Penobscot Nation v. Stilphen

• Decision Date: 07 June 1983
• Citation: 461 A.2d 478
• Parties: PENOBSCOT NATION v. Arthur STILPHEN and James E. Tierney.
• Court: Maine Supreme Court

Page 478

461 A.2d 478

PENOBSCOT NATION v. Arthur STILPHEN and James E. Tierney.

Supreme Judicial Court of Maine.

Argued May 2, 1983.

Decided June 7, 1983.

Thomas N. Tureen (orally), Neil T. Leifer, Portland, for plaintiff.

William H. Laubenstein, III (orally), William R. Stokes, Andre Janelle, Asst. Attys. Gen., Augusta, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS, CARTER and WATHEN, JJ.

McKUSICK, Chief Justice.

For approximately six years the Penobscot Nation has been operating weekly beano games, as defined by 17 M.R.S.A. § 311(1) (1983), on the Penobscot Indian Reservation. The games are usually held on Sundays and are open to members of the general public at prices ranging up to $45 per person. An individual prize of as large as $25,000 has been awarded in a single "Super Bingo" game. The weekly games draw many hundreds of players to the Penobscot reservation from all over Maine and beyond. The games generate gross revenues of approximately $50,000 per month; the net profit is used to fund various tribal governmental services and programs, including snow and rubbish removal on the reservation, police and health services, and home improvement programs.

In October, 1982, defendants James Tierney and Arthur Stilphen, Maine's Attorney General and Public Safety Commissioner, respectively, advised the Penobscot Nation of their intent to move against the Nation, or its officers, employees and agents, for violating the state's beano law. The state has provided in chapter 13-A of title 17 M.R.S.A., §§ 311-325 (1983), for the licensing of beano games under certain circumstances. Section 312 states,

No person, firm, association or corporation shall hold, conduct or operate the amusement commonly known as "Beano" or "Bingo" for the entertainment of the public within the State unless a license therefor is obtained from the Chief of the State Police.

The Penobscot Nation has no current beano license; indeed, it admits that its game is not eligible for a license under chapter 13-A, because section 314 and 315 permit the Chief of the State Police to issue licenses only to volunteer fire departments, agricultural fair associations, and certain nonprofit organizations, as well as to "bona fide resort hotels" whose games return no profits to the hotels. Moreover, the Nation's games do not comply with the provision of section 312 prohibiting Sunday beano games, or with various regulations, promulgated by the Chief of the State Police pursuant to section 317, prohibiting the charging of admission fees and limiting to $200 the value of any single prize and to $1,000 the aggregate value of prizes awarded during any one occasion. Under section 325, a fine of up to $1,000 may be assessed against any "person, firm, association or corporation" violating any of the provisions of chapter 13-A. ¹

In December, 1982, the Nation sought from the Superior Court (Kennebec County) both a declaration that its beano game was lawful and an injunction prohibiting defendants from enforcing against the tribe the provisions of Maine's beano law. The Nation argued that chapter 13-A of title 17 does not apply to it because it is neither a person, a firm, an association, nor a corporation. In support of this proposition, the tribe cited 30 M.R.S.A. § 6206(1) (Supp.1982-1983), which states that the Penobscot Nation, "within [its] Indian territories, shall have, exercise and enjoy all the rights, privileges, powers and immunities ... and shall be subject to all the duties, obligations, liabilities and limitations of a municipality ...." A municipality, the Nation pointed out, has been held not to be a "person" or a "corporation"--at least for purposes of a wrongful death statute, Chase v. Inhabitants of Town of Litchfield, 134 Me. 122, 125, 182 A. 921, 923 (1936); and it argued that one does not ordinarily think of a municipality as a "firm" or an "association." The Penobscot Nation further asserted that even if the beano law is, by its terms, applicable to it, the game is an "internal tribal matter," which, under another provision of 30 M.R.S.A. § 6206(1), is "not subject to regulation by the State." The Superior Court ruled against the Nation and denied its request for an injunction, holding that 17 M.R.S.A. ch. 13-A applies to the Penobscot Nation and that it is not shielded by 30 M.R.S.A. § 6206(1) from state enforcement of the beano law. We agree.

