NAVAJO NATION; NORTHERN EDGE NAVAJO CASINO v. The Honorable BRADFORD J. DALLEY, District Judge, Eleventh Judicial District, New Mexico, in his official capacity; HAROLD MCNEAL; MICHELLE MCNEAL
No. 16-2205
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 24, 2018
PUBLISH
Elisabeth A. Shumaker Clerk of Court
NEW MEXICO TRIAL LAWYERS ASSOCIATION; PUEBLO OF SANTA ANA, Amici Curiae.
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:15-CV-00799-MV-KK)
Patrick T. Mason, Mason & Isaacson, P.A., Gallup, New Mexico, for Plaintiffs-Appellants.
Nicholas M. Sydow, Office of the New Mexico Attorney General, Santa Fe, New Mexico, for Defendant-Appellee Bradford J. Dalley.
Daniel M. Rosenfelt, Rios Law Firm, Albuquerque, New Mexico (Linda J. Rios, Rios Law Firm, Albuquerque, New Mexico, with him on the brief), for Defendants-Appellees Harold McNeal and Michelle McNeal.
Michael B. Browde, Albuquerque, New Mexico (David J. Stout, Albuquerque, New Mexico, with him on the brief), for Amicus Curiae New Mexico Trial Lawyers Association, in support of Defendants-Appellees.
Richard W. Hughes, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Santa Fe, New Mexico (Donna M. Connolly, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Santa Fe, New Mexico, with him on the brief), for Amicus Curiae Pueblo of Santa Ana, in support of Plaintiffs-Appellants.
Before HOLMES, PHILLIPS, and MORITZ, Circuit Judges.
The Appellants, the Navajo Nation and its wholly-owned government enterprise the Northern Edge Navajo Casino (together, the “Tribe” or “Nation“), entered into a state-tribal gaming compact with New Mexico under the Indian Gaming Regulatory Act (“IGRA“),
The Tribe moved to dismiss the McNeals’ complaint, arguing that the state court lacked jurisdiction because neither IGRA nor Navajo law permits the shifting of jurisdiction to a state court over such personal-injury claims. The state court rejected that motion. In response, the Tribe sought declaratory relief in federal court on the basis of the same arguments. The district court granted summary judgment for the McNeals and Judge Dalley, holding that IGRA permitted tribes and states to agree to shift jurisdiction to the state courts and that Navajo law did not prohibit such an allocation of jurisdiction. The Tribe timely appealed. Prior to oral argument, we ordered the parties to submit supplemental briefs as to whether the district court had jurisdiction.
Along with the jurisdictional issue, the parties also dispute (1) whether IGRA permits an Indian tribe to allocate jurisdiction over a tort claim arising on Indian land to a state court, and (2) assuming that IGRA does allow for such an allocation, whether the Navajo Nation Council (“NNC“) was empowered to shift jurisdiction to the state court under Navajo Law.
After first concluding that we have jurisdiction to hear this appeal, we determine that IGRA, under its plain terms, does not authorize an allocation of jurisdiction over tort claims of the kind at issue here. Accordingly, we reverse the judgment of the district court and remand with instructions to grant the declaratory relief sought by the Nation.
I
A
In 1987, the Supreme Court decided California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), in which it held that states could not regulate gaming activities on Indian land without Congressional authorization. Id. at 207 (rejecting California‘s attempted regulation of bingo and some card games), superseded by statute, Indian Gaming Regulatory Act,
Under IGRA, tribes that seek to conduct gaming activities are incentivized to negotiate gaming compacts with states because, absent such compacts, the most “lucrative” form of gaming—Class III gaming—is forbidden. N.M./DOI, 854 F.3d at 1212 (“The present case concerns Class III gaming, which includes the most lucrative forms of gaming.“); see
Importantly, IGRA expressly prescribes the matters that are permissible subjects
B
The present dispute has its genesis in a slip-and-fall case that the McNeals brought in New Mexico state court. Mr. McNeal allegedly fell on a wet bathroom floor in the Navajo Northern Edge Casino. He and his wife sued the Nation, which owns and operates the casino, claiming negligent maintenance, res ipsa loquitur, and loss of consortium. In a motion to dismiss, the Tribe argued that the state court lacked subject-matter jurisdiction for two reasons. First, it contended that this was so because IGRA does not authorize states and tribes to enter into compacts that shift jurisdiction over tort claims stemming from events on Indian country to state court—viz., IGRA does not contemplate that the shifting of jurisdiction over such claims is a permissible subject of compact negotiations. Second, it argued that NNC was not authorized to shift jurisdiction over tort claims against the Nation,
The state court denied the Tribe‘s motion to dismiss on the basis that the New Mexico Supreme Court, in Doe v. Santa Clara Pueblo, had already decided the issue. 154 P.3d 644, 646 (N.M. 2007) (“We now . . . hold[] that state courts have jurisdiction over personal injury actions filed against [the tribes] arising from negligent acts alleged against casinos owned and operated by the [tribes] and occurring on the [tribes‘] lands.“). Subsequently, Judge Dalley took over the state court case.
