Chemehuevi Indian Tribe v. Gavin Newsom ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEMEHUEVI INDIAN TRIBE; CHICKEN No. 17-55604
RANCH RANCHERIA OF ME-WUK
INDIANS, D.C. No.
Plaintiffs-Appellants, 5:16-cv-01347-
JFW-MRW
v.
GAVIN NEWSOM, Governor of OPINION
California; STATE OF CALIFORNIA,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted October 9, 2018 *
Pasadena, California
Filed March 21, 2019
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 CHEMEHUEVI INDIAN TRIBE V. NEWSOM
Before: Sandra S. Ikuta and John B. Owens, Circuit
Judges, and Haywood S. Gilliam, Jr., ** District Judge.
Opinion by Judge Gilliam
SUMMARY ***
Indian Gaming Regulatory Act
The panel affirmed the district court’s order granting
summary judgment to the State of California in an action
brought by Indian tribes under the Indian Gaming
Regulatory Act.
The panel held that IGRA permits tribes and states to
negotiate the duration of a compact governing the conduct
of a tribe’s class III gaming activities. Accordingly, a
termination provision in a compact was not void under
IGRA.
**
The Honorable Haywood S. Gilliam, Jr., United States District
Judge for the Northern District of California, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CHEMEHUEVI INDIAN TRIBE V. NEWSOM 3
COUNSEL
Lester J. Marston, Rapport and Marston, Ukiah, California,
for Plaintiffs-Appellant.
Xavier Becerra, Attorney General of California; Sara J.
Drake, Senior Assistant Attorney General; T. Michelle Laird
and James G. Waian, Deputy Attorneys General; Office of
the Attorney General, San Diego, California; for
Defendants-Appellees.
OPINION
GILLIAM, District Judge:
This case presents an issue of first impression: Does the
Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C.
§§ 2701–2721, permit tribes and states to negotiate the
duration of a compact governing the conduct of a tribe’s
class III gaming activities? Because we conclude that
IGRA’s plain language permits durational provisions in
compacts, we affirm the district court’s order granting
summary judgment to the State of California.
I
Congress passed IGRA to establish a framework for
regulating gaming on Indian lands. See 25 U.S.C. § 2702.
Under that framework, IGRA creates three classes of
gaming. In re Indian Gaming Related Cases, 331 F.3d 1094,
1096–97 (9th Cir. 2003) (Coyote Valley II). Class III
gaming, the kind at issue here, “includes the types of high-
stakes games usually associated with Nevada-style
gambling,” and “is subject to a greater degree of federal-state
4 CHEMEHUEVI INDIAN TRIBE V. NEWSOM
regulation than either class I or class II gaming.” Coyote
Valley II, 331 F.3d at 1097; see also 25 U.S.C. § 2703(8)
(defining “class III gaming”). In general, class III gaming
may occur on Indian lands only if the activity is
(1) authorized by an ordinance or resolution “adopted by the
governing body of the Indian tribe having jurisdiction over
such lands” and “approved by the Chairman” of the
National Indian Gaming Commission (“the Chairperson”);
(2) “located in a State that permits such gaming for any
purpose by any person, organization, or entity”; and
(3) “conducted in conformance with a Tribal-State compact
entered into by the Indian tribe and the State . . . that is in
effect.” 25 U.S.C. § 2710(d)(1). 1
The Chicken Ranch Rancheria of Me-Wuk Indians and
the Chemehuevi Indian Tribe are federally recognized
Indian tribes in California. California permits certain forms
of class III gaming under an effective tribal-state gaming
compact. The Tribes each have enacted gaming ordinances
that were approved by the Chairperson. Each of the Tribes
executed a compact with the State in 1999, and the Assistant
Secretary of Indian Affairs approved each compact. 2 On
May 16, 2000, notice of that approval was published in the
1
Class III gaming is permitted without an agreed-upon compact
only if a district court finds that the state has not negotiated in good faith,
the state rejects a court-appointed mediator’s selection of the tribe’s
proposed compact, and the Secretary prescribes procedures under which
class III gaming may be conducted. See 25 U.S.C. § 2710(d)(7)(B). The
Tribes do not allege that the State negotiated in bad faith.
2
Because the compacts signed by Chicken Ranch and Chemehuevi
are substantively identical, we refer to the Tribes’ compacts collectively
as “the Compact” or “the 1999 Compact.”
CHEMEHUEVI INDIAN TRIBE V. NEWSOM 5
Federal Register. Under the Compact, the Tribes operate
casinos on “Indian lands,” as that term is defined in IGRA.
