Rumsey Indian Rancheria of Wintun Indians v. Wilson, s. 93-16609

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 41 F.3d 421
• Docket Number: 93-16745,Nos. 93-16609,s. 93-16609
• Parties: RUMSEY INDIAN RANCHERIA OF WINTUN INDIANS; Table Mountain Rancheria; Cher-Ae Heights Indian Community of the Trinidad Rancheria; San Manual Band of Mission Indians, Viejas Reservation of the Capitan Grande Band of Diegueno Mission Indians and Hopland Band of Pomo Indians; Barona Band of Mission Indians; Sycuan Band of Mission Indians; Agua Caliente Band of Cahuilla Indians, Plaintiffs-Appellees, v. Pete WILSON, Governor; State of California, Defendants-Appellants. RUMSEY INDIAN RANCHERIA OF WINTUN INDIANS; Table Mountain Rancheria; Cher-Ae Heights Indian Community of the Trinidad Rancheria; San Manual Band of Mission Indians, Viejas Reservation of the Captain Grande Band of Diegueno Mission Indians and Hopland Band of Pomo Indians; Wintun Indians; San Manual Band of Mission Indians; Cabazon Band of Mission Indians; The Santa Ynez Band of Chumash Mission Indians of the Santa Ysabel Reservation, California; Viejas Reservation of the Capitan Grande Band of Diegueno Mission Indians; San Manual Band of Mission Indians; The Hopland Band of Pomo Indians; The Sycuan Band of Mission Indians; The Morongo Band of Mission Indians; The Santa Rosa Band of Tache Indians; The Cachil Dehe Band of Wintun Indians of the Colusa Indian Community; The Soboba Band of Cahuilla Mission Indians; The Robinson Band of Pomo Indians; The Agua Caliente Band of Cahuilla Indians; and The Barona Group of the Capitan Grande Band of Mission Indians, Plaintiffs-Appellees-Cross-Appellants, v. Pete WILSON, Governor; State of California, Defendants-Appellants-Cross-Appellees.
• Decision Date: 15 November 1994

Page 421

41 F.3d 421 63 USLW 2326 RUMSEY INDIAN RANCHERIA OF WINTUN INDIANS; Table Mountain
Rancheria; Cher-Ae Heights Indian Community of the Trinidad
Rancheria; San Manual Band of Mission Indians, Viejas
Reservation of the Capitan

Page 422

Grande Band of Diegueno
Mission Indians and Hopland Band of Pomo Indians; Barona
Band of Mission Indians; Sycuan Band of Mission Indians;
Agua Caliente Band of Cahuilla Indians, Plaintiffs-Appellees,
v.
Pete WILSON, Governor; State of California, Defendants-Appellants.
RUMSEY INDIAN RANCHERIA OF WINTUN INDIANS; Table Mountain
Rancheria; Cher-Ae Heights Indian Community of the Trinidad
Rancheria; San Manual Band of Mission Indians, Viejas
Reservation of the Captain Grande Band of Diegueno Mission
Indians and Hopland Band of Pomo Indians; Wintun Indians;
San Manual Band of Mission Indians; Cabazon Band of Mission
Indians; The Santa Ynez Band of Chumash Mission Indians of
the Santa Ysabel Reservation, California; Viejas
Reservation of the Capitan Grande Band of Diegueno Mission
Indians; San Manual Band of Mission Indians; The Hopland
Band of Pomo Indians; The Sycuan Band of Mission Indians;
The Morongo Band of Mission Indians; The Santa Rosa Band of
Tache Indians; The Cachil Dehe Band of Wintun Indians of
the Colusa Indian Community; The Soboba Band of Cahuilla
Mission Indians; The Robinson Band of Pomo Indians; The
Agua Caliente Band of Cahuilla Indians; and The Barona
Group of the Capitan Grande Band of Mission Indians,
Plaintiffs-Appellees-Cross-Appellants,
v.
Pete WILSON, Governor; State of California,
Defendants-Appellants-Cross-Appellees. Nos. 93-16609, 93-16745. United States Court of Appeals,
Ninth Circuit. Argued and Submitted May 10, 1994.
Decided Nov. 15, 1994.

Page 423

Howard L. Dickstein, Dickstein & Merin, Sacramento, CA, Art Bunce, Escondido, CA, George Forman, Alexander & Karshmer, Berkeley, CA, for plaintiffs-appellees-cross-appellants.

Manuel M. Medeiros, Deputy Atty. Gen., Sacramento, CA, for defendants-appellants-cross-appellees.

Appeals from the United States District Court for the Eastern District of California.

Before: WALLACE, Chief Judge; O'SCANNLAIN, Circuit Judge; KELLEHER, ^* District Judge.

Opinion by Judge O'SCANNLAIN; Concurrence by Chief Judge WALLACE.

O'SCANNLAIN, Circuit Judge:

We decide whether certain gaming activities are permitted under California law and

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thus subject to tribal-state negotiation under the Indian Gaming Regulatory Act. I

Numerous federally recognized Indian tribes currently engage in various gaming activities on tribal lands in California. Desiring to engage in additional activities (the "Proposed Gaming Activities"), several tribes asked the State of California (the "State") to negotiate a compact permitting the operation of certain stand-alone electronic gaming devices ¹ and live banking and percentage card games. ² The State refused to negotiate with the tribes, asserting that the Proposed Gaming Activities were illegal under California law.