The Tribe then brought this suit for a declaratory judgment in the U.S. District Court for the District of New Mexico. The Tribe sought a declaratory judgment “that [the] Indian Gaming Regulatory Act does not permit the shifting of jurisdiction from tribal courts to state courts over personal injury lawsuits brought against tribes or tribal gaming enterprises, and that the New Mexico state courts do not have jurisdiction over lawsuits such as the McNeal Lawsuit.” Aplt.‘s App. at 11–12. (Am. Compl., dated Sept. 21, 2015).
The Tribe moved for summary judgment, and the district court denied relief. The court first addressed whether the Nation inherently had the authority to permit state court jurisdiction over claims arising in Indian country, and held that it did. It then concluded that NNC was authorized under Navajo law to shift jurisdiction over tort claims against the Nation, like those of the McNeals, to state court. Lastly, the court addressed the IGRA question, holding that IGRA authorized such shifting of jurisdiction as to personal-injury tort claims either under
II
We first address our jurisdiction. Because federal courts have limited subject-matter jurisdiction, “we ‘may only hear cases when empowered to do so by the Constitution or by act of Congress.‘” Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir. 2015) (quoting Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1225 (10th Cir. 2004)). “[W]e always have an independent obligation—no matter the stage of litigation—to consider whether a case creates a live case or controversy and belongs in federal court.” Id.; accord Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). We review de novo whether subject-matter jurisdiction is proper. See, e.g., Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006); Austl. Gold, Inc. v. Hatfield, 436 F.3d 1228, 1234 (10th Cir. 2006).
Consistent with our independent obligation, we ordered the parties to submit briefing regarding, inter alia, whether, under
Specifically, in Lawrence, a non-Indian brought a breach-of-contract claim against the Ute Indian tribe in Utah state court. Seeking to halt the state proceeding, the Tribe filed suit in federal district court
In reaching that conclusion, the panel first analyzed the “long history of federal law regarding Indian affairs,” id. at 541, and observed both that “federal law regulates a tribe‘s right to exercise jurisdiction over non-Indians,” id. at 542, and “that state adjudicative authority over Indians for on-reservation conduct is greatly limited by federal law,” id. From those principles, we determined that “federal courts generally have jurisdiction to enjoin the exercise of state regulatory authority (which includes judicial action) contrary to federal law,” id. at 543, and reasoned that the tribe‘s suit arose under federal law because it was “seeking injunctive and declaratory relief against state regulation (the state-court proceeding) that it claims is preempted by federal law,” id. at 547.
Lawrence‘s analysis is directly applicable here: the Nation here seeks declaratory relief under federal law against state regulation, viz., the state-court proceeding, claiming that federal law preempts it. As such, we properly exercise jurisdiction over this appeal under
III
Proceeding to the merits, this appeal presents two issues, one of federal law and one of Navajo law. First, the Nation asserts that the district court erred in concluding that IGRA authorizes an Indian tribe to allocate jurisdiction over a tort claim arising on Indian land to a state court. Second, even assuming that IGRA does allow for such an allocation, the Nation submits that the NNC was not empowered to shift jurisdiction to the state court as a matter of Navajo law. Because we decide the first issue in the Nation‘s favor, we need not reach the question of Navajo law.
