California v. Cabazon Band of Mission Indians – Oral Argument – December 09, 1986

Media for California v. Cabazon Band of Mission Indians

Audio Transcription for Opinion Announcement – February 25, 1987 in California v. Cabazon Band of Mission Indians

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William H. Rehnquist:

We will hear argument next in No. 85-1708, California versus Cabazon Band of Mission Indians.

Mr. Walston, you may proceed whenever you are ready.

Roderick Eugene Walston:

Mr. Chief Justice, and may it please the Court, the question presented in this case is whether state laws prohibiting high stakes gambling are applicable to tribal gambling operations, most of which feature bingo.

The question as we see it breaks down into two major questions: first, whether state gambling laws are applicable under the balancing test that this Court has established in past Indian law cases, which has often been referred to as a form of federal common law.

The second question is whether state gambling laws are applicable here under Public Law 280, which of course is a federal statute.

Before beginning my argument I would like to briefly summarize our main argument before the Court.

Our view is that four major factors support state jurisdiction here as those factors are relevant under the balancing test, and I would like to briefly mention them.

First, in our view the tribal games here are successful primarily because they are illegal under California law in that they allow non-Indians to play high stakes bingo in circumvention of state law, and therefore the value of the games essentially derives from restrictions that the state places against its own non-Indian citizens.

Second, the states, not Indian tribes, have traditionally regulated gambling.

Therefore the activity in this case falls within the traditional province of states, not Indian tribes, and therefore as we view it the principal of tribal sovereignty is not implicated in this case.

Third, the federal government does not in any way regulate or supervise these games.

They are wholly unregulated.

Fourth, because of the high stakes and lack of regulation the tribal games create in our view a serious risk of infiltration by organized criminal elements.

Harry A. Blackmun:

What do you mean by high stakes?

Roderick Eugene Walston:

High stakes is, under California law is anything that exceeds $250.

Under California law charitable bingo operations can be conducted on a low stakes basis, and low stakes are defined as anything not exceeding $250.

Harry A. Blackmun:

That might be pretty high for you or me.

Roderick Eugene Walston:

Pardon me?

Harry A. Blackmun:

That might be high for you or me.

Roderick Eugene Walston:

I think that… I would imagine that that is still fairly low stakes, certainly considering the type of tribal stakes that are involved here.

For example, one of the tribes has maximum stakes of $15,000.

Another tribe in California has a maximum stake–

William J. Brennan, Jr.:

Maximum what?

Roderick Eugene Walston:

–Pardon me?

William J. Brennan, Jr.:

Per card?

Roderick Eugene Walston:

Per game.

William J. Brennan, Jr.:

Per game?

Roderick Eugene Walston:

Yes.

William J. Brennan, Jr.:

Well, that involves only one card, doesn’t it?

No?

Roderick Eugene Walston:

That is one tribal bingo game featuring one card, and the prizes, of course, vary from reservation to reservation, but some tribes… in this case–

William J. Brennan, Jr.:

But are you telling us you can win $15,000 in one game?

Roderick Eugene Walston:

–Yes, that is correct.

There is a $15,000 maximum prize under the Marango games.

Another tribe in California, and this is in the record, has a maximum stake of $100,000.

So the prizes here are very high, and yet when you compare that with the $250 limit of charitable bingo that is authorized under state law you see the disparity between the games that are authorized and the games that are not.

William H. Rehnquist:

Does the record show how many participants there are in a game where there’s a $100,000 prize?

Roderick Eugene Walston:

It doesn’t show that with respect to the $100,000, but we do know that the bingo parlor conducted by the Cabazon band has a seating capacity of 500 people.

A state investigator visiting the bingo parlor on one occasion in 1984 observed approximately 300 people.

William J. Brennan, Jr.:

How much does each player have to invest in the $15,000 game?

Roderick Eugene Walston:

We don’t have that information but I do think the record shows that the average player in one of the bingo games in Southern California spends on the average $84 per person.

That is in the record.

William J. Brennan, Jr.:

For the whole evening, you mean?

Roderick Eugene Walston:

Yes.

That is the average amount of outlay per player for one night at that particular operation.

Our conclusion from the four factors that if these games are legalized they should be regulated and therefore the conclusion as we view it is that if there is to be bingo by the Indian tribes here the authorization must come from Congress.

Congress has the power to impose regulations upon these games.

Until Congress does that we think it is impermissible for this Court to uphold the games in their present form.

William H. Rehnquist:

Don’t the tribes claim that they regulate the games?

Roderick Eugene Walston:

The tribes claim that but in actuality we feel that there is no regulation at all.

Each tribe makes its own decision in terms of how the games are operated.

There is no uniform federal standard that applies.

The Secretary of Interior does not regulate the games.

There is no uniform intertribal standard that applies.

William H. Rehnquist:

But that is true… if you think of tribal sovereignty as compared to state sovereignty, California wouldn’t regulate the same way that Arizona does.

Roderick Eugene Walston:

That’s true.

We don’t view Indian tribes as having the same relation to the state as other states do.

Certainly the sovereignty of the states is spelled out in the Tenth Amendment of the United States Constitution.

This Court, on the other hand, has held that tribal sovereignty depends upon a balance of competing interests, the balance of competing tribal, federal, and state interests.

Therefore we don’t view the situations as analogous.

Roderick Eugene Walston:

One of the tribes in this case, for example, has only 25 members, and it is difficult for us to imagine that an Indian tribe with 25 members can be equated with, say, the sovereign state of California or, for that matter, any other sovereign state.

They just don’t have the ingredients of law enforcement techniques that the states have in trying to prevent the intrusion of organized crime.

Sandra Day O’Connor:

Mr. Walston–

Roderick Eugene Walston:

Yes.

Sandra Day O’Connor:

–the Interior Department does have certain guidelines for these bingo games, doesn’t it?

It requires FBI checks and periodic audits and what have you?

Roderick Eugene Walston:

I don’t believe that is correct, Your Honor.

Our understanding is that the Secretary of the Interior has guidelines for the approval of management contracts.

In other words, if an Indian tribe signs a contract with a non-Indian operator, and if the tribe voluntarily submits the contract to the Secretary for his approval, then under those circumstances the Secretary does apply the guidelines, but of course–

Sandra Day O’Connor:

Well, I suppose there is certainly no question but that the federal government has supported and encouraged the tribes to engage in these bingo operations.

Roderick Eugene Walston:

–I am not entirely sure that that is true, Your Honor.

I think that there is a pronounced–

Sandra Day O’Connor:

You don’t concede that?

Roderick Eugene Walston:

–Pardon me?

Sandra Day O’Connor:

You don’t concede that?

Roderick Eugene Walston:

No, we don’t.

I think there is a pronounced ambivalence in the federal attitude with respect to the tribal games here.

Certainly there are elements in the federal government that basically support the tribal games but they don’t regulate the games.

