California v. Cabazon Band of IndiansAnnotate this Case
480 U.S. 202 (1987)
U.S. Supreme Court
California v. Cabazon Band of Indians, 480 U.S. 202 (1987)
California v. Cabazon Band of Mission Indians
Argued December 9, 1986
Decided February 25, 1987
480 U.S. 202
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
Appellee Indian Tribes (the Cabazon and Morongo Bands of Mission Indians) occupy reservations in Riverside County, Cal. Each Band, pursuant to its federally approved ordinance, conducts on its reservation bingo games that are open to the public. The Cabazon Band also operates a card club for playing draw poker and other card games. The gambling games are open to the public, and are played predominantly by non-Indians coming onto the reservations. California sought to apply to the Tribes its statute governing the operation of bingo games. Riverside County also sought to apply its ordinance regulating bingo, as well as its ordinance prohibiting the playing of draw poker and other card games. The Tribes instituted an action for declaratory relief in Federal District Court, which entered summary judgment for the Tribes, holding that neither the State nor the county had any authority to enforce its gambling laws within the reservations. The Court of Appeals affirmed.
1. Although state laws may be applied to tribal Indians on their reservations if Congress has expressly consented, Congress has not done so here either by Pub. L. 280 or by the Organized Crime Control Act of 1970 (OCCA). Pp. 480 U. S. 207-214.
(a) In Pub.L. 280, the primary concern of which was combating lawlessness on reservations, California was granted broad criminal jurisdiction over offenses committed by or against Indians within all Indian country within the State but more limited, nonregulatory civil jurisdiction. When a State seeks to enforce a law within an Indian reservation under the authority of Pub.L. 280, it must be determined whether the state law is criminal in nature, and thus fully applicable to the reservation, or civil in nature and applicable only as it may be relevant to private civil litigation in state court. There is a fair basis for the Court of Appeals' conclusion that California's statutes which permits bingo games to be conducted only by certain types of organizations under certain restrictions, is not a "criminal/prohibitory" statute falling within Pub.L. 280's grant of criminal jurisdiction, but instead is a "civil/regulatory" statute not authorized by Pub.L. 280 to be enforced on Indian reservations. That an otherwise regulatory law is enforceable (as here) by
criminal as well as civil means does not necessarily convert it into a criminal law within Pub.L. 280's meaning.
(b) Enforcement of OCCA, which makes certain violations of state and local gambling laws violations of federal criminal law, is an exercise of federal, rather than state, authority. There is nothing in OCCA indicating that the States are to have any part in enforcing the federal laws or are authorized to make arrests on Indian reservations that, in the absence of OCCA, they could not effect. California may not make arrests on reservations and thus, through OCCA, enforce its gambling laws against Indian tribes. Pp. 480 U. S. 207-212.
2. Even though not expressly authorized by Congress, state and local laws may be applied to on-reservation activities of tribes and tribal members under certain circumstances. The decision in this case turns on whether state authority is preempted by the operation of federal law. State jurisdiction is preempted if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority. The federal interests in Indian self-government, including the goal of encouraging tribal self-sufficiency and economic development, are important, and federal agencies, acting under federal laws, have sought to implement them by promoting and overseeing tribal bingo and gambling enterprises. Such policies and actions are of particular relevance in this case, since the tribal games provide the sole source of revenues for the operation of the tribal governments, and are the major sources of employment for tribal members. To the extent that the State seeks to prevent all bingo games on tribal lands while permitting regulated off-reservation games, the asserted state interest in preventing the infiltration of the tribal games by organized crime is irrelevant, and the state and county laws are preempted. Even to the extent that the State and county seek to regulate short of prohibition, the laws are preempted, since the asserted state interest is not sufficient to escape the preemptive force of the federal and tribal interests apparent in this case. Pp. 480 U. S. 214-222.
783 F.2d 900, affirmed and remanded.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. STEVENS, J., filed a dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined, post, p. 480 U. S. 222.
JUSTICE WHITE delivered the opinion of the Court.
The Cabazon and Morongo Bands of Mission Indians, federally recognized Indian Tribes, occupy reservations in Riverside County, California. [Footnote 1] Each Band, pursuant to an
ordinance approved by the Secretary of the Interior, conducts bingo games on its reservation. [Footnote 2] The Cabazon Band has also opened a card club at which draw poker and other card games are played. The games are open to the public, and are played predominantly by non-Indians coming onto the reservations. The games are a major source of employment for tribal members, and the profits are the Tribes' sole source of income. The State of California seeks to apply to the two Tribes Cal.Penal Code Ann. § 326.5 (West Supp. 1987). That statute does not entirely prohibit the playing of bingo, but permits it when the games are operated and staffed by members of designated charitable organizations, who may not be paid for their services. Profits must be kept in special accounts and used only for charitable purposes; prizes may not exceed $250 per game. Asserting that the bingo games on the two reservations violated each of these restrictions, California insisted that the Tribes comply with state law. [Footnote 3] Riverside
County also sought to apply its local Ordinance No. 558, regulating bingo, as well as its Ordinance No. 331, prohibiting the playing of draw poker and the other card games.
