SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, an Indian tribe organized under the Indian Reorganization Act of 1934, Petitioner, v. Jane Dee HULL, Governor of Arizona, Respondent.
No. CV-97-0090-SA
Supreme Court of Arizona, En Banc.
Oct. 7, 1997.
945 P.2d 818 | 97 Ariz. 189
Walker Ellsworth, P.L.C. by Ian A. Macpherson and Office of the Governor by Lisa T. Hauser, Phoenix, for Governor Jane Dee Hull.
Grant Woods, Arizona Attorney General by Rebecca White Berch, Thomas J. Dennis, Phoenix, for the State of Arizona.
OPINION
FELDMAN, Justice.
In a special action, the Salt River Pima-Maricopa Indian Community (the Tribe) requested relief—what was formerly called a writ of mandamus—requiring Governor J. Fife Symington to sign a “standard gaming compact” upon the request of the Tribe as required by Proposition 201, adopted by initiative in the 1996 election and codified as
After the case was briefed, argued, and submitted in this court, Governor Symington resigned from office. His successor, Jane Dee Hull, was therefore “automatically substituted as a party,” as required by
FACTS AND PROCEDURAL HISTORY
Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988. In 1992, the Arizona Legislature enacted
When the Governor declined to make any new compacts, the Tribe and others chose to circulate initiative petitions; they obtained the necessary signatures to put the initiative on the ballot and campaigned vigorously for its adoption. Almost two-thirds of those who voted in the 1996 general election favored the initiative. The Governor did not attempt a veto under
The text of Proposition 201 contained a clear declaration of intent and purpose:
Pursuant to
section 5-601 , Arizona Revised Statutes, the state has entered into gaming compacts with sixteen of Arizona‘s twenty-one Indian tribes. These compacts are of a standard form that was negotiated by the state with various Indian tribes and approved by the United States Secretary of the Interior. The standard form of compact serves the interests of the state by providing uniform comprehensive controls over reservation gaming including regulation of Indian gaming contractors and vendors and limitation upon types of gaming, the number of gaming devices and the number of gaming locations on each reservation. The state refuses to enter into the standard form of compact with any of the five Arizona tribes that do not have a compact. In the interests of fairness and sound administration the same standard compact should be available to any of those five tribes who request it.
On December 9, 1996, the Tribe‘s president submitted a standard form of gaming compact to the Governor for review and signature. In response, the Governor indicated negotiation was required on some aspects of the compact. Shortly thereafter, two residents of Scottsdale, which borders the Tribe‘s reservation, filed in this court a petition for special action challenging the constitutionality of
The next day the Governor signed and tendered to the Tribe a compact containing several significant changes from the standard form of compact submitted by the Tribe and mandated by the statute. Of particular concern was the addition of a non-standard clause to the section concerning casino location: all “gaming facility locations shall be
DISCUSSION
The Tribe argues that the Governor violated his constitutional duty to execute the state‘s laws when he failed to sign the standard form of gaming compact submitted by the Tribe under
A. The Indian Gaming Regulatory Act, A.R.S. § 5-601 , and Proposition 201
In enacting the Indian Gaming Regulatory Act, Congress could have prohibited or allowed tribes to conduct any type of gaming in Indian country but instead chose to balance the interests of tribes and their neighbors. IGRA permits states and tribes, with the approval of the Secretary of the Interior, to make compacts that permit and govern gaming on Indian lands, and permits tribes that wish such compacts to request the state in which the tribe plans to locate a casino to begin negotiations for such a compact. When a tribe makes such a request, IGRA requires that “the State shall negotiate with the Indian tribe in good faith to enter into such a compact.”
§ 5-601 Gambling on Indian reservations; tribal-state compacts
A. Notwithstanding any other law, this state, through the governor, may enter into negotiations and execute tribal-state compacts with Indian tribes in this state pursuant to the indian gaming regulatory act of 1988 (
25 United States Code §§ 2701 through2721 and18 United States Code §§ 1166 through1168 ). Notwithstanding the authority granted to the governor by this subsection, this state specifically reserves all of its rights, as attributes of its inherent sovereignty, recognized by the tenth and eleventh amendments to the United States Constitution. The governor shall not execute a tribal-state compact which waives, abrogates or diminishes these rights.
§ 5-601.01. Standard form of tribal-state compact; eligible tribes; limitation on time for execution of compact
A. Notwithstanding any other law or the provisions of
§ 5-601 , the state, through the governor, shall enter into the state‘s standard form of gaming compact with any eligible Indian tribe that requests it.B. For purposes of this section:
1. The state‘s standard form of gaming compact is the form of compact that contains provisions limiting types of gaming, the number of gaming devices, the number of gaming locations, and other provisions, that are common to the compacts entered into by this state with Indian tribes in this state on June 24, 1993, and approved by the United States secretary of the interior on July 30, 1993.
