Reply Brief — California v. Cabazon Band of Mission Indians

No. 85-1708

In the Supreme Court

United States

OCTOBER TERM. 1985

OF CALIFORNIA

ippeliants

ys

*

()} MISSI ih

ippelle es

On Appeal from the United States

Court of Appeals for the Ninth Circuit

APPELLANTS’ CLOSING BRIEF

JOHN K. VAN DE KAMP

Attorney General Oo! t!

California

STEVE WHIT!

Chief Assistant Attorney G

RODERICK E. WALSTON*

FREDERICK R. MILLAR, J!

Supervising Deputy Att

Ri DOLI (CORONA. IR

Deputy Attorney Gene!

00 State B iilding

San Francisco, ‘

Tel: (415) §57-3

iftorneys for Appetiant

State of ¢ alifornia

RALD J. GEERLIN

C ounse!

ER H. LYONS

Principal Deputy

LENN R. SALTER

Deputy County

Tenth Street, Suit

TABLE OF CONTENTS

[The Common Law Balancing Test Supports State and |

Jurisdiction in This Case

A. Applicability of Balancing Test

B. Common Law Displacement 4

( Federal Preemption

D. State Interest

f Inbal Interest

lI

Public Law 280 Authorizes the Application St

Local Gambling Laws in This Case }

\. The “Civil Regulatory-Cnminal Prohibitory” D

tinction ;

B. Application of the “Civil Regulatory-Cnminal Pt

hibitory’ Distinction

pplicability to Indian Tnbes

D Inbal Card Games

TABLE OF AUTHORITIES CITED

Cases

Ajax v. Gregory, 32 P.2d 560 (Wash. 1934)

A. K. Management Co. v. San Manuel Band of Mission

Indians, 789 F.2d 785 (9th Cir. 1986)

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

Blumenthal v. City of Cheyenne, 186 P.2d 556 (Wyo. 1947)

Bryan v. Itasca County, 426 U.S. 373 (1976)

Buxbom v. Naegele Outdoor Advertising Co., 739 F.2d 473

(9th Cir. 1984)

California v. United States, 438 U.S. 645 (1978)

City of San Luis Obispo v. Fitzgerald, 126 Cal. 279, 58 Pac

699 (1899)

City of Shreveport v. Belk, 258 So.2d 79 (La. 1972)

County of Plumas v. Wheeler, 149 Cal. 758, 87 Pac. 909

(1906)

Environmental Protection Agency v. California, 426

16, |

U.S. 200 (1976)

Ferguson v. Shrupa, 372 U.S. 726 (1963)

Hancock v. Train, 426 U.S. 167 (1976)

Johnson v. Yellow Cab Co., 321 U.S. 323 (1944) 5

Kennerly v. Distnct Court, 400 U.S. 423 (1971)

Knapp v. Schweitzer, 357 U.S. 371 (1958)

Milwaukee v. Illinois, 451 U.S. 304 (1981)

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

(1983)

Oliphant v. Suquamish Indian Tribes, 435 U.S. 191 (1978)

77

Rice v. Rehner. 463 U.S. 713 (1983) |, 2.

i

Rochin v. California, 342 U.S. 165 (1952)

Three Affiliated Tribes of the Fort Berthold Reservation '

Wold Engineering, US 90 L.Ed.2d 881 (1986)

United States v. Best, 573 F.2d 1095 (9th Cir. 1978)

|

ra

TABLE OF AUTHORITIES (

CASES

United States v. Dakota, 796 F.2d 186 (6th Cir. 1986)

United States v. Farris, 624 F.2d 890 (9th Cir. 1980)

United States v. Sosseur, 181 F.2d 873 (7th Cir. 1950)

United States v. Ward, 448 U.S. 242 (1980)

Washington v. Confederated Tribes of the Colville Reser

tion, 447 U.S. 134 (1980)

White Mountain Apache Tribe v. Bracker, 448 US

(1980)

Williams v. United States, 327 U.S. 71] 946 )

Wisconsin Winnebago Business Committee v. K

762 F.2d 613 (7th Cir. 1985)

[TABLE OF AUTHORITIES CITE!

Statutes

Cal. Bus. and Prof. Code

S$ 19400-19667

§§ 19560, 19590-19598

Cal. Govt. Code:

§ 8880, et. seq

$§ 8880.52-8880.55, 8880-4. 8880.48

S$ 88$80.15-8880.23

Cal. Pen. Code

ge

Ss 326.5

S 326.5(k)(4)

,

8 U.S.¢

, &

y 13

11<% E7

89 1152 and 1153

$1161

’ *

y 1162

Other Authorities

116 Cong. Rec. 35294 (1950)

H.R. 1063

H.R. Rep. No. 848, 83rd Cong st Sess. 3 (1953

S. Rep. 699

Hart & Wechsler, The Federal Courts and The |

System 770 (2d ed. 1973)

Restatement. Conflicts § 2h

No. 85-1708

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1985

STATE OF CALIFORNIA, ef a

4ppetiants

VS

(ABAZON BAND OF MISSION

Appellees

On Appeal from the United States

Court of Appeals for the Ninth Circuit

APPELLANTS’ CLOSING BRIEI

ARGUMENT

F

THE COMMON LAW BALANCING TEST SUPPORTS

STATE AND LOCAL JURISDICTION IN THIS CASE.

A. Applicability of Balancing Test.

In our opening brief, we observed that this Court has adopted a

common law balancing test in determining state jurisdiction over

Indian reservations. See, e.g. White Mountain Apache Tribe v

Bracker, 448 U.S. 136, 145 (1980) (question requires a “particu-

lanzed inquiry” into the “nature of state, federal, and tribal

interests at stake’); State Br. 10-11. The appellees and amici

tribes argue that the balancing test does not apply where the state

asserts jurisdiction over Indians rather than non-Indians, and that

the state lacks jurisdiction in such cases unless Congress expressly

provides otherwise. Bnef of Appellees (“Tmbes Br.) 16-17;

Laguna A.C. Br. 7-14; Tulalip A.C. Br. 23-2°. In Rice v. Rehner,

463 U.S. 713 (1983), however, this Court applied the balancing

test in holding that California can regulate liquor sales by licensed

Indian traders to non-Indian buyers. Similarly, in Washington \

Confederated Tribes of the Colville Reservation (Colville), 447

U.S. 134 (1980), this Court applied the balancing test in holding

that Washington State can tax on-reservation cigarette sales by

tribal smokeshops to non-Indian buyers. The Court in both cases

made clear that the balancing test has particular relevance where

the tribal enterprise depends on non-Indian patronage, stating

that principles of tribal sovereignty are not implicated in such

cases. Rice, 436 U.S. at 721, & n. 7, quoting from Colville, 447

U.S. at 151, & n. 27.

