Navajo Nation Northern Edge Navajo Casino v. The Honorable Bradford J. Dalley, et al.

The Appellants, the Navajo Nation and its wholly-owned government

enterprise the Northern Edge Navajo Casino (together, the “Tribe” or “Nation”),

entered into a state-tribal gaming compact with New Mexico under the Indian

Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701–2721. The Tribe agreed

not only to waive its sovereign immunity for personal-injury lawsuits brought by

visitors to its on-reservation gaming facilities, but also to permit state courts to

take jurisdiction over such claims. Harold and Michelle McNeal (the “McNeals”)

are plaintiffs in just such a state-court action against the Tribe. Mr. McNeal

allegedly slipped on a wet floor in the Northern Edge Navajo Casino. This slipand-

fall incident constituted the basis for the McNeals’ tort claims against the

2

Nation for negligence, res ipsa loquitur, and loss of consortium. Judge Bradford

Dalley is a New Mexico state judge who presides over the ongoing state-court

proceedings. We refer to the McNeals and Judge Dalley collectively as the

Appellees.

The Tribe moved to dismiss the McNeals’ complaint, arguing that the state

court lacked jurisdiction because neither IGRA nor Navajo law permits the

shifting of jurisdiction to a state court over such personal-injury claims. The state

court rejected that motion. In response, the Tribe sought declaratory relief in

federal court on the basis of the same arguments. The district court granted

summary judgment for the McNeals and Judge Dalley, holding that IGRA

permitted tribes and states to agree to shift jurisdiction to the state courts and that

Navajo law did not prohibit such an allocation of jurisdiction. The Tribe timely

appealed. Prior to oral argument, we ordered the parties to submit supplemental

briefs as to whether the district court had jurisdiction.

Along with the jurisdictional issue, the parties also dispute (1) whether

IGRA permits an Indian tribe to allocate jurisdiction over a tort claim arising on

Indian land to a state court, and (2) assuming that IGRA does allow for such an

allocation, whether the Navajo Nation Council (“NNC”) was empowered to shift

jurisdiction to the state court under Navajo Law.

After first concluding that we have jurisdiction to hear this appeal, we

determine that IGRA, under its plain terms, does not authorize an allocation of

3

jurisdiction over tort claims of the kind at issue here. Accordingly, we reverse

the judgment of the district court and remand with instructions to grant the

declaratory relief sought by the Nation.

I

A

In 1987, the Supreme Court decided California v. Cabazon Band of Mission

Indians, in which it held that states could not regulate gaming activities on Indian

land without Congressional authorization. 480 U.S. 202, 207 (1987) (rejecting

California’s attempted regulation of bingo and some card games), superseded by

statute, Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721, as recognized in

Michigan v. Bay Mills Indian Cmty., --- U.S. ----, 134 S. Ct. 2024 (2014); see

New Mexico v. Dep’t of Interior (“N.M./DOI”), 854 F.3d 1207, 1211 (10th Cir.

2017) (“In 1987, the Supreme Court [in Cabazon] held that states lack regulatory

authority over gaming activities on Indian land except where Congress has

expressly provided for such authority.”); Kevin K. Washburn, Recurring

Problems in Indian Gaming, 1 WYO. L. REV. 427, 428 (2001) (“The [Cabazon]

Court held that although Congress may have given to the State of California

criminal jurisdiction within Indian reservations, Congress had not given the state

the lesser power of civil regulatory jurisdiction on reservations.”).

In response to that “bombshell” ruling, Franklin Ducheneaux, The Indian

Gaming Regulatory Act: Background and Legislative History, 42 ARIZ. ST. L.J.

4

99, 154 (2010), Congress enacted IGRA in 1988 to create a framework for states

and Indian tribes to cooperate in regulating on-reservation tribal gaming, see

Pueblo of Pojoaque v. New Mexico, 863 F.3d 1226, 1232 (10th Cir. 2017) (“In

response to the Supreme Court’s holding in [Cabazon], that states lack regulatory

authority over Indian gaming on tribal lands absent congressional action,

Congress enacted IGRA, 25 U.S.C. §§ 2701–2721, to provide a role for states in

regulating Indian gaming activities on tribal lands.”); see also Bay Mills, 134 S.

Ct. at 2034 (“Everything—literally everything—in IGRA affords tools (for either

state or federal officials) to regulate gaming on Indian lands, and nowhere else.”);

N.M./DOI, 854 F.3d at 1212 (noting that IGRA “gives states a role in the

regulation of Indian gaming”); COHEN’S HANDBOOK OF FEDERAL INDIAN LAW §

12.01, at 876 (Nell Jessup Newton ed., 2012) [hereinafter, “COHEN’S

HANDBOOK”] (“IGRA accommodated the interests of tribes in pursuing gaming

but also set forth a federal regulatory regime, and gave a powerful role to states

by providing for significant state involvement in the decision to permit casinostyle

gaming.”). IGRA enables states and tribes to negotiate compacts addressing

a range of topics relating to tribal gaming. See 25 U.S.C. § 2710(d).

Under IGRA, tribes that seek to conduct gaming activities are incentivized

to negotiate gaming compacts with states because, absent such compacts, the most

“lucrative” form of gaming—Class III gaming—is forbidden. N.M./DOI, 854

F.3d at 1212 (“The present case concerns Class III gaming, which includes the

5

most lucrative forms of gaming.”); see § 2710(d)(1); Bay Mills, 134 S. Ct. at 2035

(“[A] tribe cannot conduct class III gaming on its lands without a compact . . . .”);

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996) (“The Indian Gaming

Regulatory Act provides that an Indian tribe may conduct certain gaming

activities only in conformance with a valid compact between the tribe and the

State in which the gaming activities are located.”). “Class III gaming . . .

includes casino games, slot machines, and horse racing.” Bay Mills, 134 S. Ct. at

2028; see Washburn, supra, at 429 (“IGRA provides that tribes may engage in

Class III casino-style gaming only if they first negotiate ‘compacts’ with

states.”).1

1 Notably, Congress also sought to encourage states to come to the

gaming-compact bargaining table by statutorily obliging them in IGRA to

negotiate in good faith and abrogating their sovereign immunity if they did not do

so. § 2710(d)(3)(A), (7)(A); see N.M./DOI, 854 F.3d at 1211 (noting that “IGRA

provides that when a tribe believes a state has failed to negotiate in good faith,

the tribe may sue in federal court”). However, the Supreme Court defanged this

enforcement procedure when it held in Seminole Tribe that “Congress lacked the

authority to make states subject to suit by Indian tribes in federal court.”

N.M./DOI, 854 F.3d at 1211; see Seminole Tribe, 517 U.S. at 72 (“[W]e reconfirm

that the background principle of state sovereign immunity embodied in the

Eleventh Amendment is not so ephemeral as to dissipate when the subject of the

suit is an area, like the regulation of Indian commerce, that is under the exclusive

control of the Federal Government.”); see also Ducheneaux, supra, at 177

(“[E]ight years after the enactment of IGRA, the Supreme Court, in the case of

Seminole Tribe v. Florida . . . held that Congress did not have power to subject

states to suits under the Commerce clause . . . . This decision upset the delicate

balance Congress had adopted in the Tribal-State Compact provision and, as

feared by Congress, put the tribes at the mercy of states in compact negotiations.”

(footnotes omitted)); Rebecca Tsosie, Negotiating Economic Survival: The

(continued...)

6

Importantly, IGRA expressly prescribes the matters that are permissible

subjects of gaming-compact negotiations between tribes and states.

§ 2710(d)(3)(C). In the tribal-state compact that the Tribe and New Mexico

entered into, the Tribe agrees not only to waive its sovereign immunity as to

personal-injury claims brought by visitors to its casinos but also to permit such

claims to be brought in state court. See Aplt.’s App. at 26 (State-Tribal Compact,

dated Nov. 6, 2003).2 More specifically, the compact permits such state-court

1(...continued)

Consent Principle and Tribal-State Compacts Under the Indian Gaming

Regulatory Act, 29 ARIZ. ST. L.J. 25, 71 (1997) (noting that, as a result of

Seminole Tribe, many states have “refus[ed] to negotiate further tribal-state

compacts” which has left the tribes with “limited remedies”).

2 The relevant portions of the compact read:

SECTION 8. Protection of Visitors.

