Pueblo of Santa Ana v. Kelly
| Decision Date | 10 January 1997 |
| Docket Number | No. 96-2162,96-2162 |
| Citation | 104 F.3d 1546 |
| Parties | 97 CJ C.A.R. 90 PUEBLO OF SANTA ANA, Pueblo of San Juan, Pueblo of Tesuque, Pueblo of Acoma, Pueblo of Sandia, Pueblo of Isleta, Pueblo of Pojoaque, San Felipe Gaming Enterprise Board, Pueblo of Taos, Plaintiffs-Counter-Defendants-Appellants, v. John J. KELLY, in his official capacity as United States Attorney for the District of New Mexico; Janet Reno, Attorney General of the United States; Bruce Babbitt, United States Secretary of the Interior; United States of America, Defendants-Counter-Claimants-Appellees, and State of New Mexico, Counter-Defendant-Appellee. Guy Clark, Max Coll, George Buffett, State of Alabama, State of Arizona, State of California, State of Florida, State of Idaho, State of Massachusetts, State of Nevada, State of Rhode Island, State of Hawaii, State of Kansas, State of Michigan, State of Oklahoma, State of Vermont, National Indian Gaming Association, San Manuel Band of Mission Indians, Shakopee Mdewakanton Sioux Community, and Sisseton Wahpeton Sioux Tribe, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard W. Hughes (John L. Sullivan with him, on the briefs), Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, L.L.P., Santa Fe, NM, for Plaintiffs--Counter-Defendants--Appellants Pueblo of Santa Ana, Pueblo of San Juan, Pueblo of Tesuque, Pueblo of Sandia, Pueblo of Isleta, Pueblo of Pojoaque, San Felipe Gaming Enterprise Board, and Pueblo of Taos.
Peter C. Chestnut and Ann Berkley Rodgers, Chestnut Law Offices, Albuquerque, NM, on the brief, for Plaintiff--Counter-Defendant--Appellant Pueblo of Acoma.
Christopher D. Coppin, Assistant Attorney General (Tom Udall, Attorney General of New Mexico, with him on the brief), Albuquerque, NM, for Counter-Defendant-Appellee.
James F. Simon (Lois J. Schiffer, Assistant Attorney General, John J. Kelly, United States Attorney, Phyllis A. Dow, Assistant U.S. Attorney, Albuquerque, NM, and Edward J. Passarelli, Trial Attorney, Department of Justice, Washington, DC, on the brief), United States Department of Justice, Washington, DC, for Defendants--Counter-Claimants--Appellees.
Victor R. Marshall, Victor R. Marshall & Associates, P.C., Albuquerque, NM, filed an amicus curiae brief, for Amici Guy Clark, Max Coll, and George Buffett.
Thomas F. Gede, Special Assistant Attorney General (Daniel E. Lungren, Attorney General, State of California), Sacramento, CA, filed an amicus curiae brief, for Amici State of Alabama, State of Arizona, State of California, State of Florida, State of Idaho, State of Massachusetts, State of Nevada, State of Rhode Island, State of Hawaii, State of Kansas, State of Michigan, State of Oklahoma, and State of Vermont.
Jerome L. Levine and Frank R. Lawrence, Levine & Associates, Los Angeles, CA (Kurt V. BlueDog and Andrew M. Small, BlueDog, Olson & Small, Minneapolis, MN), filed an amicus curiae brief, for Amici National Indian Gaming Association, San Manuel Band of Mission Indians, Shakopee Mdewakanton Sioux Community, and Sisseton Wahpeton Sioux Tribe.
Before ANDERSON, McWILLIAMS, and WEIS *, Circuit Judges.
This case presents a central, and dispositive, question: whether, under the Indian Gaming Regulatory Act, the Secretary of the Interior can, by his approval, give life to a compact which was void from its inception because the state governor who signed the compact lacked the authority under state law to sign on behalf of the state. We hold that the Secretary cannot, under the Act, vivify that which was never alive, and we therefore affirm the decision of the district court.
Plaintiffs and appellants Pueblo of Santa Ana, Pueblo of San Juan, Pueblo of Tesuque, Pueblo of Acoma, Pueblo of Sandia, Pueblo of Isleta, Pueblo of Pojoaque, and Pueblo of Taos are federally recognized Indian tribes in New Mexico. Plaintiff and appellant San Felipe Gaming Enterprise Board is a gaming enterprise chartered under the laws of the Pueblo of San Felipe. 1 The Tribes have been operating casinos and other gaming facilities in New Mexico. They brought this action, seeking a declaration of the validity of the Tribal-State gaming compacts they had entered into with the State of New Mexico, under the Indian Gaming Regulatory Act ("IGRA"), after the New Mexico Supreme Court held that the Governor of New Mexico, who had signed the compacts, lacked the authority to do so and at least suggested that New Mexico law did not permit the kind of gambling they were conducting. Defendants John J. Kelly, the United States Attorney for New Mexico, Janet Reno, the Attorney General of the United States, Bruce Babbitt, the United States Secretary of the Interior, and the United States of America counterclaimed, seeking a declaration that the Tribes were conducting gambling in violation of federal and state law, and joined the State of New Mexico as a party. 2
The Tribes and the United States filed cross-motions for summary judgment. The state filed a brief in support of the United States' cross-motion. The district court granted summary judgment to the United States and the State of New Mexico, concluding that the compacts were not valid under IGRA because the Governor lacked the authority under New Mexico law to execute the compacts on behalf of the state. It therefore declared that the Tribes' class III gaming activities violated federal law. The district court granted the Tribes' request for a stay of its judgment, thereby permitting the Tribes' casinos and other gaming facilities to remain open pending this appeal. We affirm.
