No. 91-635
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA, EX REL.,
A . LENDLIEF
AND DONALD C. JUNEAU,
Relators,
-vs-
I
MONTANA NINTH JUDICIAL DISTRICT COURT,
GLACIER COUNTY, THE HONORABLE ROBERT S.
KELLER, Presiding Judge,
Respondent.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relators:
Joseph R. Hunt argued, Johnson & Hu t, (Juneau)
Shelby, Montana
Charles F. Moses, Moses Law Firm, ( L i n
Billings, Montana
Marcus S. Topel, David R. Callaway argued, Topel &
Goodman, (Poll) San Francisco, California
For Respondent:
Hon. Marc Racicot, Attorney General,
Deanne L. Sandholm argued, Assistant Attorney
General, Helena, Mon
James C. Nelson, Glacier County Attorney, Cut Bank,
Montana
Submitted: September 24, 1992
Decided: April 13, 1993
Filed:
Clerk
Justice Fre er delivered the Q e Court.
This case arose from a criminal proceeding in Glacier County.
58 counts f misdemeanor conspiracy in
s st the Montana Restaurant and C
an Reservation i
moved to dismiss for lack of jurisdiction. The District Court fs
the Ninth Judicial District, Glacier County, denied the motion,
This Court accepted supervisory control in order to de
jurisdictional issue before trial. We affirm.
The issues before us are:
1. For purposes of criminal jurisdiction, is a person an
"Indianw if he has no Indian ancestry but has been adopted by an
Indian family and raised on the reservation?
9
4 Does the State of Plsntana have jurisdiction over non-
Indian defendants for crimes committed on the reservation where
there is no I
3. Does the State of ]Montana have authority to regulate
gambling on the reservation?
Carl Kipp, Bob Juneau and defendant, Don Juneau operated the
Montana Restaurant and Casino on the Blackfeet Reservation in
Glacier County, Montana. The Blackfeet tribal business pe
in Carl KippDs name. It was stipulated that Carl Kipp and Bob
Juneau are Indians. Don Juneau's Indian status is at issue,
On November 1988, the Glacier
information charging Stanford R. Poll (Poll), Arthur A. Lindlie
(Lindlief) and Don Juneau with 58 coants sf misdemeanor conspiracy
2
in violation of 5 45 ,
-102 (1) MCA, involving agreements to conduct
(Casino) in ~rowning,Montana. All offenses are alleged to have
occurred between Hay 1, 1987, and June l i 1988; The information
Tribe; (b) the sovereignty of the Blackfeet Tribe; (c) the
preemption by the federal government under Article VI of the United
ates Constitution and con rolling juris iction over all Indian
affairs; and (d) the preemption by the Blackfeet Nation of
jurisdiction over business activities within the exterior
boundaries of the laekfeet Reservation.
The State opposed the motion arguing that all three defendants
---- Poll, Lindlief and Don Juneau, were non-Indian; that the Casino
not the Tr
ribe had no sive scheme of
authorizing, or regulating the 1 1ackfe
8
Indian Reservation, whether by Indians or non-Indians.
Lindlief and Poll challenged the State" assertion concerning
Don Juneau" nno-Indian status and further contended that their
criminal liability was predicated solely on the eonduet of
individuals who were Indians not subject to state jurisdiction and
that the Casino was being operated pursuant to a tribal business
he motion to dismiss, however,
urging this Court to accept an application for an approp
3
in order to d e jurisdictional question in ad
rial., for a writ of
supervisory control with this Court. This Court denied the
p e t i t i s n on the grounds there w3s not an adequate factual record
Id exercise supervis
eurt held an evi or; May 19,
1990. Su n submitte
briefs arguing the jurisdiction of t t, The District
Court again denied the defendants' motion to dismiss.
On December 31, 1991, Poll, Eindlief and Don Juneau again
petitioned this Court to issue a writ of supervisory co
March 10, 1992, this Court accepted jurisdiction of the application
for writ of supervisory control to determine the jurisdictional
issue before trial. Additional bri fing was ordered and the case
was orally argued before this Court on September 2, 1992.
1
For purposes of criminal jurisdiction, is a person an vsJhdiants
if he has no Indian ancestry but has opted by an In
family and raised on the reservation?
