Salt River Pima-Maricopa Indian Community v. Hull
| Decision Date | 07 October 1997 |
| Docket Number | No. CV-97-0090-SA,PIMA-MARICOPA,CV-97-0090-SA |
| Citation | 945 P.2d 818,190 Ariz. 97 |
| Parties | , 253 Ariz. Adv. Rep. 5 SALT RIVERINDIAN COMMUNITY, an Indian tribe organized under the Indian Reorganization Act of 1934, Petitioner, v. Jane Dee HULL, Governor of Arizona, Respondent. |
| Court | Arizona Supreme Court |
In a special action, the Salt River Pima-Maricopa Indian Community (the Tribe) requested relief--what was formerly called a writ of mandamus--requiring Governor J. Fife Symington to sign a "standard gaming compact" upon the request of the Tribe as required by Proposition 201, adopted by initiative in the 1996 election and codified as A.R.S. § 5-601.01. Governor Symington had refused to sign such a compact. We have jurisdiction under article VI, § 5(4) of the Arizona Constitution and Rules 1(a), 2(a)(1), and 7(b), Ariz.R.P.Spec.Act.
After the case was briefed, argued, and submitted in this court, Governor Symington resigned from office. His successor, Jane Dee Hull, was therefore "automatically substituted as a party," as required by Rule 27(c)(1), Ariz.R.Civ.App.P. Other than that substitution and the consequent change in the case caption, Governor Hull has not participated in any way. Unless used generically, therefore, the phrase "the Governor" in this opinion refers to Governor Symington, not Governor Hull.
Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988. In 1992, the Arizona Legislature enacted A.R.S. § 5-601 to permit the state to enter into gaming compacts with Arizona tribes. From July 1992 to 1996, the state, through Governor Symington, made such compacts with sixteen Arizona tribes. However, after the opinions in Rumsey Indian Rancheria of Wintun Indians v. Wilson 1 and Seminole Tribe of Florida v. Florida, 2 the Governor refused to make any new compacts. He specifically refused to conclude negotiations and enter into a compact tendered by the Tribe.
When the Governor declined to make any new compacts, the Tribe and others chose to circulate initiative petitions; they obtained the necessary signatures to put the initiative on the ballot and campaigned vigorously for its adoption. Almost two-thirds of those who voted in the 1996 general election favored the initiative. The Governor did not attempt a veto under article IV, part 1, § 1(6) of the Arizona Constitution but proclaimed the initiative, codified as A.R.S. § 5-601.01, to be law on December 6, 1996.
The text of Proposition 201 contained a clear declaration of intent and purpose:
Pursuant to section 5-601, Arizona Revised Statutes, the state has entered into gaming compacts with sixteen of Arizona's twenty-one Indian tribes. These compacts are of a standard form that was negotiated by the state with various Indian tribes and approved by the United States Secretary of the Interior. The standard form of compact serves the interests of the state by providing uniform comprehensive controls over reservation gaming including regulation of Indian gaming contractors and vendors and limitation upon types of gaming, the number of gaming devices and the number of gaming locations on each reservation. The state refuses to enter into the standard form of compact with any of the five Arizona tribes that do not have a compact. In the interests of fairness and sound administration the same standard compact should be available to any of those five tribes who request it.
On December 9, 1996, the Tribe's president submitted a standard form of gaming compact to the Governor for review and signature. In response, the Governor indicated negotiation was required on some aspects of the compact. Shortly thereafter, two residents of Scottsdale, which borders the Tribe's reservation, filed in this court a petition for special action challenging the constitutionality of A.R.S. § 5-601.01. We granted a stay to toll the statute's thirty-day period for signing the compact. After hearing oral argument on the petition, we declined to accept jurisdiction and dissolved the stay. See Sears v. Symington, No. CV-96-0650-SA (Ariz. Sup.Ct. Feb. 12, 1997 order).
