Narragansett Indian Tribe v. National Indian Gaming Com'n

• Decision Date: 27 October 1998
• Docket Number: No. 97-5290,97-5290
• Citation: 158 F.3d 1335,332 U.S.App. D.C. 429
• Parties: NARRAGANSETT INDIAN TRIBE, Appellant, v. NATIONAL INDIAN GAMING COMMISSION and Tadd Johnson, in his official capacity as Chairman of the National Indian Gaming Commission, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1335

158 F.3d 1335

332 U.S.App.D.C. 429

NARRAGANSETT INDIAN TRIBE, Appellant, v. NATIONAL INDIAN GAMING COMMISSION and Tadd Johnson, in his official capacity as Chairman of the National Indian Gaming Commission, Appellees.

No. 97-5290.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 2, 1998.

Decided Oct. 27, 1998.

Appeal from the United States District Court for the District of Columbia (No. 97cv00334).

Charles A. Hobbs argued the cause for appellant. With him on the briefs was Joseph H. Webster.

Marta Hoilman, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Lois J. Schiffer, Assistant Attorney General, David C. Shilton and Edward J. Passarelli, Attorneys.

Patrick J. Kennedy, appearing pro se, was on the brief for amicus curiae Patrick J. Kennedy, United States Congressman, House of Representatives.

William J. Rodgers and Joseph S. Larisa, Jr., were on the brief for amicus curiae Lincoln C. Almond, Governor of Rhode Island. Thomas A. Thompson entered an appearance.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

TATEL, Circuit Judge:

Relying on the equal protection guarantees of the Fifth Amendment, the Narragansett Indian Tribe of Rhode Island challenges the constitutionality of legislation, known as the Chafee Amendment, that prohibits the National Indian Gaming Commission from authorizing gambling on Narragansett lands. We agree with the district court that far from illegitimately singling out the Narragansetts for discriminatory treatment, the Chafee Amendment represents a rational interpretation of an earlier agreement among the Tribe, the State of Rhode Island, and the federal government that state law, including state gambling law, would govern tribal lands.

I

The Narragansetts, aboriginal inhabitants of what is now Rhode Island, enjoyed cordial early relations with English settlers on Roger Williams's Providence Plantation. See WILLIAM G. MCLOUGHLIN, RHODE ISLAND 4-5, 9-10 (1978). During the latter part of the 17th century, the Tribe was drawn into bloody warfare with Puritan colonists seeking to gain political authority over much of Rhode Island by securing claims to Indian land. Id. at 40-44. Surviving members of the Tribe banded together with other Indians in the early 1700s to form a Narragansett Indian community in present-day Charlestown. Id. at 44-45.

Although for most of the next century the Narragansetts resisted Rhode Island's efforts to extinguish their tribal identity and confer State citizenship, in 1880 the Tribe agreed to abolish tribal authority and to sell (for $5,000) all but two acres of its reservation. See id. at 221. Concluding almost immediately that they had made a mistake, the Narragansetts began a century-long effort to recover their tribal lands, an effort that culminated in the mid-1970s when the Tribe settled litigation it had brought against the State and private landowners in which it claimed that the 1880 land sale violated the Indian Nonintercourse Act, see Act of June 30, 1834, ch. 161, § 12, 4 Stat. 730 (prohibiting land conveyances from Indian tribes to non-Indians unless "made by treaty or convention entered into pursuant to the constitution"). The settlement, contained in a Joint Memorandum of Understanding ("JMOU"), provided for the transfer of 1,800 acres of land to a corporation formed to hold the land in trust for the benefit of "the descendants of the 1880 Rhode Island Narragansett Roll," in exchange for extinguishment of the Narragansetts' land title claims. JMOU pp 2, 3, 6, 8. The JMOU also provided that "the laws of the State of Rhode Island shall be in full force and effect" on Narragansett settlement lands, with the exception of hunting and fishing regulation and local property taxation. JMOU pp 9, 11, 13. Congress then implemented the JMOU by enacting the Rhode Island Indian Claims Settlement Act. Pub.L. No. 95-395, 92 Stat. 813 (1978) (codified at 25 U.S.C. §§ 1701-16 (1994)). As the parties to the JMOU had agreed, the Settlement Act specifically stated that Narragansett settlement lands are "subject to the civil and criminal laws and jurisdiction of the State of Rhode Island." 25 U.S.C. § 1708(a). With the enactment of this statute, the Narragansetts joined a growing number of Indian tribes that have reclaimed tribal lands after legislative settlements of aboriginal land claims.