The State and seven tribes subsequently entered into a stipulation to seek judicial determination of whether the State was obligated to negotiate with the tribes. These tribes filed a complaint for declaratory judgment with the district court under the Indian Gaming Regulatory Act ("IGRA"), 25 Secs. U.S.C. 2701-2721. Four other complaints, filed by different Indian tribes, were consolidated with this action (plaintiffs collectively referred to as the "Tribes").

The parties filed cross-motions for summary judgment. The district court awarded summary judgment to the Tribes, finding that, except for banking and percentage card games using traditional casino game themes, the Proposed Gaming Activities were a proper subject of negotiation. The State timely appealed, and the Tribes filed a cross-appeal.

II

Enacted in 1988 as means of "promoting tribal economic development, self-sufficiency, and strong tribal governments," 25 U.S.C. Sec. 2702(1), IGRA creates a framework for Indian tribes to conduct gaming activities on tribal lands. IGRA divides gaming into three classes. Spokane Tribe of Indians v. Washington, 28 F.3d 991, 993 (9th Cir.1994). " 'Class I' consists of social games for minimal prizes and traditional Indian games; 'Class II' includes Bingo and similar games of chance such as pull tabs and lotto; 'Class III' includes all games not included in Classes I or II." Id.; 25 U.S.C. Sec. 2703(6)-(8). The parties agree that the Proposed Gaming Activities are Class III games.

A tribe seeking to operate Class III gaming activities on tribal lands may do so only under a compact. A tribe initiates the compacting process by asking a state to engage in negotiations. 25 U.S.C. Sec. 2710(d)(3)(A). IGRA obligates the state to negotiate in good faith with the tribe; and, if the parties reach agreement, they sign a Tribal-State compact. Id. at Sec. 2710(d)(3)(A)-(B).

If a state refuses to negotiate in good faith, the tribe can bring a civil suit, whereupon a federal district court may order the state and tribe to conclude a compact within 60 days. Id. at Sec. 2710(d)(7)(A)-(B). If a compact is not reached within that period, the tribe and the state must submit their last best offers to a court-appointed mediator, who selects one of the offers as the compact. Id. at Sec. 2710(d)(7)(B)(iv). The state then has 60 days to decide whether to consent to the compact. Id. at Sec. 2710(d)(7)(B)(vi). If the state does not approve the compact, the Secretary of the Interior may prescribe regulations for Class III gaming on tribal lands. Id. at Sec. 2710(d)(7)(B)(vii)(II); Spokane, 28 F.3d at 993.

In the instant case, the State opted not to negotiate over the Proposed Gaming Activities. The State asserts two reasons why it need not negotiate with the Tribes. The first reason is that the Act itself does not require negotiation. The second reason is that the Act violates the Tenth Amendment. Because

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the first reason persuades us, we do not reach the second.

The State contends that IGRA does not obligate it to negotiate with the Tribes over the Proposed Gaming Activities. IGRA provides that "Class III gaming activities shall be lawful on Indian lands only if such activities are ... located in a State that permits such gaming for any purpose by any person, organization, or entity...." 25 U.S.C. Sec. 2710(d)(1)(B) (emphasis added). Consequently, where a state does not "permit" gaming activities sought by a tribe, the tribe has no right to engage in these activities, and the state thus has no duty to negotiate with respect to them.

The parties disagree as to whether California "permits" the Proposed Gaming Activities. The State's argument is straightforward: the Proposed Gaming Activities are illegal. California law prohibits the operation of a banked or percentage card game as a misdemeanor offense. Cal.Penal Code Sec. 330 (Deering 1993). In addition, according to the State, the stand-alone electronic gaming machines sought by the Tribes are electronic "slot machines." California law prohibits the operation of slot machines as a misdemeanor offense, Cal.Penal Code Secs. 330a, 330b, and a California appellate court has indicated that electronic machines of the sort requested by the Tribes fall within the scope of this prohibition. Score Family Fun Center, Inc. v. County of San Diego, 225 Cal.App.3d 1217, 275 Cal.Rptr. 358 (1990).

The Tribes offer a broader reading of IGRA, claiming that a state "permits" a specific gaming activity if it "regulates" the activity in general rather than prohibiting it entirely as a matter of public policy. Under this approach, a specific illegal gaming activity is "regulated," rather than "prohibited," if the state allows the operation of similar gaming activities. The Tribes observe that video lottery terminals, parimutuel horse racing, and nonbanked, nonpercentage card gaming are legal in California. Because the Tribes view these activities as functionally similar to the Proposed Gaming Activities, they conclude that California regulates, and thus permits, these activities.

The Tribes cite to the Supreme Court's pre-IGRA decision, California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), in support of their view. In Cabazon, the State of California objected to an Indian tribe's operation of bingo games on tribal land. The State argued that the tribe's bingo games violated a penal statute imposing prize limits and limiting bingo operators to unpaid members of charities. When the State sought to enforce its penal statute against the tribe, the tribe brought a declaratory judgment action. The district court awarded summary judgment to the tribe, and this court affirmed.

The Supreme Court held that summary judgment properly was granted. At the time, gaming on tribal lands fell under Public L. 280. Pub.L. No. 280, 67...