KG URBAN ENTERPRISES, LLC, Plaintiff, Appellant, v. DEVAL L. PATRICK, in his official capacity as Governor of the Commonwealth of Massachusetts; CHAIRMAN AND COMMISSIONERS OF THE MASSACHUSETTS GAMING COMMISSION, in their official capacities, Defendants, Appellees.
No. 12-1233
United States Court of Appeals For the First Circuit
August 1, 2012
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge]
Paul D. Clement, with whom Jeffrey M. Harris, Brian J. Field, Bancroft PLLC, Kevin M. Considine, Alexander Furey, and Considine & Furey, LLP were on brief, for appellant.
Kenneth W. Salinger, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for appellee.
Jeffrey Pokorak, Lorie Graham, and Nicole Friederichs on brief for Suffolk University Law School‘s Indian Law and Indigenous Peoples Clinic, amicus curiae.
KG Urban Enterprises, LLC, a potential applicant for a gaming license, argues that § 91 of the Act provides unauthorized preferences to Indian tribes and on that basis treats the southeast section of the state differently, and this constitutes a classification on the basis of race in violation of the Equal Protection Clause of the
We affirm the denial of KG‘s request for injunctive and declaratory relief as to § 91, reject the remainder of KG‘s claims, vacate the district court‘s dismissal of the complaint, and remand for such further proceedings as may be aрpropriate.
I.
This case involves two statutory schemes, one state and one federal. The state scheme is the Massachusetts Gaming Act. The federal scheme is the Indian Gaming Regulatory Act (IGRA),
A. The Massachusetts Gaming Act
The Massachusetts Gaming Act was enacted on November 22, 2011. The Act establishes “a Massachusetts gaming commission” (the Commission), which consists of five commissioners, defendants here.
The Act authorizes gaming through the Commission‘s issuance of “Category 1” and “Category 2” licenses. A category 2 license, not at issue here, allows the licensee “to operate a gaming establishment with no table games and not more than 1,250 slot machines.”
As to category 1 licenses, the Act creates three “regions,” regions A, B, and C, corresponding to counties; region A covers the Boston area, B the western portion of the state, and C the southeastern portion of the state. See
This case concerns certain special provisions for category 1 licenses in the southeast region only, which is where the state‘s only federally recognized Indian tribes are located. We describe the statewide procedures before turning to the special procedures which treat the southeast differently.
1. The Statewide Procedures
The Commission‘s solicitation of applications for category 1 licenses is a key initial step in the category 1 licensing process. The Act does not set a deadline by which the
Once the application is reviewed,2 the Commission is to “identify which communities shall be designated as the surrounding communities of a proposed gaming establishment.”
A license is to be valid for an initial fifteen-year period.
2. Section 91 of the Act
Section 91, which is not codified in Chapter 23K, forms the basis of KG‘s primary challenge. 2011 Mass. Acts ch. 194, § 91. Section 91(a) provides that “[n]otwithstanding any gеneral
We divide subsection (e), on which KG‘s equal protection challenge focuses, into its two component clauses, which provide:
Notwithstanding any general or special law or rule or regulation to the contrary, if a mutually agreed-upon compact has not been negotiated by the governor and Indian tribe or if such compact has not been approved by the general court before July 31, 2012, the commission shall issue a request for applications for a category 1 license in Region C pursuant to chapter 23K of the General Laws not later than October 31, 2012;
provided, however, that if, at any time on or after August 1, 2012, the commission determines that the tribe will not have land taken into trust by the United States Secretary of the Interior, the commission shall consider bids for a category 1 license in Region C under said chapter 23K.
Id. § 91(e). It appears that all aspects of the state-law components of the first clause have, as of the date of this
The statute does not, by its literal terms, preclude issuance of a category 1 license in Region C if a compact has been approved. However, KG argued before the district court and on appeal that the statute does bar issuance of a license if a compact is approved by the legislature by July 31 and the Commission has not then determined that the tribe will not have land taken into trust. The defendants do not dispute that interpretation of the statute.