A. Policy Concerning Protection of Visitors. The safety

and protection of visitors to a Gaming Facility is a priority of the

Nation, and it is the purpose of this Section to assure that any

such persons who suffer bodily injury or property damage

proximately caused by the conduct of the Gaming Enterprise

have an effective remedy for obtaining fair and just

compensation. To that end, in this Section, and subject to its

terms, the Nation agrees to carry insurance that covers such

injury or loss, agrees to a limited waiver of its immunity from

suit, and agrees to proceed either in binding arbitration

proceedings or in a court of competent jurisdiction, at the

visitor’s election, with respect to claims for bodily injury or

property damage proximately caused by the conduct of the

Gaming Enterprise. For purposes of this Section, any such claim

may be brought in state district court, including claims arising on

(continued...)

7

litigation, “unless it is finally determined by a state or federal court that IGRA

does not permit the shifting of jurisdiction over visitors’ personal injury suits to

state court.” Id.

B

The present dispute has its genesis in a slip-and-fall case that the McNeals

2(...continued)

tribal land, unless it is finally determined by a state or federal

court that IGRA does not permit the shifting of jurisdiction over

visitors’ personal injury suits to state court.

. . . .

D. Specific Waiver of Immunity and Choice of Law.

The Nation, by entering into this Compact and agreeing to the

provisions of this Section, waives its defense of sovereign

immunity in connection with any claims for compensatory

damages for bodily injury or property damage up to the amount

of fifty million dollars ($50,000,000) per occurrence asserted as

provided in this Section. This is a limited waiver and does not

waive the Nation’s immunity from suit for any other purpose.

The Nation shall ensure that a policy of insurance that it acquires

to fulfill the requirements of this Section shall include a

provision under which the insurer agrees not to assert the defense

of sovereign immunity on behalf of the insured, up to the limits

of liability set forth in this Paragraph. The Nation agrees that in

any claim brought under the provisions of this Section, New

Mexico law shall govern the substantive rights of the claimant,

and shall be applied, as applicable, by the forum in which the

claim is heard, except that the tribal court may but shall not be

required to apply New Mexico law to a claim brought by a

member of the Nation.

Aplt.’s App. at 26–27.

8

brought in New Mexico state court. Mr. McNeal allegedly fell on a wet bathroom

floor in the Navajo Northern Edge Casino. He and his wife sued the Nation,

which owns and operates the casino, claiming negligent maintenance, res ipsa

loquitur, and loss of consortium. In a motion to dismiss, the Tribe argued that the

state court lacked subject-matter jurisdiction for two reasons. First, it contended

that this was so because IGRA does not authorize states and tribes to enter into

compacts that shift jurisdiction over tort claims stemming from events on Indian

country to state court—viz., IGRA does not contemplate that the shifting of

jurisdiction over such claims is a permissible subject of compact negotiations.

Second, it argued that NNC was not authorized to shift jurisdiction over tort

claims against the Nation, like those of the McNeals, to state court.

The state court denied the Tribe’s motion to dismiss on the basis that the

New Mexico Supreme Court, in Doe v. Santa Clara Pueblo, had already decided

the issue. 154 P.3d 644, 646 (N.M. 2007) (“We now . . . hold[] that state courts

have jurisdiction over personal injury actions filed against [the tribes] arising

from negligent acts alleged against casinos owned and operated by the [tribes]

and occurring on the [tribes’] lands.”). Subsequently, Judge Dalley took over the

state court case.

The Tribe then brought this suit for a declaratory judgment in the U.S.

District Court for the District of New Mexico. The Tribe sought a declaratory

judgment “that [the] Indian Gaming Regulatory Act does not permit the shifting

9

of jurisdiction from tribal courts to state courts over personal injury lawsuits

brought against tribes or tribal gaming enterprises, and that the New Mexico state

courts do not have jurisdiction over lawsuits such as the McNeal Lawsuit.”

Aplt.’s App. at 11–12. (Am. Compl., dated Sept. 21, 2015).

The Tribe moved for summary judgment, and the district court denied

relief. The court first addressed whether the Nation inherently had the authority

to permit state court jurisdiction over claims arising in Indian country, and held

that it did. It then concluded that NNC was authorized under Navajo law to shift

jurisdiction over tort claims against the Nation, like those of the McNeals, to state

court. Lastly, the court addressed the IGRA question, holding that IGRA

authorized such shifting of jurisdiction as to personal-injury tort claims either

under 25 U.S.C. § 2710(d)(3)(C)(i) and (ii), when read together; or under the

catch-all provision, § 2710(d)(3)(C)(vii). Concluding thereafter that “there [were]

no legal issues remaining to be resolved,” the district court dismissed the case.

Id. at 163 (Mem. Op. & Order, dated Aug. 3, 2016). The Tribe timely appealed

from the district court’s judgment.

II

We first address our jurisdiction. Because federal courts have limited

subject-matter jurisdiction, “we ‘may only hear cases when empowered to do so

by the Constitution or by act of Congress.’” Gad v. Kan. State Univ., 787 F.3d

1032, 1035 (10th Cir. 2015) (quoting Radil v. Sanborn W. Camps, Inc., 384 F.3d

10

1220, 1225 (10th Cir. 2004)). “[W]e always have an independent obligation—no

matter the stage of litigation—to consider whether a case creates a live case or

controversy and belongs in federal court.” Id.; accord Arbaugh v. Y&H Corp.,

546 U.S. 500, 514 (2006). We review de novo whether subject-matter jurisdiction

is proper. See, e.g., 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d

1044, 1048 (10th Cir. 2006); Austl. Gold, Inc. v. Hatfield, 436 F.3d 1228, 1234

(10th Cir. 2006).

Consistent with our independent obligation, we ordered the parties to

submit briefing regarding, inter alia, whether, under 28 U.S.C. § 1331, the district

court had federal jurisdiction over this action when the Tribe was raising what (at

first blush) appeared to be federal defenses to pure state-law claims. Since this

briefing, that jurisdictional issue has been resolved by a panel of our court in Ute

Indian Tribe v. Lawrence, 875 F.3d 539 (10th Cir. 2017), which ruled that federal

courts do have jurisdiction in circumstances like those presented here.

Specifically, in Lawrence, a non-Indian brought a breach-of-contract claim

against the Ute Indian tribe in Utah state court. Seeking to halt the state

proceeding, the Tribe filed suit in federal district court, “asserting . . . that the

state court lacked subject-matter jurisdiction to hear the case.” Id. at 540. The

district court, in turn, determined that it did not have jurisdiction to consider the

Tribe’s challenge to the state court’s jurisdiction. Id. The Tribe appealed, and

we reversed the district court’s determination, holding that the Ute Tribe’s

11

“claim—that federal law precludes state-court jurisdiction over a claim against

Indians arising on the reservation—presents a federal question that sustains

federal jurisdiction.” Id.

In reaching that conclusion, the panel first analyzed the “long history of

federal law regarding Indian affairs,” id. at 541, and observed both that “federal

law regulates a tribe’s right to exercise jurisdiction over non-Indians,” id. at 542,

and “that state adjudicative authority over Indians for on-reservation conduct is

greatly limited by federal law,” id. From those principles, we determined that

“federal courts generally have jurisdiction to enjoin the exercise of state

regulatory authority (which includes judicial action) contrary to federal law,” id.

at 543, and reasoned that the tribe’s suit arose under federal law because it was

“seeking injunctive and declaratory relief against state regulation (the state-court

proceeding) that it claims is preempted by federal law,” id. at 547.

Lawrence’s analysis is directly applicable here: the Nation here seeks

declaratory relief under federal law against state regulation, viz., the state-court

proceeding, claiming that federal law preempts it. As such, we properly exercise

jurisdiction over this appeal under § 1331.3

III

Proceeding to the merits, this appeal presents two issues, one of federal law

3 Because we conclude that we may exercise jurisdiction under § 1331,

we need not reach the parties’ remaining jurisdictional arguments.

12

and one of Navajo law. First, the Nation asserts that the district court erred in

concluding that IGRA authorizes an Indian tribe to allocate jurisdiction over a tort

claim arising on Indian land to a state court. Second, even assuming that IGRA

does allow a tribe to allocate jurisdiction of such claims to state courts, the Nation

submits that the NNC was not empowered to shift jurisdiction to the state court as

a matter of Navajo law. Because we decide the first issue in the Nation’s favor,

we need not reach the question of Navajo law.

