Chicken Ranch Rancheria v. State of California ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHICKEN RANCH RANCHERIA OF ME- No. 21-15751
WUK INDIANS; CHEMEHUEVI INDIAN
TRIBE; BLUE LAKE RANCHERIA; D.C. No.
HOPLAND BAND OF POMO INDIANS; 1:19-cv-00024-
ROBINSON RANCHERIA, AWI-SKO
Plaintiffs-Appellees,
v. OPINION
STATE OF CALIFORNIA; GAVIN
NEWSOM, Governor of California,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted December 9, 2021
San Francisco, California
Filed July 28, 2022
Before: Kim McLane Wardlaw, Daniel A. Bress, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bress;
Concurrence by Judge Wardlaw;
Dissent by Judge Bumatay
2 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
SUMMARY *
Indian Gaming Regulatory Act
The panel affirmed, on different grounds, the district
court’s summary judgment in favor of Chicken Ranch
Rancheria of Mewuk Indians and other tribes in their action
under the Indian Gaming Regulatory Act against the State of
California and Governor Gavin Newsom.
The tribes alleged that California violated IGRA by
failing to act in good faith in the parties’ negotiations for
compacts for the tribes to conduct high-stakes Las Vegas-
style casino gambling, known as Class III gaming. The
district court concluded that California’s demand for tribal
enforcement of state domestic support orders “pulled
negotiations into a field wholly collateral to the operation of
gaming facilities” and thus constituted “per se evidence of
bad faith.” The district court concluded that other disputed
provisions were “somewhat connected” to gaming and thus
not a per se violation of the State’s good-faith duty, but
California nevertheless was required to provide “meaningful
concessions” in exchange for demanding these provisions,
and the State’s failure to do so was a failure to negotiate in
good faith, triggering IGRA’s remedial provisions.
The panel held that through its insistence on family law,
environmental law, and tort provisions, California
substantially exceeded IGRA’s limitation that any Class III
compact provision be directly related to the operation of
gaming activities. The panel further held that when, as here,
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 3
a State seeks to negotiate for compact provisions that fall
well outside IGRA's seven permissible topics of negotiation,
as set forth in an exhaustive list in 25 U.S.C.
§ 2710(d)(3)(C), the State has not acted in good faith.
Agreeing with the Department of the Interior, the panel held
that the final item in the list, a residual provision for “any
other subjects that are directly related to the operation of
gaming activities,” requires a “direct connection” to the
operation of gaming activities. The panel therefore directed
the parties to proceed to IGRA’s remedial framework under
the district court’s continued supervision.
The panel disagreed with the dissent’s conclusion that,
despite negotiating for off-list topics, California still could
show it was negotiating in good faith.
The panel explained that, although the district court
agreed that California had not negotiated in good faith and
that IGRA’s remedial provisions were triggered, it erred in
relying on the “meaningful concessions” framework because
this framework does not apply to requested topics of
negotiation that are well outside the permitted topics in
§ 2710(c)(3)(C), and applies only to demands for taxes, fees,
or other revenue-sharing provisions.
Concurring, Judge Wardlaw wrote that IGRA is
ambiguous on the question whether a State conducts tribal-
state compact negotiations in bad faith when it insists on
negotiating topics beyond the exclusive topics beyond the
exclusive topics set forth in IGRA § 2710(d)(3)(C). She
wrote that Congress did not clearly explain how the
exhaustive list of negotiating topics interacts with the good
faith burden-shifting provisions that apply once a tribe files
an enforcement action; nor did it define “good faith” to
include or exclude the State’s introduction of unauthorized
4 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
topics. Judge Wardlaw agreed with the majority opinion’s
analysis of the text and structure of IGRA, further supported
by IGRA’s stated purpose and its legislative history and the
principal that statutes are to be construed liberally in favor
of Indians, with ambiguous provisions interpreted to their
benefit.
Dissenting, Judge Bumatay agreed that IGRA’s seven
topics of permissible negotiation are exhaustive and that
California exceeded those topics through its family,
environmental, and tort law proposals, but he would hold
that, under the burden-shifting framework of the statutory
text, the State could still show that it was negotiating in good
faith. Judge Bumatay wrote that he would vacate the district
court’s judgment and remand for a proper analysis of
whether California satisfied its good-faith duty.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 5
COUNSEL
Timothy M. Muscat (argued), Deputy Attorney General;
William P. Torngren, Supervising Deputy Attorney General;
Sara J. Drake, Senior Assistant Attorney General; Rob
Bonta, Attorney General; Office of the Attorney General,
Sacramento, California; for Defendants-Appellants.
Lester J. Marston (argued), Rapport and Marston, Ukiah,
California; David B. Dehnert, Dehnert Law PC, Marina Del
Rey, California; for Plaintiffs-Appellees.
George Forman, Jay B. Shapiro, and Margaret C. Rosenfeld,
Forman & Associates, San Rafael, California, for Amici
Curiae Bear River Band of Rohnerville Rancheria, Cahuilla
Band of Indians, Cachil Dehe Band of Wintun Indians of the
Colusa Indian Community, and Soboba Band of Luiseño
Indians.
Kristin L. Martin, McCracken Stemerman & Holsberry LLP,
San Francisco, California, for Amicus Curiae Unite Here
International Union.
Laura E. Hirahara, Associate Counsel, California State
Association of Counties, Sacramento, California, for
Amicus Curiae California State Association of Counties.
6 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
OPINION
BRESS, Circuit Judge:
Under the Indian Gaming Regulatory Act (IGRA),
25 U.S.C. § 2701 et seq., Indian tribes must enter a compact
with the state in order to conduct high-stakes Las Vegas-
style casino gambling, known as Class III gaming. But to
prevent states from using their compact approval authority
to force regulations on tribes that the states would otherwise
be powerless to enact, Congress in IGRA imposed important
safeguards on compact negotiations. IGRA strictly limits
the topics that states may include in tribal-state Class III
compacts to those directly related to the operation of gaming
activities. 25 U.S.C. § 2710(d)(3)(C). States are also
required to negotiate compact agreements in good faith. Id.§ 2710(d)(3)(A). If a state does not negotiate in good faith,
the tribe may sue in federal court and obtain remedies
designed to force the state to the bargaining table and get the
deal done. Id. § 2710(d)(7)(B).
We hold in this case that California failed to act in good
faith in its compact negotiations with the plaintiff Tribes.
The central problem with California’s approach was this: it
for years demanded that the Tribes agree to compact
provisions relating to family law, environmental regulation,
and tort law that were unrelated to the operation of gaming
activities and far outside the bounds of permissible
negotiation under IGRA. Through its negotiating demands,
California effectively sought to use the Class III contracting
process as leverage to impose its general policy objectives
on the Tribes, which a state may not do. California thereby
failed to act in good faith, triggering IGRA’s remedial
provisions.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 7
We affirm the judgment of the court below, although,
importantly, on grounds different than the district court
articulated.
I
The plaintiffs are the Chicken Ranch Rancheria of Me-
Wuk Indians, Blue Lake Rancheria, Chemehuevi Indian
Tribe, Hopland Band of Pomo Indians, and Robinson
Rancheria. The history of the Tribes’ Class III negotiations
with the State of California is extensive, and we recite only
those events pertinent to this appeal. Some of this history is
wrapped up in the history of IGRA itself, but we will limit
ourselves here to the facts giving rise to this case and turn to
IGRA next.
After Congress passed IGRA in 1988, California and
approximately 60 tribes, including the plaintiff Tribes,
entered a 1999 compact that gave Indian tribes in California
the exclusive right to host Class III gaming. See In re Indian
Gaming Related Cases (Coyote Valley II), 331 F.3d 1094,
1104 (9th Cir. 2003). In return, the tribes agreed to accept
various regulations and duties relating to their gaming
activities. Id. at 1104–05. The 1999 compacts were set to
expire on December 31, 2020, but provided for an automatic
extension through June 30, 2022 for those tribes that were in
negotiations to extend or replace their existing compacts,
which includes the plaintiff Tribes. Very recently,
California and the plaintiff Tribes agreed to extend the 1999
compacts until December 31, 2023.
Negotiations over successor compacts to the 1999
compacts have been ongoing for years. In 2014, the plaintiff
Tribes joined various other Indian tribes with existing 1999
compacts to form the Compact Tribes Steering Committee
(CTSC). The first formal negotiation session was held in
8 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
January 2015. Between 2015 and 2019, California and the
CTSC held 39 days of in-person negotiation sessions, in
addition to numerous smaller sessions focused on discrete
issues. Over that time, the State provided at least twelve full
draft compacts to the CTSC, and the CTSC offered
approximately fourteen drafts of its own.
Although the parties reached consensus on some issues,
other aspects of the negotiations were fraught. For example,
California sought a provision that would require the Tribes
to recognize and enforce state spousal and child support
judgments against tribal gaming facility employees.
California also requested that the Tribes agree to extensive
environmental regulations—devoting nearly 30 pages of
detailed draft compact provisions to this topic alone.
California also wanted the Tribes to adopt California tort law
as tribal law that would apply in various situations
disconnected from gaming activities, while insisting the
Tribes waive sovereign immunity for tort claims and
establish tort claims commissions. The Tribes maintained
that these requests were insufficiently related to gaming, and
that the State therefore could not negotiate for them under
IGRA.
Despite these objections, the CTSC operated on a
parallel path and endeavored to negotiate the disputed topics
“in anticipation of the State offering meaningful
concessions” of significant value. But the Tribes came to
believe that California was not offering sufficient additional
consideration. And California refused to accept any
compact that did not include the challenged topics of
negotiation. By the end of 2019, and after nearly five years
of formal negotiations with the State, the plaintiff Tribes had
seen enough. They withdrew from the CTSC and turned
down California’s existing offers. The tribes also tried one
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 9
last time, proposing a “best and final offer.” But California
did not accept it.
In January 2019, the Tribes sued the State, alleging that
California violated IGRA’s duty to negotiate in good faith.
On cross-motions for summary judgment, the district court
agreed with the Tribes. The court concluded that
California’s demand for tribal enforcement of state domestic
support orders “pulled negotiations into a field wholly
collateral to the operation of gaming facilities,” and thus
constituted “per se evidence of bad faith.” The court went
on to explain that many of the other disputed provisions were
“not at the heart of,” or only “at the very edge of relevance”
to, gaming activities. But the district court believed these
other provisions were still “somewhat connected” to gaming
and thus not a per se violation of the State’s good-faith duty.
Nevertheless, because many of the disputed topics still
had tenuous connections to gaming, the district court
interpreted our precedents to require that the State provide
“meaningful concessions” in exchange for demanding these
provisions. It then found that California had failed to offer
such concessions, and that California had thus not negotiated
with the Tribes in good faith. The district court granted
summary judgment for the Tribes and ordered that IGRA’s
remedial process take hold. See 25 U.S.C.
§ 2710(d)(7)(B)(iii)–(vii).
California now appeals the district court’s decision,
which we review de novo. Avery v. First Resolution Mgmt.
Corp., 568 F.3d 1018, 1021 (9th Cir. 2009). We may affirm
on any ground supported by the record. Miranda v. City of
Casa Grande, 15 F.4th 1219, 1224 (9th Cir. 2021).
10 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
II
To understand where California went astray in the
compact negotiations, we begin by recognizing the unique
and limited powers that IGRA gives states over Indian tribes.
“[T]he Constitution grants Congress broad general powers
to legislate in respect to Indian tribes, power that [the
Supreme Court] ha[s] consistently described as ‘plenary and
exclusive.’” United States v. Lara, 541 U.S. 193, 200
(2004). The corollary to this is that states generally lack the
power to regulate tribes: “tribal sovereignty is dependent on,
and subordinate to, only the Federal Government, not the
States.” Washington v. Confederated Tribes of Colville
Indian Rsrv., 447 U.S. 134, 154 (1980). Thus, “State laws
generally are not applicable to tribal Indians on an Indian
reservation except where Congress has expressly provided
that State laws shall apply.” McClanahan v. State Tax
Comm’n of Ariz., 411 U.S. 164, 170–71 (1973) (quotations
omitted); see Ysleta Del Sur Pueblo v. Texas, No. 20-493, —
S. Ct. —, 2022 WL 2135494, at *3 (U.S. June 15, 2022)
(“From time to time, Congress has exercised its authority to
allow state law to apply on tribal lands where it otherwise
would not.”).
In California v. Cabazon Band of Mission Indians, 480
U.S. 202 (1987), the Supreme Court held that California
lacked the federal statutory authority required to regulate
bingo halls on tribal lands. The Court started from the well-
accepted proposition that “state laws may be applied to tribal
Indians on their reservations if Congress has expressly so
provided.” Id. at 207. But it found no federal statutory
authority for California’s attempt to regulate tribal bingo
enterprises. Id. at 212–14.
Congress passed IGRA in response to Cabazon. See
Ysleta Del Sur Pueblo, — S. Ct. —, 2022 WL 2135494,
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 11
at *5; Coyote Valley II, 331 F.3d at 1095–97. In IGRA,
“Congress attempted to strike a delicate balance between the
sovereignty of states and federally recognized Native
American tribes.” Pauma Band of Luiseno Mission Indians
v. California (Pauma I), 813 F.3d 1155, 1160 (9th Cir.
2015). IGRA gave Indian tribes “the exclusive right to
regulate gaming activity on Indian lands if the gaming
activity is not specifically prohibited by Federal law and is
conducted within a State which does not, as a matter of
criminal law and public policy, prohibit such gaming.”
25 U.S.C. § 2701(5). IGRA thus created “a statutory basis
for the operation of gaming by Indian tribes as a means of
promoting tribal economic development, self-sufficiency,
and strong tribal governments.” Id. § 2702(1). IGRA also
created a statutory basis for regulating these gaming
activities. Id. § 2702(2). The stated objectives of this
regulation, however, were generally focused on the integrity
of the gaming enterprise itself: “to shield it from organized
crime and other corrupting influences, to ensure that the
Indian tribe is the primary beneficiary of the gaming
operation, and to assure that gaming is conducted fairly and
honestly by both the operator and players.” Id.
IGRA divides gaming activity into three classes, with
each class subject to different degrees of federal and state
regulation. See 25 U.S.C. § 2710(d)(1)(C). The most
significant aspect of IGRA concerns Class III gaming, “the
types of high-stakes games usually associated with Nevada-
style gambling.” Coyote Valley II, 331 F.3d at 1097.
Examples of Class III gaming include blackjack, baccarat,
slot machines, and parimutuel horse-wagering. Artichoke
Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 715 (9th
Cir. 2003); see 25 U.S.C. § 2703(7)–(8).
