Amicus Curiae Brief — California v. Cabazon Band of Mission Indians

No. 85-1708

In The

Supreme Court of the United States

October Term, 1985

_—4

— oO - =

STATE OF CALIFORNIA, ef al.,

CABAZON BAND OF MISSION INDIANS, et al.,

Appellees

0

On Appeal from the United States Court of Appeals

For the Ninth Circuit

O

AMICI CURIAE BRIEF OF STATES OF FLORIDA,

ALASKA, CONNECTICUT, IDAHO, IOWA, KANSAS,

LOUISIANA, MISSISSIPPI, NEVADA, NORTH

CAROLINA, NORTH DAKOTA, OHIO, OKLAHOMA,

OREGON, RHODE ISLAND, SOUTH DAKOTA, UTAH,

WISCONSIN, AND WYOMING IN SUPPORT OF

APPELLANTS’ JURISDICTIONAL STATEMENT

STATE OF FLORIDA STATE OF CONNECTICUT

IIM SMITH JOHN J. KELLY

Attorney General of Florida Chief State’s Attorney

State Capitol P.O. Box 5000

Tallahassee, Florida 32301 Wallingford, Connecticut 06492

Telephone 904) 487-1963 Telephone: (203) 566-2026

STATE OF ALASKA STATE OF IDAHO

HAROLD M. BROWN IIM JONES

Attorney General of Alaska Attorney General of Idaho

Department of Law State House

PQ. Box K Boise, Idaho 83720

Juneau, Alaska 99811 Telephone: (208) 334-2400

Telephone 907) 465-3600

Additional Counsel listed on inside cover

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

STATE OF IOWA

THOMAS J}. MILLER

Attorney General of lowa

Hoover Building, Second Fioor

Des Moines, lowa 50319

Telephone: (515) 281-8373

STATE OF KANSAS

ROBERT 1

Attorney

STEPHAN

General of

Kansas Judicial Center

Topeka, Kansas 66612

Telephone: (913

Kar

06- sy»

yay 4 )

STATE OF LOUISIANA

WILLIAM J. GUSTE, JR

Attorney General of Louisiana

234 Loyoia Avenue, Suite 821

Louisiana 70112

504) 568-5575

STATE OF MISSISSIPPI

EDWIN LLOYD PITTMAN

Attorney General of Missi

P. O. Box 220

Jackson, Mississippi

Telephone: (601

39205

359- 36560

STATE OF NEVADA

BRIAN McKAY

Attorney General of Nevada

Memoriai Buildin

Complex

Citv, Nevada 8971

) he Ry

OOD)-4

lephonse 70.

STATE OF

LACY H. THORNBERG

Attorne . (

enera cyt

North ( af

ROBERT |

Assistant

Suite 267

Ache

Telepht

"

STATE OF NORTH DAKOTA

ICHOLAS SPAETH

Attorney General of

North Dakota

State Capitol

Bismarck, North Dakota 58505

Telephone: (701) 224-2210

STATE OF OHIO

ANTHONY J. CELEBREZZE

Attorney Genera! of Ohio

State Oftice Tower

30 E. Broad Street

Columbus, Ohio 43266

614) 466-3376

IR

felephone

STATE OF OKLAHOMA

Oklahoma Tax Commission

|. LAWRENCE BLANKENSHIP

General Counsel

2501 Linco!n Blvd

Oklahoma City, Oklahoma

405) 521-4321

OF OREGON

DAVE FROHNMAYER

Attorney,

) | cf

;UST

General of ()recon

ice Building

Oregon 97310

503) 376-6

ry?)

ri¢ Y)

reiepnone 468

ISLAND

SOUTH DAKOTA

MARK V. MEIRHENR

Attorney General of

South Dakota

Pierre, South Dakota 5

Telephone 605

STATE OF

DAVID L. WILKINS¢

Attorney General of

236 State Capitol

Salt Lake City, |

y '

elephone ROT

QUESTION PRESENTED

Whether state and local laws prohibiting commercial!

gambling apply to Indian gambling operations, conducte:

on Indian reservations, that are patronized primarily by

non-Indians.

LT]

STIO PRESENTED

to M OF INTERES

~~ | ~ {) : GRA ty R REVI ’

[E COURT OF APPEALS DECISION IM

-OPERLY BALANCES STATE, FEDERAL,

») TRIBAL INTERESTS RELEVANT TO

TAN COMMERCIAL GAMBLING

THE COURT OF APPEALS DECISION IS

IN CONFLICT WITH STATE COURT D

CISIONS HOLDING THAT STATE GA}

ING LAWS APPLY ON INDIAN RES!