2. An eligible Indian tribe is an Indian tribe in this state that has not entered into a gaming compact with the state.
C. The state, through the governor, shall execute the compact required by this section within thirty days after written
request by the governing body of an eligible tribe.
The practical result of
We note that the statute did no more than put eligible tribes on an equal footing with the tribes that already had compacts when Rumsey was decided. It could simply have removed the state‘s Rumsey objection to class III gaming and required the state to negotiate with each tribe individually. This would have prevented the state from taking the position that there would be no class III gaming but would have allowed the state to negotiate casino location in a more flexible way to accommodate the different circumstances presented by each reservation‘s location. The events leading up to the initiative‘s passage suggest that its purpose was to remove the Rumsey obstacle to further compacting. But the initiative does more: it not only removes the Rumsey objection but also requires the state to enter into the same compact entered into with other tribes. Thus the flexibility to negotiate location was not preserved. We must enforce the plain terms of the statute unless it violates constitutional principle or leads to absurd or irrational results. That is not the case here.
B. Section 5-601.01 is not preempted by IGRA
1. The governor‘s negotiation power
The statute, the Governor argues, usurps IGRA‘s grant of executive power to negotiate compacts. The essence of the Governor‘s argument is that IGRA requires negotiation with Indian tribes on a case-by-case basis for the terms of gaming compacts covering reservation land. We agree, but note IGRA confers no powers or privileges on the governor as such. The federal statute requires only that “the State shall negotiate” and permits any “State and any Indian tribe” to enter into a “Tribal-State compact governing gaming. . . .”
The Governor argues IGRA requires negotiations and
We conclude this does not violate or conflict with IGRA. We do not believe that statute prevents, or could prevent, the people of this state from deciding on the minimum terms of the agreement or giving their governor a minimum bargaining position. One could argue, of course, that by setting forth
2. The state‘s obligation to negotiate under IGRA
We see nothing in IGRA that prevents the people of Arizona from adopting a policy that when and if a governor‘s negotiations fail, the state should, if requested, give the five Indian tribes that have no compact an agreement exactly like those the Governor gave the first compacting tribes. It is possible, of course, that the people may have made the wrong policy decision. If so, it is not our job to choose a different policy but only to recognize and apply the law the people passed.
The text of that law is absolutely clear. Leaving in effect
The Governor, we believe, fails to consider the fact that states have no right of control over the use of Indian lands. Absent IGRA, tribes were free to use their land for any purpose not prohibited by federal law and permitted by tribal law. IGRA, in fact, requires a tribe to relinquish tribal sovereignty by requiring it to negotiate and compact with the state and thus agree to something less than complete freedom in the use of its land with respect to gaming activities. See 134 Cong. Rec. S12,649. Proposition 201 gave the five tribes more freedom of land use than the Governor thought proper. But in our judgment, had the people of this state desired to instruct the Governor to go even further—to put no restrictions on gaming on Indian lands, for instance—they could have done so without violating IGRA.
It is true that the Governor was not willing to let the Tribe choose location. But “governor” is not a synonym for “state.” Absent a constitutional provision, a governor has no authority to decide the terms of a compact other than the power given by the Legislature or the people. Federal law does
C. The statute does not usurp the governor‘s executive powers
The Governor argues
The contrast between the state and federal systems is clear. Congress has only the powers granted to it by
The Arizona Legislature is vested with the legislative power of the state, and has plenary power to deal with any subject within the scope of civil government unless it is restrained by the provisions of the Constitution.
Giss v. Jordan, 82 Ariz. 152, 159, 309 P.2d 779, 783 (1957). The law-making power reposed in the Legislature is extremely broad and has been described in this manner:
[T]he legislature has the authority and it is its duty, on occasion, to deal with every element of human experience involved in the life of the community, and in the exercise of this authority, and in the discharge of this duty, the sweep of its vision is as wide as the confines of human knowledge. Thus, subject to constitutional limitations, a state legislature may enact any statute it deems necessary for the public interest, and in the exercise of that authority may frame its enactments and express its intention and purpose as it sees proper.
Turner, 3 Ariz.App. at 417, 415 P.2d at 130 (quoting 82 C.J.S. Statutes § 9, at 23-24 (1953)).
By enacting
The almost unlimited power the Legislature gave the governor in
The Legislature, in the exercise of that lawmaking power, establishes state policies and priorities and, through the appropriation power, gives those policies and priorities effect. Once the Legislature has acted, however, it becomes the duty of the Executive to “take care that the laws be faithfully executed.”
Rios, 172 Ariz. at 12, 833 P.2d at 29. This principle applies even more strongly when the people have legislated, for both the legislators and the governor are elected to serve the will of the people.
