# 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%3A22

## Record

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

## Text

[Tt eee

zg
‘
=
v
£4
+2
Cen
©
+2
fans
rm
O
dv
5
®
LL
oF
a
PY

A

IN THE

A | ‘
' . NLT ” MA ryyT .
. TY Tl. , , _ Ths 1 ‘
i « Lie ULat lt 4 » ©
r
| hinatan
WaSllLIIQGLOll. «ee we we es
Talalala R no ei M
SODODAa pana 4 4 ‘

Indians, LaJolla

M ce jiry Tne aT

=. ‘ ~ 4 A +
Teri nin > T' >} -

+ ~ 4 + ~—”A LA - - >

uA "
nA
Ke RH a A + ne }

ee ' Aid S' i= 4 A
. ca rtiraTft 4% =) ’Y
NOoocl V a = Ie , 4 4. *

- ,
, -_ ry i a Co
i ALAaAII pee Be |) Few ee ee ee ee ee
A Tw De earmin —,
7 -' © | A 7s ee ‘ 4

rs

ry
Ls
oe
--
p |
ws
or
Tron w O
bH
ct
.
—)
bw
T

y At The it t
y
Whom The State Law
Be MBDMLLOG. ccces
B. A Balanc ry Test
niy Been Deemed Suffi
Allow The Extens
t Ate Laws TO LT) 11 oe
Reservations When The
Alleged Illegal Act
Aj ; ~ , mm } 7 = 4 } X

Mie
j]
r4
Z > ae |
LJ
(CN
. .
“=,
i. a4
a4 )
sio
-
J
~
nvy
N
’ a | i
ow

Ad
Xe

‘

&
ngt

ayor

M

Wash

-
On

y
.*

r

v7

‘ >
. 4 r ryy
} ¢ | °
- . . r 4 4 i .
a4 ° . 4 ’ )
4 . r . . ‘ J . . . . ° .
, Q|>» 7 ‘= QO Di} - 0
4 , ‘ . T} 7 . > |> O pol ie MiM4] « 48) 5 |b
eit © . 4/0) TY . sin) TY . >i O . f ic v ] sé] F4} « Ni} « > . mic} - =F i

hj} * ly 2|U) Ay, @\> fx, riit N ic O|3

1;0 > . O} >> © c CO |G OTF @

I ort GO) >)o -Almie
| | W)| W~)|

6
New
A
+
Oma
3
r

—~

. -
. e
ra ha - 4/7 FS
r
mn Nn
> @ i ° j

>) +r rij’ ,

hy hy oO MoM
f fd ba ‘e ( i"
~ 4

*

TTYO)
cle
ea

> .
*
"
. .
> “hiutelel— AY
| \ i
a
‘ 4
— = A» ( »
*
a fl
= a +> + .
~o
>
on » > a

ape . . ATIT — A
.-—.-. ~~ ‘Salat ato & camar » . q
f eri ae Congressmen A. ° .
Mas? ~ KW : Mnarmm 4 ee
Miller, Chairman, Comm e
Interior and Insular Affair
a> s. c i iio at AL. Laid
y
*fatkh ~ + QD rre baba + s .
> a Jy v¥ ULC zt P >», eeee
cs —— 4 Temas as Tr = + A » +
‘ Pa? A. WALA AQ 444 4 | i noe i LL = i . , d
+ « bow 7 1 ) 172907
tG&e Ld i i ‘eee a4 .
7 > tJ ~ 5 a + + a ~ ~
Ad i A Ww 4 , = Pu UU
c | - T . ‘ -
L P rub. Lu « ‘ ‘ PA P
+ _+
é gy3Gy, P 2,
» QO a ~ a ‘ : a
; , , “STA, “24 - + . ;
4 d i Pl > - S
? , &@ , P ay ’
- © f
P , ,
7
’
» + » . . + t, + . * . ’ + .
- . rf . , a 7¥ t P +
7 ; i ry

N
NN

©

a
Lie fie

7

U.C.

Uy)
44

W

y ’ —. 7.7. — .
i ALGAII | | A i
b | — q = ~ > Tt” +
Vv , f
ij As A ri i
' be _ y ‘ .
‘a . NOS - . : >,
_—... tt...
a * » r 4 x *
. a. ” a ~~ + -_ r - -~ q -_ + j VA >
lé¢ Y ¥ > 7 ‘ Or "
a » 4 — «te 42 See - ‘ A NA
+ = ~ mma rv 7 " 4 cm ,ne .) q +
- 7’ ‘ » + , 7 — * 44 € a 4 rr. 4 | 4
4 + . : Ly +} +
; , 1rTo Hat
: { r Lo
v¥ . Wa Le ’

mn Fe ‘Ta 5 } + la] = . f
A. The Tulalip Tribes of Washington.
-

The Tulalip Tribes of Washington is a
federally recognized Indian Tribe, and a
Successor in interest to tribes and bands
that signed the Treaty of
Stat. 927 (1855). The Tribe occupies a
reservation consisting of approximately
22,000 acres in a predominantly rural area
of Snohomish County, Washington. Its
governing body functions under a federally
approved constitution and bylaws, adopted
pursuant to the Indian Reorganization Act
of 1934, 25 U.S.C. {476. Through the Indian

