U.S. v. Spokane Tribe of Indians, 94-35515

• Citation: 139 F.3d 1297
• Decision Date: 27 March 1998
• Docket Number: No. 94-35515,94-35515
• Parties: 98 Cal. Daily Op. Serv. 2240, 98 Daily Journal D.A.R. 3095 UNITED STATES of America, Plaintiff-Appellee, v. THE SPOKANE TRIBE OF INDIANS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1297

139 F.3d 1297

98 Cal. Daily Op. Serv. 2240, 98 Daily Journal

D.A.R. 3095

UNITED STATES of America, Plaintiff-Appellee, v. THE SPOKANE TRIBE OF INDIANS, Defendant-Appellant.

No. 94-35515.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1997.

Decided March 27, 1998.

Scott D. Crowell, Crowell Law Offices, Kirkland, WA, for defendant-appellant.

James R. Shively, Assistant United States Attorney, Spokane, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Fred L. Van Sickle, District Judge, Presiding. D.C. No. CV-94-00104-FVS.

Before: D.W. NELSON, WIGGINS and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge.

On application by the United States, the district court enjoined the Spokane Tribe of Indians from conducting lucrative gambling operations on its reservations. The preliminary injunction was issued under the authority of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq., which has since been declared partially unconstitutional. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In this interlocutory appeal we confront the question whether portions of IGRA not struck down by Seminole Tribe support the injunction.

I

IGRA, as passed by Congress in 1988, sets up a complex procedure for states and Indian tribes to work out their differences concerning gambling on Indian reservations. The first step in that process is for tribes wishing to conduct commercial gaming to negotiate compacts with the states within whose borders their reservations are located. The Spokane Tribe of Indians was operating a bingo hall and some card games at the time IGRA was passed but wanted to expand its operations. So the Tribe began to negotiate a compact with the State of Washington.

Negotiations did not go well and broke down altogether after two years. As IGRA then allowed, the Tribe sued the State for failure to negotiate in good faith. Following the Supreme Court's decision in Seminole Tribe, the State invoked its newfound Eleventh Amendment immunity and brought the Tribe's suit to a sudden end.

While its suit against the State was pending, the Tribe had stepped up its casino operations and started offering a wider range of games. Without a compact in place, the gaming operations violated IGRA and the United States brought this action to put a stop to them. The district court granted a preliminary injunction prohibiting the Tribe from operating most types of games and the Tribe appeals.

II

The district court issued its injunction when IGRA was still wholly intact. Does the Supreme Court's decision in Seminole Tribe, striking down another section of the same statute, affect the district court's authority to enjoin Indian gaming thereunder? To answer this question we must first examine the history and structure of IGRA to determine the extent to which its parts are mutually dependent.

A

In 1987 the Supreme Court held that states were not authorized to regulate gambling in Indian country. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). States disliked Cabazon and so the following year Congress passed IGRA. The new law gave states considerable say over gambling in Indian country, but the Act was not an unmitigated defeat for tribes. Rather, the law closely balanced the interests of states and tribes. IGRA divided games into three classes, each regulated differently. Our concern is with class III gaming-the most lucrative kind-covering all but social gambling and games like bingo. See 25 U.S.C. § 2703(8). Under IGRA, class III activities must be authorized by a tribal ordinance approved by the National Indian Gaming Commission, permitted by the state for some person or organization, ¹ and covered by a tribal-state compact. See 25 U.S.C. § 2710(d)(1).

A different section of IGRA makes it a federal crime to violate state gambling law in Indian country unless authorized by a compact. See 18 U.S.C. § 1166. Only the federal government, not the state, may enforce this provision. See id.

The tribal-state compact is pivotal to the IGRA provisions governing class III gaming. Without a compact in place, a tribe may not engage in class III gaming. To guard against the possibility that states might choose not to negotiate, or to negotiate in bad faith, Congress included a complex set of procedures designed to protect tribes from recalcitrant states. ²

In 1996 the Supreme Court emasculated these procedures by holding that tribes are constitutionally precluded from bringing suit against recalcitrant states that do not consent to being sued. See Seminole Tribe, 517 U.S. at 72, 116 S.Ct. at 1131 ("[T]he Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States."). The Supreme Court did not consider whether the rest of IGRA survives.