The next day the Governor signed and tendered to the Tribe a compact containing several significant changes from the standard form of compact submitted by the Tribe and mandated by the statute. Of particular concern was the addition of a non-standard clause to the section concerning casino location: all "gaming facility locations shall be approved by the Arizona Department of Gaming." With this amended compact, the Governor sent a letter stating he was prepared to continue negotiations with the Tribe. The Governor and the Tribe both read the added clause as a provision giving the state's executive branch control over the location of casinos on tribal land. Because the clause was not satisfactory to the Tribe, it filed this special action.
The Tribe argues that the Governor violated his constitutional duty to execute the state's laws when he failed to sign the standard form of gaming compact submitted by the Tribe under A.R.S. § 5-601.01. The Governor responds that under the United States and Arizona Constitutions the statute is preempted by IGRA, which requires negotiation. The Governor also argues the statute's requirement that he sign the standard compact violates article III of the Arizona Constitution because it invades and usurps the executive powers of the governor to negotiate compacts under IGRA. Additionally, the Governor requests the court to consider whether the statute is special legislation that violates article IV, part 4, § 19 of the Arizona Constitution, whether a standard form of compact exists, and how the statute should be construed.
In enacting the Indian Gaming Regulatory Act, Congress could have prohibited or allowed tribes to conduct any type of gaming in Indian country but instead chose to balance the interests of tribes and their neighbors. IGRA permits states and tribes, with the approval of the Secretary of the Interior, to make compacts that permit and govern gaming on Indian lands, and permits tribes that wish such compacts to request the state in which the tribe plans to locate a casino to begin negotiations for such a compact. When a tribe makes such a request, IGRA requires that "the State shall negotiate with the Indian tribe in good faith to enter into such a compact." 25 U.S.C. § 2710(d)(3)(A).
A.R.S. § 5-601, under which the Tribe first tendered its compact, reads in pertinent part:
§ 5-601 Gambling on Indian reservations; tribal-state compacts
A. Notwithstanding any other law, this state, through the governor, may enter into negotiations and execute tribal-state compacts with Indian tribes in this state pursuant to the Indian gaming regulatory act of 1988 (25 United States Code §§ 2701 through 2721 and 18 United States Code §§ 1166 through 1168). Notwithstanding the authority granted to the governor by this subsection, this state specifically reserves all of its rights, as attributes of its inherent sovereignty, recognized by the tenth and eleventh amendments to the United States Constitution. The governor shall not execute a tribal-state compact which waives, abrogates or diminishes these rights.
A.R.S. § 5-601.01, enacted by passage of the initiative, provides:
§ 5-601.01. Standard form of tribal-state compact; eligible tribes; limitation on time for execution of compact
A. Notwithstanding any other law or the provisions of § 5-601, the state, through the governor, shall enter into the state's standard form of gaming compact with any eligible Indian tribe that requests it.
B. For purposes of this section:
1. The state's standard form of gaming compact is the form of compact that contains provisions limiting types of gaming, the number of gaming devices, the number of gaming locations, and other provisions, that are common to the compacts entered into by this state with Indian tribes in this state on June 24, 1993, and approved by the United States secretary of the interior on July 30, 1993.
2. An eligible Indian tribe is an Indian tribe in this state that has not entered into a gaming compact with the state.
C. The state, through the governor, shall execute the compact required by this section within thirty days after written request by the governing body of an eligible tribe.
The practical result of § 5-601.01 is that if negotiations are requested by one of the five tribes without a compact and fail to go forward to completion, the tribe may request the standard compact, which shall be executed by the governor.
We note that the statute did no more than put eligible tribes on an equal footing with the tribes that already had compacts when Rumsey was decided. It could simply have removed the state's Rumsey objection to class III gaming and required the state to negotiate with each tribe individually. This would have prevented the state from taking the position that there would be no class III gaming but would have allowed the state to negotiate casino location in a more flexible way to accommodate the different circumstances presented by each reservation's location. The events leading up to the initiative's passage suggest that its purpose was to remove the Rumsey obstacle to further compacting. But the initiative does more: it not only removes the Rumsey objection but also requires the state to enter into the same compact entered into with other tribes. Thus the flexibility to...
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