CHICKEN RANCH RANCHERIA OF ME-WUK INDIANS; CHEMEHUEVI INDIAN TRIBE; BLUE LAKE RANCHERIA; HOPLAND BAND OF POMO INDIANS; ROBINSON RANCHERIA, Plаintiffs-Appellees, v. STATE OF CALIFORNIA; GAVIN NEWSOM, Governor of California, Defendants-Appellants.
No. 21-15751
United States Court of Appeals for the Ninth Circuit
Filed July 28, 2022
D.C. No. 1:19-cv-00024-AWI-SKO. Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, District Judge, Presiding. Argued and Submitted December 9, 2021, San Francisco, California. Before: Kim McLane Wardlaw, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges. Opinion by Judge Bress; Concurrence by Judge Wardlaw; Dissent by Judge Bumatay.
SUMMARY*
Indian Gaming Regulatory Act
The panel affirmed, on different grounds, the district court‘s summary judgment in favor of Chicken Ranch Rancheria of Mewuk Indians and other tribes in their action
The tribes alleged that California violated IGRA by failing to act in good faith in the parties’ negotiations for compacts for the tribes to conduct high-stakes Las Vegas-style casino gambling, known as Class III gaming. The district court concluded that California‘s demand for tribal enforcement of state domestic support orders “pulled negotiations into a field wholly collateral to the operation of gaming facilities” and thus constituted “per se evidence of bad faith.” The district court concluded that other disputed provisions were “somewhat connected” to gaming and thus not a per se violation of the State‘s good-faith duty, but California nevertheless was required to provide “meaningful concessions” in exchange for demanding these provisions, and the State‘s failure to do so was a failure to negotiate in good faith, triggering IGRA‘s remedial provisions.
The panel held that through its insistence on family law, environmental law, and tort provisions, California substantially exceeded IGRA‘s limitation that any Class III compact provision be directly related to the operation of gaming activities. The panel further held that when, as here, a State seeks to negotiate for compact provisions that fall well outside IGRA‘s seven permissible topics of negotiation, as set forth in an exhaustive list in
The panel disagreed with the dissent‘s conclusion that, despite negotiating for off-list topics, California still could show it was negotiating in good faith.
The panel explained that, although the district court agreed that California had not negotiated in good faith and that IGRA‘s remedial provisions were triggered, it erred in relying on the “meaningful concessions” framework because this framework does not apply to requested topics of negotiation that are well outside the permitted topics in
Concurring, Judge Wardlaw wrote that IGRA is ambiguous on the question whether a State conducts tribal-state compact negotiations in bad faith when it insists on negotiating topics beyond the exclusive topics beyond the exclusive topics set forth in
Dissenting, Judge Bumatay agreed that IGRA‘s seven topics of permissible negotiation are exhaustive and that California exceeded those topics through its family, environmental, and tort law proposals, but he would hold that, under the burden-shifting framework of the statutory text, the State could still show that it was negotiating in good faith. Judge Bumatay wrote that he would vacate the district court‘s judgment and remand for a proper analysis of whether California satisfied its good-faith duty.
COUNSEL
Timothy M. Muscat (argued), Deputy Attorney General; William P. Torngren, Supervising Deputy Attorney General; Sara J. Drake, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellants.
Lester J. Marston (argued), Rapport and Marston, Ukiah, California; David B. Dehnert, Dehnert Law PC, Marina Del Rey, California; for Plaintiffs-Appellees.
George Forman, Jay B. Shapiro, and Margaret C. Rosenfeld, Forman & Associates,
Kristin L. Martin, McCracken Stemerman & Holsberry LLP, San Francisco, California, for Amicus Curiae Unite Here International Union.
Laura E. Hirahara, Associate Counsel, California State Association of Counties, Sacramento, California, for Amicus Curiae California State Association of Counties.
OPINION
BRESS, Circuit Judge:
Under the Indian Gaming Regulatory Act (IGRA),
We hold in this case that California failed to act in good faith in its compact negotiations with the plaintiff Tribes. The central problem with California‘s approach was this: it for years demanded that the Tribes agree to compact provisions relating to family law, environmental regulation, and tort law that were unrelated to the operation of gaming activities and far outside the bounds of permissible negotiation under IGRA. Through its negotiating demands, California effectively sought to use the Class III contracting process as leverage to impose its general policy objectives on the Tribes, which a state may not do. California thereby failed to act in good faith, triggering IGRA‘s remedial provisions.
We affirm the judgment of the court below, although, importantly, on grounds different than the district court articulated.
I
The plaintiffs are the Chicken Ranch Rancheria of Me-Wuk Indians, Blue Lake Rancheria, Chemehuevi Indian Tribe, Hopland Band of Pomo Indians, and Robinson Rancheria. The history of the Tribes’ Class III negotiations with the State of California is extensive, and we recite only those events pertinent to this appeal. Some of this history is wrapped up in the history of IGRA itself, but we will limit ourselves here to the facts giving rise to this case and turn to IGRA next.
After Congress passed IGRA in 1988, California and approximately 60 tribes, including the plaintiff Tribes, entered a 1999 compact that gave Indian tribes in California the exclusive right to host Class III gaming. See In re Indian Gaming Related Cases (Coyote Valley II), 331 F.3d 1094, 1104 (9th Cir. 2003). In return, the tribes
Negotiations over successor compacts to the 1999 compacts have been ongoing for years. In 2014, the plaintiff Tribes joined various other Indian tribes with existing 1999 compacts to form the Compact Tribes Steering Committee (CTSC). The first formal negotiation session was held in January 2015. Between 2015 and 2019, California and the CTSC held 39 days of in-person negotiation sessions, in addition to numerous smaller sessions focused on discrete issues. Over that time, the State provided at least twelve full draft compacts to the CTSC, and the CTSC offered approximately fourteen drafts of its own.
Although the parties reached consensus on some issues, other aspects of the negotiations were fraught. For example, California sought a provision that would require the Tribes to recognize and enforce state spousal and child support judgments against tribal gaming facility employees. California also requested that the Tribes agree to extensive environmental regulations—devoting nearly 30 pages of detailed draft compact provisions to this topic alone. California also wanted the Tribes to adopt California tort law as tribal law that would apply in various situations disconnected from gaming activities, while insisting the Tribes waive sovereign immunity for tort claims and establish tort claims commissions. The Tribes maintained that these requests were insufficiently related to gaming, and that the State therefore could not negotiate for them under IGRA.
