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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0113%3A18

## Record

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

## Text

No. 85-1708

SEP 24 1986

\
IN THI \
Supreme Court of the United SVaieae

OCTOBER TERM, 1986 eee rere

ANIOL, IRs

On Appeal from the United States Court of Appeals
for the Ninth Circuit

BRIEF AMICI CURIAE OF PUEBLO OF LAGUNA,
AGUA CALIENTE BAND OF MISSION INDIANS,
CHEMEHUEVI INDIAN TRIBE,

GILA RIVER INDIAN COMMUNITY,
INTER-TRIBAL COUNCIL OF NEVADA, INC,
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
NATIONAL CONGRESS OF AMERICAN INDIANS,
POARCH BAND OF CREEK INDIANS,
PUYALLUP TRIBE OF INDIANS,

RED LAKE BAND OF CHIPPEWA INDIANS,
SAC & FOX TRIBE OF INDIANS,
SENECA NATION OF INDIANS, AND
SHOSHONE AND NORTHERN ARAPAHOE TRIBES
OF THE WIND RIVER RESERVATION

[THOMAS W. FREDERICKS
FREDERICKS & PELCYGER
1881 Ninth Street

Suite 216, Canyon C¢
Boulder, Colorads

303) 443-1683

thern Arapa

RODNEY D. LEWIS
| Offices
t Office Box 400

WILSON EPES PRINTING CO ( - 789-0096 WASHINGT C

FOR PURPOSES OF ARGU\
THE PARADE OF HORRIBI
BY APPELLANTS WERE
THE ABSENCE OF STATE
APPELLANTS’

LEGISLATIVE

4

overelyl

ne

ty

1]

OF CONTENTS—

Parade of Horribles

ently Anticipat Yr
cipate, Proper Respect

and Congress’

ve, Not a Judi

lal,

y "77 } 1]
y Arguendo Appellants En-

tor Tribal

be Plenary Power

rribes Requires that |
juires that Appellants

Remedy

iil

TABLE OF CASES AND AUTHORITIES
CASES Page

Barona Group of Capitan Grande Band, Etc. V.

Duffy, 694 F.2d 1185 (9th Cir. 1982), cert. de-

nied, 461 U.S. 929 (1983) iin, ae
Bryan V. Itasca County, 426 U.S. 373 (1976) ..10, 12, 18, 19
Cabazon Band Vv. County of Riverside, 783 F.2d 900

(9th Cir. 1986) Fo bbe Be wt
Cherokee Nation Vv. Georgia, 30 U.S. (5 Pet.) 1

(1831) 28
Kenne.v ly Vv. District Court of Montana, 400 U.S.

423 (1971) 12
Kerr-McGee Corp. Vv. Navajo Tribe of Indians, 105

S. Ct. 1900 (1985) 28, 29
McClanahan v. Arizona Tax Commission, 411 U.S.

164 (1973) passim
Moe Vv. Salish and Kootenai Tribes, 425 U.S. 463

(1976) 12
Montana Vv. Blackfeet Tribe of Indians, 105 S. Ct.

2399 (1985) 10-12, 25, 27
New Mexico v. Mescalero Apache Tribe, 462 U.S.

324 (1983) 14,15
Oneida County Vv. Oneida Indian Nation, 105 S. Ct.

1245 (1985) 10
Ramah Navaie School Board, Inc. v. Bureau of

Revenue of New Mevxico, 458 U.S. 832 (1982) 15

Red Lake Band of Chippewa Indians vy. State of
Minnesota, et al., 311 Minn. 241, 243 N.W.2d

722 (1976) 5
Rice v. Olson, 324 U.S. 786 (1945) 10
Rice v. Rehner, 463 U.S. 713 (1983) 12-14, 16-17, 20,

99 97
22,21

Santa Clara Pueblo v. Martinez, 436 U.S. 49
(1978) 28
Seminole Tribe of Florida v. Butterworth. 658 F.2d
310 (5th Cir. 1981), cert. denied, 455 U.S. 1020

(1982) 19
The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867) 12
Three Affil. Tribes of Ft. Berthold v. Wold Eng’ a,

106 S. Ct. 2305 (1986) 14,18

United States v. Kagama, 118 U.S. 375 (1886)....10, 26, 28

TABLE OF

lnite ad State s V. Marcye 5S, 557 F 2d 136] (9th Cir.

1977)

iv

CASES AND AUTHORITIES

Washinaton Vy.
li dian Re Sé rvation, 447 U.S. 134 ( 1980)

White Mountain Apache Tribe Vv. Bracke r, 448

136 (1980)

Williams Vv. Lee ,
Williams v. United States, 327 U.S. 711 (1946)
Worceste rv. Ge orga, 31 USS. (6 Pet.) O15 (18:

Confederated Tribes ef the Colvill

358 U.S. 217 (1959)

FEDERAL STATUTES AND REGULATIONS

An Act for the Relief of the Mission Indians
the State of California, 26 Stat. 712 (1891)
15, 1953, Pub. L. No. 83-280,

(1953) 2,

Act of August
Stat. 588

Executive Order of May 15, 1876

Federal Enclaves Act, 62 Stat. 757 (1948),

$1152 (1982)

Organized Crime Control Act of 1970, Pub. L.
91-452, 84 Stat. 922 (1970), 18 U.S.C. §§
1511 (1982)

S$ 1161 (1982)

(1982)

U.S.C.

18 U.S.C

25 U.S.C

2c «6
8]

Ps

>

LEGISLATIVE MATERIALS

H.R. 1920, 99th Cong., lst Sess. (1985)

Hi aringds

comm. No. 5

7

\

S.30 and Related Bills Before

oT the House Comm. On the

ciary, 91st Cong., 2d Sess. (1970)

H.R. Rep. No. 1549, 91st Cong., 2d Sess. repri
in 1970 U.S. Code Cong. & Admin. News 4007

S. Rep. No. 617, 91st Cong., 1st Sess. (1969)

H.R. Rep.
H.R. Rep.
131 Cong.
116 Cong.
116 Cong.
116 Cong.
116 Cong.

