Editor’s Note: The story has been adjusted to show the Morongo Band of Mission Indians as appellees.
Saturday marks the 30th anniversary of the decision in California v. the Cabazon Band of Mission Indians. The case began with a destitute Indian tribe taking on the state of California to open a simple card room in a dusty desert town. It ended with a U.S. Supreme Court triumph that made clear, once and for all, the right of tribes to conduct gaming across the country.
Cabazon opened the Indian gaming industry nationwide by establishing the boundaries of civil jurisdiction and regulatory authority between tribes and states. A generation after the fact, Cabazon remains one of the great unsung victories in U.S. legal history.
And this weekend, the Cabazon Band is celebrating.
The Raid at Cabazon Card Room
February 15, 1983, was a busy day at the Cabazon Card Room in Indio, California. Brenda Soulliere, a Cabazon tribal member, had been working in the cage that afternoon. She noticed a high volume of customers on the floor, unusual for a Tuesday.
Then, as she stepped out to go home for the day, all hell broke loose. Suddenly, police officers and SWAT agents from Riverside County, who had been working undercover as customers, jumped up from their tables, drew their guns and declared everyone under arrest.
Soulliere, unsure of what was happening, quickly stepped back into the cage, shut the heavy steel door and locked the deadbolt.
“The floor manager came over to the cage and told us, ‘Whatever you do, don’t open that door,’” Soulliere told Indian Country Media Network. “But the police were banging on the door with their guns drawn and the girl that was in the cage with me started having a meltdown.”
Scared, Soulliere finally opened the door as the police pushed their way in. The two women were thrown against the wall as agents began searching and grabbing everything in sight—tables, chairs, money and, especially, the day’s cash receipts. When Soulliere asked why they were going through her purse one of them replied, “We’re looking for a bazooka.”
“They didn’t arrest us, but they did cite us and took our mug shots at the card room, because they said the jail wasn’t big enough to hold everyone,” said Soulliere. “I was scared.”
The Background of Cabazon
At the time, the card room was a single-wide trailer that had previously housed a variety of failed Cabazon businesses, including a cigarette shop and a liquor store. Now, the card room was the first tribal business that had shown any real promise. The trailer had just reopened after the tribe won its first legal battle with the City of Indio in the Ninth Circuit.
But as soon as that decision came down, Riverside County cited the tribe for violating county anti-gambling ordinances. Tribal chairman Art Welmas put in an urgent call to the Cabazon’s attorney, Glenn Feldman, who had successfully fended off the City of Indio in a previous raid.
“As soon as the 9th Circuit decision became final—probably 30 days after the decision came down—Riverside County came in and did exactly the same thing [as Indio] with their own SWAT team and raided the place,” he recalled in Sovereign: An Oral History of Indian Gaming in America (2009).
“And their theory was pretty simple: You might not be in the city of Indio but you’re certainly in Riverside County and we have the same kind of ordinance that prohibits card rooms, so you have violated the county’s ordinance … So we were back in court again within a few days.”
Cabazon’s ‘Tough Old Guy’
The Cabazon story emerged out of several other cases whereby tribes had begun to challenge Public Law 83-280 (also known as PL-280). This arcane statute, enacted in 1953, gave criminal jurisdiction to six states—Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin—to prosecute most crimes that occurred in Indian country.
But tribes bristled against what they considered unjust attempts to impose civil laws and regulations on sovereign nations. Before Cabazon, tribes in Minnesota (Bryan v. Itasca County) and Florida (Seminole v. Butterworth) had challenged their respective states over property taxes and the attempted application of state statutes on Indian lands. Both won their cases before the Supreme Court by arguing that PL-280 conferred only criminal jurisdiction over the tribes—but not civil regulatory authority.
However, California (a PL-280 state) argued that the Cabazon card room did indeed criminally violate state law―even though the state had legalized both high stakes poker and the lottery. Angered by such hypocrisy, Cabazon chairman Welmas refused to back down.
“Art Welmas, was a tough old guy,” said Glenn Feldman. “His view and the tribe’s view of the world was that they were a government. They subscribed to the ‘use it or lose it’ theory of tribal sovereignty: If you’re a government, then you’ve got to act like a government and make decisions like a government—and then stand behind those decisions.”
The Escalation of Cabazon
After the February 15 raid, Feldman and the Cabazon took Riverside County to court. They argued that the county had no legal authority to prohibit bingo and card games on Indian land. The tribe won the case on appeal in 1986.
California then appealed to the Ninth Circuit. By now, the case was California v. Cabazon. California argued that its status as a PL-280 state gave it the authority to regulate gaming activities on Indian lands. The Morongo Band of Mission Indians, also in Riverside County, joined as appellee.
What had started out as a simple card room in a remote dusty, desert town was now a bare-knuckle legal brawl between two tiny, impoverished tribes and the biggest state in the union.
California lost in the Ninth Circuit. The state then immediately filed a petition for certiorari with the Supreme Court. Feldman, who was then relocating to Phoenix from Washington, D.C., called his office to check his messages.
“There were no cell phones back then,” he recalled, “so I remember very distinctly phoning my office from a pay phone in Amarillo, Texas, and being told that we had just gotten word that the court had agreed to hear our case—over our objection of course. We had won below, so we were opposed to the court hearing the case.
“When I learned that they had accepted cert at a payphone at a gas station in Amarillo, I was not feeling very happy about it.”