They provide support in the sense that they will approve tribal ordinances that are submitted to them for approval but otherwise there is no regulation, and other agencies of the federal government I understand are much less sympathetic to the type of tribal activity here.

William J. Brennan, Jr.:

Isn’t there legislation pending in the Congress now that would… federal legislation that would authorize these games and regulate them, too?

Roderick Eugene Walston:

Well, there was an Indian bingo bill or an Indian gambling bill that passed the House and then passed a Senate Select Committee, but it was not approved on the floor of the House and as far as we understand–

William J. Brennan, Jr.:

That’s because it was the end of the session, wasn’t it?

Roderick Eugene Walston:

–Well, yes, but there was more to it than that.

I understand that there was strong opposition on the floor of the Senate to the bill and also–

William J. Brennan, Jr.:

Would that bill have authorized the tribes to conduct these games?

Roderick Eugene Walston:

–Yes, it would have.

William J. Brennan, Jr.:

And also have regulated how they conduct?

Roderick Eugene Walston:

Yes, it would have provided both for authorization and for regulation.

In fact, I should add, Your Honor, that the Department of Justice commented on the bill and stated that the bill did not go far enough n establishing regulatory safeguards.

In fact, it called the bill an anti-law enforcement device that failed to adequately protect against the intrusion of organized crime on Indian reservations.

Roderick Eugene Walston:

So, it appears, as I say, that there is an ambivalence–

William H. Rehnquist:

Has the government filed a brief on this case?

Roderick Eugene Walston:

–No, the federal government has not, and I think that the failure of the federal government to file a brief in this case speaks volumes concerning the ambivalence of the federal position in this case.

William J. Brennan, Jr.:

Well, did the federal government support this bill in the Congress, the pending one?

Roderick Eugene Walston:

Did… I am sorry.

William J. Brennan, Jr.:

Did the Interior or any other agency of the federal government support the bill?

Roderick Eugene Walston:

Well, I understand that the Interior Department supported the bill.

The Justice Department opposed it, and the views of the President, I understand, were closer to those of the Justice Department than Interior, but the important thing is that the bill, regardless of what form it came out of Congress in, would have provided for the kind of regulation and control that is not present with respect to the tribal games here, and that is the key points.

Our view all along has been that there is an argument to be made for tribal bingo, but the games should not be legalized unless they are adequately regulated, and we don’t have the adequate regulatory controls at this time.

Therefore, for that reason–

Lewis F. Powell, Jr.:

May I ask a question–

Roderick Eugene Walston:

–Pardon?

Lewis F. Powell, Jr.:

–Mr. Walston?

I understood you to say that you didn’t think the Department of Interior supported the Indians’ position, but–

Roderick Eugene Walston:

No, I think I said the opposite.

Lewis F. Powell, Jr.:

–how do you read the affidavit by Mr. Krenzke, Page 219 of the joint appendix?

This gentleman says he is the Director of Indian Services, Bureau of Indian Affairs, Department of the Interior.

You have seen the affidavit, of course.

Roderick Eugene Walston:

Yes, I am familiar with the affidavit.

Lewis F. Powell, Jr.:

You think that does not represent the view of the Department of the Interior?

Roderick Eugene Walston:

No, I… perhaps Your honor misunderstood me or perhaps I misspoke, but I thought what I said was that Interior basically supported the Indian gambling bill and supported the tribal activities here but the Justice Department apparently as far as we know feels differently, so the ambivalence in the federal position is between Interior and Justice.

That was the point I meant to make.

Justice Blackmun?

William J. Brennan, Jr.:

Isn’t it true that the tribes rely on the proceeds from these games, indeed rather heavily, for support and–

Roderick Eugene Walston:

Yes, that’s… I think that is a fair statement.

I think that it is fair to say that the tribal games here do indeed provide for large revenues for a number of tribal programs, and we certainly concede that.

There are some responses to that.

First, the tribes have an interest only in the revenue, but they don’t have an interest in the activity involved here.

They don’t have an interest, a sovereign tribal interest in the subject of high stakes gambling.

High stakes gambling has never played a part of Indian historical development.

Roderick Eugene Walston:

It is not indigenous to tribal culture or custom.

It is not a traditional Indian practice.

William H. Rehnquist:

–The Ninth Circuit, perhaps not on the most strong evidence in the world, said that there had been a tradition of Indian gambling for a long time, didn’t they, in their opinion?

Roderick Eugene Walston:

No, the Ninth Circuit didn’t say that, Mr. Chief Justice.

I think that the Ninth Circuit said that the tribes had a sovereign interest in raising revenue and that that was a traditional government function, and that therefore the tribes as we… as I understand it the tribes should therefore be allowed to raise revenue by any type of activity at all, and therein lies the difference, one of the major differences between the Ninth Circuit and us.

Our view is that although the tribes do indeed have an economic interest it is crucial that this Court focus upon the activity that provides that revenue, for this Court has always looked to the activity of Indian tribes, not their revenue raising interest, in determining whether the principle of tribal sovereignty applies.

And indeed the Court did this very recently in the case of Rice versus Rehner.

Yes?

Lewis F. Powell, Jr.:

May I just ask this question?

You mentioned and your brief also mentions organized crime and the danger of infiltration.

Is there any evidence that organized crime has infiltrated the bingo operations of the tribes that are before us?

Any evidence in this record?

Roderick Eugene Walston:

Not in the record.

To fully answer your question, Justice Powell, I would have to go outside the record, and I am reluctant to do that.

Lewis F. Powell, Jr.:

Maybe I had better withdraw the question then, but you argue in your brief that that is a concern of the state of California.

Roderick Eugene Walston:

Yes.

The possibility that the bingo operations may be taken over by organized crime is a very serious concern to the state of California.

We did, by the way, concede below that we do not allege… “we do not allege” the existence of organized crime in this cases.

We have never conceded that organized crime may or may not be involved in this case.

But our view is that California law is intended to prevent organized criminal infiltration before it takes place rather than simply eradicate a criminal operation after it has actually occurred.

Thurgood Marshall:

How long has this bingo been doing on?

Roderick Eugene Walston:

Since 1983, March, 1983.

Essentially most of the tribal bingo operations that are proliferating nationally have taken place as a result of a 1982 decision by the Fifth Circuit in the Seminole Tribes case.

So the phenomenon before this Court is a fairly recent one, but going back to the organized crime question, the President’s Commission on Organized Crime recently noted that gambling, second only to drugs, is a major source of income for organized crime.

The National Gambling Review Commission, which was established by Congress to study the links between gambling and organized crime concluded that high stakes bingo does indeed attract organized crime because of the large amounts of cash that are involved.

And that Commission, a Congressionally established Commission, recommended that the only effective way to prevent organized criminal infiltration with respect to bingo games is for the states to provide for adequate regulation and control of the games.