Moreover, the approved compact provides:
Section 91 of the Act provides that if a compact negotiated by the Governor is approved by the General Court by July 31, 2012, the [Commission] will not issue a request for Category 1 License applications in Region C unless and until it determines that the Tribe will not have land taken into trust for it by the United States Secretary of the Interior.
Mashpee Tribal-State Compact § 2.6.3 The compact repeatedly refers to the tribe‘s “exclusive” rights to conduct gaming in Region C if the compact receives legislative approval by July 31, 2012.4 See
3. Other Tribe-Related Provisions
The Massachusetts Gaming Act also contains several other provisions relating to Indian gaming. The Act appropriates $5 million for use in negotiating and executing “a compact with a federally recognized Indian tribe in the commonwealth to establish a tribal casino in region C.” 2011 Mass. Acts ch. 194, § 2A. The Commission is empowered to “provide assistance to the governor in negotiating a compact with a federally-recognized Indian tribe in the commonwealth.”
continue to evaluate the status of Indian tribes in the commonwealth including, without limitation, gaining federal recognition or taking land into trust for tribal economic development. The commission shall evaluate and make a recommendation to the governor and the chairs of the joint committee on economic development and emerging technologies as to whether it would be in the best interest of the commonwealth to enter into any negotiations with those tribes for the purpose of establishing Class III gaming on tribal land.
The Act creates a thirteen member “gaming policy advisory committee,” and requires one of the governor‘s eight appointees to the committee to “be a representative of a federally reсognized Indian tribe in the commonwealth.”
B. The IGRA
“Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48 (1996). The IGRA was passed in part in response to the Court‘s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), which held that California lacked authority to regulate bingo gambling conducted by Indian
The IGRA categorizes gaming into three classes: Class I consists of “social games solely for prizes of minimal value or traditional forms of Indian gaming,”
The IGRA sets out when Class III gaming may be conducted:
Class III gaming activities shall be lawful on Indian lands only if such activities are—
(A) authorized by an ordinance or resolution that—
(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands,
(ii) meets the requirements of subsection (b) of this section, and
(iii) is 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-Stаte compact entered into by the Indian tribe and the State under paragraph (3) that is in effect.
At the heart of this case are the provisions of the IGRA which make clear that tribal gaming may only be conducted by an “Indian tribe” on “Indian lands,” as both terms are defined in the IGRA. See, e.g.,
We highlight the two key IGRA provisions important to the equal protection challenge at issue here: the Indian lands definition and the compact process, both described below.
The IGRA defines the term “Indian tribe” as “any Indian tribe, band, nation, or other organized group or community of Indians which— (A) is recognized as eligible by the Secretary for the special programs and services provided by the United States to Indians because of their status as Indians, and (B) is recognized as possessing powers of self-government.”
Of particular importance is the term “Indian lands,” which is defined as:
(A) all lands within the limits of any Indian reservation; and
(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.
The IGRA also makes clear that gaming may only be conducted if a tribal-state compact is negotiated and approved by the Secretary of the Interior.
(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact.6
(B) Any State and any Indian tribe may enter into a Tribal-State compact governing gaming activities on the Indian lands of the Indian tribe, but such compact shall take effect only when notice of approval by the Secretary of such compact has been published by the Secretary in the Federal Register.
After such compacts are negotiated, they must be submitted to the Secretary of the Interior for approval. The IGRA provides: “(A) The Secretary is authorized to approve any Tribal-State cоmpact entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe.”
Assuming there is a compact as defined in (A), the IGRA goes on to provide:
(B) The Secretary may disapprove a compact described in subparagraph (A) only if such compact violates—
(i) any provision of this chapter,
(ii) any other provision of Federal law that does not relate to jurisdiction over gaming on Indian lands, or
(iii) the trust obligations of the United States to Indians.
(C) If the Secretary does not approve or disapprove a compact described in subparagraph (A) before the date that is 45 days after the date on which the compact is submitted to the Secretary for approval, the compact shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with the provisions of this chapter.
(D) The Secretary shall publish in the Federal Register notice of any Tribal-State compact
that is approved, or considered to have been approved, under this paragraph.