The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 ("IGRA") provides a "comprehensive regulatory framework for gaming activities on Indian lands" which "seeks to balance the interests of tribal governments, the states, and the federal government." Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422, 1425 (10th Cir.1994), vacated, --- U.S. ----, 116 S.Ct. 1410, 134 L.Ed.2d 537 (1996). It furthers the dual goals of providing "a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments" as well as ensuring that gaming on Indian lands is shielded from "organized crime and other corrupting influences." 25 U.S.C. § 2702(1), (2). See Indian Affairs Comm., Indian Gaming Regulatory Act, S.Rep. No. 100-446, at 1-3 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3071-73. 3
IGRA provides for three types of gaming: class I, class II and class III. Only class III gaming, high-stakes casino-style gaming, is at issue in this case. It "includes such things as slot machines, casino games, banking card games, dog racing, and lotteries." Seminole Tribe of Florida v. Florida, --- U.S. ----, ----, 116 S.Ct. 1114, 1119, 134 L.Ed.2d 252 (1996). Class III gaming is permitted if it is "located in a State that permits such gaming for any purpose by any person, organization, or entity" and is "conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State ... that is in effect." 25 U.S.C. § 2710(d)(1)(B), (C). The rationale for the compact system is that "there is no adequate Federal regulatory system in place for Class III gaming, nor do tribes have such systems for the regulation of Class III gaming currently in place," and thus "a logical choice is to make use of existing State regulatory systems" through a negotiated compact. S.Rep. No. 100-446, at 13-14, reprinted in 1988 U.S.C.C.A.N. 3071, 3083-84. A Tribal-State compact "shall take effect only when notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Register." 25 U.S.C. § 2710(d)(3)(B). Indian gaming conducted in accordance with the Act's requirements is exempt from federal and state criminal gambling prohibitions.
Since IGRA's passage in 1988, various Indian tribes in New Mexico have sought to enter into class III gaming compacts with the state. Governor Bruce King appointed a task force in 1990 to negotiate gaming compacts with two tribes, the Pueblo of Sandia and the Mescalero Apache tribes. In 1991, after reaching some form of agreement permitting limited class III gaming, the task force presented the compacts to Governor King for signature, but he refused to sign them. The Pueblo of Sandia and the Mescalero then filed suit against the Governor and the State, seeking to require them to negotiate compacts in good faith, as required at that time by IGRA. See § 2710(d)(7). 4 Governor King apparently refused to negotiate with any tribes during the remainder of his term as Governor.
All but two of the Tribes commenced some form of class III gaming without Tribal-State compacts. The Pueblo of Acoma began class III gaming in 1993. Pueblo of Acoma Answers to Defs.' First Set of Interrogs., Appellants' App. Vol. V at A1617. The Pueblo of Isleta began such gaming in 1990, Pueblo of Isleta's Resps. to Defs.' First Set of Interrogs., id. at A1621; the Pueblo of Pojoaque began in 1992, Pl.'s Pojoaque Pueblo, Resp. to First Set of Interrogs., id. at A1624; the Pueblo of San Juan in 1992, Pl. Pueblo of San Juan's Answers to Defs.' First Set of Interrogs., id. at A1630; the Pueblo of Sandia in 1986, Pl. Pueblo of Sandia's Resps. to Defs.' First Set of Interrogs., id. at A1633; the Pueblo of Santa Ana in 1993, Pl. Pueblo of Santa Ana's Resps. to Defs.' First Set of Interrogs., id. at A1644; and the Pueblo of Tesuque in 1992, Tesuque Pueblo's Resp. to Defs.' First Set of Interrogs., id. at A1657-58. The Pueblo of San Felipe and the Pueblo of Taos began class III gaming after they entered into compacts. Resp. to Defs.' First Set of Interrogs. to Pl. Pueblo of San Felipe Gaming Enter. Bd., id. at A1627; Pl. Pueblo of Taos's Resps. to Defs.' First Set of Interrogs., id. at A1649-52. In May 1994, defendant John Kelly, the U.S....
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