RUMSEY INDIAN RANCHERIA OF WINTUN INDIANS; Table Mountain
Rаncheria; Cher-Ae Heights Indian Community of the Trinidad
Rancheria; San Manual Band of Mission Indians, Viejas
Reservation of the Capitan Grande Band of Diegueno
Mission Indians and Hopland Band of Pomo Indians; Barona
Band of Mission Indians; Sycuan Band of Mission Indians;
Agua Caliente Band of Cahuilla Indians, Plaintiffs-Appellees,
v.
Pete WILSON, Governor; State of California, Defendants-Appellants.
RUMSEY INDIAN RANCHERIA OF WINTUN INDIANS; Table Mountain
Rancheria; Cher-Ae Heights Indian Community of the Trinidad
Rancheria; San Manual Band of Mission Indians, Viejas
Reservation of the Captain Grande Band of Diegueno Mission
Indians and Hopland Band of Pomo Indians; Wintun Indians;
San Manual Band of Mission Indians; Cabazon Band of Mission
Indians; The Santa Ynez Band of Chumash Mission Indians of
the Santa Ysabel Reservation, California; Viejas
Reservation of the Capitan Grande Band of Diegueno Mission
Indians; San Manual Band of Mission Indians; The Hopland
Band of Pomo Indians; The Sycuan Band of Mission Indians;
The Morongo Band of Mission Indians; The Santa Rosa Band of
Tache Indians; The Cachil Dehe Band of Wintun Indians of
the Colusa Indian Community; The Soboba Band of Cahuilla
Mission Indians; The Robinson Band of Pomo Indians; The
Agua Caliente Band of Cahuilla Indians; and The Barona
Group of the Capitan Grande Band of Mission Indians,
Plaintiffs-Appellees-Cross-Appellants,
v.
Pete WILSON, Governor; State of California,
Defendants-Appellants-Cross-Appellees.
Nos. 93-16609, 93-16745.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 10, 1994.
Decided Nov. 15, 1994.
Howard L. Dickstein, Dickstein & Merin, Sacramento, CA, Art Bunce, Escondido, CA, George Forman, Alexander & Karshmer, Berkеley, CA, for plaintiffs-appellees-cross-appellants.
Manuel M. Medeiros, Deputy Atty. Gen., Sacramento, CA, for defendants-appellants-cross-appellees.
Appeals from the United States District Court for the Eastern District of California.
Before: WALLACE, Chief Judge; O'SCANNLAIN, Circuit Judge; KELLEHER,* District Judge.
Opinion by Judge O'SCANNLAIN; Concurrence by Chief Judge WALLACE.
O'SCANNLAIN, Circuit Judge:
We decide whether certain gaming activities are permitted under California lаw and thus subject to tribal-state negotiation under the Indian Gaming Regulatory Act.
* Numerous federally recognized Indian tribes currently engage in various gaming activities on tribal lands in California. Desiring to engage in additional activities (the "Proposed Gaming Activities"), several tribes asked the State of California (the "State") to negotiate a compact permitting the operation of certain stand-alone electronic gaming devices1 and live banking and percentage card games.2 The State refused to negotiate with the tribes, asserting that the Proposed Gaming Activities were illegal under California law.
The State and seven tribes subsequently entered into a stipulation to seek judicial determination of whether the State was obligated to negotiate with the tribes. These tribes filed a complaint for declaratory judgment with the district court under the Indian Gaming Regulatory Act ("IGRA"), 25 Secs. U.S.C. 2701-2721. Four other complaints, filed by different Indian tribes, were consolidated with this action (plaintiffs collectively referred to as the "Tribes").
The parties filed cross-motions for summary judgment. The district court awarded summary judgment to the Tribes, finding that, except for banking and percentage card games using traditional casino game themes, the Proposed Gaming Activities were a proper subject of negotiation. The State timely appealed, and the Tribes filed a cross-appeal.
II
Enacted in 1988 as means of "promoting tribal economic development, self-sufficiency, and strong tribal governments," 25 U.S.C. Sec. 2702(1), IGRA creates a framework for Indian tribes to conduct gaming activities on tribal lands. IGRA divides gaming into three classes. Spokane Tribe of Indians v. Washington,
A tribe seeking to operate Class III gaming activities on tribal lands may do so only under a compact. A tribe initiates the сompacting process by asking a state to engage in negotiations. 25 U.S.C. Sec. 2710(d)(3)(A). IGRA obligates the state to negotiate in good faith with the tribe; and, if the parties reach agreement, they sign a Tribal-State compact. Id. at Sec. 2710(d)(3)(A)-(B).