It was stipulated by the parties that Lindlief and Poll are
not Indians. Therefore, this issue centers on defendant Don
Juneau- Don Juneau was born of non-Indian parents but later
ted by an Indian, Bewtsn Juneau. Don Juneau was raised on the
Blackfeet Reservation and has lived and worked there all his life.
Don Juneau testified that he is not enrolled as a member of any
federally recognized Indian tribe; he does not vote in Indian
elections; he does not receive any per capita ederal benefits as
an Indian; and, he has never hei a Tribal office. He is married
4
ts a full- f the Rocky Boy Tribe and has children
that are half Indian.
Defendants maintain that Don Juneau is an "Indianse for
purposes sf criminal juris ey maintain that Congress has
ianm as it is use in criminal jurisdiction
that since Juneau was adslfpte
0-8-125(1), MCA, provides:
After the final decree of adoption is entered, the
relation of parent and child and all the rights, duties,
and other legal consequences sf the natural relation of
child and parent shall thereafter exist between such
adopted child and the adoptive parents adopting such
child and the kindred of the adoptive parents.
Under this statute, the adopted child joins the adoptive family as
if born to them. Don Juneau's father is 518 Indian. Thus, Don
Juneau maintains that under the above statute, he is 5/16 Indian
and therefore, is an "Indianw under federal and state law.
Defendants maintain that for purposes of criminal
jurisdiction, "Indianm is a status, not a racial classification.
United States v. Indian Boy X (9th Cir. 1977), 565 F,2d 585 (The
Ninth Circuit based federal jurisdiction on residence and
enrollment without mention of the percentage of Indian blood); St.
Cloud v. United States (D.S.D. 1988), 702 F.Supp. 1456 (The court
noted that Indian blood alone was no sufficien
criminal jurisdiction ecause jurisdistion over Indians on
reservations was based on status, not race).
efendants contend that although on Juneau is no
lood, every is life
is Indian; he was adopted by an Indian; attended Indian schools;
practiced the In ated in tribal customs;
dian friends; and, has In
Thus, defendants urge that Don Juneau is an Indian and meets the
status =f I n d i a n f c r crfminaf d t i r i s d i
J -A
~ +n n n l ~ -- -- -~ e ~
.L-------**
i r--r r n n
ains that criminal j u
court over Don ependent upon
s status as a non-Indian, citin
Mont. 335, 7 9 0 ?.2d 983, where this Cour
test of United States v. Rogers (l845), 4 How. 567, 16 U,S. 200,
for determining whether a person has Indian status: (1) the
defendant must have a significant amount of Indian blood; and ( 2 )
the defendant must have federal or tribal recognition as an Indian.
Don Juneau is unable to meet either prong of the test. The State
Don Juneau fails the first part of the test because he
has no Indian blood. He fails the second part of the test because
he is not an enrolled member of the tribe and he receives no
federal benefits as an Indian.
The LaPier cas is controlling, U der the secon
LaPier test, Don Juneau was required to show that he had fede
tribal recognition as an Indian. He has failed to submit any proof
to demonstrate the Blackfeet Tribe has recognized him as an Indian.
As previously pointed out, he is not an enrolled member of any
Indian tribe and he receives no enefits as an India
therefore conclude that Don Juneau has failed to prove that he has
received federal or tribal recognition as an Indian. We conclude
at Don Juneau has failed to meet the test of EaPier.
We do not find it necessary to discuss the issue from LaPier
of the necessity of a significant amount sf Indian blood. As
6
efendants conten that such a
longer appro ecause "Indian" is a status, an
classification to e determine antity of Indian blood.
n Juneau has f a i est ,
no further discussio
We hold that Don Juneau is not an Indian for
criminal jurisdiction,
Does the State of Montana have jurisdiction over non-India
defendants for crimes committed on the reservation where there is
dian victim?
Defendants maintain that when making a determination as to
whether a state has jurisdiction over particular victimless crimes
committed by non-Indians within the reservation, it is necessaryto
examine the federal, tribal and state interests involved ts
determine if the particular state has been preempted.
