Dewberry v. Kulongoski
| Decision Date | 21 December 2005 |
| Docket Number | No. Civ. 04-6175-AA.,Civ. 04-6175-AA. |
| Citation | 406 F.Supp.2d 1136 |
| Parties | Susan DEWBERRY, Carole Holcombe, Suzanne Danielson, Arnold Buchman, Don Heath, and Dale Schaffner, Plaintiffs, v. The Honorable Theodore R. KULONGOSKI, Governor of the State of Oregon, Other Executive Officers in the State of Oregon, and the Confederated Tribes of Coos, Umpqua, and Siuslaw Indians, Defendants. |
| Court | U.S. District Court — District of Oregon |
Kelly W.G. Clark, Kristian Roggendorf, O'Donnell & Clark LLP, Portland, OR, for plaintiffs.
Hardy Myers, Attorney General, Katherine G. Georges, Assistant Attorney General, Department of Justice, Salem, OR, for State of Oregon defendants.
Patricia L. Davis, Coos Bay, Oregon, Bruce R. Greene, Alice E. Walker, Greene, Meyer & McElroy, Boulder, CO, for Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians.
Craig Dorsay, Portland, OR, for amicus Tribes.
Plaintiffs filed suit against Governor Kulongoski, other State of Oregon executives (State defendants or the State), and the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (the Tribes), seeking a declaration that a gaming compact (the Compact) between the State and the Tribes is "unconstitutional, illegal, null and void." Complaint, ¶ 22. Plaintiffs allege that the Compact violates the prohibition against the establishment of casinos contained in the Oregon Constitution and was not lawfully executed by the Governor and thus permits unlawful gaming under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721.
On November 1, 2005, the court heard oral argument on the parties' motions for summary judgment and plaintiffs' motion for order to certify questions to the Oregon Supreme Court. Upon consideration of the arguments raised in the briefing and at oral argument, State defendants' and the Tribes' motions are granted, and plaintiffs' motions are denied.
This litigation is the latest in a string of lawsuits challenging the Tribes' right to conduct class III gaming activities on the Hatch Tract pursuant to their Compact with the State. While the facts leading up to this lawsuit have been repeated numerous times, they are recited again here, as the court's opinion is dispositive.
The Tribes are a federally recognized Indian tribe headquartered in Coos Bay, Oregon. In 1998, a parcel of land located in Florence, Oregon known as the Hatch Tract was acquired in trust by the Secretary of the Interior (Secretary) for the benefit of the Tribes. The Tribes sought to establish a gaming facility and petitioned the Secretary to exempt the Hatch Tract from the prohibition against gaming on Indian lands acquired after the enactment of IGRA 1988. 25 U.S.C. § 2719(a). The Tribes argued, inter alia, that the Hatch Tract met the "restored lands" exception under IGRA, and that the gaming prohibition on after-acquired lands did not apply. Id. § 2719(b)(1)(B)(iii).
The Secretary denied the Tribes' request to exempt the Hatch Tract, and the Tribes filed suit in the United States District Court for the District of Columbia. The district court ultimately concluded that the Secretary had failed to consider all relevant facts when determining that the Hatch Tract did not qualify as restored lands under IGRA. See Confederated Tribes of Coos v. Babbitt, 116 F.Supp.2d 155, 164 (D.D.C.2000).
Upon remand, the Secretary reversed her previous determination and concluded that the Hatch Tract qualified as restored lands under IGRA. In 2002, the State of Oregon filed suit in this court challenging the Secretary's revised determination and took the position that the Hatch Tract was not eligible as a gaming site under the restored lands exception.
While litigation ensued, the Tribes and John Kitzhaber (then the Governor of Oregon) negotiated a gaming compact to govern gaming on the Hatch Tract if this court determined that the restored lands exception applied.
On January 8, 2003, the Compact was signed by the parties. On the same day, the Tribes passed a resolution authorizing the Compact. Games permitted under the Compact include blackjack, pai-gow poker, Caribbean stud poker, let-it-ride, mini-baccarat, big 6 wheel, keno, craps, roulette, pari-mutuel wagering, and video lottery games of chance.
On March 7, 2003, the Secretary approved the Tribes' Compact.
On July 1, 2003, this court issued a decision affirming the Secretary's determination that the Hatch Tract was restored lands within the meaning of IGRA and therefore eligible as a gaming site. See Oregon v. Norton, 271 F.Supp.2d 1270 (D.Or.2003). The State did not appeal, and the Tribes proceeded with plans to develop a gaming facility on the Hatch Tract.