Here, the tribal games solicit and depend on non-Indian

patronage. Indeed, the games are successful because they are

operated free of constraints applicable to non-Indian enterprises

Further, the games are operated by non-Indian professional

operators who have entered into management contracts with the

Tribes. JA 63-65, 81-83. In effect, non-Indian operators are

conducting bingo games played by non-Indian patrons in circum-

vention of Siate law. In light of the extensive non-Indian involve-

ment here, the balancing test is particularly appropnate in

determining the junsdictional issue

tN

The Tribes argue that Rice is distinguishable because the Court

merely interpreted and applied a federal statute, 18 U.S.

3 1161, not applicable here. Tribes Br. 11; Jicarilla A.C. Br. 7:

Chehalis A.C. Br. 20; Laguna A.C. Br. 12-13. This argument

ignores both the analysis and result in Rice. The Court in Rice

held that the jurisdictional question depends primarily on whether

federal law preempts state law. Rice, 463 U.S. at 718-720

According to the Court, the preemption analysis depends on the

nature of the tribal “tradition;” in the absence of a sovereign tribal

“tradition,” the Court will attach “less weight” to tribal sover-

eignty in determining the preemption issue. /d. Employing this

analysis, the Court reasoned, in Part A of its decision, that

“tradition simply has not recognized a sovereign immunity or

inherent authority in favor of liquor regulation by Indians,” id. at

722, and in Part B that the federal statute, 18 U.S.C. § 1161, does

not preempt—and indeed authorizes—the application of state

regulatory liquor laws on Indian reservations. /d. at 725-735. In

short, the Court, having determined that a sovereign tribal “tradi-

tion” did not exist, held that federal law does not preempt state

law and indeed has the opposite effect. Since Indian tribes do not

have a sovereign tradition of conducting high stakes gambling

operations catering to non-Indians,' and since no federal statute

The Tribes argue that the tribal gambling operations are an “adapta-

tion” of traditional Indian gambling practices, citing the declaration of

an expert anthropologist. Tribes Br. 13-14. Whether or not the opera-

tions are an “adaptation”—an argument rejected by the district court,

see State Br. 19 n. 10—it is clear that Indian tribes have not traditionally

conducted high stakes gambling operations catering primarily to non-

Indian patrons, as here. State Br. 18-19 n. 10. Indeed, the Tribes’

anthropologist acknowledged that Indians traditionally gambled only for

religious and ceremonial purposes, id., which is consistent with the

declaration of another expert anthropologist stating that Indian tribes

have not traditionally engaged in the type of activity involved here. /d

As we explain later, the legislative history of the Organized Crime

Control Act, 18 U.S.C. § 1955, indicates that gambling regulation falls

within the traditional province of state and local agencies. 116 Cong

Rec. 35294 (1950) (remarks of Sen. Allott) (“{L]ocal law enforce-

ment officials... bear the primary responsibility in this area”). The

situation here is similar to Rice, where this Court noted that “tradition

simply has not recognized a sovereign immunity or inherent authority in

+

favor of liquor regulation by Indians.” Rice, 463 U.S. at 722 (emphasis

added)

preempts the application of State and local gambling laws, the

Rice analysis directly supports the application of State and local

laws here.

The Tribes argue that Colville is distinguishable because the

legal incidence of Washington State’s sales tax fell on non-Indian

buyers,’ and the legal incidence of California law here falls on the

Tribes. Tribes Br. 9-10. The Tribes’ argument is misplaced for

two reasons. First, the Court in Colville attached pnmary signifi-

cance to the tribes’ attempt to gain a competitive advantage over

non-Indian businesses by “market[ing] and exemption” from

State laws to non-Indians. Colville, 447 U.S. at 155. Rejecting the

tribal argument that the Indian Commerce Clause preempted

State law, the Court noted that although its decision will “lessen

or eliminate tribal commerce with non-members, that market

existed in the first place only because of a claimed exemption

from these very [State] taxes.” /d. at 157. Thus, the Court held

that Indian tribes cannot gain a competitive advantage against

non-Indian businesses by marketing exemptions from state law,

regardless of where the incidence of state regulation falls. Second,

the immediate incidence of California’s gambling laws here falls

directly on non-Indian professional operators who conduct the

gambling operations, JA 63-64, 81-83, and thus falls on non-

Indians in any event.