The Tribes sued the county in Federal District Court, seeking a declaratory judgment that the county had no authority to apply its ordinances inside the reservations and an injunction against their enforcement. The State intervened, the facts were stipulated, and the District Court granted the Tribes' motion for summary judgment, holding that neither the State nor the county had any authority to enforce its gambling laws within the reservations. The Court of Appeals for the Ninth Circuit affirmed, 783 F.2d 900 (1986), the State and the county appealed, and we postponed jurisdiction to the hearing on the merits. 476 U.S. 1168. [Footnote 4]
The Court has consistently recognized that Indian tribes retain "attributes of sovereignty over both their members and their territory," United States v. Mazurie,419 U. S. 544, 419 U. S. 557 (1975), and that "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States," Washington v. Confederated Tribes of Colville Indian Reservation,447 U. S. 134, 447 U. S. 154 (1980). It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided. Here, the State insists that Congress has twice given its express consent: first in Pub.L. 280 in 1953, 67 Stat. 588, as amended, 18 U.S.C. § 1162, 28 U.S.C. § 1360 (1982 ed. and Supp. III), and second in the Organized Crime Control Act in 1970, 84 Stat. 937, 18 U.S.C. § 1955. We disagree in both respects.
In Pub.L. 280, Congress expressly granted six States, including California, jurisdiction over specified areas of Indian country [Footnote 5] within the States and provided for the assumption of jurisdiction by other States. In § 2, California was granted broad criminal jurisdiction over offenses committed by or against Indians within all Indian country within the State. [Footnote 6] Section 4's grant of civil jurisdiction was more limited. [Footnote 7]
In Bryan v. Itasca County,426 U. S. 373 (1976), we interpreted § 4 to grant States jurisdiction over private civil litigation involving reservation Indians in state court, but not to grant general civil regulatory authority. Id. at 426 U. S. 385, 426 U. S. 388-390. We held, therefore, that Minnesota could not apply its personal property tax within the reservation. Congress' primary concern in enacting Pub.L. 280 was combating lawlessness on reservations. Id. at 426 U. S. 379-380. The Act plainly was not intended to effect total assimilation of Indian tribes into mainstream American society. Id. at 426 U. S. 387. We recognized that a grant to States of general civil regulatory power over Indian reservations would result in the destruction of tribal institutions and values. Accordingly, when a State seeks to enforce a law within an Indian reservation under the authority of Pub.L. 280, it must be determined whether the law is criminal in nature, and thus fully applicable to the reservation under § 2, or civil in nature, and applicable only as it may be relevant to private civil litigation in state court.
The Minnesota personal property tax at issue in Bryan was unquestionably civil in nature. The California bingo statute is not so easily categorized. California law permits bingo
games to be conducted only by charitable and other specified organizations, and then only by their members who may not receive any wage or profit for doing so; prizes are limited and receipts are to be segregated and used only for charitable purposes. Violation of any of these provisions is a misdemeanor. California insists that these are criminal laws which Pub.L. 280 permits it to enforce on the reservations.
Following its earlier decision in Barona Group of Capitan Grande Band of Mission Indians, San Diego County, Cal. v. Duffy, 694 F.2d 1185 (1982), cert. denied, 461 U.S. 929 (1983), which also involved the applicability of § 326.5 of the California Penal Code to Indian reservations, the Court of Appeals rejected this submission. 783 F.2d at 901-903. In Barona, applying what it thought to be the civil/criminal dichotomy drawn in Bryan v. Itasca County, the Court of Appeals drew a distinction between state "criminal/prohibitory" laws and state "civil/regulatory" laws: if the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory, and Pub.L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State's public policy. Inquiring into the nature of § 326.5, the Court of Appeals held that it was regulatory, rather than prohibitory. [Footnote 8] This was the analysis employed, with similar results,
by the Court of Appeals for the Fifth Circuit in Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (1981), cert. denied, 455 U.S. 1020 (1982), which the Ninth Circuit found persuasive. [Footnote 9]
We are persuaded that the prohibitory/regulatory distinction is consistent with Bryan's construction of Pub.L. 280. It is not a bright-line rule, however; and, as the Ninth Circuit itself observed, an argument of some weight may be made that the bingo statute is prohibitory, rather than regulatory. But in the present case, the court reexamined the state law and reaffirmed its holding in Barona, and we are reluctant to disagree with that court's view of the nature and intent of the state law at issue here.