A
It is axiomatic that absent clear congressional authorization, state courts lack jurisdiction to hear cases against Native Americans arising from conduct in Indian country. See, e.g., Williams v. Lee, 358 U.S. 217, 223 (1959) (“There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent [i.e., plaintiff] is not an Indian . . . If this power [of Indian governments over their territory] is to be taken away from them, it is for Congress to do it.“); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987) (“If state-court jurisdiction over Indians or activities on Indian lands would interfere with tribal sovereignty and self-government, the state courts are generally divested of jurisdiction as a matter of federal law.“); accord COHEN‘S HANDBOOK, supra, § 7.03[1][a][ii], at 608. It is also a well-settled principle that “Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights.” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998); accord Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); United States v. Shavanaux, 647 F.3d 993, 997 (10th Cir. 2011).
Consequently, congressional approval is necessary—i.e., it is a threshold requirement that must be met—before states and tribes can arrive at an agreement altering the scope of a state court‘s jurisdiction over matters that occur on Indian land. See Kennerly v. Dist. Court of Ninth Judicial Dist. of Mont., 400 U.S. 423, 427 (1971) (per curiam) (holding that the “unilateral action of the Tribal Council was insufficient to vest” the state courts with jurisdiction over a civil suit against an Indian defendant stemming from a transaction occurring on tribal land because Congress did not expressly authorize such tribal-council consent as a means for states to take jurisdiction); Fisher v. Dist. Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 388 (1976) (per curiam) (holding that Montana courts could not exercise jurisdiction over adoption proceedings involving Indians on Indian land because “[n]o federal statute sanction[ed] this interference with tribal self-government“); COHEN‘S HANDBOOK, supra, § 7.07[4], at 673 (“Because of federal supremacy over Indian affairs, tribes and states may not make agreements altering the scope of their jurisdiction in Indian country absent congressional consent.“); cf. Bay Mills, 134 S. Ct. at 2032 (noting that “[u]nless Congress has authorized [the present] suit, [Supreme Court] precedents demand that it be dismissed“).
Congress has “authorized” the tribes and states to make such jurisdiction-altering agreements “in only a few specific circumstances“; the area of tribal-state gaming compacts represents one such circumstance. COHEN‘S HANDBOOK, supra, § 7.07[4], at 673 & n.92; see Bay Mills, 134 S. Ct. at 2032 (acknowledging that IGRA “partially abrogate[d] tribal sovereign immunity“).
All of that background leads us to the question presented: whether IGRA authorizes tribes to enter into gaming compacts with states that allocate jurisdiction to state courts with respect to state-law tort claims like the McNeals‘. For the reasons that follow, we conclude it does not.4
As noted, “IGRA authorizes states and Indian nations to enter into compacts associated with the operation of certain forms of tribal gaming known as Class III gaming.” COHEN‘S HANDBOOK, supra, § 6.04[3][d][iii], at 569. Specifically, subparagraph (A) of
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.
Then subparagraph (C) of this same section provides:
Any Tribal-State compact negotiated under subparagraph (A) 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.
The district court held that a compact could be used to shift jurisdiction to state courts for tort claims stemming from conduct in an on-reservation gaming facility based on either clauses (i) and (ii), when read together; or clause (vii). See Aplt.‘s App. at 191–97. No party suggests any other basis under IGRA for shifting jurisdiction over tort claims. Reviewing the district court‘s statutory interpretation de novo, see United States v. Porter, 745 F.3d 1035, 1040 (10th Cir. 2014); United States v. Willis, 476 F.3d 1121, 1124 (10th Cir. 2007), we address each theory in turn.