No. 848, 83rd Cong., Ist Sess. (1953)
No. 3251, 51st Cong., 2d Sess (1891)

Rec.
Rec.
Rec.
Rec.

Rec.

54124 (daily ed. April 4, 1985)
536280 (Oct. 12, 1970)
H35287 (Oct. 7, 1970)

H35191 (Oct. 6, 1970)

$952 (Jan. 23, 1970)

Continued

Page

?()
15, 16
14, 16
13, 14

28

Q

1,6, 17-20, 26

29

TABLE OF CASES AND AUTHORITIES—Continued

116 Cong. Rec. S820 (Jan. 22, 1970)

116 Cong. Rec. S575 (Jan. 21, 1970) 21,

115 Cong. Rec. S769 (Jan. 15, 1969)
115 Cong. Rec. 839906 (Dec. 18, 1969)

STATE AUTHORITIES
Cal. Const. art. IV, § 19(c)

OTHER AUTHORITIES AND MATERIALS

Cohen, Handbook of Fe de ral Indian Law (1942?
ed. )

Feldman, Preemption and the Dormant Commerce
Clause 7 Implications an Fe de ral Indian Law, 64
Ore. L. Rev. 667 (1986)

Peleyger, Justices and Indians: Back to Basics, 62
Ore. L. Rev. 29 (1983)

Prepared Statement of Victoria Toensing, Deputy
Assistant U.S. Attorney General, Criminal Divi-
sion, before House of Representatives Committee
on Interior and Insular Affairs, Concerning Vari-
ous Acts to Regulate Gambling on Indian Reser-
vations, November 14, 1985

President’s Statement on Indian Policy, 19 Weekly
Comp. Pres. Doc. (Jan. 24, 1983)

Report of the Commissioner of Indian Affairs,
1875

Report of the Secretary of the Interior, November
1, 1883

Report of Special Agent John G. Ames in Regard
to the Condition of the Mission Indians of Cali-
fornia, With Recommendations, Wash., D.C., Oc-
tober 28, 1873, in Papers Accompanying The
Report of the Commissioner of Indian Affairs,
1873

U.S. Department of the Interior, Federal Indian
Law (1958)

i)
wd)
rh IO IO DO

Page

—

~~

bo

Or

a 4

25, 26

IN THE
Siypreme Court of the Wuited States
OCTOBER TERM, 1986

No. 85-1708

STATE OF CALIFORNIA, eft a/..
Appt |
V. oils

CABAZON BAND OF MISSION INDIANS, et a
Small
y i ppt tts
On Appeal from the United States Court of Appeals
for the Ninth Circuit

BRIEF AMICI CURIAE OF PUEBLO OF LAGUNA,
AGUA CALIENTE BAND OF MISSION INDIANS,
CHEMEHUEVI INDIAN TRIBE,

GILA RIVER INDIAN COMMUNITY,
INTER-TRIBAL COUNCIL OF NEVADA, INC.
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
NATIONAL CONGRESS OF AMERICAN INDIANS,
POARCH BAND OF CREEK INDIANS,
PUYALLUP TRIBE OF INDIANS,

RED LAKE BAND OF CHIPPEWA INDIANS,
SAC & FOX TRIBE OF INDIANS,
SENECA NATION OF INDIANS, AND
SHOSHONE AND NORTHERN ARAPAHOE TRIBES
OF THE WIND RIVER RESERVATION

INTEREST OF AMICI CURIAE
The tribal amici are all federally-recognized Indian
tribes which exercise powers of self-government. All
tribal amici consider their ability to generate revenues,
including bingo revenues where desired, as a key element
in their efforts to control their destiny and decrease their
dependence on the federal government.

or the Pueblo of Laguna of New Mexico, a main pri-
ority is improving the welfare of its members. The Pue-
blo of Laguna has developed numerous business enter-

‘Ises that pr vide income to the Pueblo and employ} ment
for its members. The Pueblo currently does not e1
in any bingo activities, but views this case as potentially
‘educing its options for increasing tribal independence
and raising tribal members’ standard of living without
funding. Thi

corresponding need for increased feder:

} i?

ercise 1ts soverelgon powers without State interference and

h 4 + 4 }
i

Jee ribal members to hostile State control.

The Agua Caliente Band of Mission Indians and the
(heme! uevl Indian Tribe are located on enarate reser-
‘alifornia. While the do not nov conduct

bingo games on their reservations, they view the instant

case as clarifying the scope of P. L. 280 and. more gen-
Q) al’ e1reun St; res inde) w! ic} the State may have
mrre Ve) actlvit T thel) members. ntro!] whicl
will affect dramatically the Tribes’ options for develop-
¢] l he I iture
rhe G River Indian Comn nity believes that a re
dification of the decision below v ld | ea
] )
nt mpact upon it and its members, the Pima
ndian Tribe and the Maricopa Indian Tribe. The Tribes
| al (711 R} ) } Ve since time im! en lla mal line
er yf o ernmen?t and il more recent times the
r nd M 1 have organized as the Gila Rive
Indian | , In the summer of 1984, the Tribes
t t t rat PrOnpmMent and mm: nave! ert rae
! pe} e J; \lai and, furthe decided t LLLOV
) ! n the State of Arizona raising issue
Nn nave et to be resolved \ r"¢
‘¥ { r : } Oo 2 er) the} ow}
‘ { e) t? he ribe | Impro'

and expand various governmental programs involving

tribal members’ health and social welfare.
The Inter-Tribal Council of Nevada, Ine. (“ITCN”)
incorporated under the laws of the State of Nevada.
ITCN is an exclusive tribal membership

organization
composed of 25 federally-recognized Tribes. The general
corporate mission of ITCN is to promote the health, edu-
cation, business, cultural and governmental needs of its
members. ITCN is a strong advocate of tribal govern-
ment and places emphasis upon the Tribes’ authority,
management and jurisdictional integrity to govern their

i
people.

The Miccosukee Tribe of Florida has an enrolled men
bership of over 500 Indians. While the Miccosukee cur-
rently do not operate any gambling activities on their
Reservation, they view the operation of bingo games as
an attractive means to generate substantial revenues for
the Tribe. The Miccosukee Tribe is seeking to generate
additional funds to bolster all aspects of tribal programs,
ranging from education to economic development.