The Tribes also argue that Co/ville is distinguishable because

the Tribes here, unlike those in Colville, provide “value” to non-

Indians who play the games. Tribes Br. 10. The tribal product has

“value,” however, only because the Tribes are offering a prod-

uct—high stakes bingo—that is unlawful in California and thus

that non-Indian enterprises cannot similarly offer. In other words,

the tribal product has “value” only in the sense that contraband

has “value,” because it is marketed to buyers who cannot lawfully

obtain it under state law. The value of the tribal product depends

>The Tribes assert that Colville held that “Washington’s separate

tobacco products tax could not be imposed, because the legal incidence

of that tax fell directly on the tribal sellers.” Tmbes Br. 9. Colville

specifically noted that “[t}he State did not appeal” the lower decision

holding that the State tobacco products tax cannot be applied, and for

that reason that “all parties agree” that the tax cannot be imposed. 447

U.S. at 139 n. 2. Thus, the tobacco products tax issue was not before the

Court

less on tribal efforts than on state laws prohibiting the product

Such “value” is not entitled to judicial cognizance

B. Common Law Displacement.

The Tribes argue that the common law balancing test, if

otherwise applicable, has been displaced or “preempted” by

Pubiic Law 280, citing this Court’s decisions in Three Affiliated

Tribes of the Fort Berthold Reservation v. Wold Engineering

Three Tribes), US. , 90 L.Ed.2d 881, 890 (1986),

and Kennerly v. District Court, 400 U.S. 423 (1971). Tribes Br

17-19. In Three Tribes, this Court held that North Dakota could

not retrocede jurisdiction over Indian reservations acquired under

Public Law 280 by requiring tribes to waive sovereign immunity

as a condition for access to state courts. The Court ruled that

“Congress specifically considered the issue of retrocession but did

not provice for disclaimers” of jurisdiction acquired under Public

Law 280, and that North Dakota’s attempted ;etrocession con-

Sicted with the “congressional plan embodied in Pub L 280 and

thus [is]... preempted by it.” 90 L.Ed.2d at 892. In effect. the

Court held that Public Law 280 specifically regulates retrocession

and thus preempts all inconsistent state laws. Similarly, in Ken-

nerly, the Court held that Montana had not acquired jurisdiction

under Public Law 280 pursuant to specific procedures contained

in the act, and therefore that Montana could not assert jurisdic-

tion thereunder.

Public Law 280, however, does not similarly evince a congres-

sional intent to displace state regulatory jurisdiction over Indiar

reservations, where such jurisdiction exists under other federal

laws or under the common law balancing test. If the result were

Indian reservations than non-Public Law 280 states. where the

lattcy states have jurisdiction under other federal laws or under

the balancing test. “his result would conflict with the purpose of

Public Law 280 to broaden rather than reduce state jurisdiction

over Indian reservations.’ Thus, although Public Law 280 exclu-

The Senate report accompanying H.R. 1063, which became Public

Law 280, repeated in substance the House report, and stated that

“This legislation has two coordinate aims: First, withdrawal

Federal responsibility for Indian affairs wherever practicable

second, termination of the subjection of Indians to Federal laws

Ws

sively defines a state’s authority to acquire or retrocede jurisdic-

tion thereunder, as held in Kennerly and Three Tribes, Public

Law 280 does not exclusively define a state’s authority to regulate

gambling on Indian reservations. Although, as we argue later, we

believe that Public Law 280 delegates such authority, it does not

displace such authority as may otherwise exist.

Indeed, the Tribes’ preemption argument is inconsistent with

Rice itself. In Rice, this Court held that California—a Public Law

280 state—has the night to regulate liquor sales on Indian reserva-

tions. If Public Law 280 preempts state regulatory jurisdiction,

California would lack authority to regulate such liquor sales

except where such authority is delegated under Public Law 280

itself, a question not considered in Rice. Under this analysis, Rice

would have been wrongly decided.

C. Federal Preemption.

Apart from whether Public Law 280 displaces the federal

common law, the Tnbes argue that other federal laws preempt

State and local laws as applied here. First, they argue that

“current federal Indian policies” favoring tribal economic devel-

ypment preempt State and local laws. Trbes Br. 22-24. These

federal policies, they argue, are reflected in a presidential policy

tatement encouraging tnbal development, an internal memoran-

ng Assistant Secretary of Indian Affairs

5 -nuhed legislative proposal, and a declaration

3 tion by an official of the Bureau of Indian

presidential policy statement, however,

gambling or bingo as a means to achieve tribal

The statements by the BIA officials are

: establish an authoritive, cohesive federal policy

concerning the issues here. Indeed, the BIA statements are

inconsistent with the testimony of a Department of Justice

representative during a 1984 congressional hearing, stating among

other things that Indian tnbes lack the “authority or resources to

police these types of activities.” State Br. 26 n. 16. Unlike Rice,

the federal government has not filed an amicus brief supporting

the tribal position here. In any event, the statements cited by the

Tribes lack the force of law and cannot have a preemptive effect

applicable to Indians as such.” S. Rep. No. 699 (incorporating

H.R Rep No. 848), 83rd Cong.., Ist Sess. 3 (1953)

6

Second, the Tribes argue that the Secretary of the Interior

maintains oversight authority by approving tribal bingo ordi-

nances, and that the exercise of this authority preempts State and

local laws. Tribes Br. 25-26. In Rice and Colville, however, the

Secretary had also approved the tribal ordinances in question,

Rice, 463 U.S. at 716; Colville, 447 U.S. at 144, and, since the

Secretary did not otherwise regulate the matter, the Court at-

tached little significance to such approval. Indeed, the Court in

Rice specifically rejected the argument that secretarial approval

signified a congressional intent to “occupy the field,” stating that

the argument was contrary to “the plain language of the statute

and its legislative history.” Rice, 463 U.S. at 734 n. 18.

More importantly, the Secretary’s approval of tribal bingo

ordinances is not a prerequisite for tribal operation of the games,

and many games are operated without such approval. The

Cabazon Tne here, for example, although commencing its bingo

operation in or around March 1983, JA 27, did not seek or obtain

secretarial approval until September 16, 1986, barely a week

before the Tribe filed its brief on the merits. Tribes Br. App. B-3.

This scenario suggests that the Tribe was attempting to improve

its position in this litigation rather than comply with a prerequi-

site, and in any event shows that the Secretary maintains little or

no regulatory control over the games.

The Secretary’s lack of regulatory control is reflected in his

failure to adopt regulations governing the operation of the tribal

games. He does not, for example, regulate operating personnel.

the size of jackpots, the days or hours of operation, or the

distribution of revenues.* The games are wholly unregulated, and

* The Tribes note that the Secretary, under 25 U.S.C. § 81, has

guidelines establishing conditions for his approval of tribal bing

agement contracts, and that the guidelines require an FBI investigatior

of non-Indian management personnel. Tribes Br. 25-26, 30; San Manue

A.C. Br. 12-13. In fact, Indian tribes are free to conduct bingo game

without obtaining secretarial approval of management contracts, a

often do not secure such approval. The provision cited by the Tribes, 2

U.S.C. § 81, assuming that it applies to bingo operations at all, provides

only that contracts involving tribal funds or lands are “null and void

without secretarial approval; that any money “paid to any person by

Indian or tbe” pursuant to an unapproved contract can be recovered

an action brought “in the name of the United States;"’ and that t

recovered moneys shall be equally divided between the plaintiff and t

~

—

each tribe controls its own games. The tnbes can hire any

operating personnel, offer jackpots in any amount, commingle

bingo revenues with other revenues, and use revenues for any

purpose. For example, tribal revenues can be used to enrich

individual tribal members rather than fund tribal programs. The

Secretary's role is vastly different than in other cases where

secretarial involvement has been held to preempt state laws. See

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

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)

This case, unlike those, presents a regulatory void.

