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February 24, 1992

JIM ROACHE, individually and as Sheriff of San Diego County; THE COUNTY OF SAN DIEGO; DAN PAPP, individually and as a Deputy Sheriff of the County of San Diego; and EDWIN L. MILLER, JR., individually and as District Attorney of San Diego County, Defendants.


The opinion of the court was delivered by: MARILYN L. HUFF




 This case arises out of the execution of search warrants, issued by a San Diego municipal court, on the Sycuan, Barona, and Viejas Indian Reservations. On October 30, 1991, San Diego County Sheriff's deputies searched the Sycuan, Barona, and Viejas gaming centers, located on the respective Reservations, and seized numerous gaming devices, cash, and records. The gaming devices seized included numerous Autotab Model 101 electronic pull-tab dispensers. The District Attorney's Office subsequently commenced criminal prosecutions against individuals involved in the gaming centers for possession of a slot machine, in violation of California Penal Code § 330.1. These individuals are James Trant, Emmett Munley, Helen Chase, and Anthony Pico.

 All three Bands are federally recognized Indian Tribes, with a governing body duly recognized by the Secretary of the Interior, and are located in San Diego County. Prior to the commencement of gaming operations on the Reservations, each Band was suffering severe economic depression. Specifically, the Bands faced high unemployment and were unable to provide basic governmental services to Tribal members and other Reservation residents. The revenue received from the gaming centers has been used to provide various governmental services and numerous other services, such as scholarships, nutritional programs, and housing rehabilitation.

 This court has issued a temporary restraining order and a preliminary injunction against the defendants. The preliminary injunction prohibits the defendants from arresting persons for alleged violations of state gaming laws on the Sycuan, Barona, or Viejas Reservations; searching for or seizing gaming-related property allegedly in violation of state gaming laws used in connection with the operation of the gaming centers, unless the warrant complies with Federal Rule of Criminal Procedure 41(a) or is pursuant to cross-designation; implementing or continuing with criminal prosecutions against persons associated with the gaming centers for alleged violations of state gaming laws; and destroying or removing any of the seized property without prior court approval. The defendants have appealed the issuance of the preliminary injunction.

 The plaintiffs now seek a partial summary judgment, including a permanent injunction and declaratory relief. Specifically, the plaintiffs seek a declaratory judgment that the defendants are without jurisdiction to enforce the state gaming laws on the Reservations, in the absence of a tribal-state compact, and seek a permanent injunction mirroring the preliminary injunction. The defendants raise several arguments in opposition to the plaintiffs' motion and contest the court's jurisdiction to adjudicate the merits of the action and to issue an injunction.



 To succeed on a motion for summary judgment, the movant must first demonstrate "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c). Material facts are those which "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2510 , 91 L. Ed. 2d 202 (1986). A genuine dispute will exist if the facts indicate "a reasonable jury could return a verdict for the nonmoving party." Id.

 Concerning this motion, the facts are not in dispute. The parties do not dispute the circumstances surrounding the execution of the warrants or the attempts to criminally prosecute the four individuals involved with the gaming centers. Accordingly, the court will proceed to a discussion of the applicable law.


 The plaintiffs first seek a declaratory judgment that the defendants are without authority to enforce state gaming laws on the Sycuan, Barona, or Viejas Indian Reservations. After thoroughly reviewing the case law, statutory language, principles of statutory construction, and the legislative history relevant to this case, this court concludes the plaintiffs are entitled to declaratory relief. The court notes, however, that its holding is limited to a conclusion that the defendants were without authority to execute the October 1991 warrants or to criminally prosecute James Trant, Helen Chase, Emmett Munley, and Anthony Pico. The court is not speculating as to future circumstances or as to whether the defendants would be without authority to enforce its gaming laws under any set of circumstances.

 In its opposition to summary judgment, the defendants contend they did have jurisdiction to undertake the challenged activities and raise many of the same arguments rejected by this court in the order granting preliminary injunctive relief. The defendants' arguments are discussed in turn.


 The defendants argue they had authority to execute the warrants at issue and to prosecute the four individuals pursuant to 18 U.S.C. § 1162. Under section 1162, Congress granted six states, including California, jurisdiction over offenses committed on Indian lands. Under this section, the state has jurisdiction over criminal/prohibitory laws, but does not have jurisdiction over civil/regulatory laws. California v. Cabazon Band of Mission Indians, 480 U.S. 202 , 94 L. Ed. 2d 244 , 107 S. Ct. 1083 (1987). The extent of the state's jurisdiction to enforce criminal/prohibitory laws is the same as that which it could exercise elsewhere in the state.

 A state law will be deemed "criminal/prohibitory" and, thus, enforceable by a state on Indian land, if the state has indicated that the conduct at issue is against the state's public policy. Id. at 209. That a particular law is enforceable through criminal means does not necessarily indicate that the law is criminal/prohibitory. Id. at 211. To characterize the law at issue, the court must examine the nature of the activity and the overall legal context governing the activity. See Confederated Tribes v. State of Washington, 938 F.2d 146 (9th Cir. 1990).