Despite these objections, the CTSC operated on a parallel path and endeavored to negotiate the disputed topics “in anticipation of the State offering meaningful concessions” of significant value. But the Tribes came to believe that California was not offering sufficient additional consideration. And California refused to accept any compact that did not include the challenged topics of negotiation. By the end of 2019, and after nearly five years of formal negotiations with the State, the plaintiff Tribes had seen enough. They withdrew from the CTSC and turned down California‘s existing offers. The tribes also tried one last time, proposing a “best and final offer.” But California did not accept it.
In January 2019, the Tribes sued the State, alleging that California violated IGRA‘s duty to negotiate in good faith. On cross-motions for summary judgment, the district court agreed with the Tribes. The court concluded that California‘s demand for tribal enforcement of state domestic support orders “pulled negotiations into a field wholly collateral to the operation of gaming facilities,” and thus constituted “per se evidence of bad faith.” The court went on to explain that many of the other disputed provisions were “not at the heart of,” or only “at the very edge of relevance” to, gaming activities. But the district court believed these other provisions were still “somewhat connected” to gaming and thus not a per se violation of the State‘s good-faith duty.
Nevertheless, because many of the disputed topics still had tenuous connections to gaming, the district court interpreted our precedents to require that the State provide “meaningful concessions” in exchange for demanding these provisions. It then found that California had failed to offer such concessions, and that California
California now appeals the district court‘s decision, which we review de novo. Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th Cir. 2009). We may affirm on any ground supported by the record. Miranda v. City of Casa Grande, 15 F.4th 1219, 1224 (9th Cir. 2021).
II
To understand where California went astray in the compact negotiations, we begin by recognizing the unique and limited powers that IGRA gives states over Indian tribes. “[T]he Constitution grants Congress broad general powers to legislate in respect to Indian tribes, power that [the Suрreme Court] ha[s] consistently described as ‘plenary and exclusive.‘” United States v. Lara, 541 U.S. 193, 200 (2004). The corollary to this is that states generally lack the power to regulate tribes: “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.” Washington v. Confederated Tribes of Colville Indian Rsrv., 447 U.S. 134, 154 (1980). Thus, “State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.” McClanahan v. State Tax Comm‘n of Ariz., 411 U.S. 164, 170-71 (1973) (quotations omitted); see Ysleta Del Sur Pueblo v. Texas, No. 20-493, — S. Ct. —, 2022 WL 2135494, at *3 (U.S. June 15, 2022) (“From time to time, Congress has exercised its authority to allow state law to apply on tribal lands where it otherwise would not.“).
In California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), the Supreme Court held that California lacked the federal statutory authority required to regulate bingo halls on tribal lands. The Court started from the well-accepted proposition that “state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided.” Id. at 207. But it found no federal statutory authority for California‘s attempt to regulate tribal bingo enterprises. Id. at 212-14.
Congress passed IGRA in response to Cabazon. See Ysleta Del Sur Pueblo, — S. Ct. —, 2022 WL 2135494, at *5; Coyote Valley II, 331 F.3d at 1095-97. In IGRA, “Congress attempted to strike a delicate balance between the sovereignty of states and federally recognized Native American tribes.” Pauma Band of Luiseno Mission Indians v. California (Pauma I), 813 F.3d 1155, 1160 (9th Cir. 2015). IGRA gave Indian tribes “the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming.”
IGRA divides gaming activity into three classes, with each class subject to different degrees of federal and state regulation. See
We have described IGRA as “an example of cooperative federalism in that it seeks to balance the competing sovereign interests of the federal government, state governments, and Indian tribes, by giving each a role in the regulatory scheme.” Pauma I, 813 F.3d at 1160 (quotations omitted). That is principally because Class III gaming is permitted on Indian lands only if, inter alia, a tribe and the state enter a tribal-state compact that the Secretary of the Interior then approves. Coyote Valley II, 331 F.3d at 1097; see also
Although IGRA is an example of cooperative federalism, Congress was clear-eyed that state involvement could turn decidedly uncooperative. Class III gaming is not only “a source of substantial revenue” for tribes, but the lifeblood on “which many tribes ha[ve] come to rely.” Coyote Valley II, 331 F.3d at 1097, 1099-1100. The risks inherent in the state compact approval requirement are therefore obvious: Indian tribes, who rely on gaming for economic revenue, are at the potential mercy of the states, which could withhold approval of Class III gaming rights or insist upon onerous compact conditions that would give states greater power to regulate tribes.
Congress was well aware of the danger that states could use their compacting approval powers to encroach on tribal sovereignty. Thus, “Congress enacted IGRA to provide a legal framework within which tribes could engage in gaming—an enterprise that holds out the hope of providing tribes with the economic prosperity that has so long eluded their grasp—while setting boundaries to restrain aggression by powerful states.” Rincon Band of Luiseno Mission Indians v. Schwarzenegger, 602 F.3d 1019, 1027 (9th Cir. 2010).
IGRA imposes those boundaries in two critical ways. First, “[b]ecause the compact requirement skews the balance of power over gaming rights in favor of states by making tribes dependent on state cooperation,” id., states have an obligation to engage in compact negotiations in good faith.
In such an action, the plaintiff tribe must first, “upon the introduction of evidence,” demonstrate that the state has not
If a court finds that a state has failed to act in good faith, this triggers IGRA‘s remedial provisions. In that event, the district court “shall order the State and Indian Tribe to conclude such a compact within a 60-day period.”
Second, IGRA polices state overreach by circumscribing the permissible topics of negotiation, setting forth seven allowed areas in which tribes and states may reach agreement. Specifically, IGRA provides that a tribal-state compact “may include provisions relating to—“:
(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity;
(ii) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations;
(iii) the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such activity;
(iv) taxation by the Indian tribe of such activity in amounts comparable to amounts assessed by the State for comparable activities;
(v) remedies for breach of contract;
(vi) standards for the operation of such activity and maintenance of the gaming facility, including licensing; and
(vii) any other subjects that are directly related to the operation of gaming activities.
In addition, another provision of IGRA emphasizes that states generally lack the authority to tax Indian tribes. Specifically, except for any agreed-upon assessments under
If a tribe files suit alleging that a state has failed to negotiate in good faith, IGRA provides that the court “may take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities.”
III
This statutory background sets the stage for the principal questions in this case, which are (1) did California exceed the permissible topics of negotiation under IGRA, and (2) if so, what is the consequence
A
California crossed the line in negotiating far outside IGRA‘s permitted list of compact negotiation topics. We can begin to see why by examining the statute‘s list of allowed topics, which, as we will explain, sets forth the only permitted topics of negotiation.