12 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
We have described IGRA as “an example of cooperative
federalism in that it seeks to balance the competing
sovereign interests of the federal government, state
governments, and Indian tribes, by giving each a role in the
regulatory scheme.” Pauma I, 813 F.3d at 1160 (quotations
omitted). That is principally because Class III gaming is
permitted on Indian lands only if, inter alia, a tribe and the
state enter a tribal-state compact that the Secretary of the
Interior then approves. Coyote Valley II, 331 F.3d at 1097;
see also 25 U.S.C. § 2710(d)(1), (3)(B). A tribal-state
compact “prescribes rules for operating gaming, allocates
law enforcement authority between the tribe and State, and
provides remedies for breach of the agreement’s terms.”
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 785
(2014).
Although IGRA is an example of cooperative federalism,
Congress was clear-eyed that state involvement could turn
decidedly uncooperative. Class III gaming is not only “a
source of substantial revenue” for tribes, but the lifeblood on
“which many tribes ha[ve] come to rely.” Coyote Valley II,
331 F.3d at 1097, 1099–1100. The risks inherent in the state
compact approval requirement are therefore obvious: Indian
tribes, who rely on gaming for economic revenue, are at the
potential mercy of the states, which could withhold approval
of Class III gaming rights or insist upon onerous compact
conditions that would give states greater power to regulate
tribes.
Congress was well aware of the danger that states could
use their compacting approval powers to encroach on tribal
sovereignty. Thus, “Congress enacted IGRA to provide a
legal framework within which tribes could engage in
gaming—an enterprise that holds out the hope of providing
tribes with the economic prosperity that has so long eluded
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 13
their grasp—while setting boundaries to restrain aggression
by powerful states.” Rincon Band of Luiseno Mission
Indians v. Schwarzenegger, 602 F.3d 1019, 1027 (9th Cir.
2010).
IGRA imposes those boundaries in two critical ways.
First, “[b]ecause the compact requirement skews the balance
of power over gaming rights in favor of states by making
tribes dependent on state cooperation,” id., states have an
obligation to engage in compact negotiations in good faith.
25 U.S.C. § 2710(d)(3)(A). That obligation has teeth
because a tribe may sue in federal court for a state’s violation
of its good-faith duty. Id. § 2710(d)(7)(A)(i). 1
In such an action, the plaintiff tribe must first, “upon the
introduction of evidence,” demonstrate that the state has not
negotiated in good faith. Id. § 2710(d)(7)(B)(ii). Following
that initial showing, “the burden of proof shall be upon the
State to prove that the State has negotiated with the Indian
tribe in good faith.” Id.; see also Pauma Band of Luiseno
Mission Indians v. California (Pauma II), 973 F.3d 953, 958
(9th Cir. 2020) (describing the burden-shifting framework).
If a court finds that a state has failed to act in good faith,
this triggers IGRA’s remedial provisions. In that event, the
district court “shall order the State and Indian Tribe to
conclude such a compact within a 60-day period.” 25 U.S.C.
§ 2710(d)(7)(B)(iii). If that process fails to yield an
agreement, the court is required to appoint a mediator to
1
In Seminole Tribe v. Florida, 517 U.S. 44, 54–55 (1996), the
Supreme Court held that the Eleventh Amendment prohibited tribes from
suing states under IGRA absent a state consenting to suit. California has
expressly consented to federal suits brought by California tribes under
IGRA. See Cal. Gov. Code § 98005; see also Coyote Valley II, 331 F.3d
at 1101 & n.9.
14 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
select a proposed compact that “best comports” with IGRA.
Id. § 2710(d)(7)(B)(iv). The state then has 60 days to accept
the mediator’s proposal. See id. § 2710(d)(7)(B)(vi). If the
state still refuses, the Secretary of the Interior shall
promulgate procedures under which the tribe may conduct
Class III gaming, consistent with the mediator’s proposed
compact and IGRA’s terms. See id. § 2710(d)(7)(B)(vii).
Second, IGRA polices state overreach by circumscribing
the permissible topics of negotiation, setting forth seven
allowed areas in which tribes and states may reach
agreement. Specifically, IGRA provides that a tribal-state
compact “may include provisions relating to—”:
(i) the application of the criminal and civil
laws and regulations of the Indian tribe or the
State that are directly related to, and
necessary for, the licensing and regulation of
such activity;
(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such
laws and regulations;
(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;
(iv) taxation by the Indian tribe of such
activity in amounts comparable to amounts
assessed by the State for comparable
activities;
(v) remedies for breach of contract;
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 15
(vi) standards for the operation of such
activity and maintenance of the gaming
facility, including licensing; and
(vii) any other subjects that are directly
related to the operation of gaming activities.
25 U.S.C. § 2710(d)(3)(C).
In addition, another provision of IGRA emphasizes that
states generally lack the authority to tax Indian tribes.
Specifically, except for any agreed-upon assessments under
§ 2710(d)(3)(C)(iii), “nothing in this section shall be
interpreted as conferring upon a State or any of its political
subdivisions authority to impose any tax, fee, charge, or
other assessment upon an Indian tribe or upon any other
person or entity authorized by an Indian tribe to engage in a
class III activity.” Id. § 2710(d)(4).
If a tribe files suit alleging that a state has failed to
negotiate in good faith, IGRA provides that the court “may
take into account the public interest, public safety,
criminality, financial integrity, and adverse economic
impacts on existing gaming activities.” Id.
§ 2710(d)(7)(B)(iii)(I). But it “shall consider any demand
by the State for direct taxation of the Indian tribe or of any
Indian lands as evidence that the State has not negotiated in
good faith.” Id. § 2710(d)(7)(B)(iii)(II).
III
This statutory background sets the stage for the principal
questions in this case, which are (1) did California exceed
the permissible topics of negotiation under IGRA, and (2) if
so, what is the consequence of this? We hold that through
its insistence on family law, environmental law, and tort law
16 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
provisions, California substantially exceeded IGRA’s
limitation that any Class III compact provision be directly
related to the operation of gaming activities. We further hold
that when, as here, a state seeks to negotiate for compact
provisions that fall well outside IGRA’s permissible topics
of negotiation, the state has not acted in good faith.
A
California crossed the line in negotiating far outside
IGRA’s permitted list of compact negotiation topics. We
can begin to see why by examining the statute’s list of
allowed topics, which, as we will explain, sets forth the only
permitted topics of negotiation.
We quoted the list of IGRA’s seven permitted topics in
full above, but as a reminder, it may be found at 25 U.S.C.
§ 2710(d)(3)(C). That provision states that a Class III
gaming compact “may include provisions relating to” the
seven identified topics, which culminate in the catch-all
topic of “any other subjects that are directly related to the
operation of gaming activities.” Id. § 2710(d)(3)(C)(vii).
This list, we hold, is exhaustive. In fact, we have
effectively already so held. In Rincon Band, we said that
“[t]he language and structure of § 2710(d)(3)(C) suggests it
is exhaustive,” and then squarely held that “IGRA limits
permissible subjects of negotiation in order to ensure that
tribal-state compacts cover only those topics that are related
to gaming and are consistent with IGRA’s stated purposes.”
602 F.3d at 1028–29 & n.9 (emphasis added). IGRA, we
made clear, “does not permit the State and the tribe to
negotiate over any subjects they desire; rather, IGRA
anticipates a very specific exchange of rights and
obligations.” Id. at 1039; see also Seminole Tribe, 517 U.S.
at 49 (citing § 2710(d)(3)(C) as setting “the permissible
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 17
scope of a Tribal-State compact”); Navajo Nation v. Dalley,
896 F.3d 1196, 1205 n.4 (10th Cir. 2018) (explaining that
“the negotiated terms of the Compact cannot exceed what is
authorized by IGRA” (quotations omitted)).
Although our past precedents did not engage in detail
with IGRA’s text, the plain language of § 2710(d)(3)(C)
confirms that its list of seven topics is exhaustive. That
section sets out a list of six permitted specific topics and ends
with the catch-all “any other subjects that are directly related
to the operation of gaming activities.” We could no doubt
bring many Latin canons to bear on § 2710(d)(3)(C), but we
think it easy enough to say the obvious: that the natural
inference from this enumerated list is that it is exclusive.
Why else devote such attention to drafting a careful itemized
list only to have it impose no limits? Indeed, if the list were
not exhaustive there would be little point in including the
catch-all provision.
It is true, of course, that § 2710(d)(3)(C) prefaces its list
by stating that a tribal-state compact “may include provisions
relating to” the seven identified topics. But the word “may”
is not necessarily a fully permissive term—it does not
always mean one “may” do anything, or that everything
following the “may” is merely by way of suggestion.
Depending on the context, “may” can be limiting, meaning
“may only.” See, e.g., Cooper Indus., Inc. v. Aviall Servs.,
Inc., 543 U.S. 157, 166 (2004) (explaining that “the natural
meaning of ‘may’ in the context of [an] enabling clause is
that it authorizes certain . . . actions—ones that satisfy the
subsequent specified condition—and no others”); Cortez
Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193,
198 (2000) (explaining that “the mere use of ‘may’ is not
necessarily conclusive of congressional intent to provide for
a permissive or discretionary authority”); Citizens & S. Nat’l
18 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
Bank v. Bougas, 434 U.S. 35, 38 (1977) (noting it was
“settled” that the word “may” in a venue provision meant
“may . . . only”); Marathon Oil Co. v. United States,
374 F.3d 1123, 1138 (Fed. Cir. 2004) (“[T]he word ‘may’ in
some contexts is not permissive but indeed is interpreted as
restrictive in nature.”).
In the context of § 2710(d)(3)(C)’s list of six specific
topics followed by a catch-all seventh, it is more natural to
read “may” in its restrictive sense, as “may only.” As we
explained in Rincon Band, “[a]lthough ‘may’ indicates
permissiveness . . . , to grant permission is not necessarily
to grant carte blanche. What is ‘permitted’ is limited.”
602 F.3d at 1028 n.9. Thus, a tribal-state compact may
include provisions relating to the seven identified topics
(though it is not necessarily required to), but it may not
include provisions that do not relate to the topics listed.
That interpretation makes a great deal of sense when one
steps back and appreciates the critical role of
§ 2710(d)(3)(C) in IGRA’s overall structure and design.
Congress “limit[ed] the proper topics for compact
negotiations to those that bear a direct relationship to the
operation of gaming activities.” Coyote Valley II, 331 F.3d
at 1111. The reason this was so essential, we have explained,
is because “Congress intended to prevent compacts from
being used as subterfuge for imposing State jurisdiction on
tribes concerning issues unrelated to gaming.” Id.; see also
Rincon Band, 602 F.3d at 1028 n.9. If the list of seven topics
in § 2710(d)(3)(C) were not exhaustive, states could try to
impose on the tribes a potentially infinite range of provisions
reflecting general state policy objectives, even ones that
strike deep at the heart of tribal sovereignty. That would be
directly contrary to the background principle that—for the
operation of gaming activities only—IGRA creates a limited
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 19
exception to states’ general lack of power to regulate Indian
tribes on Indian lands. See Confederated Tribes of Colville,
447 U.S. at 154; McClanahan, 411 U.S. at 170–71; Coyote
Valley II, 331 F.3d at 1095–96.
B
With the exhaustive nature of § 2710(d)(3)(C)
established, we can begin to focus more intently on the three
most heavily disputed parts of the parties’ compact
negotiations: those relating to family, environmental, and
tort law. These items do not fit with any of the first six listed
topics in § 2710(d)(3)(C), and California does not attempt to
argue otherwise. So if these topics are permissible subjects
of compact negotiation, they must fit within the residual
provision of “any other subjects that are directly related to
the operation of gaming activities.” 25 U.S.C.
§ 2710(d)(3)(C)(vii). Some parsing of this phrase is
therefore required.
Contrary to California’s apparent suggestion, the phrase
“directly related to the operation of gaming activities”
imposes meaningful limits on compact negotiations. The
word “directly” is significant. “Directly” connotes a more
linear connection between the subject that is to be negotiated
and the “operation of gaming activities.” “Directly” means
“[i]n a straightforward manner” or “[i]n a straight line or
course.” Black’s Law Dictionary (11th ed. 2019). In some
sense, everything is “related” to everything else; the word
“directly” ensures that we cannot give § 2710(d)(3)(C)’s
catch-all that sort of expansive interpretation. Thus, topics
of negotiation that have attenuated relationships to the
operation of gaming activities, or merely tangential,
incidental, or collateral relationships, are not permitted.
Chemehuevi Indian Tribe v. Newsom, 919 F.3d 1148, 1153
(9th Cir. 2019) (“[T]he proper inquiry is whether a
20 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
compact’s [topic] is so attenuated from gameplay that it falls
outside of paragraph 3(C)(vii).”).
The broader structure of § 2710(d)(3)(C) confirms the
focused nature of the phrase “directly related to” in
§ 2710(d)(3)(C)(vii). As a residual clause,
§ 2710(d)(3)(C)(vii) takes its meaning from, and is limited
by, the rest of § 2710(d)(3)(C). See, e.g., Yates v. United
States, 574 U.S. 528, 545 (2015); Washington State Dept. of
Soc. and Health Servs. v. Guardianship Estate of Keffeler,
537 U.S. 371, 384 (2003). It is of course true that as a
residual clause, § 2710(d)(3)(C)(vii) is inevitably “broader
than the more specific topics enumerated in [the]
paragraphs” that precede it. Chemehuevi Indian Tribe,
919 F.3d at 1152. But its scope can only be understood in
the context of § 2710(d)(3)(C) as a whole.
The residual clause allows states and tribes to agree on
any “other subjects that are directly related to the operation
of gaming activities,” confirming that the preceding six
topics are themselves “directly related to the operation of
gaming activities.” And indeed they are: they pertain to the
licensing and regulation of gaming activities and the
enforcement of the same, id. § 2710(d)(3)(C)(i)–(ii); state
assessment and tribe taxation of gaming activities, id.
§ 2710(d)(3)(C)(iii)–(iv); remedies for breach of contract,
id. § 2710(d)(3)(C)(v); and standards for the operation of
gaming activities and facilities, id. § 2710(d)(3)(C)(vi).
Section 2710(d)(3)’s overall focus on the actual “operation
of gaming activities” is apparent. In interpreting the residual
clause, we must thus take heed of the provisions that precede
it, which contribute to its substantive content.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 21
We therefore agree with the Department of Interior that:
In the context of applying the “catch-all”
category, we do not simply ask “but for the
existence of the Tribe’s class III gaming
operation, would the particular subject
regulated under a compact provision exist?”
