Little Six, Inc. And Shakopee Mdewakanton Sioux (Dakota) Community v. United States
229 F.3d 1383
Fed. Cir.
2000
Check Treatment
Docket

*1 banc, re- poll having been and a en peal Shakopee Mde SIX, INC. LITTLE failed, taken, and quested, (Dakota) Commu Sioux wakanton THAT: IT IS ORDERED Plaintiffs-Appellants, nity, (1) rehearing is denied. for petition The rehearing en banc is for petition The denied. Defendant-Appellee. STATES, UNITED on will issue of the Court The mandate

No. 99-5083. 19, 2000. October Appeals, of Court Circuit DYK, Judge, with whom Circuit Circuit. Federal join, and PLAGER NEWMAN Judges denying Order dissenting 12, Oct. rehearing en banc. petition for important questions case raises “Indi and effect concerning the use a interpreting of construction an canon” deci federal statute. Whitney, Streitz, Dorsey & Mary J. of a recent decision conflicts with sion Minnesota, plain- for LLP, Minneapolis, of for Appeals of States United on the brief Of counsel tiffs-appellants. Nation v. See Chickasaw Tenth Circuit. & BlueDog, Olson BlueDog, Kurt Y. States, Cir. F.3d 871 United P.L.L.P., Minnesota. Minneapolis, of Small 2000). “The Tax Divi- Marshall, Attorney, here states: at issue F. The statute Charles Justice, Washing- Revenue Code Internal sion, Department 1441, 3402(q), him defendant-appellee. With DC, (including sections ton, for of such Argrett, As- C. were Loretta brief on the General; and with- Code) David En- Attorney sistant win- to the Carmack, Attorney. holding of glish wagering operations or nings from Buffalo, Jacobson, Schoessler, M. James Indian apply, shall Paul,. Ltd., of St. Magnuson, & Schoessler pursuant to conducted curiae, Sioux Minnesota, Lower for amici as such manner same Minnesota, et al. Community in (West Supp.2000). ref- held that ORDER chapter of chapter 35—the erence to DYK, whom Circuit Circuit imposes a join, and PLAGER NEWMAN Judges pull-tab wagers. exempts on — opinion. separate dissents Six, Inc. taxation. See games from 1361, 1366 States, F.3d v. United having en banc rehearing petition A However, this construc- (Fed.Cir.2000). response a Appellee, by been filed other reconciled cannot by the Court been invited having thereto applies language the matter Appellants, and filed aas referred first having been ap- heard panel that rehearing to a Chapter 35 is not winnings.” petition for and thereafter peal, provision. been having response hearing en banc finds opinion, it I read As authorized judges circuit referred ambiguity facial ap- rehear whether to poll request *2 1384 immediately

