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RED LAKE BAND OF CHIPPEWA INDIANS v. SWIMMER

June 3, 1990

RED LAKE BAND OF CHIPPEWA INDIANS, et al., Plaintiffs,
v.
ROSS SWIMMER, et al., Defendants


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 In this action, plaintiffs, the Red Lake Band of Chippewa Indians ("RLB") and the Mescalero Apache Tribe ("MAT"), sue the Department of the Interior to prevent the implementation of the Indian Gaming Regulatory Act of 1988, 25 U.S.C. ยงยง 2701-2721 ("Gaming Act" or "Act"). The Act would regulate gaming that occurs on Indian tribal land by dividing games into one of three different classes, according to the game at issue. Those games that fall into Class I, which include social or traditional games played in connection with tribal ceremonies or celebrations, would be exclusively regulated by the tribes. Those games that fall into Class II, which include bingo-related games and card games, would be permitted if the state permits such gaming for any purpose. Those games that fall into Class III, which include all gaming not included in Class I or II, such as casino-type games and pari-mutuel betting, would be permitted only if such gaming is authorized by a tribal ordinance approved by the chairperson of a commission established by the Act, is located in a state that permits such gaming, and is conducted in conformity with a tribal-state compact.

 Defendants' motion to dismiss all claims presented in the complaint is now pending before this Court. Those claims for which the motion to dismiss can be resolved on the basis of the pleadings must be dismissed under Fed. R. Civ. P. 12(b)(6) if it appears "beyond doubt that, under any reasonable reading of the complaint, the plaintiff will be unable to prove any set of facts that would justify relief." Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (1987); see also Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Those claims for which resolution of the motion to dismiss requires consideration of matters outside the pleadings must be evaluated under the standard "for summary judgment and disposed of as provided in Rule 56." Fed. R. Civ. P. 12(b). Under this standard, judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Because plaintiffs fail to meet their burden of pleading or proof on each count, an accompanying Order will grant defendant's motion to dismiss on all counts.

 I.

 Plaintiffs' ten-count complaint presents four different types of attacks on the legitimacy of the Act. First, plaintiffs contend that the Act violates their right to self-determination as preserved both in treaties with the federal government (Counts I and II) and in aboriginal rights never surrendered to the federal government (Counts III and IV). Second, plaintiffs argue that, in passing the Act, Congress violated its federal trust responsibility to the Indians (Count V). Third, plaintiffs argue that the Act unconstitutionally restricts the power of federal courts. *fn1" Fourth, plaintiffs contend that the Act violates their fundamental right to self-government in violation of the Fifth Amendment. *fn2" Each of these claims, and the grounds on which the government moves to dismiss it, is discussed in turn.

 A.

 Plaintiffs first assert that the Act violates the Indian tribes' rights to self-determination and self-governance guaranteed by the treaties between the Indian tribes and the United States government and by aboriginal rights never surrendered by the Indian tribes. In their motion to dismiss, defendants argue that, to the extent that any rights to self-determination were preserved by the Indians, whether explicitly by treaty, or implicitly by failure to surrender aboriginal rights, they are subject to complete defeasance by Congress. Thus, defendants declare, plaintiffs' claims on this issue fail because the actions alleged to have been committed by Congress do not violate the law.

 Defendant correctly asserts that under Supreme Court doctrine, Congress holds virtually unlimited power over the Indian tribes. As expressed most clearly in Lone Wolf v. Hitchcock, 187 U.S. 553, 47 L. Ed. 299, 23 S. Ct. 216 (1903), Congress has plenary power to

 
abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress . . . .

 Id. at 568, cited with approval in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594, 51 L. Ed. 2d 660, 97 S. Ct. 1361 (1977). Moreover, to the extent that any right to self-determination is derived from the Indian's aboriginal rights, that, too, is subject to complete defeasance at the will of Congress. In the Supreme Court's words, "The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance." United States v. Wheeler, 435 U.S. 313, 323, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978); see also Washington v. Yakima Nation, 439 U.S. 463, 501, 58 L. Ed. 2d 740, 99 S. Ct. 740 (1979). As stated bluntly by one district judge, "As against Congress, tribal sovereignty is but a stick in front of a tank." Native Village of Venetie v. State of Alaska, 687 F. Supp. 1380, 1392 (D. Alaska 1988).

 Plaintiffs ask that this Court refuse to allow Congress to assert the vast power over Indians that doctrine of plenary power would allow. In doing so, they are in accord with a number of authorities who criticize the doctrine of plenary power on a multitude of grounds. One district judge argues that the doctrine of plenary power, and its corollary doctrine that the tribes retained all sovereignty not seized by Congress, were developed "to legitimize acquisitions [of land] by agreements with small groups of people purporting to bind entire nations . . . . To put it plainly the doctrines were invented in large part to take the Indians' land." Native Village of Venetie, 687 F. Supp. at 1389. Constitutionally, the doctrine of plenary power has been said to "rest[] on vague and extraordinarily unexamined foundations." Comment, Federal Plenary Power in Indian Affairs After Weeks & Sioux Nation, 131 U. Pa. L. Rev. 235, 235 (1982). Practically, it has been condemned for allowing infringement on the rights of Indians by "groups eager for access to tribal and Indian resources" "often with disastrous impact on the tribes." Id. at 235-36. In addition, it has been criticized as embodying the vestiges of the racial and cultural prejudice prevalent during the early part of this century that prompted Indians to be viewed as racially and culturally inferior and hence requiring guardianship by the members of Congress. Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 218 (1984). The plenary power doctrine's effects on the rights of Indians have been deemed so devastating as to prompt one judge to refer to the day that the opinion in Lone Wolf was issued and the doctrine of plenary power developed as "one of the blackest days in the history of the American Indian, the Indians' Dred Scott decision." Sioux Nation of Indians v. United States, 220 Ct. Cl. 442, 601 F.2d 1157, 1173 (1979) (Nichols, J., concurring).

 As disturbing as application of the Lone Wolf principle may be, however, lower federal district courts are bound by decisions of the Supreme Court. Thus, this Court is bound by the Supreme Court's clear rulings that Congress may pass laws such as the gaming legislation even if they violate treaties with the Indians or Indians' aboriginal rights. The Indians claims to the contrary must therefore be rejected.

 Other case law cited by plaintiffs in support of their view that the Act in question unlawfully violated their rights is inapposite. Plaintiffs attempt to rely on the legal doctrine that federal statutes must be construed to facilitate the retention of Indian rights to self-government preserved by statute. See, e.g., Muscogee (Creek) Nation v. Hodel, 271 U.S. App. D.C. 212, 851 F.2d 1439, 1444-45 (1988), cert. denied, 488 U.S. 1010, 109 S. Ct. 795, 102 L. Ed. 2d 786 (1989). However, this doctrine provides no authority for striking down such Congressional acts when they deliberately reduce Indian rights to self-government. Similarly, case law presented by plaintiffs that prohibit state encroachment on Indian sovereignty, see, e.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 332, 76 L. Ed. 2d 611, 103 S. Ct. 2378 ...


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