If this question were used to provide the
standard for determining whether a particular
object of regulation was “directly related to
the operation of gaming activities,” it would
permit states to use tribal-state compacts as a
means to regulate tribal activities far beyond
that which Congress intended when it
originally enacted IGRA.
We do not have occasion to decide whether this agency
interpretation requires any deference; we simply find it
persuasive in its alignment with our own independent
conclusion. What is required, as the Department of Interior
has correctly recognized, is a “direct connection” to the
operation of gaming activities.
That is consistent with our analysis in Rincon Band
concerning a proposed general revenue sharing provision.
There, we rejected as “circular” California’s argument that
general revenue sharing was “directly related to the
operation of gaming activities” simply because “the money
[wa]s paid out of income from gaming activities.” 602 F.3d
at 1032. As we explained, “[w]hether revenue sharing is an
authorized negotiation topic under § 2710(d)(3)(C)(vii) . . .
depends on the use to which the revenue will be put, not on
the mere fact that the revenue derives from gaming
22 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
activities.” Id. at 1033. That was, in essence, a rejection of
a pure “but for” test. 2
The phrase “directly related” is also not the only limiting
feature of § 2710(d)(3)(C)(vii). The referent phrase—“the
operation of gaming activities”—is further limiting. It
cannot mean “anything that takes place on tribal lands.” Nor
can it mean “anything relating to a casino property.” The
phrase “‘[d]irectly related to the operation of gaming
activity’ is narrower than ‘directly related to the operation of
the Casino.’” Flandreau Santee Sioux Tribe v. Noem,
938 F.3d 928, 935 (8th Cir. 2019). We can see this in,
among other sources, IGRA’s own declaration of policy,
which states that a purpose of IGRA is to
provide a statutory basis for the regulation of
gaming by an Indian tribe adequate to shield
it from organized crime and other corrupting
influences, to ensure that the Indian tribe is
the primary beneficiary of the gaming
operation, and to assure that gaming is
2
Rincon Band’s analysis on this point was consistent with Coyote
Valley II’s treatment of a labor relations provision that required the tribe
independently to reach an agreement with labor unions “addressing only
organizational and representational rights.” 331 F.3d at 1116. There, we
reasoned that this provision was “directly related to the operation of
gaming activities” because (1) “[w]ithout the ‘operation of gaming
activities,’ the jobs this provision covers would not exist,” and
(2) “Indian gaming activities” could not “operate without someone
performing these jobs.” Id. (quotations omitted). In other words,
because labor at the casinos was necessary to gaming activities and
inseparable from gaming itself, the regulation of that indispensable
element of a casino’s gaming operation was “directly related to the
operation of gaming activities.” 25 U.S.C. § 2710(d)(3)(C)(vii). It was
not sufficient that “the jobs this provision covers would not exist” but for
the operation of gaming activities. Coyote Valley II, 331 F.3d at 1116.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 23
conducted fairly and honestly by both the
operator and players.
25 U.S.C. § 2702(2). These objectives “for the regulation of
gaming” are tied to the operations of the gaming activities
themselves, not to anything that may happen on tribal lands
simply because the tribe has endeavored to build a casino
there.
C
We now turn to the disputed compact provisions and
analyze whether they fall within the catch-all. This inquiry
is an objective one that is not based on the state’s subjective
belief that it was acting reasonably. Rincon Band, 602 F.3d
at 1041. We have little difficulty concluding that the
disputed topics well exceed IGRA’s bounds. While there
may be close cases in which states slightly overstep the
“directly related” to the operation of gaming activities line,
this is not one of them.
Family Law Provisions. California demanded that the
tribes enact ordinances granting their tribal courts
jurisdiction over state spousal and child support orders for
gaming facility employees. Under this proposal, state tribal
courts or tribal hearing officers would be required to
recognize and enforce these family law orders. When the
gaming facility was presented with such an order, it would
then be required to withhold required amounts from an
employee’s paycheck and remit them to the party in whose
favor the judgment was entered.
Environmental Law Provisions. California insisted upon
nearly 30 pages of highly detailed environmental law
provisions. These provisions are sprawling, but some
highlights will show the breadth of California’s ask:
24 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
• Tribes would be required to adopt an
ordinance incorporating as tribal law
significant aspects of California’s
Environmental Quality Act (CEQA) and
the National Environmental Policy Act
(NEPA).
• Tribes could not commence any
construction on any “Project” until the
required environmental processes and
associated disputed resolution procedures
were completed. The term “Project” was
defined expansively to include
“construction of a new Gaming Facility,”
the “renovation, expansion or
modification of an existing Gaming
Facility,” or any “other activity involving
a physical change to the reservation
environment, provided the principal
purpose of which is directly related to the
activities of the Gaming Operation, and
any one of which may cause a Significant
Effect on the Off-Reservation
Environment.” “Gaming Facility” was
itself defined broadly to “include parking
lots, walkways, rooms, buildings, and
areas that provide amenities to Gaming
Activity patrons, if and only if, the
principal purpose of which is to service
the activities of the Gaming Operation.”
• Absent an exemption—exemptions are
themselves a whole further set of
provisions—the tribes would be required
for any qualifying “Project” to prepare
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 25
“Tribal Environmental Impact
Documents” or “Tribal Environmental
Impact Reports,” whose requirements
varied and depended upon the size of the
gaming operation. The Tribal
Environmental Impact Documents, for
example, would address the impacts of a
Project on “(i) air quality; (ii) water
resources; (iii) traffic; (iv) public
services; (v) hazardous materials; and
(vi) noise.”
• Tribes would consent to elaborate
reporting requirements, as well as dispute
resolution mechanisms for any disputes
that arose between the tribes and State
and local governments.
• Tribes would commit to entering
intergovernmental agreements with local
governments before commencing any
Project. These agreements would include
provisions for environmental mitigation
and mitigation of traffic impacts, among
other things. Tribes were further required
to agree to binding arbitration with local
governments concerning
intergovernmental agreements.
Tort Law Provisions. California insisted that the tribes
broadly adopt California tort law as part of tribal law. Tribes
would be required to follow California tort law for
all claims of bodily injury, personal injury, or
property damage directly arising out of,
26 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
connected with, or relating to the operation of
the Gaming Operation, Gaming Facility, or
the Gaming Activities, including but not
limited to injuries resulting from entry onto
the Tribe’s land for purposes of patronizing
the Gaming Facility or providing goods or
services to the Gaming Facility, provided that
such injury occurs at the Gaming Facility or
on a road accessing the Facility exclusively.
Tribes would also be required to waive their sovereign
immunity for tort claims in tribal court and, if the tribe lacks
a tribal court system, to create a tribal claims commission to
resolve covered claims. California further demanded that
tribes agree to employ in tribal courts and claims
commissions discovery procedures analogous to those found
in the California Code of Civil Procedure. Tribes could
require exhaustion of a tribe’s administrative remedies, but
the tribes were required to agree to procedures associated
with those remedies.
We hold that through these various provisions,
California overstepped its proper role under IGRA. Whether
considered separately or as a collective whole, these family,
environmental, and tort law provisions are not “directly
related to the operation of gaming activities.” 25 U.S.C.
§ 2710(d)(3)(C)(vii). Indeed, these disputed provisions have
minimal connection to the operation of gaming activities,
much less the required “direct” relationship. While the
disputed provisions may all reflect worthy policy objectives,
that does not allow California to insist upon them in the
course of negotiating a Class III gaming compact.
It takes very little to see why California has far exceeded
IGRA. Child and spousal support orders have no direct
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 27
relationship whatsoever to the operation of gaming
activities. The environmental provisions would impose
extensive environmental review and reporting obligations on
tribes for a broadly defined set of “Projects” that includes
any physical change “the purpose of which is directly related
to the activities of the Gaming Operation.” That standard is
not found in IGRA, and by California’s requested language
it would include parking lots and walkways, among various
other locations that are at best adjacent to gaming areas. And
then there are the intergovernmental agreements that give
state and local government agencies an apparent veto (or at
least significant control) over tribal projects. All of this is
far afield of the actual operation of gaming activities and the
mitigation of organized crime and unfair gaming practices
that were at the heart of IGRA’s limited extension of
regulatory authority to the states. 25 U.S.C. §§ 2702(2),
2710(d)(3)(C)(vii).
The disputed tort provisions encounter analogous
problems. They would similarly require tribes to commit to
adopting and applying an entire body of state law as tribal
law, waive sovereign immunity, and create claims
commissions for injuries that are merely “connected with”
or “relating to” a casino gaming facility, including injuries
sustained while entering the facility. It is not hard to imagine
the degree to which these provisions would sweep in claims
that have no direct connection to the actual operation of
gaming activities.
And all the disputed provisions, we hasten to add, strike
at core aspects of tribal sovereignty concerning the tribes’
governance over their land and people and their decisions
about how to structure entire areas of tribal law. This cannot
be what Congress had in mind when it enacted statutory text
that gave states modest authority to regulate tribal gaming
28 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
operations through “a very specific exchange of rights and
obligations.” Rincon Band, 602 F.3d at 1039.
Much of California’s defense of the disputed provisions
boils down to the same argument: without Indian gaming
activities, there would be no wages of employees that could
be garnished for spousal and child support orders, no
construction projects that would need to be built to support
gaming, and no relevant personal injuries that would have
occurred on tribal lands. But this is just a reprise of the same
“circular” argument we rejected in Rincon. 602 F.3d at
1033. The catch-all language in § 2710(d)(3)(C)(vii)
requires an affirmative showing that the state is seeking to
negotiate over a subject that has a direct relationship to the
operation of gaming activities. That showing is not made
simply because gaming activities through some chain of
causation produced a situation or event that the state now
believes it imperative to regulate. The logic of California’s
argument is essentially limitless, and it would enable states
to force tribes to agree to all manner of state regulations,
contrary to IGRA’s text, structure, and objectives. See
Rincon Band, 602 F.3d at 1028–29 & n.9; Coyote Valley II,
331 F.3d at 1111.
Finally, we note that our conclusion that California
exceeded the limits of permissible negotiation under
§ 2710(d)(3)(C) is consistent with the Department of
Interior’s recent guidance. As noted above, the Department
of Interior is responsible for approving or rejecting proposed
tribal-state compacts. See 25 U.S.C. § 2710(d)(8). The
Tribes have provided us with recent letters from the
Assistant Secretary of Indian Affairs in the Office of the
Secretary of Interior, issued while this case was on appeal,
in which Interior rejected proposed California compacts
containing provisions essentially identical to those here. In
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 29
fact, the Assistant Secretary refused to approve those
compacts even though there the Tribes had assented to
them. 3
In these letters, Interior rejected the proposed compacts
“as a violation of IGRA because [they] contain[] terms that
are outside of the narrow scope of IGRA approved topics and
are not ‘directly related to the operation of [Class III] gaming
activities.’” Indeed, the letters explained, “we have found
certain provisions blatantly in violation of IGRA,” and many
of them “seek to impose state control where it does not
belong.”
Evaluating a similar compact provision regarding child
and spousal support orders, the Department concluded that
it “violates IGRA because it falls outside the permissible
scope of subjects that may be included in a compact.”
Analyzing similar environmental and intergovernmental
agreement provisions to those here, the Department
concluded that they “fall outside the narrow range of topics
IGRA permits” and thus “must be disapproved.” Indeed, the
Department went on, “requiring a Tribe to adopt state law or
its equivalent and permitting for the State to review and
object to the Tribe’s environmental review is effectively one
step removed from the direct application of State law on the
Tribe’s reservation.” And reviewing a tort provision similar
to the one here, the Department was again “highly concerned
with the State requiring [a] Tribe to adopt a tort claim
3
The letters are similar, but the more comprehensive letter can be
located at https://www.bia.gov/sites/default/files/dup/assets/as-ia/oig/ga
ming_decisions/508%20Compliant%202021.11.23%20Letter%20to%2
0Governor%20-%20Santa%20Rosa%20Compact%20FINAL%20ASIA
.pdf.
30 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
ordinance that could be interpreted to apply to more than just
activity directly related to gaming.”
We do not cite the Department of Interior’s letters as
authoritative, and we acknowledge California’s submission
indicating that it is seeking reconsideration of the decisions
rejecting the compacts at issue. But we find the reasoning in
the Department’s letters persuasive, and it coincides with our
own. 4
IV
A
Having concluded that California substantially exceeded
IGRA’s permissible topics of negotiation, we turn to the next
question: can a state negotiate well outside the enumerated
topics while simultaneously acting in good faith? IGRA
does not supply a direct answer to this question. But its text,
structure, and our precedents confirm that the much better
answer is “no.” When a state, as here, seeks to negotiate for
compact provisions that fall well outside IGRA’s
permissible topics of negotiation, the state does not act in
good faith.
4
The tribes argue that other topics California sought to negotiate,
namely certain labor provisions and a provision establishing a “Tribal
Nation Grant Fund” (TNGF), are also outside IGRA’s scope. California
responds that our decision in Coyote Valley II confirms that these
provisions are allowable. See 331 F.3d at 1110–13 (upholding
provisions concerning a Revenue Sharing Trust Fund and Special
Distribution Fund); id. at 1116 (upholding certain labor provisions). We
need not examine the labor and TNGF provisions in greater detail
because the provisions identified above related to family, environmental,
and tort fall well outside what § 2710(d)(3)(C) permits. And this is
sufficient to show that the state violated its good-faith duty.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 31
We reach this conclusion by returning to the core textual
and structural features of the statute—and the core principles
underlying IGRA—that we set forth above. The defining
feature of IGRA, as the statutory text demonstrates, is that it
sharply limits the permissible topics of negotiation to
prevent states from misusing their compact approval powers
to unduly infringe on tribal sovereignty. 25 U.S.C.
§ 2710(d)(3)(C); Rincon Band, 602 F.3d 1027–29 & n.9;
Coyote Valley II, 331 F.3d at 1111. The exhaustive nature
of IGRA’s enumerated list of permissible topics of
negotiation means nothing if states can ultimately go beyond
that list.
Accordingly, when a state has demanded that a tribe
negotiate on topics well outside IGRA’s scope, it follows
that the state has not negotiated in good faith, end of story.