The National Congress of American Indians (“NCAI’)
as founded in 1944 and is the oldest and

"i largest na-
tional organization of Indian governments and individu-
ls in the United States, with a membership of federally-
recognized tribes representing a combined population of
over 750,000 American Indian and Alaska Native people.
NCAI and its members have a profound concern for the
bility of Indian tribes to protect their sovereign immu-

ity and self-governance rights. Such rights are critica]

o the survival of Indian tribes as distinct cultural enti-
L1es, and LO the economic development desperately needed
) breal the cycle of povert\ which has plagued Indian

people for generations.

} . ge . .
The Northern Arapahoe Tribe of the Wind River Res-
t10n 18 vitally affected DY Unis litigation since it has
nducted a bingo operation since 1984. That operation

4

is managed and controlled through the Northern Arapa-
hoe Entertainment Committee, a tribal governmental
body elected by the Tribe. Revenues from the bingo oper-
ation are used primarily for tribal employment.

The Poarch Band of Creek Indians conduct, pursuant
to a Tribal ordinance and a contract approved by the
Secretary of the Interior, a commercial bingo operation
on the Tribe’s reservation in Atmore, Alabama. The out-
come of this case will directly affect the Tribe’s sovereign
authority to conduct its commercial business in order to
raise governmental revenues free of state regulatory
control.

The Puyallup Tribe of Indians is located in the west-
ern part of the State of Washington. The only natural
resource which generates revenue for the Tribe or its
members is the meager salmon fishery harvested under
the Tribe’s treaty rights. The Tribe licenses, regulates
and taxes bingo games operated by members of the Tribe
pursuant to a tribal ordinance approved by the Secretary.
Tax revenue from these enterprises furnishes virtually
all of what little non-federal revenue the Tribe generates
in its effort to become more self-sufficient. The revenues
from the bingo activities are used for tribal governmen-
tal purposes such as law enforcement, fisheries manage-
ment, housing and the tribal school system.

“7%

The Red Lake Band of Chippewa Indians is located
on the Red Lake Reservation in Minnesota, with almost
two-thirds of its 7,500 total enrolled members living on
the Reservation. The inherent rights of sovereignty
possessed by the Red Lake Band have been recognized by
the State of Minnesota’ and the principle that the
“State of Minnescta has no authority to govern the
affairs of persons within the territorial boundaries of
the Red Lake Reservation except as specifically authorized

The Red Lake Band ha been ex epted by Cr ngress from the

7? ’ > 9 seanall ,
state S | L, Z25U irisdict n

)

to do so by Congress’”’ has been accepted by the State of
Minnesota. Red Lake Band of Chippewa Indians Vv. State
of Minnesota, et al., 311 Minn. 241, 248 N.W. 2d 722,
726 (1976). The Red Lake Band by tribal law for years
has regulated the conduct of bingo games and presently
operates a tribal bingo game managed by tribal members.
The revenues generated by the tribal bingo games are
used to stimulate economic development and supplement
the tribal governmental budget.

The Sac & Fox Tribe of Indians of Oklahoma provides
various governmental services to its members and all
other persons within its jurisdiction, ranging from police
and fire protection through a variety of social programs.
The Tribe, although not an owner of a bingo operation,
regulates and licenses bingo activity within its jurisdic-
tion, and tribal revenues from bingo operations within
its jurisdiction comprise a significant portion of the
tribal tax base. The Sac & Fox Tribe has filed as an
amict in this case in order to protect its tax base from
interference by the State.

The Seneca Nation of Indians of New York is governed
by a Tribal Council that has operated pursuant to a
constitution for the last 140 years. The Seneca’s bingo
operation generates a significant portion of the total non-
federal operating revenue of the Tribe. The revenues
which the Seneca Nation generates are used to meet the
needs of its 5,750 members in areas such as law enforce-
ment, education, economic development and tribal gov-
ernment.

The Shoshone Tribe of the Wind River Indian Reserva-
tion in Wyoming has over 2,400 tribal members who
reside on the Reservation. The Tribe currently does not
engage in any bingo activities, but views this case as one
which potentially may infringe drastically upon the ability
of the Tribe to exercise its sovereign powers without state
interference and subject tribal members to hostile state
control.

6

Amici essentially are tribes whose ancestors bargained
for and received Congressional acknowledgement of their
right to reside on their reservation free from regulation
by the states. Accordingly, the tribes have a considerable
interest in halting the increasing tendency of courts, in
effect, to lower the barriers to state jurisdiction over In-
dians on their reservations through the use of a “bal-
ancing of governmental interests” test.

SUMMARY OF ARGUMENT

In this case, California seeks to regulate Indian Tribes’
conduct of bingo games on their reservations. These
Tribes, however, enjoy an historic immunity from state
laws on their reservations which was confirmed by Con-
gress in the Act setting aside the reservations. Congress
has not divested these Tribes of any relevant aspect of
their immunity from State laws, such as authorizing the
state to rewulate the tribal bingo games. No federal law,
including Public Law 83-280 and the Organized Crime
Control Act, grants the State the jurisdiction it seeks
here or makes the Tribes’ conduct of bingo games a fed-
eral offense. Accordingly, this case is controlled by the
rule in McClanahan v. Arizona Tux Commission, 411
U.S. 164 (1973), that state laws are not applicable to
Indians on a reservation absent express federal consent.

Appellants, nonetheless, seek to avoid McClanahan by
urging that the relevant federal laws and tle backdrop
of Indian immunity from state laws in this case be ig-
nored through the application of a balancing test to de-
termine whether the State may regulate the Tribes. Ap-
pellants argue, pursuant to the balancing test, that state
interests outweigh federal and tribal interests. The appli-
cation of a balancing test, however, to determine whether
a state has regulatory jurisdiction over /ndians on a res-
ervation never has been employed by this Court. Instead,
the balancing test has been applied only where state reg-

ulatory jurisdiction over non-Jndians on a_ reservation,

with respect to whom states may have legitimate inter-
ests, was at issue. Thus, to apply a balancing test in this
case would require the Court to ignore over 150 years of
its federal Indian decisions.

