State ex rel. Stephan v. Finney

• Citation: 836 P.2d 1169,251 Kan. 559
• Decision Date: 10 July 1992
• Docket Number: No. 67622,67622
• Parties: STATE of Kansas, ex rel., Robert T. STEPHAN, Attorney General, Petitioner, v. The Honorable Joan FINNEY, Governor for the State of Kansas, Respondent.
• Court: United States State Supreme Court of Kansas

Page 1169

836 P.2d 1169

251 Kan. 559

STATE of Kansas, ex rel., Robert T. STEPHAN, Attorney General, Petitioner, v. The Honorable Joan FINNEY, Governor for the State of Kansas Respondent.

No. 67622.

Supreme Court of Kansas.

July 10, 1992.

Syllabus by the Court

1. Mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business.

2. The federal government and that of the State of Kansas are divided into three branches, i.e., legislative, executive, and judicial, each of which is given under its respective constitution the powers and functions appropriate to it.

3. Generally speaking, the legislative power is the power to make, amend, or repeal laws; the executive power is the power to enforce the laws; and the judicial power is the power to interpret and apply the laws to actual controversies.

4. In an original proceeding in mandamus and quo warranto wherein the State, on the relation of the Attorney General, challenges the authority of the Governor to enter into a binding tribal-state compact with the Kickapoo Nation pursuant to the Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq. [1988], it is held: (1) The proceeding herein is an appropriate vehicle for the determination of the issue presented; and (2) the Governor had the authority to enter into negotiations with the tribe, but in the absence of an appropriate delegation of power by the Kansas Legislature or legislative approval of the compact, the Governor has no power to bind the State to the terms thereof.

Robert T. Stephan, Atty. Gen., argued the cause for petitioner.

William B. McCormick, Sp. Counsel to the governor, argued the cause for respondent Governor Joan Finney.

Dan Watkins, Lawrence, was on the brief for amicus curiae Sac and Fox Nation of Missouri in Kansas and Nebraska.

Lance W. Burr, Lawrence, was on the brief for amicus curiae Kickapoo Nation in Kansas.

Harold T. Walker, City Atty., was on the brief for amicus curiae City of Kansas City, Kansas.

Robert L. Pirtle of Pirtle, Morisset, Schlosser & Ayer, Seattle, Wash., was on the brief for amicus curiae Prairie Band of Potawatomi Indians.

PER CURIAM:

This is an original action in mandamus and quo warranto wherein the Attorney General of Kansas challenges the authority of the Governor of Kansas to negotiate and enter into a binding tribal-state compact under the Indian Gaming Regulatory Act (IGRA) (25 U.S.C. § 2701 et seq. [1988]. The compact in issue authorizes casino gambling on the Kickapoo Indian Reservation located within the State of Kansas, said gambling operation to be monitored by the State of Kansas. Additional issues involve whether or not this original action is an appropriate vehicle for the determination of the central issue.

At this point a statement relative to the enactment and provisions of IGRA is appropriate to establish the background giving rise to this litigation. IGRA became law on October 17, 1988. See United States Senate Bill No. 555. The bill was referred to the Select Committee on Indian Affairs. The Committee's report filed August 3, 1988, (S.Rep. No. 446, 100th Cong., 2d Sess. 1-6, reprinted in 1988 U.S.Code Cong. & Admin.News 3071-3076) contains an in-depth discussion of the development and purpose of the Act. The following is excerpted therefrom:

"PURPOSE

"S. 555 provides for a system for joint regulation by tribes and the Federal Government of class II gaming on Indian lands and a system for compacts between tribes and States for regulation of class III gaming. The bill establishes a National Indian Gaming Commission as an independent agency within the Department of the Interior. The Commission will have a regulatory role for class

II gaming and an oversight role with respect to class III.

"BACKGROUND

"S. 555 is the outgrowth of several years of discussions and negotiations between gaming tribes, States, the gaming industry, the administration, and the Congress, in an attempt to formulate a system for regulating gaming on Indian lands. In developing the legislation, the issue has been how best to preserve the right of tribes to self-government while, at the same time, to protect both the tribes and the gaming public from unscrupulous persons. An additional objective inherent in any government regulatory scheme is to achieve a fair balancing of competitive economic interests.

