Ponca Tribe of Oklahoma v. State of Okl., s. 92-6331
| Decision Date | 02 September 1994 |
| Docket Number | 93-2020 and 93-3110,Nos. 92-6331,93-2018,s. 92-6331 |
| Citation | 37 F.3d 1422 |
| Parties | PONCA TRIBE OF OKLAHOMA, Plaintiff-Appellant, v. STATE OF OKLAHOMA; David Walters, Governor of the State of Oklahoma, individually and in his official capacity, Defendants-Appellees. PUEBLO OF SANDIA, Plaintiff-Appellant, v. Bruce KING, Governor, State of New Mexico; State of New Mexico, Defendants-Appellees, States of Alabama, Arizona, California, Connecticut, Florida, Kansas, Michigan, Mississippi, Montana, Nebraska, Nevada, Oklahoma, Rhode Island, South Dakota, and Washington, Amici Curiae. MESCALERO APACHE TRIBE, The Reservation, Plaintiff-Appellant, v. STATE OF NEW MEXICO; Bruce King, Governor of the State of New Mexico, Defendants-Appellees, States of Alabama, Arizona, California, Connecticut, Florida, Kansas, Michigan, Mississippi, Montana, Nebraska, Nevada, Oklahoma, Rhode Island, South Dakota, and Washington, Amici Curiae. KICKAPOO TRIBE, also known as Kickapoo Nation in Kansas, of the Kickapoo reservation in Kansas; Steve Cadue, tribal chairman of the Kickapoo Nation in Kansas; Prairie Band of Potawatomi Indians, a federally recognized tribe, Plaintiffs-Appellees, v. STATE OF KANSAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Gary S. Pitchlynn of Pitchlynn, Odom, Morse & Ritter, Norman, OK (Ted Ritter and Patrick A. Morse, of Pitchlynn, Odom, Morse & Ritter, with him on the brief), for plaintiff-appellant Ponca Tribe of Oklahoma.
Neal Leader, Senior Asst. Atty. Gen., Oklahoma City, OK, for defendants-appellees State of Okl. and David Walters, Governor, State of Okl.
L. Lamar Parrish of Ussery & Parrish, Albuquerque, NM, for plaintiff-appellant Pueblo of Sandia.
Gregory M. Quinlan of Fettinger & Bloom, Alamogordo, NM (George E. Fettinger of Fettinger & Bloom, with him on the brief), for plaintiff-appellant Mescalero Apache Tribe.
Paul G. Bardacke of Eaves, Bardacke & Baugh, Albuquerque, NM (Kerry C. Kiernan of Eaves, Bardacke & Baugh and Gerald Velarde, Asst. Atty. Gen., Santa Fe, NM), for defendants-appellees State of N.M. and Bruce King, Governor, State of N.M.
John W. Campbell, Deputy Atty. Gen., Topeka, KS (Robert T. Stephan, Atty. Gen., State of Kan., with him on the brief), for defendant-appellant State of Kan.
Glenn M. Feldman of O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, AZ (Lance Burr, Lawrence, Kansas, with him on the brief), for plaintiff-appellee Kickapoo Tribe.
Robert L. Pirtle of Pirtle, Morisset, Schlosser & Ayer, Seattle, WA (C. Bruce Works of Works, Works & Works, Topeka, KS, with him on the brief), for plaintiff-appellee Prairie Band of Potawatomi Indians.
Hans Walker, Jr., Washington, DC, for amicus curiae Nat. Indian Gaming Ass'n.
Thomas F. Gede, Sp. Asst. Atty. Gen., Sacramento, CA (Daniel E. Lungren, Atty. Gen., State of Cal., Jimmy Evans, Atty. Gen., State of Ala., Grant Woods, Atty. Gen., State of Ariz., Richard Blumenthal, Atty. Gen., State of Conn., Robert A. Butterworth, Atty. Gen., State of Fla., Robert T. Stephan, Atty. Gen., State of Kan., Frank J. Kelley, Atty. Gen., State of Mich., Mike Moore, Atty. Gen., State of Miss., Joseph P. Mazurek, Atty. Gen., State of Mont., Don Stenberg, Atty. Gen., State of Neb., Frankie Sue Del Papa, Atty. Gen., State of Nev., Susan B. Loving, Atty. Gen., State of Okl., Jeffery B. Pine, Atty. Gen., State of R.I., Mark Barnett, Atty. Gen., State of S.D., and Christine O. Gregoire, Atty. Gen., State of Wash.), for amici curiae the States of Ala., Ariz., Cal., Conn., Fla., Kan., Mich., Miss., Mont., Neb., Nev., Okl., R.I., S.D. and Wash.
Before ANDERSON, McKAY, and EBEL, Circuit Judges.