D. Section 5-601.01 is not a special law in violation of the Arizona Constitution
The Governor contends
First, the statute establishing a classification must have a rational basis. This one does. There are twenty-one federally recognized Indian tribes in Arizona. Sixteen had entered into compacts with the state, acting through the Governor, before the Governor refused on the basis of Rumsey to enter into more. The statute makes the remaining five tribes—Salt River Pima-Maricopa Indian Community, Navajo Nation, Hopi Tribe, San Juan Southern Paiute Tribe, and Havasupai Tribe—all eligible for a
Second, the classification must be legitimate. We see no illegitimacy to putting all that have compacts in one class and all that have not in the eligible class.
Third, the classification must be flexible, allowing members to move in or out as circumstances change. This classification is certainly elastic—any tribe that has no compact but negotiates one under the statute will no longer be a tribe that has not entered into a gaming compact and will no longer be eligible under
The statute meets each prong of the test and is thus not a local or special law.
E. There is a standard compact
Authorized Gaming Facility Locations. The [Tribe] is authorized to operate [X] Gaming Facility locations based on current tribal enrollment figures. All Gaming Facility locations shall be located not less than one and one-half miles apart and shall be located on the Indian Lands of the [Tribe]. The [Tribe] shall notify the State Gaming Agency of the physical location of any Gaming Facility a minimum of thirty (30) days prior to commencing gaming authorized pursuant to this Compact at such location. Gaming on lands acquired after the enactment of the Act on October 17, 1988 shall be authorized only in accordance with
25 U.S.C. § 2719 .
The Tribe‘s proposed compact contained the quoted clause, as well as text substantially identical to that found in the first five com-
CONCLUSION
The fundamental issue in this case is not the question of whether the state should or should not negotiate gaming compacts with Indian tribes or whether the state should or should not have veto power over a tribe‘s selection of location. The issue, rather, is whether this court has the obligation to implement and enforce a law adopted by the people by initiative that in clear, unambiguous text requires the governor to agree to identified terms and enter into compacts with Indian tribes. We answer that question affirmatively.
Proposition 201, codified as
We therefore conclude that a governor, if unsuccessful in any negotiations and if requested by a tribe, must sign the standard form of compact defined in
ZLAKET, C.J., and MOELLER and MARTONE, JJ., concur.
JONES, Vice Chief Justice, specially concurring:
I concur in the result reached by the court on the issues raised in the Petition and Response but write separately to express a cautionary note with respect to what I perceive as a substantial federal-state conflict between the federal statute, IGRA, which mandates tribal-state negotiation in defined circumstances, and the Arizona “Fairness” initiative,
The issues raised by the parties are narrow and do not acknowledge or implicate any federal restriction on the authority of a tribe to engage in class III gaming in this state. Indeed, the position urged by the tribe assumes unrestricted tribal authority, subject only to obtaining a signed compact. In its simplest terms, the question put to the court is whether section 5-601.01, a state law, effectively satisfies IGRA‘s mandate that the state “negotiate with the Indian Tribe in good faith” for a compact governing class III gaming on the reservation. See
But this conclusion does not answer the more dispositive federal question, neither raised nor argued before us—whether, in Arizona, a tribe is authorized under IGRA to engage in class III gaming. Clearly, the state has no power to grant such authority. Only the Congress can so authorize, and, in my view, the statute‘s express language provides strong indication that the Congress has declined to do so:
Class III gaming activities shall be lawful on Indian lands only if such activities are—
(B) located in a State that permits such gaming for any purpose, by any person, organization, or entity. . . .
IGRA,
IGRA thus places an absolute prohibition on tribal authority to engage in class III gaming unless such gaming is otherwise permitted on non-tribal land within the state in which the tribal gaming is proposed.
The United States Court of Appeals for the Ninth Circuit in Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (1995) cert. denied, U.S., 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997) addressed two federal issues: (a) whether IGRA confers authority on a tribe to engage in class III gaming in California, a state which generally prohibits such gaming, and (b) whether, notwithstanding California‘s class III prohibition, the state has a duty under IGRA to negotiate over such gaming with the tribe. The Ninth Circuit, interpreting and applying IGRA, responds negatively to both questions:
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 entity. . . . ”
25 U.S.C. § 2710(d)(1)(B) . 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.
Id. at 1256 (emphasis added).
Arizona, like California, maintains a general statutory prohibition against class III gaming.
I concur in today‘s decision to uphold the tribe‘s right to a compact because the decision deals properly with the only issue presented—the effect of
Under Rumsey, the question must ultimately be posed whether the State of Arizona, which prohibits class III gaming generally, has a federally imposed duty to negotiate, and, more importantly, whether any tribe in Arizona, in the face of Rumsey‘s interpretation of IGRA‘s congressional mandate, has the right to engage in such gaming. Rumsey held that the state had no duty and that the tribe was without authority. Because the parties before this court have neither raised nor argued the Rumsey issue, the court, correctly, does not address it. One must nevertheless wonder, in the post-Rumsey era, whether under the current application of federal law the Salt River Pima-Maricopa compact anticipated as the result of this decision, as well as the sixteen existing tribal compacts governing class III gaming in Arizona, can remain viable.