B
1
The Nation first contends that the district court erred in concluding that IGRA authorizes an Indian tribe to shift jurisdiction to state courts over tort claims stemming from conduct on Indian casino property based on clauses (i) and (ii) of subparagraph (C) of
The McNeals acknowledge that the language “gaming activity” in IGRA “refers to gambling, something that typically takes place in a casino,” and more specifically Class III gaming, but stress that “[c]asinos house not only games of chance, but they are also entertainment venues where visitors come not only to gamble but also to eat and drink, and where like [Mr. McNeal], they may use the restroom.” McNeal Aplees.’ Br. at 20. Therefore, the McNeals reason that it is “unrealistic” to interpret IGRA‘s authorization for compacting regarding the application of state civil laws relating to the regulation of Class III gaming—i.e., to “such activity,”
The Nation counters that personal-injury claims sounding in tort do not involve civil laws “directly related to, and necessary for,” the regulation of Class III gaming activities,
At bottom, the parties’ dispute relates to the scope of the term “class III gaming activity.” In Bay Mills, the Supreme Court construed “class III gaming activity” to mean “just what it sounds like—the stuff involved in playing class III games,” and in doing so, expressly interpreted
The Court‘s analysis in Bay Mills leads us to the clear conclusion that Class III gaming activity relates only to activities actually involved in the playing of the game, and not activities occurring in proximity to, but not inextricably intertwined with, the betting of chips, the folding of a hand, or suchlike. See Harris v. Lake of Torches Resort & Casino, 862 N.W. 2d 903, 2015 WL 1014778, at *5 (Wis. Ct. App. Mar. 10, 2015) (per curiam) (unpublished) (“Applying th[e Bay Mills] definition, Harris—who was injured while working as a cook at a restaurant located in a casino—was not injured in connection with a class III gaming activity.“); see also California v. Iipay Nation of Santa Ysabel, No. 314CV02724AJBNLS, 2016 WL 10650810, at *11 (S.D. Cal. Dec. 12, 2016) (unpublished) (“[T]he gaming activity is not the software-generated algorithms or the passive observation of the proxy monitors. Rather, it is the patrons’ act of selecting the denomination to be wagered, the number of games to be played, and the number of cards to play per game.“). And, even assuming that tort law is a form of “regulation” of “the operation of gaming activities,” as the district court correctly observed, see Aplt.‘s App. at 192, actions arising in tort in circumstances similar to this one are not “directly related to, and necessary for, the licensing and regulation of such activity,”
individuals are not participating in
This conclusion is ineluctable when the plain statutory text is viewed through the prism of Bay Mills. See United States v. Nichols, 184 F.3d 1169, 1171 (10th Cir. 1999) (“[W]here a statute is clear on its face, we give its words literal effect.“); cf. Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 3 (2012) (“In an age when democratically prescribed texts (such as statutes, ordinances, and regulations) are the rule, the judge‘s principal function is to give those texts their fair meaning.“). Accordingly, IGRA, in clause (i), does not authorize compacting regarding the application of state tort law under the circumstances here.6
(...continued) immunity protects Bay Mills from this legal action.“). This argument, however, does not move the ball for them because we are bound to follow both the holding and the reasoning, even if dicta, of the Supreme Court. See Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (“Moreover, even if the Court‘s rejection of the reasonable apprehension test could be plausibly characterized as dicta, our job as a federal appellate court is to follow the Supreme Court‘s directions, not pick and choose among them as if ordering from a menu.“); Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“While these statements are dicta, this court considers itself bound by Supreme Court dicta almost as firmly as by the Court‘s outright holdings, particularly when the dicta is recent and not enfeebled by later statements.“). And, as discussed, the Supreme Court‘s explicit interpretation of clause (i) inexorably leads to our present conclusion.
The Appellees also present a third argument. Specifically, they observe that this case involves the interpretation of provisions that enhance tribal sovereign immunity, i.e., permit the Nation to use its jurisdiction as a bargaining chip, whereas the provisions at issue in Bay Mills abrogated tribal sovereignty; consequently, they reason that we should read the provisions here more broadly than the Bay Mills Court did because of the differing effects the constructions have on Indian sovereignty interests. See McNeal Aplees.’ Br. at 21-22; J. Dalley‘s Br. at 26-27 (“Here, the state courts’ interpretation of the IGRA as permitting jurisdiction promotes, and does not diminish, tribal self-determination.“). This argument, at base, suggests that Congress must have intended the courts to construe IGRA in a broader sense in circumstances when the effect of the construction will be to enhance tribal sovereignty. The Appellees cite limited authority in support of their argument, but the authority they do cite indicates that they are relying on the well-established Indian canon of statutory interpretation—that is, the canon that provides that “statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Bryan v. Itasca Cty., Minn., 426 U.S. 373, 392 (1976) (quoting Alaska Pac. Fisheries Co. v. U.S., 248 U.S. 78, 89 (1918)); accord N.L.R.B. v. Pueblo of San Juan, 276 F.3d 1186, 1191 (10th Cir. 2002). The Tribe relies on this canon too, but contends that it militates in favor of a conclusion that IGRA does not authorize the allocation of jurisdiction to state courts. As noted in footnote 11, infra, we eschew reliance on this canon because it typically plays a significant role only when the statute is ambiguous, and we have concluded that the IGRA provisions at issue are not ambiguous. See (continued...)