Reorganization Act and other federal laws

and policies, the United States has
supported the commitment of tribes to

self-determination and economic develpment.
President Reagan has reaffirmed the unique

government to government relationship

2

between the United States and tribes, and

the federal interest in strong tribal
governments. At the same time, his
administration has encouraged tribal

governments to explore alternative ways of
revenue raising and economic development as
federal financial assistance to tribes is
sharply decreased. President Reagan’s
Indian Policy statement (January 24, 1983).
Faced with similar cuts in federal
financial assistance, states like
Washington have turned to government run
lotteries. In Washington State, local
governments and charitable organizations
are permitted to raise substantial revenue
by regularly running bingo games, and

certain other gambling activities.\1l

1. Such gambling activities, when run
by governments have traditionally been
considered a form of voluntary taxation,
and a legitimate revenue raising mechanism.
See, State and Local Taxation, 20 Wayne L.
Rev. 611, 645 (1974); Clark v. Mayor and
Alderman of the City of Washington, 25 U.S.
(12 Wheat) 40, 53-54 (1827); Karafa v. New
Jersey State Lottery Commission, 128 N.J.
Super. 499, 324 A.2d 97, 100 (1974).
Regarding the broad taxing powers of tribes

(Continued on next page)

ey

Several years ago, with a loan from the
Bureau of Indian Affairs of nearly $1
million dollars, and a loan of
approximately $2 million from a private
financial institution, the Tulalip Tribe
established a reservation entertainment
center on tribal trust land. There, the
tribal government operates bingo, pull tab,
and punchboard games. All profits go to
the government’s general operating fund and
have enabled the Tribe to continue some of
the badly needed social services which
otherwise could no longer be provided. In
addition, the Center has trained and
employed a substantial number of tribal
members and their families in food service,
management, and other required skills,

providing Jobs on a reservation where

(Footnote 1 continued)
as to tribal transactions with non-Indians
from outside the reservation, see,
Washington v. Confederated Tribes, 447 U.S.
134, 152-154 (1980).

4
unemployment has hovered around 45-50%.
Several years ago, the Washington State
Gambling Commission litigated the question
of whether certain Washington state law
restrictions applied to the tribe. State

v. Hatch, et al., W.D. Wash. No. C83-1518R.

In 1984, the federal district court, ina

carefully reasoned opinion, concluded:

-.-RCW 9.46.030 authorizes bingo and
pulltab ocperations by a wide variety
of charitable and nonprofit
organizations... The Washington
statute regulates bingo as a money
making venture by limiting the
location and number of days of
operation, requiring that all
proceeds be applied to the
organization conducting the game and
prohibiting the use of professional

managers other than members or
employees of the organization. RCW
9.46.020(2). Pulltabs are regulated

by limiting the price at which they
may be sold. RCW 9.46.110.

x *&

(P]rofits received by the Tribe from
the bingo and pulltab activities are
to be invested for the betterment of
the Indian community...while the
Tulalip Tribe may not qualify as a
charitable organization within the
letter of the Washington gambling
statute and the Tribe’s gaming

5

operation does not fully comply with
all requirements of the statutory
scheme, the Tulalip Tribe can be
said to fall within the spirit of
the state’s permissive intent.

Id., Order Granting Defendants’ Motion for

Summary Judgment (August 14, 1984) p. 10

(copy appended). The State’s appeal to
the Ninth Circuit was dismissed as
untimely, and there has been no further

litigation in Washington State over tribal

bingo. \2

2. There has been federal enforcement
as to isolated instances of Indian casino
gambling. In U.S. v. Lummi, the federal
government distinquished tribal bingo
operations:

Washington State, as Farris holds,
and as we have discussed above, has
a strong prohibition policy against
professional gambling. Professional
gambling includes such activity as
bookmaking, blackjack, craps, etc.,
and is virtually either totally
prohibited, or limited to one narrow

exception, the fund raising event,
popularly known as "Reno night".
Bingo, on the other hand, is

permitted to be played weekly by
bona fide charitable or non-profit
organizations under certain
conditions. The same constraints
apply to both the Reno night and to
bingo in regard to the nature of the
organization which can conduct the
(Continued on next page)

In the Tulalip case, the State
Gambling Commission asserted a fear of
organized crime infiltration. However, its
concerns are contrary to the views of local
law enforcement familiar with the tribal
operation. In commenting on the various
tribal gambling bills being considered by
Congress, the Snohomish County Sheriff

wrote:

July 2, 1986
Senator Mark Andrews, Chairman
Senate Select Committee on Indian
Affairs

Dear Senator Andrews:

I write this letter concerning the

Tulalip Tribes of Washington’s
gaming enterprise located on the
Tulalip Indian Reservation in

(Footnote 2 continued)
activity, but the nature of the
activity which can be engaged in is
very different.

Memorandum of the United States in Support
of Plaintiff’s Motion for a Preliminary
Injunction, United States v. Lummi, No.
C83-946 (W.D. Wash. 1983) at 33-34.

Snohomish County, Washington for t
due consideration of the enat
Select Committee on Indian Affairs
now considering H. R. 1920, S.902
and S.2557.

I am personally and professionally
acquainted with the management and
operation of the Tulalip Bingo and

pull tab gaming conducted at the

Tulalip Bingo Center.

The Tulalip Indian Reservation is a
PL280 reservation and as Sheriff of
Snohomish County I am the chief law
enforcement officer responsible for
investigation of crimes committed by
Or against Tribal members’ on the
reservation.

The controls, checks and balances
established by the all tribal
mamagement has resulted in a gaming
operation, in my opinion, free from

outside or corrupt influences or
practices. It is a well run and
"clean" enterprise.