In our view, federal policy here is most clearly expressed in the

Organized Crime Control Act (OCCA), 18 U.S.C. § 1955,

which prohibits gambling operations “in violation of the law of a

State or political subdivision in which it is conducted.” The

tribe. Thus, secretarial failure to approve a management contract merely

makes the contract unenforceable but does not render the games illegal

Moreover, the risk of nonenforceability falls on the non-Indian operator,

not the tribe; 25 U.S.C. § 81 provides only for recovery of moneys paid

“by” an Indian or tribe, not for recovery of moneys paid fo an Indian or

tribe. The manifest purpose of the provision is to protect Indian tribes

from unapproved contracts, not to protect those with whom they

contract. For this reason, the provision has been invoked only in cases

where non-Indians sought relief against Indian tribes for breach of

unapproved contracts, and the provision was invoked to deny such relief

See A. K. Management Co. v. San Manuel Band of Mission Indians, 789

F.2d 785 (9th Cir. 1986); Wisconsin Winnebago Business Committee \

Koberstein, 762 F.2d 613 (7th Cir. 1985); Buxbom v. Naegele Outdoor

Advertising Co., 739 F.2d 473 (9th Cir. 1984). In snort, 25 U.S.C. § 3!

does not require Indian tribes to obtain secretarial approval of manage-

ment contracts, and the tribes have little incentive to seek such approval

Perhaps this explains why the Cabazon Tribe, although commencing its

bingo operation in or around March 1983, JA 27, never sought or

obtained secretarial approval during the pendancy of the operation

JA 64

Additionally, the tribal amici briefs indicate that many tribes operate

their own bingo games, rather than contracting with non-Indians for this

purpose. See Oneida A.C. Br. 4 (Oneida Tribe); Chehalis A.C. Br. 9

(Leech Lake Band); Laguna A.C. Br. 3-4 (Northern Arapahoe Tbe);

Laguna A.C. Br. 5 (Red Lake Band); Tulalip A.C. Br. 11 (Tulalip

Tribe). Since these tribes do not have management contracts with non-

Indians, the Secretary’s guidelines do not apply to them in any event,

since his guidelines apply only where he approves management

contracts

OCCA, on its face, prohibits tribal gambling operations in viola-

tion of state law. The Tribes argue that the OCCA does not apply,

citing Ninth Circuit decisions incorporating the “civil regulatory-

criminal prohibitory” distinction in the act. See United States \

Farris, 624 F.2d 890 (9th Cir. 1980); Barona Group v. Duffy, 694

F.2d 1185, 1190 (9th Cir. 1982); Tribes Br. 44-45. The more

persuasive view, we believe, is found in the Sixth Circuit’s recent

decision in United States v. Dakota, 796 F.2d 186 (6th Cir

1986), where the distinction was rejected as applied to the

OCCA. Citing Rice, the Sixth Circuit noted that the OCCA and

its legislative history contain “no indication” that the distinction

applies. 796 F.2d at 188. Indeed, if the regulatory-prohibitory

distinction were valid, the OCCA would be interpreted differently

depending on whether it is applied on or off Indian reservations.

since no serious argument can be made that the distinction

applies in off-reservation cases. More importantly, whether or not

the OCCA makes state gambling laws directly applicable on

Indian reservations, the OCCA does not preempt state gambling

laws aS so applied, and expresses a general federal policy of

deference to state gambling laws. As noted earlier, this Court held

in Rice that the fundamental question is whether federal law

preempts state law, not whether federal law authorizes the appli-

cation of state law.”

The legislative history of the OCCA makes clear that the states

have primary authority to regulate gambling and that federal law

does not preempt state gambling laws. During the congressional

debate, Senator Allott declared that

“The Federal Government will not attempt to preempt the

held of gambling regulation under this legislation. Federal

authorities will continue in their traditional role of cooperat-

ing with local law enforcement officials who will continue to

bear the primary responsibility in this area.” 116 Cong. Rec

35294 (1950) (remarks of Sen. Allott) (emphasis added)

The Tribes assert that California lacks standing to assert claims

under the OCCA because the federal government has exclusive author

ity to prosecute such claims. Tnbes Br. 45-46. Although we believe that

California has at least limited enforcement authority under the OCCA

see State Br. 43 n. 26, the relevant point is that the OCCA establishes a

,

federal policy in favor of the application of state gambling laws, whether

ir not the state has authonty to prosecute such violations

Thus, federal policy recognizes the “primary responsibility” of

state and local authorities in the field of gambling regulation

Federal policy supports the application of State and local laws

here, and in any case does not preempt their application.”

D. State Interest.

In our opening brief, we argued that the State interest is

affected here in two ways. First, since the tribal games enable

non-Indians to circumvent State gambling laws, the tribal games

exploit and undermine California’s general gambling policy. State

Br. 15-16, 21. Second, since the tribal games are not regulated,

they create substantial risks of organized criminal infiltration. /d

at 21, 25-29.

The Tribes argue that California has exaggerated the organized

crime problem. They argue that bingo is a relatively harmless

pasttime that is widely played. Tribes Br. 31-32; Laguna A.C. Br.

7-9. They note that California and other states authorize various

forms of gambling and conduct statewide lotteries. Tribes Br. 41-

42; Chehalis A.C. Br. 11, & Exh. A.