The IGRA contains additional provisions in another section governing “[g]aming on lands acquired after October 17, 1988.”
(1) Subsection (a) of this section will not apply when—
(A) the Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary‘s determination; or
(B) lands are taken into trust as part of—
(i) a settlement of a land claim,
(ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or
(iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.
The statute conferring authority on the Secretary of the Interior to take land into trust is
The Supreme Court has intеrpreted the language of § 479 in a way which directly impacts the analysis here. In Carcieri v. Salazar, 129 S. Ct. 1058 (2009), the Court held that “for purposes of § 479, the phrase ‘now under Federal jurisdiction’ refers to a tribe that was under federal jurisdiction at the time of the
In a concurring opinion, Justice Breyer stated that the “interpretation that reads ‘now’ as meaning ‘in 1934’ may prove somewhat less restrictive than it at first appears” because “a tribe may have been ‘under Federal jurisdiction’ in 1934 even though the Federal Government did not believe so at the time.” Id. at 1069 (Breyer, J., concurring). Justice Souter and Justice Ginsburg, concurring in part and dissenting in part, agreed with
The Court recently summarized Carcieri as holding that “§ 465 authorizes the Secretary to take land into trust only for tribes that were ‘under federal jurisdiction’ in 1934.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2204 (2012). In a footnote, the Court remarked that it was not addressing the scope of Carcieri, including whether the tribe at issue there “was ‘under federal jurisdiсtion’ in 1934, as Carcieri requires,” and “how that question relates to Patchak‘s allegation that the Band was not ‘federally recognized’ at the time.” Id. at 2204 n.2.
II.
A. The Complaint
KG Urban Enterprises, LLC, is an equity development company that specializes in the redevelopment of urban brownfield sites. Over the past four years, it has invested $4.6 million dollars in preparing a plan for converting a site in downtown New Bedford, Massachusetts, into an over $1 billion multi-use property that includes a gaming facility. KG plans on applying for a Region C gaming license for that property “as soon as it is permitted to do so.”
KG‘s complaint alleged, and the parties agree on appeal, that there are two federally recognized tribes in Massachusetts — the Mashpee Wampanoag Tribe, and the Wampanoag Tribe of Gay Head (Aquinnah), both officially recognized after 1934. The Mashpee possess no Indian lands in Massachusetts. The Mashpee have passed a tribal ordinance authorizing gaming, which has been approved by the National Indian Gaming Commission (NIGC), satisfying one of the IGRA‘s requirements to conduct Class III gaming. See Letter from Tracie L. Stevens, Chairwoman, Nat‘l Indian Gaming Comm‘n, to Cedric Cromwell, Chairperson and President, Mashpee Wampanoag Tribe (June 5, 2012), available at http://www.nigc.gov/Portals/0/NIGC%20Uploads/readingroom/gamingordinances/mashpeewampanoagtribe/Mashpee.pdf. The letter from the NIGC approving the оrdinance noted that “any Class III gaming must be conducted pursuant to a gaming compact entered into with the Commonwealth of Massachusetts, or pursuant to Class III gaming procedures approved by the Secretary of the Interior.” Id. As to Indian lands, the letter stated that “[i]t is also my understanding that the Tribe has not yet acquired Indian lands as defined by IGRA. It is therefore important to note that approval is granted
for gaming only on Indian lands, as defined in
The Mashpee and the Governor of Massachusetts entered into a tribal-state compact on July 12, 2012. The compact provides that gaming may only be conducted on an “Approved Gaming Site” defined as “a single site on Indian Lands, as defined in
The compact was approved by the House of the Massachusetts legislature on July 18, 2012, and by the Senate on July 26, 2012. H. 4261, 187th Gen. Court (Mass. 2012). It is against this general backdrop that the legal issues are framed.