The Cabazon Showdown
“I’ve seen a lot of Supreme Court arguments,” said Patricia Zell, general counsel for the Senate Committee on Indian Affairs at the time. “But I’ve never seen one like Glenn in the Supreme Court before—or since. The justices typically try to kind of set you up. People get very flustered and lose their sense of gravity.
“But Glenn just had complete command of the room and the justices. Somehow he made the justices feel at ease. The atmosphere that he created verbally was like you were in his living room having an interesting discussion amongst colleagues, peers. He was just so relaxed, but not in a disrespectful way. And so unflappable.”
As Feldman remembers, the people of California argued that they were merely trying to “regulate” Indian gaming because of concerns about organized crime infiltrating the reservations.
“But that’s not what they were, in fact, doing,” Feldman said. “In a nutshell, they were trying to use a penal sanction to shut them down and put them out of business permanently. The question was, ‘California says you’re violating a criminal statute if you offer a bingo game with a prize at $251.’
“So is this a regulatory provision or a prohibitory provision? That was the real issue. And I couldn’t avoid the fact that there were criminal penalties associated with this.”
As he stepped to the podium in his first case at the high court, he came prepared. He laid out the uncomfortable truth that tribes had been forced to rely on government funding and private charity for their survival for over a century. And then he took on the federal government itself.
Washington, he said, could not on the one hand push the concept of “self-determination” while on the other deny tribal efforts to engage in economic development—particularly in states where gambling was already legal.
“They [tribes] are using their revenues for governmental services,” he told the high court. “They are providing programs on the reservation that have never been provided for. They are doing this without relying on federal funds, and that is the whole idea of what tribal self-sufficiency is supposed to be about: ‘Don’t rely on the federal government. Go out and raise the money yourselves and then provide services to your members, just like any government.’
“That is what we have been telling the Indian tribes for 100 years, and they have never been able to do it until now,” he continued. “Bingo is providing 100 or more tribes around the country with that ability. It is not a nefarious activity. It is not threatening.”
And he noted that the office of the Secretary of the Interior was closely monitoring such games.
The Cabazon Wait
In betting parlance, the argument was a long shot. After the hearing, Feldman returned to Phoenix. The Cabazon, along with the rest of Indian country, waited for the opinion.
The stakes were high. Earnings from the fledgling Indian gaming industry were still confined to bingo halls and card rooms. But they had begun to pay for such much-needed services and resources on Indian reservations, including elder lunches, fire trucks, school buses, healthcare and housing initiatives.
Tribal leaders, nervous about the potential loss of funding and economic development, began making plans to figure out how to replace the income generated from their card rooms if the industry went away. “To be honest, no one thought the Cabazon were going to win,” said one tribal leader who requested anonymity. “I mean, we genuinely hoped for the best but began preparing for the worst, putting every dime away for a rainy day.
“But then, everything changed.”
Cabazon and The Decision
On February 25, 1987, a little more than four years to the day after the Riverside County raid, the Supreme Court ruled in favor of Cabazon in a 6-3 decision. Associate Justice Byron White determined that California’s actions would “impermissibly infringe” upon the tribal government.
“The State insists that the high stakes offered at tribal games are attractive to organized crime, whereas the controlled games authorized under California law are not,” wrote White. “This is surely a legitimate concern, but we are unconvinced that it is sufficient to escape the pre-emptive force of federal and tribal interests apparent in this case.”
Across the country, phone lines lit up. Feldman had been fairy sure that the high court would reverse the 9th Circuit decision. But he was still flustered by it all.
“When all this began,” he said, “I don’t think any of us realized at the time that this was something we might have to take all the way to the Supreme Court.”
The Cabazon Legacy
Art Welmas, the tribe’s leader throughout the court case and beyond, died in 2006 at the age of 77. He remained active in Indian affairs throughout his life, becoming one of Indian country’s giants.
Brenda Soulliere, who was working the cage during the Riverside raid, searved as vice chair of the Cabazon for 20 years and is now on the tribe’s business committee. “Being able to continue our economic development has definitely made us a lot more self-sufficient and given us an opportunity to provide jobs for our families and our whole community,” she said. “Over the last 30 years, I’ve learned that we need to keep ourselves educated both legally and politically, because everything we have we’ve had to fight for.”
Although Cabazon initially met much local animosity, Soulliere added, things have changed. “The same Indio police chief who initially raided us loves to come to our restaurant,” she now says with a laugh. “In fact, he now heads up an organization that provides security for our casino and resort.”
And the hard-fought journey of the Cabazon Band remains a precedent.
“The Cabazon decision is probably the most important Indian law decision handed down by the Supreme Court in the 47-year history of the Native American Rights Fund,” said NARF co-founder John Echohawk. “The decision reaffirmed a major principle in federal Indian law: States have no jurisdiction over tribes unless authorized by a treaty or federal law. Indian gaming has become the major driver in Indian economic development.”
The Last Word
Glenn Feldman, who became the tribe’s general counsel as a young attorney in 1979, retains that position. For nearly 40 years he has made the trip to Indio to report at the tribe’s general meetings every month. When asked about the long-term impact of the Cabazon decision, he becomes thoughtful.
“Well, of course, the most direct impact has been the emergence of an industry that pumps $29 billion a year into Indian country that wasn’t there previously,” he told ICMN. “That’s the first thing.
“But that was also during a time when there were champions on the court who understood Indian law and pushed those issues, including Brennan and Marshall. Now you have people who aren’t interested in tribal rights, and in fact want to cut them back.
“But I don’t think there’s any doubt that Cabazon is the highlight of my career. And I’m still doing the same thing. And I’m proud to say that 38 years later, I still represent them as my oldest tribal client.”