A

It is axiomatic that absent clear congressional authorization, state courts

lack jurisdiction to hear cases against Native Americans arising from conduct in

Indian country. See, e.g., Williams v. Lee, 358 U.S. 217, 223 (1959) (“There can

be no doubt that to allow the exercise of state jurisdiction here would undermine

the authority of the tribal courts over Reservation affairs and hence would

infringe on the right of the Indians to govern themselves. It is immaterial that

respondent [i.e., plaintiff] is not an Indian . . . . If this power [of Indian

governments over their territory] is to be taken away from them, it is for Congress

to do it.”); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987) (“If state-court

jurisdiction over Indians or activities on Indian lands would interfere with tribal

sovereignty and self-government, the state courts are generally divested of

jurisdiction as a matter of federal law.”); accord COHEN’S HANDBOOK, supra, §

7.03[1][a][ii], at 608. It is also a well-settled principle that “Congress possesses

13

plenary power over Indian affairs, including the power to modify or eliminate

tribal rights.” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998);

accord Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); United States v.

Shavanaux, 647 F.3d 993, 997 (10th Cir. 2011).

Consequently, congressional approval is necessary—i.e., it is a threshold

requirement that must be met—before states and tribes can arrive at an agreement

altering the scope of a state court’s jurisdiction over matters that occur on Indian

land. See Kennerly v. Dist. Court of Ninth Judicial Dist. of Mont., 400 U.S. 423,

427 (1971) (per curiam) (holding that the “unilateral action of the Tribal Council

was insufficient to vest” the state courts with jurisdiction over a civil suit against

an Indian defendant stemming from a transaction occurring on tribal land because

Congress did not expressly authorize such tribal-council consent as a means for

states to take jurisdiction); Fisher v. Dist. Court of Sixteenth Judicial Dist. of

Mont., in & for Rosebud Cty., 424 U.S. 382, 388 (1976) (per curiam) (holding that

Montana courts could not exercise jurisdiction over adoption proceedings

involving Indians on Indian land because “[n]o federal statute sanction[ed] this

interference with tribal self-government”); COHEN’S HANDBOOK, supra, § 7.07[4],

at 673 (“Because of federal supremacy over Indian affairs, tribes and states may

not make agreements altering the scope of their jurisdiction in Indian country

absent congressional consent.”); cf. Bay Mills, 134 S. Ct. at 2032 (noting that

“[u]nless Congress has authorized [the present] suit, [Supreme Court] precedents

14

demand that it be dismissed”).

Congress has “authorized” the tribes and states to make such jurisdictionaltering

agreements “in only a few specific circumstances”; the area of tribal-state

gaming compacts represents one such circumstance. COHEN’S HANDBOOK, supra,

§ 7.07[4], at 673 & n.92; see Bay Mills, 134 S. Ct. at 2032 (acknowledging that

IGRA “partially abrogate[d] tribal sovereign immunity”).

All of that background leads us to the question presented: whether IGRA

authorizes tribes to enter into gaming compacts with states that allocate

jurisdiction to state courts with respect to state-law tort claims like the McNeals’.

For the reasons that follow, we conclude it does not.4

As noted, “IGRA authorizes states and Indian nations to enter into

compacts associated with the operation of certain forms of tribal gaming known

4 This background should provide a context for understanding why we

need not reach the question of Navajo law noted above: because Congress,

through IGRA, has not authorized tribes to enter into compacts with states

allocating jurisdiction to state courts over tort claims arising on Indian land like

those prosecuted by the McNeals, whether the NNC’s actions under Navajo law

would have permitted such a jurisdictional transfer is immaterial. In other words,

because we conclude that Congress has not authorized the shifting of jurisdiction

over the tort claims at bar by way of IGRA, our analysis is at an end; we need not

decide more because “the negotiated terms of the Compact cannot exceed what is

authorized by the IGRA.” Pueblo of Santa Ana v. Nash, 972 F. Supp. 2d 1254,

1266 (D.N.M. 2013); see COHEN’S HANDBOOK, supra, § 6.04[3][d][iii], at 569

(noting that “IGRA establishes exclusive federal jurisdiction over civil actions

involving Indian gaming and gaming contract disputes, thereby supplanting any

civil jurisdiction over private lawsuits that states might [otherwise] have acquired

over such matters” by other congressional action (emphasis added)).

15

as Class III gaming.” COHEN’S HANDBOOK, supra, § 6.04[3][d][iii], at 569.

Specifically, subparagraph (A) of § 2710(d)(3) of IGRA provides that

Any Indian tribe having jurisdiction over the Indian lands upon

which a class III gaming activity is being conducted, or is to be

conducted, shall request the State in which such lands are located

to enter into negotiations for the purpose of entering into a

Tribal-State compact governing the conduct of gaming activities.

25 U.S.C.A. § 2710(d)(3)(A) (emphases added).

Then subparagraph (C) of this same section provides:

Any Tribal-State compact negotiated under subparagraph (A)

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;

(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.

16

Id. § 2710(d)(3)(C)(i)–(vii) (emphases added).

The district court held that a compact could be used to shift jurisdiction to

state courts for tort claims stemming from conduct in an on-reservation gaming

facility based on either clauses (i) and (ii), when read together; or clause (vii).

See Aplt.’s App. at 191–97. No party suggests any other basis under IGRA for

shifting jurisdiction over tort claims. Reviewing the district court’s statutory

interpretation de novo, see United States v. Porter, 745 F.3d 1035, 1040 (10th

Cir. 2014); United States v. Willis, 476 F.3d 1121, 1124 (10th Cir. 2007), we

address each theory in turn.

B

1

The Nation first contends that the district court erred in concluding that

IGRA authorizes an Indian tribe to shift jurisdiction to state courts over tort

claims stemming from conduct on Indian casino property based on clauses (i) and

(ii) of subparagraph (C) of § 2710(d)(3). The Nation asserts that IGRA was not

intended to allow for the shifting of jurisdiction from tribal courts to state courts

for private tort lawsuits such as the one at bar, but permits the shifting of

jurisdiction for only those activities that are “‘necessary for the enforcement’ of

laws and regulations that are ‘directly related to and necessary for’ the licensing

and regulation of class III gaming activities.” Aplt.’s Opening Br. at 15 (quoting

§ 2710(d)(3)(C)).

17

The McNeals acknowledge that the language “gaming activity” in IGRA

“refers to gambling, something that typically takes place in a casino,” and more

specifically Class III gaming, but stress that “[c]asinos house not only games of

chance, but they are also entertainment venues where visitors come not only to

gamble but also to eat and drink, and where like [Mr. McNeal], they may use the

restroom.” McNeal Aplees.’ Br. at 20. Therefore, the McNeals reason that it is

“unrealistic” to interpret IGRA’s authorization for compacting regarding the

application of state civil laws relating to the regulation of Class III gaming—i.e.,

to “such activity,” § 2710(d)(3)(C)(i)—to be restricted to laws regarding

gambling activities, McNeal Aplees.’ Br. at 20 (noting that the regulation of Class

III gaming is not restricted to “slot odds, maximum bets and the thickness of felt

at the blackjack tables” but rather relates generally to “activities that go on in a

casino”). Judge Dalley takes a similar position: specifically, he argues that the

agreement in the tribal-state compact to “regulate” with respect to injuries like

those that the McNeals allegedly suffered, by applying “New Mexico tort law,

enforceable in state court[,] is within the proper scope of a gaming compact under

the IGRA.” J. Dalley’s Br. at 23; see id. (“Class III gaming activities do not take

place in a vacuum. Visitors who go to the casino to gamble will necessarily use

the casino’s bathroom.”).

The Nation counters that personal-injury claims sounding in tort do not

involve civil laws “directly related to, and necessary for,” the regulation of Class

18

III gaming activities, § 2710(d)(3)(C)(i), and therefore IGRA does not authorize

compacting with respect to the application of such laws under the circumstances

here. We agree with the Nation.