The most powerful of KG‘s theories on appeal is that § 91 of the Massachusetts Gaming Act discriminаtes on the basis of race, harming KG‘s ability to seek a commercial gaming license and the terms that would govern any such license, in violation of the Equal
The complaint alleged that § 91 of the Act caused and will cause to KG several injuries: (1) “KG will be locked out of the application process for a gaming license until July 31, 2012, and may never have an opportunity to compete for a license,” if a tribal-state compact is entered into, (2) the uncertainty over whether non-tribal entities would be able to apply for a gaming license causes harm and is deterring investors and operators from pursuing opportunities in the southeast region, and (3) even if non-tribal applications were at some point accepted, licensees in Region C would be at a competitive disadvantage because the other two regions were likely to have operational casinos before Region C. The complaint further alleged that because “the federal process for awarding land-in-trust is in a state of paralysis in the wake of Carcieri . . . there is no prospect that the Mashpee Wampanoag will be in a position to engage in casino-style gaming consistent with the
As to relief, KG requested (1) a declaratory judgment that the Massachusetts Gaming Act is unconstitutional in its entirety, or at a minimum as to its Indian tribe related provisions; (2) a declaration that the Act is preempted to the
B. Procedural History
The same day it filed the complaint, KG also filed a motion for a preliminary injunction blocking the defendants from enforcing the challenged provisions of the Act. In support of the motion, KG attached an affidavit of KG‘s managing director, which essentially reiterated the facts as to KG‘s New Bedford project and the injuries to KG arising out of § 91 as alleged.
The defendants opposed the motion on the merits, and argued that KG‘s claims regarding § 91 were not ripe and the court accordingly lacked jurisdiction. The defendants also submitted, on January 27, 2012, an affidavit from Stephen P. Crosby, who was appointed Chairman of the Gaming Commission on December 13, 2011, stating that the Commission “will almost certainly not be accepting applications any earlier than October 2012,” and possibly not until sometime in 2013. The Chairman was the only member of the Commission to be appointed at that point, the remaining members would need to be appointed,11 and then the Commission would need to
On February 16, 2012, the district court denied KG‘s request for a preliminary injunction. KG Urban Enters., LLC v. Patrick, 839 F. Supp. 2d 388, 407 (D. Mass. 2012). The court first found that the issues of ripeness, standing, sovereign immunity, and Pullman abstention did not preclude it from addressing the merits, with the exception of KG‘s challenge to the advisory committee seat, which the district court dismissed on standing grounds. Id. at 396-99.
On the merits, the court rejected both of KG‘s legal theories. The court hеld that the Massachusetts Gaming Act was not preempted by the
The district court also dismissed the complaint, explaining that “because plaintiff brings only a facial equal protection challenge to the Gaming Act and no further briefing or proceedings would affect this Court‘s constitutional analysis, dismissal was proper. Id. at 407. KG appeals.
III.
KG‘s equal protection claim presents a question of law and so is reviewed de novo. See, e.g., United States v. Rehlander, 666 F.3d 45, 47 (1st Cir. 2012) (“The issues before us are legal and our review is therefore de novo.“). We review the district court‘s dismissal of the complaint de novo. See Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 532 (1st Cir. 2011), cert. denied, 183 L. Ed. 2d 615 (2012). KG requests
KG has narrowed the claims it has pursued on appeal. KG no longer advances its claim that the Massachusetts Gaming Act is directly in conflict with and so preempted by the
Defendants argue (1) that KG‘s claim as to § 91 is not ripe and (2) that KG has no standing to challenge the composition of the advisory committee established by the Massachusetts Gaming Act.
We address the challenge to the advisory committee and KG‘s state-law claim before turning to the challenge to § 91.
A. Standing to Pursue Advisory Committee Claim
We reject KG‘s challenge as to the advisory committee on standing grounds. KG‘s complaint does not plead any facts as to
B. State Declaration of Rights Claim
KG newly argues that it is entitled to greater protection under the state constitution than the federal. Before the district
While that opinion was issued after KG‘s motion for a preliminary injunction was filed, the legal principle for which KG cites the case was decided by the Supreme Judicial Court in an earlier opinion in the same case, before KG‘s motion was filed. See Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262, 1276 (Mass. 2011) (“Where the Federal government has made a binding decision regarding the treatment of aliens, that decision will be reviewed according to the standards applicable to the Federal government even though the immediate actor may be a State government. In comparison, where the State acts on its own authority, it cannot shelter behind the existence of Congress‘s plenary authority, and its actions are subject to strict scrutiny review.” (citation omitted)).