The 1999 Compact contains a termination provision
(“the Termination Provision”) that sets December 31, 2020
as the Compact’s end date. The Termination Provision
automatically extends the end date to June 30, 2022 if the
parties have not agreed to amend the Compact or entered into
a new compact before December 31, 2020.
The Compact separately includes (1) provisions for
renegotiation and amendment; (2) meet and confer
requirements before a party may seek arbitration or file suit;
and (3) a limited waiver of the State’s sovereign immunity
for issues “arising under” the Compact. It is undisputed that
the parties have fulfilled the Compact’s meet and confer
requirements.
On April 20, 2016, the Tribes sent a letter asking the
State to concede that the Termination Provision is void under
IGRA, and that the Tribes have no obligation to negotiate a
renewal of the Compact. The State disagreed and declined
the Tribes’ request. The Tribes then filed suit in the Central
District of California. After the filing of cross-motions for
summary judgment, the district court granted the State’s
motion and denied the Tribes’ motion. The district court
issued a final judgment, and this appeal followed.
II
We review the district court’s grant of summary
judgment de novo and may affirm on any ground supported
by the record. California v. Iipay Nation of Santa Ysabel,
898 F.3d 960, 964 (9th Cir. 2018) (citing Phoenix Mem’l
Hosp. v. Sebelius, 622 F.3d 1219, 1224 (9th Cir. 2010)).
6 CHEMEHUEVI INDIAN TRIBE V. NEWSOM
Statutory interpretation presents a question of law, which we
also review de novo. Id.III
This case presents an issue of first impression regarding
the validity of durational limits on compacts under IGRA.
The Tribes contend that IGRA’s plain language precludes
durational limits. The State agrees that IGRA’s plain
language is determinative, but disagrees that the statutory
language supports the Tribes’ position.
Section 2710(d)(3)(C) of IGRA sets out the range of
subjects addressable in tribal-state compacts. In full, that
section states:
Any Tribal-State compact negotiated under
subparagraph (A) may include provisions
relating to—
(i) the application of the criminal and civil
laws and regulations of the Indian tribe or the
State that are directly related to, and
necessary for, the licensing and regulation of
such activity;
(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such
laws and regulations;
(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;
CHEMEHUEVI INDIAN TRIBE V. NEWSOM 7
(iv) taxation by the Indian tribe of such
activity in amounts comparable to amounts
assessed by the State for comparable
activities;
(v) remedies for breach of contract;
(vi) standards for the operation of such
activity and maintenance of the gaming
facility, including licensing; and
(vii) any other subjects that are directly
related to the operation of gaming activities.
25 U.S.C. § 2710(d)(3)(C).
The parties’ dispute turns on the meaning of this section.
The Tribes contend that once they have satisfied the three
minimum statutory requirements in 25 U.S.C. § 2710(d)(1),
the statute confers an “absolute right” to engage in class III
gaming, so as to preclude durational limits. The State
counters that the plain language of subsections (d)(3)(C)(vi)
and (d)(3)(C)(vii) establishes catch-all categories, and that
those categories broadly authorize the inclusion of
durational provisions in compacts.
In interpreting IGRA, we apply “traditional tools of
statutory construction.” Rumsey Indian Rancheria of
Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th Cir.
1994), amended on denial of reh’g by 99 F.3d 321 (9th Cir.
1996). We begin with the statute’s language, which is
conclusive unless literally applying the statute’s text
demonstrably contradicts Congress’s intent. See id. (first
citing Mallard v. U.S. Dist. Court for the So. Dist. of
Iowa, 490 U.S. 296, 301 (1989); and then citing United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989)).
8 CHEMEHUEVI INDIAN TRIBE V. NEWSOM
“When deciding whether the language is plain, courts must
read the words in their context and with a view to their place
in the overall statutory scheme.” Rainero v. Archon Corp.,
844 F.3d 832, 837 (9th Cir. 2016) (quotations and alterations
omitted). “In most cases, ‘if we find the statutory language
unambiguous, then we will not resort to legislative history’
to guide our review.” Rumsey Indian Rancheria, 64 F.3d at
1257 (quoting Fernandez v. Brock, 840 F.2d 622, 632 (9th
Cir. 1988)).
Applying traditional tools of statutory construction, we
find that IGRA’s plain language unambiguously permits
parties to include durational limits in compacts. The phrases
“standards for the operation of [gaming] activity” and “any
other subjects . . . directly related to the operation of gaming
activities” are naturally read as catch-all categories. Viewed
in context, those terms are broader than the more specific
topics enumerated in paragraphs (3)(C)(i)–(v). And once
paragraphs (3)(C)(vi)–(vii) are properly framed as catch-all
categories, the inquiry is whether a durational limit is either
a “standard[] for the operation of [gaming] activity” or a
term “directly related to the operation of gaming activities.”
