Appeal from the United States District Courtfor the Eastern District of WashingtonFred L. Van Sickle, District Judge, PresidingArgued and SubmittedAugust 7, 1997--Seattle, WashingtonFiled March 27, 1998Before: Dorothy W. Nelson, Charles Wiggins andAlex Kozinski, Circuit Judges.Opinion by Judge Kozinski
_____________________________COUNSEL Scott D. Crowell, Crowell Law Offices, Kirkland, Washing-ton, for the defendant-appellant.James R. Shively, Assistant United States Attorney, Spokane,Washington, for the plaintiff-appellee.
_____________________________OPINION KOZINSKI, Circuit Judge.On application by the United States, the district courtenjoined the Spokane Tribe of Indians from conducting lucra-tive gambling operations on its reservations. The preliminaryinjunction was issued under the authority of the Indian Gam-ing Regulatory Act (IGRA), 25 U.S.C. S 2701 et seq., whichhas since been declared partially unconstitutional. See Semi-nole Tribe of Florida v. Florida,
517 U.S. 44
(1996). In thisinterlocutory appeal we confront the question whether por-tions of IGRA not struck down by Seminole Tribe support theinjunction.IIGRA, as passed by Congress in 1988, sets up a complexprocedure for states and Indian tribes to work out their differ-ences concerning gambling on Indian reservations. The firststep in that process is for tribes wishing to conduct commer-cial gaming to negotiate compacts with the states withinwhose borders their reservations are located. The SpokaneTribe of Indians was operating a bingo hall and some cardgames at the time IGRA was passed but wanted to expand itsoperations. So the Tribe began to negotiate a compact withthe State of Washington.Negotiations did not go well and broke down altogetherafter two years. As IGRA then allowed, the Tribe sued theState for failure to negotiate in good faith. Following theSupreme Court's decision in Seminole Tribe, the Stateinvoked its newfound Eleventh Amendment immunity andbrought the Tribe's suit to a sudden end.While its suit against the State was pending, the Tribe hadstepped up its casino operations and started offering a widerrange of games. Without a compact in place, the gaming oper-ations violated IGRA and the United States brought thisaction to put a stop to them. The district court granted a pre-liminary injunction prohibiting the Tribe from operating mosttypes of games and the Tribe appeals.IIThe district court issued its injunction when IGRA was stillwholly intact. Does the Supreme Court's decision in SeminoleTribe, striking down another section of the same statute,affect the district court's authority to enjoin Indian gamingthereunder? To answer this question we must first examinethe history and structure of IGRA to determine the extent towhich its parts are mutually dependent.AIn 1987 the Supreme Court held that states were not autho-rized to regulate gambling in Indian country. See Californiav. Cabazon Band of Mission Indians,
480 U.S. 202
(1987).States disliked Cabazon and so the following year Congresspassed IGRA. The new law gave states considerable say overgambling in Indian country, but the Act was not an unmiti-gated defeat for tribes. Rather, the law closely balanced theinterests of states and tribes. IGRA divided games into threeclasses, each regulated differently. Our concern is with classIII gaming--the most lucrative kind--covering all but socialgambling and games like bingo. See 25 U.S.C.S 2703(8).Under IGRA, class III activities must be authorized by a tribalordinance approved by the National Indian Gaming Commis-sion, permitted by the state for some person or organization,1and covered by a tribal-state compact. See 25 U.S.C.S 2710(d)(1).A different section of IGRA makes it a federal crime toviolate state gambling law in Indian country unless authorizedby a compact. See 18 U.S.C. S 1166. Only the federal govern-ment, not the state, may enforce this provision. See id.[1] The tribal-state compact is pivotal to the IGRA provi-sions governing class III gaming. Without a compact in place,a tribe may not engage in class III gaming. To guard againstthe possibility that states might choose not to negotiate, or tonegotiate in bad faith, Congress included a complex set ofprocedures designed to protect tribes from recalcitrant states.2In 1996 the Supreme Court emasculated these proceduresby holding that tribes are constitutionally precluded frombringing suit against recalcitrant states that do not consent tobeing sued. See Seminole Tribe,
517 U.S. at 72
