Club One Casino, Inc. v. David Bernhardt
959 F.3d 1142
| 9th Cir. | 2020Background
- North Fork Rancheria (federally recognized tribe) sought to have a 305-acre Madera Parcel in Madera County, CA, taken into trust (IRA) for a casino; application filed in 2005.
- Secretary made the IGRA §2719 determination in 2011 that post-1988 trust gaming would be in the Tribe’s best interest and not detrimental; California Governor concurred and a tribal–state compact was negotiated.
- The parcel was acquired in trust in February 2013; California initially ratified the compact but voters passed Proposition 48 in 2014, vetoing that ratification.
- After the State refused further negotiation, a district court found the State violated IGRA, appointed a mediator, and the mediator’s compact was submitted to the Secretary; the Secretary issued Secretarial Procedures in July 2016 permitting gaming.
- The Tribe entered into binding agreements with Madera County and the City of Madera for law enforcement and fire protection and adopted ordinances (including a gaming ordinance), evidencing exercise of governmental power.
- Plaintiffs (two licensed cardrooms) sued the Secretary/DOI challenging issuance of the Secretarial Procedures (IGRA compliance, tribal jurisdiction/exercise of governmental power, and a Tenth Amendment challenge); district court granted summary judgment for defendants; Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Secretary violated IGRA by issuing Secretarial Procedures without finding the Tribe had jurisdiction or exercised governmental power over the Madera Parcel | Tribe lacked jurisdiction and had not exercised governmental power; Secretary was required to evaluate those matters | Land taken into trust under IRA confers tribal jurisdiction as a matter of law; record shows concrete exercise of governmental power (agreements, ordinances); IGRA does not require additional findings | Held: Tribe’s jurisdiction is conferred by trust acquisition as a matter of law; Tribe exercised governmental power; Secretary not required to make separate findings; Secretarial Procedures lawful |
| Whether state consent or cession (Enclave Clause or 40 U.S.C. §3112) was required for tribal jurisdiction to attach to trust land | State consent/cession required to remove state jurisdiction; Enclave Clause and §3112 apply | Enclave Clause and §3112 do not apply to IRA trust acquisitions; federal authority under Indian Commerce Clause governs and can displace conflicting state law | Held: State consent or cession not required; neither Enclave Clause nor §3112 precluded trust acquisition or tribal jurisdiction |
| Whether IRA (and trust acquisitions) violate the Tenth Amendment by reducing state territorial sovereignty without consent | IRA unlawfully takes sovereignty from the State in violation of the Tenth Amendment | Congress has plenary power over Indian affairs under the Indian Commerce Clause; powers delegated to Congress are not reserved to the States | Held: IRA does not violate the Tenth Amendment; federal plenary power over Indian affairs controls |
| Whether alleged deficiencies in consultation and the Governor’s authority to concur (arguments raised first on appeal) | Secretarial Determination lacked robust consultation; Governor lacked authority or revoked concurrence under state law | Issues were not raised below and are therefore waived on appeal | Held: Both arguments waived for failure to raise in district court (CA Supreme Court review on related state-law governor question noted but not decided here) |
Key Cases Cited
- Upstate Citizens for Equality, Inc. v. United States, 841 F.3d 556 (2d Cir. 2016) (land taken into trust under IRA generally divests state regulatory and jurisdictional authority)
- Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994 (8th Cir. 2010) (land held in trust is effectively removed from state jurisdiction)
- Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994) (exercise of governmental power requires concrete manifestations, not just theoretical authority)
- Massachusetts v. Wampanoag Tribe of Gay Head, 853 F.3d 618 (1st Cir. 2017) (tribal ordinances and intergovernmental agreements can demonstrate exercise of governmental power)
- Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520 (1998) (definition of "Indian country" applies to off-reservation trust lands for jurisdictional purposes)
- Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (states may assert Eleventh Amendment immunity against suits by tribes)
- Carcieri v. Salazar, 555 U.S. 379 (2009) (construing the Indian Reorganization Act in trust-land contexts)
- Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) (Congress’ plenary power under the Indian Commerce Clause to legislate on Indian affairs)
- United States v. John, 437 U.S. 634 (1978) (federal acquisition of land for Indian tribes can divest state jurisdiction)