The California Attorney General Task Force issued a report in 1971 in the same vein, and the Attorney General Task Force noted the experience of New York.

New York in the late 1950s legalized bingo.

The games were quickly taken over by organized criminal elements and New York was able to regain control only by establishing and enforcing stringent limitations.

Therefore our view is that state regulation of gambling is the main bulwark against organized criminal infiltration, but under the view being asserted by the tribes today that bulwark is not present with respect to the tribal games here.

Sandra Day O’Connor:

Well, I suppose nothing would prevent the Department of Interior from adopting some kind of further regulation.

Roderick Eugene Walston:

That is true, Justice O’Connor.

If Interior adopted regulations presumably the regulations would be effective in resolving or at least reducing the organized crime problem, and to the extent that the regulations would have that effect, than many of the concerns that I have expressed today would be mitigated.

To date Congress has not acted.

Congress has not acted.

The Secretary of the Interior has not acted.

William J. Brennan, Jr.:

Has California [inaudible]?

Roderick Eugene Walston:

Has California?

William J. Brennan, Jr.:

Asked Interior to do something about it?

Roderick Eugene Walston:

California has indeed recommended passage of on of the Indian gambling bills subject to stringent regulations, and I should add that California did not recommend adoption of the bill that passed the House and that passed the Senate Select Committee because California felt, as does the Department of Justice, that that bill does not go far enough to prevent organized criminal infiltration.

California instead recommended a bill which had been propounded by the administration that went much further in that direction.

John Paul Stevens:

Mr. Walston, is the prevention of organized crime infiltration the only state interest in controlling gambling?

Roderick Eugene Walston:

No, the other interest, Justice Stevens, is that the success of the tribal games, as I mentioned at the outset, depends upon their illegality under California law, and that they allow non-Indians to play bingo, high stakes bingo in violation of state law.

And thus the very raison d’etre of the games is to attract non-Indians to come on the reservations to play the games, in circumvention of state law, and thus in our view the games themselves have no truly intrinsic value.

Rather, their value derives from restrictions that the state places against its own non-Indian citizens.

The state, as it were, has created the market that the tribes are trying to exploit, and the tribes are taking commercial advantage of California law by marketing to non-Indians the very high stakes gambling that California law prohibits.

John Paul Stevens:

I understand that, but do you allege there is any other state interest in placing limits on the games as you have no more than $250 in a bingo game and a lot of other things that are illegal gambling?

Is there any state interest in those laws that is implicated other than trying to prevent organized crime from coming into the state?

Roderick Eugene Walston:

No, that is the major interest that California has in placing limits on charitable bingo.

John Paul Stevens:

Just to keep organized crime out?

Roderick Eugene Walston:

Yes, our view is that if the low stakes limits were eliminated and if charitable organizations were allowed to hire outside operators rather than conduct the games themselves, then under those circumstances organized crime may well take control of charitable bingo operations in California, but as I said, the stakes are kept low and under California law–

John Paul Stevens:

Do you think historically that has been the only basis for state prohibition or regulation of gambling, is to keep organized crime out of the business?

Roderick Eugene Walston:

–Well, I suppose–

John Paul Stevens:

It has been a long time that gambling was considered contrary to public policy.

Roderick Eugene Walston:

–I suppose there is another element–

John Paul Stevens:

You just happened to think of that?

Roderick Eugene Walston:

–and I suspect that what you are leading to is the possibility that the state may have some moral objections to unregulated gambling.

William J. Brennan, Jr.:

Protecting its citizens against their appetites, isn’t it?

Roderick Eugene Walston:

Pardon me?

William J. Brennan, Jr.:

Protecting its citizens against their appetites.

Roderick Eugene Walston:

Yes, that is true.

I think the entire question here is–

Antonin Scalia:

But California allows other sorts of gambling, doesn’t it?

Roderick Eugene Walston:

–Yes.

Antonin Scalia:

Such as what?

Roderick Eugene Walston:

California allows a state lottery.

It allows in addition… and also, of course, low stakes bingo, and then finally horseracing, horseracing betting.

Antonin Scalia:

And horseracing?

Roderick Eugene Walston:

Right, so I do not… in response to Justice Stevens’ question, I am not–

Antonin Scalia:

It is sort of hard to get moral when you hit bingo.

0 [Generallaughter.]

Roderick Eugene Walston:

–I have deliberately not tried to advance a moral argument before this Court.

I think that perhaps in its inception the states did indeed regulate gambling for primarily moral reasons, and that is probably the way that state regulation of gambling arose, but with the recent adoption of the state lottery and other types of state-authorized gambling activities, I think that the state’s moral objections to gambling have diminished.

I suppose that they are there.

I suppose that many people in California support California’s anti-gambling laws primarily on moral grounds, but as I say, that is not the argument that we address before this Court today.

Byron R. White:

Doesn’t Colorado or California’s efforts here go beyond protecting or preventing the Indians from offering this service or marketing this gambling to non-Indians?

You want them to quit entirely?

Roderick Eugene Walston:

I don’t quite understand your question.

Byron R. White:

What does California want to do to these bingo games?

They want to stop them unless they are what?

Roderick Eugene Walston:

Unless they are compliant with California law.

Byron R. White:

Well, suppose the Indians said, all we want to do is have a bingo game for Indians.

Roderick Eugene Walston:

Oh, for Indians.

Okay.

I think that–

Byron R. White:

I thought you were still insisting that you had the right to regulate them.

Roderick Eugene Walston:

–I think that the factors, the elements, and the dynamics of the case would be vastly different if Indians were playing bingo on the reservation with other Indians.

One of the strong factors that supports state jurisdiction here is the fact that the games are intended to attract non-Indians to come on the reservation to play the games.

where Indians engage in a purely internal activity on the reservation I think a stronger argument can be made by the tribes that they have a sovereign right to engage in that kind of activity.

I notice in the Rice case–

Antonin Scalia:

Even though that might attract criminal elements just as well.

If you have enough Indians on the reservation you can have a pretty big bingo game, and organized crime might be attracted to it.

Roderick Eugene Walston:

–That is true, but still the balance of interest we think might indeed support that kind of tribal operation.

Byron R. White:

California law on its face would prevent that.

Roderick Eugene Walston:

Well, that’s true.

California law, the situation before the Court is not one where Indians are playing bingo amongst themselves.

As a matter of fact, one of the tribes here has only 25 members, and I think perhaps only nine adult members.

And therefore it is hard to imagine–

Byron R. White:

So your argument is, well, really, this is just Indians dealing with a non-Indian situation, and if you can keep them from selling cigarettes to non-Indians you ought to be able to keep the non-Indians out of their bingo game.

Roderick Eugene Walston:

–I think that is essentially much of our argument.

Byron R. White:

What else is it?

