Existing law makes it a misdemeanor to commit a trespass by engaging in specified acts, including entering any lands for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owners agent, or the person in lawful possession.

This bill would additionally make it a misdemeanor to commit a trespass by entering a gaming facility, as defined, on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the designated agency of the tribal government, as defined. The bill would require the tribe to first obtain a decision from the Tribal Labor Panel established by the tribal labor relations ordinance appended to the tribes tribal-state gaming compact or the tribes secretarial procedures stating that the order of exclusion does not conflict with the rights created by the ordinance or a labor contract applicable to the gaming facility if the order of exclusion prohibits a labor organization or its representative from entering an area of the gaming facility to which it is granted access for the purpose of organizing eligible employees. tribe, if the order of exclusion pertains to a labor organization or its representatives or eligible employees engaged in otherwise lawful labor activity, to first obtain a decision from the Tribal Labor Panel established by the tribal labor relations ordinance stating that the order of exclusion does not conflict with the tribal labor relations ordinance adopted by the tribe or with a labor contract that is subject to the authority of the Tribal Labor Panel and applicable to the gaming facility. The bill would authorize a tribe to enter into an agreement with a law enforcement agency to enforce an order of exclusion, as specified. Because this bill would create a new crime, expand the scope of an existing crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a misdemeanor to commit a trespass by engaging in specified acts, including entering any lands for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owners agent, or the person in lawful possession.

This bill would additionally make it a misdemeanor to commit a trespass by entering a gaming facility, as defined, on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the designated agency of the tribal government, as defined. The bill would require the tribe to first obtain a decision from the Tribal Labor Panel established by the tribal labor relations ordinance appended to the tribes tribal-state gaming compact or the tribes secretarial procedures stating that the order of exclusion does not conflict with the rights created by the ordinance or a labor contract applicable to the gaming facility if the order of exclusion prohibits a labor organization or its representative from entering an area of the gaming facility to which it is granted access for the purpose of organizing eligible employees. The bill would authorize a tribe to enter into an agreement with a law enforcement agency to enforce an order of exclusion, as specified. Because this bill would create a new crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a misdemeanor to commit a trespass by engaging in specified acts, including entering any lands for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owners agent, or the person in lawful possession.

This bill would additionally make it a misdemeanor to commit a trespass by entering a gaming facility, as defined, on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the designated agency of the tribal government, as defined. Because this bill would create a new crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: June 26, 2018

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1160

Author:(Hueso) – As Amended Ver:April 16, 2018

VOTE ONLY

SUMMARY: Makes entering a gaming facility on a federally recognized Indian tribe after receiving an order of exclusion from the tribal government, a misdemeanor offense. Specifically, this bill:

1. States that a person who willfully commits trespass and is guilty of a misdemeanor by entering a gaming facility on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the tribal government.
   
2. Defines “gaming facility” as “a gaming facility defined in each federally recognized Indian tribe’s tribal-state gaming compact.”
   
3. Defines “order of exclusion” as “a written order issued by the designated agency of the tribal government of a federally recognized Indian tribe, prohibiting a person from entering a gaming facility on the tribe’s Indian lands.”
   
4. Permits a federally recognized Indian tribe to enter into an agreement with law enforcement agency for services to enforce an order of exclusion unrelated to the gaming facility.
   
5. States that if the order of exclusion pertains to a labor organization or its representatives or eligible employees engaged in otherwise lawful labor activity, the tribe shall first obtain a decision from the Tribal Labor Panel stating that the order of exclusion does not conflict with the tribe’s labor relations ordinance or labor contract.
   

EXISTING LAW:

1. Provides that a person who commits any of the following acts is guilty of trespass:
   1. Without permission of the landowner, willfully entering any land under cultivation or enclosed by fence, belonging to, or occupied by, another, or willfully entering uncultivated or unenclosed lands where signs forbidding trespass are displayed, an infraction punishable by a $75 fine; and (Pen. Code § 602.8.)
      
   2. Entering land under cultivation or enclosed by a fence belonging to or occupied by another and refusing to leave the lands upon request by the owner; entering and occupying any real property or structure without the consent of the owner or person in lawful possession; entering any land for the purpose of obstructing lawful business or occupation of the owner or person in lawful possession of the land; entering land that has been declared closed to entry; entering private property, whether or not open to the public, after having been informed by a peace officer at the request of the owner, that the property is not open to the particular person, if the person has been convicted of a crime on the property, are all misdemeanor offenses. (Pen. Code § 602.)
      
2. States that intentionally interfering with any lawful business or public agency open to the public, obstructing or intimidating those attempting to carry on business, or their customers, and refusing to leave the premises of the business after being requested to leave by the owner owner’s agent, office manager, supervisor, peace officer acting at the request of the owner, owner’s agent, office manager, or supervisor, is a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to $400, or both. (Pen. Code § 602.1.)
   

FISCAL EFFECT:

COMMENTS:

1. Author’s Statement: According to the author, “Trespassing at Indian gaming facilities is continuous problem that poses a serious threat to public safety. Individuals who have been issued an order of exclusion, have been asked to leave the gaming facility for a variety of reasons including: intoxication, counterfeiting, harassment, theft, and others.

“Tribal governments invest millions in strong security and surveillance protocols to make sure gaming customers, employees and the community at large are safe from bad actors, but these efforts are only effective if law enforcement enforces orders of exclusions issued by tribal governments. Given the current environment, it is critical that tribal governments have the ability to exclude bad actors from their facilities and for their orders to be enforced by law enforcement.

“This bill is a simple law and order measure that will add to the security and enjoyment of casino patrons and employees statewide.”

1. Existing Law Provides Sufficient Protection and Prosecution for Criminal Trespass on Tribal Land: Under Public Law 280 (1953), California has jurisdiction over offenses committed by or against Indians on all Indian lands within the State to the same extent it has jurisdiction over offenses committed elsewhere in the State. Public Law 280 further specifies that the criminal laws of California have the same force and effect within Indian lands as they have elsewhere in the State. In other words, the criminal laws of California extend to Indian lands within the state. (18 U.S.C. § 1162 subd. (a).)
   

Prosecutors and law enforcement may enforce criminal trespasses at Indian gaming facilities to the same extent they can enforce criminal trespass at any business not located on Indian land. For misdemeanor trespass, the penalty can range from up to six months of jail time, a $1,000 fine, probation, and a criminal record. In addition to trespass, a prosecutor may charge a person with any other applicable offense believed to be committed at the gaming facility such as theft or intentionally interfering with a lawful business. If a person commits all the acts that constitute trespass as defined in one of the many Penal Code sections, a state or local law enforcement officer can in fact enforce the provisions of the state law, whether or not the offense occurs on Indian land, and whether or not there is an order of exclusion against the suspected trespasser. There is no valid reason for the creation of a special category of trespass as it is currently illegal pursuant to the Penal Code, which provides adequate protection against this offense.

Indian tribes also have inherent authority to operate tribal law enforcement agencies with the power to enforce tribal criminal law against Indians on their sovereign land and to detain and turn over to state or local authorities non-Indians who commit suspected offenses on reservation. (Cabazon Band of Mission Indians v. Smith (1998) 34 F. Supp. 2d 1195.) Thus, Indian governments seeking to prohibit certain conduct, such as entering a gaming facility while under an order of exclusion, could choose to do so without need for state legislation. For example, entering or remaining on tribal property after being issued a written order of exclusion by the Rincon Tribal Court is trespass under Rincon Band of Luiseño Mission Indian’s Tribal Code section 15.200. (See https://www.rincontribe.org/tribal-law.) In Duro v. Reina, the Supreme Court addressed the authority of tribal law enforcement to detain non-Indians, holding that tribes possess “traditional and undisputed power to exclude persons whom they deem to be undesirable from tribal lands,” and therefore “where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.” (Duro v. Reina (1990) 495 U.S. 676.)

