Rumsey Indian Rancheria of Wintun Indians v. Wilson
| Decision Date | 11 August 1995 |
| Docket Number | 93-16745,Nos. 93-16609,s. 93-16609 |
| Citation | 64 F.3d 1250 |
| Parties | 95 Cal. Daily Op. Serv. 6352, 95 Daily Journal D.A.R. 10,855 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 Capitan 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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; Dissent to Order by Judge CANBY; Concurrence to Dissent by Judges FERGUSON and NORRIS.
The opinion filed on November 15, 1994 at slip op. 13873 is amended as follows:
The panel has voted to deny the petitions for rehearing. Chief Judge Wallace and Judge O'Scannlain have voted to reject the suggestions for rehearing en banc, and Judge Kelleher has so recommended.
The full court was advised of the suggestions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.
The petitions for rehearing are DENIED and the suggestions for rehearing en banc are REJECTED.
CANBY, Circuit Judge, joined by PREGERSON, REINHARDT, and HAWKINS, Circuit Judges, dissenting from the denial of rehearing en banc:
This is a case of major significance in the administration of the Indian Gaming Regulatory Act ("IGRA") and it has been decided incorrectly, in a manner that conflicts with the Second Circuit's interpretation of the Rumsey holds that California, which permits several varieties of Class III gambling, has no duty under IGRA to negotiate with the tribes over the tribes' ability to conduct any game that is illegal under California law. This ruling effectively frustrates IGRA's entire plan governing Class III Indian gaming. The primary purpose of IGRA, as set forth in the Act, is "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). IGRA's otherwise drastic extension of state gaming law to Indian country (to be enforced only by the federal government) was modified by IGRA's process by which the states and tribes could arrive at compacts specifying what games might be allowed and who might have jurisdiction to enforce gaming laws. See 25 U.S.C. Sec. 2710(d)(3); 18 U.S.C. Sec. 1166(c)(2) (). The whole idea was to foster these compacts. That goal is defeated if the details of the state's regulatory schemes, allowing some games and prohibiting others, apply if the state does nothing. Thus the Second Circuit, in arriving at a conclusion precisely opposite to that of Rumsey, stated:
same statutory language. The result is to frustrate the scheme of state-tribal negotiation that Congress established in IGRA. We should have granted rehearing en banc to prevent the near-nullification of IGRA in a circuit that encompasses a great portion of the nation's Indian country. Our failure to do so may close the only route open to many tribes to escape a century of poverty.
Under the State's approach, ... even where a state does not prohibit class III gaming as a matter of criminal law and public policy, an Indian tribe could nonetheless conduct such gaming only in accord with, and by acceptance of, the entire state corpus of laws and regulations governing such gaming. The compact process that Congress established as the centerpiece of the IGRA's regulation of class III gaming would thus become a dead letter; there would be nothing to negotiate, and no meaningful compact would be possible.
Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1030-31 (2d Cir.1990). 1
The Second Circuit's fears of turning IGRA's compact process into a dead letter are well-founded. It is well to keep in mind that the issue here is not whether California must allow every game the tribes want to conduct; it is merely whether California has a duty to negotiate with the tribes to determine what games should be conducted, on what scale, and who has jurisdiction to enforce gaming laws. In passing IGRA, Congress knew that states and tribes both had important interests at stake. If a state has a genuine prohibitory public policy against all Class III gaming, as some states do, it can rest on that policy and not entertain the possibility of Indian Class III gaming within its borders. States like California that have no such wholesale public policy against Class III gaming must, under IGRA, reach an accommodation between their interests and the strong interests of the tribes in conducting such gaming. IGRA's method of reaching such an accommodation is by negotiation between the two affected groups. IGRA imposes on the states a duty to negotiate compacts in good faith. That duty is enforceable in federal court with the aid, if necessary, of a court appointed mediator to arrive at a compact and the Secretary of the Interior to dictate a compact if the parties do not accept the mediator's ruling. 25 U.S.C. Sec. 2710(d)(7). But under Rumsey, this whole process is nipped in the bud if the tribe seeks to operate games that state law, criminal or regulatory, happens to prohibit. The state has no duty to begin negotiations, even though under IGRA a compact may permit the tribe to operate games that state law otherwise prohibits. 18 U.S.C. Sec. 1166(c)(2). The State thus has no incentive to negotiate, and there is no system to require negotiation. IGRA is rendered toothless.
Such a nullifying interpretation of IGRA might be understandable if it were required by the plain words of the statute, but it is not. Rumsey defeats the congressional plan for Class III gaming by a manifestly flawed interpretation of the statutory language. In deciding that California had no duty to negotiate with the plaintiff tribes, the Rumsey opinion asked and answered the wrong question. IGRA provides:
Class III gaming activities shall be lawful on Indian lands only if such activities are--
....
(B) 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). Thus the state must negotiate with a tribe if the state "permits such gaming." The Rumsey opinion regards the key question as being whether the word "permits" is ambiguous; it holds that the word is not ambiguous, so the State need not bargain. But the proper question is not what Congress meant by "permits," but what Congress meant by "such gaming." Did it mean the particular game or games in issue, or did it mean the entire category of Class III gaming? The structure of IGRA makes clear that Congress was dealing categorically, and that a state's duty to bargain is not to be determined game-by-game. The time to argue over particular games is during the negotiation process.
The only natural reading of section 2710(d)(1)(B) is that, when Congress says "Class III gaming activities shall be lawful ... if located in a State that permits such gaming," then "such gaming" refers back to the category of "Class III gaming," which is the next prior use of the word "gaming." Rumsey interprets the statutory language as if it said: "A Class III game shall be lawful ... if located in a State that permits that game." But that is not what Congress said, and it is not a natural reading of the statutory language. The plain language cuts directly against Rumsey; Congress allows a tribe to conduct Class III gaming activities (pursuant to a compact) if the State allows Class III gaming by anyone.
Furthermore, Class II gaming is governed by virtually identical language in section 2710(b)(1)(A). A tribe may conduct and regulate "Class II gaming ... if such Indian gaming is located within a State that permits such gaming for any purpose by any...
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