Cabazon Band of Mission Indians v. Riverside County, State of Cal.

• Citation: 783 F.2d 900
• Decision Date: 08 April 1986
• Docket Number: No. 84-6635,84-6635
• Parties: CABAZON BAND OF MISSION INDIANS, Plaintiff-Appellee, v. COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, and Ben Clark, Defendants-Appellants. MORONGO BAND OF MISSION INDIANS, Plaintiff-Appellee, v. COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, and Ben Clark, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 900

783 F.2d 900

CABAZON BAND OF MISSION INDIANS, Plaintiff-Appellee, v. COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, and Ben Clark,

Defendants-Appellants.

MORONGO BAND OF MISSION INDIANS, Plaintiff-Appellee, v. COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, and Ben Clark,

Defendants-Appellants.

No. 84-6635.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 10, 1985.

Decided Feb. 25, 1986.

As Amended April 8, 1986.

Glenn M. Feldman, Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Washington, D.C Barbara E. Karshmer, Fresno, Cal., for plaintiffs-appellees.

Roderick W. Walston, Deputy Atty. Gen., San Francisco, Cal., Glenn R. Salter, Riverside, Cal., Timothy R. Malone, Washington, D.C., for defendants-appellants.

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

Before J. BLAINE ANDERSON, FARRIS, and NELSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

I. OVERVIEW

The State of California (State) and County of Riverside (County) appeal the district court's granting of the Cabazon and Morongo Indians' (Tribes) motion for summary judgment and its issuance of a permanent injunction restraining the State and County from applying their gambling laws on the reservation. The only issue on appeal is whether state and local gambling laws apply on Indian reservations. We affirm.

II. FACTS

The facts, as stipulated by the parties, are as follows:

The Tribes occupy separate reservations situated in Riverside County, California. The Tribes conduct bingo games for profit on their reservations. The profits are the sole source of income for the Tribes and the games provide the main source of employment. The Tribes have their own ordinances regulating the bingo games. The games are operated by non-Indian professional operators, who receive a percentage of the profits. The games are played predominantly by non-Indian participants. The jackpots exceed $250. Under California law, bingo games may be played only for bona fide charitable purposes; the games must be operated by members of the charitable organization; and the jackpots cannot exceed $250. The Tribes' bingo games violate these provisions.

The Cabazon Band also conducts three card parlor games on its reservation: draw poker, lowball draw poker, and panguingue. A Riverside County ordinance prohibits the playing of these games. ¹

The Tribes filed an action for declaratory and injunctive relief and for damages against Riverside County, alleging that the County could not lawfully prohibit the bingo and card games on the reservation. The State of California intervened. The parties filed cross motions for summary judgment on the jurisdictional question whether State and County gambling laws apply on reservations. The district court granted the Tribes' motion for summary judgment and denied the County and State's motion. The district court issued final judgment on the jurisdictional issues under Rule 54(b) of the Federal Rules of Civil Procedure; issued a permanent injunction restraining the County and State from applying their gambling laws on the reservation; and retained jurisdiction to consider the damages issue. The County and State appealed.

III. DISCUSSION

The State contends that state and local laws pertaining to gambling should apply on Indian reservations under (1) Public Law 280, (2) The Organized Crime Control Act, or (3) federal common law.

A. Public Law 280

The Act of August 15, 1953, Pub.L. No. 83-280, 67 Stat. 588 (Public Law 280) provides 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. ² Barona Group of Capitan Grande Band, etc. v. Duffy, 694 F.2d 1185, 1187 (9th Cir.1982). The Supreme Court, however, has limited the section to give states 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); Barona, 694 F.2d at 1187-88. Section 2 of Public Law 280, codified at 18 U.S.C. Sec. 1162, confers on certain states, including California, full criminal jurisdiction over offenses committed by Indians on the reservation. ³ Barona, 694 F.2d at 1188. Thus, Public Law 280 authorizes the application of state "criminal/prohibitory" laws on Indian reservations, but not "civil/regulatory" laws. Id. This court has held that a state law is criminal/prohibitory if the activity the statute addresses violates "public policy," and civil/regulatory if the activity does not. Barona, 694 F.2d at 1188-90. Therefore, the issue that must be resolved in this case is whether the gambling activities conducted by the Tribes on their reservations violate the public policy of the State of California.

