Rincon Band of Mission Indians v. County of San Diego, Civ. No. 70-360-T.

• Court: United States District Courts. 9th Circuit. United States District Court (Southern District of California)
• Citation: 324 F. Supp. 371
• Decision Date: 17 March 1971
• Docket Number: Civ. No. 70-360-T.
• Parties: RINCON BAND OF MISSION INDIANS v. COUNTY OF SAN DIEGO, and J. C. O'Connor, Sheriff for the County of San Diego.

324 F. Supp. 371

RINCON BAND OF MISSION INDIANS
v.
COUNTY OF SAN DIEGO, and J. C. O'Connor, Sheriff for the County of San Diego.

Civ. No. 70-360-T.

United States District Court, S. D. California.

March 17, 1971.

324 F. Supp. 372

George Forman, Daniel M. Rosenfelt, Robert S. Pelcyger, Richard W. Power, California Indian Legal Services, Escondido, Cal., for plaintiff.

Robert G. Berrey, County Counsel, San Diego County by Anthony Albers, Deputy County Counsel, San Diego, Cal., for defendants.

MEMORANDUM OF DECISION

TURRENTINE, District Judge.

Plaintiff, Rincon Band of Mission Indians, seeks declaratory and injunctive relief from enforcement of a county

324 F. Supp. 373

gambling ordinance on an Indian reservation. The action is now before the court on cross motions for summary judgment. The court has determined from the affidavits, memoranda and argument of counsel that there is no genuine issue of material fact. This memorandum of decision incorporates findings of fact and conclusions of law

Plaintiff is an Indian Band with a governing body duly recognized by the Secretary of the Interior, and said Band is a governing body of the Rincon Indian Reservation. The Reservation, containing approximately 3500 acres, is located within the unincorporated area of the County of San Diego, California. These lands are held in trust by the United States for the benefit of plaintiff.

On October 1, 1970, plaintiff adopted a tribal ordinance authorizing the establishment of a card room on the Rincon Indian Reservation where certain card games not proscribed by the state statute on gambling would be played. Cal. Pen.Code. § 330. Revenues derived from this operation would accrue to the Rincon Band. These plans were suspended when the Sheriff of San Diego County, in response to plaintiff's inquiry, declared that such an enterprise would be in violation of a county criminal ordinance entitled Card Rooms and Gambling, San Diego County Code, Division 7, Chapter 1, Title 3, §§ 37.101 through 37.105 inclusive. This ordinance prohibits, inter alia, the letting or use of property for gambling purposes, and betting on card games such as draw poker. In his letter to plaintiff, the Sheriff expressed a fear that the Rincon Indian Reservation might become a "little Las Vegas." This ordinance is presently in full force and effect throughout the unincorporated areas of the county. Plaintiff does not allege that the ordinance is not being enforced equally among all inhabitants of the county.

Any jurisdiction of San Diego County to apply its gambling ordinance to Indian trust lands derives from a federal statute, Public Law 280, 67 Stat. 588, codified as two federal statutes, 18 U.S. C. § 1162 and 28 U.S.C. § 1360. 18 U. S.C. § 1162 grants to certain states, including California, full criminal jurisdiction over Indian lands within these states. 28 U.S.C. § 1360 embodies a corresponding grant to the states of civil jurisdiction over Indian lands. Each statute qualifies the grant by excluding certain types of state laws.