If a state refuses to negotiate in good faith, the tribe can bring a civil suit, whereupon a federal district court may order the state and tribe to conclude a compact within 60 days. Id. at Sec. 2710(d)(7)(A)-(B). If a compact is not reached within that period, the tribe and the state must submit their last best offers to a court-appointed mediator, who selects one of the offers as the compact. Id. at Sec. 2710(d)(7)(B)(iv). The state then has 60 days to decide whether to consent to the compact. Id. at Sec. 2710(d)(7)(B)(vi). If the state does not approve the cоmpact, the Secretary of the Interior may prescribe regulations for Class III gaming on tribal lands. Id. at Sec. 2710(d)(7)(B)(vii)(II); Spokane,
In the instant case, the State opted not to negotiate over the Proposed Gaming Activities. The State asserts two reasons why it need not negotiate with the Tribes. The first reason is that the Act itself does not require negotiation. The second reason is that the Act violates the Tenth Amendment. Because the first reason persuades us, we do not reach the second.
The State contends that IGRA does not obligate it to negotiate with the Tribes over the Proposed Gaming Activities. IGRA provides that "Class III gaming activities shall be lawful on Indian lands only if such activities are ... located in a State that permits such gaming for any purpose by any person, organization, or еntity...." 25 U.S.C. Sec. 2710(d)(1)(B) (emphasis added). Consequently, where a state does not "permit" gaming activities sought by a tribe, the tribe has no right to engage in these activities, and the state thus has no duty to negotiate with respect to them.
The parties disagree as to whether California "permits" the Proposed Gaming Activities. The State's argument is straightforward: the Proposed Gaming Activities are illegal. California law prоhibits the operation of a banked or percentage card game as a misdemeanor offense. Cal.Penal Code Sec. 330 (Deering 1993). In addition, according to the State, the stand-alone electronic gaming machines sought by the Tribes are electronic "slot machines." California law prohibits the operation of slot machines as a misdemeanor offense, Cal.Penal Cоde Secs. 330a, 330b, and a California appellate court has indicated that electronic machines of the sort requested by the Tribes fall within the scope of this prohibition. Score Family Fun Center, Inc. v. County of San Diego,
The Tribes offer a broader reading of IGRA, claiming that a state "permits" a specific gaming activity if it "regulates" the activity in general rather than prohibiting it entirely as a matter of public policy. Under this approach, a specific illegal gaming activity is "regulated," rather than "prohibited," if the state allows the operation of similar gaming activities. The Tribes observe that video lottery terminals, parimutuel horse racing, and nonbanked, nonpercentage card gaming are legal in California. Because the Tribes view these activities as functionally similar tо the Proposed Gaming Activities, they conclude that California regulates, and thus permits, these activities.
The Tribes cite to the Supreme Court's pre-IGRA decision, California v. Cabazon Band of Mission Indians,
The Supreme Court held that summary judgment properly was granted. At the time, gaming on tribal lands fell under Public L. 280. Pub.L. No. 280, 67 Stat. 588 (codified as amended in 18 U.S.C. Sec. 1162, 28 U.S.C. Sec. 1360). Under Public Law 280, Congress granted states the right to extend their criminal jurisdiction over offenses committed on tribal lands, 18 U.S.C. Sec. 1162, but granted states only limited civil jurisdiction over these lands. 28 U.S.C. Sec. 1360(a). Against this background, the Court observed that, "when a State seeks to enforce a law within an Indian reservation under the authority of Public Law 280, it must be determined whether the law is criminal in nature, and thus fully applicable to the reservation ..., or civil in nature."
The Court held that the fact that "an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of Pub.L. 280." Id. at 211,
a distinction between state "criminal/prohibitory" laws and state "civil/regulatory" laws: if the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State's public policy.
Id. at 209,
Congress enacted IGRA in response to Cabazon. Spokane,
We reject this reading of IGRA. In interpreting IGRA, we use our traditional tools of statutory construction. "Interpretation of a statute must begin with the statute's language." Mallard v. United States Dist. Ct. for the So. Dist. of Iowa,
Section 2710(d)(1)(B) is unambiguous. In United States v. Launder,
The fact that California allows games that share some characteristics with banked and percentage card gaming--in the form of (1) banked and percentage games other than card games and (2) nonbanked, nonpercentage card games is not evidence that the State permits the Proposed Gaming Activities. Nor is it significant that the state lottery, if not technically a slot machine, is functionally similar to one. In Cheyenne River Sioux Tribe v. South Dakota,
need not negotiate traditional keno if only video keno is permitted in South Dakota. The "such gaming" language of 25 U.S.C. Sec. 2710(d)(1)(B) does not require the state to negotiate with respect to forms of gaming it does not presently permit. Because video keno and traditional keno are not the same and video keno is the only form of keno allowed under state law, it would be illegal ... for the tribe to offer traditional keno to its pаtrons.