("[T]he Elev-enth Amendment prevents congressional authorization of suitsby private parties against unconsenting States."). TheSupreme Court did not consider whether the rest of IGRA sur-vives.B[2] IGRA does contain a severability clause. See 25 U.S.C.S 2721. This creates a presumption that if one section is foundunconstitutional, the rest of the statute remains valid. But thatpresumption is not conclusive; we must still strike down otherportions of the statute if we find strong evidence that Con-gress did not mean for them to remain in effect without theinvalid section. See Alaska Airlines, Inc. v. Brock, 480 U.S.678, 686 (1987). The question we must ask is this: WouldCongress have enacted IGRA had it known it could not givestribes the right to sue states that refuse to negotiate? See id.at 685; see also Board of Natural Resources of the State ofWashington v. Brown, 992 F.2d 937, 948 (9th Cir. 1993). Ifthe answer is yes, then the rest of IGRA remains valid. If theanswer is no, things become more complicated, as we mustthen ask which other provisions of IGRA are called into ques-tion, and under what circumstances.Figuring out why Congress passed a piece of legislation ishard enough. Figuring out whether it would have passed thatlegislation in the absence of one of its key provisions is evenharder. Yet, figure we must.[3] Under Cabazon, the states had little power to regulategambling on tribal land. IGRA shifted power to the states--amajor blow to tribal interests. Under IGRA states could effec-tively veto any class III gaming on Indian land simply byrefusing to negotiate a compact. Section 2710(d)(7) restoredsome leverage to the tribes by giving them the right to suerecalcitrant states and thereby forcing them to enter into acompact. See n.2 supra. It is quite clear from the structure ofthe statute that the tribe's right to sue the state is a key partof a carefully-crafted scheme balancing the interests of thetribes and the states. It therefore seems highly unlikely thatCongress would have passed one part without the other, leav-ing the tribes essentially powerless.[4] IGRA's legislative history strongly supports thisinference.3 The Senate report on S. 555, which became IGRA,repeatedly emphasizes that the bill balances the interests oftribes and states. See, e.g., S. Rep. No. 100-446, at 1-2 (1988),reprinted in 1988 U.S.C.C.A.N. 3071, 3071 ("[T]he issue hasbeen how best to preserve the right of tribes to self-government while, at the same time, to protect both the tribesand the gaming public from unscrupulous persons."); id. at 5,1988 U.S.C.C.A.N. at 3075 ("[T]he Committee has attemptedto balance the need for sound enforcement of gaming lawsand regulations, with the strong Federal interest in preservingthe sovereign rights of tribal governments[.]"); id. at 6, 1988U.S.C.C.A.N. at 3076 ("This legislation is intended to providea means by which tribal and State governments can realizetheir unique and individual governmental objectives[.]"). Indescribing the balancing, the report refers specifically to theprovision for suing states: Section 11(d)(7) grants a tribe the right to sue a State if compact negotiations are not concluded. This sec- tion is the result of the Committee balancing the interests and rights of tribes to engage in gaming against the interests of States in regulating such gam- ing. . . . [T]he issue before the Committee was how best to encourage States to deal fairly with tribes as sovereign governments. The Committee elected, as the least offensive option, to grant tribes the right to sue a State if a compact is not negotiated . . . .Id. at 14, 1988 U.S.C.C.A.N. at 3084.When the Eleventh Amendment became a concern afterIGRA became law, Senator Daniel Inouye, chair of the SenateCommittee on Indian Affairs and one of S. 555's authors,explicitly answered our question.4 He explained that Congresswould not have passed IGRA in the form it did, had it knownthat tribes wouldn't be allowed to sue the states: Because I believe that if we had known at the time we were considering the bill--if we had known that this proposal of tribal state compacts that came from the States and was strongly supported by the States, would later be rendered virtually meaningless by the action of those states which have sought to avoid entering into compacts by asserting the Tenth and Eleventh Amendments to defeat federal court juris- diction, we would not have gone down this path.Implementation of Indian Gaming Regulatory Act: OversightHearings Before the House Subcommittee on Native Ameri-can Affairs of the Committee on Natural Resources, 103rdCong., 1st Sess., Serial No. 103-17, Part 1, at 63 (April 2,1993). Elsewhere, he said, "If the courts rule that the EleventhAmendment would prohibit the tribal governments from suingState officials, then you've got a piece of paper as a law."Implementation of Indian Gaming Regulatory Act: HearingBefore the Senate Select Committee on Indian Affairs, 102ndCong., 2d Sess., S. Hrg. 102-660, Part 2, at 58 (March 18,1992).[5] IGRA as passed thus struck a finely-tuned balancebetween the interests of the states and the tribes. Most likelyit would not have been enacted if that balance had tipped con-clusively in favor of the states, and without IGRA the stateswould have no say whatever over Indian gaming. In our case,the Tribe claims it attempted to negotiate in good faith, butthat attempt failed because of bad faith on the part of theState. The Tribe thus fulfilled its obligation under IGRA. TheTribe then sued the State, as it was entitled to under the stat-ute, but found it could not continue that suit after SeminoleTribe. As far as we can tell on the record before us, nothingnow protects the Tribe if the State refuses to bargain in goodfaith or at all; the State holds all the cards (so to speak). Con-gress meant to guard against this very situation when it cre-ated IGRA's interlocking checks and balances.