“IGRA limits permissible subjects of negotiation in order to
ensure that tribal-state compacts cover only those topics that
are related to gaming.” Rincon Band, 602 F.3d at 1028–29
(emphasis added). For that statement to be true—and it
assuredly is based on IGRA’s text—a state that far exceeds
the permissible topics of negotiation cannot be acting in
good faith. Any contrary conclusion would mean that the
seven permitted topics of negotiation are not exhaustive after
all, contrary to the statutory text, our precedents, and IGRA’s
core objectives. 5
5
It is sufficient to resolve this case to conclude that California did
not act in good faith because it sought to negotiate for topics well outside
of IGRA’s permitted list. But contrary to the dissent’s
mischaracterization, we have neither set this as a threshold requirement
nor somehow “create[d] a new atextual test for complying with
§ 2710(d)(3)(C).” Dissent at 76. We have merely described what
California did here. We have no occasion to consider whether a state’s
32 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
B
Our fine dissenting colleague parts ways with us at this
step of the analysis. After agreeing that IGRA’s seven topics
of permissible negotiation are exhaustive and that California
exceeded those topics through its family, environmental, and
tort law proposals, the dissent concludes that California can
still show it was negotiating in good faith. According to the
dissent, California can “establish its good faith despite
negotiating for off-list topics.” Dissent at 66.
In the dissent’s view, “IGRA’s good-faith analysis
works like this”:
(1) If a tribe fails to show that a State
negotiated for topics outside of
§ 2710(d)(3)(C), absent more, it has
failed to meet its initial showing of bad
faith and the inquiry ends.
(2) But if a tribe shows that a State negotiated
on a topic outside the list, it has satisfied
its initial burden of proving bad faith; and
(3) The burden then shifts to the State to
show its good faith under the
§ 2710(d)(7)(B)(iii)(I) factors.
slight or negligible overstep of § 2710(d)(3)(C)’s boundaries should be
treated analogously. But regardless, the dissent’s suggestion that years
of compact negotiations could wind up in litigation if the state proposes
“any topic or proposal minimally outside the list,” Dissent at 77, is a
scenario that is highly unlikely to ever occur in practice given the
realities of the give-and-take compacting process and the tribes’
economic interests in securing a compact.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 33
Dissent at 71. The latter is a reference to an IGRA provision
that we quoted above, which states that “in determining
whether a State has negotiated in good faith, the court” “may
take into account the public interest, public safety,
criminality, financial integrity and adverse economic
impacts on existing gaming activities.” 25 U.S.C.
§ 2710(d)(7)(B)(iii)(I). The dissent believes these good-
faith factors apply to the evaluation of off-list topics of
negotiation, and it would thus remand for the district court
to evaluate the State’s actions under these factors.
The dissent’s position reflects a misunderstanding of the
statutory text that is also at odds with the statute’s core
objectives, as reflected in both the text itself and our
precedents. “IGRA limits permissible subjects of
negotiation in order to ensure that tribal-state compacts
cover only those topics that are related to gaming.” Rincon
Band, 602 F.3d at 1028–29. The dissent squarely contradicts
this core statement of law by maintaining that states may
insist on negotiating topics that are not related to gaming—
and that states that do this can somehow still meet IGRA’s
requirement of good-faith negotiation. The dissent’s
approach would torpedo the statutory scheme, is inconsistent
with our cases, and would inject dramatic uncertainty into
compact negotiations.
1
We begin with the first step in the dissent’s reasoning,
which sets up its entire analytical structure: that if a state
only negotiates within IGRA’s exhaustive list of negotiating
topics, there cannot be a lack of good faith. Dissent at 71.
The dissent qualifies this with an “absent more,” but the
“more” it refers to is “procedural bad faith.” Dissent at 71,
78. So the dissent is thus clear that “if a tribe fails to show
that a State has put off-list topics on the negotiation table,
34 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
then the tribe hasn’t met its initial burden and the State may
prevail” (again, absent evidence of procedural bad faith).
Dissent at 69–70 & n.2. This means, according to the
dissent, that “Congress gives a State free rein to haggle for
permissible gaming-related topics,” and that “greater
scrutiny” is required only “if the State overreaches by
negotiating for topics outside of § 2710(d)(3)(C).” Dissent
at 70 (emphasis added).
The dissent errs at the outset because apart from
procedural failings, a state can still fail to act in good faith
even when it is negotiating within IGRA’s list of exhaustive
topics. Nothing in the statute says, much less suggests, that
a state has “free rein” to insist upon any compact
requirement so long as it fits within the list of seven
permitted topics. For example, § 2710(d)(3)(C)(iii) allows a
state to seek provisions relating to “the assessment by the
State of such [gaming] activities in such amounts as are
necessary to defray the costs of regulating such activity.” If,
for example, a state insisted on highly burdensome and
unnecessary audit procedures, that might provide a basis for
arguing under § 2710(d)(7)(B)(iii)(I)’s good-faith factors
that the state is not negotiating in good faith, even though the
state’s request falls within a substantively permissible topic
of negotiation under IGRA.
The dissent’s position that negotiating for topics within
IGRA’s list cannot be evidence of bad faith is also
inconsistent with Coyote Valley II. There, we held that a
labor provision was within the list of seven permitted topics
and thus an allowed subject of negotiation, but we then
proceeded to evaluate whether the provision was nonetheless
consistent with § 2710(d)(7)(B)(iii)(I)’s good-faith factors.
Coyote Valley II, 331 F.3d at 1115–16. That approach
accords not only with the statutory text, but with common
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 35
sense: just because a given compact requirement is within
the list of seven permitted topics based on subject matter
does not mean the state is acting in good faith by demanding
it. 6
The dissent’s contrary analysis leaves the
§ 2710(d)(7)(B)(iii)(I) good-faith factors with no other work
to do besides applying to the negotiation of impermissible
topics outside the exhaustive list. But because a state does
not necessarily act in good faith by sticking to the list of
permitted topics, § 2710(d)(7)(B)(iii)(I) applies in that
context. This then brings us to the crux of our disagreement
with the dissent: should the good-faith factors in
§ 2710(d)(7)(B)(iii)(I) also apply when, as here, the state has
far exceeded the list of IGRA’s permissible topics of
negotiation? Or is the state’s negotiation of off-list topics
itself sufficient evidence of a lack of good faith, as we have
reasoned above? The dissent chooses the former because, it
tells us, the list of seven topics would otherwise be rendered
“meaningless.” Dissent at 69, 77. But the dissent has it
backwards.
This is one of those classic situations in which a
particular textual provision, here § 2710(d)(7)(B)(iii)(I),
does not tell us when it should apply, but where the rest of
6
The dissent claims that applying § 2710(d)(7)(B)(iii)(I)’s good-
faith factors to on-list negotiation topics would “make complying with
§ 2710(d)(3)(C) nearly meaningless.” Dissent at 77. That is not correct.
To demonstrate its good faith, the state as a threshold matter must, at the
very least, refrain from negotiating well outside the list of permitted
topics in § 2710(d)(3)(C). That there can be a further good-faith inquiry
under § 2710(d)(7)(B)(iii)(I)’s good-faith factors certainly does not
make complying with § 2710(d)(3)(C) meaningless. Indeed, even under
the dissent’s view there is a further inquiry—it is just that the dissent
would look for “procedural” bad faith only. Dissent at 70 n.2.
36 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
the statute and our precedents overwhelmingly demonstrate
the better answer. See Dolan v. U.S. Postal Serv., 546 U.S.
481, 486 (2006) (“Interpretation of a word or phrase depends
upon reading the whole statutory text, considering the
purpose and context of the statute, and consulting any
precedents or authorities that inform the analysis.”). IGRA
is not always a model of clarity, but it provides more than
enough guidance for us to resolve this appeal in favor of the
tribes.
By concluding that the State may still demonstrate its
good faith under § 2710(d)(7)(B)(iii)(I) despite having
negotiated for off-list topics, the dissent renders the
exhaustive list of negotiating topics in § 2710(d)(3)(C) non-
exhaustive. That is directly contrary to the statutory text,
IGRA’s core objectives, and binding circuit precedent,
which all make clear that the list of negotiating topics is
exhaustive, and indeed must be exhaustive, in order to
prevent states from unduly intruding on tribal governance.
See 25 U.S.C. § 2710(d)(3)(C); Rincon Band, 602 F.3d
at 1028–29 & n.10; Coyote Valley II, 331 F.3d at 1111.
Treating a violation of § 2710(d)(3)(C) as definitive proof
that a state did not fulfill its good-faith duty is, therefore, the
only way to give proper meaning to § 2710(d)(3)(C).
For its part, the dissent fully agrees that
§ 2710(d)(3)(C)’s list is “exhaustive,” describing it as
“creat[ing] a binary of on-list/off-list subjects with only on-
list topics permissible for negotiation.” Dissent at 66–67.
But the dissent then refuses to acknowledge the full
implications of this reasoning. Under the dissent’s
framework, negotiating off-list topics is at once strictly
“impermissible,” Dissent at 68, but then ultimately permitted
if a court finds that the state was nonetheless acting in good
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 37
faith under § 2710(d)(7)(B)(iii)(I). We should not interpret
the statute to be at war with itself. 7
Of course, under our interpretation
§ 2710(d)(7)(B)(iii)(I)’s good-faith factors still have plenty
of work to do; we certainly have not “erase[d] these factors
from the statute,” as the dissent grandiosely charges. Dissent
at 74. The § 2710(d)(7)(B)(iii)(I) factors require analysis
when a state seeks to negotiate within the seven topics, but
when the specific nature of the state’s request is such that an
inference of bad faith still arises (remember the oppressive
audit procedures hypothetical). But extending
§ 2710(d)(7)(B)(iii)(I) outside that context to off-list
negotiation topics, as the dissent proposes, would render the
exhaustive list of negotiating topics non-exhaustive, which
is unacceptable as a matter of both statutory interpretation
and governing precedent. Rincon Band also repeatedly
invoked the canon of construction construing ambiguous
laws in favor of tribal interests, see 602 F.3d at 1028 n.9,
1031 n.14, 1032, and that canon cuts firmly against the
dissent’s interpretation as well.
In addition, our interpretation of § 2710(d)(7)(B)(iii)(I)
is one this particular provision readily permits. That section
directs that the court “may take into account the public
interest, public safety, criminality, financial integrity and
adverse economic impacts on existing gaming activities.”
25 U.S.C. § 2710(d)(7)(B)(iii)(I) (emphasis added). The
very next provision says that the court “shall consider any
7
We could also restate our conclusion this way: even if the
§ 2710(d)(7)(B)(iii)(I) factors could apply to topics well outside
§ 2710(d)(3)(C)’s list, the good-faith factors necessarily cannot be
satisfied in that circumstance, or else (again) the list of seven permitted
topics of negotiation would not be exhaustive.
38 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
demand by the State for direct taxation of the Indian tribe or
of any Indian lands as evidence that the State has not
negotiated in good faith.” Id. § 2710(d)(7)(B)(iii)(II)
(emphasis added).
Although “may” must mean “may only” in the context
of the list of permitted negotiation topics in § 2710(d)(3)(C),
we think § 2710(d)(7)(B)(iii)(I) is quite different. The
structure of § 2710(d)(7)(B)(iii)(I) is dissimilar from that of
§ 2710(d)(3)(C) and does not consist of an itemized list
punctuated by a catch-all. In addition, the juxtaposition of
the “may” and “shall” directives in the two adjoining sub-
provisions of § 2710(d)(7)(B)(iii) strongly suggests that in
§ 2710(d)(7)(B)(iii)(I), “may” should really just mean the
optional “may.” The word “may” thus gives us ample
textual room to choose an interpretation that does not
undermine the rest of the statute.
Also wrong is the dissent’s attempt to claim that Rincon
Band supports its interpretation of § 2710(d)(7)(B)(iii)(I).
Purporting to quote Rincon Band, the dissent says that “‘the
State may attempt to rebut bad faith’ by showing that any
off-list topic was justified by ‘the public interest, public
safety, criminality, financial integrity, and adverse economic
impacts on existing gaming activities.’” Dissent at 66
(quoting Rincon Band, 602 F.3d at 1032). The problem is
that the dissent through selective quotation has changed the
meaning of the quote, and thus the case as a whole.
The actual line from Rincon Band is: “the State may
attempt to rebut bad faith by demonstrating that the revenue
demanded was to be used for the public interest, public
safety, criminality, financial integrity, and adverse economic
impacts on existing gaming activities.” Rincon Band,
602 F.3d at 1032 (quotations omitted; emphasis added). The
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 39
dissent errs because revenue demands are not categorically
equivalent to “any off-list topic” under IGRA.
To the contrary, a wholly separate statutory provision
governs how demands for revenue inform the good faith
analysis. See 25 U.S.C. § 2710(d)(7)(B)(iii)(II). That
provision, as we noted above, states that courts “shall
consider any demand by the State for direct taxation of the
Indian tribe or of any Indian lands as evidence that the State
has not negotiated in good faith.” Id. (emphasis added).
Some assessments are within the permitted topics of
negotiation, see id. § 2710(d)(3)(C)(iii), but another
provision states that “nothing in this section shall be
interpreted as conferring upon a State or any of its political
subdivisions authority to impose any tax, fee, charge, or
other assessment upon an Indian tribe.” Id. § 2710(d)(4).
Bound by Coyote Valley II and its treatment of revenue-
sharing provisions, Rincon Band explained that “IGRA
requires courts to consider a state’s demand for taxation as
evidence of bad faith, not conclusive proof.” 602 F.3d
at 1032 (citing Coyote Valley II, 331 F.3d at 1112–13).
Rincon Band thus analyzed at length whether the State had
provided “meaningful concessions” for a revenue-sharing
requirement. See id. at 1036–40. As we will explain in detail
below, a “meaningful concessions” analysis only applies
within the context of § 2710(d)(4), to revenue-sharing
demands (a point the dissent does not dispute). But that only
confirms the dissent’s error in selectively quoting Rincon
Band. Rincon Band did not hold that off-list negotiations
were subject to a further good-faith analysis under
§ 2710(d)(7)(B)(iii)(I). It instead held that “IGRA limits
permissible subjects of negotiation in order to ensure that
tribal-state compacts cover only those topics that are related
to gaming.” Rincon Band, 602 F.3d at 1028–29 (emphasis
40 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
added). If the dissent had its way, that would no longer be
true. 8
The dissent’s heavy reliance on IGRA’s burden-shifting
framework, see 25 U.S.C. § 2510(d)(7)(B)(ii), is thus a non
sequitur. Dissent at 68–69. That the burden may shift to the
state to demonstrate its good faith says nothing about
whether and when the state will be able to meet its burden.