KG‘s failure to timely raise the argument that a different standard applies to its state-law claim leads to the conclusion that the state constitutional claim adds nothing to KG‘s claim in this court. See Nat‘l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 748-49 (1st Cir. 1995) (holding that where a party treats federal and state constitutional provisions “identically” before the district court, the party has waived any argument that the provisions are distinct). We affirm dismissal of the state-law claim without prejudice, particularly because “the claim raises a novel or complex issue of State law.”
C. The Equal Protection Challenge to § 91
We turn now to the heart of KG‘s suit, the equal protection challenge to § 91.
We review de novo, Doe v. Bush, 323 F.3d 133, 138 (1st Cir. 2003), and reject the defendants’ argument that the challenge is not ripe.12 The equal protection challenge to § 91 is a legal question that is fit for judicial review. The fact that the case could be rendered moot — for example, if the state Commission determines that land will not be taken into trust — does not render the case unripe. Moreover, we have previously rejected a claim that the contingent nature of the tribal-state compacting process renders a suit unripe. Rhode Island v. Narrangansett Indian Tribe, 19 F.3d 685, 693-94 (1st Cir. 1994).13
Turning to the merits, the parties essentially agree that the level of scrutiny that applies to § 91 is dispositive of the equal protection claim.14 KG argues that § 91 constitutes a race-based preference, insofar as § 91 allows for Indian tribes who do not possess Indian lands, and so do not meet the
The defendants respond with two arguments, which basically state all-or-nothing propositions. First, defendants broadly claim that, under Morton v. Mancari, 417 U.S. 535 (1974), the state‘s classification based on tribal status is political, not racial, in nature, and so subject only to rational basis review. Second, defendants argue, more narrowly, that, under Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979), even if the classification were racial in nature, it is authorized by the
The defendants have not offered a middle ground nor have they formally argued that a state may choose to allow at least a limited grace period to tribes to attempt to obtain needed approvals under the
There are difficulties with each party‘s arguments. In the end, though, it is clear to us that KG‘s suit should not have been dismissed, and that KG is not entitled at this point to the equitable relief it seeks. For reasons discussed below, we affirm
1. The Equal Protection Clause and State-Law Classifications Based on Tribal Status
a. Morton v. Mancari
The defendants’ first argument is that a state-granted preference to a tribe is not a racial preference and so entails only rational basis review. This argument relies on language used by the Court in Mancari, 417 U.S. 535. There, the Court addressed whether a federal law granting an employment preference for qualified Indians in a federal agency, the Bureau of Indian Affairs (BIA), violated the equal protection component of the Due Process Clause of the
The Court rejected the equal protection challenge to the federal statute. The Court first noted that “[t]he plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself,” citing the portion of the Commerce Clause allowing regulation of commerce “with the Indian tribes,” as well as the treaty power. Id. at 551-52 (citing
The Court held that “this preference does not constitute ‘racial discrimination.’ Indeed, it is not even a ‘racial’ preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups.” Id. at 553-54 (footnote omitted). The Court further explained:
The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are
governed by the BIA in a unique fashion. In the sense that there is no other group of people favored in this manner, the legal status of the BIA is truly sui generis.
Id. at 554 (citation and footnote omitted). This passage was followed by rather pointed language that if the preference were applied to employment in federal agencies not related to Indians, a different question would be presented:
Furthermore, the preference applies only to employment in the Indian service. The preference does not cover any other Government agency or activity, and we need not consider the obviously more difficult question that would be presented by a blanket exemption for Indians from all civil service examinations. Here, the preference is reasonably and directly related to a legitimate, nonracially based goal. This is thе principal characteristic that generally is absent from proscribed forms of racial discrimination.
Id. at 554.
