Saying it is “map[ping] a zone of twilight between the powers of the Governor and the Legislature,” a 5-2 Supreme Court in United Auburn Indian Community of the Auburn Rancheria v. Newsom today holds California’s Governor has the authority to give the concurrence required by federal law to allow casino-style gaming on off-reservation lands taken into federal trust for an Indian tribe.  The court’s opinion by Justice Mariano-Florentino Cuéllar clears the way for the Enterprise Rancheria of Maidu Indians to have a casino, which the tribe has been seeking since 2002 but which has been opposed by the United Auburn Indian Community.

The majority concludes that “California law empowers the Governor to concur” even in “the absence of specific legislative authorization” and that its ruling is “consistent” with a 2000 initiative amending the state constitution and with “our separation of powers jurisprudence.”  It nonetheless states that “the Legislature may restrict or eliminate the Governor’s implicit power to concur,” but it refuses to “enact [such a limitation] on the Legislature’s behalf.”

Chief Justice Tani Cantil-Sakauye in dissent — and joined by Justice Goodwin Liu — says, “Where the majority sees twilight, I see a series of decisions by the electorate —first prohibiting certain kinds of casino operations, then relaxing this restriction to a limited degree —to which we must defer” and that the majority “gives voters something different from what they bargained for.”

The court affirms the Third District Court of Appeal.  Its holding is opposite to that in a divided 2016 Fifth District opinion, which is a grant-and-hold for today’s case (see here).