CO-04-01 - Coyote Valley Band of Pomo Indians

_______________________________________________________________________ 

DECISION UPON EXPEDITED REVIEW 

_________________________________________________________________________ 

 

Re: CO-04-01

To: Priscilla Hunter, Chairman

Coyote Valley Band of Pomo Indians

P.O. Box 39

7751 North State Street

Redwood Valley, CA 95470

Donald Trimble

General Manager Shodakai Casino

7751 North State Street

Redwood Valley, CA 95470

 Respondents

DECISION

On June 8, 2004, the Coyote Valley Band of Pomo Indians (Respondents) requested 

informal expedited review pursuant to 25 C.F.R. § 573.6(c) of the June 7, 2004, Temporary 

Closure Order (TCO or closure order) issued against the above named Respondents. In the June 

8, 2004, request, Respondents asked that the National Indian Gaming Commission (NIGC) 

Chairman rescind the closure order pending the Secretary of the Interior’s (Secretary) approval 

of the 1999 compact between the Respondent and the State of California, or alternatively, 

pending conclusion of negotiations for a new compact.

Respondents also asked that the closure order be rescinded to allow the Tribe to engage 

in Class II gaming activities.

Background

On February 23, 2004, the Supreme Court denied Respondents petition for writ of certiorari in In 

Re: Indian Gaming Related Cases v. California, 331 F.3d 1094 (9th Cir. 2003). Respondents 

unsuccessfully argued that the State negotiated in bad faith over a Tribal-State gaming compact. 

On March 25, 2004, I informed the Tribe that it was operating Class III gaming devices and table 

games in violation of IGRA and requested that it cease such activity by April 30, 2004. During a 

visit on May 3 and 4, 2004, to Respondents gaming operation, representatives of the NIGC 

observed the operation of Class III gaming devices and Class III table games.

Under IGRA, Class III gaming activities shall be lawful on Indian lands only if such activities 

are conducted in conformance with a Tribal-State compact. Under NIGC regulations, operation 
of Class III games in absence of a tribal- state compact is a substantial violation. At this time, 

Respondents do not have an approved Tribal-State compact.

NOV-04-01 directed the Respondents to cease gaming activities by noon on Monday June 7, 

2004. At noon on Monday June 7, 2004, a representative of the NIGC observed that gaming 

activities were still being conducted. Therefore, I issued CO-04-01 directing the Respondents to 

cease gaming immediately. On June 8, 2004, I was informed that Respondents had ceased 

gaming activities in response to the closure order.

Analysis

Respondents argue that equity supports a lifting of the closure order. Respondents request that 

the closure order be rescinded pending the Secretary’s approval of the 1999 compact between the 

Respondent and the State of California. On June 10, 2004, the Secretary issued a decision 

disapproving the compact. Therefore, this argument is moot.

In the alternative, Respondents request that the closure order be rescinded pending the 

conclusion of negotiations of a new compact. The request cites the decision in United States v. 

Spokane Tribe of Indians, 139 F.3d 1297 (9th Cir. 1998), for the proposition that the NIGC 

cannot take enforcement action against the Tribe while it is negotiating a compact. In Spokane, 

that Tribe claimed that it attempted to negotiate with the state in good faith, but that those 

negotiations failed due to the state’s bad faith. Id. at 1301. The Spokane decision was specific to 

the circumstances of that case. The situation with the Coyote Band is considerably different 

because the 9th Circuit has already decided that the State of California negotiated in good faith, 

and the Tribe has exhausted all of its Federal court remedies. Simply put, the NIGC cannot 

allow Tribes to engage in Class III gaming without an approved compact. The NIGC has 

delayed action for many years now to allow the Tribe to pursue its bad faith action against the 

State of California. Now that the litigation has been taken to its final step the Tribe must now 

comply with IGRA and cease gaming. Furthermore, we understand that compact negotiations 

are not presently scheduled with the State.

Additionally, Respondents argue that the closure order unnecessarily and unlawfully prohibits 

the Tribe from engaging in Class II gaming while it pursues its administrative and/or judicial 

remedies related to Class III gaming activities. Under 25 C.F.R. 

§ 573.6(a)-(b), a temporary closure order may extend to “all or part of an Indian gaming 

operation” and is “effective upon service.” 25 C.F.R. § 573.6(a)-(b); United States v. Seminole 

of Oklahoma, 321 F.3d 939 (10th Cir. 2002). Respondents cite our decision in In the Matter of 

Santee Sioux Tribe of Nebraska, CO-96-01 (Order of June 4, 2001), but, what Respondents fail 

to recognize is that the Commission issued that order only after the Santee Sioux tribe had 

exhausted all of its administrative remedies, appealed the decision to the 8th Circuit Court of 

Appeals, and finally agreed to remove all Class III gaming. The present situation with the Tribe 

is not sufficiently similar to the Santee case to warrant a rescinding of the closure order at this 

time.

Finally, the majority of games at the Shodakai casino are clearly Class III. There were some 

electronic games that we did not take a position on because the NIGC is currently reviewing 
these games to determine if they qualify as Class II. The fact that these games were not listed as 

Class III in NOV-04-01 does not mean that they qualify as Class II.

Conclusion

I therefore reaffirm that closure of the gaming operation is the appropriate remedy in this case 

and decline to rescind the closure order.

Dated: June 10, 2004.

__//s//____________________________

Philip N. Hogen

Chairman

National Indian Gaming Commission
CERTIFICATE OF SERVICE

I certify that the foregoing Decision Upon Expedited Review, In the Matter Of: Coyote Band of 

Pomo Indians: Order of Temporary Closure, CO-04-01, has been sent by facsimile this 10th day 

of June, 2004, to:

Priscilla Hunter, Tribal Chairwoman (and Agent for Service of Process)

Coyote Valley Band of Pomo Indians

P.O. Box 39

7751 N. State Street

Redwood Valley, CA 95470

FAX: (707) 485-1247

Coyote Valley Gaming Commission

FAX: (707) 485 6991

Don Trimble, General Manager

Coyote Valley Shodakai Casino

FAX: (707) 485-0606

Harold Monteau, Esq.

Monteau & Peebles

FAX: (916) 441-2067

Conly J. Schulte, Esq.

Monteau & Peebles

FAX: (402) 333-4761

__//s//__________________________

John R. Hay

Staff Attorney

National Indian Gaming Commission