The initial issue is whether the San Diego County ordinance qualifies as a criminal law of the State of California within the meaning of 18 U.S.C. § 1162; if it is a criminal law of the state, then it will apply to plaintiff unless it falls within one of the classes of legislation excepted from the federal grant of jurisdiction. This question has received little discussion in the case law. In a recent federal decision, it was held that a "rock festival" ordinance of Riverside County was a law of the state of California and that its provisions applied to Indian lands by virtue of the jurisdictional grant contained in Public Law 280. Madrigal v. County of Riverside, Civil No. 70-1893, C.D.Cal., Findings of Fact and Conclusions of Law dated February 16, 1971. The court relied in part on a Washington decision, Snohomish County v. Seattle Disposal Company, 70 Wash.2d 668, 425 P.2d 22 (1967), cert. denied 389 U.S. 1016, 88 S.Ct. 585, 19 L.Ed.2d 662. The case there involved application of a county zoning ordinance to a garbage dump operated by a non-Indian lessee of Indian trust lands. The provisions of Public Law 280 apply in the state of Washington. It was held that the ordinance could not be applied to the garbage dump because the ordinance was an encumbrance on the Indian trust lands. Public Law 280 provides that state laws may not be applied to Indian trust lands if they constitute encumbrances on the lands. 18 U.S.C. § 1162; 28 U.S.C. § 1360. There was no discussion of whether the ordinance there qualified as a law of the state, but implicit in the result is the assumption that the ordinance is a law of the state; if it were not a state law within the

324 F. Supp. 374

meaning of Public Law 280, it would have no application to Indian lands, and the necessity for discussing whether it fell within the category of state laws imposing encumbrances would not have arisen

Justices Douglas and White dissented from the Supreme Court order denying certiorari on the ground that important federal questions were presented: whether the ordinance constituted an "encumbrance" as that word is used in Public Law 280; whether a non-Indian lessee was entitled to any immunity that the Indian owner might possess; and whether an administrative regulation of the Secretary of the Interior unduly restricted the state's authority under Public Law 280 and 25 U.S.C. § 231.¹ 389 U.S. 1016, 1019, 1020, 88 S.Ct. 585, 19 L.Ed.2d 662. However, as in the state decision, this discussion is predicated on the ordinance being a law of the state.

It appears that the purpose of Congress in passing Public Law 280 was to permit the Indians to become full and equal citizens of their respective states and to terminate the wardship of the federal government over their affairs. The House committee report on this legislation, which was incorporated in the Senate report, notes that:

This legislation, whether before the House or presently under committee consideration, has two coordinate aims: First, withdrawal of Federal responsibility for Indian affairs wherever practicable; and second, termination of the subjection of Indians to Federal laws applicable to Indians as such. H.R.Rep.No. 848, 83d Cong., 1st Sess. (1953) 2 U.S.Code, Cong. & Admin.News, p. 2409 (1953).

In the years preceding passage of the legislation, studies were made by the Department of the Interior to determine whether the states were able and willing to assume responsibilities for the administration of civil and criminal justice for their Indian populations. A letter from Mr. Orme Lewis, Assistant Secretary of the Interior, to the Honorable A. L. Miller, Chairman of the Committee on Interior and Insular Affairs, published in the House report, stated:

The Bureau of Indian Affairs of this Department has consulted with State and local authorities and with the Indian groups on the question of transfer of civil and criminal jurisdiction on the States in the following States: California * * *.

In each of the States mentioned, with the exception of Nevada, State and local authorities indicated their agreeableness to the proposed transfer of jurisdiction. Id. at p. 2413

It is frankly conceded that even if the statute had not contemplated the legislative jurisdiction of local governments, local authorities would probably have been consulted in their capacities as enforcement agencies for state law. However, this reference to local authorities, taken together with the purpose of the legislation to make the Indians full and equal citizens,² suggests that the local governments would assume the same role in relation to Indian citizens as they occupy with respect to the other citizens of the state. And when we examine the position of the average state citizen, we find that he is confronted with a panoply of overlapping and complementary legislation emanating from local and state lawmakers. If, with respect to a significant element of the population, local authorities were denied their customary and proper role in this scheme of regulation, the states would find it necessary to legislate on many subjects now wisely left to local authorities; all citizens, Indians included, would be denied

324 F. Supp. 375

the benefits of local attention to local requirements

One clause of the statute, taken by itself, appears to contradict this view of the role of local government under Public Law 280, that portion which reads: "* * * and the criminal laws of such State or Territory shall have the same force and effect within...