Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, District Judge, Presiding Argued and Submitted August 7, 1997--Seattle, Washington
The opinion of the court was delivered by: Judge Kozinski
On application by the United States, the district court enjoined the Spokane Tribe of Indians from conducting lucrative gambling operations on its reservations. The preliminary injunction was issued under the authority of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. S 2701 et seq., which has since been declared partially unconstitutional. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). In this interlocutory appeal we confront the question whether portions of IGRA not struck down by Seminole Tribe support the injunction.
IGRA, as passed by Congress in 1988, sets up a complex procedure for states and Indian tribes to work out their differences concerning gambling on Indian reservations. The first step in that process is for tribes wishing to conduct commercial gaming to negotiate compacts with the states within whose borders their reservations are located. The Spokane Tribe of Indians was operating a bingo hall and some card games at the time IGRA was passed but wanted to expand its operations. So the Tribe began to negotiate a compact with the State of Washington.
Negotiations did not go well and broke down altogether after two years. As IGRA then allowed, the Tribe sued the State for failure to negotiate in good faith. Following the Supreme Court's decision in Seminole Tribe, the State invoked its newfound Eleventh Amendment immunity and brought the Tribe's suit to a sudden end.
While its suit against the State was pending, the Tribe had stepped up its casino operations and started offering a wider range of games. Without a compact in place, the gaming operations violated IGRA and the United States brought this action to put a stop to them. The district court granted a preliminary injunction prohibiting the Tribe from operating most types of games and the Tribe appeals.
The district court issued its injunction when IGRA was still wholly intact. Does the Supreme Court's decision in Seminole Tribe, striking down another section of the same statute, affect the district court's authority to enjoin Indian gaming thereunder? To answer this question we must first examine the history and structure of IGRA to determine the extent to which its parts are mutually dependent.
In 1987 the Supreme Court held that states were not authorized to regulate gambling in Indian country. See California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). States disliked Cabazon and so the following year Congress passed IGRA. The new law gave states considerable say over gambling in Indian country, but the Act was not an unmitigated defeat for tribes. Rather, the law closely balanced the interests of states and tribes. IGRA divided games into three classes, each regulated differently. Our concern is with class III gaming--the most lucrative kind--covering all but social gambling and games like bingo. See 25 U.S.C.S 2703(8). Under IGRA, class III activities must be authorized by a tribal ...