We quoted the list of IGRA‘s seven permitted topics in full above, but as a reminder, it may be found at
This list, we hold, is exhaustive. In fact, we have effectively already so held. In Rincon Band, we said that “[t]he language and structure of
Although our past precedents did not engage in detail with IGRA‘s text, the plain language of
It is true, of course, that
In the context of
That interpretation makes a great deal of sense when one steps back and appreciates the critical role of
B
With the exhaustive nature of
Contrary to California‘s apparent suggestion, the phrase “directly related to the operation of gaming activities” imposes meaningful limits on compact negotiations. The word “directly” is significant. “Directly” connotes a more linear connection between the subject that is to be negotiated and the “operation of gaming activities.” “Directly” means “[i]n a straightforward manner” or “[i]n a straight line or course.” Black‘s Law Dictionary (11th ed. 2019). In some sense, everything is “related” to everything else; the word “directly” ensures that we cannot give
The broader structure of
The residual clause allows states and tribes to agree on any ”other subjects that are directly related to the operation of gaming activities,” confirming that the preceding six topics are themselves “directly related to the operation of gaming activities.” And indeed they are: they pertain to the licensing and regulation of gaming activities and the enforcement of the same,
We therefore agree with the Department of Interior that:
In the context of applying the “catch-all” category, we do not simply ask “but for the existence of the Tribe‘s class III gaming operation, would the particular subject regulated under a compact provision exist?” If this question were used to provide the standard for determining whether a particular object of regulation was “directly related to the operation of gaming activities,” it would permit states to use tribal-state compacts as a means to regulate tribal activities far beyond that which Congress intended when it originally enacted IGRA.
We do not have occasion to decide whether this agency interpretation requires any deference; we simply find it persuasive in its alignment with our own independent conclusion. What is required, as the Department of Interior has correctly recognized, is a “direct connection” to the operation of gaming activities.
That is consistent with our analysis in Rincon Band concerning a proposed general revenue sharing provision. There, we rejected as “circular” California‘s argument that general revenue sharing was “directly related to the operation of gaming activities” simply because “the money [wa]s paid out of income from gaming activities.” 602 F.3d at 1032. As we explained, “[w]hether revenue sharing is an authorized negotiation topic under
provide a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players.
C
We now turn to the disputed compact provisions and analyze whether they fall within the catch-all. This inquiry is an objective one that is not based on the state‘s subjective belief that it was acting reasonably. Rincon Band, 602 F.3d at 1041. We have little difficulty concluding that the disputed topics well exceed IGRA‘s bounds. While there may be close cases in which states slightly overstep the “directly related” to the operation of gaming activities line, this is not one of them.
Family Law Provisions. California demanded that the tribes enact ordinances granting their tribal courts jurisdiction over state spousal and child support orders for gaming facility employees. Under this proposal, state tribal courts or tribal hearing officers would be required to recognize and enforce these family law orders. When the gaming facility was presented with such an order, it would then be required to withhold required amounts from an employee‘s paycheck and remit them to the party in whose favor the judgment was entered.
Environmental Law Provisions. California insisted upon nearly 30 pages of highly detailed environmental law provisions. These provisions are sprawling, but some highlights will show the breadth of California‘s ask:
- Tribes would be required to adopt an ordinanсe incorporating as tribal law significant aspects of California‘s Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA).
- Tribes could not commence any construction on any “Project” until the required environmental processes and associated disputed resolution procedures were completed. The
term “Project” was defined expansively to include “construction of a new Gaming Facility,” the “renovation, expansion or modification of an existing Gaming Facility,” or any “other activity involving a physical change to the reservation environment, provided the principal purpose of which is directly related to the activities of the Gaming Operation, and any one of which may cause a Significant Effect on the Off-Reservation Environment.” “Gaming Facility” was itself defined broadly to “include parking lots, walkways, rooms, buildings, and areas that provide amenities to Gaming Activity patrons, if and only if, the principal purpose of which is to service the activities of the Gaming Operation.” - Absent an exemption—exemptions are themselves a whole further set of provisions—the tribes would be required for any qualifying “Project” to prepare “Tribal Environmental Impact Documents” or “Tribal Environmental Impact Reports,” whose requirements varied and depended upon the size of the gaming operation. The Tribal Environmental Impact Documents, for example, would address the impacts of a Project on “(i) air quality; (ii) water resources; (iii) traffic; (iv) public services; (v) hazardous materials; and (vi) noise.”
- Tribes would consent to elaborate reporting requirements, as well as dispute resolution mechanisms for any disputes that arose between the tribes and State and local governments.
- Tribes would commit to entering intergovernmental agreements with local governments before commencing any Project. These agreements would include provisions for environmental mitigation and mitigation of traffic impacts, among other things. Tribes were further required to agree to binding arbitration with local governments concerning intergovernmental agreements.
Tort Law Provisions. California insisted that the tribes broadly adopt California tort law as part of tribal law. Tribes would be required to follow California tort law for all claims of bodily injury, personal injury, or property damage dirеctly arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including but not limited to injuries resulting from entry onto the Tribe‘s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility, provided that such injury occurs at the Gaming Facility or on a road accessing the Facility exclusively.
Tribes would also be required to waive their sovereign immunity for tort claims in tribal court and, if the tribe lacks a tribal court system, to create a tribal claims commission to resolve covered claims. California further demanded that tribes agree to employ in tribal courts and claims commissions discovery procedures analogous to those found in the California Code of Civil Procedure. Tribes could require exhaustion of a tribe‘s administrative remedies, but the tribes were required to agree to procedures associated with those remedies.
We hold that through these various provisions, California overstepped its proper role under IGRA. Whether considered separately or as a collective whole, these family, environmental, and tort law provisions are not “directly related to the operation of gaming activities.”
It takes very little to see why California has far exceeded IGRA. Child and spousal support orders have no direct relationship whatsoever to the operation of gaming activities. The environmental provisions would impose extensive environmental review and reporting obligations on tribes for a broadly defined set of “Projects” that includes any physical change “the purpose of which is directly related to the activities of the Gaming Operation.” That standard is not found in IGRA, and by California‘s requested language it would include parking lots and walkways, among various other locations that are at best adjacent to gaming areas. And then there are the intergovernmental agreements that give state and local government agencies an apparent veto (or at least significant control) over tribal projects. All of this is far afield of the actual operation of gaming activities and the mitigation of organized crime and unfair gaming practices that were at the heart of IGRA‘s limited extension of regulatory authority to the states.
