Oneida Tribe of Indians of Wis. v. State of Wis.

• Decision Date: 27 July 1981
• Docket Number: No. 81-C-54.,81-C-54.
• Citation: 518 F. Supp. 712
• Court: U.S. District Court — Western District of Wisconsin
• Parties: ONEIDA TRIBE OF INDIANS OF WISCONSIN, Plaintiff, v. STATE OF WISCONSIN; Bronson C. La Follette, Individually and as Attorney General of the State of Wisconsin; Wisconsin Bingo Control Board, Defendants.

518 F. Supp. 712

ONEIDA TRIBE OF INDIANS OF WISCONSIN, Plaintiff, v. STATE OF WISCONSIN; Bronson C. La Follette, Individually and as Attorney General of the State of Wisconsin; Wisconsin Bingo Control Board, Defendants.

No. 81-C-54.

United States District Court, W. D. Wisconsin.

July 27, 1981.

Milton Rosenberg, Madison, Wis., Francis R. Skenandore, Oneida, Wis., for plaintiff.

John Niemisto and Donald Johns, Asst. Attys. Gen., Madison, Wis., for defendants.

OPINION AND ORDER

CRABB, Chief Judge.

This is a civil action for injunctive and declaratory relief. Plaintiff Oneida Tribe of Indians of Wisconsin occupies a reservation situated in Brown and Outagamie Counties in the state of Wisconsin. Plaintiff seeks a ruling that Wis.Stats. Ch. 163, relating to bingo operations, may not be lawfully enforced on the Oneida reservation. On February 27, 1981, I entered an order denying plaintiff's motion for a preliminary injunction on the ground that plaintiff had failed to show that it would suffer irreparable harm from any of the named defendants if the injunction were not granted. The case is now before the court on defendants' motion to dismiss.

Plaintiff makes the following factual allegations: it conducts bingo games pursuant to a tribal ordinance adopted by the Oneida Business Committee; the games are conducted solely by tribal members on tribal property at the Oneida Civic Center, located on the Oneida Indian Reservation, Brown County, Wisconsin; pursuant to a tribal ordinance and the tribal constitution, the proceeds of the bingo operations are appropriated solely for the purposes of promoting the health, education and welfare of the members of the Tribe and the Oneida Community; proceeds from the games are distributed to the Oneida Community Nursing Home, the Oneida Community Health Center, the Oneida Tribal School, Oneida Youth Programs, and other such services; and proceeds from the bingo operations contribute a vital share of the revenues of the Tribe.

Plaintiff alleges further that the constitution of the State of Wisconsin was amended in 1973 to permit bingo games; that the Wisconsin Legislature enacted Ch. 163 Wis.Stats., to regulate the conduct of bingo games by means of licensing, control and taxation; that the Oneida bingo operations do not comply with the provisions of Wis.Stats. Ch. 163; that the head of the Wisconsin Department of Justice, defendant La Follette, is authorized to enforce compliance with Ch. 163; that on January 29, 1980, defendant La Follette issued an opinion stating that the Oneida bingo operations were subject to the provisions of Ch. 163 and that compliance with the statute was required.

In addition, plaintiff alleges that on February 1, 1980, acting on the express advice of defendant La Follette, Royce A. Finne, assistant District Attorney for Brown County, notified plaintiff that the district attorney's office was preparing to take enforcement action against plaintiff, pending notification by plaintiff that it would comply with the provisions of Ch. 163; and that the Wisconsin Bingo Control Board had requested that the District Attorney of Brown County take enforcement actions against the Oneida bingo operations. Plaintiff alleges that after further communications and meetings between representatives of plaintiff and Brown County, plaintiff received a letter dated December 15, 1980, from the sheriff of Brown County, who stated that the Oneida bingo operations did not comply with Ch. 163, and threatened that one or more enforcement actions would be taken against plaintiff unless it ceased and desisted from conducting bingo games.

