BILL ANALYSIS
AB 2155
Page 1
Date of Hearing: April 8, 2008
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 2155 (Garcia) - As Amended: March 25, 2008
SUMMARY : Provides that any person who willfully enters upon
any gaming facility owned and operated by a federally recognized
Indian tribe, band or group, after receiving specified notice or
signing a specified request, is guilty of a misdemeanor
punishable by imprisonment in the county jail not exceeding six
months; a fine not exceeding $1,000; or by both that
imprisonment and fine. Specifically, this bill states that any
person who willfully enters upon any gaming facility owned and
operated by a federally recognized Indian tribe, band, or group
under any of the following circumstances, is guilty of a
misdemeanor:
1)After being personally served with a notice forbidding
trespass produced by the tribal government occupying the land
on which the gaming facility is located. Before the person
may be served with a notice forbidding trespass, he or she
must have interfered with lawful business or occupation
carried on by the owner or agent of the gaming facility, or by
obstructing or intimidating those attempting to carry on
business, or their customers.
2)After the person personally signs and dates a request for
exclusion form that is on file with the tribal government
occupying the land on which the gaming facility is located.
EXISTING LAW :
1)Provides that every person who willfully enters and occupies
real property or structures of any kind without the consent of
the owner, the owner's agent, or the person in lawful
possession is guilty of a six-month misdemeanor. [Penal Code
Section 602(m).]
2)States every person who willfully enters and occupies real
property and thereafter refuses or fails to leave the land,
AB 2155
Page 2
real property, or structures belonging to or lawfully occupied
by another and not open to the general public, upon being
requested to leave by a peace officer at the request of the
owner, the owner's agent, or the person in lawful possession,
and upon being informed by the peace officer that he or she is
acting at the request of the owner, the owner's agent, or the
person in lawful possession or the owner, the owner's agent,
or the person in lawful possession is guilty of a six-month
misdemeanor. [Penal Code Section 602(o).]
3)Affirms that any person who intentionally interferes with any
lawful business or occupation carried on by the owner or agent
of a business establishment open to the public, by obstructing
or intimidating those attempting to carry own business or
their customers, and who refuses to leave the premises of the
business establishment after being requested to leave by the
owner or the owner's agent, or by a peace officer acting at
the request of the owner or owner's agent, is guilty of a
misdemeanor, punishable by imprisonment in a county jail for
up to 90 days, by a fine of up to $400, or by both that
imprisonment and fine. The aforementioned shall not apply to
any of the following persons:
a) Any person engaged in lawful labor union activities that
are permitted to be carried out on the property by state or
federal law; or,
b) Any person on the premises who is engaging in activities
protected by the California Constitution or the United
States Constitution. [Penal Code Sections 602.1(a) and
(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Currently,
there are a number of various trespassing laws that apply to
schools, railroads, airports and farmers. However, there is
no law specifically protecting tribal casinos; and, as a
result, they have no recourse for those who continually enter
the casino after being evacuated. This bill will provide
gaming facilities with the same protections as any other place
of business."
AB 2155
Page 3
2)Background : According to information provided by the author,
"The current trespassing law used is California Penal Code
Section 602.1. To violate this law, you must interfere with
the lawful business and refuse to leave after being asked to
so. Detective Hougland found that a major complaint of
security staff of the Indian casinos was that criminal
suspects caught breaking the law (theft, public intoxication,
drug sales or use, fighting, disturbing the peace, or
trespassing) were being excluded from the casinos, with a
written notice. However, the excluded persons were returning
to the casinos, but were not subject to arrest unless they
interfered with the business of the casino and refused to
leave. Even if a person, who after discovering that he or she
had a gambling problem and put himself or herself on a
exclusion list, could not be arrested or removed from the
casino until he or she interfered with the lawful business and
refused to leave the casino. To compound the problem for
Indian casinos in San Diego County, the district attorney was
not filing charges against persons violating California Penal
Code Section 602.1, claiming possible court challenges as to
its enforcement.