The disputed tort provisions encounter analogous problems. They would similarly require tribes to commit to adopting and applying an entire body of state law as tribal law, waive sovereign immunity, and create claims commissions for injuries that are merely “connected with” or “relating to” a casino gaming facility, including injuries sustained while entering the facility. It is not hard to imagine the degree to which these provisions would sweep in claims that have no direct connection to the actual operation of gaming activities.
And all the disputed provisions, we hasten to add, strike at core aspects of tribal sovereignty concerning the tribes’ governance over their land and people and their decisions about how to structure entire areas of tribal law. This cannot be what Congress had in mind when it enacted statutory text that gave states modest authority to regulate tribal gaming operations through “a very specific exchange of rights and obligations.” Rincon Band, 602 F.3d at 1039.
Much of California‘s defense of the disputed provisions boils down to the same argument: without Indian gaming activities, there would be no wages of employees that could be garnished for spousal and child support orders, no construction projects that would need to be built to support gaming, and no relevant personal injuries that would have occurred on tribal lands. But this is just a reprise of the same “circular” argument we rejected in Rincon. 602 F.3d at 1033. The catch-all language in
Finally, we note that оur conclusion that California exceeded the limits of permissible negotiation under
In these letters, Interior rejected the proposed compacts “as a violation of IGRA because [they] contain[] terms that are outside of the narrow scope of IGRA approved topics and are not ‘directly related to the operation of [Class III] gaming activities.‘” Indeed, the letters explained, “we have found certain provisions blatantly in violation of IGRA,” and many of them “seek to impose state control where it does not belong.”
Evaluating a similar compact provision regarding child and spousal support orders, the Department concluded that it “violates IGRA because it falls outside the permissible scope of subjects that may be included in a compact.” Analyzing similar environmental and intergovernmental agreement provisions to those here, the Department concluded that they “fall outside the narrow range of topics IGRA permits” and thus “must be disapproved.” Indeed, the Department went on, “requiring a Tribe to adopt state law or its equivalent and permitting for the State to review and object to the Tribe‘s environmental review is effectively one step removed from the direct application of State law on the Tribe‘s reservation.” And reviewing a tort provision similar to the one here, the Department was again “highly concerned with the State requiring [a] Tribe to adopt a tort claim ordinance that could be interpreted to apply to more than just activity directly related to gaming.”
We do not cite the Department of Interior‘s letters as authoritative, and we acknowledge California‘s submission indiсating that it is seeking reconsideration of the decisions rejecting the compacts at issue. But we find the reasoning in the Department‘s letters persuasive, and it coincides with our own.4
IV
A
Having concluded that California substantially exceeded IGRA‘s permissible topics of negotiation, we turn to the next question: can a state negotiate well outside the enumerated topics while simultaneously acting in good faith? IGRA does not supply a direct answer to this question. But its text, structure, and our precedents confirm that the much better answer is “no.” When a state, as here, seeks to negotiate for compact provisions that fall well outside IGRA‘s permissible topics of negotiation, the state does not act in good faith.
We reach this conclusion by returning to the core textual and structural features of
Accordingly, when a state has demanded that a tribe negotiate on topics well outside IGRA‘s scope, it follows that the state has not negotiated in good faith, end of story. “IGRA limits permissible subjects of negotiation in order to ensure that tribal-state compacts cover only those topics that are related to gaming.” Rincon Band, 602 F.3d at 1028–29 (emphasis added). For that statement to be true—and it assuredly is based on IGRA‘s text—a state that far exceeds the permissible topics of negotiation cannot be acting in good faith. Any contrary conclusion would mean that the seven permitted topics of negotiation are not exhaustive after all, contrary to the statutory text, our precedents, and IGRA‘s core objectives.5
B
Our fine dissenting colleague parts ways with us at this step of the analysis. After agreeing that IGRA‘s seven topics of permissible negotiation are exhaustive and that California exceeded those topics through its family, environmental, and tort law proposals, the dissent concludes that California can still show it was negotiating in good faith. According to the dissent, California can “establish its good faith despitе negotiating for off-list topics.” Dissent at 66.
In the dissent‘s view, “IGRA‘s good-faith analysis works like this“:
- If a tribe fails to show that a State negotiated for topics outside of
§ 2710(d)(3)(C) , absent more, it has failed to meet its initial showing of bad faith and the inquiry ends. - But if a tribe shows that a State negotiated on a topic outside the list, it has satisfied its initial burden of proving bad faith; and
- The burden then shifts to the State to show its good faith under the
§ 2710(d)(7)(B)(iii)(I) factors.
Dissent at 71. The latter is a reference to an IGRA provision that we quoted above, which states that “in determining whether a State has negotiated in good faith, the court” “may take into account the public interest, public safety, criminality, financial integrity and adverse economic impacts on existing gaming activities.”
1
We begin with the first step in the dissent‘s reasoning, which sets up its entire analytical structure: that if a state only negotiates within IGRA‘s exhaustive list of negotiating topics, there cannot be a lack of good faith. Dissent at 71. The dissent qualifies this with an “absent more,” but the “more” it refers to is “procedural bad faith.” Dissent at 71, 78. So the dissent is thus clear that “if a tribe fails to show that a State has put off-list topics on the negotiation table, then the tribe hasn‘t met its initial burden and the State may prevail” (again, absent evidence of procedural bad faith). Dissent at 69–70 & n.2. This means, according to the dissent, that “Congress gives a State free rein to haggle for permissible gaming-related topics,” and that “greater scrutiny” is required only “if the State overreaches by negotiating for topics outside of
The dissent errs at the outset because apart from procedural failings, a state can still fail to act in good faith even when it is negotiating within IGRA‘s list of exhaustive topics. Nothing in the statute says, much less suggests, that a state has “free rein” to insist upon any compact requirement so long as it fits within the list of seven permitted topics. For example,
The dissent‘s position that negotiating for topics within IGRA‘s list cannot be evidence of bad faith is also inconsistent with Coyote Valley II. There, we held that a labor provision was within the list of seven permitted topics and thus an allowed subject of negotiation, but we then proceeded to evaluate whether the provision was nonetheless consistent with
This is one of those classic situations in which a particular textual provision, here
By concluding that the State may still demonstrate its good faith under
For its part, the dissent fully agrees that
Of course, under our interpretation
In addition, our interpretation of
Although “may” must mean “may only” in the context of the list of permitted negotiation topics in
Also wrong is the dissent‘s attempt to claim that Rincon Band supports its interpretation of
The actual line from Rincon Band is: “the State may attempt to rebut bad faith by demonstrating that the revenue demanded was to be used for the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities.” Rincon Band, 602 F.3d at 1032 (quotations omitted; emphasis added). The dissent errs because revenue demands are not categorically equivalent to “any off-list topic” under IGRA.
