Barona Group of Capitan Grande Band of Mission Indians, San Diego County, Cal. v. Duffy, 82-5408

• Decision Date: 20 December 1982
• Docket Number: No. 82-5408,82-5408
• Parties: The BARONA GROUP OF the CAPITAN GRANDE BAND OF MISSION INDIANS, SAN DIEGO COUNTY, CALIFORNIA, Plaintiff-Appellant, v. John DUFFY, the Sheriff of San Diego County, California, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1185

694 F.2d 1185

The BARONA GROUP OF the CAPITAN GRANDE BAND OF MISSION INDIANS, SAN DIEGO COUNTY, CALIFORNIA, Plaintiff-Appellant, v. John DUFFY, the Sheriff of San Diego County, California Defendant-Appellee.

No. 82-5408.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1982.

Decided Dec. 20, 1982.

Harrison W. Hertzberg, Hertzberg & Hertzberg, Los Angeles, Cal., for plaintiff-appellant.

Bruce W. Beach, San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN, HUG, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

Barona Group of the Capitan Grande Band of Mission Indians ("Barona") filed suit requesting declaratory and injunctive relief from the enforcement against them of certain county and state laws pertaining to the operation of bingo games by John Duffy, the Sheriff of San Diego County, California (the County). Summary judgment was entered for the County on March 26, 1982, and Barona has appealed. We reverse.

FACTS

Barona is an independent Indian Nation recognized by federal statute with its reservation On June 25, 1981 the undersheriff of the County informed representatives of Barona that the bingo ordinance of the County of San Diego prohibited the Tribe's bingo operation. The undersheriff also said that the ordinance would be enforced to the extent of entry on Indian territory to cite or arrest the participants in the bingo operation. The Tribe then sought injunctive and declaratory relief against the Sheriff on the ground that the Sheriff is without lawful authority to enforce the state or county laws regarding bingo on the Barona Reservation. ¹

in the County of San Diego. Act of February 28, 1919, Pub.L. No. 299, 40 Stat. 1206 amended by 47 Stat. 146 (1932). On April 20, 1981, the Tribal Council of the Barona Tribe, the Tribe's governing body, enacted a Tribal Ordinance authorizing, with certain restrictions, the playing of bingo within the reservation. The Tribe subsequently entered into a management agreement with American Amusement Management, Inc., to commence a bingo operation within the reservation.

STANDARD OF REVIEW

In reviewing a grant of summary judgment, our task is identical to that of the trial court. State ex rel. Edwards v. Heimann, 633 F.2d 886, 888 n. 1 (9th Cir.1980). Viewing the evidence de novo, in the light most favorable to the party against whom summary judgment is granted, we must determine whether the trial court correctly found that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Heiniger v. City of Phoenix, 625 F.2d 842, 843 (9th Cir.1980). The present case is suitable for summary judgment because there is no genuine issue of material fact. We reverse, however, on the basis of the legal issues involved.

DISCUSSION

I. Statutes Involved

The California legislature, in accordance with state constitutional limitations, ² adopted Cal.Penal Code Sec. 326.5 (West Supp.1982) which controls the conduct of bingo games. This statute removes from the general prohibition of various forms of gambling the conduct of bingo games pursuant to city or county ordinance as provided in the California Constitution. The County passed such an ordinance allowing bingo games conducted by certain charitable organizations. Barona contends that these provisions do not apply to them because the state and county lacked a grant of power from the federal government to impose or enforce these laws within the confines of the reservation. The County contends that such power is granted under the Act of August 15, 1953, Pub.L. No. 83-280, 67 Stat. 588 (commonly known as "Public Law 280").

Public Law 280 does provide some applicability of state law over on-reservation activities. Section 4, codified at 28 U.S.C. Sec. 1360, grants states civil jurisdiction over Indian reservations in words that on the surface seem to make all state laws of general application effective. ³ The Supreme Court, however, has construed this section to mean that states have jurisdiction only over private civil litigation involving reservation Indians in state court. Bryan v. Itasca County, 426 U.S. 373, 385, 96 S.Ct. 2102, 2109, 48 L.Ed.2d 710 (1976). Thus, a state may not impose general civil/regulatory laws on the reservation. Section 2 of Public Law 280, codified at 18 U.S.C. Sec. 1162, ⁴ however, confers on certain states, including California, full criminal jurisdiction over offenses committed by Indians on the reservation. Thus, whether the state and county laws apply to the Tribe's bingo enterprise depends on whether the laws are classified as civil/regulatory or criminal/prohibitory.