There is surely a fair basis for its conclusion. California does not prohibit all forms of gambling. California itself operates a state lottery, Cal.Govt.Code Ann. § 8880 et seq. (West Supp.1987), and daily encourages its citizens to participate in this state-run gambling. California also permits parimutuel horse-race betting. Cal.Bus. & Prof.Code Ann. §§ 19400-19667 (West 1964 and Supp. 1987). Although certain enumerated gambling games are prohibited under Cal.Penal Code Ann. § 330 (West Supp.1987), games not enumerated, including the card games played in the Cabazon card club, are permissible. The Tribes assert that more than 400 card rooms similar to the Cabazon card club flourish in California, and the State does not dispute this fact. Brief for
Appellees 47-48. Also, as the Court of Appeals noted, bingo is legally sponsored by many different organizations, and is widely played in California. There is no effort to forbid the playing of bingo by any member of the public over the age of 18. Indeed, the permitted bingo games must be open to the general public. Nor is there any limit on the number of games which eligible organizations may operate, the receipts which they may obtain from the games, the number of games which a participant may play, or the amount of money which a participant may spend, either per game or in total. In light of the fact that California permits a substantial amount of gambling activity, including bingo, and actually promotes gambling through its state lottery, we must conclude that California regulates, rather than prohibits, gambling in general and bingo in particular. [Footnote 10]
California argues, however, that high-stakes, unregulated bingo, the conduct which attracts organized crime, is a misdemeanor in California, and may be prohibited on Indian reservations. But that an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of Pub.L. 280. Otherwise, the distinction between § 2 and § 4 of that law could easily be avoided, and total assimilation permitted.
This view, adopted here and by the Fifth Circuit in the Butterworth case, we find persuasive. Accordingly, we conclude that Pub.L. 280 does not authorize California to enforce Cal.Penal Code Ann. § 326.5 (West Supp. 1987) within the Cabazon and Morongo Reservations. [Footnote 11]
California and Riverside County also argue that the Organized Crime Control Act (OCCA) authorizes the application of their gambling laws to the tribal bingo enterprises. The OCCA makes certain violations of state and local gambling laws violations of federal law. [Footnote 12] The Court of Appeals rejected
appellants' argument, relying on its earlier decisions in United States v. Farris, 624 F.2d 890 (CA9 1980), cert. denied, 449 U.S. 1111 (1981), and Barona Group of Capitan Grande Band of Mission Indians, San Diego County, Cal. v. Duffy, 694 F.2d 1185 (1982). 783 F.2d at 903. The court explained that whether a tribal activity is "a violation of the law of a state" within the meaning of OCCA depends on whether it violates the "public policy" of the State, the same test for application of state law under Pub.L. 280, and similarly concluded that bingo is not contrary to the public policy of California. [Footnote 13]
The Court of Appeals for the Sixth Circuit has rejected this view. United States v. Dakota, 796 F.2d 186 (1986). [Footnote 14] Since the OCCA standard is simply whether the gambling business is being operated in "violation of the law of a State," there is no basis for the regulatory/prohibitory distinction that it agreed is suitable in construing and applying Pub.L. 280. 796 F.2d at 188. And because enforcement of OCCA is an exercise of federal, rather than state, authority, there is no danger of state encroachment on Indian tribal sovereignty. Ibid. This latter observation exposes the flaw in appellants' reliance on OCCA. That enactment is indeed a federal law that, among other things, defines certain federal crimes over which the district courts have exclusive jurisdiction. [Footnote 15] There is nothing in OCCA indicating that the States
are to have any part in enforcing federal criminal laws or are authorized to make arrests on Indian reservations that, in the absence of OCCA, they could not effect. We are not informed of any federal efforts to employ OCCA to prosecute the playing of bingo on Indian reservations, although there are more than 100 such enterprises currently in operation, many of which have been in existence for several years, for the most part with the encouragement of the Federal Government. [Footnote 16] Whether or not, then, the Sixth Circuit is right and the Ninth Circuit wrong about the coverage of OCCA, a matter that we do not decide, there is no warrant for California to make arrests on reservations, and thus, through OCCA, enforce its gambling laws against Indian tribes.