 The defendants argue the analysis required to make this determination should focus on the particular laws prohibiting slot machines and not on California's gambling laws as a whole. The defendants' contention is without merit. The Ninth Circuit has held that, in order to protect Indian sovereignty from state interference, a court should resolve any doubts concerning the characterization of a law in favor of the Indians. Confederated Tribes v. State of Washington, 938 F.2d 146, 149 (9th Cir. 1991). Thus, any doubts concerning the characterization of California's gambling laws in general or its laws relating to slot machines in particular should be resolved in favor of finding the laws to be civil/regulatory.

 A recent Ninth Circuit decision also employed a broader analysis and did not focus solely on the laws prohibiting a certain activity. Confederated Tribes v. State of Washington, 938 F.2d 146 (9th Cir. 1990). In Confederated, a tribal member was cited for speeding on the Indian reservation. The state argued it had jurisdiction to enforce its speeding laws on the reservation pursuant to section 1162. Specifically, the state argued its speeding laws were criminal/prohibitory because the state prohibits speeding in all circumstances and makes no exceptions to this prohibition. The Ninth Circuit concluded the state's analysis was erroneous. The appropriate inquiry is whether the "prohibited activity is a small subset of a larger permitted activity or whether all but a small subset of a basic activity is prohibited." Id. at 149. The court held the state's speeding laws were civil/regulatory because, while speeding is prohibited, driving is generally permitted within the state. Therefore, the speeding laws, a subset of the state's more general driving laws, were civil/regulatory and unenforceable under section 1162.

 Although California prohibits the operation of slot machines in most instances, California permits a great deal of other gaming within the state. California not only allows this activity, but actively encourages certain forms of gaming. For example, the state sponsors and promotes a state lottery. Because California permits a substantial amount of gaming and actively encourages and benefits from the gaming, this court concludes the slot machine prohibition is a civil/regulatory law.

 The defendants present several cases which they contend indicate that this court should adopt a narrower analysis. These cases are distinguishable. First, United States v. Marcyes, 557 F.2d 1361, 1362 (9th Cir. 1977), involved a state's complete prohibition of the possession of fireworks. The laws prohibiting fireworks were not a subset of a larger, permitted activity. The state did not permit some types of fireworks and absolutely prohibit others. Rather, the state completely prohibited the private possession of fireworks. Thus, consistent with the Court's broader analysis in Cabazon, the firework laws were held to be criminal/prohibitory. Second, in Pueblo of Santa Ana v. Hodel, 663 F. Supp. 1300 (D.D.C. 1987), the court characterized New Mexico's laws prohibiting greyhound racing as criminal/prohibitory. Contrary, however, to California's gambling laws, New Mexico prohibits almost all forms of gambling. Therefore, New Mexico's gambling laws in general may be classified as criminal/prohibitory. In sum, California's laws governing slot machines are characterized as civil/regulatory. Accordingly, the defendants lacked authority under section 1162 to enforce California's gaming laws on the Reservations by executing the October 1991 warrants and by criminally prosecuting the four individuals.


 Even if section 1162 granted the defendants jurisdiction to perform the challenged activities, the Indian Gaming Regulatory Act ("IGRA") preempted the defendants' jurisdiction under section 1162. The court further concludes the defendants did not have the authority to enforce its gaming laws in the present case under the IGRA because a tribal-state compact did not permit the defendants to enforce its slot machine laws on the Sycuan, Barona, and Viejas Reservations. Thus, the court does not rely solely on its interpretation of Cabazon to conclude the defendants lacked authority to execute the October 1991 warrants and to criminally prosecute the four individuals.

 As an initial matter, the defendants contend the more stringent standard of repeal by implication applies, rather than preemption. The court need not resolve this argument because, even under the more stringent standard, the court concludes the IGRA precludes the defendants from enforcing its gaming laws pursuant to section 1162. A federal statute will not repeal a prior federal statute unless no reasonable construction can give effect to both statutes. United States v. Jones, 607 F.2d 269, 272 (9th Cir. 1979). Section 1162 can be read as compatible with the IGRA. Under section 1162, California retains the ability to enforce its criminal/prohibitory laws. The IGRA simply governs the enforcement of state gaming laws and prohibits the enforcement of these laws in the absence of a tribal-state compact.

 In determining whether the IGRA preempts state authority under section 1162, the court does not employ the typical preemption analysis. Because of the "firm federal policy of promoting tribal self-sufficiency and economic development," a finding of preemption does not require an express statement of congressional intent to preempt. Crow Tribe of Indians v. State of Montana, 819 F.2d 895, 898 (9th Cir. 1987). A federal statute will be preemptive if the "state law conflicts with the purpose or operation of a federal statute." Id. As discussed below, the IGRA creates a comprehensive jurisdictional framework for the regulation of gaming activities on Indian lands. The regulation of gaming by states outside the framework of the IGRA would frustrate this framework and Congress's careful balancing of the competing interests involved in Indian gaming.


 In the IGRA, Congress addressed the state's authority to criminally prosecute individuals for alleged violations of its gaming laws made applicable to Indian lands under the IGRA. Section 1166(d) provides:

 The United States shall have exclusive jurisdiction over criminal prosecutions of violations of state gambling laws that are made applicable under this section to Indian country, unless an Indian tribe pursuant to a Tribal-State compact . . . has consented to the transfer to the state of ...

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