Plainly stated, local, state and tribal law enforcement have the authority to enforce criminal trespass violations. It is a falsehood to suggest that law enforcement officers are prevented from enforcing criminal trespass laws on Indian land because all of California’s criminal laws have applied to Indian country since 1953.

1. This Bill Gives State and Local Law Enforcement Official’s Authorization to Enforce Tribal Orders: State and local law enforcement officers have the authority to enforce public offences. (Pen. Code, § 836.) A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it. (Pen. Code, § 15,16.) Public offenses include felonies, misdemeanors and infractions. (Id.) Violating a tribe’s order of exclusion is not a public offense. As such, law enforcement officers do not have the authority to enforce the orders.

An attorney general opinion answered the question of what action a county sheriff could take to enforce an order of exclusion. As stated in the opinion, “The provisions of [the penal code] may be enforced on the reservation where the terms thereof are independently applicable.” (96 Ops.Cal.Atty.Gen. (1996) 609, available at https://oag.ca.gov/system/files/opinions/pdfs/96-609.pdf) Thus, a county sheriff can enforce misdemeanor trespass, as defined in the penal code, on Indian land. The opinion further explains, “Tribal code provisions and orders, on the other hand, do not constitute the criminal laws of the state and have no force and effect elsewhere within California. Such tribal code provisions and orders are not enforceable by a county sheriff either within or without the reservation.” (Id.)

This bill would give California state and local law enforcement officials the authority to go into an Indian gaming facility, located on sovereign Indian land, to arrest a person and to prosecute that person in a California superior court for misdemeanor trespass—simply because the person violated a tribal order that has does not have any force of law in the State of California.

Tribal orders of exclusion are not federal or state law and there is not a single provision in California law that recognizes an order of exclusion as the law. Notably, orders of exclusion are merely written orders that can be issued by any person, agency, board, committee, commission, or council so designated under tribal law. These orders prohibit individuals from entering a gaming facility on the tribe’s Indian lands. Though this bill requires that the person against whom the order was obtained was provided “reasonable notice” and an “opportunity to be heard,” there is no guarantee that these orders are issued in conformity with California’s standards of due process and fundamental fairness. Indeed, these orders of exclusion could be discriminatorily, arbitrarily, or capriciously issued by the tribe in order to banish certain individuals from the gaming facilities. “The old Roman custom of ostracizing a citizen has not been adopted in the United States.” (People v. Blakeman (1959) 170 Cal. App. 2d 596.) Nothing in state law defines the conduct required before a tribe can issue an order of exclusion. Worse, individuals who receive an order of exclusion have no recourse in state court, or under any provision of state law, to challenge the order. Legitimizing these orders of exclusion by giving them the force of State law, and authorizing California state and local law enforcement officials to enforce them, is not sound public policy.

1. Argument in Support: According to the Federated Indians of Graton Rancheria, “This bill would ensure that there are no legal barriers to county prosecution of persons who knowingly violate lawful tribal exclusion orders from a tribe’s gaming facility.

“Californian’s Indian tribes cooperate greatly with the state by operating under gaming compacts which, among other things, require tribes to maintain programs for exclusion and self-exclusion from their casinos. However, the tribes cannot do more than require a trespasser to leave the premises. Prosecution for trespassing is within the sole authority of the district attorney, and many district attorneys have failed or refused to prosecute trespassers on Indian lands for a variety of reasons. Senate Bill 1160 would add a provision to Section 602 of the Penal Code which would remove any daunt about the authority of the state to prosecute knowing violations of lawful tribal exclusion orders This is an important law and order measure which should add to the security and enjoyment of the patrons and employees of our gaming facilities statewide.”

1. Argument in Opposition: According to Yocah Dehe Wintun Nation, “recent amendments to the legislation would purport to invade our tribal sovereignty not strengthen its exercise.

“Under this bill, individuals who enter tribal lands without tribal consent — and in fact, who do so in the face of an exclusion order from the tribal government – would be subject to arrest and prosecution for misdemeanor trespass. This is meaningful, because one of the more fundamental rights and powers of an Indian tribal government is to control access to, and exclude unwanted persons from, their sovereign lands, including the business enterprises they own and operate.

“In Public Law 280 state, tribes must rely upon local law enforcement to enforce these rights of exclusion, as Yocha Dehe is able to do through its strong working relationship with local law enforcement.

“Fundamentally, sovereign tribes cannot be forced to ask a third party for permission to exercise their sovereign right, to wit, to issue orders to exclude unwanted persons from their own land.

“Yocha Dehe cannot support a process that would purport to diminish its sovereignty beyond that to which it previously agreed by Compact.”

1. Prior Legislation:
   
   1. SB 331 (Romero), of the 2007-08 Legislative Session, would have created an infraction, for any person who willfully enters upon Indian lands after having received written notice forbidding trespassing. SB 331 failed passage in Assembly Appropriations Committee.
      
   2. SB 804 (Hollingsworth), of the 2007-08 Legislative Session, would have created 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. SB 804 was held in the Senate Public Safety Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Nations Indian Gaming Association (Sponsor)

Blue Lake Rancheria

Cachil Dehe Band of Wintin Indians of the Colusa Indian Community

California Tribal Business Alliance

California State Sheriffs Association

Chemehuevi Indian Tribe

Chicken Ranch Rancheria of Me-Wuk Indians of California

Coyote Valley Band of Pomo Indians

Elk Valley Rancheria

Federated Indians of Graton Rancheria

Jamul Indian Village of California

Karuk Tribe

Morongo Band of Mission Indians

Northern California Tribal Chairmen’s Association

Pala Band of Mission Indians

Redding Rancheria

Rincon Band of Luiseño Indians

Robinson Rancheria

San Diego County District Attorney’s Office

San Diego County Sheriff’s Department

Santa Ynez Band of Chumash Indians

Sherwood Valley Band of Pomo Indians

Shingle Springs Band of Miwok Indians

Soboba Band of Luiseño Indians

Southern California Tribal Chairmen’s Association, Inc.

Susanville Indian Rancheria

Sycuan Band of the Kumeyaay Nation

Table Mountain Rancheria

Tolowa Dee-ni’ Nation

Tule River Tribe

Twenty-Nine Palms Band of Mission Indians

Unite Here AFL-CIO

United Nations Pomo Council

Viejas Band of Kumeyaay Indians

Opposition

Barona Band of Mission Indians

Table Mountain Rancheria

Tribal Alliance of Sovereign Indian Nations

Yocha Dehe Wintun Nation

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744

Date of Hearing: June 19, 2018

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1160

Author:(Hueso) – As Amended Ver:April 16, 2018

SUMMARY Makes entering a gaming facility on a federally recognized Indian tribe after receiving an order of exclusion from the tribal government, a misdemeanor offense. Specifically, this bill:

1. States that a person who willfully commits trespass and is guilty of a misdemeanor by entering a gaming facility on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the tribal government.
   
2. Defines “gaming facility” as “a gaming facility defined in each federally recognized Indian tribe’s tribal-state gaming compact.”
   
3. Defines “order of exclusion” as “a written order issued by the designated agency of the tribal government of a federally recognized Indian tribe, prohibiting a person from entering a gaming facility on the tribe’s Indian lands.”
   
4. Permits a federally recognized Indian tribe to enter into an agreement with law enforcement agency for services to enforce an order of exclusion unrelated to the gaming facility.
   
