governor’s

power to negotiate and conclude compacts to parcels

designated “Indian land” at the time the negotiation happens.

That there’s no such constraint makes sense in light of

historical practice: The 57 compacts negotiated and executed

by California, which Proposition 1A ratified, allowed class III

gaming to occur on land that hadn’t yet been taken into trust

and didn’t otherwise constitute Indian land at the time of

negotiation. Indeed, the land ultimately taken into trust for

United Auburn wasn’t yet Indian land when California and the

tribe negotiated and concluded the compact for class III

gaming on the tribe’s land. (See City of Roseville v. Norton

(D.D.C. 2002) 219 F.Supp.2d 130, 135–136.) We decline to

read into the Constitution a requirement that not only appears

nowhere in its text but would also invalidate the gaming

operations of Indian tribes across the state — including those

of United Auburn.

IV.

For decades, California imposed on itself a categorical

prohibition on casino-style gaming that surely restricted not

only legislative authority, but gubernatorial power. Yet as the

wheel of time spun, voters placed their bets on a Constitution

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that regulated — rather than prohibited — casino-style (class

III) gaming and empowered the Governor to negotiate and

conclude compacts for casino-style gaming on Indian land in

California. In doing so, voters enacted Proposition 1A and

changed the situation materially. They amended state law to

allow class III gaming on all “Indian” and “tribal” lands “in

accordance with federal law.” (Cal. Const., art. IV, § 19, subd.

(f).) The Governor’s historical practice of concurring in a range

of other cooperative-federalism schemes, and his longstanding

and legislatively enacted role as the state’s representative to

the federal government, demonstrate that he may concur in

the Interior Secretary’s determination without violating the

Legislature’s prerogatives.

The Legislature nonetheless plays a robust role in

responding to the use, and defining the scope, of executive

power. Nearly seven decades have passed since Justice

Jackson emphasized that constitutions of separated powers

“enjoin[] upon its branches separateness but

interdependence” — “autonomy but reciprocity.” (Youngstown,

supra, 343 U.S. at p. 635 (conc. opn. of Jackson, J.).) And while

the materials before us are not quite as “enigmatic as the

dreams Joseph was called upon to interpret for Pharaoh” (id.

at p. 634), they nonetheless require nuanced interpretation for

us to discern how California’s Constitution allows executive

and legislative prerogatives to coexist in the continuing story of

its calibrated approach to tribal gaming. Although lawmakers

haven’t done so yet, they remain free to restrict or eliminate

the Governor’s authority to concur.

That the Legislature has enacted no such law means the power to concur remains in the Governor’s hands. As for the power that remains in our hands,

we affirm the judgment of the Court of Appeal.