Mashantucket Pequot Tribe v. State of Conn., No. 1841

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before WINTER, MAHONEY, and WALKER; MAHONEY
• Citation: 913 F.2d 1024
• Parties: MASHANTUCKET PEQUOT TRIBE, Plaintiff-Appellee, v. STATE OF CONNECTICUT and William A. O'Neill, Governor of the State of Connecticut, Defendants-Appellants. ocket 90-7508.
• Docket Number: D,No. 1841
• Decision Date: 04 September 1990

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913 F.2d 1024 MASHANTUCKET PEQUOT TRIBE, Plaintiff-Appellee,
v.
STATE OF CONNECTICUT and William A. O'Neill, Governor of the
State of Connecticut, Defendants-Appellants. No. 1841, Docket 90-7508. United States Court of Appeals,
Second Circuit. Argued July 18, 1990.
Decided Sept. 4, 1990.

Richard M. Sheridan, Asst. Atty. Gen. of the State of Conn., (Clarine Nardi Riddle, Atty. Gen. of the State of Conn., Robert F.

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Vacchelli, Carolyn Querijero, Asst. Attys. Gen., Hartford, Conn., of counsel), for defendants-appellants.

Barry A. Margolin, Portland, Me. (Robert L. Gips, Gregory W. Sample, Tureen & Margolin, Portland, Me., Jackson T. King, Brown, Jacobson, Jewett & Laudone, Mystic, Conn., of counsel), for plaintiff-appellee.

Richard B. Stewart, Asst. Atty. Gen. of the U.S. (Carol J. Williams, Blake A. Watson, Attys., Dept. of Justice, Washington, D.C., Michael Cox, Dept. of Interior, Washington, D.C., of counsel), for the U.S., amicus curiae.

Robert K. Corbin, Atty. Gen. of the State of Ariz. (Ian A. Macpherson, Phoenix, Ariz., of counsel), for the states of Ariz. and Nev., amici curiae.

Donald J. Simon, Washington, D.C. (Sonosky, Chambers & Sachse, Washington, D.C., Jerome L. Levine, Neiman, Billet, Albala & Levine, Los Angeles, Cal., James E. Townsend, Minneapolis, Minn., of counsel), for Nat. Indian Gaming Ass'n, amicus curiae.

Before WINTER, MAHONEY, and WALKER, Circuit Judges.

MAHONEY, Circuit Judge:

The Indian Gaming Regulatory Act ("IGRA") ¹ establishes three classes of gaming activity. The Mashantucket Pequot Tribe (the "Tribe") seeks to operate casino-type games of chance on its reservation located in Ledyard, Connecticut (the "Reservation"). The contemplated games are class III gaming activities, which are allowed only in conformance with a tribal-state compact. Accordingly, the Tribe requested that the State of Connecticut enter into negotiations with the Tribe concerning the formation of a compact. The state refused to negotiate, and when no compact had been completed more than 180 days after the request to negotiate, the Tribe filed this action against the State of Connecticut and Governor William A. O'Neill (collectively the "State") in the United States District Court for the District of Connecticut pursuant to 25 U.S.C. Sec. 2710(d)(7) (1988). The Tribe sought (1) an order directing the State to conclude within sixty days a tribal-state compact with the Tribe governing the conduct of gaming activities on the Reservation, pursuant to section 2710(d)(7)(B)(iii), and appointing a mediator to resolve any impasse in accordance with section 2710(d)(7)(B)(iv); and (2) a declaratory judgment that the IGRA obliges the State to negotiate in good faith with the Tribe regarding the conduct of gaming activities on the Reservation.

Both sides moved for summary judgment. Agreeing with the Tribe that the only precondition to the State's obligation to negotiate is a request by the Tribe to negotiate in accordance with section 2710(d)(3)(A), the district court 737 F.Supp. 169 granted summary judgment to the Tribe directing the State to enter into good faith negotiations with the Tribe, and directing that the State and the Tribe conclude a tribal-state compact within sixty days.

We affirm.

Background

The IGRA declares its primary purpose to be the provision of "a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." Sec. 2702(1). Its enactment followed court decisions upholding the right of tribes to conduct public bingo games on Indian lands. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987); Barona Group of Capitan Grande Band of Mission Indians v. Duffy, 694 F.2d 1185 (9th Cir.1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2091, 77 L.Ed.2d 301 (1983); Seminole Tribe v. Butterworth, 658 F.2d 310 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1717, 72 L.Ed.2d 138 (1982); Mashantucket Pequot Tribe v. McGuigan, 626 F.Supp. 245

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(D.Conn.1986); Oneida Tribe of Indians v. Wisconsin, 518 F.Supp. 712 (W.D.Wis.1981).