To the contrary, a wholly separate statutory provision governs how demands for revenue inform the good faith analysis. See
Bound by Coyote Valley II and its treatment of revenue-sharing provisions, Rincon Band explained that “IGRA requires courts to consider a state‘s demand for taxation as evidence of bad faith, not conclusive proof.” 602 F.3d at 1032 (citing Coyote Valley II, 331 F.3d at 1112–13). Rincon Band thus analyzed at length whether the State had provided “meaningful concessions” for a revenue-sharing requirement. See id. at 1036–40. As we will exрlain in detail below, a “meaningful concessions” analysis only applies within the context of
The dissent‘s heavy reliance on IGRA‘s burden-shifting framework, see
2
The dissent‘s approach would also destabilize the compact negotiation process, creating significant uncertainty for vital rights of tribal self-governance and dragging out compact negotiations. Section
public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities.” Any compact provision that a state could demand may plausibly be said to be in the “public interest” or have a sufficient relationship to one or more of these good-faith factors. Environmental regulation can be said to be in the public interest. The same is true of spousal support payments.
Contrary to the dissent‘s suggestion, we are not “wonder[ing] why Congress inserted the good-faith factors into IGRA.” Dissent at 73. We do not question that choice at all. But that choice does not answer the question of when those factors apply. And there is no reason to believe that a Congress that set up an exhaustive list of topics of negotiation to preserve tribal sovereignty,
In an effort to bring clarity to its approach, the dissent attempts to assure us that the good faith factors in
To make matters more confounding, under the dissent‘s view the district court would need to undertake this enigmatic good-faith analysis even though many of the State‘s off-list topics, such as extensive family, environmental, and tort regulation, strike at the core of the Tribes’ governance over their land and people. If the dissent were the law, it is entirely unclear what evidence the parties would be required to marshal on remand, much less how the district court is supposed to go about resolving the further good-faith question.
The substantial uncertainty that the dissent‘s approach would create is itself directly contrary to IGRA and our precedents. We said in Rincon Band that “the function of the good faith requirement and judicial remedy is to permit the tribe to process gaming arrangements on an expedited basis, not to embroil the parties in litigation over their subjective motivations.” 602 F.3d at 1041. The dissent would produce exactly what Rincon Band sought to avoid. The result of the dissent‘s approach would be that every topic would be in play in tribal-state compact negotiations until things could eventually get sorted out in court. The compacting parties would thus not learn the rules of engagement until litigation over their negotiation process was complete. This would give states enormous leverage at the negotiating table—leverage Congress did not want states to have. And it means that it would take years for compact disputes to get resolved.
Of course, the irony in the dissent‘s approach is that if a state is ultimately able to persuade a court that it acted in good faith and its disputed provisions remain in the compact (or the tribes cave to them), there is no present likelihood that the Secretary of the Interior would even approve such an arrangement. As we discussed above, the Department of Interior has recently refused to approve compacts with provisions like California‘s, even though there the State and the Tribes had agreed to them. It is hard to see the wisdom (or basis in law) for forcing the parties and the district court into further proceedings on a compact that the Department of Interior has telegraphed it will reject.9
The dissent‘s main rejoinder to everything we have said in this opinion is that we are relying on our own “sense of IGRA‘s core ‘principles’ and ‘objectives.‘” Dissent at 72. But the dissent‘s bromides about the role of judges do little to advance the dialogue here. The disagreement between us is over how to interpret statutory text, within the confines of a methodology that treats statutory language and structure as the only true indicators
V
The district court agreed that California had not negotiated in good faith and that IGRA‘s remedial provisions were triggered. But it reached this same result through a different path. Because it may affect the parties’ future negotiations and the IGRA remedial process, we take this opportunity to explain why the district court‘s approach rested on a mistaken understanding of our precedents.
As we recounted above, the district court concluded that because various of the State‘s negotiating demands were at the outer edge of relevance to gaming, to demonstrate its good faith the State was required to provide “meaningful concessions” in return. The State argued in the distriсt court that it had offered to provide the Tribes with particularly valuable consideration in exchange for the disputed provisions. But the district court found that these concessions were insufficiently specific to the State‘s particular compact demands. The district court acknowledged that “[t]he Ninth Circuit has only discussed ‘meaningful concessions’ in the context of fee demands,” but believed that framework could be expanded to other topics of negotiation.
The district court erred in relying on the “meaningful concessions” framework. We first introduced the analytical concept of “meaningful concessions” in Coyote Valley II. There we considered the State‘s insistence on a provision in the 1999 tribal-state compact that would create a Revenue Sharing Trust Fund (RSTF). 331 F.3d at 1110. The RSTF would have required that gaming tribes share their gaming revenue with tribes that did not have gaming operations. Id. The Tribes maintained that the State had not negotiated in good faith, claiming that the requested RSTF provision was a prohibited tax under
We held that California had acted in good faith in requesting the RSTF provision. We first made clear that this was a permissible topic of negotiation because ”
We addressed “meaningful concessions” again in Rincon Band. There, we considered California‘s request during renegotiations of the 1999 compacts that tribes pay a significant portion of net gaming revenues into the State‘s general fund. 602 F.3d at 1022. We first held, as recounted above, that the general revenue sharing provision was not “directly related to the operation of gaming activities,” rejecting the State‘s argument as “circular.” Id. at 1033; see also id. at 1034. We then reasoned that even if general revenue sharing werе a permissible topic of negotiation, the State had still failed to act in good faith because it had not provided meaningful concessions. Id. at 1036–40.
Properly considered, a “meaningful concessions” analysis does not apply in this case, for two reasons. First, we have never held that the “meaningful concessions” doctrine applies to requested topics of negotiation that are well outside the seven permitted topics in
This conclusion coheres with how we approached the “meaningful concessions” issue in Coyote Valley II. There, we were careful to address meaningful concessions only after concluding that the disputed provisions fell within the scope of permissible negotiation subjects under
Second, even when a state seeks to negotiate on a topic within
The material concessions requirement is based on states’ need to avoid “imposing” such improper taxes. As we explained in Rincon Band, “[t]he relevance of ‘meaningful concessions’ arises from
Provisions that do not concern taxes, fees, or revenue-sharing, by contrast, are not subject to the
* * *
“[T]he good faith requirement exists” because “Congress anticipated that states might abuse their authority over compact negotiations to force tribes to accept burdens on their sovereignty in order to obtain gaming opportunities.” Rincon Band, 602 F.3d at 1042. We hold that by negotiating for topics well outside
AFFIRMED.