Appellants also allege that in the absence of state juris-
diction, organized crime, among other horribles, will per-
vade the tribal games. No such evidence exists in this
case. Moreover, even if such evidence existed, federal and
tribal laws are adequate to address any problem which
may arise at the games. And, in any event, Appellants’
remedy properly is legislative rather than judicial in
light of this Court’s long deference to Congress where
adjustments to Indian immunities are sought.

ARGUMENT
I. CALIFORNTIA’S ATTEMPT TO REGULATE INDIAN

TRIBES’ CONDUCT OF BINGO GAMES ON THEIR

RESERVATIONS IS PRE-EMPTED UNDER FED-

ERAL LAW.

A. Where Indian Tribes Enjoy a Tradition of Immun-
ity from State Regulation That Is Confirmed by
Congress, This Court Long Has Held That Immun-
ity May Not Be Repealed Absent the Clear Consent
of Congress.

1. The Applicable Law.

Stripped to its essence, this case concerns the attempt
by a state, without Congressional consent, to impose its
laws upon Indian tribal governments on their reserva-
tions. The state laws at issue—regulating the conduct of
bingo games—are imposed directly upon Indian tribes
that operate bingo games on their reservations, rather
than upon the Indian and non-Indian participants in those
games. See, e.g., Cabazon Band v. County of Riverside.
(83 F.2d 900, 901 (9th Cir. 1986). This case, therefore,
falls squarely within the long-standing rule of federal]
Indian law that: “State laws generally are not applicable
to tribal Indians on an Indian reservation except where
Congress has expressly provided that State laws shall

8

apply.” McClanahan v. Arizona Tax Commission, 411
U.S. 164, 170-171 (1973), quoting from U.S. Department
of the Interior, Federal Indian Law 845 (1958).

Appellants, nonetheless, seek to avoid McClanahan and
numerous other decisions by urging (1) the State has
regulatory jurisdiction over the Indian Tribes’
games because, upon the application of a balancing test,
State interests outweigh federal and tribal interests,’ and
(2) the Tribes, in anv event, have been divested of their
immunity from state control sufficiently to permit the
State to regulate the Tribes’ bingo games. Neither asser-
tion has any merit because a balancing test never has
been employed by this Court where state regulatory juris-
diction on a reservation over Indians, in contrast to non-
Indians, is at issue and, in this case, the Tribes’ historic
immunity from state control was confirmed by Congress
in the Act setting aside the reservations, 26 Stat. 712
(1891), which immunity never subsequently was repealed.

bingo

Specifically, Appellants’ proposed balancing of govern-
mental interests, to determine whether state jurisdiction
lies over activities on an Indian reservation, has been ap-
plied by this Court only where a state seeks to impose
its law upon non-Indians. In those circumstances, states
arguably have legitimate interests at stake and, more-
over, no federal treaty or laws, in the first instance, im-
munize non-Indians in Indian territory from state con-
trol. The same simply cannot be said where Indians in
Indian territory are proposed to be regulated by a state,
in light of tribes’ long immunity from state control and
the existence of federal laws, such as treaties and Acts
setting aside the reservations, confirming that immunity.
Indeed, it was for these reasons precisely that this Court

In particular, Appellants urge that the undermining of state
gambling laws resulting from tribes’ conduct of bingo games on
their reservations free of state laws, non-Indian participation in
bal mes and the mere fear of organized crime infiltration

in those games are State interests this Court must weigh against

interests to uphold State jurisdiction in this case.

)

in McClanahan ruled that the relevant federal treaties
and laws, read against a backdrop of Indian immunity
from state control, rather than a balancing of govern-
mental interests, govern the determination of whether
Congress has manifested the requisite clear consent to
state regulatory jurisdiction over Indians on a reserva-
tion. 411 U.S. at 173, 179. In McClanahan, this Court
specifically rejected the balancing test in the context of
state regulatory jurisdiction over Indians, observing:
we reject the suggestion that the Williams test
[under which a balancing of governmental interests
is required| was meant to apply in this situation. It
must be remembered that cases applying the Williams
test have dealt principally with situations involving
non-Indians. ... In these situations, both the Tribe
and the State could fairly claim an interest in as-
serting their respective jurisdictions. 411 U.S. at
179.
Accordingly, Appellants’ proposed balancing of govern-
mental interests to determine whether state jurisdiction
lies in this case plainly is inapplicable as it conflicts
directly with McClanahan.

The proposed balancing test also conflicts with over
150 years of federal law and ,olicy. Specifically, be-
ginning with Worcester v. Georgia, 31 U.S. (6 Pet.) 515,
561 (1832), where this Court held the State of Georgia
had no authority to impose its laws within Indian terri-
tory in light of Indian tribes’ original sovereignty and
the treaty at issue there, states repeatedly have been
denied any jurisdiction in Indian territory except: (1)
where Congress plainly has divested Indian tribes or
their members of some relevant aspect of their original
immunity from state laws or has manifested clear con-
sent to state jurisdiction over Indian tribes or their
members in Indian territory; or (2) in certain extraordi-
nary circumstances which justify a state’s imposition of
its laws directly upon non-Indians in Indian territory.