I. The Applicability of the Beano Law

Chapter 13-A of title 17, prohibiting any "person, firm, association or corporation" from operating beano games without a license, cannot be fully understood unless its history is examined. In 1943, the legislature passed P.L.1943, ch. 355, "An Act Providing for the Licensing and Regulation of the Amusement Known as Beano." Sections 1 and 7 of the 1943 act contained the precise "person, firm, association or corporation" language that now appears at 17 M.R.S.A. §§ 312 and 325. The original bill, L.D. 834 (91st Legis.1943), did not specify who or what could obtain a beano license; before it was passed, therefore, it was amended so as to limit licenses to fair associations and various nonprofit organizations. Speaking in favor of an early version of this amendment, Senator Brown of Aroostook said its effect would be to keep racketeers out of Maine because "no one but the bona fide organizations mentioned here can run a game of Beano in the state of Maine." Legis.Rec. 1078 (1943). The next day, on the Senate floor, a later version of the amendment was debated. Senator Varney of York asked,

Is it intended by this amendment that nobody can have a license to play Beano except those organizations already mentioned?

Senator Friend of Somerset, a proponent of the amendment, replied, "Yes." Legis.Rec. 1153 (1943).

The history of the current beano licensing law thus demonstrates that the legislature intended that law to prohibit entirely the operation of beano games except by those entities issued valid licenses by the Chief of the State Police. The terms "person," "firm," "association," and "corporation" were used to reach every entity capable of operating a beano game. The fundamental objective in interpreting any statute is to determine the intent of the legislature in enacting it and to give effect to that intent. Cummings v. Town of Oakland, 430 A.2d 825, 829 (Me.1981), cert. denied, 454 U.S. 1134, 102 S.Ct. 988, 71 L.Ed.2d 286 (1982). That the legislature intended to permit beano games only where licensed was recognized correctly just one year after the beano law was first enacted; the State's Attorney General then wrote, "Whenever and wherever the amusement commonly known as Beano is conducted or operated 'for the entertainment of the public' a license must be obtained." Op.Me. Att'y Gen. (1944), reprinted in 1943-44 Me. Att'y Gen.Ann.Rep. 160.

Our interpretation of the language at issue in this case is reinforced by the fact that the general gambling laws in effect when the beano law was first adopted categorically prohibited all gambling, no matter by whom conducted. R.S. ch. 136, § 18 (1930), stated, "Every ... scheme or device of chance, of whatever name or description ... is prohibited," and set penalties for "whoever is concerned therein." R.S. ch. 136, § 1 (1930), levied a fine on "[w]hoever keeps or assists in keeping a gambling house," while section 2 of the same chapter provided for a fine of up to twenty dollars for "[w]hoever gambles, or bets on any person gambling." In short, the state of Maine in 1943 already prohibited gambling as a general matter; the legislature in that year acted to create a limited exception for certain specific entities eligible for beano licenses. If P.L. 1943, ch. 355, the direct precursor of current 17 M.R.S.A. ch. 13-A, were read to allow some entity to conduct beano games without a license from the Chief of the State Police, it would directly conflict with the laws prohibiting gambling by all entities capable of engaging in gambling or "games of chance." We will not read a statute to conflict with another statute where an alternative, reasonable interpretation yields harmony. See State v. Rand, 430 A.2d 808, 817 (Me.1981).

The scope of the beano law, its language having survived substantially intact since 1943, is the same today as it was when the law was enacted. 17 M.R.S.A. § 312, standing alone, therefore prohibits anyone and anything from operating a beano game--as "beano" is defined in section 311(1)--without a license from the Chief of the State Police. Moreover, the state's criminal gambling laws, now codified at 17-A M.R.S.A. ch. 39, §§ 951-958 (1983), declare today, just as they did in 1943, that all beano games conducted without a license are illegal. Section 952(4) defines "gambling" so as to include beano, and, by section 952(11), any gambling "not expressly authorized by statute" is defined as "unlawful." The only statute that could "authorize" a beano game is 17 M.R.S.A. ch. 13-A; in fact, section 951 of the criminal code expressly exempts from the application of the rest of chapter 39 any person licensed by the Chief of the State Police under 17 M.R.S.A. ch. 13-A. This explicit reference to the beano law indicates that the legislature in 1975 still considered it only a limited exception to the general no-gambling rule. See 17-A M.R.S.A. § 951 comment.

The definitions contained in section 952, together with the specific allusion to the beano licensing law contained in section 951, make it clear that in Maine all gambling, including beano, is still unlawful unless expressly permitted by state statute. The Penobscot Nation cannot obtain permission to conduct its beano games under 17 M.R.S.A. ch. 13-A or any other existing state statute. Therefore, even if it were to be considered a "municipality" for purposes of the beano law, it is prohibited by section 312 of title 17 from operating those games.

II. The Scope of the Nation's Exemption from State Law

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