TIONS

THIS COURT SHOULD GRA?

MAKE CLEAR THAT THE BALAN

TEST RATHER THAN THRE “CIVI

ULATORY-CRIMINAL PRO )

TEST APPLIES IN’ DETER

WHETHER STATE REGULATOR

APPLY ON INDIAN RESERVATIONS

CONCLUSTON

TABLE OF AU THORITIES—Conth

\>

Organized Crime Control Act, 84 Stat. 937 (1970

18 U.S.C. § 1955

Public Law 280, 67 Stat. 588 (1953), 18 U.S.C.

§ 1162, 28 U.S.C. § 1360

MiIscELLANEOUS

‘‘Gambling on Indian Reservations and Lanc's.’’

Hearing be fore the Se lect Committe On Ind ‘in

Affairs, U. S. Senate, on S. 902, 99th Cong., 1st

Sess, 140, 143, 144, 145 146 (1985) (testimony

of Deputy Assistant Attorney General Mark M.

Richard)

lle ¢

F

14, 15,16

STATEMENT OF INTEREST

The amici states have a significant interest in the is-

sues presented here. All amici states have Indian lands

located within their borders.! On some Indian lands, In

dian tribes are conducting high stakes gambling opera

tions, or have indicated an intention to do so. On other

Indian lands, it is expected that Indian tribes may initiate

gambling operations because of the increasingly popular

nature of this form of activity as a means of raising tribal

revenue. As of 1985, at least 100 tribal gambling opera-

tions were in effect in 19 states. Jurisdictional Statement

(‘*JS’’), 4. Given the inereased prevalence of the activity,

the present figure is probably much higher.

Most tribal gambling operations consist of high stakes

bingo. ‘l'ypically, the tribe hires a non-Indian professional

operator to conduct the falmes, who receives a percentage

of the profits. The jackpots are often very large, fre

quently consisting of cars or cash awards of thousands of

dollars. The games attract, and are intended to attract,

non-Indians who reside off the reservation and who cannot

lawfully play high stakes binge elsewhere in the state. In

deed, hundreds of non-Indians typically play the games

each night. The games would not be financially profitable

if they did not attract nen-Indians.

The Ninth Cireuit decision impairs the states’ legit

mate interest in preventing high stakes commercial gam

bling. The commercial games potentially attract organ

ized criminal elements because they feature high stakes

and are not regulated by the federal government. The

lin Ohio. there are no Indian reservations, but one Indian

tribe is seeking federal recognition for purposes of conducting

bingo Operations

Ninth Cireuit held that Indian tribes have a sovereign

right to conduct the games even though the games violate

state law and are profitable only because they attract non

Indian patrons. Significantly, the Ninth Cireuit held that

federal law does not preempt state gambling laws as ap

plied on Indian reservations. JS App. 7. Instead, the

court held that Indian tribes have a sovereign right to play

the games. Z/d. at 7-11. In holding that Indian tribes have

a sovereign right, the court did not determine whether

commercial gambling is a ‘‘traditional’’ form of tribal

activity. Instead, the court ruled that Indian tribes have a

sovereign right to raise revenue, and that the tribal reve

nue-raising interest outweighs legitimate state regulatory

interests. Jd. at 10-11.

The Ninth Circuit decision is not consistent with this

Court’s recent decisions concerning state jurisdiction over

Indian reservations. This Court has never held that tribal

revenue-raising interests outweigh legitimate state regula

tory interests, particularly where the tribal activity de

pends on non-Indian patronage and where iederal law does

not preempt state law. To the contrary, this Court has

held that Indian tribes do not have a sovereign right to

engage in commercial intercourse with non-Indians in vio

lation of state law. See Rice v. Rehner, 463 U.S. 713

(1983): Washington v. Confederated Tribes of the Col

ville Reservation, 447 U.S. 154 (1980). Accordingly, this

Court should grant review to properly weigh and consider

state, federal, and tribal interests. A proper balance, it is

submitted, supports the state’s right to apply its gambling

laws on Indian reservations here.