This Court’s reluctance to uphold state jurisdiction
over Indians on their reservations is rooted firmly in

+~ tanta > . . ] + . ]
IT] 4iiity Lrom SLAC con rol \ La ¥\ 7 ni ! i
hiv {* nora +h} & ++ yet " : ‘ + 4 L >
DY VWOongrTess, tNils OUul ISIS \ as ef
‘ . } ] . + b .+ +
usturbd such immunity wi it clear manifes
Longresslonal intent to repeal the immunit Se
17 ' Q 72
McClanahan, 411 U.S. 164 lYi3 Se
.
. J . ’ > Ba,
Handbook of Federal Indian Law 116-117 (1942
In determining whether a repea . 4 es’ jm!
Irom State control NaS peen enacted, the lrt en
speci ruies Or constructio1 noting: “ le@ Cal
ranctriatins _ bie = : a
nstructi a icable in Indian law are rooted j
inique trust relationship between the United Stat
I
he Indians.” Montana v. Blackfeet Tribe of Indi
‘ ‘pct ‘) ‘)
= € 44, 2403. citing Oneida County \ (dire
. . ‘ 4 ‘) - >) ‘ .
\ LOS S. ( 1245, 1258 (1985 One of
ruies \ [ S | ‘avie nere S tnat Statutes are
it | Der % «) tT) Lavi q Ot Line Ind al ~ \'
| } ] ~ ne , Tey? reted + + f )* Nene + Cy
- ; > ae a
icllane ,411 U.S. at 174
‘ ] ]
A ny t nove-descripnedqd } PS na nresin
0 l ] ind ]
» 7 /
bd LO) Xample, Is ( lr Inanl! ls

7° .

oOlley recogniZin
.

Me ( Vanal ait,
U.S. 786.

118 U.S. 375,

9 Indian

TY ‘
U.S.
945)
‘> ~d
Ter?)
im-
Be
>=
t th,
’ PRT
— =
i }
y
~
?
y

™ a
4 _
- ~
— om
=
ate +
I
8
~_ +2
—
a |
~
- —_—
“~
- ~~
“ —
— -_
-—
~~

' a
soe

— .
>

+

*v os

~ ~
~~

peated ~

—~

—— =

/ —

° >

~—
+
+
j “

Ascail

oe
>
~
a
~~
“~
~~
~

12

erals. The Court first observed that, in light of the
backdrop of Indian sovereignty, states may tax Indians
in Indian territory only when Congress has manifested
clearly its consent to such taxation. The Court then held
States have no authority to tax Indian mineral royalty
interests because the relevant mineral leasing acts do not
contain the requisite explicit consent to such taxation.
105 8. Ct. at 2404. The Court reasoned:
li]f the tribal organization ... is preserved intact,
and recognized by the political department of the
government as existing, then they are a ‘people
distinct from others’ . . . separated from the juris-
diction of (the State], and to be governed exclusively
by the gov rnment of the Union. Id. at 2403, quot-
ing from The Kansas Indians, 72 U.S. (5 Wall.)
737 (1867). (Emphasis added. )
Accord, Moe V. Salish and Kootenai Tribes, 425 U.S. 163
(1976); Kennerly v. District Court of Montana, 400 U.S.
423 (1971); Bryan v. Itasca County, 426 U.S. 378, 375-
378; see also, U.S. Department of the Interior, Federal
Indian Law 845 (1958) (“. . . State laws generally
are not applicable to tribal Indians on an Indian reserva-
tion except where Congress has expressly provided that

= - : = =
state iaWws Snail apply. P

This Court has sanctioned state jurisdiction over In-
dians on a reservation only where Congressional enact-
ts plainly have divested the Indians of their im-
munity from state control. None of these cases, however,
supports the State’s position here that a balancing test
may be employed to uphold state regulatory jurisdiction

over Indians on a reservation.

For example, in Rice v. Rehner, 463 U.S. 713 (1983
+h; ’ — Lol . + ~7111 1 . "2771 9° an ; ‘
is Court held a state could require an Indian on a
>

Se . + héeanin ‘ +. loa + soll 15 .
eservation to obtain a state license to seijl liquor on the

rvation. In support of its decision, this Court opined,

a 7 - * , _ ‘ . -_ —
Although in Indian matters, Congress usuallv acts
upon the assumption that the States have no power
» regulate the affairs of Indians on a reservation.

13

Williams v. Lee, 358 US 217, 220, 3 L Ed 2d 251,
79 S Ct 269 (1959), that assumption would be un-
warranted in the narrow context of the regulation of
liquor. In addition to the Congressional divestment
of tribal self-covernment in this area, the States
have also been permitted, and even required, to
impose regulations related to liquor transactions. 463
U.S. at 723. (Emphasis added. }

‘s

The Court thus concluded, tradition simply has
not recognized a sovereign immunity or inherent au-
thority in favor of liquor regulation by Indians,” Jd. at
722, further observing:

There can be no doubt that Congress has divested
the Indians of any inherent power to regulate in this
area. In the area of liquor regulation, we find no
‘congressional enactments demonstrating a firm fed-
eral policy of promoting tribal self-sufficiency and
economic development’ ... With respect to the regu-
lation of liquor transactions, as opposed to the state
income taxation involved in McClanahan, Indians
cannot be said to ‘possess the usual accoutrements
of tribal self-government’. Jd. at 724. (Emphasis
added. )

In short, in Rehner, in the unique context of liquor
control, this Court found Congress plainly had divested
tribes of an aspect of their tradition of immunity from
state control and, moreover, had authorized explicitly
state jurisdiction over Indians in Indian territory.

In sum, this Court never has employed a balancing of
governmental interests test to determine whether a state
may assert its jurisdiction over Indian tribes on a
reservation. Instead, in every case, that determination
is governed by the relevant backdrop of tribal sovereignty
and the federal laws confirming thit sovereignty. Amici,
therefore, urge that this Court not depart radically, as
urged »y Appellants in this case, from over 150 years of
its federal Indian decisions, none of which employed a bal-
ancing test in cases where, as here, a state attempts to

14

reculate directly an Indian tribe on its reservation. See,

e.g., Three Affil. Tribes of Ft. Be rthold v. Wold Eng’g,

106 S. Ct. 2305, 2310 (1986).

2 The Law Cited by Appellants Plainly Is Inap-
plicable Here.

In support of their theory that a balancing test be em-
ployed here, Appellants borrow liberally dicta from Mc-
Clanahan and Rehner. Brief for Appellants at 17-18.
That dicta, however, is a general discussion of principles
of state jurisdiction over non-Indians, as well as Indians,
in Indian territory and thus should not be taken out of
its context to support Appellants’ novel theory here con-
cerning state jurisdiction only over Indians.