Roderick Eugene Walston:

Well, the fact that the Court did hold in Coleville that Indian tribes do not have a vested right to sell-products to non-Indians.

I think that is a very important factor in this case.

I think that the element there was that the tribes were engaged in activity with non-Indians, not simply engaged in activity on the reservation involving only themselves.

William H. Rehnquist:

Well, one reason the state approves and regulates horseracing is that it gets a lot of revenue.

Now, is that true of its regulation of bingo, too?

Does it get any revenue from bingo games that are conducted in compliance with its laws?

Roderick Eugene Walston:

No, California gets money from the state lottery and the state horseracing act, but it does not get money from charitable bingo.

The money from charitable bingo, of course, goes just for charitable purposes.

I should add that part of the moneys from the state lottery do indeed innure to the benefit of Indians themselves.

To date the state lottery has generated about $850 million for education of California school children, and given the percentage of Indian enrollment in the public schools in California about $6.5 million of state lottery funds heretofore have been expended just for the education of Indian children.

So the Indian children themselves receive the benefits of California’s state lottery, and it is therefore difficult for us to understand the tribal argument that somehow the existence of the state lottery militates against the state position here.

Another major factor in this case, we think, is the existence of the Organized Crime Control Act.

This is an act that was passed by Congress in 1970, and it prohibits gambling operations in violation of both state and local law.

On its face the act might make California gambling laws directly applicable on Indian reservations.

But whether or not that is so, our view is that the Organized Crime Control Act at least expresses a federal policy, a federal policy that supports the state position here.

It expresses a federal policy we think in favor of state regulation of gambling and against unregulated gambling, and therefore as we view it federal policy in this case is high congruent with the purposes of California law, and also, as I mentioned earlier, the states, not Indian tribes, have traditionally regulated gambling.

Gambling has not been traditionally regulated by the federal government.

A fortiori, it has not been traditionally regulated by Indian tribes.

It is a traditional function of the states that, as Justice Stevens pointed out, goes back some time in history.

Roderick Eugene Walston:

It is very analogous to the type of liquor regulation that was involved in the Rice case, where the Court held that Indian tribes have not traditionally engaged in the regulation of liquor sales.

I think I would like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

Thank you, Mr. Walston.

We will hear now from you, Mr. Feldman.

Glenn M. Feldman:

Mr. Chief Justice, and may it please the Court, I think we have seen a bit of equivocation on the part of the state here this afternoon.

Let there be no mistake that what the state is asking for here is full jurisdiction over these tribal activities to shut them down and put them out of business.

That is what this case has been about since Day One.

So we are not here talking about some minimal amount of intrusion on a tribal activity.

The state is asking–

John Paul Stevens:

Well, Mr. Feldman, is that fair… if you just put a $250 limit on the game they wouldn’t want to shut you down, would they?

Glenn M. Feldman:

–No, that is not correct, Your Honor.

Under California law a great number of organizations can sponsor charitable bingo, but Indian tribes are not among those groups, so under California law Indian tribes are not able to sponsor even charitable bingo in California.

John Paul Stevens:

Who are allowed?

Who are those who are allowed?

Glenn M. Feldman:

It is defined in terms of the state tax code if you are subject or not subject to certain aspects of California state taxes, but specific ones, and they detail the organizations.

It is Little Leagues, mobile home parks, non-profit cemetery associations.

John Paul Stevens:

I see.

That is sort of hypothetical anyway, because I don’t imagine the tribes would want games unless they could attract non-Indians onto the reservation, would they?

Glenn M. Feldman:

Well, the other point that is important here is this.

The question is, well, could they or should they restrict the games to tribal members.

A crucial fact in this case is that under California law the law… California’s bingo law affirmatively requires that the bingo games must be open to the general public, and the games cannot be restricted solely to members of the authorized organization.

William H. Rehnquist:

Well, in the case of the tribe with only nine adult members I suppose the tribe also has an interest in opening it to the general public.

Glenn M. Feldman:

Certainly the tribal interest is congruent with the state interest here, but my point is that if the tribes were to limit their games only to tribal members, regardless of how large or how small, they would be in violation of California state law.

Sandra Day O’Connor:

Mr. Feldman, I guess the most obvious concern about your position in the case is the concern we would have that the tribes are marketing an exemption from state law and the analogy to the cigarette tax situation as in Coleville.

Glenn M. Feldman:

Well, Your Honor, we think the situation here is considerably different than that presented in Coleville.

I would note at the outset that in the cigarette tax case that the incidence of the tax at issue there was on non-Indians.

In this case the incidence of the state’s jurisdictional scheme is directly on the tribes themselves.

So the question of whether the state has jurisdiction to regulate these activities is a considerably different one.

There it was the non-Indians who were being regulated.

Here the incidence of California’s regulatory scheme is solely on the operators.

Glenn M. Feldman:

Non-Indians who come onto the reservation to play the games are violating no state law.

They are evading no state obligation by doing so, so California’s interests are simply not implicated.

In the Coleville case the cigarette purchasers were evading a legal obligation to pay Washington state sales… cigarette taxes.

Here there is no similar situation.

In this case, as a further distinction, in that case the Court said that what the Indians were marketing, what the tribes were marketing there, the sellers, was really an exemption from state tax laws.

And they said there was no value, no tribally generated value that was being presented or being provided.

Sandra Day O’Connor:

Do you think the tribes could open casino gambling on the reservation?

Glenn M. Feldman:

The answer to that is clearly no.

Under 11… under 15 USC Section 1175 the use or possession of certain mechanical gambling devices is a federal offense.

That relates primarily to slot machines, roulette wheels, wheels, of fortune.

So in no instance could those activities take place on an Indian reservation.

They would be immediately in violation of federal law.

In addition–

Byron R. White:

Well, doesn’t that law say unless the state permits it?

Glenn M. Feldman:

–There may be… there might be–

Byron R. White:

Well, how else would there be gambling in any state with these devices?

Glenn M. Feldman:

–This applies only on Indian reservations, on federal reservations.

Section 1175 is a prohibition against mechanical gambling devices on federal reservations, which includes Indian reservations.

There is a specific federal law that deals with that.

Byron R. White:

All right.

Glenn M. Feldman:

Getting back to the question of marketing an exemption, the key element there, I think, was that the tribes were not providing what was called value generated on the reservation.

Here the situation is quite different.

There you had people coming onto the reservation, buying cigarettes which had been imported from elsewhere, and then taking the cigarettes off and evading the state, the obligation to pay state taxes.

What the tribes are offering here are recreational services, plain and simple.

Byron R. White:

Could I ask you, does this tribe… is this tribe required to submit any of its ordinances or laws, tribal laws to the secretary?

Glenn M. Feldman:

Neither the Cabazon or Marango bands are required to.

In this instance they both have submitted their bingo ordinances and those ordinances have been approved by the secretary.