"The need for Federal and/or State regulation of gaming, in addition to, or instead of, tribal regulation, has been expressed by various State and Federal law enforcement officials out of fear that Indian bingo and other gambling enterprises may become targets for infiltration by criminal elements. While some States have attempted to assert jurisdiction over tribal bingo games, tribes have very strenuously resisted these attempts. It was this conflict which gave rise to the California v. Cabazon Band of Mission Indians case (Cabazon ), decided by the Supreme Court on February 25, 1987. (480 U.S. 202, 94 L.Ed.2d 244, [107 S.Ct. 1083,] 1987). The Court, using a balancing test between Federal, State, and tribal interests, found that tribes, in States that otherwise allow gaming, have a right to conduct gaming activities on Indian lands unhindered by State regulation. This decision followed a long line of cases that began with the case of Seminole v. Butterworth, (658 F.2d 3110 , 5th Cir., 1982 [1981], cert. denied [455 U.S. 1020, 102 S.Ct. 1717, 72 L.Ed.2d 138] 1982).

....

"Since the Seminole Tribe opened its game and succeeded in court, over 100 bingo games have been started on Indian lands in states where bingo is otherwise legal. As established in testimony presented to the Committee, it was determined that collectively, these games generate more than $100 million in annual revenues to tribes. Indian tribal elected officials demonstrated to the Committee that bingo revenues have enabled tribes, like lotteries and other games have done for State and local governments, to provide a wider range of government services to tribal citizens and reservation residents than would otherwise have been possible. For various reasons, not all tribes can engage in profitable gaming operations. However, for those tribes that have entered into the business of business, the income often means the difference between an adequate governmental program and a skeletal program that is totally dependent on Federal funding.

....

"However, in the final analysis, it is the responsibility of the Congress, consistent with its plenary power over Indian affairs, to balance competing policy interests and to adjust, where appropriate, the jurisdictional framework for regulation of gaming on Indian lands. S. 555 recognizes primary tribal jurisdiction over bingo and card parlor operations although oversight and certain other powers are vested in a federally established National Indian Gaming Commission. For class III casino, parimutuel and slot machine gaming, the bill authorizes tribal governments and State governments to enter into tribal-State compacts to address regulatory and jurisdictional issues.

"STATEMENT OF POLICY

....

"It is also true that S. 555 does not contemplate and does not provide for the conduct of class III gaming activities on Indian lands in the absence of a tribal-State compact. In adopting this position, the Committee has carefully considered the law enforcement concerns of tribal and State governments, as well as those of the Federal Government, and the need The pertinent portions of IGRA are highly summarized as follows. All gaming is divided into three classes. Class I games are social games played for minimal prizes. Regulation thereof is wholly left to the tribe. Class II games are bingo and bingo-like games. The regulation thereof is a matter wholly between the tribe and National Indian Gaming Commission. Class III games are those not in Class I or II and include slot machines, lotteries, parimutuel wagering, and casino gambling. See 25 U.S.C. §§ 2703, 2710 (1988).

to fashion a means by which differing public policies of these respective governmental entities can be accommodated and reconciled. This legislation is intended to provide a means by which tribal and State governments can realize their unique and individual governmental objectives, while at the same time, work together to develop a regulatory and jurisdictional pattern that will foster a consistency and uniformity in the manner in which laws regulating the conduct of gaming activities are applied."

In order to place the primary issue before us within a meaningful context the procedure for establishing a tribal-state compact must be set forth in some detail. If a tribe seeks to establish Class III games on its reservation, it must first pass an ordinance to that effect which must be approved by the Chairman of the National Indian Gaming Commission. IGRA then sets forth, in pertinent part, the following procedures:

"(3)(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact.

"(B) Any State and any Indian tribe may enter into a Tribal-State compact governing gaming activities on the Indian lands of the Indian tribe, but such compact shall take effect only when notice of approval by the Secretary of such compact has been published by the Secretary in the Federal Register.

....

"(7)(A) The United States district courts shall have jurisdiction over--

(i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into...