At bottom, the parties’ dispute relates to the scope of the term “class III

gaming activity.” In Bay Mills, the Supreme Court construed “class III gaming

activity” to mean “just what it sounds like—the stuff involved in playing class III

games,” and in doing so, expressly interpreted § 2710(d)(3)(C)(i). 134 S. Ct. at

2032 (emphasis added). The Court continued: “[Sections 2710(d)(3)(C)(i) and

2710(d)(9), which authorize tribes to enter into management contracts for Class

III gaming] make perfect sense if ‘class III gaming activity’ is what goes on in a

casino—[that is,] each roll of the dice and spin of the wheel.” Id. (emphasis

added). The Court further concluded that this use of the term was consistent

throughout the statute, holding that “the gaming activity is the gambling in the

poker hall, not the proceedings of the off-site administrative authority,” and that

the statute’s enforcement power over “gaming activity” was a power “to shut

down crooked blackjack tables, not the tribal regulatory body meant to oversee

them.” Id. at 2033 (emphasizing, “[t]he ‘gaming activit[y]’ is (once again) the

gambling” (alteration in original)).

The Court’s analysis in Bay Mills leads us to the clear conclusion that Class

III gaming activity relates only to activities actually involved in the playing of the

game, and not activities occurring in proximity to, but not inextricably

19

intertwined with, the betting of chips, the folding of a hand, or suchlike. See

Harris v. Lake of Torches Resort & Casino, 862 N.W. 2d 903, 2015 WL 1014778,

at *5 (Wis. Ct. App. Mar. 10, 2015) (per curiam) (unpublished) (“Applying th[e

Bay Mills] definition, Harris—who was injured while working as a cook at a

restaurant located in a casino—was not injured in connection with a class III

gaming activity.”); see also California v. Iipay Nation of Santa Ysabel, No.

314CV02724AJBNLS, 2016 WL 10650810, at *11 (S.D. Cal. Dec. 12, 2016)

(unpublished) (“[T]he gaming activity is not the software-generated algorithms or

the passive observation of the proxy monitors. Rather, it is the patrons’ act of

selecting the denomination to be wagered, the number of games to be played, and

the number of cards to play per game.”). And, even assuming that tort law is a

form of “regulation” of “the operation of gaming activities,” as the district court

correctly observed, see Aplt.’s App. at 192, actions arising in tort in

circumstances similar to this one are not “directly related to, and necessary for,

the licensing and regulation of such activity,” § 2710(d)(3)(C)(i), because they do

not stem from the actual playing of the casino game.5 Put another way, if

5 We are not obliged to read the term “necessary” as meaning

“absolutely necessary” or “indispensable.” See Fish v. Kobach, 840 F.3d 710,

734–35 (10th Cir. 2016); accord United States v. Comstock, 560 U.S. 126, 134

(2010); In re Mile Hi Metal Sys., Inc., 899 F.2d 887, 893 (10th Cir. 1990).

Nevertheless, the use of the word “necessary” in clause (i) evinces the narrowing

of the sphere of acceptable laws and regulations, especially when compared with

clause (vii), which omits the “necessary for” condition and speaks only in terms

(continued...)

20

individuals are not participating in Class III gaming activities on Indian land—as

Bay Mills understands them—when they are allegedly harmed by a tortfeasor, we

are hard-pressed to see how tort claims arising from their activities could be

“directly related to, and necessary for, the licensing and regulation” of Class III

gaming activities.

This conclusion is ineluctable when the plain statutory text is viewed

through the prism of Bay Mills. See United States v. Nichols, 184 F.3d 1169,

1171 (10th Cir. 1999) (“[W]here a statute is clear on its face, we give its words

literal effect.”); cf. Antonin Scalia & Bryan A. Garner, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 3 (2012) (“In an age when democratically

prescribed texts (such as statutes, ordinances, and regulations) are the rule, the

judge’s principal function is to give those texts their fair meaning.”).

Accordingly, IGRA, in clause (i), does not authorize compacting regarding the

application of state tort law under the circumstances here.6

5(...continued)

of “subjects that are directly related to the operation of gaming activities.” §

2710(d)(3)(C)(vii) (emphasis added).

6 The Appellees present various arguments seeking to distinguish Bay

Mills; none are availing. Their first two arguments essentially contend that the

Bay Mills Court did not directly assess what terms may be included in a compact,

see McNeal Aplees.’ Br. at 20–21; J. Dalley’s Br. at 23 n.9, but instead addressed

a different issue. See Bay Mills, 134 S. Ct. at 2028 (“The question in this case is

whether tribal sovereign immunity bars Michigan’s suit against the Bay Mills

Indian Community for opening a casino outside Indian lands. We hold that

(continued...)

21

6(...continued)

immunity protects Bay Mills from this legal action.”). This argument, however,

does not move the ball for them because we are bound to follow both the holding

and the reasoning, even if dicta, of the Supreme Court. See Surefoot LC v. Sure

Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (“Moreover, even if the Court’s

rejection of the reasonable apprehension test could be plausibly characterized as

dicta, our job as a federal appellate court is to follow the Supreme Court’s

directions, not pick and choose among them as if ordering from a menu.”); Gaylor

v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“While these statements are

dicta, this court considers itself bound by Supreme Court dicta almost as firmly as

by the Court’s outright holdings, particularly when the dicta is recent and not

enfeebled by later statements.”). And, as discussed, the Supreme Court’s explicit

interpretation of clause (i) inexorably leads to our present conclusion.

The Appellees also present a third argument. Specifically, they observe

that this case involves the interpretation of provisions that enhance tribal

sovereign immunity, i.e., permit the Nation to use its jurisdiction as a bargaining

chip, whereas the provisions at issue in Bay Mills abrogated tribal sovereignty;

consequently, they reason that we should read the provisions here more broadly

than the Bay Mills Court did because of the differing effects the constructions

have on Indian sovereignty interests. See McNeal Aplees.’ Br. at 21–22; J.

Dalley’s Br. at 26–27 (“Here, the state courts’ interpretation of the IGRA as

permitting jurisdiction promotes, and does not diminish, tribal selfdetermination.”).

This argument, at base, suggests that Congress must have

intended the courts to construe IGRA in a broader sense in circumstances when

the effect of the construction will be to enhance tribal sovereignty. The

Appellees cite limited authority in support of their argument, but the authority

they do cite indicates that they are relying on the well-established Indian canon of

statutory interpretation—that is, the canon that provides that “statutes passed for

the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful

expressions being resolved in favor of the Indians.” Bryan v. Itasca Cty., Minn.,

426 U.S. 373, 392 (1976) (quoting Alaska Pac. Fisheries Co. v. U.S., 248 U.S. 78,

89 (1918)); accord N.L.R.B. v. Pueblo of San Juan, 276 F.3d 1186, 1191 (10th

Cir. 2002). The Tribe relies on this canon too, but contends that it militates in

favor of a conclusion that IGRA does not authorize the allocation of jurisdiction

to state courts. As noted in footnote 11, infra, we eschew reliance on this canon

because it typically plays a significant role only when the statute is ambiguous,

and we have concluded that the IGRA provisions at issue are not ambiguous. See

(continued...)

22

We acknowledge that, in thoughtful decisions, the New Mexico Supreme

Court in Doe and the district court here came to contrary conclusions. In

particular, the New Mexico Supreme Court concluded that “[t]ort suits are . . .

related to gaming activity in helping ensure that gaming patrons are not exposed

to unwarranted dangers, something that inures to the benefit of the Tribes.” 154

P.3d at 655. In support of its position, the Doe court relied on the rationale that

Congress “could rationally conclude that tribes ought not to be foreclosed from

negotiating such provisions perceived to be in their own interest, and as ‘directly

related to, and necessary for, the licensing and regulation’ of gaming.” Id. The

6(...continued)

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (noting that

“statutes are to be construed liberally in favor of the Indians, with ambiguous

provisions interpreted to their benefit” (emphasis added)); E.E.O.C. v. Cherokee

Nation (“E.E.O.C/Cherokee”), 871 F.2d 937, 939 (10th Cir. 1989) (collecting

cases indicating that canon of construction applies if there is ambiguity in the

statute). For this same reason, we find Appellees’ argument predicated on this

canon to be unpersuasive. Furthermore, we underscore that we have “no roving

license, even in ordinary cases of statutory interpretation, to disregard clear

language simply on the view that . . . Congress ‘must have intended’ something

broader.” Bay Mills, 134 S. Ct. at 2034 (quoting pleadings); accord Wis. Cent.

