Seneca-Cayuga Tribe v. National Indian Gaming
| Decision Date | 17 April 2003 |
| Docket Number | No. 01-5066.,01-5066. |
| Citation | 327 F.3d 1019 |
| Parties | SENECA-CAYUGA TRIBE OF OKLAHOMA; Fort Sill Apache Tribe of Oklahoma; Northern Arapaho Tribe of Wyoming; Diamond Game Enterprises, Inc., Plaintiffs-Appellees, v. NATIONAL INDIAN GAMING COMMISSION; John Ashcroft, Attorney General of the United States; United States Department of Justice; Thomas Scott Woodward, United States Attorney for the Northern District of Oklahoma, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward P. Lazarus (Sandra M. Lee and L. Rachel Helyar with him on the briefs), Akin, Gump, Strauss, Hauer & Feld LLP, Los Angeles, California for Plaintiff-Appellee, Diamond Game Enterprises, Inc.
Jess Green, Ada, Oklahoma, for Plaintiffs-Appellees Northern Arapaho Tribe of Wyoming and Seneca-Cayuga Tribe of Oklahoma; (Andrew W. Baldwin, Lander, Wyoming for Plaintiff-Appellee Northern Arapaho Tribe of Wyoming; Robert E. Prince, Lawton, Oklahoma, for Plaintiff-Appellee Fort Sill Apache Tribe of Oklahoma, with him on the briefs).
Vincent J. Falvo, Jr., United States Department of Justice, Washington, D.C. (Frank J. Marine, Senior Litigation Counsel, Washington, D.C., David E. O'Meila, United States Attorney, Northern District of Oklahoma, and Catherine Depew, Assistant United States Attorney, Northern District of Oklahoma, with him on the briefs), for Defendants-Appellants.
Stephen P. Collette, Long Beach, California, for Amici Curiae National Coalition Against Gambling Expansion, Stand Up For Kansas, and New Mexico Coalition Against Gambling.
Stephen B. Otto, Newport Beach, California, and Richard J. Wilson, Houston, Texas, for Amicus Curiae Cheyenne-Arapaho Gaming Commission.
Before HENRY, McWILLIAMS, and LUCERO, Circuit Judges.
This case requires us to interpret the Johnson Act, 15 U.S.C. §§ 1171-1178, and the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2719. Appellants are the federal agencies and officials who threatened to prosecute three Native American tribes for use of a device called the Magical Irish Instant Bingo Dispenser System, which we will call "the Machine." Appellees are the three tribes, as well as the corporation that manufactured and supplied the Machine.
In response to the threat of prosecution, the appellees filed a complaint in federal district court. Subsequently, the district court granted the appellees' motion for a declaratory judgment stating that the Machine (1) is not an illegal "gambling device" under the Johnson Act; and (2) is a permissible technologic aid to Class II gaming under IGRA. This appeal followed.
Our opinion proceeds in four steps. Part I summarizes the applicable statutory framework. Part II summarizes the background of this dispute. Part III assesses, and rejects, the two threshold arguments raised by appellees: mootness and collateral estoppel. Part IV evaluates the district court's judgment on the merits in two sections. The first section analyzes the relationship between IGRA and the Johnson Act and concludes that if the Machine is properly classified as an IGRA Class II technologic aid, then the Machine is necessarily both authorized by IGRA and protected from Johnson Act scrutiny. The second section, following the D.C. Circuit, concludes that the Machine is indeed an IGRA Class II technologic aid. Accordingly, although our reasoning differs somewhat from the district court, we affirm the district court's decision.
We begin by summarizing the applicable statutory framework. We discuss the Johnson Act and then IGRA.
The Johnson Act, as amended in 1962, makes criminal, both outside and inside "Indian country,"1 the possession, use, sale, or transportation of any "gambling device." 15 U.S.C. § 1175(a). The Johnson Act defines a "gambling device" as any
slot machine ... and other machine or mechanical device (including but not limited to, roulette wheels and similar devices) designed and manufactured primarily for use in connection with gambling, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property.
Id. § 1171(a)(1), (2). Courts have construed the Johnson Act broadly, concluding that the statute's "gambling device" language was enacted to "anticipate the ingeniousness of gambling machine designers" in "separating the public from its money on a large scale," Lion Mfg. Corp. v. Kennedy, 330 F.2d 833, 836-37 (D.C.Cir. 1964), and therefore to cover a wide variety of machines. See James L. Rigelhaupt, Jr., What Constitutes Gambling Device Within Meaning of 15 U.S.C.A. Sec. 1171(a) So as to be Subject to Forfeiture Under Gambling Devices Act of 1962 (15 U.S.C.A. secs. 1171-1178), 83 A.L.R. Fed. 177, 1987 WL 419639 (1987 & Supp.2000) (collecting cases).
