Seminole Tribe of Florida v. Butterworth

• Decision Date: 06 May 1980
• Docket Number: No. 79-6680-Civ-NCR.,79-6680-Civ-NCR.
• Citation: 491 F. Supp. 1015
• Parties: SEMINOLE TRIBE OF FLORIDA, an Organized Tribe of Indians as recognized under and by the laws of the United States v. Robert BUTTERWORTH, the duly elected Sheriff of Broward County, Florida.
• Court: U.S. District Court — Southern District of Florida

491 F. Supp. 1015

SEMINOLE TRIBE OF FLORIDA, an Organized Tribe of Indians as recognized under and by the laws of the United States

v.

Robert BUTTERWORTH, the duly elected Sheriff of Broward County, Florida.

No. 79-6680-Civ-NCR.

United States District Court, S. D. Florida, Fort Lauderdale Division.

May 6, 1980.

Stephen H. Whilden, Hollywood, Fla. by Marion Sibley, Miami Beach, Fla., for Seminole Tribe of Florida.

Philip S. Shailer, Ft. Lauderdale, Fla., Jim Smith, Atty. Gen. by Brian E. Norton, Asst. Atty. Gen., Tallahassee, Fla., for defendant.

AMENDED ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

ROETTGER, District Judge.

Plaintiff, the Seminole Indian Tribe of Florida, has requested this court to enjoin permanently the Sheriff of Broward County from enforcing Florida's bingo statute on Indian Land.¹ This lawsuit follows considerable investment of capital by plaintiff Tribe in a bingo hall facility constructed and presently operating on the Seminole Reservation in Broward County.² This particular Seminole Reservation is located about 7 air miles southwest of downtown Fort Lauderdale and is now surrounded by urban growth. According to the pretrial stipulation on file, the Tribe's bingo hall cost approximately $900,000 to construct.

The Tribe's bingo operation is clearly in violation of Fla.Stat. § 849.093 in several respects.³ First the statute permits the operation of a bingo hall by a qualified organization no more than two days per week. The Tribe's hall is in operation six days per week. Second, the statute proscribes more than one jackpot on any given night and limits it to a value of $100.00 or less. The Tribe's prizes exceed both limitations. Also, the statute prohibits the use of paid employees by the bingo operator. The Tribe pays its hall employees.

The Sheriff of Broward County, Robert Butterworth, has stated his intention to fulfill his obligation as this county's chief law enforcement officer. He intends to enforce Fla.Stat. § 849.093 by making arrests in the case of any violations.

Because a strikingly similar case was dismissed by the Ninth Circuit Court of Appeals for lack of "case or controversy," Rincon Band of Mission Indians v. County of San Diego, 495 F.2d 1 (9th Cir. 1974), the court finds it necessary to examine that issue in the instant case.

The power of a federal court is defined in Article III of the United States Constitution, which limits that power to only those matters constituting a case or controversy. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). When presented with an anticipatory challenge to a statute, as in the present case, the court must first be satisfied that the controversy is "`real, substantial . . . between parties . . . a dispute definite and concrete.'" International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 817-818 (5th Cir. 1979) citing Babbitt v. UFW, 442 U.S. 289, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) quoting Railway Mail Association v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945).

Defendant raised the issue of "case or controversy" at the hearing for preliminary injunction relying heavily on Rincon, supra. Admittedly, Rincon is factually similar to this case, and it did explicitly hold that a general threat of enforcement in the absence of previous arrests for ordinance violations did not meet the case or controversy requirement of the Constitution. Id. at 6.

The Fifth Circuit, however, interprets the Rincon decision as illustrative on another facet of the justiciability analysis — namely the "non-jurisdictional, `policy considerations' underlying justiciability and not to the existence of a case or controversy." Eaves, supra at 818. Consequently, the court concludes that Rincon does not state the test to be followed in this Circuit. As enunciated in Eaves, the court must focus on the plaintiff's interest in engaging in conduct, arguably legal but prohibited by law (id. at 819) to be certain that it is not motivated strictly to thwart the enforcement of the challenged law. In this case, the court concludes that plaintiff earnestly wishes to engage in the bingo business in order to raise revenue for the Tribe. The court is confident that plaintiff's goal is not merely "the extirpation of unconstitutional measures."⁴ Id.

