Pueblo of Santa Ana v. Kelly, No. Civ. 96-0002 MV/WWD.

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Parties: PUEBLO OF SANTA ANA, Pueblo of San Juan, Pueblo of Tesuque, Pueblo of Acoma, Pueblo of Sandia, Pueblo of Isleta, Pueblo of Pojoaque, San Felipe Gaming Enterprise Board, and Pueblo of Taos, Plaintiffs, v. John J. KELLY, in his official capacity as United States Attorney for the District of New Mexico; Janet Reno, Attorney General of the United States; Bruce Babbitt, United States Secretary of the Interior; and the United States of America, Defendants. UNITED STATES of America, Counterclaimant, v. PUEBLO OF SANTA ANA, Pueblo of San Juan, Pueblo of Tesuque, Pueblo of Acoma, Pueblo of Sandia, Pueblo of Isleta, Pueblo of Pojoaque, San Felipe Gaming Enterprise Board, and Pueblo of Taos, and State of New Mexico, Counterdefendants.
• Docket Number: No. Civ. 96-0002 MV/WWD.
• Decision Date: 12 July 1996

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PUEBLO OF SANTA ANA, Pueblo of San Juan, Pueblo of Tesuque, Pueblo of Acoma, Pueblo of Sandia, Pueblo of Isleta, Pueblo of Pojoaque, San Felipe Gaming Enterprise Board, and Pueblo of Taos, Plaintiffs,
v.
John J. KELLY, in his official capacity as United States Attorney for the District of New Mexico; Janet Reno, Attorney General of the United States; Bruce Babbitt, United States Secretary of the Interior; and the United States of America, Defendants.
UNITED STATES of America, Counterclaimant,
v.
PUEBLO OF SANTA ANA, Pueblo of San Juan, Pueblo of Tesuque, Pueblo of Acoma, Pueblo of Sandia, Pueblo of Isleta, Pueblo of Pojoaque, San Felipe Gaming Enterprise Board, and Pueblo of Taos,
and
State of New Mexico, Counterdefendants.

No. Civ. 96-0002 MV/WWD.

United States District Court, D. New Mexico.

July 12, 1996.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Leander Bergen, B. Reid Haltom, Nordhaus, Haltom, Taylor, Taradash & Frye, Albuquerque, NM, Daniel M. Rosenfelt, Rosenfelt, Barlow, Barber, Barudin & Borg, Albuquerque, NM, Richard W. Hughes, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Santa Fe, NM, for Pueblo of Santa Ana, San Juan Pueblo

Kevin Gover, Gwenellen P. Janov, Gover, Stetson & Williams, Albuquerque, NM, Daniel M. Rosenfelt, Rosenfelt, Barlow, Barber, Barudin & Borg, Albuquerque, NM, for Pueblo of Tesuque.

Daniel M. Rosenfelt, Rosenfelt, Barlow, Barber, Barudin & Borg, Albuquerque, NM, Peter C. Chestnut, Chestnut Law Offices, Albuquerque, NM, for Pueblo of Acoma.

L. Lamar Parrish, Ussery & Parrish, Albuquerque, NM, Daniel M. Rosenfelt, Rosenfelt, Barlow, Barber, Barudin & Borg, Albuquerque, NM, for Pueblo of Sandia, Pueblo of Isleta.

Daniel M. Rosenfelt, Rosenfelt, Barlow, Barber, Barudin & Borg, Albuquerque, NM, Joseph D. Little, Santa Fe, NM, for Pueblo of Pojoaque.

Daniel M. Rosenfelt, Sarah W. Barlow, Richard A. Allen, Rosenfelt, Barlow, Barber, Barudin & Borg, Albuquerque, NM, for San Felipe Gaming Enterprise Board, Taos Pueblo.

Victor R. Marshall, Marshall & Associates, Albuquerque, NM, for Guy Clark, Max W. Coll, II, George Buffett.

Raymond Hamilton, Phyllis A. Dow, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, Lois J. Schiffer, Edward J. Passarelli, U.S. Department of Justice, Environmental & Natural Resources Div., Washington, DC, for John J. Kelly, Janet Reno, Bruce Babbitt, United States of America.

Harold D. Stratton, Jr., Stephen D. Ingram, Stratton & Cavin, Albuquerque, NM, for Sodak Gaming, Inc., amicus curiae.

John Burton, Rodey, Dickason, Sloan, Akin & Robb, Santa Fe, NM, for Bally Gaming, Inc., amicus curiae.

John C. Bienvenu, Santa Fe, NM, Kurt V. BlueDog, Andrew M. Small, BlueDog, Olson & Small, Minneapolis, MN, Jerome L. Levine, Frank R. Lawrence, Levine & Associates, Los Angeles, CA, for National Indian Gaming Association, San Manuel Band of Mission Indians, Shakopee Mdewakanton Sioux Community, Sisseton Wahpeton Sioux Tribe, amici curiae.