WARDLAW, Circuit Judge, concurring:
The Indian Gaming Regulatory Act (IGRA) is ambiguous on the central question this case presents: whether a state conducts Tribal-State Compact negotiations in bad faith when it insists on negotiating topics beyond the exclusive topics set forth in IGRA
In answering the question presented, my fine colleagues confine themselves to the text of the statute and our precedents construing IGRA—and reach equally plausible, but diametrically opposed, conclusions. Judge Bumatay would layer the burden-shifting provision on top of both on-topic and off-topic negotiations, while Judge Bress concludes that if the State injects an off-topic term into the negotiations, that is sufficient for a finding of bad
I agree with Judge Bress‘s analysis of the text and structure of IGRA. My agreement with his conclusions, however, is further supported by IGRA‘s stated purpose and its legislative history. Moreover, given the inherently ambiguous nature of IGRA‘s statutory text and structure, it is helpful to bear in mind the words of Justice Scalia thirty years ago:
When we are faced with these two possible constructions [of a federal statute implicating Tribal interests], our choice between them must be dictated by a principle deeply rooted in this Court‘s Indian jurisprudence: statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.
Cnty. of Yakima v. Confederated Tribes, 502 U.S. 251, 269 (1992) (cleaned up).1 These additional considerations lead me to conclude that when a state insists on negotiating topics that are not even arguably related to “the operation of gaming activities,” as California did here, the State has not conducted such negotiations in good faith under IGRA. I therefore concur in Judge Bress‘s majority opinion.
I.
Although the federal government has the power to grant states jurisdiction over tribal affairs, see McClanahan v. State Tax Comm‘n of Ariz., 411 U.S. 164, 170–71 (1973), it has rarely exercised that power in light of the historically fraught relationship between states and tribes.
“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation‘s history.” Rice v. Olson, 324 U.S. 786, 789 (1945). For centuries, states have been the “deadliest enemies” of tribes, United States v. Kagama, 118 U.S. 375, 384 (1886), and the entities “least inclined to respect” tribal sovereignty, McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020).2 Accordingly, delegations of jurisdiction over tribal affairs to states have been perceived as an abandonment of the federal government‘s duty to safeguard tribal sovereignty. As the Supreme Court put it in 1886:
[Tribes] owe no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with thеm, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive, and
by congress, and by this court, whenever the question has arisen.
Congress enacted IGRA following the Supreme Court‘s ruling that California lacked
Congress‘s choice to involve states in regulating gaming was controversial. When Congress began debating IGRA, there was widespread agreement about its twin goals. IGRA‘s first purpose in legalizing gaming on Indian lands was “as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”
In an effort to ensure the proposed regulation did not infringe on tribal sovereignty more than was essential, Congress assigned regulatory authority according to three “classes” of gaming. It divided the classes based on how lucrative they were, reasoning that more lucrative games were more likely to be the target of “corrupting influences.”5 Class I games, including traditional tribal games associated with tribal ceremonies and celebrations, which posed “little risk of corruption,” were regulated exclusively by the tribes.6 Class II games, which included Bingo and other games which tribes had regulated on their own for decades with “relatively few problems,” were regulated by the tribes with some oversight by the federal government.7
The regulation of Class III gaming proved trickier. On the one hand, there was relatively widespread agreement that mere federal oversight would not be sufficient. As one commentator explained:
Congress saw casino-style gambling as carrying greater risks and raising different issues than bingo. The states’ interests in preventing the infiltration of organized crime and controlling gambling generally appeared most persuasive in the context of the “cash business” of
casino-style gaming, or “Class III” gaming.8
However, it was not obvious what form of regulatory authority should take its place. “Recognizing that the extension of State jurisdiction on Indian lands has traditionally been inimical to Indian interests,” one early version of the bill proposed creating a new federal body, housed within either the Department of Justice (DOJ) or the Department of the Interior (DOI), which would be responsible for regulating Class III gaming.9 However, both Departments vigorously opposed that proposal.10 DOJ resisted the role, asserting that it wasn‘t a “regulatory agency,” and was therefore ill suited to the role.11 DOI representatives testified that the Department “did not have the capacity to undertake such a mission and that, furthermore, it would be in conflict with the Department‘s effort to reduce its past paternalistic role in favor of support for tribal independence and self-determination.”12
An alternate proposal, drafted by DOJ, suggested that Congress delegate responsibility for regulating Class III gaming to the states.13 Proponents of this plan, including DOI, pointed out that states were well suited to the role because they already regulated gaming within their borders, and therefore had the regulatory infrastructure in place.14 Unsurprisingly, tribes as well as a number of members objected to that plan, expressing concern that “state regulation of tribal gaming would violate tribal sovereignty and, on a more practical level, undermine tribal gaming as an economic development strategy,” as states might try to protect their own competing gaming operations, like lotteries.15 For example, Senator McCain testified to his belief that the states, if given jurisdiction over gaming on Indian lands, would not give the “Indians a fair shake.”16 Those concerns were particularly salient based on the states’ recent attempts to eradicate tribal gaming entirely, including California‘s failed effort to regulate tribal gaming to the point of extinction. See Cabazon, 480 U.S. at 205–06.
The Tribal-State Compact provision finally enacted was a grand compromise.17
Several members concerned with tribal rights only reluctantly agreed to grant states regulatory authority over even Class III gaming. They stated that they did so only because of the strong protections the legislation afforded tribes should states exceed their bounds.22 For example, Senator Evans issued a statement that he supported the bill “with great reluctance,”23 even accounting for the limited scope of state intervention allowed:
We intend that the two sovereigns—the tribes and the States—will sit down together in negotiations on equal terms and come up with a recommended methodology for regulating class III gaming on Indian lands. Permitting the States even this limited say in matters that are usually in the exclusive domain of tribal government has been permitted only with extreme reluctance.24
Senator McCain similarly stated that, “[i]t is with great reluctance that I am supporting [IGRA],” and emphasized that he had only done so due to the limited nature of the state‘s involvement:
The Committee Report is clear as to the purpose of Tribal/State compacts as called for in Section [2710(d)]. I understand
Senator Evans’ concerns regarding the potential overextension of the intended scope of the Tribal/State compact approach. Toward this end, I believe it is important to again underscore the statement that appears on page 10 of the Report: “The Committee does not intend to authorize any wholesale transfer of jurisdiction from a tribe to a state.” From time immemorial, Tribes have been and will continue to be permanent governmental bodies exercising those basic powers of government, as do Federal and State governments, to fulfill the needs of their members. Under our constitutional system of government, the right of Tribes to be self-governing and to share in our federal system must not be diminished.25
II.