"In speaking with the security and public safety departments at
the Indian casinos, Detective Hougland found that there were
many persons excluded numerous times and returning to the
casinos, even after being served with written notices at each
exclusion. Additionally, Detective Hougland also spoke to
tribal leaders and others involved in
running the Indian casinos. All of them saw the need for this
law and thought it was a good idea. So far, he has found that
none of the tribes in our county had any opposition to
changing the current trespassing laws to deal with this
problem."
3)The Indian Gaming Regulatory Act (IGRA) : "Legalized gambling
is the fastest-growing industry in the United States and
Indian casinos are the fastest growing segment of this
industry." [Brietzke & Kline, The Law and Economics of Native
American Casinos (1999) 78 Neb. L. Rev. 263.] According to
Federal Government statistics, Indian gaming generated $25.7
billion in 2006. (See .)
The IGRA authorizes Indian gaming only on "Indian lands,"
defined to include reservation lands and lands held in trust
by the United States, as well as "any lands title to which is
AB 2155
Page 4
. . . held by any Indian tribe or individual subject to
restriction by the United States against alienation and over
which an Indian tribe exercises governmental power." [Title
25 U.S.C. Section 2703(4).] The IGRA forbids gaming on lands
away from the tribe's reservation and placed in trust after
1988, with some exceptions. (Title 25 U.S.C. Section 2719.)
The IGRA divides Indian gaming into three classes, with
different regulations for each. Class I gaming consists of
"social games for prizes of minimal value or traditional forms
of Indian gaming connected with tribal ceremonies or
celebrations." [Title 25 U.S.C. Section 2703(6).] Class I
gaming is "within the exclusive jurisdiction of the Indian
tribes" and is not regulated by the Act. [Title 25 U.S.C.
Section 2710(a)(1).]
Class II gaming consists of bingo and similar games. [Title 25
U.S.C. Section 2703(7).] Class II gaming is within the
jurisdiction of tribes but is also subject to regulation by
the National Indian Gaming Commission (NICG). [Title 25
U.S.C. Section 2710(a)(2).] Tribes may engage in Class II
gaming within a state that permits such gaming for any purpose
by any person, organization or entity, but it must first have
a tribal ordinance approved by the NIGC. [Title 25 U.S.C.
Section 2710(b)(1).]
Class III gaming is defined as all other forms of gaming,
including typical casino games such as slot machines and
banked card games. [Title 25 U.S.C. Section 2703(8).] In
order to conduct Class III gaming, a tribe must have a tribal
ordinance approved by the NIGC and be located within a state
that permits such gaming for any purpose. Additionally, the
tribe must enter into a compact with the state that may
allocate civil and criminal jurisdiction with respect to such
gaming. [Title 25 U.S.C. Section 2710(d)(1).]
4)California Criminal Trespass Laws have Full Force and Effect
in Indian Gaming Facilities : Despite the fact that Indian
tribes are referred to as "sovereign" entities, the Supreme
Court has long since "departed from Chief Justice Marshall's
view that 'the laws of [a State] can have no force' within
reservation boundaries." [Worcester v. Georgia (1832) 31 U.S.
515; White Mountain Apache Tribe v. Bracker (1980) 448 U.S.
136, 141.] "Ordinarily, it is now clear; an Indian
reservation is considered part of the territory of the State."
AB 2155
Page 5
[United States Department of Interior, Federal Indian Law
510, and n. 1 (1958), citing Utah & Northern R. Co. v. Fisher
(1885) 116 U.S. 28; see also Organized Village of Kake v. Egan
(1962) 369 U.S. 60, 72.]
Congress and the Supreme Court have imposed numerous
restrictions to expand state and federal jurisdiction into
"Indian country". The term "Indian country" is defined as:
(a) all land within the limits of any Indian reservation under
the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation; (b) all
dependent Indian communities within the borders of the United
States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of
a state; and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way
running through the same. (Title 18 U. S. C. Section 1151.)
