Rincon Band of Mission Indians v. County of San Diego

• Decision Date: 11 June 1974
• Docket Number: No. 71-1927,72-1256 and 71-2043.,71-1927
• Citation: 495 F.2d 1
• Parties: RINCON BAND OF MISSION INDIANS, Appellants, v. COUNTY OF SAN DIEGO and J. C. O'Connor, Sheriff for the County of San Diego, Appellees. Elizabeth RICCI, Appellant, v. COUNTY OF RIVERSIDE et al., Appellees. Lela MADRIGAL, Appellant, v. COUNTY OF RIVERSIDE et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

495 F.2d 1 (1974)

RINCON BAND OF MISSION INDIANS, Appellants, v. COUNTY OF SAN DIEGO and J. C. O'Connor, Sheriff for the County of San Diego, Appellees.

Elizabeth RICCI, Appellant, v. COUNTY OF RIVERSIDE et al., Appellees.

Lela MADRIGAL, Appellant, v. COUNTY OF RIVERSIDE et al., Appellees.

Nos. 71-1927, 72-1256 and 71-2043.

United States Court of Appeals, Ninth Circuit.

March 18, 1974.

Rehearing Denied June 11, 1974.

George Forman, Oakland, Cal. (argued), for appellants in No. 71-1927.

Bertram McLees, Jr., County Counsel, Anthony Albers, Deputy County Counsel (argued), San Diego, Cal., for appellees in No. 71-1927.

Robert S. Pelcyger, Native American Rights Fund, Boulder, Colo., for amicus curiae in No. 71-1927.

George Forman, Oakland, Cal. (argued), Monroe E. Price, Los Angeles, Cal., for appellant in No. 72-1256.

Ray T. Sullivan, Jr., County Counsel, and Steven A. Broiles, Deputy County Counsel (argued), Riverside, Cal., for appellees in No. 72-1256.

Russell W. Bledsoe, Los Angeles, Cal. (argued), and Hubert C. Swanson, Placentia, Cal., for appellant in No. 71-2043.

Ray T. Sullivan, Jr., County Counsel, and Steven A. Broiles, Deputy County Counsel, (argued), of Kinkle, Rodiger, Graf, Dewberry & Spriggs, Riverside, Cal., Robert L. Meyer, U.S. Atty., and Eva R. Datz, Asst. Atty. Gen., Washington, D.C., Kent Frizzell, Asst. Atty. Gen., Robert S. Lynch, and Edmund B. Clark (argued), Washington, D.C., for appellees in No. 71-2043.

Kent Frizzell, Asst. Atty. Gen., Jacques B. Gelin and Dirk D. Snel, Attys., Washington, D.C., for amicus curiae in Nos. 72-1256 and 71-2043.

Before BROWNING and TRASK, Circuit Judges, and MURPHY, District Judge.^*

MURPHY, District Judge:

Each of these three appeals is from a separate judgment of the United States District Court of California, the first from the Southern District, the other two from the Central District. The appeals were consolidated for argument, since each purported to present a similar legal issue, viz., whether ordinances of Riverside and San Diego Counties relating to gambling, building and outdoor festivals are applicable to Indian reservations within those counties by virtue of Public Law 280 by which Congress, in 1953, granted to several states, including California, civil and criminal jurisdiction over Indian reservations. 67 Stat. 588; 18 U.S.C. § 1162; 28 U.S.C. § 1360.

There is, however, in each appeal a vexing initial question of jurisdiction either of this Court or the District Court. Firstly, we will consider such a question in Rincon.

In Rincon, the Rincon Band of Mission Indians, with a governing body duly recognized by the Secretary of Interior, sought a declaratory judgment and injunctive relief from the enforcement on its reservation of a San Diego gambling ordinance. The reservation is located within an unincorporated area of San Diego County, California, and held in trust by the United States. Jurisdiction was asserted under 28 U.S.C. §§ 1331 (federal question), 1362 (Indian Tribes), and 2201 (declaratory judgment).

The San Diego ordinance¹ has been in effect since 1960 and prohibits the use of property for gambling purposes and betting on card games, such as draw poker. On October 1, 1970, the Rincon Band adopted a tribal ordinance authorizing the establishment of a card room on the reservation where certain card games not prohibited by state statute could be played. The revenue derived therefrom would be for the benefit of the Band.