Ltd. v. United States, --- S. Ct. ----, No. 17-530, 2018 WL 3058014, at *5 (June

21, 2018) (“It is not our function ‘to rewrite a constitutionally valid statutory text

under the banner of speculation about what Congress might have’ intended.”

(quoting Henson v. Santander Consumer USA Inc., --- U.S. ----, 137 S. Ct. 1718,

1725 (2017))); cf. Scalia & Garner, supra, at 56 (“[T]he purpose must be derived

from the text [of the applicable statute], not from extrinsic sources such as . . . an

assumption about the legal drafter’s desires.”). In sum, for the foregoing reasons,

we find the Appellees’ attempts to distinguish Bay Mills unavailing.

23

district court also arrived at a similar conclusion: “Because tort claims alleged

against Indian gaming facilities are ‘directly related to’ the regulation of tortious

conduct arising out of Indian gaming, jurisdictional issues arising from such tort

claims may be the subject of negotiation for a tribal-state compact.” Aplt.’s App.

at 193.

While we are comfortable assuming that tort, and more specifically

personal-injury lawsuits, constitute a type of regulation, we are unable to discern

how applying this form of regulation to a slip-and-fall event, like Mr. McNeal’s,

is “directly related to, and necessary for the licensing and regulation,”

§ 2710(d)(3)(C)(i), of Class III gaming activity, as Bay Mills conceives of it. For

example, whether a casino employee is negligent in cleaning up spilled water on

the floor which results in a patron falling has nothing to do with the actual

regulation or licensing of Class III gaming, viz., “each roll of the dice and spin of

the wheel.” Bay Mills, 134 S. Ct. at 2032. Put differently, just as the licensing or

regulation of gaming activity only directly relates to things akin to “gambling in

the poker hall” and not to “the proceedings of the off-site administrative

authority,” id. at 2033, it also does not relate to claims arising out of occurrences

that happen in proximity to—but not as a result of—the hypothetical card being

dealt or chip being bet. Therefore, when viewed through the prism of Bay Mills,

we respectfully conclude that the reading of IGRA that we adopt here is the

correct one, and that the district court and the New Mexico Supreme Court are

24

mistaken.

In discerning whether IGRA authorizes tribes to allocate jurisdiction

regarding tort claims like the McNeals’ to state courts, we also look to the text of

clause (ii) of subparagraph (C). See King v. St. Vincent’s Hosp., 502 U.S. 215,

221 (1991) (noting “the cardinal rule that a statute is to be read as a whole”);

accord Massachusetts v. Morash, 490 U.S. 107, 115 (1989). Clause (ii) is

entirely congruent with, and strongly reinforces, our view of the limitations of

IGRA’s authorization of jurisdictional allocations. Notably, this is the only

clause in subparagraph (C) that explicitly authorizes tribes to allocate jurisdiction

to the states. Specifically, recall that, by its terms, it provides for “the allocation

of criminal and civil jurisdiction between the State and the Indian tribe necessary

for the enforcement of such laws and regulations.” See § 2710(d)(3)(C)(ii). It is

clear to us that this provision applies only to the “laws and regulations”

referenced in clause (i). The pronoun “such” in clause (ii) refers unambiguously

back to the “laws and regulations” in the immediately preceding provision, clause

(i). And those laws and regulations are ones that are “directly related to, and

necessary for, the licensing and regulation of such activity.” § 2710(d)(3)(C)(i).

And, as we have established supra, the “activity” in clause (i)’s phrase “such

activity” is “what goes on in a casino—[that is,] each roll of the dice and spin of

the wheel.” Bay Mills, 134 S. Ct. at 2032 (emphasis added).

It necessarily follows that the allocation of civil jurisdiction referenced in

25

clause (ii) pertains solely to the allocation that is “necessary for the enforcement

of the laws and regulations,” § 2710(d)(3)(C)(ii), that are “directly related to, and

necessary for, the licensing and regulation of” the playing of Class III games,

§ 2710(d)(3)(C)(i)—and not for the enforcement of laws and regulations

pertaining to such tangential matters as the safety of walking surfaces in Class III

casino restrooms. Put another way, because tort law in the circumstances here

does not directly relate to the licensing and regulation of gambling itself, clause

(ii)—which depends upon clause (i) to define the scope of its allocation of civil

jurisdiction—does not authorize tribes to agree in gaming compacts to shift (i.e.,

allocate) jurisdiction to state courts over tort claims like those here.7

7 We pause to highlight that our holding only pertains to the

circumstances presented here. More specifically, we do not intend by this holding

to categorically negate the possibility that certain classes of tort or personalinjury

claims stemming from conduct on Indian land might conceivably satisfy the

statutory conditions for tribal allocation of jurisdiction to the states under our

plain reading of clauses (i) and (ii) of IGRA. Consider, for example, a casino

patron at a roulette table: during the course of the game, an errant ball flies and

hits the patron in the eye, causing damage to the patron. Or, in a different

situation, a patron is playing on a dysfunctional slot machine that electrocutes the

patron, again resulting in some harm. In both of those instances, it is at least

arguable that the patron’s injuries resulted directly from gaming activity, within

the meaning of Bay Mills, i.e., “what goes on in a casino—each roll of the dice

and spin of a wheel.” 134 S. Ct. at 2032. Assuming arguendo this is so, the

harmed plaintiffs could argue—at least colorably—that the tort laws they plan to

invoke in their claims are “civil laws and regulations . . . directly related to, and

necessary for, the licensing and regulation, of” the gaming activities that caused

them harm, and that the allocation of jurisdiction was “necessary for the

enforcement” of those tort laws. § 2710(d)(3)(C)(i), (ii). In short, the

hypothetical plaintiffs could argue (at least colorably) that the tribe running the

(continued...)

26

2

Appellees present two principal counterarguments, but neither is

persuasive. First, they contend that IGRA’s legislative history supports the

conclusion that the statute was created with the intent of permitting tribes to

allocate their jurisdiction when they deemed it in their favor to do so. See

McNeal Aplees.’ Br. at 9–13; J. Dalley’s Br. at 19–23. However, we need not

consider legislative history where, as here, we find the statutory language

unambiguous.8 See Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012)

(“[R]eliance on legislative history is unnecessary in light of the statute’s

unambiguous language.” (quoting Milavetz, Gallop & Milavetz, P.A. v. United

7(...continued)

casino at issue would have been authorized under IGRA’s plain terms to allocate

jurisdiction to the state over their tort claims. We need not and do not express

any opinion on whether such hypothetical plaintiffs—or similarly situated

ones—could succeed on such an argument because the circumstances of those

plaintiffs are not before us. The McNeals’ circumstances are. And what is clear

in a slip-and-fall case, like this one, is that a plaintiff’s harm cannot plausibly be

said to have resulted from gaming activity, within the meaning of Bay Mills—that

is, from the playing of dice, the pulling of a slot machine, or other participation in

Class III gambling. And such a plaintiff, like the McNeals, cannot argue that the

tribe would have been authorized under IGRA’s plain terms to shift jurisdiction

over his or her tort claims to the state courts.

8 In this regard, we find common ground with Justice Minzner’s

dissent in Doe, in which she reasoned that “[h]ad Congress intended for such

[tort] claims to be included, . . . IGRA would have been more explicit, and we

would not need to parse legislative history for indicia of legislative intent.” 154

P.3d at 658 (Minzner, J. dissenting). Based on our reading of IGRA’s plain text,

we reject the Doe majority’s reliance on legislative history.

27

States, 559 U.S. 229, 236 n.3 (2010))); accord United States v. Woods, 571 U.S.

31, 46 n.5 (2013) (“Whether or not legislative history is ever relevant, it need not

be consulted when, as here, the statutory text is unambiguous.”); United States v.

Hunt, 456 F.3d 1255, 1268 (10th Cir. 2006) (“We recognize that it is not

necessary to resort to legislative history when statutory language is

unambiguous.”). Moreover, had Congress wanted to permit tribes to allocate

jurisdiction in such cases, it could have crafted language to effectuate this

purpose, but it did not do so. See Pueblo of Santa Ana v. Nash, 972 F. Supp. 2d

1254, 1265 (D.N.M. 2013) (declining to look for guidance in IGRA’s legislative

history and “opt[ing] instead to rely on the clear statutory structure of IGRA,” and

noting in this regard that Congress could have “worded subparagraph (ii) in a way

that obviously or necessarily included a shifting of jurisdiction over such claims

[i.e., tort claims involving serving alcohol to intoxicated persons],” but it did not

do so); cf. Bay Mills, 134 S. Ct. at 2033–34 (“[T]his Court does not revise

legislation . . . just because the text as written creates an apparent anomaly as to

some subject it does not address. Truth be told, such anomalies often arise from

statutes, if for no other reason than that Congress typically legislates by

parts—addressing one thing without examining all others that might merit

comparable treatment.”).