5. States that if the order of exclusion pertains to a labor organization or its representatives or eligible employees engaged in otherwise lawful labor activity, the tribe shall first obtain a decision from the Tribal Labor Panel stating that the order of exclusion does not conflict with the tribe’s labor relations ordinance or labor contract.
   

EXISTING LAW:

1. Provides that a person who commits any of the following acts is guilty of trespass:
   1. Without permission of the landowner, willfully entering any land under cultivation or enclosed by fence, belonging to, or occupied by, another, or willfully entering uncultivated or unenclosed lands where signs forbidding trespass are displayed, an infraction punishable by a $75 fine; and (Pen. Code § 602.8.)
      
   2. Entering land under cultivation or enclosed by a fence belonging to or occupied by another and refusing to leave the lands upon request by the owner; entering and occupying any real property or structure without the consent of the owner or person in lawful possession; entering any land for the purpose of obstructing lawful business or occupation of the owner or person in lawful possession of the land; entering land that has been declared closed to entry; entering private property, whether or not open to the public, after having been informed by a peace officer at the request of the owner, that the property is not open to the particular person, if the person has been convicted of a crime on the property, are all misdemeanor offenses. (Pen. Code § 602.)
      
2. States that intentionally interfering with any lawful business or public agency open to the public, obstructing or intimidating those attempting to carry on business, or their customers, and refusing to leave the premises of the business after being requested to leave by the owner owner’s agent, office manager, supervisor, peace officer acting at the request of the owner, owner’s agent, office manager, or supervisor, is a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to $400, or both. (Pen. Code § 602.1.)
   

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author’s Statement: According to the author, “Trespassing at Indian gaming facilities is continuous problem that poses a serious threat to public safety. Individuals who have been issued an order of exclusion, have been asked to leave the gaming facility for a variety of reasons including: intoxication, counterfeiting, harassment, theft, and others.

“Tribal governments invest millions in strong security and surveillance protocols to make sure gaming customers, employees and the community at large are safe from bad actors, but these efforts are only effective if law enforcement enforces orders of exclusions issued by tribal governments. Given the current environment, it is critical that tribal governments have the ability to exclude bad actors from their facilities and for their orders to be enforced by law enforcement.

“This bill is a simple law and order measure that will add to the security and enjoyment of casino patrons and employees statewide.”

1. Existing Law Provides Sufficient Protection and Prosecution for Criminal Trespass on Tribal Land: Under Public Law 280 (1953), California has jurisdiction over offenses committed by or against Indians on all Indian lands within the State to the same extent it has jurisdiction over offenses committed elsewhere in the State. Public Law 280 further specifies that the criminal laws of California have the same force and effect within Indian lands as they have elsewhere in the State. In other words, the criminal laws of California extend to Indian lands within the state. (18 U.S.C. § 1162 subd. (a).)
   

Prosecutors and law enforcement may enforce criminal trespasses at Indian gaming facilities to the same extent they can enforce criminal trespass at any business not located on Indian land. For misdemeanor trespass, the penalty can range from up to six months of jail time, a $1,000 fine, probation, and a criminal record. In addition to trespass, a prosecutor may charge a person with any other applicable offense believed to be committed at the gaming facility such as theft or intentionally interfering with a lawful business. If a person commits all the acts that constitute trespass as defined in one of the many Penal Code sections, a state or local law enforcement officer can in fact enforce the provisions of the state law, whether or not the offense occurs on Indian land, and whether or not there is an order of exclusion against the suspected trespasser. There is no valid reason for the creation of a special category of trespass as it is currently illegal pursuant to the Penal Code, which provides adequate protection against this offense.

Indian tribes also have inherent authority to operate tribal law enforcement agencies with the power to enforce tribal criminal law against Indians on their sovereign land and to detain and turn over to state or local authorities non-Indians who commit suspected offenses on reservation. (Cabazon Band of Mission Indians v. Smith (1998) 34 F. Supp. 2d 1195.) Thus, Indian governments seeking to prohibit certain conduct, such as entering a gaming facility while under an order of exclusion, could choose to do so without need for state legislation. For example, entering or remaining on tribal property after being issued a written order of exclusion by the Rincon Tribal Court is trespass under Rincon Band of Luiseño Mission Indian’s Tribal Code section 15.200. (See https://www.rincontribe.org/tribal-law.) In Duro v. Reina, the Supreme Court addressed the authority of tribal law enforcement to detain non-Indians, holding that tribes possess “traditional and undisputed power to exclude persons whom they deem to be undesirable from tribal lands,” and therefore “where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.” (Duro v. Reina (1990) 495 U.S. 676.)

Plainly stated, local, state and tribal law enforcement have the authority to enforce criminal trespass violations. It is a falsehood to suggest that law enforcement officers are prevented from enforcing criminal trespass laws on Indian land because all of California’s criminal laws have applied to Indian country since 1953.

1. This Bill Gives State and Local Law Enforcement Official’s Authorization to Enforce Tribal Orders: State and local law enforcement officers have the authority to enforce public offences. (Pen. Code, § 836.) A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it. (Pen. Code, § 15,16.) Public offenses include felonies, misdemeanors and infractions. (Id.) Violating a tribe’s order of exclusion is not a public offense. As such, law enforcement officers do not have the authority to enforce the orders.

An attorney general opinion answered the question of what action a county sheriff could take to enforce an order of exclusion. As stated in the opinion, “The provisions of [the penal code] may be enforced on the reservation where the terms thereof are independently applicable.” (96 Ops.Cal.Atty.Gen. (1996) 609, available at https://oag.ca.gov/system/files/opinions/pdfs/96-609.pdf) Thus, a county sheriff can enforce misdemeanor trespass, as defined in the penal code, on Indian land. The opinion further explains, “Tribal code provisions and orders, on the other hand, do not constitute the criminal laws of the state and have no force and effect elsewhere within California. Such tribal code provisions and orders are not enforceable by a county sheriff either within or without the reservation.” (Id.)

This bill would give California state and local law enforcement officials the authority to go into an Indian gaming facility, located on sovereign Indian land, to arrest a person and to prosecute that person in a California superior court for misdemeanor trespass—simply because the person violated a tribal order that has does not have any force of law in the State of California.

Tribal orders of exclusion are not federal or state law and there is not a single provision in California law that recognizes an order of exclusion as the law. Notably, orders of exclusion are merely written orders that can be issued by any person, agency, board, committee, commission, or council so designated under tribal law. These orders prohibit individuals from entering a gaming facility on the tribe’s Indian lands. Though this bill requires that the person against whom the order was obtained was provided “reasonable notice” and an “opportunity to be heard,” there is no guarantee that these orders are issued in conformity with California’s standards of due process and fundamental fairness. Indeed, these orders of exclusion could be discriminatorily, arbitrarily, or capriciously issued by the tribe in order to banish certain individuals from the gaming facilities. “The old Roman custom of ostracizing a citizen has not been adopted in the United States.” (People v. Blakeman (1959) 170 Cal. App. 2d 596.) Nothing in state law defines the conduct required before a tribe can issue an order of exclusion. Worse, individuals who receive an order of exclusion have no recourse in state court, or under any provision of state law, to challenge the order. Legitimizing these orders of exclusion by giving them the force of State law, and authorizing California state and local law enforcement officials to enforce them, is not sound public policy.

1. Argument in Support: According to the Federated Indians of Graton Rancheria, “This bill would ensure that there are no legal barriers to county prosecution of persons who knowingly violate lawful tribal exclusion orders from a tribe’s gaming facility.