The respondents contend that the assertion of state authority
interests when a non-Indian commits an offense against a non-
Indian. Duro v. Reina (lggO), 495 U.S. 676, 110 S.Ct. 2053, 109
L.Ed.2d 693; State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983;
efendants in this case a e charged with conspiracy, and that
e ~ b j e c to f each conspiracy charged in this case is a violation
ieular gambling la
islation of t Montana are also
crimes because they are committed without injury to persons or the
rogerty of ersons, and t
in this case where victimless crimes
s a
ave criminal jurisdictio
Indians, I
established that the inherent sovereignty of tne
rfbes does not extend to criminal jurisdiction
Wheeler reaffirmedthe longstandin
jurisdiction over crimes csmitte
Duro, 110 Sect. at 2059. The Duro Court extended that rule by
holding that tribal jurisdiction does not extend to non-member
Indians. I ,at
d 2059,
Not only is Don Juneau not a member of the Blackfeet Tribe, he
is not an Indian. Therefore, under Duro the Blackfeet Tribe has no
criminal jurisdiction over him. We hold that the State of Montana
has jurisdiction over non-Indian defendants for crirees committed on
the reservation where there is no Indian victim.
Does the State of Montana have authority to regulate gambling
on the reservation?
Defendants maintain that it is not the involvement of the
defendants with the tribe that is at issue here, but rather the
interfere with tribal ssverei nty. They point ou that the failure
sf the State to re late gambling on the reservation will not
impede the State's ability to re ling outsi
its right to self-govern,
The State maintains that the determination of jurisdiction
over the ga eE
articularized in and tribal interests at
stake as reflected in federal law and the State interests at stake.
The State maintains that it has a substantial interest in
protecting its citizens from the problems associated with
unregulated gambling and that Montana has strictly regulated
gambling. Section 23-5-102, MCA (1987). Finally, the State
contends that the exercise of state authority within the Blackfeet
Reservation does not infringe upon federal or tribal interests
where a non-Indian commits an offense against a non-Indian.
In White Mountain Apache Tribe v. Bracker (1980)' 448 U.S.
136, 100 Sect. 2578, 65 L.Ed.2d 665, the State of Arizona sought to
apply its motor carrier license and use taxes to the Pinetop
Lagging Company (Pinetop). Pinetop consisted of two non-Indian
corlporatisns doing business solely on the Reservation. Pinetop
paid the taxes under
under federal. Pa taxes csul.
logging activities conducted exclusively within the re
on hauling activities on Bureau of Indian Affairs (BIB
roads.
ates was a
the federal gsveratment?~
regulation sf the harvesting, sale an
White Mountain Tribe was also a party to the action, It argued
e tax waul ave an adverse a f f e he TribeFs
ositi~n taxes woul
of m i n e the fed
of assuring prefits which would inure to the Tribe.
The Court concluded that federal management was so pervasive
as to preclude the additional burdens resulting from the Arizona
taxes and held that the Arizona taxes were preempted by federal
law. It held that where a State asserts authority over the conduct
of non-Indians engaging in activity on the reservation, a
particularized inquiry must be made into the nature of the state,
federal, and tribal interests at stake, an inquiry designed to
determine whether, in the specific context, the exercise of state
authority would violate federal law. White Mountain, 448 U.S. at
145.
In the case before us, in contrast to White Mountain, neither
the United States nor the tribe are pa e action, The
States cou arty and ar
Tribe couB
Statets involvement woul adversely af
inance, but it did not. Onl the non-Indian
tateps involvement
State jurisdiction
ses charged in the inform
and June 1, 1988. The effective date of the Indian Gaming
ctober 17, 198
such an extensive regulatory act to alleged criminal activities
which occurred prior to its enactment would be improper. It would
violate both state and federal law with re
laws. As previously noted, the United States could have made
itself a party and argued for federal law preemption but chose not
to do so. We do not find it necessary to further discuss the
Indian ~amingRegulatory Act.
With regard to the claimed adverse effect upon the Tribe's
ordinance the recent case of Northern Border Pipeline Co.
v. State of Montana (1989), 237 Mont. 117, 772 P.2d 829, is
applicable. In that case this Court considered the argument on the
part of Northern Border Pipeline Company, that the tax interfered
with tribal self-government. This Court stated:
Sioux ane Assiniboine Tribes.'! . Northern B o r d e r
also cites t w 3 recene state csurt decisicrLs, one front
Arizoza and one fron New Mexico, for the proposition that
consideration of a federal preemption claim necessarily
includes consideration of self-government, thereby
-
affording s t a n d h c j for a n s n - ~ n a _ ; a r , to assert a s e l f -
f '
government elaia, We disa ese hoidinqs, an
decline to apply them. (Citations smittzd.: (E=phasis
added. )
Northern Border Pi~elineCo., 237 Mont. at 128, 772 P.2d at 836.