The security of the facili
gaming public is ©
protected and includes eo)
members of my department.

add that from the inception o
planning and the final construction
of the entertainment center, both
Sides have worked in a cooperative
spirit to make sure that this
operation remained free and clear of
all outside influences that
represent gambling interests, and
both parties agree that these
policies have afforded the
protection and safety provided by
the Sheriff and the image and
integrity for the Tulalip Tribes.

T 9 lef , + } - } 7 |
would urg tnat all due

~

consideration and respect for tribal
gaming in the nature of bingo, pull
tabs and punch board run by Tribes
themselves be afforded by the
committee in its consideration of
the various iegislative proposals.
Thank you.
Sincerely,
/S/
Robert M. Dodge
Snohomish County Sheriff
The Tulalip Indian Reservation has been
plagued by extremely poor economic and
living conditions, which the tribal
government has been committed to
alleviating. Through its general funds,
the tribal government has operated a
variety of social services, including
mental health, medica’, dental, and alcohol
treatment programs, a reservation headstart
pre-school facility, public school busing,
higher education scholarships, garbage
collection, fire protection, recreational

programs for senior citizens and children,

and other services. The tribal government

-@

is also committed to increasing employment

opportunities on the reservation through a

coordinated program of economic
development. However, economic
development has been limited by the

scarcity of exploitable natural resources,
and lack of adequate funds. The Tribe has
a small logging operation, but has' had to
rely primarily for tribal revenue on
leasing tribal lands to non-Indians, rather
than developing reservation lands itself
because of its limited financial resources.

In the early 1980’s, as the Tribe faced
increasing and drastic cuts in federal aiid
state support for reservation services, it

needed to find other revenue sources for a

number of services, such as a nurse
practitioner position, a health
administrator position, a health

administrator position, a health planning
position, orthodontic services, certain
mental health services, and its' alcohol

treatment program. The Tribe explored a

10

possible tribal shopping center
development, but was first stymied by the
refusal of sewer and water services from
the nearby City of Marysville, wnich feared
the potential economic competition to
Marysville businesses, and then by a down
turn in the general economy limiting the
proposed shopping center’s potential.
After considering a variety of economic
development opportunities, the tribal
government, with substantial financial
assistance from the Bureau of Indian
Affairs, developed a program to develop
tourist and recreational opportunities on
the reservation. In June 1983, the Tribe
opened the Tulalip Entertainment Center.
In addition, a nearby hotel/restaurant
complex has been constructed on tribal
trust land. .

The only gambling activities permitted
at the Tulalip Entertainment Center are

bingo and pulltab games. The facility is

+?
b-

operated pursuant to a tribal ordinance,

which was reviewed and approved by the

Secretary of Interior, and which prohibits
any private gambling operation on the
Reservation. No personal profit making
from the bingo and pulltab games is
permitted, and all revenue goes to
operation costs, debt retirement, and the
tribal government’s general fund. The

Tribe operates the facility without any
outside management company. The Tulalip
Entertainment Center manager is a tribal
member who received training in accounting
and business under the GI Bill, served as
an Assistant Tribal Business Manacer for
the Tribe from 1959 through 1963, and as
the Tribal Business Manager, from 1963 to
1978. The Tulalip Entertainment Center has
employees, 69 of whom are tribal
members, 12 whom are spouses of tribal
embers, and6 of whom are from other
tribes. The 6 other employees are

non-Indians with no affiliation with the

12

Tribe or its members. They work in
non-managerial capacities, such as bingo
number callers, food servers, pulltab

selling, and security.

Before opening the Tulalip
Entertainment Center, the Tribe employed a
former chairman of the Washington State
Gambling Commission to assist in
establishing a tightly controlled, well run
program. The personnel, particularly the
top management, were subject to tribal
background checks, including the checking
of FBI records, for links with organized
crime or other criminal activities. All

employees are carefully trained, to insure

tight security. The Tribe spent
substantial sums on sophisticated
equipment, including 18 cameras, tv
monitors, a direct centralized computer

accounting of cash register transactions,
and a special security room with a

round-the-clock security patrol. Off-duty

b
WwW

Snohomish County police are employed to
assist the Tribe in patrolling the facility
on weekends and evenings.

The Tribe selected the operation of
bingo and pulltab games because they have

been extremely successful and widely used

as means of raising funds for charitable

purposes in Washington State. According
to State records, produced in the Hatch
case, in FY ’82, statewide gross receipts
from bingo, pulltab and punch board games
were $89,747,976.00 from bingo, and
$125,103,942.00 from punch board and
pulltabs. In 1981, there was 57 bingo

operations in Snohomish County alone, which
generated gross receipts of $9,495,905.00,
and 671 bingo licenses throughout the
State. State bingo licensees paid prizes
in excess of $68,000,000.00 in 1982 (in
excess of $7,000,000.00 in Snohomish
County) and had net income in excess of
$8,000,000.00 ($865,612.00 in Snohomish

County). Until recently, the Washington

14

State Gambling Commission placed no dollar
limit on gross revenues to a single
organization from bingo, pulltabs and food
services. Single facilities, such as Big
Brothers in Spokane, Washington, grossed
$4,300,000.00 in 1982 from such operations.

State regulations now limit each bingo

operations’ revenue to annual gross
receipts of $3,500,000.00. In its first
year of operation, Washington State’s
recently established lottery generated

if

66,700,000.00 for the State General Fund.

B. Soboba Band Of Mission Indians,
la Band Of Mission Indians, And

inidad Tribe.