[6] Does this mean that the surviving portion of IGRA isinvalid? Not quite. We deal here only with the narrow ques-tion presented by this interlocutory appeal: Is a preliminaryinjunction authorized in these circumstances? The districtcourt granted the injunction back in 1994, long beforeSeminole Tribe transformed the legal landscape. We holdmerely that the class III gaming provisions can't form thebasis for an injunction against the Tribe on the record beforeus.IGRA, however, remains valid and, under some circum-stances, it may function close enough to what Congress hadin mind to be enforceable by way of injunction. Most obvi-ously, a state might waive sovereign immunity and allow atribe to sue it in district court; IGRA would then functionexactly as intended and there would be no reason not to giveit full effect. Here, however, Washington invoked its rightsunder the Eleventh Amendment and caused the Tribe's suit tobe dismissed, distorting the IGRA process. Or, the UnitedStates might sue on behalf of a tribe and force the state intoa compact.5 If it did so, IGRA could work as intended and anyIGRA violation by the tribe could be enjoined.Other circumstances would present closer cases. BeforeSeminole Tribe reached the Supreme Court, the Eleventh Cir-cuit anticipated the Eleventh Amendment (no relation) prob-lem. Unlike the Supreme Court, the circuit then consideredwhat happens next. It held that if a tribe sues a state and thestate pleads the Eleventh, the tribe may then notify the Secre-tary of the Interior, who may address the problem by regula-tion. See Seminole Tribe of Florida v. Florida, 11 F.3d 1016,1029 (11th Cir. 1994).The Tribe here has already applied to the Secretary severaltimes asking him to prescribe regulations, so far with no luck.The Department of the Interior has issued an advance noticeof proposed rulemaking, suggesting it is busily consideringwhat to do in situations such as these. See Request for Com-ments on Establishing Departmental Procedures to AuthorizeClass III Gaming on Indian Lands When a State Raises anEleventh Amendment Defense to Suit Under the Indian Gam-ing Regulatory Act, 61 Fed. Reg. 21,394 (1996). The noticecites the Eleventh Circuit decision as authority supportingintervention by the Department. It also cites an earlier opinionof ours, Spokane Tribe of Indians v. Washington, 28 F.3d 991(9th Cir. 1994), vacated 116 S. Ct. 1410 (1996). There weconsidered the Eleventh Circuit's suggestion and said that"such a result would pervert the congressional plan," turningthe Secretary of the Interior into "a federal czar." Id. at 997.However, that was in the context of our (incorrect) assump-tion that tribes could sue states. We were pointing out that theEleventh Circuit's suggestion would not be as close to Con-gress's intent as the scheme Congress in fact passed. True.But the Supreme Court has now told us that Congress'sscheme is unconstitutional; the Eleventh Circuit's suggestionis a lot closer to Congress's intent than mechanically enforc-ing IGRA against tribes even when states refuse to negotiate.Whether or not such rulemaking would bring IGRA's opera-tion close enough to Congress's intent to save the statutedepends on the as yet undisclosed details of the proposed reg-ulations.None of the circumstances that might justify enforcingIGRA according to its terms appears to be present here. Weare left, then, with a tribe that believes it has followed IGRAfaithfully and has no legal recourse against a state that alleg-edly hasn't bargained in good faith. Congress did not inten-tionally create this situation and would not have countenancedit had it known then what we know now. Under the circum-stances, IGRA's provisions governing class III gaming maynot be enforced against the Tribe. However, because the courtand the parties below operated under incorrect legal assump-tions (largely because Seminole Tribe had not yet beendecided), it's possible that there are facts of which we areignorant. For instance, perhaps the Department of Justice hadevidence that it was the Tribe that had failed to bargain ingood faith. Or perhaps the Department of the Interior deter-mined that no class III gaming should be allowed on the reser-vation because state law prohibits all such gambling. See n.1supra.6 Or, there may be new developments since the districtcourt's decision. We cannot say with certainty that IGRAdoes not support an injunction against the Tribe; it simplydoesn't on this record. If the United States persists in seekingrelief, the district court will have to revisit the question andengage in a new factual investigation guided by a correct legalanalysis.7IIIWe thus return this case to the district court after vacatingthe preliminary injunction. We note, however, that the courtsaren't the only, or even the