Christopher D. Coppin, NM Attorney General's Office, Albuquerque, NM, for State of New Mexico.

OPINION

VAZQUEZ, District Judge.

THIS MATTER came before the Court on Plaintiffs' Motion for Summary Judgment as to all of Plaintiffs' Claims and as to Defendants' First and Third Counterclaims, filed April 15, 1996 Doc. No. 97, Plaintiffs' Supplemental Motion for Summary Judgment with Respect to Defendants' Second Counterclaim, filed April 15, 1996 Doc. No. 101 and Defendants' Cross Motion for Summary Judgment, filed May 13, 1996 Doc. No. 133. A hearing was held on June 18, 1996, and the Court took the motions under advisement. The Court, having considered all briefs, oral arguments of counsel, and being otherwise fully advised, finds that Defendants' Cross Motion for Summary Judgment is well-taken and will be granted and Plaintiffs' Motion for Summary Judgment and Supplemental Motion for Summary Judgment will be denied.

STANDARD OF REVIEW

Summary judgment is an integral part of the Federal Rules of Civil Procedure, which are intended to "`secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). Under Rule 56(c), summary judgment is appropriate when the court, viewing the record in light most favorable to the non-moving party, determines that there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law. Thrasher v. B & B Chemical Co., Inc., 2 F.3d 995, 996 (10th Cir.1993). The movant

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bears the initial burden of showing there is an absence of evidence to support the nonmoving party's case. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). Once the movant meets this burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)

"The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (emphasis added). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 2510 (citation omitted); Carland v. Metropolitan Life Insurance Co., 935 F.2d 1114, 1118 (10th Cir.), cert. denied, 502 U.S. 1020, 112 S.Ct. 670, 116 L.Ed.2d 761 (1991).

HISTORY OF THE INDIAN GAMING REGULATORY ACT

A brief overview of the principles of Indian sovereignty is important to understanding the history and evolution of the law on Indian gaming. "Indian tribes retain `attributes of sovereignty over both their members and their territory,' United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975), and that `tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States,' Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 154, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980)." California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987). State law may be applied to tribal Indians on their reservations, however, if Congress has expressly consented or under certain other limited circumstances when it does not interfere with or is not "incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority." Id. at 207 & 215-17, 107 S.Ct. at 1087 & 1091-92.

Consistent with these established principles, the Supreme Court, in Cabazon, ruled that neither the State of California nor the County of Riverside had any authority to enforce its gambling laws within Indian reservations. Id. at 207, 107 S.Ct. at 1087. The Cabazon and Morongo Tribes were conducting bingo and card games which were open to the public. Id. at 204-05, 107 S.Ct. at 1085-86. Each Tribe was acting pursuant to tribal ordinances approved by the Secretary of the Interior. Id. Thereafter, the State began to insist that the two Tribes comply with a State statute that did not prohibit the playing of bingo but imposed staffing, jackpot limit and separate fund requirements. Id. at 205 & 206 n. 3, 107 S.Ct. at 1086 n. 3. The violation of any of these requirements constitutes a misdemeanor. Id. at 209, 107 S.Ct. at 1088. The County of Riverside also sought to apply two local ordinances, one regulating bingo and the other prohibiting the playing of card games. Id. at 205-06, 107 S.Ct. at 1086-87.

The Tribes filed an action against the county seeking a declaratory judgment that the county did not have authority to apply its ordinances within the reservations and an injunction against their enforcement. Id. The State subsequently intervened, insisting that Congress had given the State express consent to apply its laws to Indians on their reservations pursuant to Pub.L. 280, 67 Stat. 588, as amended, 18 U.S.C. § 1162, 28 U.S.C. § 1360 and the Organized Crime Control Act, 84 Stat. 937, 18 U.S.C. § 1955. Id. The district court held that neither the State nor the county had authority to enforce its gambling

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law on reservations and the Ninth Circuit affirmed. Id. The State appealed to the United States Supreme Court

The Supreme Court determined that Congress had not expressly consented to California's application of its gambling laws within the reservation and then went on to consider whether exceptional circumstances nonetheless warranted the State's assertion of jurisdiction over the activities of Indians within the reservation. Id. at 214-22, 107 S.Ct. at 1090-95. This inquiry proceeds "in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its `overriding goal' of encouraging tribal self-sufficiency and economic development." Id. at 216, 107 S.Ct. at 1092 (citations omitted). The Court acknowledged that the federal government sought to implement these important federal interests by approving of and promoting the gaming activities being conducted by the two...