And here we find it inconceivable that the Congress that
ringfenced the permissible topics of negotiation to prevent
states from encroaching on tribal sovereignty, see Rincon
Band, 602 F.3d at 1028–29 & n.9; Coyote Valley II, 331 F.3d
at 1111, would at the same time give states the opportunity
to maintain, in both compact negotiations and before courts,
that their off-list topics are nonetheless reasonable. See
Quarles v. United States, 139 S. Ct. 1872, 1879 (2019) (“We
should not lightly conclude that Congress enacted a self-
defeating statute.”).
2
The dissent’s approach would also destabilize the
compact negotiation process, creating significant
uncertainty for vital rights of tribal self-governance and
dragging out compact negotiations. Section
2710(d)(7)(B)(iii)(I) allows courts to “take into account the
8
The dissent asserts that our approach “is divorced from the text” of
§ 2710(d)(7)(B)(iii)(II) because “[i]f any off-list negotiation constituted
automatic bad faith (as the majority contends), there would be no point
in making ‘direct taxation of the Indian tribe’ evidence of bad faith since
that topic is already outside the list of permissible subjects.” Dissent
at 75–76. Not so. A negotiated provision may be characterized as a
direct tax and also fall within a permissible topic of negotiation. There
are also specific on-list topics of negotiation relating to “assessment[s].”
Id. § 2710(d)(3)(C)(iii).
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 41
public interest, public safety, criminality, financial integrity,
and adverse economic impacts on existing gaming
activities.” Any compact provision that a state could
demand may plausibly be said to be in the “public interest”
or have a sufficient relationship to one or more of these
good-faith factors. Environmental regulation can be said to
be in the public interest. The same is true of spousal support
payments.
Contrary to the dissent’s suggestion, we are not
“wonder[ing] why Congress inserted the good-faith factors
into IGRA.” Dissent at 73. We do not question that choice
at all. But that choice does not answer the question of when
those factors apply. And there is no reason to believe that a
Congress that set up an exhaustive list of topics of
negotiation to preserve tribal sovereignty, 25 U.S.C.
§ 2710(d)(3)(C), would choose to undermine that crystalline
textual objective through the particular choice of these good-
faith factors.
In an effort to bring clarity to its approach, the dissent
attempts to assure us that the good faith factors in
§ 2710(d)(7)(B)(iii)(I) must be still interpreted in a way that
sufficiently relates to gaming and the purposes of IGRA.
Dissent at 70. But the dissent provides no guidance beyond
that. And it would set the district court on the seemingly
hopeless mission of determining whether negotiation topics
that are not even “directly related to the operation of gaming
activities,” 25 U.S.C. § 2710(d)(3)(C)(vii), are nonetheless
sufficiently tied to the State’s interest in regulating gaming
and the purposes of IGRA, so as to somehow demonstrate
the State’s good faith. Dissent at 70–72.
To make matters more confounding, under the dissent’s
view the district court would need to undertake this
enigmatic good-faith analysis even though many of the
42 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
State’s off-list topics, such as extensive family,
environmental, and tort regulation, strike at the core of the
Tribes’ governance over their land and people. If the dissent
were the law, it is entirely unclear what evidence the parties
would be required to marshal on remand, much less how the
district court is supposed to go about resolving the further
good-faith question.
The substantial uncertainty that the dissent’s approach
would create is itself directly contrary to IGRA and our
precedents. We said in Rincon Band that “the function of
the good faith requirement and judicial remedy is to permit
the tribe to process gaming arrangements on an expedited
basis, not to embroil the parties in litigation over their
subjective motivations.” 602 F.3d at 1041. The dissent
would produce exactly what Rincon Band sought to avoid.
The result of the dissent’s approach would be that every
topic would be in play in tribal-state compact negotiations
until things could eventually get sorted out in court. The
compacting parties would thus not learn the rules of
engagement until litigation over their negotiation process
was complete. This would give states enormous leverage at
the negotiating table—leverage Congress did not want states
to have. And it means that it would take years for compact
disputes to get resolved.
Of course, the irony in the dissent’s approach is that if a
state is ultimately able to persuade a court that it acted in
good faith and its disputed provisions remain in the compact
(or the tribes cave to them), there is no present likelihood
that the Secretary of the Interior would even approve such
an arrangement. As we discussed above, the Department of
Interior has recently refused to approve compacts with
provisions like California’s, even though there the State and
the Tribes had agreed to them. It is hard to see the wisdom
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 43
(or basis in law) for forcing the parties and the district court
into further proceedings on a compact that the Department
of Interior has telegraphed it will reject. 9
The dissent’s main rejoinder to everything we have said
in this opinion is that we are relying on our own “sense of
IGRA’s core ‘principles’ and ‘objectives.’” Dissent at 72.
But the dissent’s bromides about the role of judges do little
to advance the dialogue here. The disagreement between us
is over how to interpret statutory text, within the confines of
a methodology that treats statutory language and structure as
the only true indicators of legislative intent. The dissent’s
interpretation narrowly focuses on the good-faith factors in
§ 2710(d)(7)(B)(iii)(I), with no appreciation for how that
interpretation fundamentally destroys the core textual and
structural feature of the statute it purports to interpret. Our
interpretation considers the language of
§ 2710(d)(7)(B)(iii)(I) within the context of the statute as a
whole. And in that sense, our interpretation—which is based
on statutory language and precedent, not unenacted statutory
purpose—is more faithful to the text and structure of the
statute that Congress enacted. The dissent’s assertion that
we are “divin[ing] some broad legislative purpose” to
“override the statue’s plain meaning” is therefore simply
unfounded. Dissent at 73. And the dissent repeatedly
invoking the jargon of textualist interpretation does not make
its interpretation textually sound.
9
We agree with the dissent that “IGRA’s text governs irrespective
of Interior officials’ future judgment calls.” Dissent at 74 n.3. But here
IGRA’s text and structure comport with Interior’s analysis.
44 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
V
The district court agreed that California had not
negotiated in good faith and that IGRA’s remedial
provisions were triggered. But it reached this same result
through a different path. Because it may affect the parties’
future negotiations and the IGRA remedial process, we take
this opportunity to explain why the district court’s approach
rested on a mistaken understanding of our precedents.
As we recounted above, the district court concluded that
because various of the State’s negotiating demands were at
the outer edge of relevance to gaming, to demonstrate its
good faith the State was required to provide “meaningful
concessions” in return. The State argued in the district court
that it had offered to provide the Tribes with particularly
valuable consideration in exchange for the disputed
provisions. But the district court found that these
concessions were insufficiently specific to the State’s
particular compact demands. The district court
acknowledged that “[t]he Ninth Circuit has only discussed
‘meaningful concessions’ in the context of fee demands,”
but believed that framework could be expanded to other
topics of negotiation.
The district court erred in relying on the “meaningful
concessions” framework. We first introduced the analytical
concept of “meaningful concessions” in Coyote Valley II.
There we considered the State’s insistence on a provision in
the 1999 tribal-state compact that would create a Revenue
Sharing Trust Fund (RSTF). 331 F.3d at 1110. The RSTF
would have required that gaming tribes share their gaming
revenue with tribes that did not have gaming operations. Id.The Tribes maintained that the State had not negotiated in
good faith, claiming that the requested RSTF provision was
a prohibited tax under § 2710(d)(4). See id. That provision,
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 45
as we noted above, states that “nothing in this section shall
be interpreted as conferring upon a State or any of its
political subdivisions authority to impose any tax, fee,
charge, or other assessment upon an Indian tribe or upon any
other person or entity authorized by an Indian tribe to engage
in a class III activity.” 25 U.S.C. § 2710(d)(4).
We held that California had acted in good faith in
requesting the RSTF provision. We first made clear that this
was a permissible topic of negotiation because
“§ 2710(d)(3)(C)(vii) authorizes the RSTF provision.”
Coyote Valley II, 331 F.3d at 1111; see also id. (“It is clear
that the RSTF provision falls within the scope of
paragraph(3)(C)(vii).”). We then explained that the RSTF
provision did not run afoul of § 2710(d)(4)’s prohibition on
taxes in light of the State’s meaningful concessions: “Given
that the State offered meaningful concessions in return for
its demands, it did not ‘impose’ the RSTF within the
meaning of § 2710(d)(4).” Id. Through these meaningful
concessions, we held, “the State ha[d] successfully rebutted
any inference of bad faith.” Id.
We addressed “meaningful concessions” again in Rincon
Band. There, we considered California’s request during
renegotiations of the 1999 compacts that tribes pay a
significant portion of net gaming revenues into the State’s
general fund. 602 F.3d at 1022. We first held, as recounted
above, that the general revenue sharing provision was not
“directly related to the operation of gaming activities,”
rejecting the State’s argument as “circular.” Id. at 1033; see
also id. at 1034. We then reasoned that even if general
revenue sharing were a permissible topic of negotiation, the
State had still failed to act in good faith because it had not
provided meaningful concessions. Id. at 1036–40.
46 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
Properly considered, a “meaningful concessions”
analysis does not apply in this case, for two reasons. First,
we have never held that the “meaningful concessions”
doctrine applies to requested topics of negotiation that are
well outside the seven permitted topics in § 2710(d)(3)(C).
That is, a state cannot negotiate well outside the bounds of
§ 2710(d)(3)(C) and then attempt to excuse this by arguing
that it provided extra goodies in the negotiation package.
The reason is the same reason that we do not further analyze
the good faith factors in § 2710(d)(7)(B)(iii)(I) when it
comes to off-list topics: if states were permitted to offer
meaningful concessions in exchange for negotiating for
topics well beyond IGRA’s permitted list, Congress’s entire
scheme of limiting the parties to topics directly related to
gaming operations would be fatally undermined. Allowing
a meaningful concessions analysis to supersede
§ 2710(d)(3)(C) would mean that compacts could be “used
as a subterfuge for imposing State jurisdiction on tribes
concerning issues unrelated to gaming.” Coyote Valley II,
331 F.3d at 1111.
This conclusion coheres with how we approached the
“meaningful concessions” issue in Coyote Valley II. There,
we were careful to address meaningful concessions only
after concluding that the disputed provisions fell within the
scope of permissible negotiation subjects under
§ 2710(d)(3)(C). See id. at 1111–15. In Rincon Band, we
thus explained that “Coyote Valley II thus stands for the
proposition” that a state may request revenue sharing
provisions if backed by meaningful concessions, but only “if
the revenue sharing provision is . . . for uses ‘directly related
to the operation of gaming activities’ in
§ 2710(d)(3)(C)(vii).” 602 F.3d at 1033. We have never
suggested that a state could point to material concessions
that it offered in return for bargaining well outside the
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 47
allowed seven topics. We specifically reject that notion
here.
Second, even when a state seeks to negotiate on a topic
within § 2710(d)(3)(C), a meaningful concessions
requirement still only applies to demands for taxes, fees, or
other revenue-sharing provisions. This is due to the specific
prohibitory language in IGRA relating to states seeking to
“impose” taxes or other assessments on tribes.
Section 2710(d)(4) provides that except for assessments
agreed to under § 2710(d)(3)(C)(iii), “nothing in this section
shall be interpreted as conferring upon a state or any of its
political subdivisions authority to impose any tax, fee,
charge, or other assessment upon an Indian tribe.” 25 U.S.C.
§ 2710(d)(4) (emphasis added).
The material concessions requirement is based on states’
need to avoid “imposing” such improper taxes. As we
explained in Rincon Band, “[t]he relevance of ‘meaningful
concessions’ arises from § 2710(d)(4).” 602 F.3d at 1036.
That is, offering material concessions allows a state to
negotiate for certain revenue-sharing provisions without
running afoul of § 2710(d)(4). As we explained in Coyote
Valley II, when “a State offers meaningful concessions in
return for fee demands, it does not exercise ‘authority to
impose’ anything.” 331 F.3d at 1112; see also at 1111
(“Given that the State offered meaningful concessions in
return for its demands, it did not ‘impose’ the RSFT within
the meaning of § 2710(d)(4).”).
Provisions that do not concern taxes, fees, or revenue-
sharing, by contrast, are not subject to the § 2710(d)(4)
prohibition that the state not “impose” such requirements.
Thus, to the extent a state negotiates within the enumerated
topics in § 2710(d)(3)(C), for a state to act in good faith there
is no further affirmative requirement to demonstrate material
48 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
concessions, unless the provision sought concerns taxes or
fees. 10 Because the State here negotiated well outside
§ 2710(d)(3)(C) and the disputed family, environmental, and
tort law provisions did not involve revenue sharing, the
district court erred in considering the State’s good faith
through a meaningful concessions lens, even as the district
court ultimately reached the correct result in this case.
* * *
“[T]he good faith requirement exists” because
“Congress anticipated that states might abuse their authority
over compact negotiations to force tribes to accept burdens
on their sovereignty in order to obtain gaming
opportunities.” Rincon Band, 602 F.3d at 1042. We hold
that by negotiating for topics well outside § 2710(d)(3)(C)’s
permitted list, California did not bargain in good faith. We
therefore direct the parties to proceed to IGRA’s remedial
framework under the district court’s continued supervision.
AFFIRMED.
10
Although material concessions is not a requirement outside the
revenue-sharing context, IGRA does not prevent a state from showcasing
its claimed meaningful concessions in attempting to demonstrate its good
faith (when the state is not otherwise negotiating well outside
§ 2710(d)(3)’s permitted topics). That is the import of our glancing
reference to material concessions in discussing the labor relations
provision at issue in Coyote Valley II. 331 F.3d at 1115–16. There, after
explaining that the provision fell within a permitted topic of negotiation
and was consistent with the “good faith” factors in
§ 2710(d)(7)(B)(iii)(I), we observed that the State had also “offered
numerous concessions to the Tribes in return for the . . . provision.” Id.
at 1116. So although we did not impose a material concessions
requirement as to this provision, the concessions could still be relevant
in evaluating the State’s claimed good faith.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 49
WARDLAW, Circuit Judge, concurring:
The Indian Gaming Regulatory Act (IGRA) is
ambiguous on the central question this case presents:
whether a state conducts Tribal-State Compact negotiations
in bad faith when it insists on negotiating topics beyond the
exclusive topics set forth in IGRA § 2710(d)(3)(C).
Congress did not clearly explain how the exhaustive list of
negotiating topics interacts with the good faith burden-
shifting provisions that apply once a tribe files an
enforcement action; nor did it define “good faith” to include
or exclude the State’s introduction of unauthorized topics.
In answering the question presented, my fine colleagues
confine themselves to the text of the statute and our
precedents construing IGRA—and reach equally plausible,
but diametrically opposed, conclusions. Judge Bumatay
would layer the burden-shifting provision on top of both on-
topic and off-topic negotiations, while Judge Bress
concludes that if the State injects an off-topic term into the
negotiations, that is sufficient for a finding of bad faith,
which triggers IGRA’s remedial provisions.