The Soboba Band of Mission Indians has
a bingo facility which is presently closed.
The LaJoll Band of Mission Indians, and
the governing body of the Trinidad
Rancheria do not have any bingo or other

gambling operations on their reservations.

15

However, all three tribes join in this
amicus brief because of their concern with
the sweeping and fundamental changes in
Indian law principles which California and
other states are advocating. Each of these
California tribes suffer from exceptionally
high unemployment and impoverished
reservation conditions. A ruling that
states may exercise regulatory authority
over them, in the absence of Congressional
authorization or under Pub L 280, could

have a severe impact on their efforts to

improve living conditions and economic
opportunities on their reservations. In
California, pre-Bryan efforts to assert

such regulatory authority highlighted the
problems of a wholesale application of
state and local laws to reservation
Indians. As was pointed out by the Ninth
Circuit Court of Appeals in regard to the
impact on tribal housing programs and

tribal economic development generally,

16

..--subjecting the reservation to
local jurisdiction would dilute if
not all together eliminate Indian
political control of the timing and
scope of the development of
reservation resources, subjecting
Indian economic development to the
veto power of potential hostile,
local non-Indian majorities. Local
communities may not share the
usually poorer Indian’s priorities,
or may in fact be in economic
competition with the Indians and
seek, under the guise of general

regulations, to channel development
elsewhere in the community. And
even when local regulations are
adopted in the best of faith, the
differing economic situations of

reservation Indians and the general
citizenry may give the ordinance of
equal application a vastly
disproportionate impact.

Santa Rosa Band of Indians v. Kings County,

532 F.2d 655, 664 and n. 14 (1975), cert.
denied 429 U.S. 1038 (noting that county
regulation of state permitted forms of
gambling were an example of such

concerns). \3

3° In Bryan v. Itasca County, the
Court noted with approval the Ninth Circuit
Court of Appeal’s concern that state

regulatory authority over reservation
Indians could serve to channel economic
development elsewhere, and further

(Continued on next page)

17

The amici tribes urge the Court to keep
in mind the ramifications of the state’s
legal position for other tribes and the
implications of that position in other

state/tribal jurisdictional contexts.

SUMMARY OF ARGUMENT

The focus of this amicus brief is on
the question of whether a federal common
law balancing test or "Public Law 280"
controls the determination of state
jurisdiction. The thrust of California’s
argument is that this Court is free to
decide, as a matter of policy, whether a
state may legislate the parameters of

permissible tribal activity on trust or

(Footnote 3 continued)
undermine the ability of tribes to improve
reservation living conditions. Bryan v.
Itasca County, 426 U.S. 373, 388 n. 14
(1976).

18

restricted lands within the Tribe’s
reservation. California and its supporting
amici attempt to extract sweeping new

Indian law principles from this Court’s

decision in Rice v. Rehner, 463 U.S. 713

(1983). If this Court were to adopt their
interpretation of "modern federal Indian
law," it would be departing substantially
from both its earlier and most recent
Indian law decisions.

Rice clearly was not intended to invade
the exclusive province of Congress to
decide the extent to which states may apply

their laws to reservation tribes and their

members. In Rice, this Court upheld the
imposition of state liquor licensing
requirements upon a tribal member
"(bjecause we find that Congress has

5, 4

delegated authority to the States as wel
as to the Indian tribes to regulate the use
and distribution of alcoholic beverages in

Indian country..." 463 U.S. at 715. The

19

Court recognized that, although tribes may
have lacked self-governing authority over
liquor transactions and states may have had
concurrent jurisdiction to prevent
non-Indians from selling liquor to Indians,
a Congressional delegation was necessary
"to fill the void" in federal/state law
applicable to tribal members once the
federal prohibition upon their sales was
lifted. Id. at 733.

This traditional immunity of
reservation tribes and their members’ from
the application of state laws is well
established. It requires careful attention
to the identity of the persons and entities

against whom a state law is to be enforced.

See, Washington v. Confederated Tribes
the Colville Indian Reservation, 447
134, 151 (1980). The states have ignored

such critical factors in arguing they have
residuary jurisdiction over tribes and
that this matter may be decided by a

balancing test. This Court has’ ruled that

20

the application of state laws to tribes in
situations such as this is impermissible in
the absence of Congressional authorization.
Moreover, Public Law 280, 67 Stat. 588,
set the parameters for assertions of state
jurisdiction over reservation Indians, in
the absence of other federal statutes
addressing the particular Indian activity
involved. As this Court explained in

McClanahan v. Arizona Tax Commission,

the "modern cases" on state jurisdiction
over reservation Indians lock to the
applicable treaties and statutes, such as
Public Law 280, "which define the limits of
state power." 411 U.S. 164, 172 (1973).

The Court noted that:

The extent of federal pre-emption
and residual Indian sovereignty in
the total absence of federal treaty
obligations or legislation is
therefore now something of a moot
question. Cf. Organized Village of
Kake v. Egan, 369 U.S. 60, 62, 7 L.
Ed.2d 573, 82 S. Ct. 562 (1962);
Federal Indian Law 846. The
question is generally of little more

ae an ie | a vu N .
he % raLLITOrnNdi Attorney Generali Up1lnion
> | 4 T A + x
an) = Tne
i je, PD. 4, AS L ie
~ . .
~~ + - ~ +> - bh ~ mer ar a
Cle Air Act, the Opinion states:

These considerations ‘*end to show
that in enacting Section 118, the
Congress did not take Indian tribes

2 EEE eVvVX—Xo7cvoeES

int account at all. Certainly
there lis no evidence of the intent
necessary to subject Indians’ and
tribes to state and local standards
and limitations.

