State of R.I. v. Narragansett Indian Tribe

• Citation: 19 F.3d 685
• Decision Date: 08 September 1993
• Docket Number: No. 93-1400,93-1400
• Parties: STATE OF RHODE ISLAND, et al., Plaintiffs, Appellants, v. NARRAGANSETT INDIAN TRIBE, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 685

19 F.3d 685

STATE OF RHODE ISLAND, et al., Plaintiffs, Appellants, v. NARRAGANSETT INDIAN TRIBE, et al., Defendants, Appellees.

No. 93-1400.

United States Court of Appeals, First Circuit.

Heard Sept. 8, 1993.

Decided March 23, 1994.

W. Mark Russo, with whom Jeffrey B. Pine, Atty. Gen., Alan M. Shoer, Sp. Asst. Atty. Gen., Elizabeth Murdock Myers, Suzanne Worrell, and Adler, Pollock & Sheehan, Providence, RI, were on brief, for state appellants.

Bruce N. Goodsell, Westerly, RI, on brief, for municipal appellants.

Scott Harshbarger, Mass. Atty. Gen., Douglas H. Wilkins, Mass. Asst. Atty. Gen., Boston, MA, Michael J. Carpenter, Me. Atty. Gen., Augusta, ME, and Frankie Sue Del Papa, Nev. Atty. Gen., Carson City, NV, on brief, for States of Massachusetts, Maine, and Nevada, amici curiae.

Charles A. Hobbs, Washington, DC, with whom Arlene Violet, Barrington, RI, Matthew S. Jaffe, and Hobbs, Straus, Dean & Wilder, Washington, DC, were on brief, for appellees.

Before SELYA, Circuit Judge, ALDRICH and COFFIN, Senior Circuit Judges.

SELYA, Circuit Judge.

This appeal requires us to determine whether the Indian Gaming Regulatory Act, 25 U.S.C. Secs. 2701-2721, 18 U.S.C. Secs. 1166-1168 (1988) (the Gaming Act), applies to lands now held in trust by the United States for the benefit of the Narragansett Indian Tribe (the Tribe). This determination is tinged with more than the usual quotient of public interest, because the Tribe's ability to import casino gambling into Rhode Island likely hangs in the balance. After careful reconnaissance of a littered legal landscape, we set aside the district court's determination that the parties' dispute over the applicability of state jurisdiction is not yet ripe for adjudication and hold that Congress's grant of jurisdiction to the state in the Rhode Island Indian Claims Settlement Act of 1978, 25 U.S.C. Secs. 1701-1716 (the Settlement Act), remains valid. We also hold, contrary to the Tribe's importuning, that the grant includes civil regulatory jurisdiction.

At that juncture, the tide turns. We conclude, despite the state's vehement protests that the Gaming Act does not specially exempt the lands in question; that the Narragansetts have concurrent jurisdiction over, and exercise governmental power with respect to, those lands, and, therefore, are entitled to invoke the Gaming Act; and that, to the extent of the jurisdictional conflict between the Settlement Act and the Gaming Act, the former is impliedly repealed. In the end, we affirm both the district court's directive that Rhode Island enter into good faith negotiations to draft a tribal-state compact under which gaming operations can be mounted and its refusal to grant relief to various governmental figures and entities who have challenged the Tribe's entitlement to the extraordinary prophylaxis of the Gaming Act.

I. THE SETTLEMENT LANDS

We begin with a thumbnail sketch of how the land mass that is the breeding ground for this dispute came to be held in trust for the Tribe.

In the late 1970s, the Tribe asserted title claims to certain lands in Charlestown, Rhode Island, and, encountering resistance, pursued these claims in the federal courts. See Town of Charlestown v. United States, 696 F.Supp. 800, 801-05 (D.R.I.1988) (recounting history of dispute), aff'd, 873 F.2d 1433 (1st Cir.1989) (table). In 1978, the Tribe, the state, and the Town of Charlestown signed a joint memorandum of understanding (J-MEM) purporting to settle their differences. The Tribe agreed, inter alia, to the extinguishment of its title claims. In return, it obtained valuable consideration, including a lump-sum payment and effective control over roughly 1800 acres in Charlestown (the settlement lands), half donated by the state and half by private landowners. ¹ The titleholders agreed to deed the property to a nascent corporation which would be formed to hold title for the Tribe's benefit.

Because Congress possesses plenary power over Indian matters, see Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 2483-84, 41 L.Ed.2d 290 (1974), the parties sought its blessing. In response, Congress passed the Settlement Act, a law that, for the most part, tracks the J-MEM. In 1978, the state legislature approved the Narragansett Indian Land Management Corporation Act, 6A R.I. Gen. Laws Secs. 37-18-1 to 37-18-15 (1990) (the State Act), thereby creating the nominee corporation that would hold title to the settlement lands. The necessary conveyancing followed.