REASONS FOR GRANTING PLENARY REVIEW

I. THE COURT OF APPEALS DECISION IM-

PROPERLY BALANCES STATE, FEDERAL,

AND TRIBAL INTERESTS RELEVANT TO

INDIAN COMMERCIAL GAMBLING.

Federal Indian law has evolved from the early day

when this Court held, in Worcester v. Georgia, 31 U.S. (6

Pet.) 515, 561 (1832), that Indian reservations are anal-

ogous to foreign nations whose boundaries are impene-

trable by state laws. Today, the Court takes a more flex-

ible view of state and tribal relationships. Under the mod-

ern view, state laws are applicable on Indian reservations

unless they are preempted by federal law or infringe on

tribal sovereignty. See, e.g., Rice v. Rehner, 463 U.S. 713

718 (1983); Organized Village of Kake v. Eagan, 369 U.S

,

60, 74-75 (1962). Increasingly, the focus is on federal] pre-

emption rather than tribal sovereignty. ‘‘The trend has

been away from the idea of inherent Indian sovereignty

as a bar to state jurisdiction and towards reliance on fed

erai preemption.’’ McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164, 172 (1973). ‘‘The Indian sover-

eignty doctrine is relevant, then, not because it provides

a definitive resolution of the issues. ..., but because it

provides a backdrop against which the applicable treaties

and federal! statutes must be read.’’ Jd. at 172: see also

Rice, 463 U.S. at 718.

The preemption analysis in Indian law is different

ian the preemption analysis in other contexts. ‘‘The

unique historical origins of tribal sovereignty render ordi

. . . ; " ’ . . } ;%

nary preemption analvsis unhelpful in Indian law eases.

White Mountain Apache Tribe v. Bracker, 448 U.S. 136.

143 (1980). In undertaking the preemption analysis, the

Court instead balances state, federal, and tribal interests.

The question turns on a ‘‘particularized inquiry’’ into ‘‘the

nature of state, federal, and tribal interests at stake.’’

Id. at 145.

¢

In Rice v. Rehner, supra, 463 U.S. 713, this Court

heid that the tribal ‘‘tradition’’ is highly relevant in bal-

ancing state, federal, and tribal interests. If a sovereign

tribal tradition exists, state laws cannot be applied unless

Congress clearly authorizes their application, or unless

the balancing of competing interests otherwise supports

the application of state law. Rice, 463 U.S. at 719, 720. I,

however, a sovereign tribal tradition does not exist, the

‘*hackdrop’ of tribal sovereignty is accorded ‘‘less

weight.’’ Id.

The Ninth Cireuit below properly held that the bal

ancing test, or ‘‘particularized inquiry’’ test, is a form

of ‘‘federal common law’’ because it is a judicial doctrine

rather than a constitutional or statutory one. JS App. 6,

& n. 6. Therefore, Congress can ‘‘preempt’’ or displace

the common law balancing test by enacting legislation de

fining state jurisdiction over Indian reservations. Cf.

Milwauke v. Illinois, 15] U.S. 304, 313-5] (1981) (holding

that Congress has displaced federal common law of nui

sance by enacting Clean Water Act). The federal common

law applies only in a ‘‘few and restricted instances’’ where

Congress has not legislated and where the application of

state law would impair an important federal interest or

policy. Milwaukee, 451 U.S. at 3135-314. The Ninth Cir

cuit held that Congress has not preempted state gambiing

laws on Indian reservations, or otherwise indicated wheth

er they apply, and thus that the federal common law applies

here. JS App. 6-7, & n. 6.