These appeals arise from the desire of four Indian tribes to develop gaming operations on their lands pursuant to the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. Sec. 2701, et seq. 1 In the wake of failed negotiations to craft tribal-state compacts with Kansas, New Mexico, and Oklahoma--the states in which the gaming would be situated--the tribes seek an injunction under IGRA requiring the states to negotiate compacts. We consider first, whether IGRA abrogates the states' Eleventh Amendment immunity, and second, whether IGRA violates the Tenth Amendment. Because the tribes also seek an order directing the Governors to negotiate compacts, we address whether the tribes have stated a cognizable claim under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). 2
In response to the proliferation of Indian gaming operations in the early 1980s, Congress enacted IGRA in 1988 to establish a comprehensive regulatory framework for gaming activities on Indian lands. IGRA seeks to balance the interests of tribal governments, the states, and the federal government. First, IGRA aims "to provide 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." 25 U.S.C. Sec. 2702(1). Concurrently, the statute contemplates a regulatory and supervisory role for the states and the federal government to prevent the infiltration of "organized crime and other corrupting influences." 25 U.S.C. Sec. 2702(2). See S.Rep. No. 446, 100th Cong., 2d Sess. 1-3 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3071-73.
IGRA creates a three-tiered classification of gaming operations and provides varying degrees of federal, state, and tribal regulation over each class. Class I gaming, over which Indian tribes exercise exclusive regulatory control, consists of social games for minimal prizes or as part of tribal ceremonies or celebrations. 25 U.S.C. Secs. 2703(6) & 2710(a)(1). Class II gaming includes "bingo ... pull tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo" and non-banking card games. 25 U.S.C. Sec. 2703(7). 3 Indian tribes may only engage in, license, and regulate Class II gaming if the state in which the gaming is located permits such forms of gaming. 25 U.S.C. Sec. 2710(b)(1). So long as the state permits such gaming, the Indian tribes maintain regulatory jurisdiction over Class II gaming subject to the supervision of the National Indian Gaming Commission (an entity within the Department of Interior). 25 U.S.C. Secs. 2710(a)(2) & 2704(a).
Class III gaming includes all forms of gaming not named in Classes I and II (e.g. banking card games, slot machines, casinos, horse and dog racing, and jai-alai). 25 U.S.C. Sec. 2703(8); S.Rep. No. 446, 100th Cong., 2d Sess. 7 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3077. Pursuant to Sec. 2710(d)(1), Class III gaming activities are lawful on Indian lands only if the gaming is: (1) authorized by a tribal ordinance approved by the tribe's Chairman; (2) located in a state that permits such gaming; and (3) conducted in conformance with a compact between the Indian tribe and the state. To facilitate this third requirement, Sec. 2710(d)(3)(A) directs the states to "negotiate with the Indian tribe in good faith" to craft a compact governing Class III gaming. The Congress stated that "the use of compacts between tribes and states is the best mechanism to assure that the interests of both sovereign entities are met...." 1988 U.S.C.C.A.N. at 3083.
As the appeals before us demonstrate, however, tribal-state cooperation has often proved elusive. In contemplation of this occurrence, Congress provided for judicial review of a tribe's allegation that a state has failed to negotiate a tribal-state compact in good faith. Section 2710(d)(7)(A)(i) provides that The United States district courts shall have jurisdiction over ... any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact ... or to conduct such negotiations in good faith.
The state bears the burden of proving that it has negotiated with the tribe in good faith. 25 U.S.C. Sec. 2710(d)(7)(B)(ii). To determine whether a state has failed to negotiate in good faith, the court may consider "the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities," as well as "any demand by the State for direct taxation of the Indian tribe or of any Indian lands." 25 U.S.C. Sec. 2710(d)(7)(B)(iii).
If the district court concludes that the state has failed to negotiate in good faith, IGRA provides a cascade of enforcement mechanisms to authorize Class III gaming on Indian lands. First, the court shall order the tribe and state to develop a compact within sixty days. 25 U.S.C. Sec. 2710(d)(7)(B)(iii). If the parties fail to develop a tribal-state compact within this sixty-day period, the tribe and the state each must submit a proposed compact to a mediator appointed by the district court. 25 U.S.C. Sec. 2710(d)(7)(B)(iv). "The mediator shall select from the two proposed compacts the one which best comports with the terms of [IGRA] and any other applicable Federal law and with the findings and order of the court." Id. Once the mediator submits the selected compact to the state and the tribe, the state has sixty days in which to consent. 25 U.S.C. Secs. 2710(d)(7)(B)(v) & (vi).
If the state consents to the proposed compact selected by the mediator within the sixty-day period, that compact becomes binding on the state and the tribe. 25 U.S.C. Sec. 2710(d)(7)(B)(vi). However, if the state does not consent, the mediator shall notify the Secretary of the Interior, who shall authorize Class III gaming by prescribing governing procedures that "are consistent with the proposed compact selected by the mediator, the provisions of [IGRA] and the relevant provisions of the laws of the State." 25 U.S.C. Sec. 2710(d)(7)(B)(vii).
The tribes in the instant cases allege that Kansas, New Mexico, and...
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