“Californian’s Indian tribes cooperate greatly with the state by operating under gaming compacts which, among other things, require tribes to maintain programs for exclusion and self-exclusion from their casinos. However, the tribes cannot do more than require a trespasser to leave the premises. Prosecution for trespassing is within the sole authority of the district attorney, and many district attorneys have failed or refused to prosecute trespassers on Indian lands for a variety of reasons. Senate Bill 1160 would add a provision to Section 602 of the Penal Code which would remove any daunt about the authority of the state to prosecute knowing violations of lawful tribal exclusion orders This is an important law and order measure which should add to the security and enjoyment of the patrons and employees of our gaming facilities statewide.”

1. Argument in Opposition: According to Yocah Dehe Wintun Nation, “recent amendments to the legislation would purport to invade our tribal sovereignty not strengthen its exercise.

“Under this bill, individuals who enter tribal lands without tribal consent — and in fact, who do so in the face of an exclusion order from the tribal government – would be subject to arrest and prosecution for misdemeanor trespass. This is meaningful, because one of the more fundamental rights and powers of an Indian tribal government is to control access to, and exclude unwanted persons from, their sovereign lands, including the business enterprises they own and operate.

“In Public Law 280 state, tribes must rely upon local law enforcement to enforce these rights of exclusion, as Yocha Dehe is able to do through its strong working relationship with local law enforcement.

“Fundamentally, sovereign tribes cannot be forced to ask a third party for permission to exercise their sovereign right, to wit, to issue orders to exclude unwanted persons from their own land.

“Yocha Dehe cannot support a process that would purport to diminish its sovereignty beyond that to which it previously agreed by Compact.”

1. Prior Legislation:
   
   1. SB 331 (Romero), of the 2007-08 Legislative Session, would have created an infraction, for any person who willfully enters upon Indian lands after having received written notice forbidding trespassing. SB 331 failed passage in Assembly Appropriations Committee.
      
   2. SB 804 (Hollingsworth), of the 2007-08 Legislative Session, would have created 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. SB 804 was held in the Senate Public Safety Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Nations Indian Gaming Association (Sponsor)

Blue Lake Rancheria

Cachil Dehe Band of Wintin Indians of the Colusa Indian Community

California Tribal Business Alliance

California State Sheriffs Association

Chemehuevi Indian Tribe

Chicken Ranch Rancheria of Me-Wuk Indians of California

Coyote Valley Band of Pomo Indians

Elk Valley Rancheria

Federated Indians of Graton Rancheria

Jamul Indian Village of California

Karuk Tribe

Morongo Band of Mission Indians

National California Tribal Charmen’s Association

Pala Band of Mission Indians

Redding Rancheria

Rincon Band of Luiseño Indians

Robinson Rancheria

San Diego County District Attorney’s Office

San Diego County Sheriff’s Department

Santa Ynez Band of Chumash Indians

Sherwood Valley Band of Pomo Indians

Shingle Springs Band of Miwok Indians

Soboba Band of Luiseño Indians

Southern California Tribal Chairmen’s Association, Inc.

Susanville Indian Rancheria

Sycuan Band of the Kumeyaay Nation

Table Mountain Rancheria

Tolowa Dee-ni’ Nation

Tule River Tribe

Twenty-Nine Palms Band of Mission Indians

Unite Here AFL-CIO

United Nations Pomo Council

Viejas Band of Kumeyaay Indians

Opposition

Barona Band of Mission Indians

Yocha Dehe Wintun Nation

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744

Date of Hearing: June 12, 2018

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1160

Author:(Hueso) – As Amended Ver:April 16, 2018

SUMMARY: Makes entering a gaming facility on a federally recognized Indian tribe after receiving an order of exclusion from the tribal government, a misdemeanor offense. Specifically, this bill:

1. States that a person who willfully commits trespass and is guilty of a misdemeanor by entering a gaming facility on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the tribal government.
   
2. Defines “gaming facility” as “a gaming facility defined in each federally recognized Indian tribe’s tribal-state gaming compact.”
   
3. Defines “order of exclusion” as “a written order issued by the designated agency of the tribal government of a federally recognized Indian tribe, prohibiting a person from entering a gaming facility on the tribe’s Indian lands.”
   
4. Permits a federally recognized Indian tribe to enter into an agreement with law enforcement agency for services to enforce an order of exclusion unrelated to the gaming facility.
   
5. States that if the order of exclusion pertains to a labor organization or its representatives or eligible employees engaged in otherwise lawful labor activity, the tribe shall first obtain a decision from the Tribal Labor Panel stating that the order of exclusion does not conflict with the tribe’s labor relations ordinance or labor contract.
   

EXISTING LAW:

1. Provides that a person who commits any of the following acts is guilty of trespass:
   1. Without permission of the landowner, willfully entering any land under cultivation or enclosed by fence, belonging to, or occupied by, another, or willfully entering uncultivated or unenclosed lands where signs forbidding trespass are displayed, an infraction punishable by a $75 fine; and (Pen. Code § 602.8.)
      
   2. Entering land under cultivation or enclosed by a fence belonging to or occupied by another and refusing to leave the lands upon request by the owner; entering and occupying any real property or structure without the consent of the owner or person in lawful possession; entering any land for the purpose of obstructing lawful business or occupation of the owner or person in lawful possession of the land; entering land that has been declared closed to entry; entering private property, whether or not open to the public, after having been informed by a peace officer at the request of the owner, that the property is not open to the particular person, if the person has been convicted of a crime on the property, are all misdemeanor offenses. (Pen. Code § 602.)
      
2. States that intentionally interfering with any lawful business or public agency open to the public, obstructing or intimidating those attempting to carry on business, or their customers, and refusing to leave the premises of the business after being requested to leave by the owner owner’s agent, office manager, supervisor, peace officer acting at the request of the owner, owner’s agent, office manager, or supervisor, is a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to $400, or both. (Pen. Code § 602.1.)
   

FISCAL EFFECT:

COMMENTS:

1. Author’s Statement: According to the author, “Trespassing at Indian gaming facilities is continuous problem that poses a serious threat to public safety. Individuals who have been issued an order of exclusion, have been asked to leave the gaming facility for a variety of reasons including: intoxication, counterfeiting, harassment, theft, and others.

“Tribal governments invest millions in strong security and surveillance protocols to make sure gaming customers, employees and the community at large are safe from bad actors, but these efforts are only effective if law enforcement enforces orders of exclusions issued by tribal governments. Given the current environment, it is critical that tribal governments have the ability to exclude bad actors from their facilities and for their orders to be enforced by law enforcement.

“This bill is a simple law and order measure that will add to the security and enjoyment of casino patrons and employees statewide.”

1. Existing Law Provides Sufficient Protection and Prosecution for Criminal Trespass on Tribal Land: Under Public Law 280 (1953), California has jurisdiction over offenses committed by or against Indians on all Indian lands within the State to the same extent it has jurisdiction over offenses committed elsewhere in the State. Public Law 280 further specifies that the criminal laws of California have the same force and effect within Indian lands as they have elsewhere in the State. In other words, the criminal laws of California extend to Indian lands within the state. (18 U.S.C. § 1162 subd. (a).)
   

Prosecutors and law enforcement may enforce criminal trespasses at Indian gaming facilities to the same extent they can enforce criminal trespass at any business not located on Indian land. For misdemeanor trespass, the penalty can range from up to six months of jail time, a $1,000 fine, probation, and a criminal record. In addition to trespass, a prosecutor may charge a person with any other applicable offense believed to be committed at the gaming facility such as theft or intentionally interfering with a lawful business. If a person commits all the acts that constitute trespass as defined in one of the many Penal Code sections, a state or local law enforcement officer can in fact enforce the provisions of the state law, whether or not the offense occurs on Indian land, and whether or not there is an order of exclusion against the suspected trespasser. There is no valid reason for the creation of a special category of trespass as it is currently illegal pursuant to the Penal Code, which provides adequate protection against this offense.

