The opinion of the court was delivered by: ZIMMERMAN
This case presents the difficult question of what remedy exists for an Indian tribe confronted with a state that the tribe believes is not honoring the tribe's rights under the Indian Gaming Regulatory Act, now that the Supreme Court has eliminated the remedy Congress provided. For the reasons explained below, I conclude that the remedy sought by the plaintiff Tribes - a judgment that the United States should sue the State of California on their behalf - is available.
In 1987, the United States Supreme Court held that a state was not authorized to impose its civil laws regulating gaming on Indian reservations within that state. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209, 94 L. Ed. 2d 244, 107 S. Ct. 1083 (1987). In the absence of clear federal regulation, Cabazon left Indian gaming largely unregulated.
In response, Congress enacted the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 et seq., in part to provide a uniform national standard governing the operation of gaming facilities on Indian lands. 25 U.S.C. § 2702(3). Its purpose in enacting IGRA, Congress found, was to advance "a principal goal of Federal Indian policy" by providing "a statutory basis 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. §§ 2701(4), 2702(1).
IGRA divides gaming into three categories. At issue here is class III gaming, a catch-all category that includes games such as baccarat, chemin de fer, blackjack, electronic facsimiles of any game of chance, and slot machines. 25 U.S.C. §§ 2703(7)(B)(i-iii), (8). An Indian tribe which complies with certain requirements not at issue here may conduct class III gaming in conformance with a compact it negotiates with the state within which its reservation is located. 25 U.S.C. § 2710(d)(1).
Each of the seven plaintiffs here is an Indian tribe which beneficially owns a reservation in California on which it seeks to conduct class III gaming. Each Tribe has requested California Governor Pete Wilson to enter into negotiations for a class III gaming compact pursuant to IGRA. Governor Wilson has refused to negotiate with any of the Tribes until he concludes negotiations for a compact with the Pala Band of Mission Indians and the plaintiffs cease all class III gaming presently conducted on their lands.
As enacted by Congress, IGRA authorized an Indian tribe to sue a state in federal court if the state refused a tribe's request to negotiate a compact in good faith. 25 U.S.C. § 2710(d)(7)(A)(i). The suit began a legal process that would produce a negotiated compact, a compact selected by a court-appointed mediator, or regulations permitting gaming promulgated by the Secretary of the Interior. 25 U.S.C. § 2710(d)(7)(B)(i-vii).
In 1996, this comprehensive regulatory scheme was fractured when the United States Supreme Court held that the Eleventh Amendment to the Constitution bars suit by an Indian tribe against a state which refuses to negotiate a Tribal-State Compact and does not consent to suit. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). Seminole Tribe left any tribe dissatisfied with the progress of compact negotiations with the state without a clear legal remedy.
See Alex Tallchief Skibine, Gaming on Indian Reservations: Defining the Trustee's Duty in the Wake of Seminole Tribe v. Florida, 29 Ariz. St. L.J. 121, 122, 149, 161 (1997).
Under these circumstances, plaintiffs concluded that while the Eleventh Amendment bars their federal suit against the State of California, it does not bar a suit brought by the United States against the State on their behalf. Arizona v. California, 460 U.S. 605, 614, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983); United States v. Mississippi, 380 U.S. 128, 140, 13 L. Ed. 2d 717, 85 S. Ct. 808 (1965); United States v. Minnesota, 270 U.S. 181, 194-95, 70 L. Ed. 539, 46 S. Ct. 298 (1926) (United States has the right to sue the State of Minnesota on behalf of the Chippewa Indian Tribe to protect land patents granted to the Tribe by treaty).
Accordingly, the plaintiffs requested both Michael Yamaguchi, the United States Attorney for the Northern District of California, and the Department of Justice, to represent them in a suit to compel the Governor of California to begin good faith negotiations with the Tribes. Mr. Yamaguchi declined to represent the Tribes; the Department of Justice did not respond. Plaintiffs then filed this suit for declaratory and injunctive relief against the United States, the Department of Justice, Janet Reno in her official capacity as Attorney General and Mr. Yamaguchi in his official capacity as United States Attorney for the Northern District of California.
Plaintiffs now move this Court for a summary judgment on their declaratory relief claim. They seek a judgment declaring that the United States has a mandatory duty to represent plaintiffs in their claim against the State. In opposition, the federal defendants move to dismiss the entire complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted. They assert this Court does not have jurisdiction to require the Attorney General or the United States Attorney to exercise their prosecutorial discretion.
Here, both prosecutors have thus far declined to exercise their discretion on plaintiffs' behalf. "An agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." Heckler v. Chaney, 470 U.S. 821, 831, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). The exercise of that discretion is judicially reviewable only under limited circumstances. Senate of California v. Mosbacher, 968 F.2d 974, 976 (9th Cir. 1992); Railway Labor Executives Ass'n v. Dole, 760 F.2d 1021, 1025 (9th Cir. 1985) (concurring and dissenting opinion); Shoshone-Bannock Tribes v. Reno, 312 U.S. App. D.C. 406, 56 F.3d 1476, 1480-1482 (D.C. Cir. 1995); Nader v. Saxbe, 162 U.S. App. D.C. 89, 497 F.2d 676, 679 (D.C. Cir. 1974); Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp. 649, 655-656 (D. Me.), aff'd, 528 F.2d 370 (1st Cir. 1975). Here, plaintiffs seek only declaratory relief, a form of review less coercive than an injunction or mandamus. Powell v. McCormack, 395 U.S. 486, 517-518, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969).