We acknowledge that, in thoughtful decisions, the New Mexico Supreme Court in Doe and the district court here came to contrary conclusions. In particular, the New Mexico Supreme Court concluded that “[t]ort suits are . . . related to gaming activity in helping ensure that gaming patrons are not exposed to unwarranted dangers, something that inures to the benefit of the Tribes.” 154 P.3d at 655. In support of its position, the Doe court relied on the rationale that Congress “could rationally conclude that tribes ought not to be foreclosed from negotiating such provisions perceived to be in their own interest, and as ‘directly related to, and necessary for, the licensing and regulation’ of gaming.” Id. The
district court also arrived at a similar conclusion: “Because tort claims alleged against Indian gaming facilities are ‘directly related to’ the regulation of tortious conduct arising out of Indian gaming, jurisdictional issues arising from such tort claims may be the subject of negotiation for a tribal-state compact.” Aplt.‘s App. at 193.
While we are comfortable assuming that tort, and more specifically personal-injury lawsuits, constitute a type of regulation, we are unable to discern how applying this form of regulation to a slip-and-fall event, like Mr. McNeal‘s, is “directly related to, and necessary for the licensing and regulation,”
In discerning whether IGRA authorizes tribes to allocate jurisdiction regarding tort claims like the McNeals’ to state courts, we also look to the text of clause (ii) of subparagraph (C). See King v. St. Vincent‘s Hosp., 502 U.S. 215, 221 (1991) (noting “the cardinal rule that a statute is to be read as a whole“); accord Massachusetts v. Morash, 490 U.S. 107, 115 (1989). Clause (ii) is entirely congruent with, and strongly reinforces, our view of the limitations of IGRA‘s authorization of jurisdictional allocations. Notably, this is the only clause in subparagraph (C) that explicitly authorizes tribes to allocate jurisdiction to the states. Specifically, recall that, by its terms, it provides for “the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations.” See
It necessarily follows that the allocation of civil jurisdiction referenced in clause (ii) pertains solely to the allocation that is “necessary for the enforcement of the laws and regulations,”
Appellees present two principal counterarguments, but neither is persuasive. First, they contend that IGRA‘s legislative history supports the conclusion that the statute was created with the intent of permitting tribes to allocate their jurisdiction when they deemed it in their favor to do so. See McNeal Aplees.’ Br. at 9-13; J. Dalley‘s Br. at 19-23. However, we need not consider legislative history where, as here, we find the statutory language unambiguous.8 See Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012) (“[R]eliance on legislative history is unnecessary in light of the statute‘s unambiguous language.” (quoting Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 236 n.3 (2010))); accord United States v. Woods, 571 U.S. 31, 46 n.5 (2013) (“Whether or not legislative history is ever relevant, it need not be consulted when, as here, the statutory text is unambiguous.“); United States v. Hunt, 456 F.3d 1255, 1268 (10th Cir. 2006) (“We recognize that it is not necessary to resort to legislative history when statutory language is unambiguous.“). Moreover, had Congress wanted to permit tribes to allocate jurisdiction in such cases, it could have crafted language to effectuate this purpose, but it did not do so. See Pueblo of Santa Ana v. Nash, 972 F. Supp. 2d 1254, 1265 (D.N.M. 2013) (declining to look for guidance in IGRA‘s legislative history and “opt[ing] instead to rely on the clear statutory structure of IGRA,” and noting in this regard that Congress could have “worded subparagraph (ii) in a way that obviously or necessarily included a shifting of jurisdiction over such claims [i.e., tort claims involving serving alcohol to intoxicated persons],” but it did not do so); cf. Bay Mills, 134 S. Ct. at 2033-34 (“[T]his Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address. Truth be told, such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts—addressing one thing without examining all others that might merit comparable treatment.“).
Appellee‘s second argument is one that we considered and rejected in our independent assessment of the meaning of clause (i)—that is, the argument that tort law is “directly related to, and necessary for, the licensing and regulation of” gaming activity, within the meaning of clause (i).