We conclude that, at a minimum, a durational limit is
“directly related to the operation of gaming activities.” See
25 U.S.C. § 2710(d)(3)(C)(vii).
To start, IGRA’s structure dictates this interpretation.
Construing paragraph (3)(C)(vii)’s catch-all provision as
permitting durational limits in compacts plainly coheres with
IGRA’s threshold requirement that a compact be “in effect”
for class III gaming activity to lawfully occur. See id.§ 2710(d)(1)(C). Congress’s inclusion of that language
indicates that it contemplated that a party could properly
raise a compact’s “effective” date during negotiations. And
as a matter of common sense, given that a tribe may not
CHEMEHUEVI INDIAN TRIBE V. NEWSOM 9
conduct gaming activities without an effective compact, a
durational limit on the effectiveness of a compact is “directly
related to the operation of gaming activities.” See id.
§ 2710(d)(3)(C)(vii).
Subsection (d)(1)(C)’s effectiveness requirement also
undercuts the Tribes’ position that IGRA gives tribes an
indefinite right to administer class III gaming. Rather, that
regulatory right is qualified by the existence of a valid tribal-
state compact. See id. Numerous other sections in IGRA
support this view. See, e.g., id. § 2710(d)(2)(C) (“[C]lass III
gaming activity on the Indian lands of the Indian tribe shall
be fully subject to the terms and conditions of the Tribal-
State compact entered into under paragraph (3) by the Indian
tribe that is in effect.”); id. § 2710(d)(5) (“Nothing in this
subsection shall impair the right of an Indian tribe to regulate
class III gaming on its Indian lands concurrently with the
State, except to the extent that such regulation is inconsistent
with, or less stringent than, the State laws and regulations
made applicable by any Tribal-State compact entered into by
the Indian tribe under paragraph (3) that is in effect.”)
(emphasis added). As it relates to the subjects deemed
permissible for negotiation under Section 2710(d)(3)(C),
then, the Termination Provision is “directly related to the
operation of gaming activity” under paragraph (3)(C)(vii)’s
catch-all provision.
We further reject as inconsistent with a plain reading of
IGRA the Tribes’ argument that the statute’s silence
regarding duration entirely prohibits a party from raising the
subject during negotiations. The Tribes’ alternative,
presumably, is that all tribal-state compacts must run
indefinitely. See Compl. for Declaratory & Injunctive Relief
at 14–15, Chemehuevi Indian Tribe v. Brown, No. 5:16-cv-
01347-JFW-MRW (C.D. Cal. Mar. 30, 2017) (prayer for
10 CHEMEHUEVI INDIAN TRIBE V. NEWSOM
relief requesting declaration that the Termination Provision
is void and unenforceable, and seeking order that the
provision “is severed from the 1999 Compacts and that the
remaining provisions of the 1999 Compacts are in full
force”); see also Cohen’s Handbook of Federal Indian Law
§ 12.05 (2017) (“Tribal compacts often contain terms
regarding duration. Where no such terms exist, the compact
is presumed to run indefinitely and neither party may
unilaterally terminate a compact.”). Nothing in the statute
suggests that Congress intended that result, and we avoid
reading in unstated statutory requirements. See Ariz. State
Bd. for Charter Sch. v. U.S. Dep’t of Educ., 464 F.3d 1003,
1007 (9th Cir. 2006) (“In conducting [a plain meaning]
analysis, we are not vested with the power to rewrite the
statutes, but rather must construe what Congress has
written. . . . It is for us to ascertain—neither to add nor to
subtract, neither to delete nor to distort.”) (quotations
omitted). Moreover, demanding that only expressly
enumerated subjects are addressable in compacts would
render the catch-all language meaningless. We must instead
“favor an interpretation that gives meaning to each statutory
provision.” See Life Techs. Corp. v. Promega Corp., 137 S.
Ct. 734, 740 (2017).
We are unpersuaded by the Tribes’ argument that the
Supreme Court’s decision in Michigan v. Bay Mills Indian
Community, 572 U.S. 782 (2004), supports their position. In
Bay Mills, the Supreme Court construed “class III gaming
activity” to mean “just what it sounds like—the stuff
involved in playing class III games.” 572 U.S. at 792. Citing
several IGRA provisions, including Section
2710(d)(3)(C)(i), the Court explained:
Those phrases make perfect sense if “class III
gaming activity” is what goes on in a
CHEMEHUEVI INDIAN TRIBE V. NEWSOM 11
casino—each roll of the dice and spin of the
wheel. But they lose all meaning if, as
Michigan argues, “class III gaming activity”
refers equally to the off-site licensing or
operation of the games. (Just plug in those
words and see what happens.)