Congress extended state jurisdiction into Indian country in 1953
with the passage of Public Law 280. (Title 18 U.S.C. Section
1162.) Public Law 280 gave California "jurisdiction over
offenses committed by or against Indians in the areas of
Indian country listed opposite the name of the State or
Territory to the same extent that such State or Territory has
jurisdiction over offenses committed elsewhere within the
State or Territory, and the criminal laws of such State or
Territory shall have the same force and effect within such
Indian country as they have elsewhere within the State or
Territory." (Id.)
The Supreme Court has also recognized far-reaching limitations
on tribal jurisdiction. Beginning in the late 1970s, the
Court has increasingly found inherent limitations on tribal
sovereignty, including the lack of criminal jurisdiction over
non-Indians. [Oliphant v. Suquamish Indian Tribe (1978) 435
U.S. 191, 212.]
At present, the Penal Code provides protection from those who
trespass upon Indian gaming facilities as ruled and
legislated. As such, California criminal trespass laws have
full force and effect. Thus, Penal Code Sections 602.1,
602(m), and 602(o) already create the potential for
misdemeanor prosecution against those who trespass upon Indian
AB 2155
Page 6
gaming facilities. Given the fact that there are three
existing trespass laws that provide for the same protection
proposed by this bill, there is no need for an additional
criminal trespass statute. California's criminal laws have
applied to "Indian country" for over 50 years. Perhaps the
lack of enforcement is due to the need to apply valuable court
resources for more serious offenses. In addition thereto,
when a defendant is convicted of committing an offense within
a gaming facility, a competent district attorney typically
asks for a "stay away" order from that gaming facility as a
term of his or her probation.
5)Civil Remedies are Available : Federal law also provides that
state civil law in specified states, including California,
applies to reservation lands. (Title 28 U.S.C Section 1360.)
In particular, this provision states that specified states
have "jurisdiction over civil causes of action between
Indians or to which Indians are parties which arise in the
areas of Indian country . . . to the same extent that such
State has jurisdiction over other causes of action, and those
civil laws of such State that are of general application to
private persons or private property shall have the same force
and effect within such Indian country as they have elsewhere
within the State."
Federal law grants Indian tribes immunity from suit as a
sovereign entity. [Ackerman v. Edwards (2004) 121 Cal.App.4th
946; Long v. Chemehuevi Indian Reservation (1981) 115
Cal.App.3d 853.] Further, it appears that businesses operated
on tribal land can avail themselves of the benefits and
remedies in California civil law.
The application of civil law may affect cases of repeated
trespass. A person may interfere with a business on tribal
lands. After the person has been identified and removed from
the property, perhaps the business operator could obtain a
restraining order against the troublesome person. If the
person returned to the premises, he or she could be prosecuted
for violating the restraining order.
6)National Gambling Impact Study Commission (NGISC) : Congress
established the NGISC in 1996 to conduct a comprehensive legal
and factual study of the social and economic implications of
gambling in the United States, including impacts on tribal
governments. [NGISC Act (Pub. L. No. 104-169, 110 Stat. 1482
AB 2155
Page 7
(1996)).] The NGISC report, which was released in 1999, lauds
the tremendous social and economic benefits that have resulted
from tribal gaming. [NGISC, Report of the NGISC (1999).] The
report notes that gaming has created a substantial number of
jobs in depressed communities and that gaming revenues have
been used to support tribal governmental services such as
tribal courts; utilities; law enforcement; social welfare
programs, as well as tribal language, history and cultural
programs. In fact, the report states that there "was no
evidence presented to the commission suggesting any viable
approach to economic development across the broad spectrum of
Indian country, in the absence of gambling." (Id. at 6-7.)
7)Negative Impacts of Tribal Gaming : In spite of the financial
success enjoyed by some tribes, critics say gambling money has
been bad for tribal members in other ways. In California,
several tribes have engaged in intra-tribal membership
disputes with some members attempting to strip others of their
membership. [See, e.g., Goldberg-Ambrose, Pursuing Tribal
Economic Development at the Bingo Palace (1997) 29 Ariz. St.
