At & T Corp. v. Coeur D'Alene Tribe

• Decision Date: 19 March 2002
• Docket Number: No. 99-35088.,99-35088.
• Citation: 295 F.3d 899
• Parties: AT & T CORPORATION, Plaintiff-Appellee, v. COEUR D'ALENE TRIBE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

295 F.3d 899

AT & T CORPORATION, Plaintiff-Appellee, v. COEUR D'ALENE TRIBE, Defendant-Appellant.

No. 99-35088.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2000.

Filed March 19, 2002.

Amended July 17, 2002.

Raymond Givens, Coeur d'Alene, ID, for the defendant-appellant.

Howard Spierer, Basking Ridge, NJ, for the plaintiff-appellee.

Alan I. Gilbert, St. Paul, MN (States), and Corbin Weiss, Washington, DC (USA), for the amici curiae.

Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, Chief Judge, Presiding. D.C. No. CV-97-00392-EJL.

Before: BROWNING, B. FLETCHER and GOULD, Circuit Judges.

Opinion by Judge B. FLETCHER; Partial Concurrence and Partial Dissent by Judge GOULD.

ORDER

The opinion of this court filed March 19, 2002, 283 F.3d 1156, slip op. at 4411, is amended as follows:

On page 4421 of the slip opinion, in the first full paragraph, delete the sentence beginning "This is no less true ..." and the accompanying citations to El Paso Natural Gas Co. v Neztsosie [526 U.S. 473, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999)] and Santa Clara Pueblo v. Martinez [436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)].

On page 4422 of the slip opinion, delete the second sentence of the second full paragraph and its accompanying citation. Insert in its place the following: "Subject to a number of exceptions, tribal courts ordinarily have the first opportunity to determine the extent of their own jurisdiction." Add the following footnote at the end of the sentence: See Nevada v. Hicks, 533 U.S. 353, 369, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001).

On page 4422 of the slip opinion, delete the last sentence of the second full paragraph. Insert in its place the following: "We need not decide whether exhaustion was required in this case or if any of the exceptions to exhaustion applied, because the tribal court did in fact have the first opportunity to determine the extent of its jurisdiction; thus, whether exhaustion was required or not, the issue of tribal jurisdiction is ripe for review."

On page 4422 of the slip opinion, delete the paragraph beginning "In the absence of Congressional action, ..."

OPINION

BETTY B. FLETCHER, Circuit Judge:

Having received conflicting determinations from tribal courts and the federal district court, the Coeur d'Alene Tribe appeals the district court's determination that AT & T Corporation need not provide toll-free telephone service for the Tribe's lottery. We find that the tribal court lacked jurisdiction to resolve the dispute, but vacate the district court's determination that the lottery itself is illegal under the Indian Gaming Regulatory Act (IGRA). We conclude that AT & T was not the proper party to challenge the legality of the lottery.

I. BACKGROUND

The federally recognized Coeur d'Alene Tribe ("Tribe") resides on the Coeur d'Alene Reservation in Idaho. Federal law permits tribes like the Coeur d'Alene to engage in gambling activities on Indian lands pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. As IGRA requires of any tribe wishing to engage in gambling on its land, the Tribe entered into a compact with the State of Idaho. The compact permits the Tribe to offer Class III gaming, including a lottery. See 25 U.S.C. § 2710(d)(3). The Secretary of the Interior approved the compact. See 25 U.S.C. § 2710(d)(8); 58 Fed.Reg. 8478 (1993).

The Tribe created the National Indian Lottery ("Lottery"). The Lottery's administration occurs entirely on the Reservation. However, off-Reservation participants may purchase tickets by telephone from outside Idaho.¹ In order to participate in the Lottery, an off-Reservation player establishes an account on the Reservation and funds it either by credit card or by delivering funds. To purchase a ticket, the player authorizes a deduction from the account and either selects a sequence of numbers or requests randomly selected numbers. A player may request written confirmation of the transaction, but the lottery ticket itself remains on the Reservation. Once a week, lottery officials draw a sequence of winning numbers and distribute the prize pool to players whose tickets contain them. An off-Reservation winner receives a credit to his or her account that is redeemable in person or through the mail.

