Yavapai-Prescott Indian Tribe v. State of Ariz.

• Decision Date: 28 May 1992
• Docket Number: No. Civ. 91-1696 PCT PGR.,Civ. 91-1696 PCT PGR.
• Citation: 796 F. Supp. 1292
• Parties: YAVAPAI-PRESCOTT INDIAN TRIBE, a federally-recognized Indian Tribe, Plaintiff, White Mountain Apache Tribe; Cocopah Indian Tribe; Pascua Yaqui Indian Tribe; and Tohono O'Odham Nation, Plaintiffs/Intervenors, v. STATE OF ARIZONA, and J. Fife Symington, III, Governor of the State of Arizona, and Grant Woods, Attorney General of the State of Arizona, Defendants.
• Court: U.S. District Court — District of Arizona

796 F. Supp. 1292

YAVAPAI-PRESCOTT INDIAN TRIBE, a federally-recognized Indian Tribe, Plaintiff White Mountain Apache Tribe; Cocopah Indian Tribe; Pascua Yaqui Indian Tribe; and Tohono O'Odham Nation, Plaintiffs/Intervenors, v. STATE OF ARIZONA, and J. Fife Symington, III, Governor of the State of Arizona, and Grant Woods, Attorney General of the State of Arizona, Defendants.

No. Civ. 91-1696 PCT PGR.

United States District Court, D. Arizona.

May 28, 1992.

David F. Gaona and Luis A. Ochoa, Phoenix, Ariz., for plaintiff.

Katherine L. Mead, Asst. Atty. Gen., Phoenix, Ariz., for defendants.

MEMORANDUM AND ORDER

ROSENBLATT, District Judge.

INTRODUCTION

This is an action by the Yavapai-Prescott Indian Tribe (hereinafter "plaintiff" or the "Tribe") against the State of Arizona, its Governor and its Attorney General (hereinafter "defendants" or the "State") for declaratory relief, seeking enforcement of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701, et seq. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1362 and 25 U.S.C. § 2710(d)(7)(A)(i).¹

Pending before the Court is plaintiff Yavapai-Prescott Indian Tribe's motion for summary judgment. Pursuant to a stipulation between plaintiff and defendants, plaintiff seeks the Court's resolution of one question: the scope of class III gaming allowable in Arizona and the State's duty to include various forms of class III gaming activity in a Tribal-State compact.²

The Court has determined, however, for the reasons that follow, that resolution of this question by this Court, at this time, is not contemplated by IGRA.

THE INDIAN GAMING REGULATORY ACT

The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et seq. ("IGRA"), reflects several years of discussions among Indian tribes, states, the gaming industry, the administration, and the Congress. S.Rep. No. 446, 100th Cong., 2d Sess. 10 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3080.

In enacting IGRA, Congress decided there would be gaming on Indian lands. It clearly declared its purpose in the Act itself:

to set the statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal government. 25 U.S.C. § 2702(1).³

Congress further intended IGRA to prevent the infiltration of organized crime and other corrupting influences, to assure that gaming on Indian lands is conducted fairly and honestly, and to establish federal authority and standards over gaming. 25 U.S.C. § 2702(2)-(3). See also U.S. v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 359 (8th Cir.1990).

IGRA creates a three-tiered classification of gaming activity that may be conducted on Indian land. Class I gaming is limited to traditional games associated with ceremonials and social games solely for prizes of minimal value. 25 U.S.C. § 2703(6).⁴ Such gaming is within the exclusive jurisdiction of the tribes. § 2710(a)(1).

Class II gaming includes bingo, lotto, related games, and nonbanking card games. § 2703(7)(A). IGRA expressly excludes from class II banking card games, electronic or electromechanical facsimiles of any game of chance, and slot machines. § 2703(7)(B). An Indian tribe may engage in, or license and regulate, class II gaming if it is located within a State that permits such gaming. §§ 2710(b)(1)(A)-(B); Sisseton-Wahpeton, 897 F.2d at 360. Class II gaming is within the jurisdiction of the Indian tribes, but is subject to oversight by the National Indian Gaming Commission ("NIGC"). §§ 2703(7)(A), 2710(a)(2), (b) and (c); U.S. v. Cook, 922 F.2d 1026, 1033 (2nd Cir.1991).

Class III gaming includes all forms of gaming that are not within the class I gaming or class II gaming classifications, i.e., banking card games, all slot machines, casinos, horse and dog racing, jai-alai, etc. § 2703(8); S.Rep. No. 446 at 7, 1988 U.S.C.C.A.N. 3077.

Class III gaming activities are lawful only if they are (a) authorized by a proper tribal ordinance or resolution approved by the Chairman,⁵ (b) located in a State that permits such gaming for any purpose by any person, organization, or entity, and (c) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State pursuant to 25 U.S.C. § 2710(d)(3).⁶ If a tribe wishes to conduct class III gaming, it must first enter into a compact with the State governing the conduct of gaming activities within the State in which the gaming will be located. Id.