On cross motions for summary judgment the District Court (Turrentine, J.), in a reasoned opinion, granted the motion of the defendants. In substance, it found (a) that the county gambling ordinance was a state law within the meaning of Public Law 280, and (b) that such ordinance was not an encumbrance on trust property or a regulation of the use of trust property in any manner inconsistent with any federal statute. (Rincon Band of Mission Indians v. County of San Diego, 324 F.Supp. 371 (S.D.Cal.1971).

No consideration was given to the question nor was it briefed, i. e., whether the "case or controversy" requirement of Article III of the Constitution is satisfied by the general allegation of a threat of enforcement against the Rincon Band of Mission Indians or its members of the county gambling ordinance.

Accordingly, we detail the relevant facts contained in the affidavits and exhibits that were before the District Court on the motions for summary judgment.

On October 1, 1970, the plaintiff, through its tribal council, passed a tribal ordinance permitting limited gambling activities not prohibited by the Penal Code of the State of California. The ordinance is described as "An ordinance of the Rincon Band of Mission Indians, Rincon Reservation, to provide for the authorization and establishment of a card room on the Rincon Reservation, Valley Center, California." The purpose of the ordinance is "to remove any possible question as to the propriety of tribal members participating in traditional tribal games of chance and to encourage the economic development and progress of the Rincon Indian Reservation" through the establishment of a tribally run card room.

"The people of the Rincon Reservation have regularly held fiestas each year in order to raise funds for tribal development. At various times, activities at these fiestas included traditional tribal games of chance, and often many non-Indians would come to the fiestas and participate in these games. Several persons have been arrested for gambling at our fiestas." (Affidavit of Frank Mazzetti, Jr., Acting Chairman of the Rincon Band of Mission Indians).

On October 8, 1970, in a letter to the County of San Diego's counsel, the Band's attorneys alleged that several members of the Rincon Band were informed by representatives of the San Diego County Sheriff's Department that under the county gambling ordinance all gambling in unincorporated areas of the county was illegal and that the ordinance would be enforced against persons on the Rincon Reservation.

In that letter of October 8th and in subsequent correspondence the Band's attorneys requested a written statement of county policy as to the county's jurisdiction to enforce its gambling ordinance on the Rincon Reservation.

On October 23, 1970, the county sheriff, defendant J. C. O'Connor, replied that "* * * State law, as well as the County ordinance, is quite specific relative to gambling, and all of the laws of San Diego, State, Federal and County, will be enforced within our jurisdiction", and that "* * * we feel that the laws of the State and the County are not made for a few, but meant to include everyone, and they shall be administered in that manner."

All will agree that federal courts may act only in the context of a justiciable case or controversy. Benton v. Maryland, 395 U.S. 784, 788, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

Recently the Supreme Court, in a declaratory judgment action, restated the test of justiciability: "The test to be applied of course, is the familiar one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941): `Basically the question in each case is whether * * * there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Lake Carriers Ass'n. v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972).

Our duty, therefore, is to resolve whether there is a substantial controversy between the Rincon Band of Mission Indians and the County of San Diego and its sheriff of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

The Rincon Band claims that its members were under a threat of prosecution if they proceeded with plans to establish and maintain a gambling facility on the reservation.

We are satisfied that in the present case the threat is clearly of a general nature, and from the record it cannot be determined if there has been a history of prosecution or non-prosecution under the county ordinance. The record indicates that the threat consisted of appellant's allegations that members of the Sheriff's Department informed a few members of the Band that all gambling is illegal under the county ordinance, and Sheriff O'Connor's response to the Indians' inquiry that the state and county laws are specific as to gambling and all the laws of the county would be enforced within his jurisdiction. Similar threats in Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 1752, 1754, 6 L.Ed.2d 989 (1961) ("* * * in the course of his public duty he the state's attorney intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses"), and in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (possible interference with plaintiffs' rights by the Civil Service Commission under its rules), failed to meet justiciability requirements.

Our brother Browning feels that Poe and United Public Workers are distinguishable. In Poe the statute prohibiting the use of contraceptive devices and giving medical advice in the use of such devices was three-quarters of a century old. In Rincon the statute was enacted in 1960, certainly enough time to establish a policy of enforcement or nonenforcement, particularly in the light of the gambling activities at the annual fiestas held at the reservation. Judge Browning's position is that there is nothing to indicate that the Rincon ordinance was not being enforced. The burden, however, was on the plaintiff to show by affidavit that the statute was being enforced. It failed in this regard. The only fact before the District Court was a general threat from the Sheriff, not much different than the allegation in the Poe complaint quoted above. As...