Because the state and county laws at issue here are imposed directly on the Tribes that operate the games, and are not expressly permitted by Congress, the Tribes argue that the judgment below should be affirmed without more. They rely on the statement in McClanahan v. Arizona State Tax Comm'n,411 U. S. 164, 411 U. S. 170-171 (1973), that
"'[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply'"
(quoting United States Dept. of the Interior, Federal Indian Law 845 (1958)). Our cases, however, have not established an inflexible per se rule precluding
state jurisdiction over tribes and tribal members in the absence of express congressional consent. [Footnote 17]
"[U]nder certain circumstances, a State may validly assert authority over the activities of nonmembers on a reservation, and . . . in exceptional circumstances, a State may assert jurisdiction over the on-reservation activities of tribal members."
New Mexico v. Mescalero Apache Tribe,462 U. S. 324, 462 U. S. 331-332 (1983) (footnotes omitted). Both Moe v. Confederated Salish and Kootenai Tribes,425 U. S. 463 (1976), and Washington v. Confederated Tribes of Colville Indian Reservation,447 U. S. 134 (1980), are illustrative. In those decisions, we held that, in the absence of express congressional permission, a State could require tribal smokeshops on Indian reservations to collect state sales tax from their non-Indian
customers. Both cases involved nonmembers entering and purchasing tobacco products on the reservations involved. The State's interest in assuring the collection of sales taxes from non-Indians enjoying the off-reservation services of the State was sufficient to warrant the minimal burden imposed on the tribal smokeshop operators. [Footnote 18]
This case also involves a state burden on tribal Indians in the context of their dealings with non-Indians, since the question is whether the State may prevent the Tribes from making available high stakes bingo games to non-Indians coming from outside the reservations. Decision in this case turns on whether state authority is preempted by the operation of federal law; and
"[s]tate jurisdiction is preempted . . . if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority."
Mescalero, 462 U.S. at 462 U. S. 333, 462 U. S. 334. The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its "overriding goal" of encouraging tribal self-sufficiency and economic development. Id. at 462 U. S. 334-335. [Footnote 19] See also
These are important federal interests. They were reaffirmed by the President's 1983 Statement on Indian Policy. [Footnote 20] More specifically, the Department of the Interior, which has the primary responsibility for carrying out the Federal Government's trust obligations to Indian tribes, has sought to implement these policies by promoting tribal bingo enterprises. [Footnote 21] Under the Indian Financing Act of 1974, 25
U.S.C. § 1451 et seq. (1982 ed. and Supp. III), the Secretary of the Interior has made grants and has guaranteed loans for the purpose of constructing bingo facilities. See S.Rep. No. 99-493, p. 5 (1986); Mashantucket Pequot Tribe v. McGuigan, 626 F.Supp. 245, 246 (Conn.1986). The Department of Housing and Urban Development and the Department of Health and Human Services have also provided financial assistance to develop tribal gaming enterprises. See S.Rep. No. 99-493, supra, at 5. Here, the Secretary of the Interior has approved tribal ordinances establishing and regulating the gaming activities involved. See H.R.Rep. No. 99-488, p. 10 (1986). The Secretary has also exercised his authority to review tribal bingo management contracts under 25 U.S.C. § 81, and has issued detailed guidelines governing that review. [Footnote 22] App. to Motion to Dismiss Appeal or Affirm Judgment 63a-70a.
These policies and actions, which demonstrate the Government's approval and active promotion of tribal bingo enterprises, are of particular relevance in this case. The Cabazon and Morongo Reservations contain no natural resources which can be exploited. The tribal games at present provide the sole source of revenues for the operation of the tribal governments
and the provision of tribal services. They are also the major sources of employment on the reservations. Self-determination and economic development are not within reach if the Tribes cannot raise revenues and provide employment for their members. The Tribes' interests obviously parallel the federal interests.
California seeks to diminish the weight of these seemingly important tribal interests by asserting that the Tribes are merely marketing an exemption from state gambling laws. In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. at 447 U. S. 155, we held that the State could tax cigarettes sold by tribal smokeshops to non-Indians, even though it would eliminate their competitive advantage and substantially reduce revenues used to provide tribal services, because the Tribes had no right "to market an exemption from state taxation to persons who would normally do their business elsewhere." We stated that
"[i]t is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest."