In a footnote, the Court remarked: “The preference is not directed towards a ‘racial’ group consisting of ‘Indians‘; instead, it applies only to members of ‘federally recognized’ tribes. This operates to exclude many individuals who are racially to be classified as ‘Indians.’ In this sense, the preference is political rather than racial in nature.” Id. at 553 n.24. The Commonwealth relies on but overreads the footnote.
The Court concluded by explaining that “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative
Mancari‘s analysis as to federal laws giving preference based on “Congress’ unique obligation toward the Indians” has been reaffirmed. See, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Ass‘n, 443 U.S. 658, 673 n.20 (1979) (noting that “this Court . . . has repeatedly held that the peculiar semisovereign and constitutionally recognized status of Indians justifies special treatment on their behalf when rationally related to the Government‘s ‘unique obligation toward the Indians‘” (quoting Mancari, 417 U.S. at 555)); United States v. Antelope, 430 U.S. 641, 645 (1977) (“Legislation with respect to these ‘unique aggregations’ has repeatedly been sustained by this Court against claims of unlawful racial discrimination.” (citing Mancari, 417 U.S. at 552)); see also Duro v. Reina, 495 U.S. 676, 692 (1990) (“That Indians are citizens does not alter the Federal Government‘s broad authority to legislate with respect to enrolled Indians as a class, whether to impose burdens or benefits.” (citing Antelope and Mancari)), superseded by statute as recognized in United States v. Lara, 541 U.S. 193, 197-98, 207 (2004).
However, it is quite doubtful that Mancari‘s language can be extended to apply to preferential state classifications based on tribal status. Mancari itself relied on several sources of federal authority to reach its holding, inсluding the portion of the
The states have no such equivalent authority,16 which is ceded by the Constitution to the federal government. Further, the state preference here has to do with establishment of gaming facilities and not employment of Indians within agencies whose mission is to assist Indians. Moreover, Mancari itself said that a different question would be presented by a preference in all civil services positions, and suggested that might be viewed as race based discrimination.
KG argues that the state‘s argument that no racial classification is involved is undercut by Rice v. Cayetano, 528 U.S. 495 (2000). In Rice, a case under the
The defendants cite no authority holding that state preferential classifications based on tribal status which are not authorized by federal law are nonetheless not racial classifications under Mancari. Instead, they cite a numbеr of cases upholding state laws, which are not like this case, said to be authorized by federal law under the rationale of Yakima. See Artichoke Joe‘s Cal. Grand Casino v. Norton, 353 F.3d 712, 736 (9th Cir. 2003) (upholding state law regarding Indian gaming enacted pursuant to the
We turn next to the defendants’ argument that nevertheless the state may still make the classification, because § 91 is authorized by the
b. Yakima
The premise of defendants’ argument is their assertion that § 91 was “enacted under explicit authority granted by Congress in
In Yakima, the Court addressed the equal protection analysis of state laws as to Indian tribes where the state acted pursuant to Congressional authorization. The State of Washington,
It is settled that “the unique legal status of Indian tribes under federal law” permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive. Morton v. Mancari, 417 U.S. 535, 551-552. States do not enjoy this same unique relationship with Indians, but Chapter 36 is not simply another state law. It was enacted in response to a federal measure explicitly designed to readjust the allocation of jurisdiction over Indians. The jurisdiction permitted under Chapter 36 is, as we have found, within the scope of the authorization of Pub. L. 280. And many of the classifications made by Chapter 36 are also made by Pub. L. 280. Indeed, classifications based on tribal status and land tenure inhere in many of the decisions of this Court
involving jurisdictional controversies between tribal Indians and the States, see, e. g., United States v. McBratney, 104 U.S. 621 (1881). For these reasons, we find the argument that such classifications are “suspect” an untenable one. The contention that Chapter 36 abridges a “fundamental right” is also untenable. It is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereign powers of the Indian tribes. See, e. g., United States v. Wheeler, 435 U.S. 313 (1978). In еnacting Chapter 36, Washington was legislating under explicit authority granted by Congress in the exercise of that federal power.
Id. at 500-01. This portion of Yakima has not been addressed by the Court since Yakima was decided.
