Cheyenne River Sioux Tribe v. State of S.D., s. 93-1224

• Decision Date: 04 October 1993
• Docket Number: Nos. 93-1224,93-1521,s. 93-1224
• Citation: 3 F.3d 273
• Parties: CHEYENNE RIVER SIOUX TRIBE, Appellant/Cross-Appellee, v. STATE OF SOUTH DAKOTA; George S. Michelson, Governor, personally and in his official capacity; Mark W. Barnett, Attorney General, personally and in his official capacity; Grant Gormley, State Negotiator, personally and in his official capacity; John Guhim, State Negotiator, personally and in his official capacity, Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 273

3 F.3d 273

CHEYENNE RIVER SIOUX TRIBE, Appellant/Cross-Appellee, v. STATE OF SOUTH DAKOTA; George S. Michelson, Governor,

personally and in his official capacity; Mark W. Barnett,

Attorney General, personally and in his official capacity;

Grant Gormley, State Negotiator, personally and in his

official capacity; John Guhim, State Negotiator, personally

and in his official capacity, Appellees/Cross-Appellants.

Nos. 93-1224, 93-1521.

United States Court of Appeals,

Eighth Circuit.

Submitted June 16, 1993.

Decided Aug. 23, 1993.

Rehearing and Suggestion for

Rehearing En Banc Denied Oct. 4, 1993.

Mark C. Van Norman, Eagle Butte, SD, argued (Steven C. Emery and Timothy W. Joranko, on the brief), for appellant/cross-appellee.

Lawrence E. Long, Chief Deputy Atty. Gen., Pierre, SD, argued (Richard J. Helsper, Brookings, SD, on the brief), for appellees/cross-appellants.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSEN, Circuit Judge.

McMILLIAN, Circuit Judge.

The Cheyenne River Sioux Tribe (tribe) appeals from an order entered in the United States District Court for the District of South Dakota ¹ which denied the tribe's motion for a preliminary injunction and summary judgment. 830 F.Supp. 523. The tribe filed this action in federal district court against the State of South Dakota and several state officials, in their official and personal capacities (collectively referred to as the state), pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. Sec. 2701 et seq. (1988) (IGRA). The tribe sought to remedy the alleged failure of the state to negotiate in good faith regarding certain gaming activities to be conducted on and off the tribe's reservation lands and to reach an agreement on a tribal-state gaming compact. The tribe appeals from the order denying it preliminary injunctive relief and summary judgment, while the state cross-appeals the denial of its motion for summary judgment. We affirm the order of the district court for the reasons discussed below.

I.

On January 9, 1991, the tribe requested that the state negotiate a tribal-state compact to allow the tribe to operate gaming facilities on the reservation under the IGRA. The IGRA was enacted after a decision by the Supreme Court in 1987 which held that California could not enforce state and local gaming laws against the Indian tribes because California law only regulated and did not prohibit gaming. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-22, 107 S.Ct. 1083, 1094-95, 94 L.Ed.2d 244 (1987). This case established that in states that permit gambling Indian tribes have the authority to license and operate gaming on Indian lands free from state regulation. Id. This opened the door to extensive gambling on Indian lands. In 1988, Congress responded to the decision by enacting the IGRA.

The IGRA divides gaming into three classes: (1) class I gaming includes social gaming for minimal prizes and traditional Indian gaming conducted at ceremonies or celebrations; (2) class II gaming includes bingo, lotto, pull-tabs, punch boards, tip jars, and non-banking ² card games, as well as banking card games operated on or before May 1, 1988; and (3) class III gaming includes casino-type gambling, parimutuel horse and dog racing, lotteries, and all other forms of gaming that are not class I or class II gaming. 25 U.S.C. Sec. 2703(6)-(8). Class I gaming on Indian lands is within the exclusive jurisdiction of the tribes and is not subject to the IGRA. Id. Sec. 2710(a)(1). Class II gaming on Indian lands is within the jurisdiction of the tribes, but is subject to the provisions of the IGRA, including oversight by the National Indian Gaming Commission within the Department of the Interior. Id. Sec. 2710(a)(2), (b)(1)(A), (B). Class III gaming activities are lawful on Indian lands only if authorized by a tribal ordinance or resolution, located in a state that permits such gaming for any purpose by any person, organization, or entity, and conducted in conformance with a tribal-state compact entered into by the tribe and state. Id. Sec. 2710(d)(1)(A)-(C).