Indian tribes also have inherent authority to operate tribal law enforcement agencies with the power to enforce tribal criminal law against Indians on their sovereign land and to detain and turn over to state or local authorities non-Indians who commit suspected offenses on reservation. (Cabazon Band of Mission Indians v. Smith (1998) 34 F. Supp. 2d 1195.) Thus, Indian governments seeking to prohibit certain conduct, such as entering a gaming facility while under an order of exclusion, could choose to do so without need for state legislation. For example, entering or remaining on tribal property after being issued a written order of exclusion by the Rincon Tribal Court is trespass under Rincon Band of Luiseño Mission Indian’s Tribal Code section 15.200. (See https://www.rincontribe.org/tribal-law.) In Duro v. Reina, the Supreme Court addressed the authority of tribal law enforcement to detain non-Indians, holding that tribes possess “traditional and undisputed power to exclude persons whom they deem to be undesirable from tribal lands,” and therefore “where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.” (Duro v. Reina (1990) 495 U.S. 676.)

Plainly stated, local, state and tribal law enforcement have the authority to enforce criminal trespass violations. It is a falsehood to suggest that law enforcement officers are prevented from enforcing criminal trespass laws on Indian land because all of California’s criminal laws have applied to Indian country since 1953.

1. This Bill Gives State and Local Law Enforcement Official’s Authorization to Enforce Tribal Orders: State and local law enforcement officers have the authority to enforce public offences. (Pen. Code, § 836.) A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it. (Pen. Code, § 15,16.) Public offenses include felonies, misdemeanors and infractions. (Id.) Violating a tribe’s order of exclusion is not a public offense. As such, law enforcement officers do not have the authority to enforce the orders.

An attorney general opinion answered the question of what action a county sheriff could take to enforce an order of exclusion. As stated in the opinion, “The provisions of [the penal code] may be enforced on the reservation where the terms thereof are independently applicable.” (96 Ops.Cal.Atty.Gen. (1996) 609, available at https://oag.ca.gov/system/files/opinions/pdfs/96-609.pdf) Thus, a county sheriff can enforce misdemeanor trespass, as defined in the penal code, on Indian land. The opinion further explains, “Tribal code provisions and orders, on the other hand, do not constitute the criminal laws of the state and have no force and effect elsewhere within California. Such tribal code provisions and orders are not enforceable by a county sheriff either within or without the reservation.” (Id.)

This bill would give California state and local law enforcement officials the authority to go into an Indian gaming facility, located on sovereign Indian land, to arrest a person and to prosecute that person in a California superior court for misdemeanor trespass—simply because the person violated a tribal order that has does not have any force of law in the State of California.

Tribal orders of exclusion are not federal or state law and there is not a single provision in California law that recognizes an order of exclusion as the law. Notably, orders of exclusion are merely written orders that can be issued by any person, agency, board, committee, commission, or council so designated under tribal law. These orders prohibit individuals from entering a gaming facility on the tribe’s Indian lands. Though this bill requires that the person against whom the order was obtained was provided “reasonable notice” and an “opportunity to be heard,” there is no guarantee that these orders are issued in conformity with California’s standards of due process and fundamental fairness. Indeed, these orders of exclusion could be discriminatorily, arbitrarily, or capriciously issued by the tribe in order to banish certain individuals from the gaming facilities. “The old Roman custom of ostracizing a citizen has not been adopted in the United States.” (People v. Blakeman (1959) 170 Cal. App. 2d 596.) Nothing in state law defines the conduct required before a tribe can issue an order of exclusion. Worse, individuals who receive an order of exclusion have no recourse in state court, or under any provision of state law, to challenge the order. Legitimizing these orders of exclusion by giving them the force of State law, and authorizing California state and local law enforcement officials to enforce them, is not sound public policy.

1. Argument in Support: According to the Federated Indians of Graton Rancheria, “This bill would ensure that there are no legal barriers to county prosecution of persons who knowingly violate lawful tribal exclusion orders from a tribe’s gaming facility.

“Californian’s Indian tribes cooperate greatly with the state by operating under gaming compacts which, among other things, require tribes to maintain programs for exclusion and self-exclusion from their casinos. However, the tribes cannot do more than require a trespasser to leave the premises. Prosecution for trespassing is within the sole authority of the district attorney, and many district attorneys have failed or refused to prosecute trespassers on Indian lands for a variety of reasons. Senate Bill 1160 would add a provision to Section 602 of the Penal Code which would remove any daunt about the authority of the state to prosecute knowing violations of lawful tribal exclusion orders This is an important law and order measure which should add to the security and enjoyment of the patrons and employees of our gaming facilities statewide.”

1. Argument in Opposition: According to Yocah Dehe Wintun Nation, “recent amendments to the legislation would purport to invade our tribal sovereignty not strengthen its exercise.

“Under this bill, individuals who enter tribal lands without tribal consent — and in fact, who do so in the face of an exclusion order from the tribal government – would be subject to arrest and prosecution for misdemeanor trespass. This is meaningful, because one of the more fundamental rights and powers of an Indian tribal government is to control access to, and exclude unwanted persons from, their sovereign lands, including the business enterprises they own and operate.

“In Public Law 280 state, tribes must rely upon local law enforcement to enforce these rights of exclusion, as Yocha Dehe is able to do through its strong working relationship with local law enforcement.

“Fundamentally, sovereign tribes cannot be forced to ask a third party for permission to exercise their sovereign right, to wit, to issue orders to exclude unwanted persons from their own land.

“Yocha Dehe cannot support a process that would purport to diminish its sovereignty beyond that to which it previously agreed by Compact.”

1. Prior Legislation:
   
   1. SB 331 (Romero), of the 2007-08 Legislative Session, would have created an infraction, for any person who willfully enters upon Indian lands after having received written notice forbidding trespassing. SB 331 failed passage in Assembly Appropriations Committee.
      
   2. SB 804 (Hollingsworth), of the 2007-08 Legislative Session, would have created 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. SB 804 was held in the Senate Public Safety Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Nations Indian Gaming Association (Sponsor)

Blue Lake Rancheria

Cachil Dehe Band of Wintin Indians of the Colusa Indian Community

California Tribal Business Alliance

California State Sheriffs Association

Chemehuevi Indian Tribe

Chicken Ranch Rancheria of Me-Wuk Indians of California

Coyote Valley Band of Pomo Indians

Elk Valley Rancheria

Federated Indians of Graton Rancheria

Jamul Indian Village of California

Karuk Tribe

Morongo Band of Mission Indians

National California Tribal Charmen’s Association

Pala Band of Mission Indians

Redding Rancheria

Rincon Band of Luiseño Indians

Robinson Rancheria

San Diego County District Attorney’s Office

San Diego County Sheriff’s Department

Santa Ynez Band of Chumash Indians

Sherwood Valley Band of Pomo Indians

Shingle Springs Band of Miwok Indians

Soboba Band of Luiseño Indians

Southern California Tribal Chairmen’s Association, Inc.

Susanville Indian Rancheria

Sycuan Band of the Kumeyaay Nation

Table Mountain Rancheria

Tolowa Dee-ni’ Nation

Tule River Tribe

Twenty-Nine Palms Band of Mission Indians

Unite Here AFL-CIO

United Nations Pomo Council

Opposition

Barona Band of Mission Indians

Yocha Dehe Wintun Nation

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 1160

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/24/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: Author

DIGEST:

This bill codifies existing case law which states that it a misdemeanor to commit a trespass by entering a gaming facility on tribal lands of a federally recognized tribe after receiving an order of exclusion from the designated agency of the tribal government.