Appellee’s second argument is one that we considered and rejected in our

independent assessment of the meaning of clause (i)—that is, the argument that

28

tort law is “directly related to, and necessary for, the licensing and regulation of”

gaming activity, within the meaning of clause (i). § 2710(d)(3)(C)(i).

Accordingly, we conclude that Appellees’ two arguments come up short.

***

In sum, we conclude that clauses (i) and (ii), by their plain meaning, do not

authorize tribes to allocate during the compacting process jurisdiction to state

courts for tort claims such as the McNeals’ arising on Indian land. We therefore

turn to the second question of whether clause (vii)’s catch-all provision permits

tribal-state compacts to serve as vehicles for shifting civil jurisdiction over such

tort claims.

C

1

The Nation next challenges the district court’s alternative holding that even

if the first two clauses of § 2710(d)(3)(C) do not permit the allocating of

jurisdiction during the compacting process, the Nation could have allocated

jurisdiction over the McNeals’ tort claims pursuant to clause (vii), the catch-all

provision. Aplt.’s App. at 193 (district court reasoning that “[b]ecause tort

liability resulting from ‘the operation of gaming activities’ is ‘directly related to’

the same [i.e., operation], the catchall provision . . . also provides authority for

Tribes and states to negotiate the allocation of jurisdiction of such tort claims”).

As noted above, clause (vii) provides that a compact may include “any other

29

subjects that are directly related to the operation of gaming activities.”

§ 2710(d)(3)(C)(vii). We ultimately conclude that the district court’s reading of

clause (vii) is mistaken and thus sustain the Nation’s challenge.

Given that we must “presume that [Congress] says in a statute what it

means and means in the statute what it says there,” Conn. Nat. Bank v. Germain,

503 U.S. 249, 253–54 (1992) (collecting cases); accord Mountain States Tel. &

Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985), it is significant that

the subject of jurisdictional allocation is only mentioned in clause (ii). As the

Nation puts it, “there is no language in that section [i.e., clause (vii)] that pertains

to the allocation of jurisdiction between the tribe and the state.” Aplt.’s Reply

Br. at 12 (emphasis omitted). This omission provides a significant clue that

Congress did not contemplate that this provision would cover the topic of the

allocation of jurisdiction over civil lawsuits between states and tribes. Although

the Appellees argue that the legislative history points to a different result, this

omission militates in favor of a conclusion that our “judicial inquiry into the

applicability of [clause (vii)] begins and ends with what [clause (ii)] does say and

with what [clause (vii)] does not.” Germain, 503 U.S. at 254; United States v.

Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“The task of resolving the

dispute over the meaning of § 506(b) begins where all such inquiries must begin:

with the language of the statute itself. In this case it is also where the inquiry

should end, for where, as here, the statute’s language is plain, ‘the sole function

30

of the courts is to enforce it according to its terms.’” (citation omitted) (quoting

Caminetti v. United States, 242 U.S. 470, 485 (1917))). Here, clause (ii) speaks

directly and specifically to tribal-state compacting regarding the allocation of

jurisdiction, whereas clause (vii) does not explicitly raise the topic of

jurisdictional allocation. This constitutes a significant clue that Congress did not

intend for this provision to relate to tribal-state compacting regarding the

allocation of jurisdiction.

To be sure, clause (vii) functions as a catch-all provision, and,

consequently, Congress expressed its scope in broad terms, to encompass “any

other subjects that are directly related to the operation of gaming activities,”

§ 2710(d)(3)(C)(vii). But the key word here is “other.”9 Typically, statutory

9 In reaching the opposite conclusion than the one we ultimately do

regarding the import of clause (vii)—i.e., that the clause permits the allocation of

jurisdiction—the district court, quite significantly, omitted the term “other” from

its analysis: “This Section allows the Tribes and states to negotiate regarding ‘any

. . . subjects that are directly related to the operation of gaming activities.’”

Aplt.’s App. at 193 (quoting 25 U.S.C. § 2710(d)(3)(C)(vii)). The court then

concluded that “the catchall provision . . . provides authority for Tribes and states

to negotiate the allocation of jurisdiction of such tort claims.” Id. As we will

explicate infra, adding the term “other” back into clause (vii) completely alters its

meaning and undermines the district court’s determination. In brief, the term

“other” indicates that the catchall provision covers subjects that have not already

been addressed by the other clauses of subparagraph (C). And, because the

subject of jurisdictional allocation is undisputedly considered in clause (ii), a

plain reading of clause (vii) in light of the rest of subparagraph (C), supports the

conclusion that clause (vii) does not discuss jurisdictional considerations. See

United States v. Bishop, 412 U.S. 346, 356 (1973) (“We continue to recognize

that context is important in the quest for the word’s meaning.”); accord United

(continued...)

31

language is given its “ordinary, everyday” meaning, unless the context suggests

otherwise. Toomer v. City Cab, 443 F.3d 1191, 1194 (10th Cir. 2006) (“We must

construe the words of the statute in their ordinary, everyday sense.”); accord

Chickasaw Nation v. United States, 208 F.3d 871, 876 (10th Cir. 2000); see Scalia

& Garner, supra, at 69 (“Words are to be understood in their ordinary, everyday

meanings—unless the context indicates that they bear a technical sense.”

(emphasis omitted)). And applying the ordinary and everyday meaning of the

word “other” in clause (vii), it becomes patent that Congress did not intend for

that clause to address the “subjects” covered in the preceding clauses of

subsection (C)—including the jurisdictional-allocation subject of clause (ii). See

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1598 (1961) [hereinafter

“WEBSTER’S”] (defining “other” to mean, inter alia, “being the ones distinct from

the one or those first mentioned” and “not the same: Different”); THE AMERICAN

HERITAGE DICTIONARY 880 (2d ed. 1982) [hereinafter “AMERICAN HERITAGE”]

(defining “other” to mean, inter alia, “[d]ifferent from that or those implied or

specified”); see also THE NEW OXFORD AMERICAN DICTIONARY 1205 (2d ed.

2005) [hereinafter “NEW OXFORD”] (noting that the word “other” is “used to refer

to a person or thing that is different from one already mentioned or known about”

and further defining it, inter alia, to mean “those remaining in a group; those not

9(...continued)

States v. Husted, 545 F.3d 1240, 1243–44 (10th Cir. 2008).

32

already mentioned”); cf. Wis. Cent. Ltd. v. United States, --- U.S.. ----, 138 S. Ct.

2067, 2071(2018) (“As usual, our job is to interpret the words consistent with

their ‘ordinary meaning . . . at the time Congress enacted the statute.’” (quoting

Perrin v. United States, 444 U.S. 37, 42 (1979)) (then citing contemporary

dictionaries to determine meaning of the disputed statutory term)).

Nor could one persuasively argue that the term “other” in clause (vii)

authorizes the allocation of jurisdiction with respect to subjects other than those

covered by the jurisdictional-allocation language of clause (ii). In our view, a

well-established canon of statutory construction—the negative-implication canon

(i.e., the canon expressio unius est exclusio alterius) would fatally undercut such

an argument. That canon provides that the “expressi[on] [of] one item of [an]

associated group or series excludes another left unmentioned.” N.L.R.B. v. SW

Gen., Inc., --- U.S. ----, 137 S. Ct. 929, 940 (2017) (quoting Chevron U.S.A. Inc.

v. Echazabal, 536 U.S. 73, 80 (2002)). In other words,“[t]he notion is one of

negative implication: the enumeration of certain things in a statute suggests that

the legislature had no intent of including things not listed or embraced.” Seneca-

Cayuga Tribe of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1034 &

n.24 (10th Cir. 2003) (quoting William N. Eskridge, et al., CASES AND

MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY

947 (3d ed. 2001))) see also Scalia & Gardner, supra, at 107 (discussing the

operation of the “negative-implication canon”).