Id ae 10.
The federal district courts who have

applied the no regulatory jurisdiction rule
have commonly found the types of laws at
issue in this case to be regulatory, and

therefore, inapplicable.

C. The Regulatory/Prohibitory
Distinction Is A Concept This Court
Recognized Long Before Bryan. Its
Rejection Has Implications For Federal
Reservations Other Than Indian
Reservations.

The states’ arguments in this case

amounts tc th same argument made and
rejected in Bryan, 1.e. Pub [ 280
authorized plenary state jurisdiction over
reservation Indians In arguing against
the Civil regulatory/prohibitory law
distinction, Arizona, Nevada, and Mex1co

58

explain why plenary state jurisdiction

the

is

logical outcome of the states’

position.

.-any collection of State laws
which, in the aggregate, forms a
regulatory scheme which is civil in
its general nature must by
definition also include penal ofr
prohibitory enforcement components.
Otherwise, the State’s regulatory
objectives and policies will be
rendered completely illusory and
unat.tainable.

Thus, even assuming the
propriety of the questionable
hypothesis that, under Pub. L. 280
and related similar laws (e.g. 18
U.S.C. {13, the "“Assimilative Crimes
Act," applicable in non-Pub. L. 280
states) Congress intended to include
only a State’s exclusively
"criminal/prohibitory" laws, the
inclusion of the penal or
prohibitory enforcement components
of systems otherwise characterized
as "civil/regulatory" seems clearly
to be intended.

Brief of the States of Arizona, Nevada and

New

the

one

Mexico, As Amici Curiae In Support
State of California, p. 12.
Long before Bryan, in a case involv

of these "related similar laws,"

|

nn +
— &

ing

the

Court pointed out the need to draw a
distinction between common law type crimes

and activities which state legislatures

have closely regulated through licensing
and similar restrict forceable by
criminal penalt yy llow Cab
Transit Co., 321 | 3 (1944).
In Johnson, the rt iered whether
the Assimilative Crimes Act might permit

enforcement of state liquor laws on a
military reservation. Although Johnson did
not decide the issue, what is importan
about the Johnson statement is the concept
it represents. When dealing with a
federally established reservation that has
traditionally been subject to exclusive

federal jurisdiction, the Court must not

assume that legislation such a the
Assimilative Crimes Act and Pub L 280 was
intended to result in the wholesale
ipplication of state laws > noted in

Johnson, in the absence of clear language

authorizing state regulatory authority and

evidence that Congress considered the

matter, a Court should not assume that
Congress intended to alter so drastically a
reservation’s unique federal statu
Furthermore, Johnson pointed out that the
applicability of a particular state statute
under federal statutes such as the
Assimilative Crimes Act is a federal
question, upon which the interpretation of
state courts is not binding. 321 U.S. at
383.

In Bryan, this Court found a total
absence in Pub L 280’s legislative history
of Congressional discussion of state civil
regulatory authority, or jurisdiction over
tribes. 426 U.S. at 389. Subsequent
legislative history indicated 5
Congressional assumption that Pub L 280 had
not altered jurisdiction as to regulatory
laws with criminal penalties, e.g. state
environmental laws. See, Bryan v. Itasca

County, 426 U.S. at 386-387. The same sort

+

— + - ~
assertions

about the intent of

possibility of undesirable

reservation businesses, in
state Jurisdiction, wer
Senator Ervin, who offered
sponsored the 1968 Pub. L.

Id. at 387 Particularly
of regulating tribal activ
reservation by direct stat

state laws, this caution is appropriate.
In deciding that Pub L 280 was not intended
to alter tribal government immunity from
state control and the immunity of
reservation Indians from state Civ]

regulatory authority, the Court said that
a contrary conclusion would mean that Pub

L, 280 was 2 termination act Id., at
389-390 oncerns such as this led this
Sourt to reject similar state arguments for
plenary jurisdiction over reservation
Indians selling cigarettes to non-Indians
based on the General Allotment Act’s

states toaay
T “oO ry . _
J a W/V and tne
q , 7
and unrequlated
+ kh r=
the absence of
e answered by
a 7d . — YT Ver
an principally
2 ~ _-
80 amendments
ny +hoe "“Antro -
' @ | Se eee oe oe — —_
ity on an Indian
fO cc saa) on i a ~~ +
e enforcement of

garding state criminal and

civil jurisdiction. See, Moe v. Salish and

Kootenai Tribes, 425 U.S. at 477-479.
CONCLUSION
No act of Congress has authorized the

jurisdiction asserted here.
Federal common law has no recognized such

authority, and Pub L 280 now defines the

rh

limits O state jurisdiction over
reservation Indians and tribes.