ANALYSIS:

Existing law:

1. Includes numerous provisions defining various forms of trespass and applicable penalties. Crime definitions and penalties typically turn on whether any damage has been done to property and whether the trespasser refuses a valid request to leave the land. (Pen. Code § 602-607.)
2. Provides that any person is guilty of a misdemeanor, punishable by a county jail term of up to 6 months, a fine of up to $1000 or both, who enters any other person's cultivated or fenced land, or who enters uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along exterior boundaries and at all roads and trails entering the lands without written permission, and does any of the following:
   1. Refuses or fails to leave immediately upon being requested to do so by the owner, owner's agent or by the person in lawful possession;
   2. Tears down, mutilates, or destroys any sign or notice forbidding trespass or hunting;
   3. Removes or tampers with any lock on any gate on or leading into the lands; or
   4. Discharges a firearm. (Pen. Code § 602, subd. (k).)
3. Provides, generally, that a person commits one form of trespass to cultivated, fenced or posted land, where he or she, without the written permission of the landowner, the owner's agent or of the person in lawful possession of the land:
   1. Willfully enters any lands under cultivation or enclosed by fence, belonging to, or occupied by another person; or,
   2. 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. (Pen. Code § 602.8, subd. (a).)
4. Provides that trespassing – in circumstances other than where the person refuses a valid order to leave the premises, destroys a no-trespassing or no-hunting sign, tampers with any lock, or discharges a firearm – is an infraction or a misdemeanor, as follows:
   1. First offense is an infraction, punishable by a fine of $75. (Pen. Code § 602.8, subd. (b)(1).)
   2. Second offense on any contiguous land of the same owner is an infraction, punishable by a fine of $250. (Pen. Code § 602.8, subd. (b)(2).)
   3. A third or subsequent offense on any contiguous land of the same owner is a misdemeanor punishable by imprisonment in the county jail not exceeding 6 months; by fine not exceed $1000; or both. (Pen. Code § 602.8, subd. (b)(3).)
5. Includes the following exceptions to the trespassing law in Section 602.8:
   1. A person who is conducting lawful union activities;
   2. A person who is on the premises and engaging in activities protected by the California or United States Constitution;
   3. A person making lawful service of process; and,
   4. An appropriately licensed person engaged in land surveying.

This bill:

1. Creates a separate category of trespass in the Penal Code that specifies one may not enter a gaming facility on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the designated agency of the tribal government.
   
2. Defines “designated agency of the tribal government” as a person, agency, board, committee, commission, or council designated under tribal law, including, but not limited to, an intertribal gaming regulatory agency that is approved to fulfill the functions of the National Indian Gaming Commission, that is primarily responsible for carrying out the federally recognized Indian tribe’s regulatory responsibilities under the federal Indian Gaming Regulatory Act of 1988 (18 U.S.C. Sec. 1166 et seq. and 25 U.S.C. Sec. 2701 et seq.) and the federally recognized Indian tribe’s tribal gaming ordinance.
   
3. Defines “federally recognized Indian tribe” as an Indian tribe as defined in the Federally Recognized Indian Tribe List Act of 1994 (Public Law 103-454).
   
4. Defines “gaming facility” as it is defined in each tribal-state compact.
   
5. Defines “Indian lands” as lands as defined in Section 1151 of Title 18 of the United States Code.
   
6. Defines “order of exclusion” as a written order issued by the designated agency of the tribal government of a federally recognized Indian tribe prohibiting a person from entering a gaming facility on the tribe’s Indian lands, if the person against whom the order was obtained was provided reasonable notice and an opportunity to be heard sufficient to protect his or her right to due process.
   
7. Provides that if the order of exclusion pertains to a labor organization or its representatives or eligible employees engaged in otherwise lawful labor activity, the tribe shall first obtain a decision from the Tribal Labor Panel established by the tribal labor relations ordinance stating that the order of exclusion does not conflict with the tribal labor relations ordinance adopted by the tribe or with a labor contract that is subject to the authority of the Tribal Labor Panel and applicable gaming facility.

Background

Federal law provides that California has jurisdiction over crimes committed on

tribal lands. Title 18 U. S. C. § 1151 defines the term "Indian country" to include,

inter alia, "all lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any

patent . . . "

Title 18 U. S. C. § 1162(a) further provides that, with respect to tribal lands within

California, that State "shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country . . . to the same extent that such State . . . has jurisdiction over offenses committed elsewhere within the state and criminal laws of such State . . . shall have the sameforce and effect within such Indian country as they have elsewhere within the State. . ."

Though tribes are often referred to as "sovereign" entities, it was "long ago" that

"the Court 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." (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.

Thus, local, state and tribal law enforcement have the authority to enforce criminal trespass violations. To insinuate that law enforcement officers do not understand how to apply and enforce criminal trespass laws is an insult since all of California's criminal laws have applied to "Indian country" for over 50 years.

At present, the Penal Code provides protection from those who trespass upon tribal lands. As stated above, California laws have full force and effect. Thus, Penal Code Sections 602(l), 602(m), 602(o) and 602.8 allow for misdemeanor prosecution or an infraction against those who trespass upon Indian lands. Penal Code Sections 602(l), 602(m), and 602(o) are punishable by imprisonment in the county jail not exceeding six months; by a fine not exceeding $1,000; or both imprisonment and a fine for a first-time offense. In addition thereto, Penal Code Section 602.8, also, creates an infraction for those who trespass.

Given that there are existing Penal Code provisions which provide equivalent and or greater protection from trespass upon tribal lands, is there a need for an additional criminal statute for Indian lands?

Proponents for this legislation have argued that while many sheriffs within the State of California do recognize their own authority to enforce trespass laws on tribal lands, there are sheriffs within the state who do not enforce these orders and thus the existing case law is needed in the Penal Code.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/7/18)

Barona Band of Mission Indians

Blue Lake Rancheria

Cachil Dehe Band of Wintun Indians of the Colusa Indian Community

California Tribal Business Alliance

Chemehuevi Indian Tribe

Elk Valley Rancheria

Federated Indians of Graton Rancheria

Jamul Indian Village of California

Karuk Tribe

Morongo Band of Mission Indians

Pala Band of Mission Indians

Redding Rancheria

Rincon Band of Luiseno Indians

Robinson Rancheria

San Diego District Attorney

Santa Ynez Band of Chumash Indians

Sherwood Valley Band of Pomo Indians

Shingle Springs Band of Miwok Indians

Soboba Band of Luiseno Indians

Southern California Tribal Chairmen’s Association

Susanville Indian Rancheria

Sycuan Band of the Kumeyaay Nation

Tolowa Dee-ni’ Nation

Tule River Tribe

OPPOSITION: (Verified 5/7/18)

Yocha Dede Wintun Nation

Prepared by:

5/9/18 16:22:37

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 1160 Hearing Date: April 24, 2018

Subject: Trespass: Gaming Facility on Tribal Lands

HISTORY

Source: California Nations Indian Gaming Association (CNIGA)

Prior Legislation: SB 331 (Romero), 2007, died Assembly Appropriations Committee

Support: Barona Band of Mission Indians; Blue Lake Rancheria; Cachil Dehe Band of Wintun Indians of the Colusa Indian Community; California Tribal Business Alliance; Chemehuevi Indian Tribe; Elk Valley Rancheria; Federated Indians of Graton Rancheria; Jamul Indian Village of California; Karuk Tribe; Morongo Band of Mission Indians; Pala Band of Mission Indians; Redding Rancheria; Rincon Band of Luiseno Indians; Robinson Rancheria; San Diego District Attorney; Santa Ynez Band of Chumash Indians; Sherwood Valley Band of Pomo Indians; Shingle Springs Band of Miwok Indians; Soboba Band of Luiseno Indians; Southern California Tribal Chairmen’s Association; Susanville Indian Rancheria; Sycuan Band of the Kumeyaay Nation; Tolowa Dee-ni’ Nation; Tule River Tribe

Opposition: None known

PURPOSE

The purpose of this bill is to codify existing case law which states that it a misdemeanor to commit a trespass by entering a gaming facility on tribal lands of a federally recognized tribe after receiving an order of exclusion from the designated agency of the tribal government.

