United States v. Farris

CHOY, Circuit Judge:

Appellants attack their convictions under 18 U.S.C. § 1955 on the ground that their large-scale gambling businesses on Indian trust land did not violate state law, and on other grounds. We affirm.

I. Background: The Law

Enacted as part of the Organized Crime Control Act of 1970, 18 U.S.C. § 1955 reads in pertinent part:

(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
(b) As used in this section—
(1) “illegal gambling business” means a gambling business which—
(i) is a violation of the law of a State or political subdivision in which it is conducted ;
(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

(Emphasis added.)

We held in United States v. Sacco, 491 F.2d 995 (9th Cir. 1974) (en banc), that § 1955 “was aimed at curtailing syndicated gambling, the lifeline of organized crime, which provides billions of dollars each year to oil its diversified machinery.” Id. at 998. “Congress determined that organized crime posed a major threat to American society and that illegal gambling operations provided organized crime with its greatest source of revenue.” Id. at 999.

Judge Browning correctly says that § 1955 was designed to aid the enforcement of state law, especially where state enforcement is disabled by the corruption of state officials, but the statute also serves to further independent federal interests. Congress found that “illegal gambling involves widespread use of, and has an effect upon, interstate commerce and the facilities thereof,” id. at 999; moreover, “[t]he illicit operations were seen to distort the production of goods for commerce and the flow of goods in interstate commerce,” id. at 1000.

Section 1955 is constitutional, even as applied to cases with no connection with interstate commerce or organized crime. Id. at 999-1000. It is not unconstitutionally vague. Id. at 1001-02.

Since Congress has the power to “incorporate by reference” state law, § 1955 does not violate the equal protection component of the due process clause even though it “applies only in states where gambling is illegal.” Id. at 1003.

II. Background: The Facts

On the generally undisputed facts, appellants stand guilty under this section unless the words “violation of the law of a State” exempt them. In 1977 and 1978, appellants operated significantly profitable casinos on Puyallup Indian reservation land within one mile of Tacoma and 25 miles of Seattle. The casinos, without any approval or license *893from the Washington State Gambling Commission, featured blackjack, poker and dice; their large net win was obtained at the expense of a clientele that included many non-Indians and some out-of-staters. Far-ris, Satiacum, Bertha Turnipseed and MacKenzie Turnipseed are Puyallup Indians; Baker, Powell, Lockwood, Painter and Ray Turnipseed are not.1

III. ■ Issues

A. Applicability of § 1955 to Indians

The Puyallup appellants first claim that § 1955 does not apply to them at all. However, federal laws generally applicable throughout the United States apply with equal force to Indians on reservations. For example, even as to Indians on reservations, federal jurisdiction extends “to crimes over which there is federal jurisdiction regardless of whether an Indian is involved, such as assaulting a federal officer.” United States v. Wheeler, 435 U.S. 313, 330 n. 30, 98 S.Ct. 1079, 1090, 55 L.Ed.2d 303 (1978); accord, Walks on Top v. United States, 372 F.2d 422 (9th Cir.) (assaulting a federal officer), cert. denied, 389 U.S. 879, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967); see United States v. Burns, 529 F.2d 114 (9th Cir. 1976) (possession of firearm by a felon); Head v. Hunter, 141 F.2d 449 (10th Cir. 1944) (forgery to defraud the United States).

There seem to be three exceptions to this rule, but appellants fall within none. First, reservation Indians may well have exclusive rights of self-governance in purely intramural matters, unless Congress has removed those rights through legislation explicitly directed at Indians. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106, 113 (1978), citing Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442 (1897) (tribal membership); Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49 (1899) (inheritance rules); and United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196 (1916) (domestic relations). Or, to put it another way, “Indian tribes retain exclusive jurisdiction over essential matters of reservation government, in the absence of specific Congressional limitation.” Arizona ex rel. Merrill v. Turtle, 413 F.2d 683, 684 (9th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494 (1970). But even a general federal law suffices to proscribe the large-scale professional gambling involved here; such gambling is neither profoundly intramural (the casinos’ clientele was largely non-Indian) nor essential to self-government.

Second, it is presumed that Congress does not intend to abrogate rights guaranteed by Indian treaties when it passes general laws, unless it makes specific reference to Indians. Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975); Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); United States v. White, 508 F.2d 453 (8th Cir. 1974). But this rule applies only to subjects specifically covered in treaties, such as hunting rights; usually, general federal laws apply to Indians. E. g., Superintendent v. Commissioner, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517 (1935) (income tax). A different norm would only necessitate a huge quantity of statutory boilerplate.

