Mashantucket Pequot Tribe v. State of Conn., Civ. No. H-89-717 (PCD).

• Decision Date: 15 May 1990
• Docket Number: Civ. No. H-89-717 (PCD).
• Citation: 737 F. Supp. 169
• Parties: MASHANTUCKET PEQUOT TRIBE v. STATE OF CONNECTICUT, et al.
• Court: U.S. District Court — District of Connecticut

737 F. Supp. 169

MASHANTUCKET PEQUOT TRIBE v. STATE OF CONNECTICUT, et al.

Civ. No. H-89-717 (PCD).

United States District Court, D. Connecticut.

May 15, 1990.

Jackson T. King, Jr., Brown, Jacobson, Jewett & Laudone, Mystic, Conn., Barry A. Margolin, Robert L. Gips, Gregory W. Sample, Tureen & Margolin, Portland, Me., for plaintiff.

Richard M. Sheridan, Asst. Atty. Gen., MacKenzie Hall, Hartford, Conn., for defendants.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DORSEY, District Judge.

Plaintiff sues under the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701, et seq.,¹ and now moves for summary judgment: (1) ordering the State, as required by IGRA, to negotiate with the Tribe concerning the terms of operation of games of chance, as defined by Conn.Gen. Stat. § 7-186a, et seq., 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 of the date of this order pursuant to 25 U.S.C. § 2710(d)(7)(B)(iii) and to appoint a mediator to resolve any impasse in accordance with 25 U.S.C. § 2710(d)(7)(B)(iv).

Defendants cross-move arguing that this court lacks jurisdiction to entertain the present action since the Tribe has failed to adopt a tribal ordinance which would permit casino-type gambling upon the reservation. Defendants also contend that the "Las Vegas nights" which the State permits non-profit organizations to conduct are not comparable to casino-type gambling and hence are not permissible Class III gambling activity pursuant to 25 U.S.C. § 2710(d)(1)(B).

Background

On March 30, 1989, the Tribe requested Governor O'Neill to enter negotiations for the purposes of forming a Tribal-State compact governing gaming activities on the Tribe's reservation pursuant to IGRA. On May 1, 1989, the Governor responded that he had requested the State's Acting Attorney General to review IGRA and determine the State's obligations thereunder.

The State permits certain types of organizations to conduct games of chance at Las Vegas nights subject to the restrictions in Conn.Gen.Stat. § 7-186a, et seq. On July 19, 1989, Acting Attorney General Riddle advised that the fact that Connecticut permits Las Vegas nights does not compel it to negotiate with the Tribe under IGRA when the ultimate purpose is construction and operation of a casino.² The State recognized its responsibility under IGRA to negotiate in good faith concerning other forms of gaming permitted in Connecticut and did not dispute the Tribe's right to conduct Las Vegas nights subject to statutory and regulatory restrictions. She also noted that the Governor would shortly appoint a task force or negotiating team for that purpose.

Plaintiff asserts that the State has not appointed such a team nor commenced negotiations and that over six months has elapsed since its request. The State contends that it is under no obligation to enter into negotiations until plaintiff adopts a tribal ordinance governing its proposed gaming activities. The State also asserts that it "would gladly participate in `friendly' litigation designed to secure a federal court declaration of the permissibility of casino gambling on the reservation."

Discussion

IGRA defines the rights of Indian tribal governments to conduct gaming activities on their reservations. The Act settled the legislative debate which 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); Mashantucket Pequot Tribe v. McGuigan, 626 F.Supp. 245 (D.Conn.1986); Barona Group of Capitan Grande Band of Mission Indians v. Duffy, 694 F.2d 1185, 1187 (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, 313 (5th Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1717, 72 L.Ed.2d 138 (1982); Oneida Tribe of Indians v. Wisconsin, 518 F.Supp. 712, 720 (W.D.Wis.1981). IGRA provides that "Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity." 25 U.S.C. § 2701(5).