It would be difficult to conclude that the
KG does not dispute that if a federally recognized tribe in Massachusetts currently possessed “Indian lands” within the meaning of the
KG argues with some force that the fact that a tribe may, in the future, acquire Indian lands is insufficient for § 91 to be considered “authorized” in the Yakima sense by the
We outline the present state of affairs as we understand it. The Mashpee have submitted a land in trust application to the Bureau of Indian Affairs, requesting that the Bureau take land into trust for purposes of operating a casino in Massachusetts. See 77 Fed. Reg. 32,132, 32,133 (May 31, 2012) (BIA notice requesting comments for purposes of preparing an environmental impact statement for the proposed transfer into trust of 146.39 acres in the City of Taunton, to be taken into trust “for the development of a casino, hotel, parking, and other facilities supporting the casino,” as well as a proposed transfer into trust of 170.1 acres
The strongest argument made by KG is based on Carcieri: that even if being in the application process to have a Secretary (with authority) take the purchased land into trust might suffice for purposes of being found authorized under the
KG‘s argument that the
(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a
request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact. (B) Any State and any Indian tribe may enter into a Tribal-State compact governing gaming activities on the Indian lands of the Indian tribe, but such compact shall take effect only when notice of approval by the Secretary of such compact has been published by the Secretary in the Federal Register.
The Sixth Circuit has interpreted subsection (A) in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Engler, 304 F.3d 616 (6th Cir. 2002). There, the court addressed whether an Indian tribe which did not possess Indian lands could compel a state to negotiate a tribal-state compact. The court held that the tribe could not do so, as “[h]aving jurisdiction over land for the casino is a condition precedent to negotiations and federal jurisdiction,” based on the “plain language of
The defendants’ response to this reading of the statute relies not upon the terms of the statute, but on certain actions taken by the Secretary, albeit in factual situations not identical to this. The Secretary‘s present position appears to be that tribal-state compacts may be negotiated and approved by the Secretary even if a tribe does not currently possess Indian lands, conditional upon the tribe‘s acquiring Indian lands. The most recent position of the Secretary, cited by the parties, was articulated in a March 2011 approval of a tribal-state compact. There, the Secretary approved a tribal-state compact, with the authorization of any gaming facility under the compact contingent on the relevant land being “acquired in trust by the Secretary for the tribe.”24 76 Fed. Reg. 11,258, 11,258 (Mar. 1, 2011). Whether
The Secretary‘s views on whether tribal-state compacts may be approved before the tribe possesses land that is taken into trust have varied over the years.25 In 2005, the Secretary disapproved a tribal-state compact between the State of Oregon and the Confederated Tribes of the Warm Springs Reservation of Oregon, on the basis that it could only approve a tribal-state compact “governing gaming on Indian lands of such Indian tribe.”
The Secretary has promulgated regulations governing the procedures for submitting a tribal-state compact, see
In sum, whether § 91 is “authorized” by the
The Secretary‘s present position does, though, provide some assistance to the Commonwealth. If the Secretary is willing
The argument, of course, would become weaker with the passage of time and the continuation of the status that there are no “Indian lands” in the region. The tribal-state compact entered into weakens the state‘s position by extending the period of time, as we explain below. And the argument is quаlitatively different, and even weaker, to the extent that Congressional action is required to provide the Secretary authority to take this land into trust. It is in this context that we turn to the relief requested by KG and the disposition of this suit.
2. KG‘s Requested Relief
In this suit, KG requests only equitable relief: a declaration that § 91 of the Massachusetts Gaming Act violates the Equal Protection Clause, preliminary and permanent injunctive relief, and associated attorneys’ fees. We view the appropriate resolution of this appeal through the lens of KG‘s request for equitable relief.
We start with KG‘s request for a preliminary injunction. Four factors govern the issuance of preliminary injunctive relief:
(1) the likelihood that the party requesting the injunction will succeed on the merits of
its claim or claims; (2) the potential for irreparable harm to this party if the injunction is denied; (3) the balance of the relative hardships that will ensue following either a grant or denial; and (4) the effect (if any) that the grant or denial will have on the public interest.