Based upon White Mountain Apache and Northern Border, we
conclude that the defendants do not have standing to raise the
argument that the action of the State interferes with the self-
government of the Blackfeet ~eservation. We hold that the State of
Montana has authority to regulate gambling by non-Indians on the
reservation.
We hold that the District Court properly had jurisdiction-
we concur: /4
Justices .-
for Justice William E'.Hunt, Sr,
Justice Terry N, Trieweiler concurrin in part an issenting in
ith the m a j o r i t
not offered sufficient evidenc an Indian
as that status pertains to jurisdictional considerations. However,
I disagree with this Court's holding in Siate v Lal?er
. j1930), 242
Mont. 335, 790 P. 2d 983 , that to prove status as an Indian requires
a person to prove both a significant amount of Indian blood and
tribal or federal recognition. That test is antiquated and ignores
the modern reality that many people of Indian descent are not
enrolled tribal members for various reasons and that an inherent
element of tribal sovereignty is to enroll members, regardless of
their degree of Indian ancestry. However, in this case, Juneau has
not proven Indian status by any criteria which has been previously
recognized in case law or by federal statute.
I concur wi at Indian tribes do
not have criminal jurisdiction over non-Indians. However, that
lack of jurisdiction is not based upon the U.S. Supreme Court's
decision in Duro v Reina (l990), 495 U.S. 676, 110 S. Ct. 2053, 109
.
L. Ed. 2d 693. Duru was concerned with tribal authority to
prosecute a nonmember Indian who committed a crime or, tribal land,
Furthermore, regardless of Duro's applicability to this case, it has
en effectively reversed by a subse ent Congressional action
which restored tribal criminal jurisdiction over nonmember Indians
who break the law on tribal land, As ointed out in iCfor.lsseau=c Ulitdd
v.
e r 24, emergenc ion w a s pass
e Indian Civil Rig U . S , C . 5 1301(
and legislative the Supreme Court s
holding in Buro. This islation was later
laced with identical pe legislation on
October 28, 1991.
Indian tribes lack criminal jurisdiction over non-Indians who
commit crimes on tribal land because of the U.S. Supreme Court Is
S. Ct. 1011, 55 L. Ed. 2d 209. In his dissent to that decision,
Justice Marshall stated:
In the absence of affirmative withdrawal by treaty or
statute, I an of the view that Indian tribes enjoy as a
necessary aspect of their retained sovereignty the right
to try and punish all persons who commit offenses against
tribal law within the reservation.
While I agree with Justice Marshall's dissent, and while the
majority opinion in Oliphant appears to be neither historically nor
legally well-founded, it does preclude tribal criminal jurisdiction
over non-Indians for laws broken on the reservation. However, it
does not logically follow that because t r i b e s canno prosecute
non-Indians who commit crimes in Indian country, that the State of
Montana has jurisdiction over non-Indian defendants for crimes
committed s the reservation. That conclusion in Issue I1 of the
y opinion completely ignores the traditional role o
ndian affairs.
hether the ate of Montana
has regulatory authority over any activity commi
rough its criminal statutes or otheLrwise,
is the test set forth by the U.S. Supreme Court in H%iie M ~ ~ ~ i ~ t ~ l i r i
Apache Tribe v. Bracker (1980), 448 U.S. 136, l o o S. ct. 2578, 65
I.
; Ed. 2d 665. In that case, the U . S . Supreme Court held that
where, as in this case, @ a state asserts authority over the conduct
'
of non-Indians engaging in activity on the reservation, there must
[A] particularized inquiry into the nature of the state,
federal, and tribal interests at stake, an inquiry
designed to determine whether, in the specific context,
the exercise of state authority would violate federal
law.
The majority o inion has perfo ed no such analysis. It
relies on its previous decision in Northem Border Pipeline Company v. State
( 1 9 8 9 ) , 2 3 7 Mont. 1 1 7 , 7 7 2 P.2d 8 2 9 , for its refusal to do so. For
reasons I will explain later in this opinion, I decline to follow
this Court % decision in ~ V o ~ h e m
Border elim. However, the majority
(which relies on i\i'i, e m BorderBiQelize) h a s refused to even perform
that degree of analysis which is required by its previous decision.