Byron R. White:

And they were approved pursuant to an authority the Secretary has, expressly has?

Glenn M. Feldman:

Yes.

In addition, in the case of the Marango band, they have a management agreement, and that management agreement has been submitted to the Secretary, again has gone through the entire review process, background, FBI checks, and that agreement has been–

John Paul Stevens:

Mr. Feldman, with reference to recreational services on the reservation, what if the services were the opportunity to consume drugs on the reservation?

Glenn M. Feldman:

–Well, our position is really pretty straightforward, that if the activity is prohibited by the state, then under Public Law 280 that prohibition applies equally on the reservation.

John Paul Stevens:

Isn’t the activity of bingo at more than 250 jackpots prohibited by the state?

Glenn M. Feldman:

No, the question is what activity is involved, and in this case bingo is permitted but regulated under California law.

That was the–

William H. Rehnquist:

You can really get into some hairsplitting about, you know, whether something is prohibited or whether it is regulated.

Witness some of Justice Holmes’ comments in The Common Law.

Glenn M. Feldman:

–I cannot deny that the test Isn’t going to result in absolute clarity in every instance, but the test that has been developed and been applied by every federal court that has considered… every lower federal court that has considered this question has allowed them… first of all, it is consistent with this Court’s holding in Bryan.

In Bryan, this Court… Bryan versus Itasca County, this Court unanimously held that states had no civil regulatory jurisdiction over tribal government.

John Paul Stevens:

Did it hold that?

Mr. Feldman, supposing a state authorized prostitution subject to certain regulation.

If they regulated it, then it would be… you could have it on an Indian reservation unregulated under your argument.

Glenn M. Feldman:

There may be a federal law that would cover that.

I don’t know.

Certainly federal prohibitions would apply on reservations.

John Paul Stevens:

No, but I am just assuming the only… that there is a state regulation of the activity, not a total prohibition, as I presume there is in Nevada, that in that state the Indian tribes could operate unregulated under your theory.

Glenn M. Feldman:

If the state permits local option on prostitution, then yes, our view is that a tribal government is equivalent to a city or state or county government.

John Paul Stevens:

No, I didn’t say local option.

I said they permit it throughout the state but they regulate it.

They have certain health regulations and one thing and another.

But you would say on the tribe it could go forward unregulated.

Glenn M. Feldman:

It could go forward subject to federal and tribal regulation.

John Paul Stevens:

By analogy to the bingo… yes.

Glenn M. Feldman:

I think there has got to be an element of common sense provided here.

Indian tribes are under the direct control and supervision of the Secretary of the Interior, and the Secretary is not going to allow outrageous activities on the reservation.

John Paul Stevens:

Well, let me ask you this then.

Supposing we had a change of administration.

You got a different Secretary of Interior who thought gambling was morally wrong and prohibited it.

Would you no longer have a claim?

Glenn M. Feldman:

Would we no longer nave what?

Glenn M. Feldman:

I am sorry.

John Paul Stevens:

Would you no longer be able to operate if the Secretary of Interior had a different view about the propriety of gambling?

Glenn M. Feldman:

Not necessarily.

I think that the Secretary’s view here and the support of the federal government is an important aspect of this case.

It is not determinative necessarily.

It provides the federal gloss here, if you will.

Sandra Day O’Connor:

Well, but what if we in applying the balancing test thought that that was the factor that tipped the scale, and then if, as Justice Stevens suggests, a new Secretary of the Interior had a different view, the situation would change.

Glenn M. Feldman:

Well, administrations do change, and federal policies towards Indians change.

Today the policy is in favor of tribal self-government and economic development.

That has not always been the case.

Byron R. White:

Was your management contract required to be presented to the Secretary?

Glenn M. Feldman:

Yes, under 25 USC Section 81, contracts of this type must be approved.

Byron R. White:

But your ordinance wasn’t?

Glenn M. Feldman:

That’s correct, ordinances are not mandatorily–

Byron R. White:

So if the Secretary withdrew his approval of your management contract in order to get around that you would have to get his decision overturned in court, I suppose.

Glenn M. Feldman:

–Or get rid of the management company.

Byron R. White:

Well, in which event you would have to present another management contract, I suppose.

Glenn M. Feldman:

No, not necessarily.

The trend today is to get away from management companies.

Now that tribes have had experience in this activity, and I should note that tribal bingo has been going on in some reservations for as long as 12 years, and on many reservations for six or seven years.

So tribes have now begun to develop the managerial skills that they didn’t have at the outset, and today the trend is away from management contracts and towards internally operated, tribally operated, wholly tribally operated activities.

I would like to address–

Byron R. White:

Did the state know you were submitting to the Secretary those ordinances and the management contract for approval?

Did they oppose it, or did they even know about it?

Glenn M. Feldman:

–I don’t think that’s a matter of the state’s concern.

That is a matter between the tribes and the Secretary to–

Byron R. White:

Well, if I wanted the best place I would suppose that they might have opposed this administrative decision to permit it, but they didn’t, anyway.

Glenn M. Feldman:

–No, not that I’m aware of.

Byron R. White:

All right.

Glenn M. Feldman:

I certainly don’t know what communication there may have been, but I am not aware of any such communication.

Glenn M. Feldman:

Let me make a couple of points here that I think need to be made.

First, Indian tribes are governments, and like all governments they have to have a source of revenue in order to function.

Now, most tribes do not have a natural resource base.

The Cabazon and Marango bands have reservations out in the middle of the desert, and until there is a commercial market for sand or sagebrush they do not have any sort of natural resources to generate tribal income.

As a result they nave turned to bingo along with more than 120 other tribes around the country.

In doing this they have been acting very much like the 28 states, including California, that have established state lotteries.

The purpose is the same, to provide governmental revenues for public purposes.

This is in essence a form of voluntary taxation.

Now, the federal–

Antonin Scalia:

California is saying that bingo would be like sand and sagebrush but for the fact that California doesn’t allow it, that it is only–

Glenn M. Feldman:

–There is certainly nothing in the record to support that, Your Honor.

The only information in the record, which has to do with the size of prizes actually awarded here, is that for a representative four-month period during 1984 the average jackpot on the Cabazon reservation for their bingo games was $184.89, well below the state maximum limit.

Now, that is not to say that in some games they don’t offer larger prizes.

They do.

We have conceded that.

But most games, and in fact the state’s under cover agent who went in and observed the activity and then submitted declaration makes it very clear that while he was there, yes, there were signs up that said, $25 to $300.

So the amount of money that is actually being awarded here is considerably less than what the big letters say on the sign outside, in the same way that the D.C. Lottery doesn’t award $20 million every week.

It is something that is designed to improve the number of people–

John Paul Stevens:

–Do you think the state has an interest in regulating the kind of disclosure that is made to prospective customers?

0 [Generallaughter.]