The IGRA establishes three classes of gaming, which are subject to differing degrees of tribal, state, and federal jurisdiction and regulation. Class I gaming is limited to social games for nominal prizes and traditional tribal ceremonial games, Sec. 2703(6), and is subject only to tribal regulation, Sec. 2710(a)(1). Class II gaming includes bingo and related games, as well as certain nonbanking card games. ² Sec. 2703(7)(A). Banking card games, electronic games of chance, and slot machines are expressly excluded, Sec. 2703(7)(B), but certain banking card games operated by Indian tribes in certain states on or before May 1, 1988 may be grandfathered as class II gaming, Sec. 2703(7)(C). Class II gaming is generally not subject to state regulation, ³ but is subject to some federal oversight by the National Indian Gaming Commission ("NIGC"), Sec. 2710(b) and (c), in addition to tribal regulation, Sec. 2710(a)(2). All other forms of gaming are classified as class III gaming. Sec. 2703(8).

Under section 2710(d)(1), class III gaming activities are lawful on Indian lands only if such activities are:

(A) authorized by an ordinance or resolution that--

(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands,

(ii) meets the requirements of subsection (b) of this section, and

(iii) is approved by the Chairman [of the NIGC], ⁴

(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and

(C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) [of section 2710(d) ] that is in effect.

25 U.S.C. Sec. 2710(d)(1) (1988). A tribal-state compact is "in effect" when "notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Register." Sec. 2710(d)(3)(B). In sum, class III gaming activities are subject to tribal and state regulation, as provided by a tribal ordinance, a tribal-state compact, and the IGRA.

The Tribe sought to expand its gaming activities to include class III games of chance, such as those activities permitted by Connecticut law for certain nonprofit organizations during "Las Vegas nights." Conn.Gen.Stat. Secs. 7-186a to 7-186p (1989). ⁵ Accordingly, counsel for the Tribe wrote a letter dated March 30, 1989 to the governor of Connecticut, William A. O'Neill, "to request that the State of Connecticut enter into negotiations with the Tribe for the purpose of entering into a Tribal-State compact governing the conduct of expanded gaming activities on the Tribe's reservation

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in Ledyard [, Connecticut]." By letter dated May 1, 1989, Governor O'Neill responded that he had requested that the State's Acting Attorney General, Clarine Nardi Riddle, review the IGRA and determine the State's obligations thereunder.

By letter dated July 19, 1989, Acting Attorney General Riddle advised the Tribe that the State would not negotiate concerning the operation of games of chance or "Las Vegas nights" on the reservation, since the Tribe only had a "right to conduct 'Las Vegas Nights' on the premises of the reservation subject ... to those restrictions contained in the Connecticut General Statutes (Sec. 7-186a, et seq.) and the regulations of the Division of Special Revenue which are generally applicable to those groups authorized to conduct such a form of entertainment." The letter also stated that the State was willing "to negotiate, in good faith, with the Tribe, concerning other permissible forms of gaming in Connecticut," and that Governor O'Neill would "shortly be appointing a task force or negotiating team specifically for this purpose."

By letter dated August 1, 1989, counsel for the Tribe expressed to Acting Attorney General Riddle their pleasure "to hear of the impending appointment of a negotiating team for the State, and [their] hope to meet with [the] negotiating team as soon as possible," while soliciting an expression of the legal analysis underlying the State's view that it was under no obligation to negotiate concerning class III gambling. Responding by letter dated August 23, 1990, Acting Attorney General Riddle offered additional arguments for the State's position, discussed the State's amenability to litigation to resolve the issue, and raised the question whether the Tribe had enacted a gaming ordinance. Despite the State's asserted "readiness to resolve the issue of casino type gambling" on the Reservation, however, prior to this litigation the State never entered into actual negotiations with the Tribe, nor was the Tribe ever advised of the appointment of any negotiating committee by the State.

Section 2710(d)(7)(B)(i) authorizes an Indian tribe to commence an action in district court against a state for failure to negotiate if a 180-day period has elapsed since the tribe requested that the state enter into negotiations. On November 3, 1989, after more than 200 days had elapsed since the Tribe requested negotiations, the Tribe filed its complaint in this action in the United States District Court for the District of Connecticut, invoking jurisdiction under section 2710(d)(7)(A)(i).

On January 25, 1990, the Tribe moved for summary judgment: (1) declaring that the State is required by the IGRA to negotiate with the Tribe concerning the terms of operation of games of chance on the Reservation, including any rules concerning prizes, wagers and frequency; (2) ordering the State and Tribe to conclude a tribal-state compact governing gaming activities on the Reservation within sixty days pursuant to section 2710(d)(7)(B)(iii); and (3) ordering the appointment of a mediator to resolve any impasse in accordance with section 2710(d)(7)(B)(iv)-(vii).

The State...