Appellants also cite in support of their balancing test,
inter alia, New Mexico v. Mescalero Apache Tribe, 462
U.S. 324 (1983), and White Mountain Apache Tribe V.
Bracker, 448 U.S. 136 (1980), both of which concern
only state jurisdiction over non-/ndians in Indian terri-
tory. Brief for Appellants at 30-32. The record here
makes clear, however, that the state laws at issue are
to be imposed upon Indian tribes on their reservations.
Thus, the federal pre-emption analysis contained in the
McClanahan line of cases, rather than Bracker’s balanc-
ing of governmental interests, controls in this case.

In Bracker, where the state proposed to tax non-Indians
vho had contracted to haul logs for an Indian tribe on
its reservation, the Court noted that the “... determina-
tion does not depend on mechanical or absolute concep-
tions of state or tribal sovereignty, but also call|s] for
a particularized inquiry into the nature of state, federal,
and tribal interests at stake.” Bracker, 448 U.S. at 145.
The Court, moreover, is guided by two independent bar-
riers to state jurisdiction over non-Indians in Indian ter-
ritory—namely, whether the state jurisdiction infringes
upon tribal self-government, see, @.9., Williams v. Lee,

358 U.S. 217 (1959), or is pre-empted by federal law, see,

15

Ramah Navajo School Board, Inc. V. Bureau of Ceve-
nue of Ne iw Me x1C0, 458 U.S. 83? (1982), In both Cases,
the Court balanced the relevant governmental interests
to determine whether the state had sufficient interests to
justify its jurisdiction over non-Indians on a reservation.
See, e.g., New Mexico v. Mescalero Apache Tribe, 462
U.S. 324 (1983) (under the balancing test, the State has
no authority to require licenses from non-Indians hunting
and fishing on tribal lands within a reservation). In
stark contrast, this Court has not balanced the respective
governmental interests in any case involving state juris-
diction over only Indians in Indian territo.

Appellants also cite Washington v. Confederated Tril
if the Colville Indian Reservation, 447 U.S. 134 (1980).
in support of their position that tribes may not market
immunities from state laws to non-Indians, arguing the
tribes are marketing their immunities in the bingo games.
Brief for Appellants at 13-16. Colville, however, does not
support Appellants’ position for two reasons. First, in
Colville, wherein this Court sanctioned state taxation of
non-Indians who purchase cigarettes from Indians on a
reservation, this Court upheld state regulation of non-
Indians. At issue here, in contrast, is a state’s attempt
to regulate an Indian tribe on its reservation. Colville.
therefore, simply is inapplicable. Moreover, in any event,

‘ville cannot be construed so broadly as holding tribes
may not market their immunities to non-Indians free of
state regulation. Instead, Colville only holds that where

It has been suggested that constitutional principles prohib
this Court from balancing governmental interests to determine
whether state jurisdiction lies with respect to Indians in Indian
territo} \ balancing of g rnmental interests, in the ew of
commentators, can occur only pursuant to the Indian Commerce
Clause and where non-Indian activity is sought to be r gulated
See Feldman, Preemption and the Dormant Commerce Clause
Implication n Federal Indian Law, 64 Ore. L. Rev. 667 (1986
see also, Pelcyger, Justices and Indians: Back to Basics. 62 Ore. L

Rev. 29 (1983

D.

i]

’
‘
ry) YY
;
‘ ‘
’
, ,
A
~ f
4A
~ ~
+
;
‘ ‘
+ +4 4
t ‘
f
,
‘ ‘
‘
‘

The Backdrop of
Is Imbued With a’
Regulation.

‘ ‘ ; ? ? 2, ‘
’ T y Ir
i ! . nal
’ 7 °
> ' ; . ‘ '
> agen) y
Rehne 163 ~
) 4 ‘

cl ’
“Lf sul, I i i t s
4” 7 +f * , ’
_ aa
a Lieu I
1AS 1 Fe )
tr LV
\)
| i t eT] LO] r | t t
+ ‘ 4 ‘ ‘
ne b ‘
= A ‘ .
‘ lT “ is ( \
; ; ;
y . } +} ‘
i t () (
‘ ‘ ’ | T )
‘ I

Tribal Sovereignty in This Case
[radition of Immunity from State

4
f ‘ ’ ] i .
> territ tiorne y oP .
| I i I hil a
T ‘TT Yow ry va
a | - l rl
4 | 4
e ing ns }? ome res
I I I Li
~ ry . .
t ‘ hat ft) tion t +
‘ i] } Tha adl Vi Wi j .
: ‘
C na l ] i] y LI Ot! Ss L«
| .
‘ (i? | T iT ~~ ) y's ?
; ‘ ; + j 4
“er ret t ? ‘ y
i i
: +] +}
- t { ~ t CC] t
} . "
1Y ‘oy 7T : **) Bt
ALiUcl LcUecla a YY
] ] ‘ T
’ T Ty ’ wt ry ) / , "
(it ‘ t ‘ ; »\
ipporting tribal self-sufficien and economic develo}
ni , Vv) ») »] 1Y) t} " MONnNTaANT f ] Tabb ‘Aamlllatiar
Was evidenced 1n li@ CONLEX Ol lQUO reguiavlol
— oe — re “ie oy
‘ i Za The {0 1} thers rore CO! HMuded states ma
to +] halt ,
pulate the sale of alcoholic beverage Indiar n fh
n te ——
‘ , sald — ) —s a al Prot
in contra and quite unilke fmefnner, nere tne iripves
> not } ? lin toc} > any et tes nt ‘ nec fF +hoir
ive no peen divested of any relevan asper oO! ne
‘ > . . > % . ¥ ? ? . | »)** /
q ! r 1m! ln] Tro) s e law Io sever: reasons
P } = - ): ‘ , toad
. Indian bingo n Indian territory, conducted
part of tribes rovernmenta lunection of raising ¢

— te] , ' : ae | =m menhthite ay me

ental revenues, nevel ave Dee? Onl ed Inde!