In light of IGRA‘s purpose to facilitate tribes’ operation of gaming activities, and Congress‘s reluctance to allow states to have any involvement in oversight of even Class III gaming, I agree with Judge Bress that when a state insists upon negotiating topics plainly beyond the scope of
This case is a textbook example of how a contrary interpretation would undermine IGRA‘s purposes. California began negotiations with the Compact Tribe Steering Committee (CTSC) nearly eight years ago, in 2014. From the start of those negotiations, the State demanded that the final Compact include a number of provisions not even tangentially related to gaming. For example, the State demanded that the Tribes adopt state tort law, subject themselves to state environmental regulations, and enforce state child and spousal support orders against their members. California‘s insistence on those provisions eventually led the Plaintiff tribes to pull out of the CTSC in 2019, reject the State‘s offer, and initiate this suit, which has now dragged on for more than three years.
If we were to adopt Judge Bumatay‘s position, hold that the State could justify its insistence on those terms by showing that they were in the “public interest,” and remand this case to the district court for further proceedings, Congress‘s objectives would be frustrated in at least two key ways. First, it would subject the Tribes to even more costly delays, and potentially jeopardize their ability to engage in gaming at all, as due to these failed negotiations, the existing Compact authorizing gaming was on the brink of expiring until the parties extended its end date from June 2022 to December 2023. Second, it would fatally undermine the key barrier Congress erected against states’ overreach in regulating tribal gaming. If a state could insist on topics as far afield as spousal and child support so long as they were in the “public interest,” the “exhaustive” list of topics wouldn‘t be exhaustive at all. And in that event, the worst fears of Congressional members—that states would place their interests above the tribes‘—would be realized.
III.
This conclusion is bolstered by the application of traditional Indian canons of construction. As my colleagues’ competing views demonstrate, the statutory language is ambiguous. When a statute is ambiguous, we apply the Indian canons of cоnstruction, one of which the Supreme Court codified in County of Yakima. As noted at the outset, where, as here, we are faced with two possible constructions of a federal statute implicating tribal interests, “our choice between them must be dictated by a principle deeply rooted in this Court‘s Indian jurisprudence: statutes are to be construed
Congress in fact contemplated that we would apply this very canon to IGRA when interpreting it. The Senate Committee Report states that Congress “trusts that courts will interpret any ambiguities [in IGRA] in a manner that will be most favorable to tribal interests consistent with the legal standard used by courts for over 150 years in deciding cases involving Indian tribes.” S. Rep. No. 100-446, at *15.
We are faced with not only two “possible” constructions of IGRA, but two equally plausible ones. Applying the canon, we must choose the interpretation most favorable to the tribes, which, in this case, is the construction proposed by Judge Bress. Holding that it is a per se breach of “good faith” for a state to insist on negotiating a compact provision not even arguably within the “operation of gaming activities” protects tribal sovereignty, while ensuring that the twin purposes of IGRA are fulfilled.
IV.
Contrary to Judge Bumatay‘s assertions, this approach does not conflict with
BUMATAY, Circuit Judge, dissenting:
This case poses a difficult question of statutory interpretation. It requires us to parse several provisions of the Indian Gaming Regulatory Act (“IGRA“) to determine the meaning of “good faith.” But as with any case, we are duty-bound to follow the text of the law wherever it leads. And because the majority creates an automatic bad-faith rule not found in IGRA‘s text, I respectfully dissent.
IGRA establishes a comрrehensive framework governing gaming on Indian lands. See
The Chicken Ranch Rancheria of Me-Wuk Indians, along with several other tribes (collectively, the “Tribes“) sued the State of California and Governor Gavin Newsom (collectively, “California“) for violating
I.
IGRA‘s text and structure command a nuanced approach to the good-faith analysis. Under IGRA, a State must negotiate to enter a Tribal-State compact in “good faith.”
IGRA does not define “good faith,” id. at 957, but it provides several textual and structural clues on how courts are to enforce it. Two provisions, in particular, guide that inquiry:
First, IGRA‘s list of permissible topics for Tribal-State compacts. Section 2710(d)(3)(C) provides that a Tribal-State compact “may include provisions relating to—“:
(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity;
(ii) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations;
(iii) the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such activity;
(iv) taxation by the Indian tribe of such activity in amounts comparable to amounts assessed by the State for comparable activities;
(v) remedies for breach of contract;
(vi) standards for the operation of such activity and maintenance of the gaming facility, including licensing; and
(vii) any other subjects that are directly related to the operation of gaming activities.
Through this provision, “IGRA limits permissible subjects of negotiation in order to ensure that tribal-state compacts cover only those topics that are related to gaming.” Rincon Band of Luiseno Mission Indians v. Schwarzenegger, 602 F.3d 1019, 1028–29 (9th Cir. 2010).
And the Supreme Court has explained that “gaming activities” in the
The list of permissible negotiation topics is also circumscribed by “one key limitation on state negotiating authority” found in
Second, IGRA tells courts how to analyze good faith. It establishes that, in determining “whether a State has negotiated in good faith, the court—”
(I) may take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities, and
(II) shall consider any demand by the State for direct taxation of the Indian tribе or of any Indian lands as evidence that the State has not negotiated in good faith.
These provisions work in tandem to determine whether a State has met its good-faith duty.
To start,
Courts then assess a State‘s claim of good faith under
I explain IGRA‘s meaning in greater detail below.
A.
The first step in the good-faith inquiry is understanding that
One reason is the text. Section 2710(d)(3)(C)‘s language shows that it limits the field of permissible negotiation topics. It states that a gaming compact “may include” seven gaming-related topics.
The second reason is our interpretative canons. Two well-established canons confirm
The third reason—our precedent. In Rincon, we explained that “[t]he language and structure of
B.
Given
First, IGRA‘s burden-shifting framework makes clear that evidence of off-list negotiation impacts the good-faith analysis. As a reminder, plaintiff tribes have the initial burden of “introduc[ing] . . . evidence” of a State‘s refusal to negotiate a compact in “good faith.”
Second, the
Third, a contrary reading would render
So if a tribe has introduced evidence that a State sought provisions outside the confines of the
C.
