Keweenaw Bay Indian Community v. U.S., s. 96-2204

• Decision Date: 10 February 1998
• Docket Number: 96-2410,Nos. 96-2204,s. 96-2204
• Citation: 136 F.3d 469
• Parties: KEWEENAW BAY INDIAN COMMUNITY, Plaintiff-Appellee, v. UNITED STATES of America; U.S. Department of Interior; U.S. Department of Justice, Defendants-Appellants (96-2410), Bureau of Indian Affairs, et al., Defendants, State of Michigan, Intervenor-Defendant-Appellant (96-2204).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 469

136 F.3d 469

KEWEENAW BAY INDIAN COMMUNITY, Plaintiff-Appellee, v. UNITED STATES of America; U.S. Department of Interior U.S. Department of Justice, Defendants-Appellants (96-2410) Bureau of Indian Affairs, et al., Defendants State of Michigan, Intervenor-Defendant-Appellant (96-2204).

Nos. 96-2204, 96-2410.

United States Court of Appeals Sixth Circuit.

Argued Dec. 9, 1997.

Decided Feb. 10, 1998.

Joseph P. O'Leary (briefed), Keweenaw Bay Indian Community Tribal Center, Baraga, MI, Konrad D. Kohl (argued and briefed), Kohl, Harris & Peters, Metamora, MI, Keweenaw Bay Indian Community.

Edward J Passarelli, Environmental & Natural Resources Division, Department of Justice, Washington, DC, for U.S., U.S. Department of Interior and U.S. Department of Justice in No. 96-2204.

John M. Cahill (briefed), Office of the Attorney General of Michigan, Lottery and Racing Division, Lansing, MI, Keith D. Roberts (argued and briefed), Asst. Attorney Gen., Office of the Attorney General of Michigan, Lansing, MI, for State of Michigan in No. 96-2204.

Edward J. Shawaker (argued and briefed), U.S. Department of Justice, Land & Natural Resources Division, Washington, DC, Edward J Passarelli, Environmental & Natural Resources Division, Department of Justice, Washington, DC, for U.S. in No. 96-2410.

Edward J. Shawaker, Joan M. Pepin, U.S. Department of Justice, Land & Natural Resources Division, Washington, DC, Edward J Passarelli, Environmental & Natural Resources Division, Department of Justice, Washington, DC, for U.S. Department of Interior and U.S. Department of Justice in No. 96-2410.

Joan M. Pepin, U.S. Department of Justice, Land & Natural Resources Division, Washington, DC, for Bureau of Indian Affairs in No. 96-2410.

John M. Cahill, Office of the Attorney General of Michigan, Lottery and Racing Division, Lansing, MI, Keith D. Roberts (argued ), Asst. Attorney Gen., Office of the Attorney General of Michigan, Lansing, MI, for State of Michigan in No. 96-2410.

Before: RYAN, SILER, and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

This appeal involves a dispute among an American Indian tribe, the federal government and the State of Michigan regarding the applicability of a particular provision of the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 et seq., to Indian gaming that is the subject of a tribal-state gaming compact. The district court concluded that the IGRA provision at issue, 25 U.S.C. § 2719, does not apply to gaming that is the subject of a valid tribal-state compact, one of the means of regulating Indian gaming created by the IGRA. The federal defendants-appellants, which include the United States of America, the U.S. Department of the Interior and the U.S. Department of Justice, and the intervenor-appellant State of Michigan appeal the district court's resolution of the declaratory judgment action, arguing that § 2719 applies to all Indian gaming subject to the IGRA, including gaming that is the subject of a valid tribal-state compact. For the following reasons, we conclude that 25 U.S.C. § 2719 applies to Indian gaming that is the subject of a tribal-state compact and we accordingly reverse and remand.

I. FACTS AND PROCEEDINGS BELOW

On October 14, 1988, the Keweenaw Bay Indian Community ("the Community") ¹ obtained title to a parcel of land in Marquette County, Michigan. Keweenaw Bay Indian Community v. United States, 914 F.Supp. 1496, 1498 (W.D.Mich.1996). The land was taken into trust by the U.S. Government for the benefit of the Community in September 1990. Id.