L.J. 97, 117-18.] The Pechanga Tribe, for example, has
disenrolled over 10% of its 1,200 members in a phenomenon that
observers say eventually could affect thousands of tribal
members. Indian casinos in California bring in $4 billion per
year with profits going toward health, social, education, and
housing programs but also to member-per-capita payments. In
the case of Pechanga, those payments amount to more than
$120,000 per year. [See Harman, Gambling on Tribal Ancestry
(Apr. 14, 2004) Christian Sci. Monitor, p. Features-15.]
Native American tribes' regulatory authority over non-members is
governed by the principles set forth in Montana v. United
States (1981) 450 U.S. 544, which has been called the
"pathmarking case" on the subject. [See Strate v. A-1 Const.
(1997) 520 U.S. 438, 445.] In deciding whether the Crow Tribe
could regulate hunting and fishing by non-members on land held
in fee simple by non-members, Montana observed that, under the
decision in Oliphant v. Suquamish Tribe (1978) 435 U.S. 191,
tribes lack criminal jurisdiction over nonmembers. Although,
the court continued, "Oliphant only determined inherent tribal
authority in criminal matters, the principles on which it
relied support the general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the
activities of nonmembers of the tribe." [450 U.S. at 565
(footnote omitted).] Where non-members are concerned, the
AB 2155
Page 8
"exercise of tribal power beyond what is necessary to protect
tribal self-government or to control internal relations is
inconsistent with the dependent status of the tribes, and so
cannot survive without express congressional delegation."
(Id. at 564.)
"When on-reservation conduct involving only Indians is at issue,
state law is generally inapplicable, for the State's
regulatory interest is likely to be minimal and the federal
interest in encouraging tribal self-government is at its
strongest." [White Mountain Apache Tribe v. Bracker (1980)
448 U.S. 136, 144.] In Strate, the Supreme Court explained
that what is necessary to protect tribal self-government and
control internal relations can be understood by looking at the
examples of tribal power to which Montana referred: tribes
have authority "[to punish tribal offenders,] to determine
tribal membership, to regulate domestic relations among
members, and to prescribe rules of inheritance for members."
[520 U.S. at 459 (brackets in original), quoting Montana,
supra, at 564.] "These examples show, we said, that Indians
have 'the right . . . to make their own laws and be ruled by
them'." [520 U.S. at 459, quoting Williams v. Lee (1959) 358
U.S. 217, 220.]
Hence, tribes have the legal power to disenroll or exclude
tribal members in order to maintain law and order within their
own society as well as the territorial reach of sovereignty.
[U.S. v. Wheeler (1978) 435 U.S. 313, 322-23.] However, it
has been alleged that "Native American tribes are facing
allegations of greed and racism as they purge members from
their rolls and deny the applications of others" to increase
profits among members of gaming tribes. [Bazar, Native
American? The tribe says no, USA Today (November 26, 2006)]:
" 'In California, at least 2,000 Native Americans have been
taken off the rolls of their tribes since 1999', says Laura
Wass, executive director of the Many Lightnings American
Indian Legacy Center, an education and advocacy group in
Fresno. 'Disenrollments have surged with the rise of Indian
casinos', she says.
"Thousands of Native Americans elsewhere have lost, or may lose,
their tribal status. An upcoming vote at the Cherokee Nation
in Oklahoma could deny citizenship to more than 1,000 of the
tribe's 260,000 members.
AB 2155
Page 9
" 'The motive varies from tribe to tribe,' says Daniel
Littlefield, director of the Sequoyah Research Center at the
University of Arkansas, Little Rock, an archive for
contemporary Native American issues. 'I would say money is at
the bottom of a lot of it.'
"Mary Chapman of Fresno was disenrolled from the Picayune
Rancheria of the Chukchansi Indians last month, along with 20
members of her family. About 250 members of the tribe have
been disenrolled this year, Wass says, and about 400 others
have received letters questioning their status.
"The 1,200-member tribe, which opened a casino in Coarsegold,
California, in 2003, expelled Chapman because she didn't meet
the eligibility criteria in the tribe's constitution, a
complex set of categories based on ancestry, according to a
disenrollment letter sent to her by the tribe . . . .