Existing law includes numerous provisions defining various forms of trespass and applicable penalties. Crime definitions and penalties typically turn on whether any damage has been done to property and whether the trespasser refuses a valid request to leave the land. (Pen. Code § 602-607.)

Existing law provides that any person is guilty of a misdemeanor, punishable by a county jail term of up to 6 months, a fine of up to $1000 or both, who enters any other person's cultivated or fenced land, or who enters uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along exterior boundaries and at all roads and trails entering the lands without written permission, and does any of the following:

• Refuses or fails to leave immediately upon being requested to do so by the owner, owner's agent or by the person in lawful possession;
• Tears down, mutilates, or destroys any sign or notice forbidding trespass or hunting;
• Removes or tampers with any lock on any gate on or leading into the lands; or
• Discharges a firearm. (Pen. Code § 602, subd. (k).)

Existing law generally provides that a person commits one form of trespass to cultivated, fenced or posted land, where he or she, without the written permission of the landowner, the owner's agent or of the person in lawful possession of the land:

• Willfully enters 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. (Pen. Code § 602.8, subd. (a).)

Existing law provides that trespassing – in circumstances other than where the person refuses a valid order to leave the premises, destroys a no-trespassing or no-hunting sign, tampers with any lock, or discharges a firearm – is an infraction or a misdemeanor, as follows:

• First offense is an infraction, punishable by a fine of $75. (Pen. Code § 602.8, subd. (b)(1).)
• Second offense on any contiguous land of the same owner is an infraction, punishable by a fine of $250. (Pen. Code § 602.8, subd. (b)(2).)
• A third or subsequent offense on any contiguous land of the same owner is a misdemeanor punishable by imprisonment in the county jail not exceeding 6 months; by fine not exceed $1000; or both. (Pen. Code § 602.8, subd. (b)(3).)

Existing law includes the following exceptions to the trespassing law in Section 602.8:

• A person who is conducting lawful union activities;
• A person who is on the premises and engaging in activities protected by the California or United States Constitution;
• A person making lawful service of process; and,
• An appropriately licensed person engaged in land surveying.

This bill creates a separate category of trespass in the Penal Code that specifies one may not enter a gaming facility on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the designated agency of the tribal government.

This bill defines “designated agency of the tribal government” as a person, agency, board, committee, commission, or council designated under tribal law, including, but not limited to, an intertribal gaming regulatory agency that is approved to fulfill the functions of the National Indian Gaming Commission, that is primarily responsible for carrying out the federally recognized Indian tribe’s regulatory responsibilities under the federal Indian Gaming Regulatory Act of 1988 (18 U.S.C. Sec. 1166 et seq. and 25 U.S.C. Sec. 2701 et seq.) and the federally recognized Indian tribe’s tribal gaming ordinance.

This bill defines “federally recognized Indian tribe” as an Indian tribe as defined in the Federally Recognized Indian Tribe List Act of 1994 (Public Law 103-454).

This bill defines “gaming facility” as it is defined in each tribal-state compact.

This bill defines “Indian lands” as lands as defined in Section 1151 of Title 18 of the United States Code.

This bill defines “order of exclusion” as a written order issued by the designated agency of the tribal government of a federally recognized Indian tribe prohibiting a person from entering a gaming facility on the tribe’s Indian lands, if the person against whom the order was obtained was provided reasonable notice and an opportunity to be heard sufficient to protect his or her right to due process.

This bill provides that if the order of exclusion pertains to a labor organization or its representatives or eligible employees engaged in otherwise lawful labor activity, the tribe shall first obtain a decision from the Tribal Labor Panel established by the tribal labor relations ordinance stating that the order of exclusion does not conflict with the tribal labor relations ordinance adopted by the tribe or with a labor contract that is subject to the authority of the Tribal Labor Panel and applicable gaming facility.

COMMENTS

1. Need for This Bill

According to the author:

This bill would amend section 602 of the Penal Code and make it a misdemeanor to commit trespass by entering a gaming facility, as defined, on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the designated agency of the tribal government, as defined.

2. California Has Jurisdiction over Criminal Trespasses Committed on Tribal Lands

Federal law provides that California has jurisdiction over crimes committed on tribal lands. Title

18 U. S. C. § 1151 defines the term "Indian country" to include, inter alia, "all lands within the

limits of any Indian reservation under the jurisdiction of the United States Government,

notwithstanding the issuance of any patent . . . "

Title 18 U. S. C. § 1162(a) further provides that, with respect to tribal lands within California,

that State "shall have jurisdiction over offenses committed by or against Indians in the areas of

Indian country . . . to the same extent that such State . . . has jurisdiction over offenses committed

elsewhere within the State . . . , and the criminal laws of such State . . . shall have the same force

and effect within such Indian country as they have elsewhere within the State . . ."

Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court 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." (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.

Thus, local, state and tribal law enforcement have the authority to enforce criminal trespass violations. To insinuate that law enforcement officers do not understand how to apply and enforce criminal trespass laws is an insult since all of California's criminal laws have applied to "Indian country" for over 50 years.

3. Do Current Criminal Trespass Laws Provide Adequate Protection?

At present, the Penal Code provides protection from those who trespass upon tribal lands. As stated above, California laws have full force and effect. Thus, Penal Code Sections 602(l), 602(m), 602(o) and 602.8 allow for misdemeanor prosecution or an infraction against those who trespass upon Indian lands. Penal Code Sections 602(l), 602(m), and 602(o) are punishable by imprisonment in the county jail not exceeding six months; by a fine not exceeding $1,000; or both imprisonment and a fine for a first-time offense. In addition thereto, Penal Code Section 602.8, also, creates an infraction for those who trespass.

Given that there are existing Penal Code provisions which provide equivalent and or greater protection from trespass upon tribal lands, is there a need for an additional criminal statute for Indian lands?

Proponents for this legislation have argued that while many sheriffs within the State of California do recognize their own authority to enforce trespass laws on tribal lands, there are sheriffs within the state who do not enforce these orders and thus the existing case law is needed in the Penal Code.

4. Argument in Support

According to the California Nations Indian Gaming Association:

It is critical that tribal governments have the ability to exclude individuals from their facilities and for that exclusion to be enforceable by local law enforcement. Tribal governments invest millions in strong security and surveillance protocols, however these protocols only work if they are enforceable. In order to close the jurisdictional loophole created by PL 280, an amendment to the penal code, recognizing the exclusion order from a federally recognized tribal government, is needed.