In applying the common law balancing test, however,

the Ninth Cireuit failed to follow the guidelines established

by this Court, most notably in Rice. The Ninth Circuit

improperly expanded tribal sovereignty by defining it in

economic terms rather than in terms of Indian conduct,

and by holding that Indian tribes can take commercial ad

vantage of state gambling prohibitions by marketing to

non-Indians the very product that is prohibited. This

Court has never suggested such an expansive interpreta

tion of tribel sovereignty. The Ninth Circuit decision

skews a proper balance and accommodation of state, fed-

eral, and tribal interests, and this Court should grant re

view to properly weigh such interests. -

A. The Tribal Interest.

The Ninth Cireuit improperly considered tribal inter

ests in several major respects. First, the Ninth Cireuit

acknowledged that federal law does not preempt state gam

bling laws. JS App. 7. This case is thus different from

other Indian law cases where state laws have been invalli

dated on preemption rrounds. see, C.Ges White Mountain

A pa he T) be U. Bracke i. Supra, 44% U.S. 136: McClanahan

v. Arizona State Tax Comm’n, supra, 411 U.S 164. In

stead, the Ninth Cireuit held that Indian tribes have an

‘‘inherent sovereign right’’ to conduct gambling operations

in violation of state laws. JS App. 9-11. The court thus

rested its decision on tribal sovereignty grounds, not pre

emption grounds. This result departs from the modern

‘‘trend’’ away from tribal sovereignty and towards fed

eral preempti nas a Dar to state jurisdiction over Ind an

6

reservations, under which tribal sovereignty provides a

‘‘backdrop’’ for the preemption analysis. See, e.g., Rice,

163 U.S. at 718.

k‘urther, in holding that Indian tribes have a sovereign

right to conduct gambling operations even where federal

ri

law does not preempt state law, the Ninth Circuit failed to

eonsider whether Indian commercial gambling is a ‘‘tradi-

tional’’ furm of tribal activity. Indeed, the Ninth Cireuit

ruled that the inquiry was irrelevant. JS App. 11. The

court ruled instead that Indian tribes have a ‘‘sovereign’’

right to ‘‘raise revenue,’’ and that the tribal revenue-rais

ing interest ‘‘outweighs’’ the state’s regulatory interest.

Id. at 10-11. In effect, the court held that the tribal reve

nue-raising interest is sufficient regardless of the means

by which the revenue is raised. The court considered

tribal sovereignty solely in economic terms rather than in

terms of Indian conduct. This approach fails to consider

whether the tribal activity itself is linked to historical cul

ture and customs, an inquiry that is most relevant in bal

anecing state and tribal interests. The Ninth Cireuit ap

proach would apparently sanction any torm of tribal com

mercial activity that raises revenue, even where the acti

itv is clearly outside the tribal tradition.

The Ninth Cireuit decision is inconsistent with this

Court’s recent decision in Rice, which holds that the tribal

“tradition”—as determined by the tribal activity—is high-

ly relevant in balancing state and tribal interests. 463 U.S.

at 720-725. It is clear that Indian tribes have not trad

tionally conducted high stakes gambling operations for

the benefit of non-Indians, particularly where the opera-

tions violate state laws. Such operations are not indige

nous to the tribal culture, nor tied to historical eustom or

practice. ‘Thus, the Ninth Cireuit failed to undertake the

inquiry that, according to Rice, is the most important in

quiry in determining state and tribal relationships.

Additionally, the Ninth Cireuit failed to properly

consider that the tribal activity here involves non-Indians.

in that the games are “predominantly” played by nol

Indians. JS App. 2. This Court has held in recent cases

that Indian tribes do not have a “vested right” to make

sales to non-Indians, and that principles of tribal sov

ereignty do nut support their right to make such sales.

see Rice, 463 U.S. at 721 n. 7, quoting from Washington v.

Confederated Tribes of the Colville Reservation (Colvill.

447 U.S. 134, 151, & n. 27 (1980). It is one thing when

Indian tribes develop reservation resources by means that

do not depend on non-Indian involvement. [t is entirely

different when Indian tribes embark on commercial ven

tures that soucit and depend on non-Indian patronage

The state interest is strongest, and the tribal interest weal

es, in the latter situation.