In our view, the Tribes have seriously underestimated the

organized crime problem. The Commission on the Review of the

*Some amici tribes argue that other federal laws provide sufficient

protection of state interests on Indian reservations, principally 18 U.S.C

§§ 1152 and 1153, which make the provisions of the Assimilative

Crimes Act, 18 U.S.C. § 13, applicable on Indian reservations. See, e.g.,

Williams v. United States, 327 U.S. 711 (1946); United States \

Sosseur, 181 F.2d 873, 874 (7th Cir. 1950); Laguna A.C. Br. 28; Sandia

A.C. Br. 23. Public Law 280, however, specifically provides that 18

U.S.C. §§ 1152 and 1153 do not apply in Public Law 280 states. JS App

25. The apparent purpose of the exception is to ensure that Public Law

280 states have direct jurisdiction over Indian reservations, not simply to

assimilate state laws into federal laws as applied on such reservations.

The Tribes also argue that the federal government has authonty under

other federal statutes to prosec e organized crime on Indian reserva-

tions, and that the federal government actually exercised this authority

in United States v. Dakota, supra, 796 F.2d 186, and United States

Farris, supra, 624 F.2d 240. Tribes Br. 30. In Dakota and Farris, the

federal government, relying on the OCCA, did not prosecute organized

crime, but instead sought to enjoin tribal casino operations that violated

state gambling laws. Moreover, under the Tribes’ view, the OCCA does

not apply to tribal gambling operations in any event

10

National Policy Toward Gambling has declared that “contrary to

popular belief, bingo cannot be characterized as a parochial, low-

stake game played by middle-aged and elderly women.” State Br

27. According to the commission, bingo “is, rather, a billion-

dollar industry (much of it iilegal) whose popularity permeates all

aspects of American society, and the abuses of which often go

undetected or unremedied.” /d.’ The California Attorney Gen-

eral’s Task Force on Legalized Gambling and Organized Crime

observed in 1967 that, when New York legalized bingo in 1958,

“racket minded promoters inevitably infiltrated vulnerable organi-

zations and received the lion’s share of the profits,” and that such

abuses were eliminated only after New York adopted “stringent

regulations and control.” /d. at 28-29. Thus, unregulated bingo

creates substantial organized crime risks, and to argue otherwise

ignores the lessons of past experience.

To be sure, California does authorize or operate certain lotter-

les, specifically the State Lottery, parimutuel horse-race betting,

and charitable bingo. See Cal. Govt. Code §§ 8880 et seg. (State

Lottery Act); Cal. Bus. & Prof. Code §§ 19400-19667 (California

Horse Racing Act); Cal. Pen. Code § 326.5 (charitable bingo)

California, however, extensively regulates these lotteries to safe-

guard against organized crime risks. For example, the State

Lottery Act establishes rules governing participation, disposition

of revenues for educational purposes, and selection of lottery

retailers. Cal. Govt. Code §§ 8880.52-8880.55, 8880-4, 8880.48.

The act also establishes a lottery commission to oversee the

lottery, whose members are appointed by the Governor and State

Senate. /d. at 8880.15-8880.23. The act provides for investigation

of violations and enforcement by law enforcement agencies. /d. at

8943-8952. Similarly, the California Horse Racing Act estab-

lishes a State agency to license horse racing operators; regulates

racing hours and days; and provides for distribution of revenues

Cal. Bus. & Prof. Code §§ 19400-19667. The act specifically

regulates parimutuel betting. Ja. at §§ 19560, 19590-19598. The

' The Tribes cite the commission’s statement that it “perceives little

difference between ‘charitable bingo’ and commercial bingo,” Tribes Br

40 n. 30, implying that Indian tribes should be as free to conduct

commercial bingo as charities are to conduct charitable bingo. Ir

context, however, the commission stated that both commercial! and

chantable bingo create organized cnme nisks, and therefore that

State should regulate Doth forms of bingo. JA 137-138

L]

act also provides for enforcement of the standards by law enforce-

ment agencies. /d. at §§ 19660-19667. Chantable bingo is also

subject to extensive regulation and control. Cal. Pen. Code

§ 326.5; see State Br. 24 n. 14. Charitable bingo must be con-

ducted only by charitable organizations; the games must be

operated only by members of the charitable organization; jackpots

cannot exceed $250; and revenues cannot be commingled with

other funds. /d.

The Tribes argue that their bingo operations comply with all

requirements of California law except for requirements limiting

size of jackpots and providing that the games must be operated by

members of the charitable organization. Tribes Br. 6.° The main

difference between tribal bingo and chantable bingo, however, is

that charitable bingo is subject to state regulatory control and

tribal bingo, under the Tribes’ view, is not. This difference, more

than the superficial similarities and differences cited by the

Tribes, relates directly to the organized crime nsk. A Department

of Justice representative, testifying before Congress in 1984,

stated that Indian tribes lack the “authority or resources to police

these types of activities,” and the tribes “do not have access to

subpoena power or state criminal records that are just two of the

many prerequisites to effective screening and auditing of a cnmi-

* The Tribes assert that the “average” prize awarded at the Cabazon

reservation during a four-month period in 1984 was $184.89, less than

the maximum prize authorized under State law. Tribes Br. 6, 41; JA

267. This figure is contained in an answer to interrogatories filed after

the summary judgment motions were filed, and is undocumented and

self-serving. It is not known how the Tribe calculated the figure, whether

the period in question was representative, or even whether the figure

represents the “average” or “mean” prize. In any event, it is irrelevant

whether the Tribe’s average prize is less than the maximum pmnze

authorized under State law, since there is no necessary corrolation

between the two. The figure has no relevance to the Morongo bingo

operation, and the Tribes have failed to disclose the prizes awarded by

that operation.

As noted in our opening brief, a State investigator has descnbed the

prizes advertised at the Cabazon bingo parlor dunng a random visit in

1984, and these prizes included cars, boats, and cash awards ol

thousands of dollars. State Br. 5 n. 2. Additionally, the Morongo games

have advertised pnzes of “[o]ver $2000 nightly’ and “more th

$5,000,000 in 1983.” /d

12

nal operation.” State Br. 26 n. 16.” Further, Indian tribes, unlike

State and local agencies, lack criminal jurisdiction over non-

Indian patrons. See Oliphant v. Suquamish Indian Tribes, 435

U.S. 191, 208 (1978). Thus, state regulation is the main bulwark

against organized criminal infiltration. Charitable bingo, unlike

tribal bingo, is protected by this bulwark.