The second area of inquiry "The nonjurisdictional, `policy' component of justiciability" Eaves, supra, at 821, also requires that this court accept jurisdiction of this case. This case seems classically appropriate for an anticipatory challenge. The Tribe seeks to engage in a business which the local sheriff has indicated may be in violation of state law, and which may result in criminal prosecutions because of his testified intention to enforce state law. In this regard, plaintiff needs only show a slight threat of prosecution. Id. citing Babbitt v. UFW, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). For policy reasons, it is a sound exercise of judicial authority for the court to declare the rights of the parties before it, and to determine the Seminole Tribe's immunity from, or vulnerability to, the penal provisions of Florida's bingo law.

On a related issue, the court finds that its subject matter jurisdiction has been properly invoked pursuant to 28 U.S.C. § 1362, which provides:

"The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States."

In Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) the Supreme Court upheld the District Court's jurisdiction over a suit by Indians to avoid state cigarette, sales tax and personal property tax. The Court so held even though 28 U.S.C. § 1341 provides that "district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under state law where a plain, speedy and efficient remedy may be had in the courts of such State." The court is of the opinion that the matter in controversy arises under laws of the United States, i. e., Public Law 280, and thus is properly brought as a declaratory judgment action. 28 U.S.C. § 2201-2202.⁵

The court begins its analysis with the general proposition that Indian nations have always been dealt with exclusively by the Federal Government. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). This proposition has been grounded on the principle that Indian nations were "distinct political communities, having territorial boundaries, within which their authority is exclusive . . ." Id. at 168, 93 S.Ct. at 1260 citing Worcester v. Georgia, 6 Pet. 515, 557, 8 L.Ed. 483 (1832). The Federal Government has long permitted Indian Nations largely to govern themselves, free from state interference. Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965). "State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply." McClanahan, supra 411 U.S. at 170-171, 93 S.Ct. at 1261 quoting U.S. Dept. of the Interior, Federal Indian Law 845 (1958).

In the case before the court, it must be determined if the grant of jurisdiction to the states by operation of Public Law 280, 67 Stat. 588, 589, codified at 28 U.S.C. § 1360, 18 U.S.C. § 1162, has permitted the State of Florida to enforce its bingo statute on Seminole Land. As a preliminary matter, however, the court will have to determine if Florida's statute can be classified as criminal/prohibitory or civil/regulatory.

The law of Florida concerning gambling activities is clear. They are generally forbidden by the State Constitution. Fla. Const. Art. 10 § 7 provides:

"Lotteries, other than the types of parimutuel pools authorized by law . . . are hereby prohibited in this state."

Likewise most gambling activities are prohibited by Chapter 849 of the Florida Statutes.

In construing that article of the Constitution, the Florida Supreme Court has noted that its effect prohibits the legislature from legalizing any gambling device that would constitute a lottery, but that the legislature has inherent power to prohibit or regulate all other forms of gambling. In the exercise of this power, the legislature has permitted bingo with certain limitations. Carroll v. State, 361 So.2d 144 (Fla. 1978). Those limitations on bingo are found in Fla.Stat. § 849.093, and have been described by the Florida Supreme Court as "stringent limitations against abuse." Id. at 147. That same court also wrote:

"The discretion of the legislature when exercised for the public welfare in selecting the subjects of police regulations and in determining the nature and extent of such regulation is limited only by the requirements of fundamental law that the regulations shall not invade private rights secured by the Constitution." (emphasis added) Id.

In reviewing Florida's statutory scheme, it is evident that § 849.093 does create an exception to otherwise forbidden activity by imposing certain restrictions or regulations. The court also notes that violations of that section are punishable as misdemeanors, and eventually, as third-degree felonies.⁶

The court finds the case of United States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977) particularly helpful in this determination. In that case, defendants were convicted in a federal court of selling fireworks on Indian land in the State of Washington. The charge was founded on a Washington state statute made enforceable in the federal courts by the Assimilative Crimes Act. 18 U.S.C. § 13. The question presented there was whether the Assimilative Crimes Act...