FACTS

The Tribe is a formally organized and federally recognized Indian Tribe which occupies a reservation within the State of Arizona. In November of 1988, the Tribe requested that the State enter into negotiations for the formation of a Tribal-State compact covering class III gaming. Negotiations commenced, leading to the parties' exchange of proposed compacts, and a meeting in October 1989 to discuss the various draft documents. At some point, the Tribe formally passed an ordinance authorizing gaming activities within the reservation.

Subsequent to October 1989, negotiations stalled. The parties have stipulated that negotiations between them reached an impasse due solely to a dispute as to the scope of class III gaming allowable in Arizona and the State's duty to include various forms of class III gaming activity in a Tribal-State compact. In particular, the parties disputed whether the State must include casino and video gaming in a Tribal-State compact.⁷

On October 23, 1991, plaintiff filed this action, and shortly thereafter filed its motion for summary judgment. After filing of plaintiff's motion, additional Indian tribes ("Intervenors") sought to intervene in the action. On February 24, 1992, the Court granted the Intervenors' motion as to those tribes authorized to initiate a court action under IGRA.

In response to the filing of the Intervenors' Complaint In Intervention, defendants filed a motion to dismiss on Tenth Amendment grounds. Intervenors have filed a motion for partial summary judgment which largely addresses those issues raised in plaintiff's motion for summary judgment.

Plaintiff seeks an order from this Court declaring that electronic or electromechanical facsimiles of any game of chance are games which are permitted in the State of Arizona by any person for any purpose, within the meaning of the Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(1)(B). The parties agree that the video gaming⁸ at issue falls within class III.

DISCUSSION

A. The Parties' Dispute As to the Scope of Gaming Permitted Within Class III

The parties' dispute centers on the scope of gaming permitted within class III of IGRA. Plaintiff argues that IGRA permits any type of class III gaming so long as the State allows it for any purpose, including charitable, commercial, or governmental purposes. In making this argument, Plaintiff relies upon 25 U.S.C. § 2710(d)(1), which states that "class III gaming activities shall be lawful on Indian lands only if such activities are ... located in a State that permits such gaming for any purpose by any person, organization, or entity." In construing this language, plaintiff further relies upon California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987).

In California v. Cabazon, supra, the Court upheld the right of a tribe to conduct public bingo games on Indian lands by applying a previously-established civil/regulatory-criminal/prohibitory analysis. Under this analysis, the court distinguishes between state laws prohibiting certain activities and state laws which impose a regulatory scheme upon those activities. Those activities which are merely regulated ("civil") as opposed to completely barred ("criminal"), may be conducted by the Tribe. Cabazon, 107 S.Ct. at 1088-89. See also Mashantucket Pequot Tribe v. State of Conn., 913 F.2d 1024, 1029-32 (2nd Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1620, 113 L.Ed.2d 717 (1991); United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 365 (8th Cir.1990).

Cabazon was based upon an analysis of Public Law 83-280⁹. Congress, however, specifically considered Cabazon in drafting IGRA and approved Federal court reliance upon the distinction between State criminal laws prohibiting certain activities and State civil laws imposing "a regulatory scheme upon those activities to determine whether class II games are allowed in certain States." S.Rep. No. 446 at 6, 1988 U.S.C.C.A.N. 3076.¹⁰ See also S.Rep. No. 446 at 2-6.

The State concedes that the Cabazon analysis must be applied to class II gaming disputes. The State contends, however, that Congress did not intend wholesale application of Cabazon to class III gaming. As the State points out, the Senate Report states:

Under Public Law 83-280, the prohibitory/regulatory distinction is used to determine the extent to which State laws apply through the assertion of State court jurisdiction on Indian lands in Public Law 280 States. The Committee wishes to make clear that, under S. 555 IGRA, application of the prohibitory/regulatory distinction is markedly different from the application of the distinction in the context of Public Law 83-280. Here, the courts will consider the distinction between a State's civil and criminal laws to determine whether a body of law is applicable, as a matter of Federal law, to either allow or prohibit certain activities. The Committee does not intend for S. 555 to be used in any way to subject Indian tribes or their members who engage in class II games to the criminal jurisdiction of States in which criminal laws prohibit class II games.

S.Rep. No. 446 at 6, 1988 U.S.C.C.A.N. 3076. See also § 2701(5), § 2710(d)(1)(A)-(C). Defendants argue that the Tribe's proposed use of video gaming is, "as a matter of criminal law and public policy," prohibited under the State's criminal statutes, and thus not subject to a Tribal-State compact.

A few courts have concluded that Cabazon's civil/regulatory-criminal/prohibitory test...