Ibid. Here, however, the Tribes are not merely importing a product onto the reservations for immediate resale to non-Indians. They have built modern facilities which provide recreational opportunities and ancillary services to their patrons, who do not simply drive onto the reservations, make purchases and depart, but spend extended periods of time there enJoying the services the Tribes provide. The Tribes have a strong incentive to provide comfortable, clean, and attractive facilities and well run games in order to increase attendance at the games. [Footnote 23] The tribal bingo enterprises are
similar to the resort complex, featuring hunting and fishing, that the Mescalero Apache Tribe operates on its reservation through the "concerted and sustained" management of reservation land and wildlife resources. New Mexico v. Mescalero Apache Tribe, 462 U.S. at 462 U. S. 341. The Mescalero project generates funds for essential tribal services and provides employment for tribal members. We there rejected the notion that the Tribe is merely marketing an exemption from state hunting and fishing regulations, and concluded that New Mexico could not regulate on-reservation fishing and hunting by non-Indians. Ibid. Similarly, the Cabazon and Morongo Bands are generating value on the reservations through activities in which they have a substantial interest.
The State also relies on Rice v. Rehner,463 U. S. 713 (1983), in which we held that California could require a tribal member and a federally licensed Indian trader operating a general store on a reservation to obtain a state license in order to sell liquor for off-premises consumption. But our decision there rested on the grounds that Congress had never recognized any sovereign tribal interest in regulating liquor traffic, and that Congress, historically, had plainly anticipated that the States would exercise concurrent authority to regulate the use and distribution of liquor on Indian reservations. There is no such traditional federal view governing the outcome of this case, since, as we have explained, the current federal policy is to promote precisely what California seeks to prevent.
The sole interest asserted by the State to justify the imposition of its bingo laws on the Tribes is in preventing the infiltration of the tribal games by organized crime. To the extent that the State seeks to prevent any and all bingo
games from being played on tribal lands while permitting regulated, off-reservation games, this asserted interest is irrelevant, and the state and county laws are preempted. Seen 3, supra. Even to the extent that the State and county seek to regulate short of prohibition, the laws are preempted. The State insists that the high stakes offered at tribal games are attractive to organized crime, whereas the controlled games authorized under California law are not. This is surely a legitimate concern, but we are unconvinced that it is sufficient to escape the preemptive force of federal and tribal interests apparent in this case. California does not allege any present criminal involvement in the Cabazon and Morongo enterprises, and the Ninth Circuit discerned none. 783 F.2d at 904. An official of the Department of Justice has expressed some concern about tribal bingo operations, [Footnote 24] but, far from any action being taken evidencing this concern -- and surely the Federal Government has the authority to forbid Indian gambling enterprises -- the prevailing federal policy continues to support these tribal enterprises, including those of the Tribes involved in this case. [Footnote 25]
We conclude that the State's interest in preventing the infiltration of the tribal bingo enterprises by organized crime does not justify state regulation of the tribal bingo enterprises
in light of the compelling federal and tribal interests supporting them. State regulation would impermissibly infringe on tribal government, and this conclusion applies equally to the county's attempted regulation of the Cabazon card club. We therefore affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
The Cabazon Reservation was originally set apart for the "permanent use and occupancy" of the Cabazon Indians by Executive Order of May 15, 1876. The Morongo Reservation also was first established by Executive Order. In 1891, in the Mission Indian Relief Act, 26 Stat. 712, Congress declared reservations "for the sole use and benefit" of the Cabazon and Morongo Bands. The United States holds the land in trust for the Tribes. The governing bodies of both Tribes have been recognized by the Secretary of the Interior. The Cabazon Band has 25 enrolled members and the Morongo Band has approximately 730 enrolled members.
The Cabazon ordinance authorizes the Band to sponsor bingo games within the reservation "[i]n order to promote economic development of the Cabazon Indian Reservation and to generate tribal revenues," and provides that net revenues from the games shall be kept in a separate fund to be used "for the purpose of promoting the health, education, welfare and wellbeing of the Cabazon Indian Reservation and for other tribal purposes." App. to Brief for Appellees 1b-3b. The ordinance further provides that no one other than the Band is authorized to sponsor a bingo game within the reservation, and that the games shall be open to the public, except that no one under 18 years old may play. The Morongo ordinance similarly authorizes the establishment of a tribal bingo enterprise and dedicates revenues to programs to promote the health, education, and general welfare of tribal members. Id. at 1a-6a. It additionally provides that the games may be conducted at any time, but must be conducted at least three days per week, that there shall be no prize limit for any single game or session, that no person under 18 years old shall be allowed to play, and that all employees shall wear identification.
The Tribes admit that their games violate the provision governing staffing and the provision setting a limit on jackpots. They dispute the State's assertion that they do not maintain separate funds for the bingo operations. At oral argument, counsel for the State asserted, contrary to the position taken in the merits brief and contrary to the stipulated facts in this case, App. 65,