IGRA establishes three classes of gaming which are subject to differing degrees of federal, state, and tribal regulation. Class I gaming is limited to social games, either ceremonial or for nominal prizes, 25 U.S.C. § 2703(6), and is free of all outside regulation. Id., § 2710(a)(1). Class II gaming includes bingo and related games, as well as certain non-banking card games, i.e., games played against other players as opposed to the house. Id., § 2703(7). These games are free of state regulation but subject to some federal oversight by the National Indian Gaming Commission ("NIGC"). Id., §§ 2710(b), (c).

All other forms of gaming are classified as class III gaming. 25 U.S.C. § 2703(8). 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, (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) that is in effect.

25 U.S.C. § 2710(d)(1).

A. State's Obligation to Negotiate in Good Faith

In its first claim for relief, plaintiff contends that "the State's failure to negotiate in good faith to conclude a Tribal-State compact governing the conduct of gaming activities violates IGRA." Complaint, ¶ 13. IGRA provides that any tribe having jurisdiction over lands upon which class III gaming is to be conducted shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a compact governing such gaming and that, upon receiving such request, the State shall negotiate with the tribe in good faith to enter into such a compact. 25 U.S.C. § 2710(d)(3)(A).

It is undisputed that plaintiff, on March 30, 1989, requested the State to enter into negotiations under IGRA. A tribe may not initiate a cause of action for a State's failure to negotiate until 180 days after it requested the State to enter negotiations. 25 U.S.C. § 2710(d)(7)(B)(i). Plaintiff filed its complaint on November 3, 1989, over two hundred days after its request. If the court finds that the State has failed to negotiate in good faith, it shall order the State and tribe to conclude a compact within sixty days or, in the event of an impasse, submit the dispute to a court-appointed mediator. Id., § 2710(d)(7).

The parties dispute whether plaintiff's March 30, 1989 letter triggered the State's obligation to enter into compact negotiations. The State argues that no obligation arose, despite the request, until the tribe adopted an ordinance permitting the type of gambling proposed upon its lands, in this instance casino gambling, and obtained the approval of the Chairman of NIGC. The State argues that the plain language of IGRA establishes the order in which the prerequisites to class III gaming must occur, i.e., authorization under a tribal ordinance; location in a permitting state; and conduct under a Tribal-State compact. 25 U.S.C. § 2710(d)(1). Plaintiff argues that IGRA sets no precondition for negotiations other than a tribal request, as it flatly states that, upon receiving a request, "the State shall negotiate with the Indian tribe in good faith to enter into such a compact." Id., § 2710(d)(3)(A).

The State's argument that a tribal ordinance is a condition precedent to any obligations to negotiation a compact covering class III gaming is based on § 2710(d)(1). This section, however, does not articulate any time sequence. It sets forth three conditions for class III gaming to be lawful on Indian lands. That a tribal ordinance is listed first, as a requirement, does not establish it as a precondition to compact negotiations. Further, § 2710(d)(2)(C) provides that, even with publication of a tribal ordinance approved by the Commissioner, class III gaming activity shall be fully subject to the terms and conditions of the compact. IGRA does not expressly precondition compact negotiations on publication of an effective tribal ordinance.

Second, the State contends that absent an enabling ordinance, a request for negotiation produces an incongruous result. The State argues that it should not be compelled to expend resources in negotiation only to have the tribe's governing body fail to adopt an ordinance approving all or the particular form of class III gaming contemplated in the negotiated compact.³ Adoption of an ordinance as a precondition to any negotiations would encourage the Tribe to adopt an ordinance authorizing all forms of class III gaming to avoid limiting its bargaining position. Plaintiff asserts that it sought to negotiate a compact consistent with its objectives, and which at the same time would accommodate the State's concerns. Plaintiff argues that an appropriate ordinance cannot be framed until it knows the type and scale of gaming to which the state would agree and the relative jurisdictional roles to be played by the Tribe and the State.

The State does not offer any reason why the plain language of IGRA, which requires the State to enter negotiations based solely upon a tribal request, should be ignored. Nowhere does IGRA require, either expressly or implicitly, that an ordinance be adopted and approved prior to compact negotiations. Upon receiving a request to enter into compact...