Finally, and most importantly, the Ninth Cuireuit

failed to consider that the tribal gambling operations. be

yond depending On non India patronage, are protitabl

primarily because they are illegal under state law. The

tribal games afford non-Indians a product—high stak«

bingo——that they cannot lawfully obtain elsewhere in th

state. Certainly the hundreds of non-Indians who travel

to the reservations each night to play the games woul

take their patronage to other, more local establishments

if the state iegalized hich stakes bingo throughout th

~ te y 1s ne tribe ire ta n COrI erTrelal idva ore

of state gambling prohibitions by marketing to non-Indians

the very product that is prohibited. The state, by pro

hibiting the product, has created the very market that the

tribes seek to exploit. The situation would he different

if the tribal games were able to succeed on their own

merits, independently of state gambling restrictions. Such

is not the ease, however. The Ninth Cireuit’s decision

thus conflicts with this Court’s decision in Colville, supra,

447 U.S. 134, which holds that Indian tribes cannot “mar

ket an exemption” from state laws to non-Indians, particu

larly where the market exists only because of state re

strictions against non-Indians. 447 U.S. at 155, 157

It is thus clear that the Ninth Cireuit decision ex

pands tribal sovereignty bevond iF nits ever recognized by

this Court, and indeed beyond any proper accommodation

of state and tribal interests. The decision allows Indian

tribes to market a product—high stakes bingo—to non-

Indians in violation of state law, even though state gam-

bling prohibitions have created the market and even though

recy ral law does not preempt state law. | he Ninth Cir-

cuit, unable to rest its decision on preemption grounds,

instead held that Indian tribes have a “sovereign” right

to raise revenue—regardless of the form of activity by

which the revenue is raised—and that tribal revenue-ra

ing interests outweigh legitimate state regulatory inter

ests. The Ninth Cireuit decision simply departs from

modern federal Indian Jurisprudence, and is more akin

to the now discredited Worcester prineiple that state laws

cannot be applied on Indian reservations under any cit

cumstances. The deeisio1 s not consistent with the “ae

underlies modern federal! India ia\ ser ke @. 465 Ss

at 719.

l

A sounder analysis of the issues presented here is

found in Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.

Sup. Jud. Ct.). app al dismissed, 464 U.S. 923 (1983). and

Oklahoma v. Seneca-Cayuga Tribe, 711 P.2d 77 (Okla. Sup

Ct. 1985), both of which hold that state laws prohibiting

commercial gambling apply to tribal bingo operations. In

Pe nobscot. the Maine Court held that. ul der the hala Cll 0

test, state interests outweigh tribal interests because the

Indian tribes are attempting to “market an exemption”

from state laws to non-Indians, and the tribes would have

‘ 17 99

|

‘nothing to ‘sel if the state did not prohibit high stakes

bingo. 461 A.2d at 482-487. The Court also held that com

mercial gambling activities have played no part in tribal

“historical culture and development ”’ Id. at 490. The Ok

homa Supreme Court followed a similar analysis in hol

ing that the State of Oklahoma has the right to prohibit

tribal bingo rames. seneca-Cayuda., ipra, (11 P 2d iw

Aecording to the Oklahoma Court, “no one would de:

that states have a legitimate interest in preventing infil

tration of organized crime and in protecting the State’

overall economy and tax base.” 711 P.2d at 91 en phasis

added). The tribes, the (Court stated. are to be encoul

aged in economic developni nt, “but not at the expense oO /

the states in which they reside and in disregard of thos

laws that protect both Indian and non Indian e¢itize)

Id. The Maine and Oklahoma decisions, it is submitted. r

flect the ‘‘accommodation’’ of state. fe lera , and triba

terests that underiies modern federal Indian la met |

Rice, 463 U.S. at

10

The Ninth Cireuit decision, although primarily focus-

ing on tribal bingo operations, is not confined to this form

of gambling activity. The decision also applies to the

Riverside County ordinance prohibiting card parlor games.

JS App. 2 n.1. The Ninth Cirenit stated that it found

‘‘no basis upon which to distinguish’’ these two forms of

gambling. Id. If there is no basis for distinguishing the

two gambling activities involved here, there may be no

basis for distinguishing other forms of gambling as well.

Thus, the Ninth Cireuit decision appears to legitimize any

form of tribal gambling activity, and thus transcends the

bingo context primarily involved here.

B. The State Interest.

As noted above, the state interest arises because the

tribal gambling operations cater to non-Indian patrons

who cannot lawfully play high stakes bingo elsewhere in

the state. The operations take commercial advantage of

state gambling restrictions against non-Indians. The state

interest, according to this Court. is entitled to greatest

deference where the tribal activity involves non-Indians

=

Rice, 463 U.S. at 720-721, & n. 7

The state also has an interest in preventing organized

eriminal elements from gaining contro! of the tribal games.

The possibility of criminal infiltration is real and substan

tial, because the high stakes that attract non-Indian pa

trons also attract organized crime. The federal govern

ment does not regulate or control the games. The com

bination of high stakes and lack of regulation creates a

risk of organized criminal infiltration.

The U.S. Department of Justice recently testified be

fore a congressional! committee that Indian tribes lack the

1]

law enforcement capability to ensure that high stakes

bingo operations are not controlled by organized crime.