Whether courts characterize the test
for permissible state jurisdiction under
Pub L 280 as a civil regulatory/prohibitory
distinction, or a public policy test, the
essential concept has been thoroughly

litigated and decided in Bryan. Congress

ct
ey
ct
(D

- ~ . : 7 ~ -4 : : -
‘ criminal Jurisdiction to

. YT Th ‘ele? T CTON
sAMBLING COMMISSION ’

_ ADNED aT ALIM TAT
{) ) md
Ve WII EIN UWUNAING LIND
mmm y,r ma nT eS T
St’ fo rh ‘5 ef ) ~ Vi TV na -
LAS NCE AALCA, Ot FOR SUMMARY JUUGIIEN J
akLe ,
~fannn: ~
VeTenaantcs.
y '7 . rw A TOM TOTS —-. 7 | + - - - a a "
> . vi i bs Y > ’ y Y >
See ae MhiAd 4 ~-OMmMes WelLOdt ¢ Ait 44 i 2
~ + r Kar Toafandantc Ay - — oe, icrment
oe ae et oA hm Y 4 € ae we AANA 11S . 4 he 2 A 4 il y A.A \4 s —
4
a , _ - . = ; . y .
athe ~h ohea . ol ae 217 7 - é nn + all on oe Lh. 4 ‘> LDy4 T= ~ +
‘ Irsuantl VU MRUJE / L Set r ¢ 1e ral I A So St.
’ . DraAmoantitira Lil oau«r “~~~ ye “fF ’ q ~ -y
X Vv» & & CCUULC. ria Vv Li1G A. * ¥icwe A sit
nem Y te | nei bh a mY at = i aie + ao) + 7. Lway
i | / Sd ida an A J ws se J it — Gee | its >LAw A 4 . A / Y
“ACD | - Arto F So 7 ee W mae" a 7, _ + roa erAareaA
ad i: se Ait A Wo ad Ait A. * . ‘
7 - . A . Lit a - . A « - + > 4
> = + } - >
Ai * | > A LA. & \- VV > «
rm >} ~ +> + + -
l iS | l [ I r 1¢ ira r re el

t

Washington

of bingo games
agains

activities of the

~
=

° +
1pe

on-reservation

(+)
ne

Tribe). Defendants, seventeen employees of
the Tulalip Entertainment Center, have
moved for summary judgment claiming that
the suit is barred by tribal sovereign
immunity and that Public Law 280\1 does not
provide the Commission a cause cof action.

Viewing the evidence and the inference
which may be drawn therefrom in the light
most favorable to the non-moving party,
this court has determined that there are

/
genuine issues of material fact and that
the defendants are entitled to judgment as
a matter of law. Barona Group >i capitan
+ Act es Audqust l , 19 , Put

No. 83-280, 67 Stat. : commoniy Known a
"Public Law 280"
2 - ORDEI!

~ cont : us - T Aan anme “7 Tyi3 + ar
an Q p .
r — ee
r -, + +
« a) a
The Tu | >] an Ts 5 } += ~ + t Tt. a .!. ka. to _ be
iii“ 2AU4 A te bY | a ae SO) > rf WaoildiiyeVIi1 i— il
= te, t= han wo »~ + Tro a Iara ann rom nr ,_7on aay
lLnaepenaenvt inalian Navlion recognize y
L 4

= = > | i an DpDoOa OL
£

>snact

(D
oF
>a
ry
a
@)
ow
-
O
ry
or
7
3

—~ .* he ,
nance autnorizing,

tne reservation. The sta

ct
0
oF
'T)
ry
e
O
O
ry)
+
J
D

) 77-482... n+ ~ -h o = c mratkean TT. ~~ = (a

2acveiopmentc on the reservation ana to raise
i
‘ te, t= + = aa oie ao 7 one 4 } + te ~ cC y } mes >
s ALIA m/s Nee ee _. —— \/ S . > | s. >¢ ¥ e =) al A 7% ner
TOvernment > | nNroarams - | , +he Tes koa
‘4 a hm 444 4 ~ a s - — « ‘ y ' ~ + ~ » a J
. | |

- = “oO 7 ~ — ] 7
ae ra inance was imenaed
‘7 + }~ ~ + T ~~ ~~ -~ - T ~

> rac a ta nr
y Sei: s ‘ LL & Ge — s > a4 Ad =
4 7 + “*) ee Ve --

: oi ant 7
2, 4. » \ ays Atlta 2ilS y
ofonda \~r . mmartu Ty icrment
4 Ai\4ACA . >\A ‘ A 4 y A 4 A\44 .
4 7
mNWmNrr
_ ~ r ra

government, acting

Bingo Commissicn,

all profits must

ordinance was reviewed and

may

through

On
“}

go

erate

Secretary of the Interior.

According to

Entertainment Cen

2,000,000 to construct

players to its

e Tribe,
cost
Ge Sinc
in J
a larg
reservati

opportunity gamble for prizes.

do net dispute the proceeds f

and pulltab games

of the revenues of

apply state laws

on-reservation

Q

defendants are

are, or were
we
(
a4
1o
~~
¥ b Ad ()
4

4
«*
i. |
ot
on >
— ia
on |
7 r |
wv
r-4 U)
J ;
. .
ee
ry ae |
‘ ry
4 U
4 ¢
° pad
ica
4
on
.
a)

r-
~~

+4

~*

t,.7 } . ~~ “orI mM oOCS
Washington assumed

-¥- It should

committed by
Washington took
eight ecific
welfare,
not gambling.

do not have
committed by
reservations,

Supreme

be noted
Indians

Washingt

a
Ss

on

X

Court cons

+

that

+
as to

Indian

Jurisdiction
subject

only

1e

land
over

ct

uw

f
Se)

77
/

ct

W

a

ct

i/

oF

0.

WY)

acts

areas--chiefly

Consequently,
those enumerated areas,

Indians
unless the affected tribe

over

within

fre
courts
crime

family law and motor vehicles--bu
apart
Washington

Jurisdiction

thel

.
na

requested the state to assume jurisdiction.
F.2d 890,
Tulalip

United
(9th Cir.

elected, by
and its
criminal
Washington.

retroceded.