To bring the special rule into play here, general treaty language such as that devoting land to a tribe’s “exclusive use” is not sufficient (although such language does suffice to oust state jurisdiction); there would have to be specific language permitting gambling or “purporting to exempt Indians from the laws of general applicability throughout the United States regardless of situs of the act.” United States v. Burns, 529 F.2d 114, 117 (9th Cir. 1976). Of course, there is no such specific language in the United States’ treaty with the Puyallups, the Treaty of Medicine Creek, 10 Stat. 1132 (1854).

Finally, if appellants could prove by legislative history or some other means that Congress intended § 1955 not to apply to *894Indians on their reservations, we would give effect to that intent. But no evidence of such Congressional intent exists; indeed, “it defies reason to suppose that Congress intended” such an exemption, see United States v. Montana, 604 F.2d 1162, 1168 (9th Cir. 1979). Puyallup casinos in the Tacoma-Seattle area would flourish as mightily as those in such areas as Las Vegas and Atlantic City. Casinos on Indian land- would defeat or endanger the federal interests of protecting interstate commerce and preventing the takeover of legitimate organizations by organized crime. We think the following passage from United States v. Montana bears repeating:

We must recognize that in this case, as in others in which we are required to fix the rights and powers of Indians in the latter part of the twentieth century in the light of treaties of an earlier century, our task is to keep faith with the Indian while effectively acknowledging that Indians and non-Indians alike are members of one Nation. Both seek power and gain through identical processes, viz. commerce, politics, and litigation. We must, however, live together, a process not enhanced by unbending insistence on supposed legal rights which if found to exist may well yield tainted gains helpful to neither Indians nor non-Indians.

Id. at 1169. We find that Congress did not intend that Indians could freely engage in the large-scale gambling businesses that it forbade to all other citizens.

Therefore, we hold that § 1955 applies to appellants.

B. “Violation of the Law of a State’’

1. Puyallup Appellants

The Puyallup appellants argue that even if § 1955 applies to them, they are not guilty of violating it. The casinos they operated on reservation land were not “[in] violation of the law of a State,” they say, because the Washington state gambling laws do not extend past the reservation boundaries. We hold that appellants’ premise is correct, but that their conclusion does not follow.

a. State Jurisdiction Over Gambling

The originally independent Indian nations, after conquest or acceptance of United States protection, came under federal control and the plenary power of Congress to remove every aspect of sovereignty from them. “But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” United States v. Wheeler, 485 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978).

The treaty with the Puyallups is the Treaty of Medicine Creek, 10 Stat. 1132 (1854). Article II of the Treaty says that reservation land shall be “marked out for their exclusive use.” Comparable language in other Indian treaties has been held to preserve Indian self-government as against state regulation. E. g., Williams v. Lee, 358 U.S. 217, 221-22, 79 S.Ct. 269, 271, 3 L.Ed.2d 251, 254-55 (1959).

Therefore, the traditional rule is that states have no criminal jurisdiction over offenses committed by Indians on Indian trust land. The rationale for this rule, however, has been changing: “[T]he trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption.” McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973); compare Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). The Ninth Circuit takes the modern position. Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 658-59 (9th Cir. 1975), cert. denied, 429 U.S. 1038, 97 S.Ct. 731, 50 L.Ed.2d 748 (1977).

However, in 1953 Congress delegated to the states some of its power to regulate affairs on Indian reservations, by passing the Act of Aug. 15, 1953, Pub.L.No. 83-280, 67 Stat. 588 (“Public Law 280”). Section 2 of “Public Law 280,” codified at 18 U.S.C. § 1162(a), immediately placed enumerated Indian lands under the full criminal juris*895diction of the states they were located in. (This section did not include the Puyallup land.) Section 7 of “Public Law 280” gave the necessary federal consent for states to take full criminal jurisdiction over all other Indian lands, if the state passed legislation to that effect. Under this section, Washington in 1963 enacted Wash.Rev.Code § 37.12.010 and took jurisdiction over its Indians and Indian lands (including the Pu-yallups and their land). However, as to acts both committed by Indians and committed on Indian land, Washington took jurisdiction only over eight specific subject areas — chiefly welfare, family law and motor vehicles — but not gambling. Apart from this statute, the Washington courts do not have jurisdiction over crimes committed by Indians on Indian land, unless the tribe in question has requested the state to assume jurisdiction. See Arquette v. Schneekloth, 56 Wash.2d 178, 351 P.2d 921 (1960). This partial assertion of jurisdiction was recently upheld in Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979).2

On the other hand, § 37.12.010 asserted full criminal jurisdiction in all subject areas over offenses committed on Indian land by non-Indians. This state jurisdiction is “complete.” 439 U.S. at 498, 99 S.Ct. at 760, 58 L.Ed.2d 766. Indeed, it is fitting for a state to take such jurisdiction over non-Indians, for under no circumstances could such offenders be tried in tribal courts anyway. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978).

