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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 480 U.S. 202

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0113%3A05. Public record. Not legal advice.