" 'As far as they're concerned, I'm a non-Indian,' Chapman says
tearfully. 'I feel totally displaced, totally homeless. Just
kicked to the curb.'
"She feels helpless, she says, because there's nothing she can
do: 'There's no way to fight it.'
" 'State and federal courts do not have jurisdiction over Native
American membership disputes', says Kevin Gover, law professor
at Arizona State University and former assistant secretary of
the Interior for Indian affairs.
" 'Congress has not given individual Indians the right to sue
their tribes,' he says . . . .
"Some recently disenrolled members of the Pechanga Band of
Luise?o Indians in California cite greed.
"John Gomez Jr., 38, helped found the American Indian Rights and
Resources Organization last year to address civil rights
issues. Gomez and about 130 adults in his family were
disenrolled from the tribe in 2004. Another family of about
90 adults was kicked out earlier this year.
" 'Both were large families that opposed the leadership,' he
says.
AB 2155
Page 10
"The Pechanga Indians run a lucrative casino in Temecula,
California, and split the profits among tribe members. Each
member of Gomez's family used to get about $15,000 a month, he
says. Once they were disenrolled, the payments stopped and
the money went to remaining tribe members . . . . "
This bill creates a six-month misdemeanor against persons who
willfully enter upon any casino owned and operated by a
federally recognized Indian tribe, band or group after being
personally served with a notice forbidding trespass after he
or she intentionally interfered with lawful casino business.
This creates a danger since there seems to be a growing trend
amongst "gaming tribes" to disenroll members and prevent them
from coming onto the reservation. This bill creates the
potential for further victimization of banished or disenrolled
members by imposing fines and or jail. In addition thereto,
California criminal trespass law is applicable to Indian
gaming casinos. There is no need to create a specific statute
for casinos.
8)Aggravates Prison Overcrowding : Currently, California faces a
severe prison and jail overcrowding crisis. California's
prison capacity is nearly exhausted as prisons today are being
operated with a significant level of overcrowding.
[Legislative Analyst's Office, Analysis of the 2007-08 Budget
Bill: Judicial and Criminal Justice, Legislative Analyst's
Office (February 21, 2007).] In addition, California's jails
likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According
to the State Sheriffs' Association (CSSA), "Counties are
currently releasing 18,000 pre- and post-sentenced inmates
every month and many counties are so overcrowded they do not
accept misdemeanor bookings in any form . . . ." (Memorandum
from CSSA President Gary Penrod to Governor, February 14,
2007.) In January of this year, the Legislative Analyst's
office summarized the trajectory of California's inmate
population over the last two decades:
"During the past 20 years, jail and prison populations have
increased significantly. County jail populations have
increased by about 66 percent over that period, an amount that
has been limited by court-ordered population caps. The prison
population has grown even more dramatically during that
period, tripling since the mid-1980s. [Legislative Analyst's
AB 2155
Page 11
Office, California's Criminal Justice System: A Primer
(January 2007).]
"The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
"As of December 31, 2006, the California Department of
Corrections and Rehabilitation (CDCR) was estimated to have
173,100 inmates in the state prison system, based on CDCR's
fall 2006 population projections. However, . . . the
department only operates or contracts for a total of 156,500
permanent bed capacity (not including out-of-state beds, . .
. ), resulting in a shortfall of about 16,600 prison beds
relative to the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as well as at
reception centers. As a result of the bed deficits, CDCR
houses about 10 percent of the inmate population in temporary
beds, such as in dayrooms and gyms. In addition, many inmates
are housed in facilities designed for different security
levels. For example, there are currently about 6,000 high
security (Level IV) inmates housed in beds designed for Level
III inmates . . . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding and the use
of temporary beds create security concerns, particularly for
medium- and high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as in permanent
housing units, and overcrowding can contribute to inmate
unrest, disturbances, and assaults. This can result in
additional state costs for medical treatment, workers'
compensation, and staff overtime. In addition, overcrowding
can limit the ability of prisons to provide rehabilitative,
health care, and other types of programs because prisons were
not designed with sufficient space to provide these services
to the increased population. The difficulty in providing
inmate programs and services is exacerbated by the use of
program space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding, rehabilitation
programs and other services can be disrupted by the resulting
lockdowns." (Analysis 2007-08 Budget Bill, supra, fn. 1.)