On August 20, 1993, the Community and the State of Michigan entered into a tribal-state gaming compact pursuant to the IGRA. This compact authorizes Class III gaming activities on the "Indian lands" of the Community within the State of Michigan. ² The compact specified that it would become effective upon the fulfillment of the following four conditions: (1) endorsement by the tribal chairperson after approval by the Tribal Council; (2) endorsement by the Michigan Governor and concurrence in the endorsement by resolution of the Michigan legislature; (3) approval by the Secretary of the Interior of the United States; and (4) publication in the Federal Register. Compact § 11, J.A. 117. Each of these conditions has indisputably been fulfilled. Keweenaw Bay Indian Community v. United States, 940 F.Supp. 1139, 1142 n. 5 (W.D.Mich.1996). In addition, statutory compact requirements were fulfilled. On March 3, 1994, the tribal gaming ordinance promulgated by the Community was approved by the National Indian Gaming Commission, as required by one of the IGRA compact provisions, 25 U.S.C. § 2710(d)(2)(B). ³

On August 19, 1994, the Community submitted an application to the Department of the Interior for approval of the gaming at issue pursuant to 25 U.S.C. § 2719. In response, the Bureau of Indian Affairs took the position that the Community must submit to the procedures set forth in 25 U.S.C. § 2719 before it could conduct Class III gaming on the land. The Community disagreed with this position and in September 1994, opened a Class III gaming facility on its land in Marquette County, Michigan ⁴ and filed this action for declaratory and injunctive relief to allow Class III gaming on the tract of land. ⁵ The federal defendants counterclaimed, seeking a declaration that the gaming activities conducted at the Community's casino are in violation of state and federal law. The federal defendants also sought an order enjoining the Community from licensing, authorizing or operating Class III gaming on the land until the requirements of 25 U.S.C. § 2719 had been met; it also sought abatement of the gaming and confiscation of the unlawful gambling devices pursuant to state law.

The district court concluded that the IGRA does not require that Class III gaming activities authorized by a tribal-state compact also undergo the approval requirements contained in 25 U.S.C. § 2719. The district court reasoned that Class III gaming authorized and regulated by a tribal-state compact does not constitute "gaming regulated by" the IGRA and thus the gaming at issue was not regulated by § 2719, because it applies only to "gaming regulated by" the IGRA. See 25 U.S.C. § 2719(a) (prohibiting "gaming regulated by this chapter " absent certain statutory exceptions, on non-reservation lands that are not contiguous to a reservation and which are taken into trust by the United States government after October 17, 1988 (emphasis added)). The district court noted that both the Secretary of the Interior and Michigan's Governor had approved the compact and it would be odd for Congress to require the Community to resubmit gaming permitted by the compact to the Secretary of the Interior and the Governor, as would be required if § 2719 were applied. The district court granted summary judgment to the Community. See Keweenaw Bay Indian Community v. United States, 914 F.Supp. 1496 (W.D.Mich. Feb. 5, 1996) ("Keweenaw Bay I ").

The federal defendants then moved for the district court's reconsideration of its judgment. The State of Michigan ("State" or "Michigan") entered the picture at this point and moved to intervene in the action and also for reconsideration of the district court's judgment. The district court granted the State's motion to intervene and denied the federal defendants' and the State's motions for reconsideration. Keweenaw Bay Indian Community v. United States, 940 F.Supp. 1139 (W.D.Mich. Aug. 27, 1996) ("Keweenaw Bay II "). In the course of doing so, the district court rejected the alternative contention that the terms of the compact itself provided for § 2719's applicability. The federal defendants and the State of Michigan subsequently filed this appeal.

II. THE IGRA AND RELEVANT PROVISIONS

In California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), the Supreme Court sharply limited the power of the states to apply their gambling laws to Indian gaming. An essential element of its decision was that Congress had not acted specifically to make state gambling laws applicable in Indian country. In Cabazon, the Court made clear that Congress had to create for the states any effective ability to prevent or regulate Indian gaming, and in response to Cabazon, Congress enacted the IGRA. See Confederated Tribes of Siletz Indians of Oregon v. United States, 110 F.3d 688, 692 (9th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 625, 139 L.Ed.2d 606 (1997); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1548 n. 3 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 45, 139 L.Ed.2d 11 (1997). Congress enacted the IGRA in 1988 and thereby created a framework for the regulation and management of gambling on Indian land, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 45-50, 116 S.Ct. 1114, 1119-20, 134 L.Ed.2d 252 (1996), which included a role for the states in the regulation of Indian gaming, Confederated Tribes, 110 F.3d at 692.

The IGRA divides Indian gaming into three categories, or "classes," with different regulatory schemes for each. Class I gaming encompasses "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations." 25 U.S.C. § 2703(6). Class I gaming on Indian lands "is within the exclusive jurisdiction of the Indian tribes" and is not subject to the IGRA. 25 U.S.C. § 2710(a)(1). Class II gaming consists of bingo played for prizes, card games and games similar to bingo (e.g., punch boards, instant bingo, and pull-tabs). 25 U.S.C. § 2703(7)(A). Class II gaming does not include any "banking card games, including baccarat, chemin de fer or blackjack" or any "electronic or electromechanical facsimiles of any game of chance or slot machines of any kind." 25 U.S.C. § 2703(7)(B). Class II gaming is subject only to tribal regulation and federal oversight by the National Indian...