B

IGRA does contain a severability clause. See 25 U.S.C. § 2721. This creates a presumption that if one section is found unconstitutional, the rest of the statute remains valid. But that presumption is not conclusive; we must still strike down other portions of the statute if we find strong evidence that Congress did not mean for them to remain in effect without the invalid section. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107 S.Ct. 1476, 1481, 94 L.Ed.2d 661 (1987). The question we must ask is this: Would Congress have enacted IGRA had it known it could not give tribes the right to sue states that refuse to negotiate? See id. at 685, 107 S.Ct. at 1480; see also Board of Natural Resources of the State of Washington v. Brown, 992 F.2d 937, 948 (9th Cir.1993). If the answer is yes, then the rest of IGRA remains valid. If the answer is no, things become more complicated, as we must then ask which other provisions of IGRA are called into question, and under what circumstances.

Figuring out why Congress passed a piece of legislation is hard enough. Figuring out whether it would have passed that legislation in the absence of one of its key provisions is even harder. Yet, figure we must.

Under Cabazon, the states had little power to regulate gambling on tribal land. IGRA shifted power to the states-a major blow to tribal interests. Under IGRA states could effectively veto any class III gaming on Indian land simply by refusing to negotiate a compact. Section 2710(d)(7) restored some leverage to the tribes by giving them the right to sue recalcitrant states and thereby forcing them to enter into a compact. See n.2 supra. It is quite clear from the structure of the statute that the tribe's right to sue the state is a key part of a carefully-crafted scheme balancing the interests of the tribes and the states. It therefore seems highly unlikely that Congress would have passed one part without the other, leaving the tribes essentially powerless.

IGRA's legislative history strongly supports this inference. ³ The Senate report on S. 555, which became IGRA, repeatedly emphasizes that the bill balances the interests of tribes and states. See, e.g., S.Rep. No. 100-446, at 1-2 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3071 ("[T]he 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."); id. at 5, 1988 U.S.C.C.A.N. at 3075 ("[T]he Committee has attempted to balance the need for sound enforcement of gaming laws and regulations, with the strong Federal interest in preserving the sovereign rights of tribal governments[.]"); id. at 6, 1988 U.S.C.C.A.N. at 3076 ("This legislation is intended to provide a means by which tribal and State governments can realize their unique and individual governmental objectives[.]"). In describing the balancing, the report refers specifically to the provision for suing states:

Section 11(d)(7) grants a tribe the right to sue a State if compact negotiations are not concluded. This section is the result of the Committee balancing the interests and rights of tribes to engage in gaming against the interests of States in regulating such gaming.... [T]he issue before the Committee was how best to encourage States to deal fairly with tribes as sovereign governments. The Committee elected, as the least offensive option, to grant tribes the right to sue a State if a compact is not negotiated....

Id. at 14, 1988 U.S.C.C.A.N. at 3084.

When the Eleventh Amendment became a concern after IGRA became law, Senator Daniel Inouye, chair of the Senate Committee on Indian Affairs and one of S. 555's authors, explicitly answered our question. ⁴ He explained that Congress would not have passed IGRA in the form it did, had it known that tribes wouldn't be allowed to sue the states:

Because I believe that if we had known at the time we were considering the bill-if we had known that this proposal of tribal state compacts that came from the States and was strongly supported by the States, would later be rendered virtually meaningless by the action of those states which have sought to avoid entering into compacts by asserting the Tenth and Eleventh Amendments to defeat federal court jurisdiction, we would not have gone down this path.

Implementation of Indian Gaming Regulatory Act: Oversight Hearings Before the House Subcommittee on Native American Affairs of the Committee on Natural Resources, 103rd Cong., 1st Sess., Serial No. 103-17, Part 1, at 63 (April 2, 1993). Elsewhere, he said, "If the courts rule that the Eleventh Amendment would prohibit the tribal governments from suing State officials, then you've got a piece of paper as a law." Implementation of Indian Gaming Regulatory Act: Hearing Before the Senate Select Committee on Indian Affairs, 102nd Cong., 2d Sess., S. Hrg. 102-660, Part 2, at 58 (March 18, 1992).

IGRA as passed thus struck a finely-tuned balance between the interests of the states and...