Indeed, the differences between charitable bingo and tribal

bingo cited by the Tribes—involving size of jackpots and qualifi-

cations of operating personnel—relate directly to the organized

crime nsk. Because charitable bingo features only small jackpots,

organized crime has little incentive to gain control of the games

Because charitable bingo must be operated by members of the

charitable organization, organized crime has little opportunity to

gain operational control. The tribal games, on the other hand, by

featuring unlimited jackpots and utilizing non-tribal operating

personnel, create risks of organized crime involvement not associ-

ated with charitable bingo. Indeed, the tribal games fail to meet

other statutory requirements that lessen the organized crime risk,

such as the requirement that state and local authorities can

require revenues exceeding $5000 monthly to be used for other

purposes. Cal. Pen. Code § 326.5(k)(4). Moreover, under the

Tribes’ view, the tribal bingo operations are legal regardless of

whether or how much they comply with state law, and thus would

be legal even if they failed to conform to state law in all major

respects. In any event, the main difference between tribal bingo

and charitable bingo is that the !atter is regulated by the State and

the former, under the Tribes’ view, cannot be similarly regulated

The Tribes state that on June 20, 1986—after this Court granted

review—the Area Director of the BIA appointed a Cabazon security

guard to exercise federal police authority over 32 Indian reservations

southern California, including the reservations involved here. Tribes Br

31, & App. D. Since the officer was appointed pursuant to 18 U.S.

) 3055, id., which specifically relates to “suppression of liquor traffic,

question arses concerning the officer’s authority over non-liquor viola

uons. Assuming that the officer has such authority, it is doubtful that

single federal field officer with authority over 32 reservations will be able

indertake the screening and auditing procedures, among other

ire necessary | prevent organized cmminai infiltration

E. Tribal Interest.

The main argument advanced by the Tmnbes and amici tribes is

an economic one. They argue that bingo has enabled the tribes to

obtain revenue for tribal programs and to increase employment

opportunities for individual Indians. Tribes Br. 28-29; Seminole

A.C. Br. 3-11; Sandia A.C. Br. 11-15; Oneida A.C. Br. 4-5;

Tulalip A.C. Br. 8-16.'° In Colville, however, this Court rejected

an identical economic argument. The Court stated that the tribes’

“primary argument is economic,” and that the tribal smokeshops

“generate substantial revenues for the Tribes which they expend

for essential governmental services, including programs to combat

severe poverty and underdevelopment at the reservations.” Co/-

ville, 447 U.S. at 154. Still, the Court held that the tribes could

not “market an exemption from state taxation to persons who

would normally do their business elsewhere.” /d. at 155. In effect,

the Court held that tribal economic interests, however valid and

compelling, must yield to state interests where Indian tribes

market products to non-Indians in violation of state law, and

where state law itself has created the market that the tribes seek

to exploit. The same rationale applies here, where the Tnbes

attempt to market a gambling product that has value primanily

because it is prohibited under California law.

The Tribes argue that the success of tnbal commercia! ventures

depends on the tribes’ ability to market products to non-Indians.

Tribes Br. 12; Chehalis A.C. Br. 25. The Tribes are free, of

course, to market products to non-Indians in conformity with

state laws, and compete fairly with non-Indian enterprises for

non-Indian patronage. Such commercial activity may not reap the

phenomenal monetary rewards of tribal bingo—although it is not

clear that such rewards are proportionate to the needs of individ-

ual tribes—but the tribes must recognize that unregulated bingo

involving non-Indian patrons effectively exploits the state’s own

° The State and County attempted by written interrogatories to find

out the amount of revenues generated by the bingo operations, but the

Tribes refused to answer the questions on the ground that they were

“irrelevant.” See Response of Plaintiff Cabazon Band of Mission Indi-

ans to Interrogatories Propounded by County of Riverside and State oi

California, at 10 (Feb. 9, 1984). It is difficult to understand the

relevance of the Tribes’ economic argument if the amount of bing

revenues is “irrelevant.”

14

gambling policy and is thus particularly offensive to legitimate

State interests.

The states’ concerns would be resolved in part if Congress were

to enact legislation providing for federal regulation and control of

the tribal games. In that event, although the tribes would still be

exploiting state gambling policy, the current regulatory void

would be eliminated and the organized crime threat would disap-

pear. The Tribes thus have legislative remedies to pursue their

economic interest. To date, Congress has not legislated in the

matter other than enacting the OCCA, which makes state gam-

bling laws applicable on Indian reservations. Unless Congress

specifically legislates in favor of the tribal interest asserted here

the state interest in protecting the integrity of its gambling policy

and in preventing organized criminal infiltration outweighs any

tribal economic interests, however compelling.

PUBLIC LAW 280 AUTHORIZES THE APPLICATION OF

STATE AND LOCAL GAMBLING LAWS IN THIS CASE.

A. The “Civil Regulatory-Criminal Prohibitory” Distinction.

Public Law 280 provides that state “criminal” laws, and state

“civil laws .. . of general application to private persons and private

property,” shall have the “same force and effect” in Indian

country as elsewhere in the state. 18 U.S.C. § 1162, 28 U.S.

§ 1360; JS App. 23-25. State and local gambling laws here are

either “criminal” laws or “civil laws of general application to

private persons....” Therefore, Public Law 280, on its face,

provides that State and local gambling laws shall have the “same

force and effect” on Indian reservations as elsewhere. This con-

clusion, as explained in our opening brief, is supported by the

legislative history of Public Law 280, which shows that Congress

intended to fully extend state civil and criminal jurisdiction over

Indian reservations. State Br. 37-38.

The Tnbes and amici tribes argue that this Court, in Bryan \

[tasca County, 426 U.S. 373 (1976), distinguished between state

“civil regulatory” and “criminal prohibitory” laws in determining

State jumsdiction under Public Law 280. Tribes Br. 35-37: San

Manuel A.C. Br. 16-30; Tulalip A.C. Br. 41-52. We believe that

the Court’ distinction is dictum. and that the distincti

15

contrary to section 4(b) of Public Law 280, which prohibits state

“regulation” of tribal property only where inconsistent with spe-

cific federal laws. State Br. 35, 36-37. Further, as explained in our

opening brief, the distinction would create the anomaly that,

although Public Law 280 was intended to broaden state jurisdic-

tion over Indian reservations, the act would confer /ess junsdic-

tion than already exists under the common law balancing test. /d

at 35-36.