***
In sum, we conclude that clauses (i) and (ii), by their plain meaning, do not authorize tribes to allocate during the compacting process jurisdiction to state courts for tort claims such as the McNeals’ arising on Indian land. We therefore turn to the second question of whether clause (vii)‘s catch-all provision permits tribal-state compacts to serve as vehicles for shifting civil jurisdiction over such tort claims.
1
The Nation next challenges the district court‘s alternative holding that even if the first two clauses of
Given that we must “presume that [Congress] says in a statute what it means and means in the statute what it says there,” Conn. Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (collecting cases); accord Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985), it is significant that the subject of jurisdictional allocation is only mentioned in clause (ii). As the Nation puts it, “there is no language in that section [i.e., clause (vii)] that pertains to the allocation of jurisdiction between the tribe and the state.” Aplt.‘s Reply Br. at 12 (emphasis omitted). This omission provides a significant clue that Congress did not contemplate that this provision would cover the topic of the allocation of jurisdiction over civil lawsuits between states and tribes. Although the Appellees argue that the legislative history points to a different result, this omission militates in favor of a conclusion that our “judicial inquiry into the applicability of [clause (vii)] begins and ends with what [clause (ii)] does say and with what [clause (vii)] does not.” Germain, 503 U.S. at 254; United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“The task of resolving the dispute over the meaning of
To be sure, clause (vii) functions as a catch-all provision, and, consequently, Congress expressed its scope in broad terms, to encompass “any other subjects that are directly related to the operation of gaming activities,”
Nor could one persuasively argue that the term “other” in clause (vii) authorizes the allocation of jurisdiction with respect to subjects other than those covered by the jurisdictional-allocation language of clause (ii). In our view, a well-established canon of statutory construction—the negative-implication canon (i.e., the canon expressio unius est exclusio alterius) would fatally undercut such an argument. That canon provides that the “expressi[on] [of] one item of [an] associated group or series excludes another left unmentioned.” N.L.R.B. v. SW Gen., Inc., — U.S. —-, 137 S. Ct. 929, 940 (2017) (quoting Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002)). In other words, “[t]he notion is one of negative implication: the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” Seneca-Cayuga Tribe of Okla. v. Nat‘l Indian Gaming Comm‘n, 327 F.3d 1019, 1034 & n.24 (10th Cir. 2003) (quoting William N. Eskridge, et al., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 947 (3d
Here, clause (ii) is the only clause in subsection (C) that expressly addresses the allocation of jurisdiction between states and tribes. And, as our reasoning in Part III.B.1, supra, demonstrates, it does so in specific terms—albeit by cross-reference—to clause (i). That is, by its use of the language “such laws and regulations,” clause (ii) expressly refers back to the “laws and regulations” of clause (i)—which are “directly related to, and necessary for, the licensing and regulation of” the playing of Class III games,
Therefore, clause (ii)‘s specific textual expression (by cross-reference) of matters covered by its jurisdictional allocation reasonably indicates that Congress did not envision that any distinct subjects—such as tort claims arising from a casino‘s failure to safely maintain floors in its restrooms—would provide the grounds for a jurisdictional allocation. See Halverson v. Slater, 129 F.3d 180, 186 & n.8 (D.C. Cir. 1997) (applying the negative-implication canon to hold that a statute that specifically “delineates the class of permissible delegatees as officers, employees and members of the Coast Guard” was “intended to exclude delegation to non-Coast Guard officials” under another, general delegation statute, even though the former statute “did not expressly prohibit delegation of” the “powers and duties [at issue] to a non-Coast Guard official” and did not explicitly use the term “only” in listing the class of delegatees); see also United States v. Giordano, 416 U.S. 505, 514 (1974) (tacitly applying the logic of the negative-implication canon in concluding that, though the statute at issue did not use “[e]qually precise language forbidding delegation” as those which delegated duties only to certain officials, its language “fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate,” and another statute that generally authorized the Attorney General to delegate his or her duties to agency employees did not permit further delegation of the power to authorize wiretap applications); Scalia & Garner, supra, at 107 (“The doctrine properly applies only when the unius (or technically, unum, the thing specified) can reasonably be thought to be an expression of all that shares in the grant or prohibition involved.