Id. In the Tribes’ view, this passage supports their position
that durational limits are impermissible subjects for
negotiation, because they are not “directly related” to dice-
rolling and wheel-spinning.
But the Supreme Court’s interpretation of “gaming
activity” in Bay Mills does not conflict with our holding that
a compact’s durational term is “directly related to the
operation of gaming activities” within the meaning of
paragraph (3)(C)(vii). First, the proper inquiry here is
whether a compact’s end date is so attenuated from
gameplay that it falls outside of paragraph (3)(C)(vii), an
issue the Bay Mills Court did not address. See id. at 785
(“The question in this case is whether tribal sovereign
immunity bars Michigan’s suit against the Bay Mills Indian
Community for opening a casino outside Indian lands.”).
Second, if anything, Bay Mills suggested a broad view of
negotiable subjects when it noted that states and tribes “need
only bargain” for a term or condition, which in that case was
a waiver of tribal sovereign immunity. See id. at 796–97
(“[I]f a State really wants to sue a tribe for gaming outside
Indian lands, the State need only bargain for a waiver of
immunity.”). The Court added that “[s]tates have more than
enough leverage to obtain such terms because a tribe cannot
conduct class III gaming on its lands without a compact.” Id.
Accordingly, we reject the Tribes’ argument that Bay Mills
compels the conclusion that a durational limit is not “directly
12 CHEMEHUEVI INDIAN TRIBE V. NEWSOM
related to the operation of gaming activities” within the
meaning of paragraph (3)(C)(vii).
Our prior examinations of Section 2710(d)(3)(C) also
support today’s holding. In Coyote Valley II, for example,
we considered the permissibility under IGRA of three
compact provisions: “(1) the Revenue Sharing Trust Fund
provision [RSTF]; (2) the Special Distribution Fund
provision [SDF]; and (3) the Labor Relations provision.”
331 F.3d at 1105. These provisions required compacting
tribes to share gaming revenue with non-gaming tribes and
the State, and to address the labor rights of gaming facility
employees. See id. at 1104–07. The plaintiff tribe
challenged these provisions as “outside the list of
appropriate topics for Tribal–State compacts set forth in 25
U.S.C. § 2710(d)(3)(C),” which the tribe argued raised a
presumption that the State negotiated in bad faith. Id. at
1109. We disagreed and held that IGRA did not
“categorically forbid[]” the negotiated provisions. Id. at
1110. We also declined to find that the “State’s insistence
on their inclusion . . . demonstrat[ed] a lack of good faith.”
Id.As to the RSTF in particular, which required gaming
tribes to distribute revenue to non-gaming tribes, we held:
It is clear that the RSTF provision falls within
the scope of paragraph (3)(C)(vii). Congress
sought through IGRA to “promot[e] tribal
economic development, self-sufficiency, and
strong tribal governments.” Id. § 2702(1).
The RSTF provision advances this
Congressional goal by creating a mechanism
whereby all of California’s tribes—not just
those fortunate enough to have land located
CHEMEHUEVI INDIAN TRIBE V. NEWSOM 13
in populous or accessible areas—can benefit
from class III gaming activities in the State.
Id. at 1111. We found that paragraph (3)(C)(vii) was “not
ambiguous,” that the RSTF “clearly” fell within its scope,
and that there was no ambiguity to construe in the tribe’s
favor. Id. Citing the same reasons, we upheld the SDF’s
requirement that gaming tribes share revenue with the State.
See id. at 1114. We further held that the Labor Relations
provision was “directly related to the operation of gaming
activities” and thus permissible under paragraph (3)(C)(vii):
“Without the ‘operation of gaming activities,’ the jobs this
provision covers would not exist; nor, conversely, could
Indian gaming activities operate without someone
performing these jobs.” Id. at 1115–16. This reading of
paragraph (3)(C)(vii) as unambiguous and allowing for
negotiation regarding unenumerated topics supports our
holding here: a duration provision is at least as closely
related to the operation of gaming activities as the topics we
found to be permissible subjects for negotiation in Coyote
Valley II.
In summary, the State is correct that IGRA’s plain
language permits durational limits on compacts under the
catch-all provision of 25 U.S.C. § 2710(d)(3)(C)(vii).
Because the durational limits in the Tribes’ compacts are
valid, we AFFIRM the district court’s order granting
summary judgment to the State of California.