-- END –

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 1160 Hearing Date: April 10, 2018

Subject: Trespass: Gaming Facility on Tribal Lands

HISTORY

Source: California Nations Indian Gaming Association (CNIGA)

Prior Legislation: SB 331 (Romero), 2007, died Assembly Appropriations Committee

Support: Barona Band of Mission Indians; Blue Lake Rancheria; Cachil Dehe Band of Wintun Indians of the Colusa Indian Community; California Tribal Business Alliance; Chemehuevi Indian Tribe; Elk Valley Rancheria; Federated Indians of Graton Rancheria; Jamul Indian Village of California; Karuk Tribe; Morongo Band of Mission Indians; Pala Band of Mission Indians; Redding Rancheria; Rincon Band of Luiseno Indians; Robinson Rancheria; San Diego District Attorney; Santa Ynez Band of Chumash Indians; Sherwood Valley Band of Pomo Indians; Shingle Springs Band of Miwok Indians; Soboba Band of Luiseno Indians; Southern California Tribal Chairmen’s Association; Susanville Indian Rancheria; Sycuan Band of the Kumeyaay Nation; Tolowa Dee-ni’ Nation; Tule River Tribe

Opposition: None known

PURPOSE

The purpose of this bill is to codify existing case law which states that it a misdemeanor to commit a trespass by entering a gaming facility on tribal lands of a federally recognized tribe after receiving an order of exclusion from the designated agency of the tribal government.

Existing law includes numerous provisions defining various forms of trespass and applicable penalties. Crime definitions and penalties typically turn on whether any damage has been done to property and whether the trespasser refuses a valid request to leave the land. (Pen. Code § 602-607.)

Existing law provides that any person is guilty of a misdemeanor, punishable by a county jail term of up to 6 months, a fine of up to $1000 or both, who enters any other person's cultivated or fenced land, or who enters uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along exterior boundaries and at all roads and trails entering the lands without written permission, and does any of the following:

• Refuses or fails to leave immediately upon being requested to do so by the owner, owner's agent or by the person in lawful possession;
• Tears down, mutilates, or destroys any sign or notice forbidding trespass or hunting;
• Removes or tampers with any lock on any gate on or leading into the lands; or
• Discharges a firearm. (Pen. Code § 602, subd. (k).)

Existing law generally provides that a person commits one form of trespass to cultivated, fenced or posted land, where he or she, without the written permission of the landowner, the owner's agent or of the person in lawful possession of the land:

• Willfully enters 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. (Pen. Code § 602.8, subd. (a).)

Existing law provides that trespassing – in circumstances other than where the person refuses a valid order to leave the premises, destroys a no-trespassing or no-hunting sign, tampers with any lock, or discharges a firearm – is an infraction or a misdemeanor, as follows:

• First offense is an infraction, punishable by a fine of $75. (Pen. Code § 602.8, subd. (b)(1).)
• Second offense on any contiguous land of the same owner is an infraction, punishable by a fine of $250. (Pen. Code § 602.8, subd. (b)(2).)
• A third or subsequent offense on any contiguous land of the same owner is a misdemeanor punishable by imprisonment in the county jail not exceeding 6 months; by fine not exceed $1000; or both. (Pen. Code § 602.8, subd. (b)(3).)

Existing law includes the following exceptions to the trespassing law in Section 602.8:

• A person who is conducting lawful union activities;
• A person who is on the premises and engaging in activities protected by the California or United States Constitution;
• A person making lawful service of process; and,
• An appropriately licensed person engaged in land surveying.

This bill creates a separate category of trespass in the Penal Code that specifies one may not enter a gaming facility on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the designated agency of the tribal government.

This bill defines “designated agency of the tribal government” as a person, agency, board, committee, commission, or council designated under tribal law, including, but not limited to, an intertribal gaming regulatory agency that is approved to fulfill the functions of the National Indian Gaming Commission, that is primarily responsible for carrying out the federally recognized Indian tribe’s regulatory responsibilities under the federal Indian Gaming Regulatory Act of 1988 (18 U.S.C. Sec. 1166 et seq. and 25 U.S.C. Sec. 2701 et seq.) and the federally recognized Indian tribe’s tribal gaming ordinance.

This bill defines “federally recognized Indian tribe” as an Indian tribe as defined in the Federally Recognized Indian Tribe List Act of 1994 (Public Law 103-454).

This bill defines “gaming facility” as any building in which gaming activities or any gaming operations occur, or in which business records, receipts, or funds of the gaming operation are maintained, excluding offsite facilities primarily dedicated to storage of those records and financial institutions, and all rooms, buildings, and areas, including hotels, parking lots, and walkways that serve the activities of the gaming facility rather than providing them an incidental benefit.

This bill defines “Indian lands” as lands as defined in Section 1151 of Title 18 of the United States Code.

This bill defines “order of exclusion” as a written order issued by the designated agency of the tribal government of a federally recognized Indian tribe prohibiting a person from entering a gaming facility on the tribe’s Indian lands, if the person against whom the order was obtained was provided reasonable notice and an opportunity to be heard sufficient to protect his or her right to due process.

This bill provides that the Tribal Labor Panel may render a decision that the order of exclusion does not conflict with the rights created by the ordinance or a labor contract applicable to the gaming facility, if the order of exclusion prohibits a labor organization or its representative from entering an area of the gaming facility to which it is granted access by the ordinance for the purpose of organizing eligible employees.

COMMENTS

1. Need for This Bill

According to the author:

This bill would amend section 602 of the Penal Code and make it a misdemeanor to commit trespass by entering a gaming facility, as defined, on the Indian lands of a federally recognized Indian tribe after receiving an order of exclusion from the designated agency of the tribal government, as defined.

2. California Has Jurisdiction over Criminal Trespasses Committed on Tribal Lands

Federal law provides that California has jurisdiction over crimes committed on tribal lands. Title

18 U. S. C. § 1151 defines the term "Indian country" to include, inter alia, "all lands within the

limits of any Indian reservation under the jurisdiction of the United States Government,

notwithstanding the issuance of any patent . . . "

Title 18 U. S. C. § 1162(a) further provides that, with respect to tribal lands within California,

that State "shall have jurisdiction over offenses committed by or against Indians in the areas of

Indian country . . . to the same extent that such State . . . has jurisdiction over offenses committed

elsewhere within the State . . . , and the criminal laws of such State . . . shall have the same force

and effect within such Indian country as they have elsewhere within the State . . ."

Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court 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." (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.

Thus, local, state and tribal law enforcement have the authority to enforce criminal trespass violations. To insinuate that law enforcement officers do not understand how to apply and enforce criminal trespass laws is an insult since all of California's criminal laws have applied to "Indian country" for over 50 years.

3. Do Current Criminal Trespass Laws Provide Adequate Protection?

At present, the Penal Code provides protection from those who trespass upon tribal lands. As stated above, California laws have full force and effect. Thus, Penal Code Sections 602(l), 602(m), 602(o) and 602.8 allow for misdemeanor prosecution or an infraction against those who trespass upon Indian lands. Penal Code Sections 602(l), 602(m), and 602(o) are punishable by imprisonment in the county jail not exceeding six months; by a fine not exceeding $1,000; or both imprisonment and a fine for a first-time offense. In addition thereto, Penal Code Section 602.8, also, creates an infraction for those who trespass.

Given that there are existing Penal Code provisions which provide equivalent and or greater protection from trespass upon tribal lands, is there a need for an additional criminal statute for Indian lands?

Proponents for this legislation have argued that while many sheriffs within the State of California do recognize their own authority to enforce trespass laws on tribal lands, there are sheriffs within the state who do not enforce these orders and thus the existing case law is needed in the Penal Code.

4. Argument in Support

According to the California Nations Indian Gaming Association:

It is critical that tribal governments have the ability to exclude individuals from their facilities and for that exclusion to be enforceable by local law enforcement. Tribal governments invest millions in strong security and surveillance protocols, however these protocols only work if they are enforceable. In order to close the jurisdictional loophole created by PL 280, an amendment to the penal code, recognizing the exclusion order from a federally recognized tribal government, is needed.

-- END –