“); id. at 108 (noting that “[t]he more specific the enumeration, the greater the force of the canon“); id. at 111 (discussing Giordano in the context of noting that “the negative-implication canon is so intuitive that courts often apply it correctly without calling it by name“). Thus, we do not believe that the term “other” in clause (vii) authorizes the allocation of jurisdiction with respect to subjects other than those covered by the jurisdictional-allocation language of clause (ii). Cf. Scalia & Garner, supra, at 167 (“Context is a primary determinant of meaning. A legal instrument typically contains many interrelated parts that make up the whole. The entirety of the document
Lastly, our conclusion is independently and distinctly bolstered by our “preference for avoiding surplusage constructions.” King v. Burwell, — U.S. —-, 135 S. Ct. 2480, 2483 (2015) (quoting Lamie v. United States Trustee, 540 U.S. 526, 536 (2004)); Duncan v. Walker, 533 U.S. 167, 174 (2001) (declining to “adopt respondent‘s construction of the statute” because it would render a word in the statute “insignificant, if not wholly superfluous“). More specifically, “[t]he canon against surplusage indicates that we generally must give effect to all statutory provisions, so that no part will be inoperative or superfluous—each phrase must have distinct meaning.” Chevron Mining Inc. v. United States, 863 F.3d 1261, 1283 n.15 (10th Cir. 2017); see Scalia & Garner, supra, at 174 (“If possible, every word and every provision is to be given effect . . . . None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” (emphasis omitted)). Yet, if we were to adopt an expansive reading of clause (vii), in which jurisdiction may be allocated for “any . . . subjects that are directly related to the operation of gaming activities,”
Put more finely, such a reading would wholly swallow clause (ii)‘s specific and narrow allowance for jurisdictional allocations that are “necessary for the enforcement of the laws and regulations,”
Put another way, if clause (vii)‘s language were read to allow for compacts to allocate jurisdiction with respect to any
2
The Appellees present three counterarguments; none lands with any force. First, Appellees, again citing to the statute‘s legislative history, contend that the catch-all section (i.e., clause (vii)) should be read broadly, consistent with their understanding of Congress‘s intent. See McNeal Aplees.’ Br. at 9-13; J. Dalley‘s Br. at 16-23. This argument can gain no traction here, however, in light of our conclusion that the statute is unambiguous. Because it is so, we have no need (much less an inclination) to “resort” to the statute‘s legislative history. Public Lands Council v. Babbitt, 167 F.3d 1287, 1306 (10th Cir. 1999) (“Courts should not resort to legislative history in order to ascertain Congress‘s intent when the plain language of the statute is unambiguous.“); see Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986) (“When the meaning of the statute is clear, it is both unnecessary and improper to resort to legislative history to divine congressional intent.“).
Second, the McNeals rely on the Ninth Circuit‘s opinion in In re Indian Gaming Related Cases, 331 F.3d 1094 (9th Cir. 2003), for the proposition that clause (vii) must be read broadly to provide state residents protection from injury while they are at the casinos. See McNeal Aplees.’ Br. at 15-16. This argument is unconvincing. First of all, it goes without saying that the Ninth Circuit‘s construction of IGRA is not binding on us. Furthermore, the Ninth Circuit‘s pertinent holding in that case—viz., that labor issues were “directly related to the operation of gaming activities” under clause (vii), In re Indian Gaming, 331 F.3d at 1115-16—does not speak to the essential question before us: whether Congress intended clause (vii)‘s broad and general language to authorize tribes and states to compact regarding the allocation of jurisdiction over tort claims like the McNeals‘. Lastly, insofar as In re Indian Gaming informs our resolution of that question, it actually undercuts the McNeals’ position. The latter two points would benefit from a little more discussion.