The IGRA provides a "framework" for negotiation of tribal-state gaming compacts--the tribe requests the state to enter into negotiations; upon receiving such a request, the state "shall" negotiate with the tribe "in good faith" to enter such a compact. Id. Sec. 2710(d)(3)(A). Any such compact takes effect only after approval by the Secretary of the Department of the Interior. Id. Sec. 2710(d)(4). Tribal-state compacts can include provisions regarding the application of criminal and civil laws and regulations, allocation of criminal and civil jurisdiction between the tribe and state, taxation by the tribe, remedies for breach of contract, standards for the operation and maintenance of gaming facilities including licensing, and any other subjects directly related to the operation of gaming activities. Id. Sec. 2710(d)(3)(C).

The IGRA provides the United States district courts with jurisdiction over "any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact ... or to conduct such negotiations in good faith." Id. Sec. 2710(d)(7)(A)(i). Upon the introduction of evidence by the tribe that negotiations began more than 180 days before, no tribal-state compact was concluded, and the state did not respond to its request for negotiations or did not respond in good faith, the burden of proof shifts to the state to prove that it has negotiated in good faith. Id. Sec. 2710(d)(7)(B)(ii). If the district court finds that the state has failed to negotiate in good faith, the district court "shall order the State and Tribe to conclude such a compact within a 60-day period." Id. Sec. 2710(d)(7)(B)(iii). This is the injunctive relief sought by the tribe in the present case.

The IGRA further provides that if the tribe and state fail to conclude a compact after 60 days, the tribe and the state then each submits to a mediator appointed by the district court a proposed compact that represents their last best offer; the mediator then selects the one which best comports with the IGRA and presents it to the tribe and state. Id. Sec. 2710(d)(7)(B)(iv), (v). If the state consents to the proposed compact submitted by the mediator within 60 days, then the proposed compact becomes the tribal-state compact. Id. Sec. 2710(d)(7)(B)(vi). However, if the state does not consent within 60 days, then the mediator notifies the Secretary of the Department of the Interior, who, in consultation with the tribe, prescribes procedures consistent with the proposed compact selected by the mediator, the IGRA, and relevant state law, under which the tribe can then conduct class III gaming on Indian lands over which the tribe has jurisdiction. Id. Sec. 2710(d)(7)(B)(vii).

Since 1989, South Dakota has allowed state lotteries, video lottery, limited card games, slot machines, parimutuel horse and dog racing, and simulcasting. South Dakota has located within its boundaries nine federally recognized tribes. ³ The first tribe to request negotiations toward a class III gaming compact under the IGRA was the Flandreau Santee Tribe in June 1989. Negotiations between the state and the Flandreau Santee Tribe broke down after about five months and the tribe sued South Dakota under the IGRA; however, the case was finally settled by the execution of a compact between the state and the tribe, approved by the Bureau of Indian Affairs (BIA) on July 26, 1990. Similar gaming compacts have been negotiated and executed between the state and five other tribes--the Sisseton-Wahpeton Sioux Tribe, March 1991; the Yankton Sioux Tribe, June 1991; the Lower Brule Sioux Tribe, September 1991; the Crow Creek Sioux Tribe, April 1992; and the Standing Rock Sioux Tribe, August 1992. The only other location in South Dakota to offer gaming similar to class III gaming under IGRA is the historic community of Deadwood.

When the Cheyenne River Sioux Tribe requested the state to negotiate a tribal-state compact, five "official" negotiations between tribal and state officials were held through August 1991. Tribal officials also met with the governor on three occasions before filing suit against the state. The tribe alleges the state refused to negotiate in good faith because the state adopted a "rigid" negotiation strategy by offering the tribe the so-called "Flandreau compact," ⁴ which the state used as a "model" in all subsequent tribal-state compact negotiations. If the tribe wanted more favorable terms than those in the Flandreau compact, the state demanded certain concessions, for example, expanded state criminal jurisdiction. The tribe contends the state refused to consider the particular circumstances and interests of the Cheyenne River Sioux Tribe. The tribe argues there are significant differences between the Cheyenne River Sioux and Flandreau Santee Sioux Tribes that make it unreasonable to impose the Flandreau compact on the Cheyenne River Sioux Tribe. The Cheyenne River Sioux reservation is about the size of Connecticut and is located in a remote western part of the state, far from population centers, which are located in the southeastern corner of the state (near the Iowa and Nebraska borders). The Cheyenne River Sioux Tribe has at least 10 times the members of the Flandreau Santee Sioux Tribe and, unlike the Flandreau Santee Sioux Tribe, has a mature tribal government, including tribal police and tribal courts. In addition, the tribe alleges the state refused to negotiate a tribal-state compact to include keno and other games permitted by state law, higher bet limits, and gaming sites on commercially valuable Indian trust lands located near Fort Pierre and Pluma.

The tribe filed the present action in April 1992 alleging violation of the IGRA and 42 U.S.C. Sec. 1983 and seeking declaratory relief and...