According to the Department of Justice testimony:

‘‘The attraction that high stakes gambling has for

criminal elements should be readily apparent... . It

involves a large number of fast moving cash transac-

tions. The opportunities for ‘skimming’ and ‘launder

ing’ are enormous. Employees and managers can

be corrupted into dishomest manipulations. Large

scale gambling operations require significant support

services, such as security, food, cleaning, sanitation

and transportation. Every one of these fringe opera

tions can be lucrative and can act racketeers who

preserve their competitive edge by violence and

timidation.

** Although the tribes are re pgnized as go ernments,

they do not have the authority or resources to pol

these Ly pe S OT a tr itive s. Th: F5-mMe nb r { abazo) Ban [

annot adequate ly leal with the nfl OF mundi

Oy players.

‘“The Interior Department Is 1n no position to assume

the needed regulatory role, whieh in many respects,

would be inconsistent with its mission and function.’’

See ‘‘Gambling on Indian Reservations and Lands.’’

Hearing Before the Select Committee on Indian A}

fairs. U. S. Senate, on S. 902, 99th Cong., Ist Sess.

140. 143. 144 (1985) (testimony of Deputy \ssistant

Attorney General Mark M. Richard) (emphasis ad

weak because 7nere Is no evidence that the triba

vwames here are controlled Dy organ Zed crime, Js App.

2 The state interest in preventing organized criminal! in

12

lar operation is controlled by organized crime. The state

interest lies in preventing criminal infiltration, not simply

correcting the problem after it has taken root. It is easier

for a state tv prevent organized criminal control before it

has become an accomplished fact. The practical reality

is that the state often cannot detect an organized criminal]

operation unless it can screen operators, audit books, and

exert the full force of its law enforcement apparatus. The

Ninth Circuit decision prevents all such forms of state

action.

The Ninth Cireuit also held that the state interest is

‘‘weak’’ because state gambling laws are applied to Indian

‘‘operations’’ rather than non-Indian participation. JS

App. 8. The distinction between operation and partici-

because regu-

pation is one of form rather than substance,

lation of either has the same effect on the tribal activity.

The states apply their laws to operators because the opera-

tors control the games, and hence are most likely to be

controlled by organized crime. Moreover, it is difficult to

regulate participants, because it is not known whether a

non-Indian exiting a reservation has participated in the

gambling operation or not. In any event, the tribal ac-

tivity involves non-Indians regardless of whether the state

regulates operators or participants. For this reason, the

Ninth Cireuit’s distinction between operators and partici

pants is not relevant to the underlving state and tribal

interests involved here.

C. The Federal Interest.

Congress has specifically provided that state gambling

laws apply on Indian reservations. The Organized Crime

Control Act (OCCA), 84 Stat. 937 (1970), 18 U.S.C. § 1955,

ing operations oa V10 ation of the |

political subdivision in which it is conducted.”’

The OCCA expresses a federa! policy in support of state

jurisdiction over Indian gambling operations. To be sure,

‘current federal Indian policy, as expressed in President

Reagan’s policy statement and other federal laws, also

favors tribal economic development. JS App. 8. Nothing

Suef

ggests that this laudable roa!

IS To pe achieved hy ecommerce!

in federal policy, however,

al gambling operations that

}

‘rounding state, particularly

vhnhere the gcambling operations are successtfu because

1 \ 2fat | i r} rreto} VOT nithcts ding he

y vi1oiate ate aws ererore. notwithstanding the

econon develo

ment, federa policy speci} ally ré mizes the states’ au

thority to apply their gamb ing laws on f¢ dera unds I

eluding Indian reservations.

he triba t 1 ner ereft rie lera nt

1 iT nvo ement that nas posed LT O ta f O Stat

risdiction ever Indian reservations in othe

} )

t t! ( t held that Ar na lacked jurisdiction t

| }*

L] ts timber arvesting laws on Indian reservations

’ .

i sé ( ongrTress 9 adeveioned a oOmprenens ‘ reo a

atol ind because the Bureau of Indian Affairs

1 reo aT ne a roaqcs AT ay } : yes ng on A r’é OUlAl

asis. 448 U.S. at 145-148. In New M . Mescal

eC)

{nache Tribe, 462 U.S. 324 (1983). this Court held that New

Mexico lacked het to regulate non-Indian fishing on

in Indian 1 rvation because the federal government and

tribe had ears worked it t! r own reguiatol

rogral Here, Congress has never enacted a statut:

i } tf L pO i I 1} LT I el } rAl h] T

14

and no federal agency or officer regulates, supervises, or

monitors the games. The tribal activity here is purely

unilateral.