Specifically, in analyzing and ultimately distinguishing In re Indian Gaming, we accept, without definitively opining on the matter, the proposition that labor issues fall within the broad scope of clause (vii)‘s “operation of gaming activities,” even when the term “gaming activities” is viewed through the prism of Bay Mills, to mean the actual playing of Class III games. See Bay Mills, 134 S. Ct. at 2032 (emphasis added) (defining “gaming activity” as “what goes on in a casino—[that is,] each roll of the dice and spin of the wheel“); Bryan H. Wildenthal, Federal Labor Law, Indian Sovereignty, and the Canons of Construction, 86 OR. L. REV. 413, 429-30 (2007) (Noting that many state-tribal compacts “address[ed] the issue of labor relations” pursuant to IGRA and that “it was anticipated by language in IGRA in which Congress—while not expressly
Furthermore, to the extent that the inclusion of labor-relations issues within the ambit of clause (vii) offers clues regarding the resolution of the question before us, they do not avail the McNeals. Specifically, assuming that labor-relations issues “directly relate[] to the operation of gaming activities,”
Third, and lastly, Judge Dalley contends that the reading of
First of all, Judge Dalley‘s brief fails to offer us much by the way of reasoning to explain the basis for his parade of horribles, relying instead on conclusory statements. See id. (“None of these provisions is likely sufficiently ‘directly related to’ ‘gaming activities’ under the Navajo Nation and Pueblo of Santa Ana‘s interpretations of the IGRA to survive scrutiny.“). Second, at least in the absence of such reasoning, we are hard-pressed to see how the reading of the statutory language “directly related to . . . gaming activities,”
In all events, our main concern here ultimately must be the faithful and true interpretation of IGRA‘s plain terms, not the ostensible collateral effects of our interpretation on existing compact provisions; generally, this is true at least so long as our interpretation would not yield absurd results, and it patently would not do so, nor does Judge Dalley argue to this effect. See, e.g., Sebelius v. Cloer, 569 U.S. 369, 381 (2013) (“We reiterate that ‘when [a] statute‘s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.‘” (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, (2000))). Thus, we reject Judge Dalley‘s argument as well.
***
In sum, we hold that clause (vii) of IGRA does not authorize tribes to allocate to states jurisdiction over tort claims like the McNeals‘, based on our interpretation of the clause‘s plain language, in the context of the other clauses of subparagraph (C) of
IV
In light of the above, we conclude that IGRA, under its plain terms, does not authorize tribes to allocate to states jurisdiction over tort claims like those brought by the McNeals here.11 Stated differently, the Appellees have failed to clear a threshold hurdle: they have not established that IGRA authorizes the allocation of jurisdiction to state courts for these tort claims. As such, we REVERSE the district court‘s judgment and REMAND with instructions to grant the Nation‘s request for declaratory relief.
Notes
Aplt.‘s App. at 26–27.SECTION 8. Protection of Visitors.
A. Policy Concerning Protection of Visitors. The safety and protection of visitors to a Gaming Facility is a priority of the Nation, and it is the purpose of this Section to assure that any such persons who suffer bodily injury or property damage proximately caused by the conduct of the Gaming Enterprise have an effective remedy for obtaining fair and just compensation. To that end, in this Section, and subject to its terms, the Nation agrees to carry insurance that covers such injury or loss, agrees to a limited waiver of its immunity from suit, and agrees to proceed either in binding arbitration proceedings or in a court of competent jurisdiction, at the visitor‘s election, with respect to claims for bodily injury or property damage proximately caused by the conduct of the Gaming Enterprise. For purposes of this Section, any such claim may be brought in state district court, including claims arising on tribal land, unless it is finally determined by a state or federal court that IGRA does not permit the shifting of jurisdiction over visitors’ personal injury suits to state court.
. . . .
D. Specific Waiver of Immunity and Choice of Law. The Nation, by entering into this Compact and agreeing to the provisions of this Section, waives its defense of sovereign immunity in connection with any claims for compensatory damages for bodily injury or property damage up to the amount of fifty million dollars ($50,000,000) per occurrence asserted as provided in this Section. This is a limited waiver and does not waive the Nation‘s immunity from suit for any other purpose. The Nation shall ensure that a policy of insurance that it acquires to fulfill the requirements of this Section shall include a provision under which the insurer agrees not to assert the defense of sovereign immunity on behalf of the insured, up to the limits of liability set forth in this Paragraph. The Nation agrees that in any claim brought under the provisions of this Section, New Mexico law shall govern the substantive rights of the claimant, and shall be applied, as applicable, by the forum in which the claim is heard, except that the tribal court may but shall not be required to apply New Mexico law to a claim brought by a member of the Nation.