most appropriate, forum for solv-ing the problems caused by Seminole Tribe. Several Execu-tive Branch agencies may be able to patch up the situation.The Department of the Interior, for example, might promul-gate regulations that take the place of the compact process.Or, the Department of Justice might resuscitate the statute byprosecuting tribes only when it determines that the state hasnegotiated in good faith, or by suing states on behalf of thetribes when it determines that the states are refusing to com-ply with their obligations under IGRA. These alternatives, andothers we haven't thought of, might provide avenues for sal-vaging IGRA. And, of course, Congress could return to thestatute and come up with a new scheme that is both equitableand constitutional.The district court's judgment is REVERSED, and the pre-liminary injunction is VACATED. the end
___________________________FOOTNOTES 1 Quite possibly, Washington does not permit some games at all. Thelegislature has declared that state policy "restrain[s] all persons from seek-ing profit from professional gambling activities in this state." Wash. Rev.Code S 9.46.010. Moreover, all gambling premises in the state are com-mon nuisances. See Wash. Rev. Code S 9.46.250(1). However, the UnitedStates has not seriously pursued this argument, and the Tribe claims thatvarious state commissions can in fact authorize games of chance. One dis-trict court has suggested that Washington now merely regulates gambling,rather than prohibiting it. See Spokane Tribe of Indians v. United States,782 F. Supp. 520, 522 n.2 (E.D. Wash. 1991).2 Under IGRA, a tribe may ask the state to negotiate a compact, andupon receiving such a request the state "shall negotiate with the Indiantribe in good faith to enter into such a compact. " 25 U.S.C. S 2710(d)(3)(A). If the tribe believes the state is not negotiating in good faith, it maysue the state in district court. See 25 U.S.C. S 2710(d)(7)(A)(i). If the courtconcludes the state is not negotiating in good faith, it shall order the stateand tribe to conclude a compact within 60 days. See 25 U.S.C. S 2710(d)(7)(B)(iii). If this fails, the tribe and state are to submit their last bestoffers to a mediator, who is to choose the compact that best fits federallaw. See 25 U.S.C. S 2710(d)(7)(B)(iv). If the state does not consent to thecompact the mediator chooses, the mediator must notify the Secretary ofthe Interior, who shall proscribe procedures consistent with the compactthat the mediator proposed. See 25 U.S.C.S 2710(d)(7)(B)(vii).3 Estimable jurists have called into question the value of legislative his-tory. See, e.g., Connecticut Nat'l Bank v. Germain,
503 U.S. 249
, 253-54(1992) (Thomas, J.); Wisconsin Public Intervenor v. Mortier, 501 U.S.597, 616-23 (1991) (Scalia, J., concurring); Wallace v. Christensen, 802F.2d 1539, 1559-60 (9th Cir. 1986) (en banc) (A. Smithee, J., concurring).We bypass this controversy because we do not use legislative history tointerpret IGRA; rather, we are evaluating a counter-factual: What wouldhave happened if Congress had known that the provision for suing stateswas invalid? To answer this question we must understand the political pro-cess underlying IGRA's passage, and legislative history is a legitimatesource of enlightenment on that issue.4 Post-enactment legislative history is even more suspect than history inplace at the time of passage. But, once again, we seek to determine notwhat the statute means but whether it would have passed without theinvalid provision. For this purpose, it's highly instructive to see how oneof the key players in the enactment process views the matter.5 One court has suggested that tribes may sue the United States to forceit to sue a state on their behalf. See Chemehuevi Indian Tribe v. Wilson,1997 WL 769275 (N.D. Cal. Nov. 24, 1997). The Chemehuevi court notedthat sovereign immunity does not prevent the United States from suingstates, citing Arizona v. California,
460 U.S. 605, 614
(1983), UnitedStates v. Mississippi,
380 U.S. 128, 140
(1965), and United States v.Minnesota,
270 U.S. 181, 194
-95 (1926). See 1997 WL 769275, at *2. Weobviously need not decide here whether a tribe may sue the United Statesto compel it to sue a state.6 This might explain Interior's failure to issue regulations.7 The United States also charged the Tribe with violating a portion of theJohnson Act, 15 U.S.C. S 1175, making it unlawful to possess or use agambling device within Indian country. In granting the preliminary injunc-tion the district court relied on IGRA and its incorporation of state law,and hence did not discuss in any detail whether the Johnson Act on its ownsupports the injunction. We note, however, that even if the Tribe did vio-late the Johnson Act, the two sections enforcing its provisions, 15 U.S.C.SS 1176 and 1177, call for fines, imprisonment and confiscation of gam-bling devices as remedies. Neither section provides for injunctions. More-over, the scope of the injunction here is much broader than the JohnsonAct violation, which only concerns gambling devices.