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Tulalip Tribes of Washington v. State of Washington

United States Court of Appeals, Ninth Circuit

April 17, 2015

TULALIP TRIBES OF WASHINGTON, Plaintiff-Appellant,
v.
STATE OF WASHINGTON; WASHINGTON STATE GAMBLING COMMISSION; DAVID TRUJILLO, Director of the Washington State Gambling Commission, in his official capacity; JAY INSLEE, Governor of the State of Washington, in his official capacity, Defendants-Appellees

Argued and Submitted, Seattle, Washington December 11, 2014

Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:12-cv-00688-RAJ. Richard A. Jones, District Judge, Presiding.

AFFIRMED.

SUMMARY [*]

Tribal-State Gaming Compacts

The panel affirmed the district court's judgment in an action seeking amendment of a tribal-state gaming compact to enable the Tulalip Tribes of Washington to acquire additional licenses to video player terminals for Class III gaming under the Indian Gaming Regulatory Act.

The panel held that the district court did not err in its consideration of the parties' simultaneous cross-motions for summary judgment.

Distinguishing Idaho v. Shoshone-Bannock Tribes, 465 F.3d 1095 (9th Cir. 2006), the panel held that a " most-favored tribe" clause in the compact did not require the State of Washington to adopt Tulalip's amendment, which did not mirror the restrictions set forth in another tribe's compact.

Lisa M. Koop (argued), Office of the Reservation Attorney, Tulalip Tribes of Washington, Wulalip, Washington; Phillip E. Katzen, Kanji & Katzen, PLLC, Seattle, Washington; Riyaz A. Kanji, David Giampetroni, and Philip H. Tinker, Kanji & Katzen, PLLC, Ann Arbor, Michigan, for Plaintiff-Appellant.

Robert W. Ferguson, Attorney General, and Callie M. Castillo (argued), Assistant Attorney General, Olympia, Washington, for Defendants-Appellees.

Craig J. Dorsay and Lea Ann Easton, Dorsay & Easton LLP, Portland, Oregon, for Amicus Curiae Samish Indian Nation.

Before: M. Margaret McKeown, Richard C. Tallman, and John B. Owens, Circuit Judges.

OPINION

Page 1152

McKEOWN, Circuit Judge:

This appeal requires us to interpret a tribal--state gaming compact between the Tulalip Tribes of Washington (" Tulalip" ) and the State of Washington. More specifically, at issue are electronic scratch ticket and online lottery games that use video player terminals. Tulalip asks us to force the State to amend the compact so that Tulalip can acquire additional licenses to these terminals. Citing the " most-favored tribe" clause in its compact, Tulalip argues that it is entitled to what it characterizes as the " more favorable terms" available to the Spokane Tribe through a mechanism known as the Inter-Tribal Fund. We disagree. We conclude that the terms of the compact do not require the State to adopt Tulalip's amendment.

Background

I. The Legal Framework of Tribal Gaming

This dispute occurs against the backdrop of many iterative changes to tribal--state gaming compacts, so we begin with the basics of tribal gaming. The Indian Gaming Regulatory Act (" IGRA" ), which was passed by Congress in 1988, provides a framework for " the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1). IGRA " provide[s] a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players." Id. § 2702(2).

Under IGRA, lawful gaming is divided into three classes, each of which is subject to different regulations. We have previously summarized the classes:

Class I gaming covers " social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies or

Page 1153

celebrations." 25 U.S.C. § 2703(6). Class II gaming includes bingo and card games that are explicitly authorized by a state or " not explicitly prohibited by the laws of the State and are [legally] played at any location in the State." Id. ยง 2703(7)(A)(ii). Class II gaming ...

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