Id. at 279. The court thus concluded that South Dakota had not failed to negotiate in good faith by refusing to negotiate over traditional keno and casino-type gaming. Accord Couer D'Alene Tribe v. Idaho,
We agree with the approach taken by the Eighth Circuit. IGRA does not require a state to negotiate over one form of a gaming activity simply because it has legalized another, аlbeit similar form of gaming. Instead, the statute says only that, if a state allows a gaming activity "for any purpose by any person, organization, or entity," then it also must allow Indian tribes to engage in that same activity. 25 U.S.C. Sec. 2710(d)(1)(B). In other words, a state need only allow Indian tribes to operate games that others can operate, but need not give tribes what others cannot have.
III
Because we find the рlain meaning of the word "permit" to be unambiguous, we need not look to IGRA's legislative history. See United States v. Taylor,
The primary source of IGRA's legislative history, the Senate Report accompanying its passage, does not describe the circumstances in which a state "permits" a gaming activity in the context of Class III gaming. The only relevant passages occur in the Senate Report's discussion of Class II gaming:
[T]he Committee anticipates that Federal courts will rely on the distinction between State criminal laws which prohibit certain activities and civil laws of a State which impose a regulatory scheme upon those activities to determine whether class II games are allowed in certain States. This distinction has been discussed by the Federal courts many times, most recently and notably by the Supreme Court in Cabazon.
S.Rep. No. 446, 100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 3071, 3076. The Senate Report continues:
The phrase "for any purpose by any person, organization or entity" makes no distinction between State laws that allow class II gaming for charitable, commercial, or governmental purposes, or the nature of the entity conducting the gaming. If such gaming is not criminally prohibited by the State in which tribes are located, then tribes, as governments, are free to engage in such gaming.
Id. at 3082.
The Tribes point to these statements as evidence that Congress intended that Cabazon 's "criminal/regulatory" test govern when a state must negotiate over Class II gaming activities. The Tribes then observe that IGRA's Class II gaming provisions contain the same language used for Class III gaming: "An Indian tribe may engage in ... class II gaming on Indian lands ... if ... such Indian gaming is located within a State that permits such gaming for any purpose by any person, organization or entity...." 25 U.S.C. Sec. 2710(b)(1)(A) (emphasis added). Relying upon the maxim that identical language in a statute should be interpreted to have the same meaning, the Tribes infer that the Senate Report establishes the applicability of the Cabazon test to Class III gaming.
However, that inference is incorrect. "Identical words appearing more than once in the same act, and even in the same section, may be construed differently if it appears they were used in different places with different intent." Vancoster v. Sullivan,
IV
With the possible exception of slot machines in the form of video lottery terminals, California has no obligation to negotiate with the Tribes on the Proposed Gaming Activities, and the trial court judgment is reversed to that extent. We affirm the district court's judgment that the State need not negotiate over banked or percentage card games with traditional casino themes. We remand to the district сourt to consider the limited question of whether California permits the operation of slot machines in the form of the state lottery or otherwise.
AFFIRMED in part, REVERSED in part, and REMANDED. Each party to bear its own costs.
WALLACE, Chief Judge, concurring:
I concur with parts I and II of this opinion. However, I concur only in the result of part III, because the discussion of the legislative history of the Indian Gaming Regulatory Act (Act) is unnecessary. Having concluded that the plain language of the Act controls this case, our opinion should end. The discussion of the Act's legislative history gives the impression that the Act is not as clear as we say, and that some additional reason is required before we hold as we do. "Where we are not prepared to be governed by what the legislative history says--to take, as it were, the bad with the good--we should not lоok to the legislative history at all. This text is eminently clear, and we should leave it at that." United States v. Taylor,
Notes
The Honorable Robert J. Kelleher, Senior United States District Judge for the Central District of California, sitting by designation
Included among these electronic games are electronic pull tab machines, video poker devices, video bingo devices, video lotto devices, and video kеno devices. The parties agree that California allows these games to be played in nonelectronic formats
A card game is "banked" if a gaming operator participates in the game with the players and acts as a house bank, paying all winners and retaining all other players' losses. Sullivan v. Fox,
The district court expressly declined to reach the question of whether California allows the operation of a slot machine in the form of the state lottery. The State concedes that, if the state lottery is in fact a slot machine, then California "perits" the operatiоn of these devices. The district court also apparently declined to reach the Tribes' questionable argument that California allows the operation of slot machines in the form of punchboards
The Tribes cite to Mashantucket Pequot Tribe v. Connecticut,
While we disagree, for the reasons expressed above, with the Mashantucket court's use of the Class II legislative history to interpret IGRA's Class III provisions, we believe that the court nevertheless reached the correct result. As we have explained, IGRA's text plainly requires a state to negotiate with a tribe over a gaming activity in which the state allows others to engage, and no resort to legislative history is necessary to support this conclusion. Because Connecticut allowed charities to operate games of chance, it had to negotiate with the tribe over these games.
The Tribes also assert that the State is barred by issue preclusion from relitigating Cabazon 's finding that California "regulates ... gambling in general."