In I%'orthemBorderPigeline, the dispute was over property taxes assessed
by the State of Montana against that portion of a natural gas
pipeline which traversed an Indian reservation, but which was owned
by a noa-Indian corporation. The portion w
preempted by federal regulation and that its tax interfered with
the Tribes8 sovereign ri hts of self- After an
extensive discussion of federal regulation in this area, the
maj ority concluded ax was nei her preempted by federal
statutes nor regulations, However, it held that since neither the
Tribes nor the federal government were parties to the suit,
plaintiff did not have standing to assert the Tribest sovereign
right of self-government.
I disagree with that conclusion because under the miteMo~lntain
test, an analysis of the state, federal, and tribal interests
involves related considerations which cannot be analyzed
separately. After pointing out in the miteMountain decision that
both federal law an the rights of rese ians to make
their own laws may provide independent, but related barriers to the
assertion of state regulatory authority, the U.S. Supreme Court
stated:
The two barriers are independent because either, standing
alone, can be a sufficient basis for holding state law
inapplicable o activity undertaken on the reservation or
y tribal ers, They are d, however, in two
mportant .
The right of self-government is
ultimately ndent on an road power of
Congress.
FtihireMountain, 4 4 8 U.S. at 143,
ore, I agree with t e reasoning af the Court of A
The state asserts that Pea
ference with tribal
ree, In Ramah Navajo
32, 102 S . (19821, the
United States Supreme Co o determine
state tax m 0 a business
on Indian rese
federal law, federal, tribal, and state interests must be
analyzed - "These interests tend to erect two
'independent but relatedt barriers to the exercise of
state authority over commercial activity on an Indian
reservation: state authority may be pre-empted by federal
law, or it may interfere with the tribe's ability to
exercise its sovereign function^.'^ Id. at 837, 102 S.Ct.
at 3398, 73 L.Ed.2d at 1179; White Mountain Apache Tribe v.
Bracker, 4 4 8 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665
(1980). Because the preemption issue cannot be
considered without also considerins the tribal
sovereisntv issuer,l Peabody, of necessity, must have
standina to raise the issue of interference with tribal
sovereisntv. [Emphasis added.]
Peabody Coal Co,, 761 P.2d at 1098-99, denied (1989), 490 U , S , 1051,
Therefore, I will discuss in this opinion both federal
preemption and the State's interference with the Tribe's ability to
exercise its sovereign function, However, by failing to discuss
either issue, the majority has not even followed its previous
decision in LAl~a!~em I;t"E'pelke ghich it relied on to ign~rethe
Border
issues raised by defendants on appeal.
L PREEMPTION
rnment in the issue of
gambling on Indian reservations is extensive. In 1951, Congress
prohibited the possession of gambling devices in Indian country.
15 U . S , C , 5 1175 (1951)- In 1970, Congress enacted the Organized
prohibits an provides federal unishment for the operation of
illegal gambling businesses. That Act has been previously held
le to India reservations, Un States v. F ~ ~ (9th Cir.
T ;
1980), 624 F . 2 (19811, 449 U - S , 1111, 101 S . Ct.
920, 66 L. Ed. 2d 839.
However, the most comprehensive federal preemption of all is
contained in the Indian Gaming Regulatory Act which was enacted by
Congress and became effective on October 17, 1988, Its provisions
are included in 18 U.S.C. 8 5 1166 to 1168 (l988), and 25 U.S.C.
0 5 2701 to 2721 (1988). For purposes of considering the federal
and Indian interests in this issue, it is especially enlightening
to refer to the Congressional findings which precede the actual
terms of the Act and are set forth at 25 U.S,C. 5 2701 (1988).