The Tribes argue that federal and state courts have often

distinguished between state “civil” and “criminal” laws in other

contexts, particularly in applying the Assimilative Crimes Act

(ACA), 18 U.S.C. § 13, and in applying federal constitutional

guarantees, such as the privilege against self-incrimination and

the bar against double jeopardy. Tribes Br. 37. The ACA,

however, which makes state criminal !aws applicable on federal

reservations, specifically includes only state criminal laws. See,

e.g. United States v. Best, 573 F.2d 1095, 1098-1100 (9th Cir

1978). Similarly, the constitutional guarantees relating to self-

incrimination and double jeopardy specifically apply only in

criminal proceedings. See, e.g., United States v. Ward, 448 U.S.

242, 248-251 (1980).'' Obviously the Court must distinguish

between “civil” and “criminal” laws where the applicable consti-

tutional or statutory provision requires the distinction. Public Law

280, however, does not explicitly or implicitly make the distinc-

tion. Rather, Public Law 280 expressly makes both state “civil”

and “criminal” laws applicable on Indian reservations, thus obvi-

ating any necessity to distinguish between civil and criminal laws

The Tribes argue that the regulatory-prohibitory distinction,

although not appearing in Public Law 280, is supported by public

policy. Tribes Br. 33-35; Laguna A.C. Br. 18-24; Chehalis A.C

Br. 14; San Manuel A.C. Br. 18-24; Tulalip A.C. Br. 32-41, 59-

60. The public policy, they argue, is manifested by this Court's

decision in Johnson v. Yellow Cab Co., 321 U.S. 323 (1944),

Also, the state court decisions cited by the Tmbe involve state

statutes specifically differentiating between “regulation and “prohid

tion.”” See City of Shreveport v. Belk, 258 So.2d 79, 80-81 (La. 1972

(state statute authorizing political subdivisions to “regulate

prohibit” beer sales); Blumenthal v. City of Cheyenne, |86 P 2d 55¢

565-567 (Wyo. 1947) (state statute authonzing n valit

late” traffic); Tnbes Br. 37

16

where Oklahoma argued that the Assimilative Crimes Act made

Oklahoma liquor laws applicable to liquor shipments to federal

military reservations. Laguna A.C. Br. 18-24; Tulalip A.C. Br

59-60. Although the Court did not decide that issue, it stated in a

footnote that a “strong argument” can be made that Congress did

not intend to require federal military officials to acquire state

“permits” as a condition for such liquor shipments. 321 U.S. at

380 n. 8. Perhaps more direct authority for the tribal view is found

in this Court’s decisions in Hancock v. Train, 426 U.S. 167

(1976), and Environmental Protection Agency y. California

EPA), 426 U.S. 200 (1976), where this Court held that the

Clean Air Act and Clean Water Act do not require federal

agencies to obtain state permits. In Hancock and EPA, the Court

distinguished between state “substantive” laws— which were held

applicable to federal agencies—and stat procedural” laws

which were held not applicable

Distinctions between state “sub a ’ and “procedural”

laws, or between state “regulator i¢ “prohibitory” laws, per-

haps might have more validity where, as in Hancock, EPA and

Yellow Cab, the question was whether state laws apply to federal

facilities that are subject to a pameoply of other federal regulator,

laws. Under these circumstances, the inapplicabflity of state law

does not create a regulatory wid im Hancock and EPA, for

example, federal facilities causeng pollution were still subject to

the regulatory provisions of the Clean Air Act and Clean Water

Act. Similarly, in Yellow Cab the Oklahoma military reservation

was still subject to federal statutes and regulations governing

shipment, distribution, and us liquor On military reservations

To apply this distinction here, however, would create a regulatory

void not existent in Hancock, EPA and Yellow Cab. As noted

above, Congress has enacted no legislation regulating tribal bingo

games, and the Secretary of the Interior does not regulate the

games. Thus, unless state laws apply, the tribal games are not

subject to any regulatory controls other than those that are self-

imposed. The Tnbes’ policy argument, although arguably valid

where federal facilities are involved, has little merit here

Che regulatory-prohibitory distinction, except where based on

easonably Clear expression of congressional intent, appears to be

rm ct! federal comm iw, in that it is “not explicitly

.

federal tutory or constitutional COmMmmand

Set boart & Wechsler | FEDERA!I ( Ot} RTS AN T pay by

17

ERAL SYSTEM 770 (2d ed. 1973). Although it is appropriate to

adopt common law where Congress has not spoken—indeed, the

common law balancing test applied in Rice was adopted for this

reason—it is less justifiable to adopt common law distinctions in

construing federal statutes, since the primary federal lawmaking

power reposes in Congress rather than the courts. See Milwaukee

v. Illinois, 451 U.S. 304, 313-314 (1981). Perhaps for this reason,

this Court has recently indicated its reluctance to make such

distinctions. See Rice, 463 U.S. at 730 n. 13, 734 n. 18 (“[I]n the

absence of a context that might possibly require it, we are

reluctant to make such a distinction”); compare California \

United States, 438 U.S. 645 (1978) (holding that Reclamation

Act of 1902 requires federal agencies to acquire state water nghts

permits), with EPA v. California, supra, 426 U.S. 200 (holding

that Clean Water Act does not require federal agencies to acquire

state water quality permits). See also Ferguson v. Shrupa, 372

U.S. 726, 732 (1963) (“Nor are we able or willing to draw lines

by calling a [state] law ‘prohibitory’ or ‘regulatory’ ’’)

The Tribes argue that the regulatory-prohibitory distinction is

not “unworkable” because it simply distinguishes between state

laws that “put a stop” to an activity and those that allow the

activity to “go on within the bounds of prescribed rules, restric-

tions, and limitations.” Tnbes Br. 38, quoting from Ajax \

Gregory, 32 P.2d 560, 563 (Wash. 1934). It is often difficult,

however, to determine whether a state law is intended to “stop”

an activity or allow it to conditionally proceed. The conditions

attached to a general prohibition may embody state policy more

than the prohibition itself, just as exceptions often swallow up a

general rule. Minnesota notes in its amicus brief that Minnesota's

narcotics and dangerous weapons laws may be considered “civil

regulatory” because they allow narcotics and dangerous weapons

to be possessed and sold under prescribed conditions. Minn. A.C

Br. 18. If so, the Tribes’ argument would mean that states lack

jurisdiction to prohibit sales of narcotics and dangerous weapons

on Indian reservations. It cannot be imagined that Congress

intended such a result in enacting Public Law 280

B. Application of the “Civil Regulatory-Criminal Prohibitory”

Distinction.