33

Here, clause (ii) is the only clause in subsection (C) that expressly

addresses the allocation of jurisdiction between states and tribes. And, as our

reasoning in Part III.B.1, supra, demonstrates, it does so in specific terms—albeit

by cross-reference—to clause (i). That is, by its use of the language “such laws

and regulations,” clause (ii) expressly refers back to the “laws and regulations” of

clause (i)—which are “directly related to, and necessary for, the licensing and

regulation of” the playing of Class III games, § 2710(d)(3)(C)(i). And it

contemplates tribal-state compacting regarding the allocation of criminal and civil

jurisdiction “necessary for the enforcement” of the laws and regulations specified

in clause (i). § 2710(d)(3)(C)(ii). Thus, the allocation of jurisdiction referenced

in clause (ii) pertains solely to the allocation that is “necessary for the

enforcement of the laws and regulations,” id., that are “directly related to, and

necessary for, the licensing and regulation of” the playing of Class III games,

§ 2710(d)(3)(C)(i)—that is, “what goes on in a casino—[that is,] each roll of the

dice and spin of the wheel,” Bay Mills, 134 S. Ct. at 2032 (emphasis added).

Therefore, clause (ii)’s specific textual expression (by cross-reference) of

matters covered by its jurisdictional allocation reasonably indicates that Congress

did not envision that any distinct subjects—such as tort claims arising from a

casino’s failure to safely maintain floors in its restrooms—would provide the

grounds for a jurisdictional allocation. See Halverson v. Slater, 129 F.3d 180,

186 & n.8 (D.C. Cir. 1997) (applying the negative-implication canon to hold that

34

a statute that specifically “delineates the class of permissible delegatees as

officers, employees and members of the Coast Guard” was “intended to exclude

delegation to non-Coast Guard officials” under another, general delegation

statute, even though the former statute “did not expressly prohibit delegation of”

the “powers and duties [at issue] to a non-Coast Guard official” and did not

explicitly use the term “only” in listing the class of delegatees); see also United

States v. Giordano, 416 U.S. 505, 514 (1974) (tacitly applying the logic of the

negative-implication canon in concluding that, though the statute at issue did not

use “[e]qually precise language forbidding delegation” as those which delegated

duties only to certain officials, its language “fairly read, was intended to limit the

power to authorize wiretap applications to the Attorney General himself and to

any Assistant Attorney General he might designate,” and another statute that

generally authorized the Attorney General to delegate his or her duties to agency

employees did not permit further delegation of the power to authorize wiretap

applications); Scalia & Garner, supra, at 107 (“The doctrine properly applies only

when the unius (or technically, unum, the thing specified) can reasonably be

thought to be an expression of all that shares in the grant or prohibition

involved.”); id. at 108 (noting that “[t]he more specific the enumeration, the

greater the force of the canon”); id. at 111 (discussing Giordano in the context of

noting that “the negative-implication canon is so intuitive that courts often apply

it correctly without calling it by name”). Thus, we do not believe that the term

35

“other” in clause (vii) authorizes the allocation of jurisdiction with respect to

subjects other than those covered by the jurisdictional-allocation language of

clause (ii). Cf. Scalia & Garner, supra, at 167 (“Context is a primary determinant

of meaning. A legal instrument typically contains many interrelated parts that

make up the whole. The entirety of the document thus provides context for each

of its parts.”).

Lastly, our conclusion is independently and distinctly bolstered by our

“preference for avoiding surplusage constructions.” King v. Burwell, --- U.S. ----,

135 S. Ct. 2480, 2483 (2015) (quoting Lamie v. United States Trustee, 540 U.S.

526, 536 (2004)); Duncan v. Walker, 533 U.S. 167, 174 (2001) (declining to

“adopt respondent’s construction of the statute” because it would render a word in

the statute “insignificant, if not wholly superfluous”). More specifically, “[t]he

canon against surplusage indicates that we generally must give effect to all

statutory provisions, so that no part will be inoperative or superfluous—each

phrase must have distinct meaning.” Chevron Mining Inc. v. United States, 863

F.3d 1261, 1283 n.15 (10th Cir. 2017); see Scalia & Garner, supra, at 174 (“If

possible, every word and every provision is to be given effect . . . . None should

be ignored. None should needlessly be given an interpretation that causes it to

duplicate another provision or to have no consequence.” (emphasis omitted)).

Yet, if we were to adopt an expansive reading of clause (vii), in which

jurisdiction may be allocated for “any . . . subjects that are directly related to the

36

operation of gaming activities,” § 2710(d)(3)(C)(vii)10—including tort claims

arising from a casino’s failure to safely maintain floors in its restrooms—it would

render clause (ii)’s jurisdictional-allocation language mere surplusage.

Put more finely, such a reading would wholly swallow clause (ii)’s specific

and narrow allowance for jurisdictional allocations that are “necessary for the

enforcement of the laws and regulations,” § 2710(d)(3)(C)(ii), that are “directly

related to, and necessary for, the licensing and regulation of” the playing of Class

III games, § 2710(d)(3)(C)(i). That is because such laws and regulations directly

pertaining to, and necessary for, the licensing and regulation of Class III games,

and the matters necessary for their enforcement, patently constitute one of the

subjects that is “directly related to the operation of gaming activities.”

§ 2710(d)(3)(C)(vii). In this regard, we have no doubt that (given its common,

everyday meaning) the term “operation” in this context sweeps broadly. See

WEBSTER’S, supra, at 1581 (defining “operation” to mean, inter alia, “method or

manner of functioning”); AMERICAN HERITAGE, supra, at 871 (defining

“operation” to mean, inter alia, “[a] process or series of acts performed to effect a

certain purpose or result”); see also NEW OXFORD, supra, at 1193 (defining

“operation” to mean, inter alia, “an activity in which” a “business or

10 This is in effect the reading of clause (vii) that the district court

adopted here. As mentioned in note 9, supra, the court’s reading failed to give

effect to, and in fact misguidedly elided, the critical term “other” in clause (vii).

37

organization; a company” “is involved”); cf. Chemehuevi Indian Tribe v. Brown,

No. EDCV161347JFWMRWX, 2017 WL 2971864, at *6 (C.D. Cal. Mar. 30,

2017) (unpublished) (noting that “if Congress intended the permissible topics set

forth in . . . [clause] (vii) to be more narrowly construed, it would not have

utilized the broad language it did”). And, therefore, even with the limiting

language “directly,” clause (vii) would have the effect of subsuming, and

rendering of no effect, the language and substance of clause (ii)—viz., if clause

(vii) were construed in the expansive manner noted, to include the subject of

jurisdictional allocation, it would have this effect.

Put another way, if clause (vii)’s language were read to allow for compacts

to allocate jurisdiction with respect to any subjects directly related to the

operation of Class III games, the more specific and limited jurisdictionalallocation

language of clause (ii) would be (in substance) duplicative, nugatory,

and of no effect—i.e., surplusage. Consequently, we conclude that the statutoryconstruction

canon that counsels courts to avoid interpretations that render

statutory terms surplusage is an independent and distinct ground for rejecting the

expansive reading of clause (vii) discussed herein. See Halverson, 129 F.3d at

185 (rejecting argument that a specific delegation statute does not “provide any

delegation authority beyond what [the agency head] already possesses under [a

general delegation statute], and thus, at most, merely confirms his . . . authority

[under that general delegation statute]” because “[t]his reading plainly violates

38

the familiar doctrine that the Congress cannot be presumed to do a futile thing”).

2

The Appellees present three counterarguments; none lands with any force.

First, Appellees, again citing to the statute’s legislative history, contend that the

catch-all section (i.e., clause (vii)) should be read broadly, consistent with their

understanding of Congress’s intent. See McNeal Aplees.’ Br. at 9–13; J. Dalley’s

Br. at 16–23. This argument can gain no traction here, however, in light of our

conclusion that the statute is unambiguous. Because it is so, we have no need

(much less an inclination) to “resort” to the statute’s legislative history. Public

Lands Council v. Babbitt, 167 F.3d 1287, 1306 (10th Cir. 1999) (“Courts should

not resort to legislative history in order to ascertain Congress’s intent when the

plain language of the statute is unambiguous.”); see Edwards v. Valdez, 789 F.2d

1477, 1481 (10th Cir. 1986) (“When the meaning of the statute is clear, it is both

unnecessary and improper to resort to legislative history to divine congressional

intent.”).