the conflict and resorts purpose, and history in Indian canon to resolve that ambiguity produce in order to an interpretation that However, view, favor of the tribe. in my makes the statute coherent. The choice should not have invoked the here is to accept the statute’s limitation to Indian canon of construction quickly. provisions so “concerning the reporting and Instead, it should have utilized all withholding available taxes with to ... statutory tools of construction before de- winnings,” thereby rendering superfluous claring ambiguous and resort- parenthetical reference to ing to a default rule designed excep- or to accept that the where, tional cases despite the court’s best 35 exempts taxation, from efforts, an ambiguity in the statute re- thereby contradicting the statute’s limita- mains. provisions tion to “concerning report- ing and withholding of I agree that making sense of 25 U.S.C. to ... winnings.” § here is not an easy task. De- spite government’s efforts, there is While rule is that meaning 2719(d)’s way § to reconcile literal limita- should be afforded to all language in a tion to statutory language inadvertently Code “concerning the reporting and with- included can be disregarded if it is found holding of taxes with respect to the win- contrary intent. See nings or wagering opera- Colon-Ortiz, United States v. 866 F.2d (1st tions” its Cir.1989); 10 American Radio Relay chapter 35. persuasive do not find League, FCC, Inc. v. 617 F.2d government’s argument (adopted by (D.C.Cir.1980); 2A Norman Singer, J. of Appeals for the Statutes Statutory Construction Circuit) Tenth 46.06, reference to chap- ed.2000) § pp. 192-93 (stating ter designed 35 was to incorporate that “words and clauses present which are § 4421’s wagers definitions of and lotter- only a statute through inadvertence can Nation, ies. See Chickasaw 208 F.3d at be disregarded if they repugnant are § example, found, what is indicia, on the basis of other chapter 35 itself explicitly states that intent”). to be Further of wagers definitions more, and lotteries apply against rule superfluity has lim purposes “for 35],” of [chapter 26 ited force when the alternative is to create § U.S.C. and its definitions are thus greater even problems. In Church irrelevant purposes of the other IRS, sec- Scientology 2719(d). tions of the Code (D.C.Cir.1986) (en referenced banc), aff'd I thus agree that confining 98 L.Ed.2d (now Justice) Scalia noted that the of taxes” does in court’s the Haskel fact render the statute’s reference chap- Amendment, which caused two ter 35 superfluous. See Little to become 210 F.3d at 1365. “nothing beside the textual ab produced” surdities by contrary interpre view, In my we are confronted with a tation. That situation seems similar to the situation in which it impossible to give case here. effect to all the language of the without rendering the statute First, self-contra- I cannot see how an erroneous dictory. However, this does not create an parenthetical supposed reference to a ex- ambiguity in the statute justifies im- ample trump can the clear limiting lan- mediate resort to a canon designed to guage adjacent to the parenthetical. Rather, solve ambiguities. a court Moreover, under government out, as the points such circumstances should examine the is unlikely Congress would create a linked report explicitly paren- panying through a exemption to taxa- with the bill’s reference exceeding- chapter 85 reference, it seems thetical provides It noted that “Section so tion. would do unlikely that ly provisions of the to that is restricted by its terms sentence *3 Code, 3402(q) and on win- such as section withholding of taxes Revenue U.S.C., taxation concerning nings. withholding of taxes reporting and adopt a construc- Second, a court should activi- operation gaming relating to the it coherent. makes of the statute gaming activities apply to tribal ties shall the statute interpretation of panel’s operated they apply as case, but particular resolve this may here 99-488, at 13 Rep. H.R. No. activities.” limitation of the it leaves the n (1986). concerning the ... (“provisions to -with proposed originally bill as The Senate Is the effect unresolved. winnings”) ... “tax- to to include the reference continued modify to somehow panel decision of the 20(D) (Feb. 100th Cong. ation.” S. it consistent to limitation make the 1987). However, in the version so, does If what examples? specific the ulti- reported out of Committee bill the mean? Or does limitation now the enacted, “taxation” to mately reference be- limitation opinion eliminate panel’s the commit- The fact that was removed. specific it is inconsistent cause time at the same added tee so, only would examples? If not “reporting and examples of both including rendering the limitation be “taxation” withholding” provisions making the effect of have also would but to a decision hardly evidences all examples substi- specific taxation have the “apply to Code exclusion. “taxation” tute manner as in the same examples were a substitute specific If the oper- wagering apply to State exclusions, can the how the general that Congress is claim There ations.” and withhold- “reporting retention of It is far easier result. intended legisla- explained? ing” language if the incon- out of the make sense guid- clear provides no history here tive examples are read out specific sistent provision language of the ance. The with the they conflict simple mistake of a the earmarks .all limitation. explana- The better drafting. history not Third, does chapter 35 is the reference to tion for panel. by the result rendered support inadvertent- included that it was therefore ultimately of the bill Early versions eliminate Congress had decided ly after Act Regulatory Gaming the Indian became “taxation.” (of part) (“IGRA”) panel’s anal- Fourth, disagree I wa- tribes from the exempted have would 2719(d). The §of purpose ysis of the H.R.1920, by the passed tax. gering stat- support further seeks “Provisions provided: IGRA, noting that purposes of as ed tribal eco- promote “to intended taxation IGRA amended, self-sufficiency.” development nomic pursu- of taxes reporting at or gambling of a operation ant me as strikes § 2702. oper- U.S.C. operation shall here. the result support open-ended Gaming too in accord with ations a set that a statute confers to The fact they apply as Act the same Regulatory mean that on tribes cannot H.R.1920, Cong. benefits 99th State beyond added). be extended statute should The accom- (emphasis § 4 additional past precedents. terms to benefits the Court’s See id. at 412- tribes. Despite S.Ct. 958. the existence of canon, the Indian the Court concluded that pur- find that the statute’s the evidence demonstrated that the reser- pose, history support all the conclusion vation had in fact been diminished by Con- 35 is gress, a result which led the dissent to Thus, superfluous. I think complain that the Court was purporting to places weight more on the canon of con- apply the Indian “ignores canon but [it] regarding resolving struction ambiguities practice.” Hagen, 510 U.S. at in favor of the Native Americans than that (Blackmun, J., S.Ct. 958 dissenting). The canon can bear. The Court has *4 panel’s approach appears to be incon- stated that the canon is not a license to Supreme sistent with the approach Court’s adopt a “contorted construction” of a stat- in Hagen. ute. South Carolina v. Catawba Indian Tribe, 498, 506, 476 U.S. 106 S.Ct. sure, To be fairness to our Native Amer- (1986) (citing 90 L.Ed.2d 490 various population ican quality been a in very cases noting that the canon is not license supply short during much history. of our intent). to disregard congressional Nor But we have not been assigned the task of can the canon properly be invoked to avoid redressing past wrongs by expanding the analysis traditional required for statu- scope of federal statutes. tory construction. For example, in Hagen reasons, the above Utah, stated respect- fully dissent from this Court’s refusal to L.Ed.2d 252 United States’ analyzed for re- whether had diminish- hearing en banc. ed a reservation. Although the Court rec- ognized that it any must “resolve ambigui- Indians,”

ties in favor of the id. at

S.Ct. it did not shrink applying usual tools of construction:’

the Court considered the language of the Acts, history, their con- evidence,

temporary historical