Greater scrutiny comes in the form of
While the five good-faith factors may appear freewheeling, they aren‘t to be construed “broadly in favor of the State‘s interests.” Rincon, 602 F.3d at 1032. Instead, “those terms clearly apply to protecting the State against the adverse consequences of gaming activities.” Id. So the good-faith factors are to be read considering “legitimate state interests regarding gaming and the purposes of IGRA.” Id. at 1039. The factors must also be read in line with IGRA‘s statutory command to “promot[e] tribal economic development, self-sufficiency, and strong tribal governments” and “ensure that the Indian tribe is the primary beneficiary of the gaming operation.”
In short, IGRA‘s good-faith analysis works like this:
- If a tribe fails to show that a State negotiated for topics outside of
§ 2710(d)(3)(C) , absent more, it has failed to meet its initial showing of bad faith and the inquiry ends. - But if a tribe shows that a State negotiated on a topic outside the list, it has satisfied its initial burden of proving bad faith; and
- The burden then shifts to the State to show its good faith under the
§ 2710(d)(7)(B)(iii)(I) factors.
While not the most straightforward statute, this reading interprets IGRA “as a symmetrical and coherent regulatory sсheme . . . and fit[s] . . . all [its] parts into an harmonious whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (simplified).
With the proper legal framework in mind, I would hold that California negotiated on four topics outside the scope of the
II.
My main disagreement with the majority results from violating
A.
First, the majority relies heavily on its sense of IGRA‘s core “principles” and “objectives.” Maj. Op. 31. Instead of relying on text and structure, the majority tells us “what Congress had in mind” when it enacted IGRA, Maj. Op. 27–28, and construes the statute from there. For example, we are told to intuit Congress‘s “aware[ness] of the danger that states could use their compacting approval powers to encroach on tribal sovereignty,” Maj. Op. 12, and to read the provisions at issue here based on “core aspects of tribal sovereignty,” Maj. Op. 27. This is not a text-based approach; it‘s a purpose-driven one. And what the majority hints at, the concurrence makes clear. The concurrence says that we should not be confined by “the text of the statute and our precedents construing IGRA,” but instead we should glean meaning from IGRA‘s “purpose,” “legislative history,” and atextual canons of construction. Concurrence at 49–50.
But of course, the analysis must start and end with IGRA‘s text and structure—regardless of whether we believe it best achieves the statute‘s purpose. As judges, we must reject “surmise about legislative purpose” and instead look to a statute‘s text and structure for guidance. HollyFrontier Cheyenne Ref., LLC v. Renewable Fuels Assn., 141 S. Ct. 2172, 2181–83 (2021). The majority tries to cloak its reliance on IGRA‘s purposes by calling it the “context of the statute as a whole.” Maj. Op. 43. But it is one thing to look to context to interpret the words of a statute; it is another to use context to divine some broad legislative purpose to override the statute‘s plain meaning. See John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 92–93 (2006) (explaining the difference between “contextual evidence of semantic usage” and “contextual evidence of the policy considerations that apparently justified the statute“).
Contrary to the view of my colleagues, “we can never let perceived legislative purpose eclipse the ordinary meaning of statutory text.” Rojas v. FAA, 989 F.3d 666, 695 (9th Cir. 2021) (en banc) (Bumatay, J., dissenting in part). Indeed, “[l]awmaking is not a tidy affair;” “[i]t can be a clumsy, inefficient, even unworkable process.” Id.
B.
Most fundamentally, the majority‘s reading of IGRA conflicts with its plain text. The majority concludes that a State‘s negotiation for topics “well outside”
Instead, the majority‘s automatic bad-faith rule bars courts from even considering the factors bеfore forcing parties into IGRA‘s remedial procedures. So while the majority sees a violation of
Such a reading is also inconsistent with IGRA‘s structure. IGRA authorizes States to impose assessments on a tribe‘s gaming activities, but precludes them from imposing any tax or assessment “upon an Indian tribe” itself.
At the same time, the majority also creates a new atextual test for complying with
Now judges will be tasked with resolving a multi-step test whenever they confront an IGRA challenge. First, courts will have to draw a line between on-list and off-list topics. Second, courts will need to define when an off-list topic is “well outside” the list. How will they know when a topic “far exceeds” or is just “slightly” outside the list? See Maj. Op. 31 n.5. Presumably, courts will have to make it up. And what happens when a topic is slightly outside the list? Does the State get a pass? If so, that conflicts with the majority‘s view that the “exhaustive nature of IGRA‘s enumerated list . . . means nothing if states can ultimately go beyond that list.” Maj. Op. 31. In my view, these tough questions are all unnecessary given that the words “far exceеd” or “well outside” appear nowhere in IGRA‘s text.
Perhaps this confusing framework is because the majority is unwilling to live with the consequences of its automatic bad-faith rule—that any deviation from the list is per se bad faith and triggers IGRA‘s remedial procedures. Take this case as an example. The negotiations between California and the Tribes took place over four years, with 39 days of in-person negotiations, and 26 draft compacts exchanged between the parties. Under the majority‘s framework, if California proposes any topic or proposal minimally outside the list, the Tribe could go to court, petition for the remedial procedures, and wipe out all those hard days of negotiation. Seemingly too much to stomach, the majority gives itself breathing room by fashioning the “well outside” requirement out of whole cloth. So now, instead of relying on the statutory factors of good faith, parties will now have to litigate the inches between what‘s “permissible” and what‘s “well outside” the line.
C.
The majority tries to preserve some use for the good-faith factors by suggesting that they can be used to evaluate a State‘s on-list negotiations. Maj. Op. 37. But such a reading makes complying with
While the majority agrees that
As a supposed justification for its approach, the majority imagines a scenario where a State bargains for a permissible, on-list topic, but the proposal would be “highly burdensome” and “unnecessary.” Maj. Op. 34. I agree that negotiating for “unnecessary” topics may constitute bad faith in some cases, but we need not adopt the majority‘s atextual framework to get therе. Under a proper reading of IGRA, a tribe may still allege that a State engaged in procedural bad faith by disguising an unnecessary poison pill as a substantively permissible topic. Cf. Pauma Band, 973 F.3d at 963, 966 (analyzing a claim of procedural bad faith for including “unduly harsh” language in the draft compact).
III.
In the end, my disagreement with the majority comes down to principles of statutory interpretation. Rather than interpreting text and structure, the majority instead focuses on reading IGRA based on its “core principles,” Maj. Op. 31; “core objectives,” id. at 31; “legislative intent,” id. at 43; “legislative history,” Concurrence at 49–50; and “purpose,” id. at 59. The unfortunate result is the expansion of IGRA beyond what its text allows.
For these reasons, I respectfully dissent.