In sum, Washington may not enforce its gambling laws against the Puyallups on their reservation; however, it may enforce those laws against non-Indians, even on the Puyallup reservation.

b. No Immunity From § 1955

Given that Washington cannot enforce its gambling laws against the Puyallup appellants for their actions on Puyallup trust lands, nonetheless their actions were a “violation of the law of a State” for purposes of § 1955. The reason for that limitation was not to exempt from federal criminal liability those gambling-business operators who might be beyond the reach of a state’s criminal jurisdiction, but rather to exempt from the federal statute the operators of gambling businesses that are not contrary to a state’s public policy on gambling. Congress’ intent was merely that § 1955 not apply indiscriminately to Nevada casino operators, Florida fronton operators, etc. Section 1955 as written “applies only in states where gambling is illegal.” United States v. Sacco, 491 F.2d at 1003.

Washington public policy prohibits the type of gambling business conducted by appellants. See Wash.Rev.Code §§ 9.46.010, 9.46.220. Therefore, for the purposes of the federal statute, their business was a “violation of the law of a State ... in which it is conducted.” The policy underlying § 1955 is that large-scale gambling is dangerous to federal interests wherever it occurs. The limitation of § 1955 to gambling that is a “violation of the law of a State or political subdivision in which it is conducted” does not reflect a Congressional judgment that gambling countenanced by state and local authorities does not harm federal interests; rather, it reflects Congress’ judgment that the harm is outweighed by the interest of federalism that national legislation not trample the desires of particular states, which on the subject of gambling are expressed by the lack of prohibitory laws.

If the appellants’ argument prevailed, the federal interests served by § 1955 would be *896thwarted, without any benefit to the countervailing federalism interest. It might not be long before organized crime invaded the Puyallup reservation. As the appellants ironically take pains to point out, one purpose of § 1955 was to prevent organized-crime infiltration of legitimate organizations. S.Rep.No. 617, 91st Cong., 1st Sess. 80 (1969). The federal law could thus be most appropriately applied here, for the casino operations placed the tribe in danger of mob takeover, whether it realized it or not. Moreover, the other major evil of large-scale gambling — harm to the national economy' — arises regardless of whether a casino is on Indian or non-Indian land, especially when the clientele is not limited to Indians.

In this Circuit, “the immunity of Indian use of trust property from state regulation [is] based on the notion that trust lands are a Federal instrumentality held to effect the Federal policy of Indian advancement.” Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 666 (9th Cir. 1975), cert. denied, 429 U.S. 1038, 97 S.Ct. 731, 50 L.Ed.2d 748 (1977). Under this view, it would be most inappropriate for immunity from state regulation to defeat the federal policies of opposition to large-scale gambling, protection of legitimate organizations from organized-crime infiltration, and promotion of the welfare of Indians. Therefore, we hold that § 1955 extends even to Indians on Indian lands who are immune from state law, and the convictions of Farris, Satiacum, Bertha Turnip-seed and MacKenzie Turnipseed are affirmed.

2. Non-Puyallup Appellants

Since § 1955 extends to Indian country, and the Washington gambling laws extend to non-Puyallups on Puyallup land, there is no doubt that the § 1955 convictions of non-Puyallups Baker, Powell, Lockwood, Painter, and Ray Turnipseed must be affirmed.3

C. Other Arguments

The several other arguments that appellants raise lack merit.

1. Preemption

Appellants assert that 15 U.S.C. § 1175, which specifically makes it “unlawful to possess . . . any gambling device . . . within Indian country,” should be construed to preempt the field of federal regulation of gambling on reservations and make § 1955 inapplicable there. But the phrase “gambling device” in § 1175 is limited in 15 U.S.C. § 1171(a) to slot machines and other gambling machines and mechanical devices, which the casinos here were conspicuously cautious to avoid. Section 1955 covers all kinds of gambling, including the kinds involved in this case. Moreover, the comprehensive § 1955 was passed 19 years after § 1175. Therefore, we hold that § 1175 does not preempt all other federal regulation of gambling on reservations, and the United States was free to proceed, in the exercise of prosecutorial discretion, under § 1955. See Hutcherson v. United States, 345 F.2d 964, 967 (D.C.Cir.), cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965).