In 1988, Congress enacted the Indian Gaming Regulatory Act, Pub.L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701-21) ("IGRA"), precipitating the explosion of Indian reservation gambling and the Narragansett Tribe's journey to this court. Dividing gambling activities into three classes, IGRA makes Class II gaming, which includes bingo, subject to regulation by the National Indian Gaming Commission, appellee in this case. 25 U.S.C. § 2710(b). Although the Act permits federally recognized tribes to apply for Commission approval of gaming proposals, an early version of IGRA contained a provision specifically excluding the Narragansetts. Offered by Senators Chafee and Pell of Rhode Island to ensure that IGRA conformed to the Settlement Act's state law proviso, the Narragansett exclusion provided that "[n]othing in this Act may be construed as permitting gaming activities, except to the extent permitted under the laws of the State of Rhode Island, on lands acquired by the Narragansett Indian Tribe under the Rhode Island Indian Claims Settlement Act." S. 555, 100th Cong. § 23, 134 CONG. REC. 24,022 (1988). After Congressman Udall, chairman of the House Interior Committee, announced that he would oppose the bill if it contained the Narragansett exclusion, see Narragansett Indian Tribe: Oversight Hearing Before the House Comm. on Resources, 105th Cong. 65 (1997) (statement of Frank Ducheneaux, attorney), Senators Chafee and Pell moved to delete the section, engaging in the following colloquy with Senator Inouye, chairman of the Senate Committee on Indian Affairs:

Mr. PELL. ... In the interests of clarity, I have asked that language specifically citing the protections of the Rhode Island Claims Settlement Act (Public Law95-395) be stricken from S. 555. I understand that these protections clearly will remain in effect.

Mr. INOUYE. I thank my colleague, ... and assure him that the protections of the Rhode Island Indian Claims Settlement Act (P.L. 95-395), will remain in effect and that the Narragansett Indian Tribe clearly will remain subject to the civil, criminal, and regulatory laws of the State of Rhode Island.

Mr. CHAFEE. ... The chairman's statement makes it clear that any high stakes gaming, including bingo, in Rhode Island will remain subject to the civil, criminal, and regulatory laws of our State.

134 CONG. REC. 24,023 (1988).

Following the passage of IGRA minus the Narragansett exclusion, the Tribe initiated steps to operate a gambling establishment on tribal lands. Seeking to stop the Tribe, the State sued, alleging that nothing in IGRA supplanted the understanding of the parties, as reflected in the JMOU and the Settlement Act, that state law, including state gambling regulations, governed Narragansett settlement lands. The First Circuit ruled for the Tribe. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir.1994). It held that although the Tribe's lands remained subject to the State's general jurisdiction under the Settlement Act, IGRA had implicitly repealed the Settlement Act's grant of state jurisdiction with respect to gambling regulation. Id. at 703-05. The court discounted the Senators' colloquy, finding it at odds with the statute's language, which contained no exception for the Narragansetts. Id. at 699. In dissent, Judge Coffin disagreed with the majority's interpretation of IGRA, concluding: "If, of course, the Congress were to feel that an injustice had been done to [Rhode Island], it could provide a remedy through supplemental legislation." Id. at 708 (Coffin, J., dissenting).

Armed with its First Circuit victory, the Tribe sought approval from the National Indian Gaming Commission to open a bingo hall. Congress, responding to Judge Coffin's suggestion, amended the Settlement Act to make clear that IGRA had not preempted its grant of state jurisdiction. Sponsored by Senator Chafee, the two-line amendment provides: "For purposes of the Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq.), settlement lands shall not be treated as Indian lands." Pub.L. No. 104-208, 110 Stat. 3009-227 (1996) (codified at 25 U.S.C.A. § 1708(b) (West Supp.1998)). Senator Chafee explained, "It is our determined view that a deal is a deal." Narragansett Indian Tribe: Oversight Hearing Before the House Comm. on Resources, 105th Cong. 14 (1997) (statement of Sen. Chafee) ("Chafee Testimony").

Following enactment of the Chafee Amendment, the Commission disapproved the Tribe's proposal. The Tribe then sued the Commission in the United States District Court for the District of Columbia. Arguing that the Chafee Amendment violates both equal protection guarantees and separation of powers and that it amounts to a bill of attainder, the Tribe sought declaratory and injunctive relief requiring the Commission to complete its regulatory review of the Tribe's bingo hall proposal. The district court rejected all of the Tribe's arguments and granted summary judgment to the Commission, holding with respect to the Tribe's equal protection claim that "[t]he Court cannot say that the congressional choice does not reasonably support Congress' decision to amend the Settlement Act to remedy IGRA's unintended preemption of state jurisdiction over the Settlement Lands." Narragansett Indian Tribe v. National Indian Gaming Comm'n, No. 97-334, slip op. at 18 (D.D.C. Aug. 19, 1997).

Asserting only its equal protection challenge, the Tribe now appeals. Congressman Patrick Kennedy filed an amicus brief supporting the Tribe's equal protection claim and reiterating...