Il. THE COURT OF APPEALS DECISION IS IN

CONFLICT WITH STATE COURT DECISIONS

HOLDING THAT STATE GAMBLING LAWS

APPLY ON INDIAN RESERVATIONS.

As noted earlier, the highest courts of the States of

Maine and Oklahoma have held that state gambling laws

apply oa Indian lands. See Penobscot Nation v. Stilphen,

supra, 461 A.2d 478; Oklahoma v. Seneca-Cayuga Tribe,

supra, 711 P.2d 77. Both courts, applying the common

law balancing test, concluded that the balance of compet-

ing interests supports the application of state gambling

laws on Indian lands. The Ninth Cireuit decision here

conflicts with both decisions, although neither is men-

tioned in its decision.

To be sure, the Fifth Cireuit and the Ninth Circuit

in an earlier decision held that Public Law 280, 67 Stat.

588 (1953). 18 U.S.C. § 1163, 28 U.S.C. § 1360, does not

permit state gambling laws to be applied on Indian res

ervations. See Seminole Tribe v. Butterworth. 658 F.2d

310 (5th Cir. 1981), cert. denied, 455 U.S. 1020 (1982):

Rarona Group v. Duffy, 694 F.2d 1185 (9th Cir. 1982),

cert. denied, 461 U.S. 929 (1983).* Both decisions, how

2Public Law 280 provides that, in California and several

other states, “those civil laws of such State or Territory that are

of general application to private persons or private property

shall have the same force and effect within such Indian country

as they have elsewhere within the State or Territory,” and that

“the criminal laws of such State or Territory shal! have the same

force and effect within such Indian country as they have else-

where within the State or Territory.” JS App. 23-25 (emphasis

added).

ever, were limited to the narrow que stion whether a if d

eral statute—Public Law 280—permits state laws to |

applied and neither decision applied the common law bal

aneing test. Thus, both decisions are inapposite to the

common law issue arising here. The Ninth Cireuit dee

sion is the only appellate decision holding that the com

mon law balancing test does not permit state gambling laws

to be applied on Indian reservations, and directly cot

ets with the Maine and Oklahoma decisions in Penobs

ind Seneca-Cayuaga, which hold to the contrary. T!

Court should grant review to resolve this conflict

Maine Court’s decision in Penobscot ‘‘for

stantial federal question.’’ 464 U.S. 923 (1983 Althoug!

a denial of certiorari, such as occurred

Barona, does not constitute binding precedent, tl!

missal of an appeal for want of a substantial federal

tion constitutes a disposition on the merits. H

V/ randa +) ) ‘ By 45 1975 ko} Tnis Treaso

representative of the U. S. Department of Justice

cent congressional testimony, referred to Penobscot as

a recent Supreme Court decision,’’ and stated that t!

(Court’s dismissal of the tribal appeal! in that cas S

gests that in such cases state regulatory la s applical

See ‘‘Gambling on Indian Reservations and Land I]

16

Ill. THIS COURT SHOULD GRANT REVIEW TO

MAKE CLEAR THAT THE BALANCING TEST

RATHER THAN THE “CIVIL REGULATORY-

CRIMINAL PROHIBITORY” TEST APPLIES

IN DETERMINING WHETHER STATE REGU-

LATORY LAWS APPLY ON INDIAN RESER-

VATIONS.

Turning to the Public Law 280 issue, the Ninth Cir-

cult below followed the Fifth and Ninth Cireuit de-

cisions in Seminole Tribe v. Butterworth, supra, and

Barona Group v. Duffy, supra, which hoid that Public Law

280 does not authorize state and local governments to

apply their gambling laws on Jndian reservations. In

Seminole and Barona, the courts fashioned a legal theory

premised on this Court’s ruling in a tax case, Bryan

Itasca County, 426 U.S. 373 (1976). Under this theory,

state ‘‘criminal prohibitory’’ laws can be applied on In

dian reservations, but not state ‘‘civil regulatory’’ laws.

Thus, state gambling laws can be applied on Indian reser

vations only if the state ‘‘prohibits’’ all gaming as a ‘‘crim

inal’’ matter, rather than ‘‘regulates’’ gaming by licensing

it. In other words, in the absence of a per se prohibition

of a particular activity, the law is n ecessary ‘‘civil regu

latory’’ in nature. In Seminole and Barena, the Fifth

and Ninth Cireuits held that state gambling laws are ‘‘eivili

regulatory’’ and therefore not ine!uded under Public Law

280.