The federally approved compact itself did not specify that off Reservation telephone purchases would be permitted.² However, a management contract between the Tribe and UNISTAR Entertainment, Inc. made clear that off-Reservation players could participate telephonically. As required by 25 U.S.C. § 2710(d)(9), the Tribe submitted the management contract to the Chairman of the National Indian Gaming Commission (NIGC) for approval. The Chairman approved the management contract, a decision that constitutes a final agency action. 25 U.S.C. § 2714. The Chairman subsequently clarified in a letter — in response to an inquiry about the Lottery's legality³ — that:

In the opinion of the NIGC, the Tribe's lottery proposal, which involves customers purchasing lottery tickets with a credit card both in person and by telephone from locations both inside and outside the state of Idaho, is not prohibited by the IGRA.

Following the NIGC's approval of the UNISTAR contract, the Tribe adopted a resolution and amended its Tribal Code to authorize the Lottery. Consistent with IGRA, the Tribe's resolution was deemed approved by the NIGC Chairman ninety days after its submission pursuant to 25 U.S.C. § 2710(e).⁴

In order to attract Lottery participants, the Tribe sought to establish toll-free telephone service to its on-Reservation offices from callers in states that operate their own state-run lotteries. AT & T was among the carriers with whom the Tribe negotiated to provide such service.

Upon learning that the Tribe intended to offer toll-free "Tele-Lottery" service, several state Attorneys General sent letters to AT & T allegedly pursuant to 18 U.S.C. § 1084(d), warning AT & T that furnishing interstate toll-free service for the Lottery would violate federal and state laws. Title 18 U.S.C. § 1084(d) provides that:

When any common carrier, subject to the jurisdiction of the Federal Communications Commission, is notified in writing by a Federal, State, or local law enforcement agency, acting within its jurisdiction, that any facility furnished by it is being used or will be used for the purpose of transmitting or receiving gambling information in interstate or foreign commerce in violation of Federal, State or local law, it shall discontinue or refuse, the leasing, furnishing, or maintaining of such facility, after reasonable notice to the subscriber, but no damages, penalty or forfeiture, civil or criminal, shall be found against any common carrier for any act done in compliance with any notice received from a law enforcement agency. Nothing in this section shall be deemed to prejudice the right of any person affected thereby to secure an appropriate determination, as otherwise provided by law, in a Federal court or in a State or local tribunal or agency, that such facility should not be discontinued or removed, or should be restored.

(emphasis added). Upon receiving the § 1084(d) letters, AT & T informed the Tribe that it would not provide toll-free service until the Tribe resolved its legal differences with the States.

The Tribe filed an action in the Coeur d'Alene Tribal Court seeking to enjoin AT & T from denying toll free service based on the § 1084(d) letters. The Tribe argued that the Lottery is lawful under IGRA and that AT & T is therefore legally obligated to provide the requested service pursuant to the Federal Communications Act (FCA). See 47 U.S.C. § 201(a) (requiring common carriers engaged in interstate communication to furnish service upon reasonable request). AT & T challenged the personal and subject matter jurisdiction of the Tribal Court. The Tribal Court rejected AT & T's arguments, declared the Lottery lawful under IGRA, and enjoined AT & T from refusing to provide the requested service. The Tribal Court of Appeals affirmed.

AT & T then filed suit in federal district court seeking a declaration that the Tribal Court lacked jurisdiction and that the § 1084(d) letters relieved AT & T from any obligation to provide service. The district court determined that IGRA requires a participant in a lottery to be present on Indian lands when purchasing a ticket; therefore, the district court held that the lottery was operating outside IGRA, which would otherwise preempt state law. AT & T Corp. v. Coeur D'Alene Tribe, 45 F.Supp.2d 995, 1002-1003 (D.Idaho 1998). Finding that the Tribal Court's decision was erroneous as a matter of federal law, the district court denied as moot AT & T's motion for judgment that the Tribal Court lacked jurisdiction. Id. at 1005. The court also granted declaratory relief, stating that AT & T was not required to furnish toll-free service from any State that notified AT & T that the Tribe's Lottery would violate state law.⁵ Id. at 1005-1006. The Tribe appeals.

II. TRIBAL COURT JURISDICTION

As a general rule, federal courts must recognize and enforce tribal court judgments under principles of comity. See Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir.1997). Two circumstances preclude recognition: when the tribal court either lacked jurisdiction or denied the losing party due process of law. See Id. Under limited circumstances, not present here, a federal court may refuse to recognize or enforce a tribal judgment on equitable grounds as an exercise of discretion. See Id.

Unless the district court finds the tribal court lacked jurisdiction or withholds comity for some other valid reason, it must enforce the tribal court judgment without reconsidering issues decided by the tribal court. See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 19, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) ("Unless a federal court determines that the...