I agree with Judge Bress’s analysis of the text and
structure of IGRA. My agreement with his conclusions,
however, is further supported by IGRA’s stated purpose and
its legislative history. Moreover, given the inherently
ambiguous nature of IGRA’s statutory text and structure, it
is helpful to bear in mind the words of Justice Scalia thirty
years ago:
When we are faced with these two possible
constructions [of a federal statute implicating
Tribal interests], our choice between them
must be dictated by a principle deeply rooted
in this Court’s Indian jurisprudence: statutes
50 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
are to be construed liberally in favor of the
Indians, with ambiguous provisions
interpreted to their benefit.
Cnty. of Yakima v. Confederated Tribes, 502 U.S. 251, 269
(1992) (cleaned up). 1 These additional considerations lead
me to conclude that when a state insists on negotiating topics
that are not even arguably related to “the operation of
gaming activities,” as California did here, the State has not
conducted such negotiations in good faith under IGRA. I
therefore concur in Judge Bress’s majority opinion.
I.
Although the federal government has the power to grant
states jurisdiction over tribal affairs, see McClanahan v.
State Tax Comm'n of Ariz., 411 U.S. 164, 170–71 (1973), it
has rarely exercised that power in light of the historically
fraught relationship between states and tribes.
“The policy of leaving Indians free from state
jurisdiction and control is deeply rooted in the Nation’s
history.” Rice v. Olson, 324 U.S. 786, 789 (1945). For
centuries, states have been the “deadliest enemies” of tribes,
United States v. Kagama, 118 U.S. 375, 384 (1886), and the
entities “least inclined to respect” tribal sovereignty, McGirt
1
This principle has been cemented into law as one of the Indian law
canons of construction. See, e.g., Cohen’s Handbook of Federal Indian
Law § 2.02 [1] (2019) (“The basic Indian law canons of construction
require that treaties, agreements, statutes, and executive orders be
liberally construed in favor of the Indians and that all ambiguities are to
be resolved in their favor.”) (emphasis added).
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 51
v. Oklahoma, 140 S. Ct. 2452, 2462 (2020). 2 Accordingly,
delegations of jurisdiction over tribal affairs to states have
been perceived as an abandonment of the federal
government’s duty to safeguard tribal sovereignty. As the
Supreme Court put it in 1886:
[Tribes] owe no allegiance to the states, and
receive from them no protection. Because of
the local ill feeling, the people of the states
where they are found are often their deadliest
enemies. From their very weakness and
helplessness, so largely due to the course of
dealing of the federal government with them,
and the treaties in which it has been
promised, there arises the duty of protection,
and with it the power. This has always been
recognized by the executive, and by
congress, and by this court, whenever the
question has arisen.
Kagama, 118 U.S. at 384.
2
See also Matthrew L.M. Fletcher, Retiring the “Deadliest
Enemies” Model of Tribal-State Relations, 43 Tulsa L. Rev. 73, 77–78
(2007) (explaining that during the 19th Century “States and their
constituents were in a never-ending quest to take Indian lands and
resources and, in some circumstances, to eliminate Indians and Indian
tribes . . . State and local governments on or near Indian Country have
long histories of using apparent legal authority and simple force to
dispossess Indian people of land and property. On numerous occasions,
the use of simple force has exploded into the use of deadly force—in
short, the mass murder of Indian people in states like Massachusetts,
Colorado, and California”).
52 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
Congress enacted IGRA following the Supreme Court’s
ruling that California lacked Pub. L. 280 authority 3 to
regulate bingo (or other gaming) on tribal lands in California
v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).
The Cabazon holding was itself rooted in “traditional
notions of Indian sovereignty and the congressional goal of
Indian self-government, including its overriding goal of
encouraging tribal self-sufficiency and economic
development.” Id. at 216 (cleaned up).
Congress’s choice to involve states in regulating gaming
was controversial. When Congress began debating IGRA,
there was widespread agreement about its twin goals.
IGRA’s first purpose in legalizing gaming on Indian lands
was “as a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments.” 25 U.S.C.
§ 2702; see also S. Rep. No. 100-446, at *1–2 (1988). Its
second purpose was to regulate gaming on Indian lands in a
manner that would “shield it from organized crime and other
corrupting influences.” 25 U.S.C. § 2702. The difficulty
Congress faced was how to structure a regulatory scheme
that would meet both purposes, i.e., a scheme that would
3
In Pub. L. 280, Congress granted certain states broad criminal
jurisdiction within Indian country and civil jurisdiction limited to private
civil litigation involving reservation Indians in state court. See Cabazon,
480 U.S. at 207–08. The Cabazon Court concluded that California’s
regulation of bingo was civil in nature, and did not fall within the Pub.
L. 280 grant of civil jurisdiction, and therefore, Pub. L. 280 states had no
authority to regulate gaming on Indian land. Id. at 210.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 53
effectively deter corruption, but did not undermine tribal
sovereignty. 4
In an effort to ensure the proposed regulation did not
infringe on tribal sovereignty more than was essential,
Congress assigned regulatory authority according to three
“classes” of gaming. It divided the classes based on how
lucrative they were, reasoning that more lucrative games
were more likely to be the target of “corrupting influences.” 5
Class I games, including traditional tribal games associated
with tribal ceremonies and celebrations, which posed “little
risk of corruption,” were regulated exclusively by the tribes. 6
Class II games, which included Bingo and other games
which tribes had regulated on their own for decades with
“relatively few problems,” were regulated by the tribes with
some oversight by the federal government. 7
The regulation of Class III gaming proved trickier. On
the one hand, there was relatively widespread agreement that
mere federal oversight would not be sufficient. As one
commentator explained:
Congress saw casino-style gambling as
carrying greater risks and raising different
4
See S. Rep. No. 100-446, at *1–2 (1988) (“In developing the
legislation, the issue has been how best to preserve the right of tribes to
self-government while, at the same time, to protect both the tribes and
the gaming public from unscrupulous persons.”).
5
Kathryn Rand & Steven Light, How Congress Can and Should
“Fix” the Indian Gaming Regulatory Act: Recommendations for Law
and Policy Reform, 13 Virginia J. Soc. P. & L. 396, 409 (2006).
6
Id.7
Id.54 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
issues than bingo. The states' interests in
preventing the infiltration of organized crime
and controlling gambling generally appeared
most persuasive in the context of the "cash
business" of casino-style gaming, or "Class
III" gaming. 8
However, it was not obvious what form of regulatory
authority should take its place. “Recognizing that the
extension of State jurisdiction on Indian lands has
traditionally been inimical to Indian interests,” one early
version of the bill proposed creating a new federal body,
housed within either the Department of Justice (DOJ) or the
Department of the Interior (DOI), which would be
responsible for regulating Class III gaming. 9 However, both
Departments vigorously opposed that proposal. 10 DOJ
resisted the role, asserting that it wasn’t a “regulatory
agency,” and was therefore ill suited to the role. 11 DOI
representatives testified that the Department “did not have
the capacity to undertake such a mission and that,
furthermore, it would be in conflict with the Department's
8
Id. (cleaned up).
9
S. Rep. 100-446, at *5 (1988); see also Franklin Ducheneaux, The
Indian Gaming Regulatory Act: Background and Legislative History,
42 Arizona St. L.J. 99, 115–19 (2010).
10
See Virginia Boylan, Reflections on IGRA 20 Years after
Enactment, 42 Ariz. St. L.J. 1, 6 (2010) (explaining that both agencies
“adamantly opposed federal regulation of class III gaming”).
11
See Ducheneaux, supra note 9, at 121 (citing Indian Gambling
Control Act: Hearing on H.R. 4566 Before the H. Comm. on Interior and
Insular Affairs, 98th Congress at 26–28 (1984)).
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 55
effort to reduce its past paternalistic role in favor of support
for tribal independence and self-determination.” 12
An alternate proposal, drafted by DOJ, suggested that
Congress delegate responsibility for regulating Class III
gaming to the states. 13 Proponents of this plan, including
DOI, pointed out that states were well suited to the role
because they already regulated gaming within their borders,
and therefore had the regulatory infrastructure in place. 14
Unsurprisingly, tribes as well as a number of members
objected to that plan, expressing concern that “state
regulation of tribal gaming would violate tribal sovereignty
and, on a more practical level, undermine tribal gaming as
an economic development strategy,” as states might try to
protect their own competing gaming operations, like
lotteries. 15 For example, Senator McCain testified to his
belief that the states, if given jurisdiction over gaming on
Indian lands, would not give the “Indians a fair shake.” 16
Those concerns were particularly salient based on the states’
recent attempts to eradicate tribal gaming entirely, including
12
Id. at 121–22 (citing Indian Gambling Control Act: Hearing on
H.R. 4566 Before the H. Comm. on Interior and Insular Affairs, 98th
Congress at 31 (1984)).
13
Id. at 112.
14
See Boylan, supra note 10, at 6.
15
See Rand and Light, supra note 5, at 409.
16
Gaming Activities on Indian Reservations and Lands: Hearings
on S. 555 and S. 1303 Before the Senate Select Comm. on Indian Affairs,
100th Cong., 1st Sess. (1987) (statement of Sen. John McCain, III, R-
Ariz.); see also Ronald Santoni, The Indian Gaming Regulatory Act:
How Did We Get Here? Where Are We Going? 26 Creighton L. Rev.
387, 403, 411 (1993).
56 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
California’s failed effort to regulate tribal gaming to the
point of extinction. See Cabazon, 480 U.S. at 205–06.
The Tribal-State Compact provision finally enacted was
a grand compromise. 17 States were given a role in regulating
Class III gaming because federal agencies did not want
responsibility for it, and states already had relevant
expertise. 18 However, that role was strictly limited to ensure
that states could not demand inappropriate concessions from
tribes or use Compacts “as a subterfuge for imposing State
jurisdiction on tribal lands.” 19 Therefore, Tribal-State
Compacts could only include provisions that related to “the
issues” listed in § 2710(d)(3)(C)—those “directly related to
gaming.” 20 The Senate Report does not specifically discuss
how Congress intended the exclusive negotiating topic
provision to relate to the good faith negotiation requirement.
17
See S. Rep. No. 100-446, at *13 (1988) (“After lengthy hearings,
negotiations and discussions, the Committee concluded that the use of
compacts between tribes and states is the best mechanism to assure that
the interests of both sovereign entities are met with respect to the
regulation of complex gaming enterprises . . . The Committee notes the
strong concerns of states that state laws and regulations relating to
sophisticated forms of class III gaming be respected on Indian lands
where, with few exceptions, such laws and regulations do not now apply.
The Committee balanced these concerns against the strong tribal
opposition to any imposition of State jurisdiction over activities on
Indian lands. The Committee concluded that the compact process is a
viable mechanism for settling various matters between two equal
sovereigns.”) (cleaned up).
18
Id. at *13–14 (“[T]he committee notes that there is no adequate
Federal regulatory system in place for class III gaming . . . Thus a logical
choice is to make use of existing State regulatory systems . . . .”).
19
Id. at *14
20
Id. at *14, 18
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 57
However, it is clear that the limit on negotiation topics was
the barrier erected against state overreach, while the good
faith requirement was the “incentive” to ensure that States
“deal[t] fairly with tribes as sovereign governments.” 21
Several members concerned with tribal rights only
reluctantly agreed to grant states regulatory authority over
even Class III gaming. They stated that they did so only
because of the strong protections the legislation afforded
tribes should states exceed their bounds. 22 For example,
Senator Evans issued a statement that he supported the bill
“with great reluctance,” 23 even accounting for the limited
scope of state intervention allowed:
We intend that the two sovereigns—the tribes
and the States—will sit down together in
negotiations on equal terms and come up with
a recommended methodology for regulating
class III gaming on Indian lands. Permitting
21
Id. at *13, 14.
22
If a federal district court determines that a State has not negotiated
with a tribe in good faith, a mandatory multi-step remedial process is
triggered. First, the court must order the parties to conclude a Compact
within 60 days. § 2710(d)(7)(B)(iii). If the State and the tribe fail to
conclude a Compact within that 60-day period, the Court must order the
tribe and the State to submit their “last best offer for a Compact” to a
court-appointed mediator, who “select[s] from the two proposed
compacts the one which best comports with the terms of this chapter and
any other applicable Federal law and with the findings and order of the
court.” § 2710(d)(7)(B)(iv). If the State does not consent to the Compact
selected by the mediator within 60 days, then the mediator must notify
the Secretary of the Interior, who in turn must prescribe procedures
consistent with the selected contract under which Class III gaming can
be conducted on the tribe’s land. § 2710(d)(7)(B)(vii).
23
See S. Rep. No. 100-446, at *35.
58 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
the States even this limited say in matters that
are usually in the exclusive domain of tribal
government has been permitted only with
extreme reluctance. 24
Senator McCain similarly stated that, “[i]t is with great
reluctance that I am supporting [IGRA],” and emphasized
that he had only done so due to the limited nature of the
state’s involvement:
The Committee Report is clear as to the
purpose of Tribal/State compacts as called
for in Section [2710(d)]. I understand Senator
Evans’ concerns regarding the potential
overextension of the intended scope of the
Tribal/State compact approach. Toward this
end, I believe it is important to again
underscore the statement that appears on
page 10 of the Report: “The Committee does
not intend to authorize any wholesale transfer
of jurisdiction from a tribe to a state.” From
time immemorial, Tribes have been and will
continue to be permanent governmental
bodies exercising those basic powers of
government, as do Federal and State
governments, to fulfill the needs of their
members. Under our constitutional system of
government, the right of Tribes to be self-
24
134 Cong. Rec. S12643 (Sept. 15, 1988) (statement of Sen. Daniel
Evans R-Wash.) (emphasis added).
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 59
governing and to share in our federal system
must not be diminished. 25
II.
In light of IGRA’s purpose to facilitate tribes’ operation
of gaming activities, and Congress’s reluctance to allow
states to have any involvement in oversight of even Class III
gaming, I agree with Judge Bress that when a state insists
upon negotiating topics plainly beyond the scope of
§ 2710(d)(3)(C)(vii), that is per se bad faith.
This case is a textbook example of how a contrary
interpretation would undermine IGRA’s purposes.
California began negotiations with the Compact Tribe
Steering Committee (CTSC) nearly eight years ago, in 2014.
From the start of those negotiations, the State demanded that
the final Compact include a number of provisions not even
tangentially related to gaming. For example, the State
demanded that the Tribes adopt state tort law, subject
themselves to state environmental regulations, and enforce
state child and spousal support orders against their members.