There, Congress stated that:
(1) numerous 1ndian tribes have become engaged in
or have licensed gaming activities on Indian lands as a
means of generating tribal governmental revenue;
Federal courts have held that section 81 of
(2)
ires Secre aria1 review of management
contracts dealing with 1ndian gaming, but does not
provide standards for approval of such contracts;
(3) existing Federal law does not provide clear
regulations for the conduct of gaming on
a1 goal of Pe a1 Indian policy is
promote tribal economic development, tribal
self-sufficiency, and strong tribal government; and
on these policy consi ions, Congress has
establishe comprehensive and extensive control ov ling on
Indian reservationsI including legalization of some forms of
gambling, 18 U.S.C. 5 1166(c) (1) (1988); establishment of a
commission to monitor gaming on Indian lands, 25 U.S. 2 , 5 5 2704 and
2706 (1988); delegation of exclusive jurisdiction to the tribes
over some forms of gambling, 25 U.S.C. 5 2710 (1988); authorization
for tribes to enter into negotiations with the various states for
the purpose of reaching an agreement concerning the conduct of
gaming activities on reservations, 25 U. S,C. 5 2710 (d)(3) (A)
(1988j ; authority for tribes to enter into management contracts for
the operation of gaming facilities, 5 U,S,C, 5 2711 (1988); and
provision for the imposition civil ine for violation of
any of the Act's provisions, 25 U.S.C. 5 2713 (1988). Most
importantly, however, may be the provision found at 18 U.S.C.
5 1166 (d) (1988) which provides that:
The United States shall have exclusive jurisdiction over
criminal prosecutions of violations of State ga
laws that are made applicable under this sect
tri rsuant to a
Tribal-Stat the tary of the
Interior under section 1I(d)(8f of the Indian Gaming
Regulatory Act, or under any other provision of ral
law, has consent to the transfer to the S of
on with respect to gambling on the
lands of the Indian tribe.
statute, wh
grounds that the violations that are alleged in this case occurred
prior to the effective date of the Federal. Act. The majority
reasons that to a ply the unequivocal federal preemptions found at
18 U.S.C. 5 1166(d) (19 8) would violate constitutional provisions
which prohibit ex post fact0 laws. However, in making this argument,
the majority completely ignores its previous definition of ex post
facto laws. In Statev.Lei.stiko (Mont. 1992), 844 P.2d 97, 49 St. Rep.
1104, we established a two-part test to determine whether a statute
violates the ban on expost facto laws. In order to satisfy the test,
we held that: "(1) the law must be retrospective, and (2) it must
disadvantage the offender affected by it. Millerv. Florida (1987), 482
U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360-61."
Leistiko, 844 P.2d at 100. We also held that ii [tjo meet the second
prong of the test, the United States Supreme Court has said, "i]t
is axiomatic that for a law to be ex post facto it must be more
onerous than the prior law. [Citation omitted. ] Lekdko, 844 P , 2d
at 100.
lied to the facts in this case, 18 U.S.C. 1166(d)
(1988) is not an expostfacto law because it would not disadvantage
ants- It does not change the substantive law that
pertained to their conduct. It merely specifies which government
has jurisdiction to prosecute them for violations of those State
gaming laws that they are accus of having violated. It is merely
v. fl/ilemaiz (1979), 185 Mont, 299, 315, 605 .2d 1000, 1011, "changes
in procedure not affecting materially the rights of a defendant do
not. come within the constitutional prohibitionn against ex post fact0
laws.
The provision found at 18 U.S.C. 116Q(d) (1988) is clearly
procedural, and became effective on October 17, 1988. The
prosecution of this action was not commenced until November 8,
1988, and if for no other reason, was prohibited by the terms of
this statute. It is clear that without considering the separate
tribal interests, the independent but interrelated federal interest
is sufficient to preclude the exercise of state jurisdiction over
the defendants in this case. The federal government has
specifically recognized by- s federal Indian policy is to
promote tribal economic development and self-sufficiency and that
the best way to do that is to give Indian tribes the exclusive
authority to regulate gaming activity on their reservations, so
long as it is not specifically prohibited by federal law and is
conducted in a state where the activity is not otherwise
ed. 25 U.S.C. 5 2701 (1988). Furthermore, even when
federal or state laws which regulate gambling are violated in
Indian country, the federal government has exclusive jurisdiction
over criminal prosecutions for those violations.
While consi eration of federal. interests and federal
r is,
i by itself, a suffieient ying state
ndants, aE
examination of tribal interests in this matter, and a compa
the State's interest, make t e error of the majority opinion even
clearer.