States Vv.

1980).
ordinance,
reservations
Jurisdiction
Such '

effective in 19

Farris,

58 and

t

624

The
to

Oo
of

subject

+
L

he

civil

State

became

Ty 4
~ &

2)

oO

>

itse
] a

on:

san
a4

,
=
~~ —
S|
..

Q

+
4.

“4 -.
i -
ense

~ x7
serva

n” ys
1 ltia
a

)
Lii€
. rT «
— P|
| — -
7 és +
.
r | _
‘ |
4 - fF
AC LAI
y .
Al
a os
ha —
4 >a
© ? |
, TOY
+

+

=

7s

rr

an

a)

.> ~
.
, ee
YY =
5H
ho

> ‘

A a
AF
» ¥ .®
, ret
be ae Ser 8
‘ pe

TU
I
~
ta
tn
.

=

+o

_

c

—

—2J

+

r+

4 *
A
> .
A
vo
i Al
war
—

a

£

.

i ow

1. S&S

~Aaft
a.

1? -

A
+
|
-s
s.
[=)
Li
tn
Sa
>

oe

hh 3
>>"
,
A

Te.
A
,r
Ai;
(4
i
_
>
>

_
A. CA

Ad

ry

e

iw]

4d

certain

organizati
a general
Compare Ca

RCW 9.46.0

U
a
O
cS
(a
0,
ry
m

O
Hy
O
+
bs
or
ct
O
,

California
rather tha

based this

bingo is all

of recreati

ry

-

n

O
ry

AA

G

nrn } i+ 7
prohibition

Pena

1

Code

3) and 9.46.

+7-4.4 ath
Venrnt it €

ror (nr
+ \ aa

J

rmined that
lassified ;
depended
plained of
of the stat
court det
gislature in

reven
} ~
lates

of b

‘ A de

La

W

O
ry

nar

ct

UW)

r

wy

ct

|
‘

ry”

oe +
bh a + &
o
ca ry
— a a
rT
SF
v,7 4
Wo
ATs ws
| oe © © |
+ +,
— a a
~*
>»
+
+ -
ale | a
Ai -
~ -
+4 .
4.4 > i
i
oe SS |
- +
— \ 4
a
a i
e ;
= A
ed
- .
— .
4 A
-_
Mm
+

()

~

—

>
a4 s A

amo we 4
‘ > ~~ A
‘\ebhea 5 ie
‘ \ -
_ nt
1eC0 | A
. ‘
.
°-zA
~ ,
. r+ ,
=}
»} Q s,
ad ,
a TT 4
| t
* = 1 >
A A
YY

oy

ert

ad

rt

4

‘ f
4 +
ps4
fal
st
f 4
4 j ae
ne
¢ ‘
~~
‘ . +4
= 4
+
rq 4
4 ‘
‘ ~
>
+
+

+4
4 4 4
~ i
a) rt y+
4
ct ‘
4 S |

--¢ rr
B&R \s ele
’ J, Oo °* &
+ ,
F. Supp.
s
si . ~ +
a r (
Lripne aI
,% -
Supp.
io)
sarona tr
‘ A AiGa ,
-
7
LT)
; }
. . . e >. +
~.e a AAS «
a ~ Ao =
1Ot De af
‘
sim 7 7
o
eminolie
hon hoa ~ +
} aC Ji
7 17 ae a ie itn fo |
4 YVeLiistiig
a “he iTeo
A - YS i
arr a a) ’
‘ A 4
| ‘
: in wa
: los “7 +
¥
7? h «
(2) ]
\ i i

. ,an
I de> he OA
Rese
94 2-13 -
=
- -
ri
~~ * oQ
aa -
l >
» + »
“+
;
L 4

om

= —/

Q “~

~

ps/

ho

-

at

uc

“hi all on ba
we Ne NA

|

="

&

polic

.

Ninth Circui

Oo

a
v

-

test developed int

say tt
— Y

statute, the court concluded that bingo
fell in the category of gambling that the
legislature has chosen to regulate by
imposing certain limitations to avoid

abuses. Id. Accordingly, the Seminole

T _— . nae myiK ~ + —_ +},
Indian Tribe was not subject ae the

~

(Footnote 7 continued)
1361 (9th Cir. 1977), and United States v.
Farris, 624 F.2d 890 (9th Cir. 1980). In
Marcyes, the court held that’ the
Washington fireworks law was' prohibitory
and not regulatory. Evaluating the
statute, the court found that the “purpose
of the fireworks laws [was] not to generate
income, but rather to prohibit their
general use and possession in a
legitimate effort to promote the safety and
health of all citizens." 557 F.2d at 1365.
Marcyes was distinguished in Seminole on
the basis that the Marcyes court had found
the possession of dangerous fireworks
generally prohibited and not merely
licensed. Seminole, 658 F.2d at 315.
Farris dealt with a Las Vegas-type
casino operation on the Puyallup
Reservation. The court found that the
"violation of the law of state" requirement
of section 1955 of the Organized Crime
Control Act, 18 U.S.C. { 1955, was intended
to include in the federal prohibition those
gambling operations contrary to state
public policy as was the Puyallup gambling.
624 F.2d at 895-96. Based on this
analysis, the Seminole court concluded that

the state’s public polic' determines

whether the activity i prohibited or
regulated. 658 F.2d at 316.