Defendants' motion to dismiss is based essentially on two arguments. The first involves construction of the Act of August 15, 1953, Pub.L.No. 83-280, 67 Stat. 588, 18 U.S.C. § 1162, 28 U.S.C. § 1360 (commonly referred to as Public Law 280), which granted limited civil and general criminal jurisdiction to the State of Wisconsin in "all Indian country within the state except the Menominee Reservation."¹ Defendants argue that because the state's bingo laws provide a criminal penalty for persons who do not conduct bingo games in compliance with the scheme established in Chapter 163, Wis.Stat., the bingo laws are "criminal" laws for purposes of the jurisdiction granted under Public Law 280. In short, the state argues that its bingo laws are "criminal-prohibitory" rather than "civil-regulatory" in nature.²

Citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980), defendants assert as their second argument that the state has independent jurisdiction to enforce its bingo laws on the Oneida Indian Reservation because the state would not be "infringing on the right of reservation Indians to make their own laws and be ruled by them...." This argument appears to rest on defendants' assertion that the operation of the tribal bingo games "involves the conduct of activities that clearly extend beyond the boundaries of the Oneida Reservation." This argument can be disposed of summarily. As plaintiff correctly points out, there is no basis in the record before this court for the assertion of fact contained in defendants' brief in support of their motion to dismiss. Therefore, even if defendants are correct in their interpretation of the White Mountain Apache Tribe opinion, they cannot prevail without further development of the record.

In opposition to defendants' motion to dismiss, plaintiff argues that it need not comply with Wisconsin's bingo laws because of its treaty-based immunity to enforcement of state laws, and because of the tribe's right to self-government. Plaintiff argues also that Public Law 280 does not confer jurisdiction on the State of Wisconsin to enforce its bingo laws on the Oneida Reservation because the laws are "civil-regulatory" in nature, and thus do not fall within the act's grant of criminal jurisdiction.

Two related questions must be answered in order to resolve defendants' motion to dismiss: (1) whether Wisconsin's bingo laws are civil or criminal; and (2) what Congress intended when it passed Public Law 280 and conferred jurisdiction on the State of Wisconsin to enforce its criminal laws in Indian country. These questions must be considered in the light of relevant concepts of Indian sovereignty and self-government.³

OPINION

I. CONCEPTS OF TRIBAL SOVEREIGNTY

Under early views of tribal sovereignty, Indians were held to possess broad authority to govern themselves. In a case holding that the State of Georgia could not enforce its laws on the Cherokee Reservation, which was within the external boundaries of the state, the Supreme Court held:

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force... The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States.

Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832). Under this view, Indian tribes retained internal sovereignty on their reservations, except to the extent that sovereignty was overridden by Congress acting pursuant to Article I, Section 8, Clause 3 of the United States Constitution, which gives Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," and Article II, Section 2, Clause 2, which governs federal responsibility for making treaties. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7, 93 S.Ct. 1257, 1262 n.7, 36 L.Ed.2d 129 (1973).

The view of an Indian reservation as "`a distinct community, occupying its own territory ... in which the laws of the states can have no force...'" has been "modified ... in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained... Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 219-20, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959) (citations omitted). Accord Kake Village v. Egan, 369 U.S. 60, 72-76, 82 S.Ct. 562, 569-571, 7 L.Ed.2d 573 (1962).

With the modification of the view that Indian tribes retain basic sovereign powers on the reservation, the precise nature of tribal and state authority over on-reservation matters has become less clear. It does appear, however, that in the absence of consent of the tribes or express authorization by Congress, state law does not govern on-reservation conduct involving only tribal members. Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 480-81, 96 S.Ct. 1634, 1644-45, 48 L.Ed.2d 96 (1976) (state may not impose cigarette taxes on on-reservation sales to reservation Indians, and may not impose personal property taxes on property owned by reservation Indians); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (state may not tax income derived from reservation sources by reservation Indians). On the other hand, states do have the power to tax off-reservation activities of Indians. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973).

In some cases, tribal laws may control activities of non-Indians on the reservation. Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (state court had no jurisdiction over suit brought by non-Indian doing business on the reservation who sought payment for goods bought by reservation Indians on the reservation); see also Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 152-54, 100 S.Ct. 2069, 2080-81, 65 L.Ed.2d 10 (1980). However, tribes are not free to impose their laws on all reservation activities of non-Indians. Montana v. United States, ___...