González-Fuentes v. Molina, 607 F.3d 864, 875 (1st Cir. 2010), cert. denied, 131 S. Ct. 1568 (2011). In this case, several circumstances weigh strongly against granting injunctive relief at this point in time.
As to likelihood of success on the merits, the law is far from clear, and both sides have weaknesses in their positions, as we have just outlined. That factor is only one of four we consider. First, it is clear from the affidavit of the Chairman of the Gaming Commission that the Commission is not now soliciting applications for the other two regions, will not do so until October 2012 at the earliest, and may not do so until some point in 2013. As a result, the nature of KG‘s present injury is relatively limited. For reasons оther than § 91, the category 1 licensing process may not move forward in Region C for months to come.
Second, the shape of the issues raised in this suit, and the attendant claims of injury, could well change depending on future events. It has already changed since oral argument, with the approval of the compact.
What is more difficult is the indefiniteness of when the Gaming Commission may, after August 1, 2012, determine that the
There are two provisions in the Mashpee Tribal-State Compact that raise the prospect of further delays and cast doubt on
Second, the compact provides that if it “is not approved by the United States Secretary of the Interior as required by IGRA, the Governor agrees that, if requested by the Tribe, the Governor will immediately resume negotiations in good faith with the Tribe for an amended compact.” Mashpee Tribal-State Compact § 18.8. This raises the prospect that even the Secretary‘s disapproval of the compact will not trigger a Commission decision to commence the competitive licensing process.
There also remains the potential that the Commission might wait years until the Secretary makes a determination as to the compact or land in trust application before itself acting under § 91.29 And the Mashpee Tribal-State Compact provides that it shall
The Supreme Court recently took notice of the length of time involved in reaching a decision on a land in trust application. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, 132 S. Ct. at 2203 (noting the “lengthy administrative review” of a request to have land taken into trust for purposes of operating a casino). Even if the lands were taken into trust by the Secretary, there could be further delays from litigation over the Secretary‘s decision. The Court held that sovereign immunity does not bar suits under the Administrative Procedure Act challenging the Secretary‘s taking of land into trust, and that a nearby property owner satisfied the requirements of prudential standing to bring such a challenge. Id. at 2209-12. Moreover, the Court‘s opinion appears to suggest that a nearby property owner had standing to raise a challenge based on Carcieri to a land in trust determination. Id. at 2203-04.
Beyond any such more typical delays in the land in trust application and compact approval processes, there is also the issue
Given this situation, the lack of clear answers on questions of both state and federal law, the shifting of the nature of the injury to KG, and the apparent attemрt to allow some time for the
These considerations also lead us to affirm the denial of KG‘s request for injunctive and declaratory relief at this point in time. The Supreme Court has made clear that “the Declaratory Judgment Act has been understood to confer on federal courts unique
The district court‘s dismissal of the complaint is another matter. We simply cannot say that KG‘s equal protection claim as to § 91 fails to state a claim on which relief may be granted, or that the issuance of equitable relief may not be appropriate at sоme future date.
We also affirm the dismissal with prejudice of KG‘s claims as to the $5 million appropriation, the advisory committee seat, and the preemption challenge to § 91. We dismiss KG‘s state-law claims without prejudice. We remand the case for further proceedings consistent with this opinion.
No costs are awarded.
Notes
The Chairman must approve any tribal ordinance allowing gaming “unless the Chairman specifically determines that— (i) the ordinance or resolution was not adopted in compliance with the governing documents of the Indian tribe, or (ii) the tribal governing body was significantly and unduly influenced in the adoption of such ordinance or resolution by any person identified in section 2711(e)(1)(D) of this title.”
The NIGC has authority to levy and collect fines and initiate proceedings to shut down gaming operations against tribal operators or contractors engaged in gaming, “for any violation of any provision of this chapter, any regulation prescribed by the Commission pursuant to this chapter, or tribal regulations, ordinances, or resolutions approved under section 2710 or 2712 of this title.”