CALIFORNIA ET AL. v. CABAZON BAND OF MISSION INDIANS ET AL.
No. 85-1708
Supreme Court of the United States
Argued December 9, 1986—Decided February 25, 1987
480 U.S. 202
Roderick E. Walston, Supervising Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were John K. Van de Kamp, Attorney General,
Glenn M. Feldman argued the cause for appellees. With him on the brief were Barbara A. Karshmer and George Forman.*
JUSTICE WHITE delivered the opinion of the Court.
The Cabazon and Morongo Bands of Mission Indians, federally recognized Indian Tribes, occupy reservations in Riverside County, California.1 Each Band, pursuant to an
The Tribes sued the county in Federal District Court seeking a declaratory judgment that the county had no authority to apply its ordinances inside the reservations and an injunction against their enforcement. The State intervened, the facts were stipulated, and the District Court granted the Tribes’ motion for summary judgment, holding that neither the State nor the county had any authority to enforce its gambling laws within the reservations. The Court of Appeals for the Ninth Circuit affirmed, 783 F. 2d 900 (1986), the State and the county appealed, and we postponed jurisdiction to the hearing on the merits. 476 U. S. 1168.4
The Court has consistently recognized that Indian tribes retain “attributes of sovereignty over both their members and their territory,” United States v. Mazurie, 419 U. S. 544, 557 (1975), and that “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States,” Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 154 (1980). It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided. Here, the State insists that Congress has twice given its express consent: first in
In
The Minnesota personal property tax at issue in Bryan was unquestionably civil in nature. The California bingo statute is not so easily categorized. California law permits bingo
Following its earlier decision in Barona Group of Capitan Grande Band of Mission Indians, San Diego County, Cal. v. Duffy, 694 F. 2d 1185 (1982), cert. denied, 461 U. S. 929 (1983), which also involved the applicability of
We are persuaded that the prohibitory/regulatory distinction is consistent with Bryan‘s construction of
There is surely a fair basis for its conclusion. California does not prohibit all forms of gambling. California itself operates a state lottery,
California argues, however, that high stakes, unregulated bingo, the conduct which attracts organized crime, is a misdemeanor in California and may be prohibited on Indian reservations. But that an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of
California and Riverside County also argue that the Organized Crime Control Act (OCCA) authorizes the application of their gambling laws to the tribal bingo enterprises. The OCCA makes certain violations of state and local gambling laws violations of federal law.12 The Court of Appeals re-
The Court of Appeals for the Sixth Circuit has rejected this view. United States v. Dakota, 796 F. 2d 186 (1986).14 Since the OCCA standard is simply whether the gambling business is being operated in “violation of the law of a State,” there is no basis for the regulatory/prohibitory distinction that it agreed is suitable in construing and applying
II
Because the state and county laws at issue here are imposed directly on the Tribes that operate the games, and are not expressly permitted by Congress, the Tribes argue that the judgment below should be affirmed without more. They rely on the statement in McClanahan v. Arizona State Tax Comm‘n, 411 U. S. 164, 170-171 (1973), that “[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply” (quoting United States Dept. of the Interior, Federal Indian Law 845 (1958)). Our cases, however, have not established an inflexible per se rule pre-
This case also involves a state burden on tribal Indians in the context of their dealings with non-Indians since the question is whether the State may prevent the Tribes from making available high stakes bingo games to non-Indians coming from outside the reservations. Decision in this case turns on whether state authority is pre-empted by the operation of federal law; and “[s]tate jurisdiction is pre-empted... if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.” Mescalero, 462 U. S., at 333, 334. The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its “overriding goal” of encouraging tribal self-sufficiency and economic development. Id., at 334-335.19 See also,
These are important federal interests. They were reaffirmed by the President‘s 1983 Statement on Indian Policy.20 More specifically, the Department of the Interior, which has the primary responsibility for carrying out the Federal Government‘s trust obligations to Indian tribes, has sought to implement these policies by promoting tribal bingo enterprises.21 Under the Indian Financing Act of 1974,
These policies and actions, which demonstrate the Government‘s approval and active promotion of tribal bingo enterprises, are of particular relevance in this case. The Cabazon and Morongo Reservations contain no natural resources which can be exploited. The tribal games at present provide the sole source of revenues for the operation of the tribal gov-
California seeks to diminish the weight of these seemingly important tribal interests by asserting that the Tribes are merely marketing an exemption from state gambling laws. In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S., at 155, we held that the State could tax cigarettes sold by tribal smokeshops to non-Indians, even though it would eliminate their competitive advantage and substantially reduce revenues used to provide tribal services, because the Tribes had no right “to market an exemption from state taxation to persons who would normally do their business elsewhere.” We stated that “[i]t is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest.” Ibid. Here, however, the Tribes are not merely importing a product onto the reservations for immediate resale to non-Indians. They have built modern facilities which provide recreational opportunities and ancillary services to their patrons, who do not simply drive onto the reservations, make purchases and depart, but spend extended periods of time there enjoying the services the Tribes provide. The Tribes have a strong incentive to provide comfortable, clean, and attractive facilities and well-run games in order to increase attendance at the games.23 The tribal bingo enterprises are
The State also relies on Rice v. Rehner, 463 U. S. 713 (1983), in which we held that California could require a tribal member and a federally licensed Indian trader operating a general store on a reservation to obtain a state license in order to sell liquor for off-premises consumption. But our decision there rested on the grounds that Congress had never recognized any sovereign tribal interest in regulating liquor traffic and that Congress, historically, had plainly anticipated that the States would exercise concurrent authority to regulate the use and distribution of liquor on Indian reservations. There is no such traditional federal view governing the outcome of this case, since, as we have explained, the current federal policy is to promote precisely what California seeks to prevent.