Nor are we convinced that § 1955’s harsher penalty proves that Congress meant only § 1175 to apply to Indians. The federal interests challenged by a violation of § 1955 (large-scale gambling subject to mob involvement) are more weighty than those affected by a violation of § 1175 (possession of a gambling machine on an Indian reservation). Moreover, the harm to the federal interests protected by § 1955 of a casino on Puyallup land would be as great as that flowing from a similar casino in San Francisco or Chicago.

2. Exemption from State Law

The Puyallup appellants argue that if the state gambling laws may be enforced *897against them through § 1955, their treaty-based right to be free from the state criminal jurisdiction will be vitiated. But the Puyallups are subject to the plenary criminal jurisdiction of Congress, which can freely adopt state gambling laws expressly or by reference. Especially is this true where Congress acts not merely in aid of state law, but to secure independent federal interests, as it did by enacting § 1955. Moreover, Washington state’s gambling laws would be enforceable by the United States against Puyallups on their reservation even in the absence of § 1955. The enclave laws of the United States are extended to Indian country by 18 U.S.C. § 1152 (but not as to “offenses committed by one Indian against the person or property of another Indian,” id.). One such enclave law is the Assimilative Crimes Act, 18 U.S.C. § 13.4 Therefore, we have held that Washington’s prohibitory (but not regulatory) laws can be enforced by the federal government on the Puyallup reservation. United States v. Marcyes, 557 F.2d 1361, 1364 (9th Cir. 1977); see United States v. Sosseur, 181 F.2d 873 (7th Cir. 1950). Like the Washington law against the possession of dangerous fireworks, considered in Marcyes, the Washington law against professional gambling is prohibitory despite a number of “limited exceptions.” See 557 F.2d at 1364; Wash. Rev.Code § 9.46.220. Also, operating a casino with a non-Indian clientele is not an offense “committed by one Indian against the person or property of another Indian.”

3. Vagueness

Appellants claim that § 1955 is unconstitutionally vague as applied to Indians, relying on the well-recognized rule of construction that statutory ambiguities are to be resolved in favor of Indians. Their argument is that the state gambling regulations are so voluminous and detailed that an intelligent Indian could not understand them. We reject this novel argument that detail creates vagueness. Moreover, these appellants were not tripped up by a detail, but flagrantly violated the core of the state law, albeit they were beyond the state’s jurisdiction.

4. Fundamental Fairness

Appellants also raise a due process (fundamental fairness) point against applying § 1955 to an Indian who in good faith believed that state gambling laws did not reach him on the reservation. But this prosecution is under the federal § 1955, which the Puyallup appellants apparently gave no thought to,-and did violate. Any unfairness that they might feel subjected to here does not rise to the level of a due process/fundamental fairness violation, especially considering that their conduct was not exactly simon-pure.

5. Tribal Regulation

Although the Puyallup Tribe temporarily enacted a Gambling Code after the events involved in this case, no such tribal regulation was in effect at the time appellants’ casinos were operating. Therefore we need not consider what effect such tribal regulation would have.

6. Freedom From Organized-Crime Influence

Some appellants argue that their casino was never polluted by organized crime. This does not, however, prevent conviction under § 1955. United States v. Sacco, 491 F.2d at 1000.

7. Instructions as to Baker

Baker contends that it was error to refuse his proffered instructions that state gambling laws do not apply to Indians on Indian land and that the Government must prove beyond a reasonable doubt that he knew his gambling operation violated state law.

*898Since Baker is not an Indian, the refusal of the first request was harmless, at worst. On the specific intent point, the court instructed that § 1952 requires “specific intent to facilitate an activity which the accused knew to be unlawful under state law.” This captured the gist of Baker’s request and may in any event have been a more favorable instruction than the law entitled him to.

IV. Conclusion

The convictions of all the appellants are AFFIRMED.

. Powell is one-fourth Cherokee. Because only Puyallups are exempt from state regulation on the Puyallup reservation, however, we consider him a non-Indian for the purposes of this case.

. In 1968 Congress passed the Indian Civil Rights Act, retracting from the states some of this power to assert jurisdiction. Previous assertions were honored, but for a future assertion to be effective not only must the state enact legislation, but tribal consent must also be obtained. 25 U.S.C. § 1321(a). The Puyal-lups have never given their consent to any state jurisdiction. Thus Wash.Rev.Code § 37.12.010 would be invalid if it were passed for the first time today, but it is valid law because it was passed in 1963, during the reign of Section 7 of “Public Law 280.”

. Baker was also found guilty of violating 18 U.S.C. § 1952 for his interstate travel in aid of his gambling business. We affirm this conviction for the same reasons we affirm his § 1955 conviction.

. Whoever within [a federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. § 13.