15 - ORDER

Hh

O
ry

regulations and could not be prosecuted

{

YW
D

violating the limitations imposed.

~]

2
\O

18 F. Supp. at

Ui

also Oneida,
(general populace allowed to play bingo at
will).

Applying the test set forth in

ct

Barona, 694 F.2d at 1189-90, this cour

oF

concludes that Washington’s bingo anc
pulltab laws are regulatory and of a civil
nature. First, RCW 9.46.030 authorizes

bingo and pulltab operations by a wide

variety of charitable and nonprofit
organizations. See RCW 9.46.020(3). There
is no general prohibition against playing

bingo or pulltabs. Compare United States

v. Marcyes, 557 F.2d 1361 (9th Cir. 1977).

The Washington statute regulates bingo as a
money making venture by limiting the
location and number of days of operation,
requiring that all proceeds be applied to
the organization conducting the game and
prohibiting the use of professional
managers other than members or employees of

16 - ORDER

OO ee€_,-

oe

—)

governmental

and

affidavits of defendants Hatch

establish that

the

Tribe from the bing

are to

arence

7
~

emphasized

better th
the

Bingo
author]
694 F.2

Tribe mz

organl

©

s

e

other

the Tulall
within t
permissive

In ]
8 =- ORDER

be invested

.
na

~ _>-
cnarita
, 4 ; .
Yr) : r
pulltab
| +
unaer vU
T pBeais
L An he >
nar ") 7
4a \w 4 -
2
7 i i ae
on “pases!
.
fram ing
ACAMLAS A AA:
ration la
a % -& Wad A.

quirements

. Q
- a» »
a ~
s
‘
a
‘
AN .
,
mba ern
/ & s Ail

profits

rn
WY

Ar
de ae

rth
fy

. oS

ao
~

ece

en

and pulltab

j

anal

ct

} aQ
a bY -
Th
a a4
. oa
lam
ee
A a
tie
~ ~
Wa
>
4 q
y |
4
WK ~
A, dw
ee kh -
- oO
- Be
GA sd
o~-
7 P
~ °
*.7 +
Wu
eme
Ta
~ ~ &
+

WV)

Q

V4

Fy
_TmtS > r ate ' am onl ~ + ~ + > -— +? . : ata tan
Skt ms & Lne 5 0) OF ea er. | Lil 4s A if >-a ‘ > by R114
> >
— . . . .
A a ah Yr Oct) at } a oie ~~ - +ho . >) _*
LA vr“ + 4 A ae ae ee ES — fiiuw’ 4 — Ad 4 A ee ee
. is
~ i altat= SN Tho ek + } _ > hal bet —
‘ Lng — hw —w hs we A 4 / A,1\A4 AGA - — wis YS
£ .
m— . ~ ~ 5 “a5 ne ale to oe ~~} . _e "On? ~~ 5 ~
oe ae = & wHi/ dL AO Y / - bi dad he bo Alt s ha i Le 4 AY AVI)
} 4 }
~ + ~~ — Are | —_ 7. Tams~ — + } — yr i -~ +
: 4 he de ee ~ + -e' > A 4 4 4a A |: AACALIVAD /
‘
. - ~+.7 ~~ > a -a Lt ’ + - - - ++
Ly 1 Lew Iperat rs - nVeé I ] ] rue
4 :

- bw The On-reservat®t ry 1c T T ‘ T Tne
4 — 4 — --s ~ , - 7 - > + - ’ > > ? + — +
—aaat=" cal (TS “to ~ > . . y > _>- y 7 7 mac
ribe nave i LInDpa Dé ] , James
erated ‘7 - ~Taae | .Y i ok, ——aat="
— dA ~ = _ ~ , as > : ‘ - - > : ic
one ro e ~ ~ > . - = + - + ~ ~~ ~~ -

e >| oo
. ~ 7 _ _ aie ‘sa = - , - s « > - —
“Attra Se ~ + - - ; - 7 . y . . _
nverv Lic >LaA LE > eCQuid 1 i ic
ea = » | , } > — —_ - 7. - ~ > } } + —
4 Ad il eae L € La PLL Lt A : J J bLid? J LY e«
] T - +
_ . > t.J . Cc _ \~ = -_ -
b - . | a vv “ A i ‘ | A Ad ‘ Lizc& ‘ e

— + 4 ‘ - . » > > - - . - . - = | S ~ y
~ c + 4 _>. > + + ~ alt
1usSe I 2 4eSi1TFre egua A ©
=~ > _ nm > . > > . ’ bes _ 7 ~ + _ > ._ - _v
+ ~ * * - > 4 - ‘ ? . ‘ 4 > c - .
ta aa Be Q Si ’ rr nn? + - Yvrar 7 a+ to
oe ' As 4 ai A ; ‘ ‘ A ACA41 4 6 A 4 i .
T)} . ’ - J L ,
‘ >» +> + ~ P woe = j + _>
- s 4 . - - . . >
+ mon? + lal . > > + ~ » . > . +
4 4 > ¥ 4 4 . ‘ > s .
. ? a: 7 y 7 a " - 14 a . 4 -~ + f . + _
4 > 4 - . ; 4 * 4 a 4
mmmarewu Va hitl-ta be . x a.rrr r =" .
Al a4 y A\A\4 i i + sv A ‘ . | >
, TT,
—_ bh .
. 4 + }
+ + > - . , ‘
+ " " . ,
. my + - +
‘ . +
: *
" " y "
- : ‘ ‘ ‘

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0113%3A22. Public record. Not legal advice.