California’s insistence on those provisions eventually led the
Plaintiff tribes to pull out of the CTSC in 2019, reject the
State’s offer, and initiate this suit, which has now dragged
on for more than three years.
If we were to adopt Judge Bumatay’s position, hold that
the State could justify its insistence on those terms by
showing that they were in the “public interest,” and remand
this case to the district court for further proceedings,
Congress’s objectives would be frustrated in at least two key
ways. First, it would subject the Tribes to even more costly
25
S. Rep. No. 100-446, at *33–34.
60 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
delays, and potentially jeopardize their ability to engage in
gaming at all, as due to these failed negotiations, the existing
Compact authorizing gaming was on the brink of expiring
until the parties extended its end date from June 2022 to
December 2023. Second, it would fatally undermine the key
barrier Congress erected against states’ overreach in
regulating tribal gaming. If a state could insist on topics as
far afield as spousal and child support so long as they were
in the “public interest,” the “exhaustive” list of topics
wouldn’t be exhaustive at all. And in that event, the worst
fears of Congressional members—that states would place
their interests above the tribes’—would be realized.
III.
This conclusion is bolstered by the application of
traditional Indian canons of construction. As my colleagues’
competing views demonstrate, the statutory language is
ambiguous. When a statute is ambiguous, we apply the
Indian canons of construction, one of which the Supreme
Court codified in County of Yakima. As noted at the outset,
where, as here, we are faced with two possible constructions
of a federal statute implicating tribal interests, “our choice
between them must be dictated by a principle deeply rooted
in this Court’s Indian jurisprudence: statutes are to be
construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.” 502 U.S. at 269(cleaned up).
Congress in fact contemplated that we would apply this
very canon to IGRA when interpreting it. The Senate
Committee Report states that Congress “trusts that courts
will interpret any ambiguities [in IGRA] in a manner that
will be most favorable to tribal interests consistent with the
legal standard used by courts for over 150 years in deciding
cases involving Indian tribes.” S. Rep. No. 100-446, at *15.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 61
We are faced with not only two “possible” constructions
of IGRA, but two equally plausible ones. Applying the
canon, we must choose the interpretation most favorable to
the tribes, which, in this case, is the construction proposed
by Judge Bress. Holding that it is a per se breach of “good
faith” for a state to insist on negotiating a compact provision
not even arguably within the “operation of gaming
activities” protects tribal sovereignty, while ensuring that the
twin purposes of IGRA are fulfilled.
IV.
Contrary to Judge Bumatay’s assertions, this approach
does not conflict with § 2710(d)(7)(B)(iii) by “bar[ring]
courts from even considering the [good faith] factors before
forcing parties into IGRA’s remedial procedures” in all
cases. Courts would still be able to consider the good faith
factors as part of the burden-shifting framework in a number
of instances including, for example, when evaluating
whether a state’s actions constitute procedural bad faith, and
whether a state proposed on-topic terms in good faith. This
approach does not read the burden-shifting good faith
inquiry out of the statute, it simply applies it in a manner
consistent with the limited role of states in regulating Indian
gaming.
BUMATAY, Circuit Judge, dissenting:
This case poses a difficult question of statutory
interpretation. It requires us to parse several provisions of
the Indian Gaming Regulatory Act (“IGRA”) to determine
the meaning of “good faith.” But as with any case, we are
duty-bound to follow the text of the law wherever it leads.
62 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
And because the majority creates an automatic bad-faith rule
not found in IGRA’s text, I respectfully dissent.
IGRA establishes a comprehensive framework
governing gaming on Indian lands. See 25 U.S.C. § 2701, et
seq. Under IGRA, tribal casinos may only run Class III
gaming (Las-Vegas style games such as blackjack) under a
valid Tribal-State gaming compact—an agreement that
authorizes and regulates gaming activity on tribal land
within a State. § 2710(d)(1)(C). 1 IGRA enumerates
permissible gaming-related topics that may be included
within these Tribal-State compacts. § 2710(d)(3)(C). IGRA
also requires States to negotiate in “good faith” when a tribe
requests a compact for Class III gaming. § 2710(d)(3)(A).
While “good faith” is not specifically defined, IGRA
provides multiple factors that courts may consider in
determining whether a State has met its duty. Finally, to
enforce this good-faith duty, IGRA creates a cause of action
for tribes to bring against recalcitrant States,
§ 2710(d)(7)(A)(i), and a mandatory remedial process that is
triggered when a State violates its duty.
§ 2710(d)(7)(B)(iii)–(vii).
The Chicken Ranch Rancheria of Me-Wuk Indians,
along with several other tribes (collectively, the “Tribes”)
sued the State of California and Governor Gavin Newsom
(collectively, “California”) for violating their “good faith”
duty by negotiating for topics outside IGRA’s scope. The
district court agreed with the Tribes and found that
California violated its good-faith duty of negotiation.
Chicken Ranch Rancheria of Me-Wuk Indians v. Newsom,
530 F. Supp. 3d 970, 988 (E.D. Cal. 2021). And while I
1
Unless otherwise indicated, all section (§) citations refer to Title
25 of the U.S. Code.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 63
agree with the majority that California negotiated for topics
outside IGRA’s scope, I disagree with the majority’s
purpose-based analysis of “good faith.” Instead, by looking
to IGRA’s text and structure, I would vacate and remand the
district court’s judgment for a proper analysis of whether
California satisfied its good-faith duty.
I.
IGRA’s text and structure command a nuanced approach
to the good-faith analysis. Under IGRA, a State must
negotiate to enter a Tribal-State compact in “good faith.”
§ 2710(d)(3)(A). And IGRA creates a burden-shifting
framework for analyzing whether a State has negotiated in
good faith. Pauma Band of Luiseno Mission Indians v.
California, 973 F.3d 953, 958 (9th Cir. 2020). A plaintiff
tribe must first “introduc[e] . . . evidence” that a compact
was not entered and that the State either failed to respond or
“did not respond to [the tribe’s] request in good faith.”
§ 2710(d)(7)(B)(ii)(I)–(II). Once that initial showing is
made, the State bears the “burden of proof” in establishing
that it negotiated with the tribe in good faith.
§ 2710(d)(7)(B)(ii). If the State fails to make such a
showing, a court may order the parties into IGRA’s “multi-
step judicial remedy.” Pauma Band, 973 F.3d at 958.
IGRA does not define “good faith,” id. at 957, but it
provides several textual and structural clues on how courts
are to enforce it. Two provisions, in particular, guide that
inquiry:
First, IGRA’s list of permissible topics for Tribal-State
compacts. Section 2710(d)(3)(C) provides that a Tribal-
State compact “may include provisions relating to—”:
64 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
(i) the application of the criminal and civil
laws and regulations of the Indian tribe or the
State that are directly related to, and
necessary for, the licensing and regulation of
such activity;
(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such
laws and regulations;
(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;
(iv) taxation by the Indian tribe of such
activity in amounts comparable to amounts
assessed by the State for comparable
activities;
(v) remedies for breach of contract;
(vi) standards for the operation of such
activity and maintenance of the gaming
facility, including licensing; and
(vii) any other subjects that are directly
related to the operation of gaming activities.
Through this provision, “IGRA limits permissible subjects
of negotiation in order to ensure that tribal-state compacts
cover only those topics that are related to gaming.” Rincon
Band of Luiseno Mission Indians v. Schwarzenegger,
602 F.3d 1019, 1028–29 (9th Cir. 2010).
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 65
And the Supreme Court has explained that “gaming
activities” in the § 2710(d)(3)(C) context is narrowly
construed: it “means just what it sounds like—the stuff
involved in playing class III games.” Michigan v. Bay Mills
Indian Cmty., 572 U.S. 782, 792 (2014). It refers only to
“what goes on in a casino—each roll of the dice and spin of
the wheel”—not to “off-site licensing or operation of the
games.” Id.; see also id. (“[G]aming activity is the gambling
in the poker hall, not the proceedings of the off-site
administrative authority.”); id. (An agency’s power to
“‘close a gaming activity’ means “to shut down crooked
blackjack tables, not the tribal regulatory body meant to
oversee them.” (simplified)).
The list of permissible negotiation topics is also
circumscribed by “one key limitation on state negotiating
authority” found in § 2710(d)(4). Rincon, 602 F.3d at 1028.
Under that provision, IGRA generally prevents a State from
“impos[ing] any tax, fee, charge, or other assessment upon
an Indian tribe . . . to engage in a class III activity.”
§ 2710(d)(4).
Second, IGRA tells courts how to analyze good faith. It
establishes that, in determining “whether a State has
negotiated in good faith, the court—”
(I) may take into account the public interest,
public safety, criminality, financial integrity,
and adverse economic impacts on existing
gaming activities, and
(II) shall consider any demand by the State
for direct taxation of the Indian tribe or of any
Indian lands as evidence that the State has not
negotiated in good faith.
66 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
§ 2710(d)(7)(B)(iii).
These provisions work in tandem to determine whether
a State has met its good-faith duty.
To start, § 2710(d)(3)(C) enumerates permissible topics
that may be negotiated as part of a Tribal-State compact. If
a tribe shows that a State violated § 2710(d)(3)(C) by
negotiating for an off-list topic, that serves as “evidence” of
a State’s bad faith under IGRA’s burden-shifting framework.
See § 2710(d)(7)(B)(ii). At that point, the burden shifts to
the State to prove its good faith. Id.
Courts then assess a State’s claim of good faith under
§ 2710(d)(7)(B)(iii). Section 2710(d)(7)(B)(iii) provides
two ways to analyze good faith. First, “a court must consider
a ‘demand’ for a tax to be made in bad faith.” Rincon,
602 F.3d at 1029; see also § 2710(d)(7)(B)(iii)(II). In other
words, such a demand is “evidence of the State’s bad faith.”
Rincon, 602 F.3d at 1030. Second, “the State may attempt
to rebut bad faith” by showing that any off-list topic was
justified by “the public interest, public safety, criminality,
financial integrity, and adverse economic impacts on
existing gaming activities.” Id. at 1032; see also
§ 2710(d)(7)(B)(iii)(I). In other words, the State can use
these statutory factors to establish its good faith despite
negotiating for off-list topics.
I explain IGRA’s meaning in greater detail below.
A.
The first step in the good-faith inquiry is understanding
that § 2710(d)(3)(C) creates an exhaustive list of
permissible, gaming-related topics that a State may bargain
for as part of a compact with a tribe. In other words,
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 67
§ 2710(d)(3)(C) creates a binary of on-list/off-list subjects
with only on-list topics permissible for negotiation. I would
reach this conclusion for three reasons.
One reason is the text. Section 2710(d)(3)(C)’s language
shows that it limits the field of permissible negotiation
topics. It states that a gaming compact “may include” seven
gaming-related topics. § 2710(d)(3)(C)(i)–(vi). While the
word “may” is ordinarily considered permissive, its meaning
is judged based on context. Cf. Black’s Law Dictionary
(11th ed. 2019) (“In dozens of cases, courts have held may
to be synonymous with shall or must[.]”). Based on the
context here, “may” should be interpreted as mandatory or
as meaning “may only.” That’s because the provision
identifies only gaming-relating topics as permissible
subjects. By detailing a list of six specific gaming issues,
along with a catchall provision that permits other topics
“directly related to the operation of gaming activities,”
§ 2710(d)(3)(C)(vii), Congress limited the permissible
gaming compact topics to activities that are gaming related.
Put simply, there would be no need for Congress to include
six specific topics and a limited catchall if States were free
to insert extraneous topics into gaming compacts.
The second reason is our interpretative canons. Two
well-established canons confirm § 2710(d)(3)(C)’s
exhaustive nature. First, the expressio unius canon says that
the identification of related topics within an associated group
generally excludes unrelated topics. See NLRB v. SW Gen.,
Inc., 137 S. Ct. 929, 940 (2017); see also Wheeler v. City of
Santa Clara, 894 F.3d 1046, 1054 (9th Cir. 2018). Second,
the ejusdem generis principle provides that a “general term
following more specific terms means that the things
embraced in the general term are of the same kind as those
denoted by the specific terms.” United States v. Lacy,
68 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
119 F.3d 742, 748 (9th Cir. 1997) (simplified). Both canons
work here to show § 2710(d)(3)(C)’s exclusive nature. For
example, a “sign outside a veterinary clinic saying ‘Open for
treatment of dogs, cats, horses, and all other farm and
domestic animals’ does suggest (by its detail) that the circus
lion with a health problem is out of luck.” Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 107–08 (2012). IGRA permits six detailed subjects
and a seventh catchall related to gaming activities—the
negative implication of § 2710(d)(3)(C) is that unrelated
subjects are impermissible.
The third reason—our precedent. In Rincon, we
explained that “[t]he language and structure of
§ 2710(d)(3)(C) suggest[] it is exhaustive.” 602 F.3d at 1028
n.9. We observed that “[a]lthough ‘may’ indicates
permissiveness . . . to grant permission is not necessarily to
grant carte blanche. What is ‘permitted’ is limited.” Id. I
agree with Rincon’s suggestion and would hold that the
§ 2710(d)(3)(C) list is exhaustive.
B.
Given § 2710(d)(3)(C)’s limits, a State’s violation of its
list of permissible topics constitutes evidence of a State’s
lack of good faith. When a State limits its negotiation to on-
list, gaming-related subjects, that is evidence that the State
has operated in good faith. Off-list negotiations, however,
show the opposite and require further scrutiny. There are
several textual and structural reasons why this is true.
First, IGRA’s burden-shifting framework makes clear
that evidence of off-list negotiation impacts the good-faith
analysis. As a reminder, plaintiff tribes have the initial
burden of “introduc[ing] . . . evidence” of a State’s refusal to
negotiate a compact in “good faith.” § 2710(d)(7)(B)(ii).
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 69
Once the tribe meets that evidentiary showing, the “burden
of proof” shifts to the State to prove that it has acted in good
faith. Id. By enumerating an exhaustive list of negotiable
subjects, Congress provided tribes with a way to meet their
initial burden of proof—by showing that a State violated
§ 2710(d)(3)(C). In other words, going beyond the scope of
§ 2710(d)(3)(C) is evidence that a State has violated its
good-faith duty under the burden-shifting framework.
Second, the § 2710(d)(3)(C) list notes that it applies to
“[a]ny Tribal-State compact negotiated under subparagraph
(A).” § 2710(d)(3)(C) (emphasis added). Subparagraph A
of § 2710(d)(3)(A) establishes the good-faith requirement.
Thus, the list is textually connected to a State’s good-faith
duty.