Glenn M. Feldman:

–I think that we haven’t reached that issue.

I think that the advertising is legitimate, and they do in some instances give away large prizes as promotional activities.

But the run of the mill jackpot, they are playing bingo out there for $25 in some games, many games.

So let’s not be… let’s not be misled by what the large signs say.

The reality is here, that these games are run and operated very much like charitable bingo.

In fact, they are consistent with every aspect of California’s bingo law with just three exceptions.

They are operating the games and they are not an authorized organization under California’s law.

William H. Rehnquist:

Why do people drive 70 or 80 miles then to play this game if they do that when they could just drive a couple miles to a charitable game closer to home?

Glenn M. Feldman:

Well, there is nothing that indicates how far people come from.

These, both Cabazon and Marango are within reasonably close distance to a number of small communities, so there is no evidence that people are driving long distances here, but more importantly we think that what we are providing are better services, frankly.

Glenn M. Feldman:

We are providing… bingo players don’t require very much.

Bingo players want a chair with a little padding and Smoke-Eaters that will clear the air and get the cigarette smoke out.

And if you can provide that better than the guy down the street, then you are going to attract more people to your bingo.

I am being serious.

That is what these games are offering.

The tribes have built larger modern, clean, well-lit facilities, and they provide a chance for–

[inaudible]

Glenn M. Feldman:

–No, this is my argument.

0 [Generallaughter.]

But what we are providing are recreational services here, and there is no indication why people go to one bingo as opposed to the other, but the creature comforts certainly have something to do with it.

Let me turn for a moment to this question of organized crime.

What we are dealing here on the part of the state of California is at most a hypothetical concern.

They have stipulated to the fact that there is no organized crime involvement on either the Cabazon or Marango reservation.

Now, they draw some distinction between whether they are alleging that it is or isn’t.

I suspect–

Antonin Scalia:

I didn’t understand them to stipulate that there wasn’t any.

They just said they haven’t alleged any to be there.

Glenn M. Feldman:

–Well, they said thy hadn’t alleged it.

My question is, if I was representing the state and I knew of some, I don’t think I would keep it a secret.

I think I would get it out before the Court.

Byron R. White:

But they say there is a real danger.

That is what they say.

Glenn M. Feldman:

They say there is a real danger but the evidence points directly in the opposite direction.

The Ninth Circuit concluded that there was no evidence of organized crime, and more importantly, Congress has studied this issue, but the Senate and the House.

Byron R. White:

They didn’t say there was no danger, did they?

Glenn M. Feldman:

I am sorry.

Byron R. White:

Did they say there was no danger?

Glenn M. Feldman:

Who is that?

Byron R. White:

The Ninth Circuit.

Glenn M. Feldman:

They said there was no evidence of any organized crime.

Byron R. White:

Well, they didn’t say there was any danger.

Glenn M. Feldman:

They didn’t address the danger question.

That’s correct.

Congress–

Byron R. White:

Which is the state’s whole point.

Glenn M. Feldman:

–Well, I suppose at some point you have to determine how realistic, how credible is the danger.

Here Congress has studied the issue extensively over the last two years.

They have conducted field hearings around the country, including California, and both the Senate and the House reports on this legislation conclude with no qualifications that there is no organized crime involvement anywhere.

William H. Rehnquist:

On what legislation?

Glenn M. Feldman:

H.R. 1920, the Indian Game and Regulatory Act, the–

William H. Rehnquist:

That didn’t pass?

Glenn M. Feldman:

–That did not pass.

It passed the House and was approved by the Senate Select Committee on Indian Affairs.

It did get caught in a scheduling crunch at the end of the session.

William H. Rehnquist:

Well, for whatever reason it didn’t pass.

Glenn M. Feldman:

It did not pass.

That’s correct.

Our belief is, based on some information, that the legislation is going to be reintroduced immediately upon Congress coming back into session and we have some reason to think that it will perhaps be more successful this time.

Antonin Scalia:

Suppose California doesn’t allow roulette wheel gambling.

Would the reservations be able to have roulette wheel gambling?

Glenn M. Feldman:

No, It is illegal under–

Antonin Scalia:

It is illegal.

Glenn M. Feldman:

–15 USC 1175 and it is prohibited under PL… it would be a criminal offense under PL-280.

Antonin Scalia:

Why is the difference between roulette wheels and bingo cards more significant as to whether it constitutes a prohibition as opposed to merely a regulation than the difference between bingo for under $250 and bingo for $1 million.

Glenn M. Feldman:

Well, the difference between–

Antonin Scalia:

Don’t you think that is more important, that distinction is more important?

In other words, I am asking, are you sure that this is just a regulation and not a prohibition?

California prohibits bingo for more than $250.

It is just like prohibiting roulette wheels.

Glenn M. Feldman:

–California permits but regulates the playing of bingo.

Antonin Scalia:

Not for over $250.

Glenn M. Feldman:

Well, the question is, are you focusing on the penal sanction or are you focusing on the total regulatory scheme?

Antonin Scalia:

I am focusing on the activity.

Why isn’t it realistic here in light of the interest involved to consider the activity to be bingo for more than $250, and that is absolutely prohibited in California.

Glenn M. Feldman:

Because California has to demonstrate that it has some authority–

Antonin Scalia:

And this wouldn’t hurt your clients a whole lot because from what you tell us they don’t have many games over $250 anyway.

Glenn M. Feldman:

–But that isn’t what the state is after.

The state is out to prohibit tribes from playing bingo under any circumstances.

Antonin Scalia:

But we wouldn’t have to hold that way.

Glenn M. Feldman:

No, certainly not.

Antonin Scalia:

I mean, we could just hold that the state could prohibit over $250 and therefore they clearly win here, and if the tribes want to limit it to under $250 that will be another case.

Glenn M. Feldman:

There has to be some reasoned basis upon which California can exercise jurisdiction over these activities.

Antonin Scalia:

You say they can if they have a prohibition throughout the state, and as I understand what has been said–

Glenn M. Feldman:

If they have a–

Antonin Scalia:

–they have a prohibition on bingo for more than $250.

Glenn M. Feldman:

–But the issue isn’t bingo for more than $250.

The issue is what is being regulated here, and it is bingo, bingo as opposed to slot machines or roulette wheels.

Bingo is treated differently.

The whole concept under California law is that bingo is going to be widely permitted throughout the state.

The state… that is the difference.

Antonin Scalia:

Maybe you know gamblers better than I do, but I think a real gambler would probably consider the difference between a $250 roulette game and a $250 bingo game as less significant than the difference between a $1 million bingo game and a $250 bingo game.

I think California is prohibiting high stakes bingo and the tribes are offering high stakes bingo.

Glenn M. Feldman:

The question becomes this.

Does the inclusion of a penal sanction in their regulatory scheme give them jurisdiction over these tribal activities?

That is the question you are asking.

