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