Second, the McNeals rely on the Ninth Circuit’s opinion in In re Indian

Gaming Related Cases, 331 F.3d 1094 (9th Cir. 2003), for the proposition that

clause (vii) must be read broadly to provide state residents protection from injury

while they are at the casinos. See McNeal Aplees.’ Br. at 15–16. This argument

is unconvincing. First of all, it goes without saying that the Ninth Circuit’s

construction of IGRA is not binding on us. Furthermore, the Ninth Circuit’s

39

pertinent holding in that case—viz., that labor issues were “directly related to the

operation of gaming activities” under clause (vii), In re Indian Gaming, 331 F.3d

at 1115–16—does not speak to the essential question before us: whether Congress

intended clause (vii)’s broad and general language to authorize tribes and states to

compact regarding the allocation of jurisdiction over tort claims like the

McNeals’. Lastly, insofar as In re Indian Gaming informs our resolution of that

question, it actually undercuts the McNeals’ position. The latter two points

would benefit from a little more discussion.

Specifically, in analyzing and ultimately distinguishing In re Indian

Gaming, we accept, without definitively opining on the matter, the proposition

that labor issues fall within the broad scope of clause (vii)’s “operation of gaming

activities,” even when the term “gaming activities” is viewed through the prism of

Bay Mills, to mean the actual playing of Class III games. See Bay Mills, 134 S.

Ct. at 2032 (emphasis added) (defining “gaming activity” as “what goes on in a

casino—[that is,] each roll of the dice and spin of the wheel”); Bryan H.

Wildenthal, Federal Labor Law, Indian Sovereignty, and the Canons of

Construction, 86 OR. L. REV. 413, 429–30 (2007) (Noting that many state-tribal

compacts “address[ed] the issue of labor relations” pursuant to IGRA and that “it

was anticipated by language in IGRA in which Congress—while not expressly

referring to labor issues—broadly authorized states and tribes to include compact

provisions on ‘any . . . subjects that are directly related to the operation of gaming

40

activities’”); id. at 430 n.47 (“There may well be grounds to question the use of

IGRA to impose labor relations requirements on Indian tribes, though it seems to

be a well-established practice.”). But that proposition does not directly offer any

insight into the specific question we must decide, regarding whether the subject of

jurisdictional allocation over claims (notably, tort slip-and-fall claims) is included

within the scope of clause (vii). More specifically, nothing in In re Indian

Gaming suggests that clause (vii) permits the allocation of jurisdiction at all;

indeed, the McNeals seem to recognize this by failing to make any such argument.

Cf. COHEN’S HANDBOOK, supra, § 12.05[3], at 894 (describing the case as

dealing with “revenue-sharing” and “labor relations” disputes, and not discussing

any jurisdictional concerns).

Furthermore, to the extent that the inclusion of labor-relations issues within

the ambit of clause (vii) offers clues regarding the resolution of the question

before us, they do not avail the McNeals. Specifically, assuming that laborrelations

issues “directly relate[] to the operation of gaming activities,”

§ 2710(d)(3)(C)(vii), it does not strike us as remarkable that such issues would

fall squarely within the scope of clause (vii) because labor-relations issues are not

expressly addressed in any of the preceding clauses of subparagraph (C) and,

therefore, would be “other” in relation to the subjects addressed in those

preceding clauses. In other words, labor-relations issues would naturally fall

within clause (vii)’s catch-all category of “any other subject,” id. (emphasis

41

added), because that subject is not mentioned in the preceding clauses of

subparagraph (C). In contrast, this logic undercuts the notion that the subject of

jurisdictional allocation falls within the scope of clause (vii) because this subject

is expressly addressed in the preceding clauses—specifically, in clause (ii).

Therefore, to the extent that In re Indian Gaming informs our resolution of the

question we must answer here, it actually belies the McNeals’ argument.

Third, and lastly, Judge Dalley contends that the reading of § 2710(d)(3)(C)

that we now endorse “would invalidate many provisions in this and other gaming

compacts that have been negotiated by tribes and states.” J. Dalley’s Br. at 27.

For example, he asserts that key provisions of the tribal-state compact before

us—involving “the physical safety of patrons and employees,” “wages on

construction projects,” and “criminal jurisdiction” over offenses committed by

non-Indians on Indian land—will all be “invalidate[d]” because they do not

“directly relate[] to” “gaming activities,” as this statutory language is understood

through the lens of Bay Mills. See id. We find Judge Dalley’s argument

unpersuasive, however.

First of all, Judge Dalley’s brief fails to offer us much by the way of

reasoning to explain the basis for his parade of horribles, relying instead on

conclusory statements. See id. (“None of these provisions is likely sufficiently

‘directly related to’ ‘gaming activities’ under the Navajo Nation and Pueblo of

Santa Ana’s interpretations of the IGRA to survive scrutiny.”). Second, at least

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in the absence of such reasoning, we are hard-pressed to see how the reading of

the statutory language “directly related to . . . gaming activities,”

§ 2510(d)(3)(C)(vii); see also § 2510(d)(3)(C)(i) (“directly related to . . . such

[gaming] activity), that we endorse here could have the widespread destructive

effect that Judge Dalley predicts. This language is construed in the context of our

limited procedural holding that relates solely to whether IGRA authorizes tribes

to allocate jurisdiction over tort claims like the McNeals’ to state courts. This

holding does not address what substantive matters are proper subjects of

compacting under IGRA, such as the physical safety of casino staff and visitors,

and the proper wage rates on casino projects, much less invalidate compact

provisions pertaining to such substantive subjects. As noted, the question before

us is a procedural one involving the statutory authorization under IGRA to shift

jurisdiction over tort claims like those of the McNeals. Furthermore, even

assuming arguendo that the Tribe has allocated to New Mexico in the instant

compact criminal jurisdiction over offenses committed by non-Indians on tribal

land, the propriety of this procedural subject is not before us, and we have no

obligation nor inclination to opine on the implications of our decision for the

vitality of this compact provision.

In all events, our main concern here ultimately must be the faithful and true

interpretation of IGRA’s plain terms, not the ostensible collateral effects of our

interpretation on existing compact provisions; generally, this is true at least so

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long as our interpretation would not yield absurd results, and it patently would

not do so, nor does Judge Dalley argue to this effect. See, e.g., Sebelius v. Cloer,

569 U.S. 369, 381 (2013) (“We reiterate that ‘when [a] statute’s language is plain,

the sole function of the courts—at least where the disposition required by the text

is not absurd—is to enforce it according to its terms.’” (quoting Hartford

Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, (2000))).

Thus, we reject Judge Dalley’s argument as well.

***

In sum, we hold that clause (vii) of IGRA does not authorize tribes to

allocate to states jurisdiction over tort claims like the McNeals’, based on our

interpretation of the clause’s plain language, in the context of the other clauses of

subparagraph (C) of § 2710(d)(3).



* * *



11 One argument that we do not rely upon in coming to this conclusion

is the Nation’s argument that we should resolve any ambiguity in IGRA in its

favor based on the Indian canon of statutory interpretation. See Aplt.’s Opening

Br. at 10. As we discussed in note 6, supra, this canon provides that “doubtful

expressions” in statutes should be “resolved in favor of the Indians,” Bryan, 426

U.S. at 392 (quoting Alaska Pac. Fisheries Co., 248 U.S. at 89), but it is typically

only operative when the statute is ambiguous, see, e.g., E.E.O.C./Cherokee, 871

F.2d at 939. As we have underscored, we do not find the IGRA provisions at

issue here to be ambiguous; therefore, we eschew reliance on this canon.

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In light of the above, we conclude that IGRA, under its plain terms, does

not authorize tribes to allocate to states jurisdiction over tort claims like those brought by the McNeals here.11 Stated differently, the Appellees have failed to clear a threshold hurdle: they have not established that IGRA authorizes the

allocation of jurisdiction to state courts for these tort claims. As such, we

REVERSE the district court’s judgment and REMAND with instructions to grant

the Nation’s request for declaratory relief.

Editor's Comment: In Oklahoma, where I practice, the State District Courts clearly do not have jurisdiction of personal injury claims against any to the Indian casinos.