If the inclusion of that penal sanction, which establishes the outside limit of their regulatory scheme, does that give them jurisdiction?

Our answer to that under Bryan is absolutely not.

If that were the law, Bryan would be gutted.

Bryan says states were not authorized to exercise general regulatory jurisdiction over Indians.

William H. Rehnquist:

All Bryan held was that a tax statute couldn’t be applied in Itasca County.

Glenn M. Feldman:

Well, that was the issue, but the Court used the phrase

“civil regulatory jurisdiction, including taxation. “

four times.

William H. Rehnquist:

Well, California prohibits the intentional taking of a human life but allows it in the case of self-defense.

Does that mean intentional killing is prohibited or regulated?

Glenn M. Feldman:

It is prohibited–

William H. Rehnquist:

Good.

0 [Generallaughter.]

[inaudible]

Glenn M. Feldman:

–Right.

Exactly.

Certainly all regulation involves some aspect of prohibition.

No one disputes that.

And this test requires some judgment to be made as to which is the more important aspect of the statute.

At one end, if they absolutely prohibit it to everybody it is clearly prohibitory.

At the other end, if it is not dealt with under state law, then it is clearly not applicable on the reservation.

There are going to be gradations in between.

There is no question about that.

But the test that has been developed and the test that has been applied has been effective in allowing federal courts to determine the extent of state jurisdiction.

That is the question.

Has this test been a meaningful way in which courts can protect tribal self-government from unauthorized assertions of state jurisdiction?

We think it has.

We think the fact that every single federal court that has considered the question, and there are now ten decisions over the last five years, every single federal court has concluded in this manner.

We think there must be something to those decisions.

The test must be workable or all these federal courts wouldn’t have decided to adopt them.

William J. Brennan, Jr.:

How many Courts of Appeals?

Glenn M. Feldman:

I am sorry?

William J. Brennan, Jr.:

How many Courts of Appeals?

Glenn M. Feldman:

Four Circuit Courts, six District Courts.

William J. Brennan, Jr.:

What are the four circuits?

Glenn M. Feldman:

Two each in the Fifth and the Ninth.

William J. Brennan, Jr.:

So it is really two circuits.

Glenn M. Feldman:

Four different decisions.

In any event the–

Byron R. White:

Is that District Courts or all in the Ninth Circuit or the Fifth?

Glenn M. Feldman:

–No, they are scattered all over the country.

I think there are six different courts.

There have been two out of Oklahoma.

Other than that they have been all over the country.

Let’s talk for a minute about the law enforcement void that the state claims is a concern of theirs here.

Again, there is no evidence that there is a law enforcement void.

These games have been in operation for three, five, six, eight, ten years, and there is no evidence in the record that there has been any law enforcement problem with any of these operations.

The federal government has clear jurisdiction over these activities.

The FBI has a wide range of statutory tools available to it to deal with any organized crime problem or any law enforcement problem under… as I have already indicated under 15 USC 1175, mechanical gambling devices are prohibited.

Could California enforce an age limitation on the reservation for gambling, bingo gambling?

Glenn M. Feldman:

For bingo gambling?

No.

No, that is part of… bingo is civilly regulated under California law.

And the tribe–

Byron R. White:

What if the state had an age limitation that nobody under 16 may gamble at bingo?

Could they enforce that on the reservation?

Glenn M. Feldman:

–That would be a matter for tribal regulation.

The tribes in fact do have age limitations on their… both of them have them in their bingo statutes, 18.

If you are under 18 you can’t–

Byron R. White:

But it would be… the tribe would be the… if they said 18 and the state 16, it would be the tribal rule that would govern.

Glenn M. Feldman:

–That’s correct.

In our view this activity is subject to federal and tribal jurisdiction and not state authority.

John Paul Stevens:

Mr. Feldman, you said the FBI could come in if there was any organized crime problem, but what if a tribe hired a person that the FBI thought was affiliated with organized crime to manage the bingo game?

What could the FBI do about it?

Glenn M. Feldman:

First of all, as part of that management agreement it would require–

John Paul Stevens:

It is an oral contracts.

They don’t write anything out, they just hire him to run the game and hire and fire personnel.

Glenn M. Feldman:

–Section 81 isn’t restricted to written agreements, Your Honor.

I think that that would also require Secretarial review and approval and an FBI background investigation.

Byron R. White:

You mean everybody that the bingo game hires is subject to FBI approval?

Glenn M. Feldman:

No, under management agreements.

Byron R. White:

Well, no management agreement.

As Justice Stevens says, they just hire him week by week.

They say come on and come to work for us, just like a waitress or anything else.

Glenn M. Feldman:

Oh, if it is simply a terminable employee, no, that would not be… that would not fall under Section 81.

John Paul Stevens:

Supposing the security people that were to protect the customers from robbery and the like were all employed and the FBI thought they were all persons associated with organized crime.

Could they do anything about it?

Glenn M. Feldman:

Well, yes, they would come to the tribe and they would come to the Secretary and advise them.

The state seems to be operating under the assumption that–

John Paul Stevens:

And then the tribe could decide whether or not to follow their advice.

Glenn M. Feldman:

–that the tribe isn’t interested in organized crime.

John Paul Stevens:

No, I am just… you indicated earlier, I thought, that the FBI had the power to take… to solve this problem, and I think all they could do is recommend, if I understand you correctly.

Glenn M. Feldman:

Well, if those individuals engage in illegal activities, the FBI does have clear criminal jurisdiction.

If they are involved in stealing from the tribe, for example, embezzling funds, it is a federal offense.

But more importantly, the tribes are governments, and they have an interest in seeing that these games are run as effectively and as efficiently and as honestly as they can.

They have the most to lose.

So there is no reason why a tribe would knowingly employ or continue to employ somebody who is going to provide trouble for them.

Now, the tribes have been very effective in regulating these activities.

Their ordinances are very clear as to what is and what isn’t permitted.

They have employed security personnel to avoid any problems, and even the smallest tribe, even the smallest tribes have the ability to regulate their games.

They can bar access to the reservation to any non-Indian whom they choose.

They can seek judicial relief if there is a problem.

And finally, they can close the games entirely until the matter is resolved, so the tribes… this question arose in New Mexico versus Mescalero a couple of years ago where the state said, well, the tribes don’t have an enforcement mechanism.

They can’t do anything about it, and the Court rejected that argument for much the same reasons that I have indicated.

Now, we have talked… the question was raised earlier about the extent of federal support and involvement for these activities.

Glenn M. Feldman:

I think we need to talk about that just for a moment because what we have here is a very clear shared understanding among all three branches of the federal government that these activities are a legitimate means by which tribes can raise revenues.

We have got an unbroken line of federal authority which support these activities against state and local jurisdiction.

Congress has not completed action and didn’t pass a bill but clearly took many steps which indicate what is likely to happen.