II. The Caselaw

We addressed this issue in United States v. Marcyes, 557 F.2d 1361 (9th Cir.1977). In that case, members of the Puyallup Indian Tribe were convicted for possessing certain unmarked and unclassified fireworks in violation of Washington State Law. The court was construing the Assimilative Crimes Act, 18 U.S.C. Secs. 13, 1152 (1976). That Act was held to have incorporated the general criminal laws of a state, but not the civil/regulatory laws. Marcyes, 557 F.2d at 1364. In determining that the Washington law was prohibitory rather than regulatory, the court said:

Even though the Washington scheme allows for limited exceptions (i.e., public displays, ... movies, ...), its intent is to prohibit the general possession and/or sale of dangerous fireworks and is not primarily a licensing law.

The possession of fireworks is not the same situation encountered in other regulatory schemes such as hunting or fishing, where a person who wants to hunt or fish merely has to pay a fee and obtain a license. The purpose of such statutes is to regulate the described conduct and to generate revenues. In contrast, the purpose of the fireworks laws is not to generate income, but rather to prohibit their general use and possession in a legitimate effort to promote the safety and health of all citizens. Moreover, by allowing appellants to operate their stands on the reservation or in any federal enclave would entirely circumvent Washington's determination that the possession of fireworks is dangerous to the general welfare of its citizens.

Marcyes, 557 F.2d at 1365. We are confronted with the question of whether the County's bingo laws are similarly prohibitory.

The Fifth Circuit has recently distinguished Marcyes in determining the scope of Public Law 280 jurisdiction to facts almost identical to the present case. We find Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1717, 72 L.Ed.2d 138 (1982), persuasive. In Butterworth, like the present case, pursuant to a state constitutional grant of power, the state statute excepted bingo operations by certain charitable organizations and under certain conditions from a general prohibition of gambling. ⁵ The Fifth Circuit determined that whether a statute may be classified as regulatory or prohibitory depended on whether the legislature deemed the activity to be against the public policy of the state. Evaluating the statute, the court determined that the legislature meant only to regulate bingo. The court based this determination on the fact that bingo is allowed in Florida as a form of recreation, that certain worthy organizations are allowed to benefit from bingo and that the state regulates bingo halls only to prevent the game of bingo from becoming a money-making venture. 658 F.2d at 314-15. Marcyes was distinguished on the basis that the Marcyes court had found that possession of dangerous fireworks was "generally" prohibited and not merely licensed. This evidenced Washington's public policy against dangerous fireworks.

Another Ninth Circuit case, United States v. Farris, 624 F.2d 890 (9th Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 839 (1981), gives additional support for the "public policy" test. In Farris, the court was considering whether the provisions of the Organized Crime Control Act of 1970, 18 U.S.C. Sec. 1955 (1976), could apply to gambling on the Puyallup Indian reservation. The court found that the "violation of the law of state" requirement of Sec. 1955 was intended to include in the federal prohibition those gambling operations contrary to state public policy, as was the Puyallup gambling. Based on this analysis, the Butterworth court concluded that the state's public policy determines whether the activity is prohibited or regulated.

The scope of Public Law 280 as applied to bingo games is also addressed in Oneida Tribe of Indians v. Wisconsin, 518 F.Supp. 712 (W.D.Wis.1981). In Oneida the district court was confronted with a factual situation and state statutory scheme virtually identical to those found in Butterworth. Using what it called a Marcyes/Butterworth analysis, the Oneida court also determined that the bingo laws were regulatory and not prohibitory. The court rested its decision primarily on the fact that the Wisconsin statute only provided penalties for operation of bingo games not in accordance with the statute. The general populace was allowed to play at will. Thus, the court reasoned that bingo was not contrary to public policy.

Although the test for determining when a state statutory scheme such as the present one should apply to tribal members on their reservation is not susceptible of easy application, we conclude for a number of reasons that the County's bingo laws are regulatory and of a civil nature.

First, the state statute authorizes bingo operations by tax exempt organizations including, for example, fraternal societies, recreational clubs, senior citizen organizations, real estate boards and labor and agricultural groups. Cal.Penal Code Sec. 326.5(a) (West Supp.1982). There is no general prohibition against playing bingo as there was against fireworks in Marcyes. As in...