TRIBAL INTERESTS
First of all, it is clear that the Blackfeet Tribe provided a
comprehensive set of laws regulating gambling on its reservation,
even before federal enactment of the Indian Gaming Regulatory Act.
In 1975, the Blackfeet Tribe of the Blackfeet Resewation enacted
an amendment to Ordinance No. 41 of the Blackfeet Tribal Law and
Order Code of 1967. That amended ordinance permitted gambling on
the Blackfeet Reservation only in accordance with the ordinance,
It established a gaming commission for the purpose of adopting
rules and regulations pertaining to gambling and for the purpose of
issuing licenses to gaming establishments. The ordinance also
provided for criminal penalties for its violation.
In addition to setting up this regulatory system for gaming on
the Blackfeet Reservation, the Tribal Ordinance set forth specific
regulations regarding sports or gambling pools; punch boards, pull
tabs, and similar devices; bingo, raffles, and ens; horse race
betting and pari-mutuel betting; setting the legal age for
gambling; prohibiting gambling for anything other than cash; and
establishing specific procedures for criminal and civil enforcement
of the ordinance. There can be no question that state regulation
under these circumstances would have a strong impact "on the right
of reservation Indians to make their own laws and he ruled by
hemore, the facts in this ease demonstrate that almost
all of the impac of the gaming operation which the defendants were
as upon Indians located on the Blackfeet Reservation.
The Montana Restaura -t; and Casino, here the activit complained of
took place, was owned by three people, Donald Juneau, Bob Juneau,
and Carl Kipp. Both Bob Juneau and earl Kipp were Indians. The
evidence indicated that, on the average, 90 percent of the
customers who gambled on the premises were Indian, Of the 21
employees at the business, 20 were Indian. And before the business
could operate, both a tribal business permit and a license for each
video poker and keno machine had to be issued by the Tribal
Department of Revenue, In other words, the Tribe had an interest
in protecting the businessVscustomers, providing employment on the
reservation, and in generating tribal revenue.
It is clear from all of the foregoing that tribal interests
and the interests of the Tribe in self-government weigh heavily in
favor of prohibiting State jurisdiction over the activities of the
defendants,
STATE INTEREST
The State interest, on the other hand, is very slight, if any
exists at all. The State contends that it
interest in regulatin ate of Montana in
order to protect the welfare of its citizens and avoid the
domination of gaming en ganized crime- It cites
authority fo
of its citi
patterns, the increase in local crime, the fostering of
prostitution, the development of corruption, and the infiltration
crime.i V o ~ ~ dde s
a
U.S. 328, 341, 1 0 6 %. Ct, 2 9 6 2977, 9 2 L. Ed. 2d 266, 280.
The State's expressed concern for the moral well-being of its
citizens would be more persuasive if it was not engaged in the
promotion of gambling activities through its own state lottery (see
Montana State Lottery Act of 1985, Title 23, Chapter 5, Part 10,
renumbered in 1991 as Title 23, Chapter 7, seespecifca@, 5 23-7-102,
MCA), and if local governments were not becoming increasingly
dependent on revenue generated by off-reservation gambling
erprises. (See S 23-5- 09, MCA, Bin o and. Kens; 23-5-306, MCA,
Live Card Game Tables; § 3 23-5-610 and -612, MCA, Video Gambling
Machines.) However, even if the State's concerns could be accepted
at face value, nothing has been accomplished in this case by the
prosecution of these defend he State concedes that it has no
authority to prosecute Indians for activities conducted on Indian
land, and therefore, Dona uneaufs partners who are Indian,
the time of the istrict Court hearing in this case) in the same
fashion that they have always operated it without any interference
from the State, Refusal to allow the State to regulate the
defendantsf ling activities on Indian land will have absolutely
erail regulation s f
the State of Montana.
CONCLUSION
easons, I do not see how any responsible
consideration of the factors we nave been compelled to consider by
the U.S. Supreme Court in U/hitelMountrrin can lead to any conclusion
other than that, when considering state, federal, and tribal
interests in the context of this case, the exercise of State
authority over the defendants for the crimes they have been charged
with would violate federal law and unreasonably interfere with the
tribal interests which are at stake.
Therefore, I conclude that the judgment of the District Court
should be reversed and the charges against the defendants should be
dismissed.
Justice Karla M. Gray concurs in the foregoing concurrence and
dissent.