It issued reports, for example, which provide a pretty clear factual record as to the benefits that bingo is providing to these tribes.

They are using their revenues for governmental services.

They are providing programs on the reservation that have never been provided for.

They are doing this without relying on federal funds, and that is the whole idea of what tribal self-sufficiency is supposed to be about.

Don’t rely on the federal government.

Go out and raise the money yourselves and then provide services to your members, just like any government.

That is what we have been telling the Indian tribes for 100 years, and they have never been able to do it until now.

Bingo is providing 100 or more tribes around the country with that ability.

It is not a nefarious activity.

It is not threatening.

These are games that are being subject to close scrutiny by the Secretary of the Interior, by his personnel, and the federal government is strongly supportive of these activities.

Antonin Scalia:

Mr. Feldman, you started to tell us earlier the only three ways in which these games don’t comply with California law.

You got out the first, which is that tribes are not allowed to do it under California law.

I assume the second is the stake limit.

Glenn M. Feldman:

They exceed state limits.

Antonin Scalia:

Right.

What is the third?

Glenn M. Feldman:

The third is that they employ… they employ tribal members as employees in the games as part of the reason… in order to provide employment opportunities on the reservation.

Thank you.

Glenn M. Feldman:

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Feldman.

Mr. Walston, do you have anything more?

You have six minutes remaining.

Roderick Eugene Walston:

Just a few comments, Mr. Chief Justice.

First, the plaintiffs have stated that under California law the Indian tribes in this case cannot conduct charitable bingo.

We differ very strongly with that statement.

The California penal code defines a charity as an entity that is exempt from state taxation under the state revenue and taxation code, and Section 23701(f) of the state’s revenue and taxation code provides an exemption for a not-for-profit entity that is engaged in promoting the social welfare, and our view is that Indian tribes can qualify as charitable organizations within the meaning of that section and therefore can conduct charitable bingo on the same terms as other charitable organizations in California.

Roderick Eugene Walston:

The plaintiffs also stated that the Coleville case was not applicable in this case because the incidence of state regulation there fell on non-Indians.

There are two responses.

First, the Court in Coleville seemed to regard the incident of state regulation as irrelevant, and instead it held that Indian tribes could not gain a commercial advantage over non-Indian businesses by marketing products free of the limitations that may apply to those non-Indian businesses.

The second response is that the incidence of state regulation here falls… does indeed fall on non-Indians.

It falls both on the tribes and on the non-Indian patrons.

California law specifically prohibits both the operation of and the participation in a lottery, a prohibition that is found in Section 320 of the California penal code.

Therefore it is illegal for non-Indians to participate in these games.

The plaintiffs also argue that the tribes are required, are required to submit their management contracts to the Secretary of the Interior for his approval.

Antonin Scalia:

Excuse me.

It comes under the prohibition to participate in a lottery?

Roderick Eugene Walston:

Yes.

Antonin Scalia:

Why doesn’t that statute cover their attendance at charitable bingo within the state of California?

Roderick Eugene Walston:

Well, at a lottery that is not authorized by law.

Charitable bingo is authorized by law.

Therefore it is not illegal under California law to participate in an authorized charitable games.

In other words, charitable games are legal under California law.

Therefore the charity that runs the game can lawfully operate the game, and the people who play the games can lawfully participate in them, but lotteries that are not permissible under California law impose the sanctions both against the operator and the participant.

The tribes also made the statement that the tribes are required to submit their management contracts to the Secretary of the Interior for his approval, and that is simply not true.

There is no requirement in federal law that requires these management contracts to be submitted to the Secretary for his approval, and indeed the Cabazon tribe in this case commenced its bingo operation in March, 1983, and didn’t submit its management contracts for approval until September, 1986, after this Court granted review of the case.

So it ran the operation for three years without submitting he management contract for approval, and apparently got around to doing that primarily to improve its position in this litigation.

Byron R. White:

Has the Attorney General’s office or the… who enforces this law, this lottery law, California lottery law?

Roderick Eugene Walston:

Mainly local law enforcement agencies, local sheriffs and police departments.

Byron R. White:

I suppose they’ve got a lot to do.

Who… it must be that people complain to them.

Roderick Eugene Walston:

Well, when there is a potential violation, yes, people do indeed complain, and–

Byron R. White:

Well, I know, but whom does it make any difference to?

Roderick Eugene Walston:

–Well, I suppose the–

Byron R. White:

Whom do you think… you must have some idea who is complaining about these Indian lotteries.

Roderick Eugene Walston:

–Actually, there are very few complaints about charitable bingo.

Byron R. White:

This is just an energetic local prosecutor in Riverside County?

Roderick Eugene Walston:

Are you talking now about the tribal games or the charitable games?

Byron R. White:

No, the tribal games.

Roderick Eugene Walston:

Oh, the tribal games are–

Byron R. White:

Who is complaining about it?

Roderick Eugene Walston:

–are opposed by a wide number of law enforcement agencies in California.

As a matter of fact, the–

Byron R. White:

All right, but they just don’t do it on their own, do they?

Roderick Eugene Walston:

–Well, they feel very strongly about it, Your Honor.

In fact, the last–

Byron R. White:

They must… a lot of them are elected, aren’t they?

Roderick Eugene Walston:

–Well, they are, and when the new fellow gets elected he comes in and complains it, too.

Byron R. White:

Well, what part of his constituency is complaining?

Charities?

Roderick Eugene Walston:

The charities themselves are–

Byron R. White:

Are really–

Roderick Eugene Walston:

–Yes.

Byron R. White:

–There is competition.

There is real competition, isn’t there?

Roderick Eugene Walston:

Yes.

That is actually correct.

As a matter of fact, I recall the situation in Arizona–

Byron R. White:

So I wouldn’t think a local prosecutor would get so excited unless there might be a question of votes or something.

Roderick Eugene Walston:

–Well, I… no, there is a vast opposition to charitable… tribal bingo in California, and much of the opposition–

Byron R. White:

From the charities.

Roderick Eugene Walston:

–does indeed come from charities.

In fact, I am familiar with the situation in Arizona involving the St. Keno Learning School that was dependent strictly upon charitable… or I should… yes, charitable bingo proceeds, and it was forced to shut down simply because of the competition from the tribal games in Arizona.

The tribes have also made the argument that the tribes need high stakes bingo in order to effectively survive and obtain revenue for tribal purposes and that they have no real options other than tribal bingo.

Well, President Reagan’s policy statement on which the tribes have relied so heavily in this case indicates that a number of other types of options are available to the tribes to generate revenues for tribal purposes, and these purposes are listed at Pages 226 and 227 of the joint appendix, and they are as follows: manufacturing, agri-business, and modern technology; second… I am sorry, my time is up.

William H. Rehnquist:

Your time has expired, Mr. Walston.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10 o’clock.