The ‘‘civil regulatory-criminal prohibitory’’ dichotomy

is a highly mechanical standard that fails to consider the

state’s legitimate interest in regulating certain kinds of

conduct. Indeed, the standard absolutely prohibits state

regulation of condauet on india reservations. no matter

how compeilng the State interes r how tangential rr

Re

CONCLUSION

The amici curiae states

Court note probable jurisdic

sideration.

respectfully request that this

‘tlon and grant plenary con

Respectfully submitted,

STATE OF FLORIDA

JIM SMITH

Attorney General of Florida

State Capitol

lallahassee, Florida

Telephone: (904

$2301

487-1963

STATE OF ALASKA

HAROLD M. BROWN

Attorney General ot Alaska

Department of Law

P.O. Box K

Juneau, Alaska 99811

Telephone: (907) 465-3600

STATE OF CONNECTICU!I

JOHN J. KELLY

Chief State’s Attorney

P. ©. Box 5000

Wallingford, Connecticut 06492

Telephone 203) 566-2026

STATE OF IDAHO

IIM JONES

Attorney General of idaho

State House

Roise, Idaho 83720

mio »QA

‘2. )

Telephone

STATE OF IOWA

[THOMAS j. MILLER

Attorney General of lowa

Hoover Building, Second Floor

Ves Moines, lowa 50319

Telephone: (515) 281-8373

STATE OF KANSAS

ROBERT T. STEPHAN

Attorney General of Kansas

Kansas Judicial Center

Topeka, Kansas 66612

lelephone: (913) 296-22

4c

iJ

STATE OF LOUISIANA

WILLIAM !. GUSTE, JR

Attorney General of Louisiana

234 Loyola Avenue, Suite 821

New Orleans, Louisiana 70112

Telephone: (504) 568-5575

STATE OF MISSISSIPPI

EDWIN LLOYD PITTMAN

Attorney General of Mississippi

PO 30x 220

lackson, Mississippi 39205

Telephone 601} 359-3680

STATE OF NEVADA

BRIAN McKAY

Attorney General of Nevada

Heroes Memorial Building

Capitol Complex

702) 885-41,

—41f

vevada 89 i

Telephone

Carson City,

\

STATE OF

LACY H. THORNBERG

Attorney General of

North Carolina

ROBERT E. CANSLER

Assistant Attorney General

Suite 207

Asheville, North Carolina 28801

Telephone: (704) 258-6083

STATE OF NORTH DAKOTA

NICHOLAS SPAETH

Attornev General of

North Dakota

State Capitol

Bismarck, North Dakota 58505

e| (701) 224-2210

OHIO

] ie nhone

STA

TE OF

ANTHONY J. CELEBREZZE, JR

Attorney General of Ohio

State Office Tower

30 E. Broad Street

( olumbus, Ohio 43266

Telephone: (614) 466-3376

STATE OF OKLAHOMA

Oklahoma Tax Commission

LAWRENCE BLANKENSHIP

General Counsel

501 Lincoln Blvd

Oklahoma City

73194

Ty |

e enhone

( yklahe ma

527

405) 5271-4

NORTH CAROLINA

19

STATE OF OREGON

DAVE FROHNMAYER

Attorney General of Oregon

100 Justice Building

Salem, Oregon 97310

felepnone: (503) 378-6368

STATE OF RHODE ISLAND

ARLENE VIOLET

Attorney General of

Rhode Island

72 Pine Street

Providence, Rhode Island

02903

Telephone: (401) 274-4400

SOUTH DAKOTA

MARK V. MEIRHENRY

Attorney General of

South Dakota

Pierre, South Dakota 57

Telephone: (605) 773-

STATE OF UTAH

DAVID L. WILKINSON

Attorney General of Utah

236 State Capitol

Salt Lake City, Utah 84114

Telephone: (801) 533-5261

STATE OF WISCONSIN

BRONSON C. LA FOLLETTE

Attorney General of Wiscon

State Capitol Building

P. O. Box 7857

.dison, Wisconsin 53707

HOH 'A6-1)777

'

mnmnone

}

STATE OF WYOMING

ARCHIE G. McCLINTOCK

Attorney General of Wvom ne

123 State Capitol

Cheyenne, Wyoming 82002

| 777-7841

elephone 307