" " v7 J 17 } }

‘ '* .
wera iaw Vi reovel as dj ( issed tull\ by An 1C] eClOW,
ongress has not authorized state regulation of Indiar

Ar , 4) sk:

! » Pame rina ne recor In tnis Case qemon-
Ta t> yey, fed } . pia 7yY\? yty oO Indi +, =
LL reader W1Ccles SUDPOrLINng naian rloba

‘ + aes Wg | f¥
eo games as a means to promote tribal self-sufficient
: " ; 4 ’ ’ >
1 @CO!] | eve Tr)? a | “i f aha )) Ba j v. {
wi ) ‘) ] . .
R e. 783 F.2d 900. 904-905 (9th Cir. 198¢

2h Pr ’ A 1) , , |

he On) y ie@aerd! iaws Wi i n 4 ppelan ‘e asse@) nay ;

‘ ] ; ] . +ae5} ’ +1 ’ . : ] . + '

ested e Indian tribes of their inheren mmut!

m state aws WItU! resper ) YalSing vgovernmenta

venues nere nroug! ne nau OI DInNYvO Cr nel)

, . - Pe .

*x + ‘ . ‘ ; 4 A " ‘7 + ( ‘) das |

Se) a ons are ne Ai ] AULUS Ld. LYd3. | 1D. de

> ar rr’ - O-9 . y . ‘> >)

) S9-25) D / > a Pata’ ] Pats ; io | ss. | 1162. Ze

3) ’ ‘? | . _— '

S.( 1360 1982), and the Organized Crime Control

‘ f ( O toad lg; | ‘ Q ORE \
Ul | m(U } sta Jedi (U0 . la | ’ ( eID) AS

wn below and discussed more fully by her Amici in

5 case, } weve r’. neither ot tnese AWS YNro erly in lay

strued as divesting the Tribes of their tradition

ry } ? + T ) ? ) ‘ 1? ?

l 1] irom tne state aws ll nls Cast

+} A’ ; ; “rant , , ; T" + ,

ay nea N17 y { ’ ] rre p! ! Bat

rT ’ rnc wheather ty pa Ty 11T T eX ’ ’ y ? ’
neTtTney The LT? } engaged Ii traalt n i rn

tion, not whether it historically engaged in a particula t

hy , th 2 y encaoced " +} +y ii? , rT r)¢

x - A ‘ "
? , ne ? nue ie | 4 t O44

x

—

=
|

—
--
j
j
~~

- —
- ~~
— Gu
Jj
- j
, 4
j

‘
ra |
ls
Cit
We

Oniy tnat Clvli jt

See Brua | BA |

‘ 5+) +}
erla with 1e
ts snows tnat if (

d intended to conf

‘ ' — :
Court has held 1

irisdiction necessa

Ta ‘ cy sy ‘
) [ i it 55d. te} |

» eonclud hat construing Pub L

contemporaneous
ongress in enactin

er upon the States
‘

. "7 . " ‘ +« t
reguiatory powers, including taxation
’ |
n Indians it would have expressly sa

er Caltrornias
47 ‘

ne Stale Ss @l\

f P.L. 280 juris

Etc. v. Duffy, 694 F.2d 1185 (9tl

:
ated anotl
] .
vy
.
y+
.
Ale

$)*)

haAds

at 42 n.26, the OCCA

s to entorce the federal

such enforcement au-

+. +}5 a lyons,
~ a ‘ Olll LalS airedaday
, “oO TT ) UW
1} iaws wnhnert lose iaW
‘ + ' ; “17
me! , J is A | il sis
;
| ‘7 | ~ rico?
It Wl a att Liga
;
OT) = / } \ ‘7
y y : L17re OT , Bal
! 4 nea iit hii ¥ aii

4+} 4 154 .
AD, ! c Lau Uil ‘
nstruea ; pern .

‘ ~ ) TY iKeS c*i¢

ntended to, provid
I
] +
‘ ‘ " Or ,
extend nel) revulaclt
noc
louse hearings, h
y >
+ + + 7
» entorcemen Ol a
‘ { ++ YY )
a 194 Statemeée O
t ;
“ Dent Ol Jus 1Ce
TT ‘
‘ tha .’ .
\ e VIII, the
( - .
| ’ ry .
y 9 nc LUD . { ong
. : i
i ~ il t i ()T
; ) . or { T)
ny rer H ILI
] >
| Lede , eT f
t¥ . ‘
- ct ‘ icit
‘ | ¢*) y ‘ ’ } ‘
, 1 i { y Kk ~ QO
- = v 4] a J : ‘ 4 134 ]
or the cmminal laws Ol a state or politi

SUDdIVISION

AAS

thereof. with the intent to facilitate an illega! gambling

business.” (Emphasis added. )

In sum, the OCCA cannot be construed as a ithorizins

ne State to regulate the Tribes’ bing ames 0} erv
For example, Congress exprs
é nd eries nducted harit 1s
U.S. 1955 (« See Hearing t 170 \ I
rnia permit ich organizations I bing
ate regulations. S¢ ( ( art. I\ l
Che legislative tor f thes OCCA

| ‘ y ++ ‘
t | { Z| ‘ I ‘ | - ‘
\ ! neir reservations inus, 10) nis re
, > ; + >
‘ rne cr ni ] OT TY us | OW al i} Qc ’
‘ . . ; ; ‘ |
elr Dingo games free oI the states n¢ egu
: :
" ‘ ; . ‘
Den ls ( ongyre nas no qaerovaced ne j f
i, " + +? , 17 ; , ry wal, ) “,
I { i Vi | Aid A ‘ Al cA

C. The Relevant Federal Laws To Be Read Against the
Backdrop of Tribal Sovereignty in this Case Make
Clear That California Has Exceeded Its Lawful!
Authority in Attempting to Regulate the Indian

Tribes’ Bingo Games.