Third, a contrary reading would render § 2710(d)(3)(C)
nearly meaningless. If a violation of § 2710(d)(3)(C) did not
constitute evidence of bad faith, then the provision would
have little significance in IGRA’s overall structure. Instead,
by linking the list to evidence of bad faith, this interpretation
“give[s] effect . . . to every clause and word” of IGRA.
United States v. Menasche, 348 U.S. 528, 538–39 (1955)
(simplified).
So if a tribe has introduced evidence that a State sought
provisions outside the confines of the § 2710(d)(3)(C) list,
then the tribe has satisfied its burden to show the State’s bad
faith and the burden shifts to the State to prove its good faith.
But if a tribe fails to show that a State has put off-list topics
on the negotiation table, then the tribe hasn’t met its initial
70 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
burden and the State may prevail. 2 In effect, Congress gives
a State free rein to haggle for permissible gaming-related
topics—but if the State overreaches by negotiating for topics
outside of § 2710(d)(3)(C), then it is subject to greater
scrutiny.
C.
Greater scrutiny comes in the form of
§ 2710(d)(7)(B)(iii)(I)’s good-faith factors. As we have
said, the “good faith inquiry is nuanced and fact-specific.”
Coyote Valley II, 331 F.3d at 1113. So a State’s negotiation
for an off-list subject doesn’t automatically lead to a finding
of bad faith. Congress instead provided several factors that
courts “may take into account” when determining a State’s
good faith. § 2710(d)(7)(B)(iii)(I). These factors include
the “public interest, public safety, criminality, financial
integrity and adverse economic impacts on existing gaming
activities.” § 2710(d)(7)(B)(iii)(I). Based on these factors,
a State may prove that its off-list negotiations still amounted
to good faith.
While the five good-faith factors may appear
freewheeling, they aren’t to be construed “broadly in favor
of the State’s interests.” Rincon, 602 F.3d at 1032. Instead,
“those terms clearly apply to protecting the State against the
adverse consequences of gaming activities.” Id. So the
good-faith factors are to be read considering “legitimate state
interests regarding gaming and the purposes of IGRA.” Id.
at 1039. The factors must also be read in line with IGRA’s
2
While on-list negotiation is evidence of good faith as a substantive
matter, it doesn’t protect the State from charges of procedural bad faith.
See In re Indian Gaming Related Cases, 331 F.3d 1094, 1109 (9th Cir.
2003) (“Coyote Valley II”) (analyzing good faith as both a procedural
and substantive matter).
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 71
statutory command to “promot[e] tribal economic
development, self-sufficiency, and strong tribal
governments” and “ensure that the Indian tribe is the primary
beneficiary of the gaming operation.” § 2702(1), (2).
In short, IGRA’s good-faith analysis works like this:
(1) If a tribe fails to show that a State
negotiated for topics outside of
§ 2710(d)(3)(C), absent more, it has
failed to meet its initial showing of bad
faith and the inquiry ends.
(2) But if a tribe shows that a State negotiated
on a topic outside the list, it has satisfied
its initial burden of proving bad faith; and
(3) The burden then shifts to the State to
show its good faith under the
§ 2710(d)(7)(B)(iii)(I) factors.
While not the most straightforward statute, this reading
interprets IGRA “as a symmetrical and coherent regulatory
scheme . . . and fit[s] . . . all [its] parts into an harmonious
whole.” FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (simplified).
D.
With the proper legal framework in mind, I would hold
that California negotiated on four topics outside the scope of
the § 2710(d)(3)(C) list—spousal and child support orders,
environmental mitigation requirements, local government
agreements, and state tort law remedies. The Tribes thus met
their burden to show that California exceeded the scope of
IGRA’s permissible-topics list. And I would hold that the
72 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
burden shifted to California to prove that it complied with its
good-faith duty under the factors provided in
§ 2710(d)(7)(B)(iii)(I). I would therefore vacate the district
court’s grant of summary judgment for the Tribes and
remand so the district court may conduct the good-faith
analysis under the statutory factors in the first instance.
II.
My main disagreement with the majority results from
violating § 2710(d)(3)(C)—IGRA’s list of permissible
topics. The majority asserts that when a State negotiates for
a topic “well outside” IGRA’s list of permitted topics, it
constitutes per se bad faith—automatically triggering
IGRA’s remedial procedures. See Maj. Op. 31
(“Accordingly, when a state has demanded that a tribe
negotiate on topics well outside IGRA’s scope, it follows
that the state has not negotiated in good faith, end of story.”).
But there are several problems with the majority’s
interpretation.
A.
First, the majority relies heavily on its sense of IGRA’s
core “principles” and “objectives.” Maj. Op. 31. Instead of
relying on text and structure, the majority tells us “what
Congress had in mind” when it enacted IGRA, Maj. Op. 27–
28, and construes the statute from there. For example, we
are told to intuit Congress’s “aware[ness] of the danger that
states could use their compacting approval powers to
encroach on tribal sovereignty,” Maj. Op. 12, and to read the
provisions at issue here based on “core aspects of tribal
sovereignty,” Maj. Op. 27. This is not a text-based
approach; it’s a purpose-driven one. And what the majority
hints at, the concurrence makes clear. The concurrence says
that we should not be confined by “the text of the statute and
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 73
our precedents construing IGRA,” but instead we should
glean meaning from IGRA’s “purpose,” “legislative
history,” and atextual canons of construction. Concurrence
at 49–50.
But of course, the analysis must start and end with
IGRA’s text and structure—regardless of whether we
believe it best achieves the statute’s purpose. As judges, we
must reject “surmise about legislative purpose” and instead
look to a statute’s text and structure for guidance.
HollyFrontier Cheyenne Ref., LLC v. Renewable Fuels
Assn., 141 S. Ct. 2172, 2181–83 (2021). The majority tries
to cloak its reliance on IGRA’s purposes by calling it the
“context of the statute as a whole.” Maj. Op. 43. But it is
one thing to look to context to interpret the words of a
statute; it is another to use context to divine some broad
legislative purpose to override the statute’s plain meaning.
See John F. Manning, What Divides Textualists from
Purposivists?, 106 Colum. L. Rev. 70, 92–93 (2006)
(explaining the difference between “contextual evidence of
semantic usage” and “contextual evidence of the policy
considerations that apparently justified the statute”).
Contrary to the view of my colleagues, “we can never let
perceived legislative purpose eclipse the ordinary meaning
of statutory text.” Rojas v. FAA, 989 F.3d 666, 695 (9th Cir.
2021) (en banc) (Bumatay, J., dissenting in part). Indeed,
“[l]awmaking is not a tidy affair;” “[i]t can be a clumsy,
inefficient, even unworkable process.” Id. (simplified). So,
in my view, it is a fruitless exercise to try to divine why
Congress chose to write IGRA the way it did. For example,
the majority wonders why Congress inserted the good-faith
factors into IGRA when doing so could “undermine” the
statute’s “crystalline” objective. Maj. Op. 41. But such
arguments have little to do with uncovering meaning and
74 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
ignore what are often “hard-fought compromises” in
legislation. Bd. of Governors of Fed. Reserve Sys. v.
Dimension Fin. Corp., 474 U.S. 361, 374 (1986). The
Supreme Court has warned us that “[c]ourts are not
authorized to rewrite a statute because they might deem its
effects susceptible of improvement.” Badaracco v. Comm’r,
464 U.S. 386, 398 (1984). Rather than question the
“wisdom” of Congress, see Maj. Op. 42–43, we must
enforce the statute Congress wrote—not offer judicial
amendments for the sake of sound policy. 3
B.
Most fundamentally, the majority’s reading of IGRA
conflicts with its plain text. The majority concludes that a
State’s negotiation for topics “well outside” § 2710(d)(3)(C)
automatically constitutes bad faith. See Maj. Op. 48. But
that bears little resemblance to the law Congress enacted.
IGRA establishes that courts “may take into account” the
good-faith factors—public interest, public safety,
criminality, financial integrity and adverse economic
impacts—before “determining . . . whether a State has
negotiated in good faith.” § 2710(d)(7)(B)(iii)(I). The
majority’s approach effectively erases these factors from the
statute.
3
The majority also ventures away from IGRA’s text and structure,
and even beyond its legislative history, to hypothesize about what the
Department of Interior might say about this compact. Maj. Op. 42–43
(rejecting an interpretation of IGRA that would allow “further
proceedings on a compact that the Department of Interior has
telegraphed it will reject”). IGRA’s text governs irrespective of Interior
officials’ future judgment calls. In interpreting IGRA, we have a duty to
interpret the law no matter how unelected bureaucrats might react.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 75
Instead, the majority’s automatic bad-faith rule bars
courts from even considering the factors before forcing
parties into IGRA’s remedial procedures. So while the
majority sees a violation of § 2710(d)(3)(C) as the “end of
[the] story,” see Maj. Op. 31, IGRA tells us that courts may
continue to analyze good faith based on the statutory good-
faith factors. Essentially, the majority substitutes “may not”
where the statute clearly says “may”—something we are not
authorized to do.
Such a reading is also inconsistent with IGRA’s
structure. IGRA authorizes States to impose assessments on
a tribe’s gaming activities, but precludes them from
imposing any tax or assessment “upon an Indian tribe” itself.
§ 2710(d)(3)(C), 2710(d)(4). In the same subsection as the
good-faith factors, IGRA establishes that courts “shall
consider any demand by the State for direct taxation of the
Indian tribe . . . as evidence that that the State has not
negotiated in good faith.” § 2710(d)(7)(B)(iii)(II) (emphasis
added). So even when a State unquestionably violates
IGRA’s list of permissible topics, such negotiation still
doesn’t trigger automatic bad faith because IGRA tells
courts to consider such a demand “as evidence” of bad faith.
Id. If any off-list negotiation constituted automatic bad faith
(as the majority contends), there would be no point in
making “direct taxation of the Indian tribe” evidence of bad
faith since that topic is already outside the list of permissible
subjects. 4 The majority thus neglects IGRA’s nuanced
4
The majority tries to evade this dilemma by saying that “[a]
negotiated provision may be characterized as a direct tax and also fall
within a permissible topic of negotiation” because IGRA authorizes
“assessments.” Maj. Op. 40 n.8. That’s not so. IGRA authorizes
“assessments” and “taxation” of gaming activities—not a direct tax on
76 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
scheme for analyzing good faith by fashioning a per se rule
divorced from the text.
At the same time, the majority also creates a new atextual
test for complying with § 2710(d)(3)(C). Now,
§ 2710(d)(3)(C) is seemingly violated only when a State’s
proposed topic is “well outside” or “far exceeds” the list of
permissible topics. Maj. Op. 30–31 Where does this test
come from? And how exactly are district courts supposed to
administer it? The majority doesn’t say.
Now judges will be tasked with resolving a multi-step
test whenever they confront an IGRA challenge. First,
courts will have to draw a line between on-list and off-list
topics. Second, courts will need to define when an off-list
topic is “well outside” the list. How will they know when a
topic “far exceeds” or is just “slightly” outside the list? See
Maj. Op. 31 n.5. Presumably, courts will have to make it up.
And what happens when a topic is slightly outside the list?
Does the State get a pass? If so, that conflicts with the
majority’s view that the “exhaustive nature of IGRA’s
enumerated list . . . means nothing if states can ultimately go
beyond that list.” Maj. Op. 31. In my view, these tough
questions are all unnecessary given that the words “far
exceed” or “well outside” appear nowhere in IGRA’s text.
Perhaps this confusing framework is because the
majority is unwilling to live with the consequences of its
automatic bad-faith rule—that any deviation from the list is
per se bad faith and triggers IGRA’s remedial procedures.
Take this case as an example. The negotiations between
tribes unrelated to gaming activity. § 2710(d)(3)(C)(iii)–(iv). So it
remains true that a direct tax of an Indian tribe is an off-list topic and
Congress did not require an automatic finding of bad faith.
CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA 77
California and the Tribes took place over four years, with
39 days of in-person negotiations, and 26 draft compacts
exchanged between the parties. Under the majority’s
framework, if California proposes any topic or proposal
minimally outside the list, the Tribe could go to court,
petition for the remedial procedures, and wipe out all those
hard days of negotiation. Seemingly too much to stomach,
the majority gives itself breathing room by fashioning the
“well outside” requirement out of whole cloth. So now,
instead of relying on the statutory factors of good faith,
parties will now have to litigate the inches between what’s
“permissible” and what’s “well outside” the line.
C.
The majority tries to preserve some use for the good-
faith factors by suggesting that they can be used to evaluate
a State’s on-list negotiations. Maj. Op. 37. But such a
reading makes complying with § 2710(d)(3)(C) nearly
meaningless. Even when a State follows § 2710(d)(3)(C)’s
list of permissible topics to a tee, the majority would still
require the State to defend its negotiations under the good-
faith factors. This approach dramatically expands IGRA’s
scope, abandons the statute’s burden-shifting framework,
and makes litigation more likely.
While the majority agrees that § 2710(d)(3)(C)
constitutes a list of permissible negotiation topics, those
topics may not be so permissible after the majority’s good-
faith analysis. In other words, if a State does exactly what
IGRA tells it to do by negotiating for on-list topics, the
majority would still have courts review every detail of the
negotiations to sniff out evidence of bad faith. But IGRA’s
text does not give courts a license to put every negotiation
detail under the microscope—especially when a State
negotiates for exactly what IGRA allows.
78 CHICKEN RANCH RANCHERIA V. STATE OF CALIFORNIA
As a supposed justification for its approach, the majority
imagines a scenario where a State bargains for a permissible,
on-list topic, but the proposal would be “highly
burdensome” and “unnecessary.” Maj. Op. 34. I agree that
negotiating for “unnecessary” topics may constitute bad
faith in some cases, but we need not adopt the majority’s
atextual framework to get there. Under a proper reading of
IGRA, a tribe may still allege that a State engaged in
procedural bad faith by disguising an unnecessary poison pill
as a substantively permissible topic. Cf. Pauma Band,
973 F.3d at 963, 966 (analyzing a claim of procedural bad
faith for including “unduly harsh” language in the draft
compact).
III.
In the end, my disagreement with the majority comes
down to principles of statutory interpretation. Rather than
interpreting text and structure, the majority instead focuses
on reading IGRA based on its “core principles,” Maj. Op. 31
“core objectives,” id. at 31; “legislative intent,” id. at 43;
“legislative history,” Concurrence at 49–50; and “purpose,”
id. at 59. The unfortunate result is the expansion of IGRA
beyond what its text allows.
For these reasons, I respectfully dissent.