This court specifically held in Barona that the same California gambling law in question in this case does not, for a variety of reasons, violate California public policy. Id. Hence, said the court in Barona, the California law is civil/regulatory and does not apply to the Indian reservations. Id.

The district court judge ruled that Barona is dispositive in the present case. However, he also felt, and the State argues, that the Supreme Court's recent decision in Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983), supports a reexamination of Barona and the civil/regulatory-criminal/prohibitory distinction. In Rice, the Supreme Court rejected what it terms the "substantive-regulatory" distinction because neither the text of 18 U.S.C. Sec. 1161 (a federal Indian statute which incorporates state law) nor its legislative history reveal any such distinction. Rice, 463 U.S. at 734 n. 18, 103 S.Ct. at 3303 n. 18. The Court went on to say that "[i]n the absence of a context that might possibly require it, we are reluctant to make such a distinction." Id. It can be said with equal force that neither the text nor the legislative history of Public Law 280 reveal any civil/regulatory-criminal/prohibitory distinction. However, the Supreme Court, in interpreting Public Law 280, has stated that "statutes passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being resolved in favor of the Indians." Bryan, 426 U.S. at 392, 96 S.Ct. at 2112. Although the regulatory bingo statute may arguably be interpreted as prohibitory, the resolution must be in favor of the Indian tribe. Seminole Tribe of Florida v. Butterworth, 658 F.2d 310, 316 (5th Cir.1981). Furthermore, we are bound by the precedent established by this circuit in Barona ⁴ which is factually and legally indistinguishable from the case at bar. Therefore, we hold that the gambling activities of the Tribes on the Indian reservation do not violate California public policy. For that reason, we find that California's bingo statute is civil/regulatory in nature and does not apply, under Public Law 280, on the Indian reservations.

B. The Federal Organized Crime Control Act

The Organized Crime Control Act of 1970, 18 U.S.C. Sec. 1955 (1976) (OCCA) incorporates by reference certain state gambling laws and makes the violation of the state provisions a federal offense. ⁵

In 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), this court held that whether a tribal activity is "a violation of the law of a state" within the meaning of the OCCA depends on whether it is contrary to the "public policy" of the state. Id. at 895-96; Barona, 694 F.2d at 1190. "Thus, Farris makes co-extensive the tests for application of state law to Indian reservations under [the OCCA] and for direct application of state law under Public Law 280." Barona, 694 F.2d at 1190. Because we have concluded that bingo games are not contrary to the public policy of California, the activity is not violative of the OCCA.

C. Federal Common Law

We turn now to the State's argument that the Supreme Court has adopted a federal common law in determining the applicability of state laws on Indian reservations. ⁶ This requires a "particularized inquiry" into "the nature of state, federal, and tribal interests at stake." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980). See also Queets Band of Indians v. State of Washington, 765 F.2d 1399, 1406 (9th Cir.1985), vacated upon settlement of the parties, 783 F.2d 154 (9th Cir. 1986). Under this particularized inquiry test, state laws may be applied to Indian reservations unless such application would (1) interfere with reservation self-government, or (2) impair a right granted or reserved by federal law. Rice, 463 U.S. at 718, 103 S.Ct. at 3294; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973).

The Supreme Court's decision in Rice states that "our recent cases have established a 'trend ... away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption.' " Rice, 463 U.S. at 718, 103 S.Ct. at 3294 (quoting McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973)). However, aside from a strong federal policy to encourage and foster tribal self-government and to promote reservation economic development, New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983), there is apparently no federal law preempting the determination of the applicability of state and local gambling laws on Indian reservations. Therefore, federal law does not create a barrier to the application of state and local gambling laws on Indian reservations. ⁷ However, our analysis does not end here.

Federal preemption is only one of two barriers to state jurisdiction; such jurisdiction is also barred if it would impermissibly...