The difficulties of applying the regulatory-prohibitory distinc-

tion are evident in this case. The Tribes argue that California

gambling laws are “regulatory” because California authorizes

bingo for chantable purposes. Tmbes Br. 37-42. The purpose

California law, however, is not simply to prefer charitable bing

over commercial bingo as a socially acceptable activity. Rather

its purpose is to prohibit gambling except where regulated and

controlled by State of local authorities, because organized crime

has been shown to grow where not adequately regulated by loca!

authonities. State Br. 22-24. California policy, then, is affected not

by the type of gambling activity involved, but rather by whether it

is sufficiently controlled by State of local standards backed by the

State's law enforcement apparatus. In short, California absolutely

prohibits unregulated gambling and makes no exceptions. Thus,

California gambling laws are “prohibitory” rather then “regula-

tory,” assuming the validity of the distinction

This Court has often held that the states have general power to

define crimes and offenses in our federal system, subject to

Congress’ power to define crimes under federal law. See Rochin \

California, 342 U.S. 165, 168 (1952); Knapp v. Schweitzer, 357

U.S. 371, 376 (1958). Principles of federalism thus require

deference to state laws defining whether gambling enterprises are

criminal! or not. The same principles should apply to state laws

relevant to tnbal gambling enterprises, assuming that such state

laws are applied in a uniform and nondiscriminatory manner

C. Applicability to Indian Tribes.

The Tmbes argue that Public Law 280 does not provide for

State jurisdiction over Indian tribes, as opposed to individual

Indians. Tmbes Br. 33-35. Nothing in Public Law 280 or its

legislative history supports this limitation. Public Law 280 makes

state laws broadly applicable “within...Indian country” and

makes no exceptions for Indian tribes. JS App. 23. The Tribes’

argument is inconsistent with the purpose of Public Law 280 to

broaden state jurisdiction over Indian reservations. See note 3,

supra. The argument would allow tribal commercial enterprises to

operate free of constraints applicable to individual Indian enter-

prises, even though both may equally impair state interests or

promote tnbal welfare. The distinction is not supported by the

language or policy of Public Law 280 and should be rejected

D. Tribal Card Games.

Finally, the Tribes argue that Riverside County cannot apply its

card parlor ordinance to the Cabazon card games. Tribes Br. 47-

50. Both the common law balancing test and Public Law 280

support the application of the ordinance. Under the balancu

test, the tnbal activity depends on non-Indian patronage, and n

federal law preempts the ordinance. Therefore, under Rice, the

Tnbe has no “vested nght” to conduct the activity. Rice, 463 U.S

at 721, & n.7. Public Law 280, in providing for the application of

the “civil laws of such State that are of general application to

private persons or private property,’ JS App. 23, clearly encom-

passes local ordinances. County ordinances, under both California

law and the laws of other states, are part of the body of state law

See e.g., County of Plumas v. Wheeler, 149 Cal. 758, 87 Pac. 909

(1906); City of San Luis Obispo v. Fitzgerald, 126 Cal. 279, 281,

58 Pac. 699 (1899); Restatement, Conflicts § 2b. Moreover, the

legislative history of Public Law 280 clearly indicates that the act

includes local ordinances.'* Therefore, under both the common

law and the statute, the Riverside County ordinance is applicable

here

* According to the congressional reports accompanying H.R. 1063,

which became Public Law 280, the BIA contacted “State and /oca/

authorities” to determine their willingness to assume junsdiction over

Indian reservations. S. Rep. No. 699 (incorporating H.R. Rep. No

848), 83d Cong., Ist Sess. 5 (1953) (emphasis added). Nevada was not

given jurisdiction under the enactment because “authorities of some

counties have indicated their willingness to accept junsdiction, others

opposed it, and still others stated they would accept such junsdiction

only with an accompanying Federal subsidy.” /d. at 6 (emphasis added )

Appended to the Senate report was a letter from the Assistant Secretary

of the Interior stating that the BIA had consulted with “State and /oca/

authorities” in the affected states; that “State and /oca/ authonities”

were agreeable to the transfer of jurisdiction; that “some of the coun-

ties” in Nevada were opposed to the transfer of jurisdiction; and that the

BIA had not consulted with “State and /oca/ authorities” in states other

than those specifically mentioned. /d. at 6-7 (emphasis added). Finally,

the Senate report noted that the proposed transfer of jurisdiction was

consistent with other pending legislation that would transfer responsibil-

ity for certain Indian health and welfare programs to a “State, county, or

municipal subdivision " Id. at 4 (emphasis added). Thus, the

legislative history unequivocally shows that Public Law 280 includes

local ordinances

CONCLUSION

For the foregoing reasons, it is respectfully requested that this

Court reverse the decision below

Respectfully submitted,

JOHN K. VAN DE Kamp

Attorney General of the State of

California

STEVE WHITE

Chief Assistant Attorney General

RODERICK E. WALSTON

FREDERICK R. MILLAR, JR

Supervising Deputy Attorneys General

RUDOLF CORONA, JR

Deputy Attorney General

Attorneys for Appellant

State of California

GERALD J. GEERLINGS

County Counsel for Riverside County

PETER H. LYONS

Principal Deputy County Counse!

GLENN R. SALTER

Deputy County Counsel

Attorneys for Appellants

Riverside County, et al