"As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
AB 2155
Page 12
courts over California's prisons has intensified."
In February 2006, the federal court appointed a receiver to take
over the direct management and operation of the prison medical
health care delivery system from the state. Motions filed in
December 2006 are now pending before three federal court
judges in which plaintiffs are seeking a court-ordered limit
on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the
state has failed to provide inmates with adequate care as
required under the Eighth Amendment to the U.S. Constitution.
The courts found key deficiencies in the state's correctional
programs, including: (a) an inadequate number of staff to
deliver health care services, (b) an inadequate amount of
clinical space within prisons, (c) failures to follow
nationally recognized health care guidelines for treating
inmate-patients, and (d) poor coordination between health care
staff and custody staff." (Primer, supra, fn.4.)
This bill appears to aggravate the prison and jail overcrowding
crisis outlined above by creating a six-month misdemeanor
trespass.
9)Arguments in Support : According to the District Attorney,
County of Riverside , "Casino trespassing is a continuous and
series problem at our County and State's Indian gaming
casinos. This bill would make it a misdemeanor to enter an
Indian gaming casino after being served with an exclusion
notice for said casino.
"Currently, we have specific trespassing laws that apply not
only to a private home but to farms, schools, railroads, and
airports, just to name a few.
"Under current law, an Indian casino is not covered and,
therefore, has no recourse against a person who enters their
casino after being removed numerous times. Even if a person
is placed on the casino's personal exclusion list, the
individual can continue to return, break the rules, all
without any legally recognized consequences. People are asked
to leave the casino for a number of reasons such as
intoxication, counterfeiting, harassment or theft."
AB 2155
Page 13
10) Argument in Opposition : According to the American Civil
Liberties Union (ACLU), "The ACLU regrets to inform you of our
opposition to this bill which imposes lifetime banishment on
individuals entering Indian gaming facilities open to the
public after being served a notice of exclusion for
interfering with the casino business.
"Current law makes it clear that an intentionally disruptive
individual who refuses to leave a business establishment,
including a gaming facility, after being asked to leave is
guilty of a crime. We are concerned about creating exceptions
from this rule for certain business establishments. In
particular, we fear this process will be discriminatorily used
to refuse service to 'undesirable' persons who otherwise are
not interfering or disrupting a business as required in Penal
Code 602.1(a)."
11)Related Legislation :
a) SB 804 (Hollingsworth) was heard and is being held in
Senate Public Safety because SB 804 potentially aggravated
the prison overcrowding crisis. SB 804 creates a new
six-month misdemeanor against those persons who committed
trespass by interfering with a business and thereafter
returned to the business within six months after being
requested not to do so.
b) SB 331 (Romero) creates an infraction, punishable by a
fine, for any person to willfully enter upon Indian lands
occupied by a federally recognized tribe, band, or group of
which the person is not a member after having received
written notice forbidding trespassing. SB 331 is pending
hearing by the Assembly Appropriations Committee.
12)Prior Legislation : AB 924 (Maldonado), Chapter 101, Statutes
2003, increased the fine against those who willfully enter any
lands under cultivation or enclosed by fence belonging to, or
occupied by, another person; or willfully enters upon
uncultivated or unenclosed lands where signs forbidding
trespass are displayed at intervals not less than
three-to-the-mile along all exterior boundaries and at all
roads and trails entering the lands from $10 to $100 for a
first offense and from $100 to $250 for a second offense.
REGISTERED SUPPORT / OPPOSITION :
AB 2155
Page 14
Support
District Attorney, County of Riverside
Opposition
Amalgamated Transit Union
American Civil Liberties Union
California Conference of Machinists
California Labor Federation
California Teamsters
UNITE-HERE!
United Food & Commercial Workers
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744