The next five years passed without relevant incident. Then, in 1983, the Secretary of the Interior, acting pursuant to departmental regulations, see 25 C.F.R., Part 83 (1993), officially recognized the Narragansetts as an Indian tribe. See 48 Fed.Reg. 6177-78 (Feb. 2, 1983). On the heels of federal recognition, the settlement lands changed hands twice more. In 1985, the Rhode Island General Assembly amended the State Act to permit the holding company to transfer title to the Tribe. ² The corporation complied. In September of 1988, less than a month before the Gaming Act became law, the Tribe deeded the settlement lands to the federal Bureau of Indian Affairs (the Bureau) as trustee.

II. THE GAMING ACT

The Gaming Act is an expression of Congress's will in respect to the incidence of gambling activities on Indian lands. The statute sets in place a sophisticated regulatory framework, defining a species of gambling, called "gaming," and dividing it into tiers, called "classes." Each class connotes a different level of gambling activity and, consequently, each class is regulated to a varying degree of stringency. See 25 U.S.C. Secs. 2703(6)-2703(8).

Class I gaming--which consists, essentially, of Indian ritual gambling--always can be conducted on Indian lands. See 25 U.S.C. Sec. 2710(a)(1). Class II gaming--which encompasses bingo--can be conducted as of right on Indian lands in any state, such as Rhode Island, that does not generally proscribe activities of that type. See 25 U.S.C. Sec. 2710(b)(1)(A). Class III gaming--a residual category that includes what is commonly thought of as casino gambling--is permitted by compact; and, moreover, a state is obliged to negotiate such a compact in good faith with a sponsoring tribe unless the state bans all persons throughout its territory from conducting class III gaming. See 25 U.S.C. Sec. 2710(d). Short of an outright ban--and few state legislatures have indicated a willingness to go that far ³--the tribal-state compact is the exclusive method of regulating class III gaming. The method of the Gaming Act prevents a state from frustrating the introduction of class III gaming by an endless filibuster, for there are tight time parameters within which compact negotiations must be brought to fruition once a federal court finds that a state has failed to bargain in good faith. See id. Sec. 2710(d)(7)(B). As a practical matter, then, a state ordinarily may regulate casino gambling on Indian lands only in pursuance of a consensual compact.

Because the case at bar revolves around class III gaming, the centrality of this last point cannot be overstated. One of the Gaming Act's fundamental policies is that "Indian tribes have the exclusive right to regulate gaming activity on Indian lands...." Id. Sec. 2701(5). The legislative history of the statute draws out the implications of this policy:

The mechanism for facilitating the unusual relationship in which a tribe might affirmatively seek the extension of State jurisdiction and the application of state laws to activities conducted on Indian land is a tribal-State compact. In no instance does [the Gaming Act] contemplate the extension of State jurisdiction or the application of State laws for any other purpose.

S.Rep. No. 446, 100th Cong., 2d Sess. 6, reprinted in 1988 U.S.C.C.A.N. 3071, 3075-76.

Under our tripartite system of government, Congress, not the courts, is empowered to make such policy choices. See Irons v. FBI, 811 F.2d 681, 689 (1st Cir.1987) (acknowledging that the legislative branch sets policy by means of statutes and the courts must honor the legislature's policy choices and enforce the statutes). Thus, the courts have not focused on the wisdom of the policies underlying the Gaming Act, but have followed the legislative lead and recognized that the very structure of the Gaming Act forbids the assertion of state civil or criminal jurisdiction over class III gaming except when the tribe and the state have negotiated a compact that permits state intervention. See, e.g., United Keetoowah Band of Cherokee Indians v. Oklahoma, 927 F.2d 1170, 1177 (10th Cir.1991); Sycuan Band of Mission Indians v. Roache, 788 F.Supp. 1498, 1504 (S.D.Cal.1992).

III. PROCEEDINGS BELOW

On January 15, 1992, the Tribe formally requested that Rhode Island enter into good faith bargaining designed to produce a tribal-state compact that would allow construction and operation of a casino, i.e., inauguration of class III gaming, on the settlement lands. Rhode Island declined to negotiate, instead filing suit in the federal district court. ⁴ The state asked the court to declare that the Gaming Act does not apply to the settlement lands, and that, therefore, those lands are subject to Rhode Island's general criminal and civil laws (including its civil regulatory laws). The state also sought to enjoin the development of gambling facilities on the settlement lands and to block negotiations antecedent to a tribal-state compact. The Tribe answered and counterclaimed for declaratory and injunctive relief that would pave the way for casino gambling on the settlement lands. The tribe requested, among other things, a declaration that the state's civil regulatory laws do not apply to the settlement lands; a declaration that the Narragansetts are entitled to operate a class III casino on those lands in conformance with the Gaming Act; and a mandatory injunction commanding the state to negotiate in good faith toward a compact....