The sole interest asserted by the State to justify the imposition of its bingo laws on the Tribes is in preventing the infiltration of the tribal games by organized crime. To the extent that the State seeks to prevent any and all bingo
We conclude that the State‘s interest in preventing the infiltration of the tribal bingo enterprises by organized crime does not justify state regulation of the tribal bingo enter-
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE O‘CONNOR and JUSTICE SCALIA join, dissenting.
Unless and until Congress exempts Indian-managed gambling from state law and subjects it to federal supervision, I believe that a State may enforce its laws prohibiting high-stakes gambling on Indian reservations within its borders. Congress has not pre-empted California‘s prohibition against high-stakes bingo games and the Secretary of the Interior plainly has no authority to do so. While gambling provides needed employment and income for Indian tribes, these benefits do not, in my opinion, justify tribal operation of currently unlawful commercial activities. Accepting the majority‘s reasoning would require exemptions for cockfighting, tattoo parlors, nude dancing, houses of prostitution, and other illegal but profitable enterprises. As the law now stands, I believe tribal entrepreneurs, like others who might derive profits from catering to non-Indian customers, must obey applicable state laws.
In my opinion the plain language of
It is true that in Bryan v. Itasca County, 426 U. S. 373 (1976), we held that
Today the Court seems prepared to acknowledge that an Indian tribe‘s commercial transactions with non-Indians may violate “the State‘s public policy.” Ante, at 209. The Court reasons, however, that the operation of high-stakes bingo games does not run afoul of California‘s public policy because the State permits some forms of gambling and, specifically, some forms of bingo. I find this approach to “public policy” curious, to say the least. The State‘s policy concerning gambling is to authorize certain specific gambling activities that comply with carefully defined regulation and that provide revenues either for the State itself or for certain charitable purposes, and to prohibit all unregulated commercial lotteries that are operated for private profit.1 To argue that the tribal bingo games comply with the public policy of California because the State permits some other gambling is tantamount to arguing that driving over 60 miles an hour is con-
In my view, Congress has permitted the State to apply its prohibitions against commercial gambling to Indian tribes. Even if Congress had not done so, however, the State has the authority to assert jurisdiction over appellees’ gambling activities. We recognized this authority in Washington v. Confederated Tribes, supra; the Court‘s attempt to distinguish the reasoning of our decision in that case is unpersuasive. In Washington v. Confederated Tribes, the Tribes contended that the State had no power to tax on-reservation sales of cigarettes to non-Indians. The argument that we rejected there has a familiar ring:
“The Tribes contend that their involvement in the operation and taxation of cigarette marketing on the reservation ousts the State from any power to exact its sales and cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops. The primary argument is economic. It is asserted that smokeshop cigarette sales generate substantial revenues for the Tribes which they expend for essential governmental services, including programs to combat severe poverty and underdevelopment at the reservations. Most cigarette purchasers are outsiders attracted onto the reservations by the bargain prices the smokeshops charge by virtue of their claimed exemption from state taxation. If the State is permitted to impose its taxes, the Tribes will no longer enjoy any competitive advantage vis-à-vis businesses in surrounding areas.” Id., at 154.
“What the smokeshops offer these customers, and what is not available elsewhere, is solely an exemption from state taxation.” Id., at 155.
In Confederated Tribes, the tribal smokeshops offered their customers the same products, services, and facilities that other tobacconists offered to their customers. Al-
Similarly, it is painfully obvious that the value of the Tribe‘s asserted exemption from California‘s gambling laws is the primary attraction to customers who would normally do their gambling elsewhere. The Cabazon Band of Mission Indians has no tradition or special expertise in the operation of large bingo parlors. See Declaration of William J. Wallace, ¶2, App. 153, 171. Indeed, the entire membership of the Cabazon Tribe—it has only 25 enrolled members—is barely adequate to operate a bingo game that is patronized by hundreds of non-Indians nightly. How this small and formerly impoverished Band of Indians could have attracted the investment capital for its enterprise without benefit of the claimed exemption is certainly a mystery to me.
I am entirely unpersuaded by the Court‘s view that the State of California has no legitimate interest in requiring appellees’ gambling business to comply with the same standards that the operators of other bingo games must observe. The State‘s interest is both economic and protective. Presumably the State has determined that its interest in generating revenues for the public fisc and for certain charities outweighs the benefits from a total prohibition against publicly sponsored games of chance. Whatever revenues the Tribes receive from their unregulated bingo games drain funds from the state-approved recipients of lottery revenues—just as the tax-free cigarette sales in the Confederated Tribes case diminished the receipts that the tax collector would otherwise have received.
Moreover, I am unwilling to dismiss as readily as the Court does the State‘s concern that these unregulated high-stakes bingo games may attract organized criminal infiltration.
Appellants and the Secretary of the Interior may well be correct, in the abstract, that gambling facilities are a sensible way to generate revenues that are badly needed by reservation Indians. But the decision to adopt, to reject, or to define the precise contours of such a course of action, and thereby to set aside the substantial public policy concerns of a sovereign State, should be made by the Congress of the United States. It should not be made by this Court, by the temporary occupant of the Office of the Secretary of the Interior, or by non-Indian entrepreneurs who are experts in gambling management but not necessarily dedicated to serving the future well-being of Indian tribes.
I respectfully dissent.