On September 15, 2003, plaintiffs sought a writ of mandamus from the Oregon Supreme Court to enjoin further development of the Hatch Tract for gaming purposes. On November 28, 2003, the Oregon Supreme Court denied the petition without comment, and plaintiffs subsequently filed a second petition for writ of mandamus in Lane County Circuit Court. The state court dismissed the petition, finding that plaintiffs could obtain adequate relief in the form of a declaratory judgment, and that the Tribes were necessary parties in any action challenging the Compact.
On January 5, 2004, the Tribes' Gaming Ordinance 30B was approved by the Chairman of the National Indian Gaming Commission.
On March 9, 2004, plaintiffs filed this action in Lane County Circuit Court. Plaintiffs claim that the Compact is invalid because it authorizes casino-style gaming prohibited by the Oregon Constitution, and that Governor Kulongoski, as successor to Governor Kitzhaber, had no authority to enter into the Compact and contravened the separation of powers provisions of the Oregon Constitution in doing so.
On April 7, 2004, the Tribes moved to dismiss plaintiffs' claims on grounds of tribal sovereign immunity. On May 7, 2004, plaintiffs responded to the Tribes' motion and argued that the Tribes had waived their sovereign status under IGRA. Upon plaintiffs' invocation of IGRA, State defendants removed this action to federal court.1
In June 2004, the Tribes opened the Three Rivers Casino on a portion of the Hatch Tract. Currently, it is housed in a temporary facility; the Tribes plan to build permanent structures, including a larger gaming facility, a restaurant, motel, and shops.
Although plaintiffs couch their claims in terms of a declaratory action under state law, at its core, this lawsuit challenges the validity of the Tribes' Compact under the provisions of IGRA. The crux of plaintiffs' argument is that if the Compact either authorizes gaming that is prohibited by state law or was not validly executed, the Compact permits unlawful class III gaming in violation of IGRA.
Any discussion involving IGRA begins with the decision of the United States Supreme Court in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). In Cabazon, the Supreme Court held that states had no authority to regulate gambling on Indian lands. Specifically, the Court ruled that Indian tribes are entitled to license and operate gaming facilities on Indian land without state regulation, if such tribes are located in states that regulate rather than prohibit gaming, even if such gaming is highly regulated. Id. at 221-22, 107 S.Ct. 1083.
[I]f the intent of a state law is generally to prohibit certain conduct, it falls within [the state's] criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory .... The shorthand test is whether the conduct at issue violates the State's public policy.
Id. at 209, 107 S.Ct. 1083. Underlying the Court's ruling is the long-standing principal that a state has no jurisdiction over Indian lands unless Congress has expressly ceded that jurisdiction. Id. at 207, 107 S.Ct. 1083.
In response to Cabazon, the following year Congress passed IGRA to establish a comprehensive statutory scheme that governs gaming on Indian lands. 25 U.S.C. §§ 2701-2721. Through its gaming classification requirements, IGRA gives back to the states "some of the regulatory authority that the Supreme Court had held inapplicable to Indian lands in Cabazon." Artichoke Joe's California Grand Casino v. Norton, 353 F.3d 712, 721 (9th Cir.2003); see also 25 U.S.C. § 2710(b),(d).
IGRA classifies gaming activities into three categories, class I, class II and class III, with each subject to a different level of regulation. 25 U.S.C. § 2710. Class I games are not subject to any type of regulation and include traditional forms of Indian gaming or social games for prizes of minimal value. Id. §§ 2703(6), 2710(a)(1).
Class II games include bingo and other similar games, pull-tabs, lotto, punch boards, tip jars, and certain card games. Id. § 2703(7). Class II games are authorized if conducted under an approved gaming ordinance adopted by the tribe and located in a state that permits class II gaming for any purpose by any entity. Id. § 2710(a)(2),(b)(1)(A) and (B).
Class III gaming is the "most heavily regulated and most controversial form of gambling" under IGRA and includes forms of gaming that are not class I or II, such as slot machines, roulette, craps, and house-banked card games. Artichoke Joe's, 353 F.3d at 715; 25 U.S.C. § 2703(8). In addition to the requirements that such gaming be authorized by the Indian tribe and the National Indian Gaming Commission and located in a state that permits such gaming, class III gaming must conform to a Tribal-State compact entered negotiated by the Indian tribe and the state. 25 U.S.C. § 2710(d)(1).
Thus, if a tribe wishes to conduct class III gaming, generally it must negotiate a compact with the state that establishes the scope and regulation of such activities. Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64...
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