, t ? rT t ‘
a a i | he If ce \ i t it
" ’ ry T | i \ ) ry }
4 I | Ul 4 a vy Iii ay
] + 4 ] 1 7
Ya ‘ ’ "Sh } |
execullve Oraers I s¢ aslat ne Vi ‘
: . .
if »y”' T y i] ~ wre 7 ; {
0) reserva ( - USC a ali ic’! t
; ; ; ; ;
1? reiey ! ne (> () rié re
; ; } \
- »? al ) rese) a ? ly M { y y ne ’
, > +> j
) ied ( aiid ar tne preseripoed Px
i ; } ‘ .
vould be set asia e use and occu] n of
f Ind 11] 174. |
} ) ~ ,
i t Ui | Ula | { a i
,

? ) T ’ Ty T ’ ’ | y | T
Cal) ( ru I Leder. iMNGla i [
++ ; ; : . : ; } ] ‘

) | rt i t » f ~ ) _ {) t reSUOULVeCU lL] a
? ns ? } MS ry ne T relity ’ T | 19 '
| ql ‘
dence iro! te ntrol, the Court In mcClanal

i } ¢ ’ t ’ T T

( 1ded e f é , { )] } gas TO) e 1S ;
{ ’
‘ at t Na } i! rt a Med! ce f ;
f are [ } > ] e Vere |
| 444 "
) ¢? ] t f ‘ { ‘ (7 ; “
‘ —
: ie.
ed ad n of India
; ‘ | )
] > { ys) } PP?) no ) wy } i?°T
\I ri
' I T ’ ' ’
( " ( f ei : f { if ne
, ' { . }
yO | I ( LO! a Met |!
T ? é T f i¢ pare | ) ryé

D. Congress Plainly Has Not Consented To California’s
Regulation of Indian Tribes’ Conduct of Bingo
Games on Their Reservations.

As discussed earlier in Subsection B, and more fully
in the brief of other Amici in this case, no federal law
authorizes the state regulation of Indian or tribally-
operated bingo games on Indian reservations in Califor-
nia. Moreover, under federal law Indian conduct of bingo
games on California Indian reservations is not even a
federal offense. Accordingly, since Congress has not
plainly divested the Tribes of a relevant aspect of their
immunity from state control or repealed the Mission
Relief Act (which must be construed as prohibiting Cali-
fornia from regulating the activities of the Indian Tribes
on their reservations), state jurisdiction clearly does not

McClanahan, 411 U.S. at 171; Montana, 105 S. Ct. at
PAOD.

ie in this case. See, e.g., Rehner, 463 U.S. at 719-720:

Il. FOR PURPOSES OF ARGUMENT. EVEN IF THE
PARADE OF HORRIBLES DESCRIBED BY AP-
PELLANTS WERE TO OCCUR IN THE ABSENCE
OF STATE REGULATION, APPELLANTS’ REMEDY
PROPERLY IS LEGISLATIVE RATHER THAN
JUDICIAL.

1. The Record Shows Neither A Vacuum In Law En-
forcement Nor Evidence of Organized Crime in the
Indian Tribes’ Bingo Games.

her ( 783 F.2d 904. § Pre 1S
\ : Toensing. De tv A stant U.S. Att ey Gene!
nal Divisio) efore House of Represent Committ
[ rior d Ir r Affairs, Concerning Various A to Reg
{ DI! | n Re ! t1Or Ni mber 14. 1985 131 ¢ !

IR

over, even if unlawful conduct were to occur at the In-
dian bingo yames, both tribal and federal laws, and cer-
tain state laws incorporated under federal law, are avail-
able to ensure such conduct is thwarted. See, e.g., Fed-
eral Enclaves Act, 18 U.S.C. § 1152 (1982) (extending

the laws applicable in other federal reservations to In-

dian territorv): Williams v. United States, 327 U.S. 711
(1946) (construing 18 U.S.C. § 1152); 25 U.S.C. § 81
1982) (requiring the Secretary of the Interior to review

and approve certain contracts with Indian tribes).

B. Even Assuming Arguendo Appellants Encounter
the Parade of Horribles They Evidently Anticipate,
Proper Respect for Tribal Sovereignty and Con-
gress’ Plenary Power Over Indian Tribes Requires
that Appellants Seek a Legislative, Not a Judicial,
Remedy.

Congress has been held to have plenary power over In-
dian tribes. See qenerally Cherokee Nation Vv. Georg a.
30 U.S. (5 Pet.) 1 (1831): United States v. Kagama, 118
U.S. 375 (1886). In the exercise of that power, Congress
can act quickly and decisively to remedy problems involv-
ing Indians on their reservations. Indeed, in light of that
broad Congressional authority over Indian affairs, this

Court itself has observed that its role in adjusting rela-
4: ‘yectly implicating Indian tril Deuce —_ '
ions directly implicating Indian tribes’ sovereignty on

their reservations correspondingly is restrained. See

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61 (1978

Moreover, Congress, through hearings and committee
deliberations, is best equipped to consider limitations on
tribes’ immunities in response to complaints by non-In
dians. Tribes nationwide, with federal executive branch
upport, conduct bingo games which are important sources
of governmental revenues in light of declining federal!
funds and the virtual absence of any tax base on their
reservations. As this Court has observed, the ability of

‘7 . .
. '

° |
. ‘ .% , ‘ . . ‘ , *
Indian tribes to finance their own governments is a key-

Aidit

ice
“ST OTATY
QS QY9
entitier
hoa six
' ‘
rAalse
reven
Appell:

Ale
qgenvuly
{ ? ry'¢

‘
) .
i i(
{
|
,
|
(ie
: ;
e
‘
-)
1
}
‘
‘
Sa 8L:
\*

5
cy
r+
¢
a
‘

+s 41 Y
he N;
‘
ral Governme
SCNOOILS and aT
lh. Dalir
1 Indian Polk
s) 1‘ 99
at, ISO | ;
F331] 02 ,
reitul Consider.
I tne rion T
i vovernments
r > -« Ta ,*
] a !
iSLICail\
counter tne arad
pate, they must t
ecarelul consideratl
— mattinalles ¢
< SU frauliVCadall j
y** Yr) 7 ry eqTy . rie?
‘ , cA A LGA
’ ‘ j
SP 4 ( ,@) ~ bitty,
mestion resel
‘ ea led rit?
C1V! repvulavol
yy Bae, it i ‘
IMIvy ONL
i Ace ‘dir e
S games 1n th
Ss ,* vy ’
it ti Se i .
Lr’ eCvyula

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0113%3A18. Public record. Not legal advice.