The Indian Gaming Regulatory Act (IGRA)
Following the Supreme Court's decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), which "authorized gaming on federally recognized Indian country, Congress enacted the Indian Gaming Regulatory Act ... also known as IGRA." United States v. 162 MegaMania Gambling Devices, 231 F.3d 713, 717 (10th Cir.2000) (internal citations omitted). IGRA "provides a comprehensive regulatory framework for gaming activities on Indian country which seeks to balance the interests of tribal governments, the states, and the federal government." Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1548 (10th Cir.1997) (internal quotation marks omitted). Towards that end, IGRA authorized the creation within the United States Interior Department of a three member National Indian Gaming Commission. See 25 U.S.C. § 2704. The NIGC's broad powers include inspecting tribes' books and records, approving tribal-state pacts, levying and collecting civil fines, monitoring and shutting down unauthorized tribal games, and promulgating regulations and guidelines to implement IGRA. See 25 U.S.C. §§ 2705-06, 2713. IGRA divides Native American gaming into three mutually exclusive categories: Classes I, II, and III. 25 U.S.C. § 2703. The three classes differ as to the extent of federal, tribal, and state oversight. See United Keetoowah Band of Cherokee Indians v. Oklahoma, 927 F.2d 1170, 1177 (10th Cir.1991).
Class I gaming includes traditional Native American "social games played in connection with `tribal ceremonies or celebrations.'" Id. (quoting 25 U.S.C. § 2703(6)). These traditional games include "`stick or bone' games, rodeos, and horse races played in conjunction with tribal celebrations, ceremonies, pow wows, or feasts."2 Tribes possess "exclusive jurisdiction" to regulate Class I gaming. Keetoowah, 927 F.2d at 1177 (quoting 25 U.S.C. § 2710(a)(1)) (emphasis supplied).
Class II gaming includes "the game of chance commonly known as bingo (whether or not electronic, computer or other technologic aids are used in connection therewith) ... including (if played in the same location) pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo...." 25 U.S.C. § 2703(7)(A). IGRA excludes from the definition of Class II gaming "electronic or electromechanical facsimiles of any game of chance or slot machines of any kind." Id. at § 2703(7)(B)(ii). Class II gaming may be conducted in Indian country without a tribal-state compact. See id. §§ 2703(7) & 2710(b)(1). Tribes may engage in, or license and regulate, Class II gaming on land within a given tribe's territorial boundaries if three conditions are met: (1) "such Indian gaming is located within a State that permits such gaming for any purpose by any person, organization or entity," (2) "such gaming is not otherwise specifically prohibited on Indian country by Federal law," and (3) "the governing body of the Indian tribe adopts an ordinance or resolution which is approved by the [Chairman of the NIGC]." Id. § 2710(b)(1)(A)-(B). Class II games are "regulated by the [NIGC]." MegaMania, 231 F.3d at 718 (citing 25 U.S.C. § 2710(b)) (emphasis supplied). Congress made no reference in IGRA to the relationship between the Johnson Act's strictures and IGRA's authorization of the use of technologic aids to Class II gaming. Nor has Congress amended the Johnson Act to clarify this relationship.
Class III is a residual category: under IGRA, all gaming activity other than Class I and II gaming is Class III gaming. Id. § 2703(8). Examples of Class III gaming include "any banking card games, including baccarat, chemin de fer, or blackjack (21)," and "electronic or electromechanical facsimiles of any game of chance or slot machines of any kind." Id. § 2703(7)(B)(i)-(ii). IGRA provides that the Johnson Act's prohibitions "shall not apply to any gaming conducted under a [t]ribal-[s]tate compact that" is entered into between "[a]ny Indian tribe having jurisdiction over the Indian lands upon which a Class III gaming activity is being conducted" in "a state in which gambling devices are legal." Id. § 2710(d)(3), (6). Class III gaming authorized by a tribal-state compact is regulated by the given compact. However, Class III gaming not duly authorized may be subject to federal criminal prosecution under the Johnson Act. Thus, regulation of Class III gaming is shared by the tribes, the states, the NIGC, and the Department of Justice.
At the heart of this dispute is whether the game played with the Machine qualifies as the IGRA Class II game of pull-tabs. Therefore, we first describe the game of pull-tabs as played in its traditional, manual form. We then describe the game that is played with the Machine.3
In the game of pull-tabs as it is typically played, players compete against one another to obtain winning...
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