State of Idaho v. Coeru d'Alene Tribe

The Coeur d’Alene Tribe (“Tribe”) appeals the

preliminary injunction prohibiting the Tribe from offering

Texas Hold’em (“Hold’em”) poker. The Tribe argues that

tribal sovereign immunity was not abrogated and that venue

was improper under the terms of the Tribal-State Gaming

Compact (“Compact”). We affirm because the Indian

Gaming Regulatory Act (“IGRA”) severed tribal immunity

and the Compact did not bar the litigation. Lastly, we affirm

the grant of injunctive relief because the district court’s

findings were not clearly erroneous.

FACTUAL AND PROCEDURAL BACKGROUND

As this appeal hinges on the regulation of Indian gaming,

we begin with a brief introduction to the IGRA. Congress

passed the IGRA in 1988 “in order to provide a statutory

basis for the operation and regulation of gaming by Indian

tribes.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48

(1996). “The Act divides gaming on Indian lands into three

classes—I, II, and III—and provides a different regulatory

scheme for each class.” Id. “Non-banking” card games

(including poker) can be either Class II or Class III gaming,

depending on the laws of the state in which the gaming takes

place.1 See 25 U.S.C. § 2703.

1 Banking card games are those in which the casino participates “in the

game, where the house takes on all players, collects from all losers, and

pays all winners, and the house can win.” 25 C.F.R. § 502.11. For

instance, blackjack is a banked game. See 25 U.S.C. § 2703(7)(B)(i).

Poker, where players face off against each other, is the prototypical

STATE OF IDAHO V. COEUR D’ALENE TRIBE 5

Non-banking card games are Class II if they “are

explicitly authorized by the laws of the State, or are not

explicitly prohibited by the laws of the State and are played

at any location in the State.” Id. § 2703(7)(A)(ii). Class III

gaming is a residual category that consists of “all forms of

gaming that are not class I gaming or class II gaming,”

§ 2703(8), and is “the most heavily regulated of the three

classes.” Seminole Tribe, 517 U.S. at 48. Such gaming “is

lawful only where it is . . . conducted in conformance with a

Tribal–State compact.” Id. at 48–49 (quoting 25 U.S.C.

§ 2710(d)(1)).

Several years after Congress enacted the IGRA, the State

and Tribe executed a Compact authorizing the Tribe to offer

Class III gaming. The parties failed to reach accord on the

scope of gaming allowed by Idaho law. The State argued that

Idaho law only permitted the state lottery and parimutuel

betting, while the Tribe countered that it allowed “all games

that contain the elements of chance and or skill, prize and

consideration.” The Compact authorized the parties to seek

a declaratory judgment to resolve the dispute.

The Tribe filed suit in federal court in pursuit of such a

declaration. The district court held on summary judgment

that Idaho law only allowed “a lottery and parimutuel

betting” and that “Idaho law and public policy clearly

prohibit all other forms of Class III gaming, including the

casino gambling activities which the Tribes have sought to

include in compact negotiations with the State.” Coeur

d’Alene Tribe v. Idaho, 842 F. Supp. 1268, 1283 (D. Idaho

non-banked game. See National Indian Gaming Commission (“NIGC”)

Bulletin No. 95-1 (Apr. 10, 1995).

STATE OF IDAHO V. 6 COEUR D’ALENE TRIBE

1994) (“Coeur d’Alene I”). The Ninth Circuit affirmed.

Coeur d’Alene Tribe v. Idaho, 51 F.3d 876 (9th Cir. 1995).

In March 2014, Idaho officials learned that the Tribe

intended to offer Hold’em at the Coeur d’Alene Casino.

Shortly after providing notice of non-compliance, the State

filed a complaint and moved for a temporary restraining order

and a preliminary injunction. The Tribe moved to dismiss

pursuant to Rules 12(b)(1), (3), & (6), arguing that tribal

sovereign immunity applies and that venue was improper.

The district court denied the motion for injunctive relief

as moot, granted the Tribe’s request to compel arbitration,

stayed the litigation, and directed the parties to file a joint

status report, concluding that the Compact prohibited the

State from litigating at that juncture. The court “refrain[ed]

from rendering an opinion” as to whether the parties could

litigate the dispute if neither party invoked arbitration.

The joint status report informed the court that neither

party had invoked arbitration and asked the court to decide

the pending motion to dismiss. The court denied the motion

to dismiss and granted a preliminary injunction, determining

that the Tribe had elected to pursue litigation. The court

concluded that the statute abrogated tribal immunity, and

determined that an injunction was warranted because the

State otherwise lacked effective remedies and the continued

offering of unlawful gaming would cause irreparable harm.

The Tribe filed timely notice of appeal.

JURISDICTION AND STANDARD OF REVIEW

“The general federal-question statute, 28 U.S.C. § 1331,

gives a district court subject matter jurisdiction to decide any

STATE OF IDAHO V. COEUR D’ALENE TRIBE 7

claim alleging a violation of IGRA.” Michigan v. Bay Mills

Indian Cmty., 134 S. Ct. 2024, 2029 n.2 (2014). The court

had jurisdiction pursuant to § 1331 because Idaho alleged a

violation of the IGRA. See Oklahoma v. Hobia, 775 F.3d

1204, 1213 (10th Cir. 2014).2

The existence of sovereign immunity is a question of law

reviewed de novo. See Allen v. Gold Country Casino, 464

F.3d 1044, 1046 (9th Cir. 2006). The classification of Texas

Hold’em hinges on statutory interpretation, which is also

reviewed de novo, see Schleining v. Thomas, 642 F.3d 1242,

1246 (9th Cir. 2011), as is the district court’s venue ruling.

Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d

1124, 1127 (9th Cir. 2010).

A preliminary injunction ruling “is subject to limited

appellate review, and we will reverse only if the district court

‘abused its discretion or based its decision on an erroneous

legal standard or on clearly erroneous findings of fact.’”

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d

782, 793 (9th Cir. 2005) (quoting United States v. Peninsula

Commc’ns, Inc., 287 F.3d 832, 839 (9th Cir. 2002)).

2 The district court merged the jurisdiction and immunity inquiries,

asserting jurisdiction because § 2710(d)(7)(A)(ii) was satisfied. Bay Mills

instructs that analyzing § 2710(d)(7)(A)(ii) in jurisdictional terms is

“wrong” and that “[n]othing in § 2710(d)(7)(A)(ii) or any other provision

of IGRA limits [1331’s] grant of jurisdiction (although those provisions

may indicate that a party has no statutory right of action).” 134 S. Ct. at

2029 n.2. The district court should have asserted jurisdiction based on

Bay Mills’ analysis of § 1331.

STATE OF IDAHO V. 8 COEUR D’ALENE TRIBE

ANALYSIS

I. Tribal Sovereign Immunity

An Indian tribe is subject to suit only when Congress has

abrogated the tribe’s sovereign immunity by statute or when

the tribe has waived its immunity. Kiowa Tribe of Okla. v.

Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). To abrogate

immunity by statute, Congress must unequivocally express its

intent to do so. See C & L Enters., Inc. v. Citizen Band

Potawatomi Tribe of Okla., 532 U.S. 411, 418 (2001).

The relevant federal statute provides that “district courts

shall have jurisdiction over . . . any cause of action initiated

by a State or Indian tribe to enjoin a class III gaming activity

located on Indian lands and conducted in violation of any

Tribal-State compact. . . .” 25 U.S.C. § 2710(d)(7)(A)(ii). In

order to abrogate immunity, all of the statute’s “textual

prerequisites must be met.” Michigan v. Bay Mills Indian

Cmty., 695 F.3d 406, 414 (6th Cir. 2012), aff’d and

remanded, 134 S. Ct. 2024 (2014).

In Bay Mills, the statute did not abrogate immunity

because the conduct Michigan sought to enjoin was not

located on Indian land and was not Class III gaming. 134 S.

Ct. at 2032–34. Likewise, the Tribe contends here that the

statute does not abrogate immunity because Hold’em is Class

II gaming and the Compact does not address it. Thus, the

immunity inquiry necessarily requires the determination of

whether Hold’em qualifies as Class III gaming.

STATE OF IDAHO V. COEUR D’ALENE TRIBE 9

A. Classification of Texas Hold’em

As discussed supra, non-banking card games are Class II

gaming if they are either “explicitly authorized by the laws of

the State” or “are not explicitly prohibited by the laws of the

State and are played at any location in the State.”

§ 2703(7)(A)(ii). The district court properly determined that

Hold’em is not a Class II game because the Idaho

Constitution and gaming statute explicitly prohibit poker.3

The Idaho Constitution provides that “[g]ambling is

contrary to public policy and is strictly prohibited. . . .” ID.

CONST. art. III, § 20. The constitution contains three

exceptions for the lottery, parimutuel betting, and bingo and

raffle charity games but reaffirms that the exceptions may not

“employ any form of casino gambling including, but not

limited to . . . poker.” Id. The enabling statute specifically

prohibits poker by defining gambling as “risking any money,

credit, deposit or other thing of value for gain contingent in

whole or in part upon lot, chance, . . . or the happening or

outcome of an event, . . . including, but not limited to,

blackjack, craps, roulette, poker.” IDAHO CODE § 18-

3801(1); see also § 3802 (gambling is a misdemeanor).

Hold’em can only be Class II gaming if an exception in Idaho

law applies.4

3 The parties do not dispute that Texas Hold’em is a type of poker.

4 The canon of statutory interpretation that ambiguities in federal statutes

enacted to benefit Indians should be resolved in their favor, Montana v.

Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985), does not apply here

because Idaho law is at issue and, regardless, the statute is unambiguous.

STATE OF IDAHO V. 10 COEUR D’ALENE TRIBE

The Tribe’s interpretations of Idaho law are not

persuasive. Though skill undoubtedly plays a role in

Hold’em,5 the game does not qualify for the statutory

exemption for bona fide contests of skill, speed, strength or

endurance. See IDAHO CODE § 18-3801. A contrary reading

would impermissibly place the statute in conflict with the

constitution’s prohibition on poker. See Bingham Cnty. v.

Idaho Comm’n for Reapportionment, 55 P.3d 863, 867 (Idaho

2002) (“[I]f the State Constitution and a statute conflict, the

State Constitutional provision prevails.”).6

The Tribe’s interpretation would also force the specific

prohibition on poker to yield to a general exception for

“contests of skill.” See Morton v. Mancari, 417 U.S. 535,

550–51 (1974) (weighting the general in favor of the specific

is impermissible, unless the drafters clearly intended the

effect). The Tribe does not show that the legislature intended

this effect.

Nor does the “promotional contests” exception authorize

Hold’em. In a handful of clearly distinguishable cases, courts

have determined that gaming statutes permitting casino nights

for charitable purposes establish that gaming is “explicitly

authorized by the laws of the State” and that a Tribe may thus

5 See, e.g., Steven D. Levitt, Thomas J. Miles & Andrew M. Rosenfield,

Is Texas Hold’Em A Game of Chance? A Legal and Economic Analysis,

101 GEO. L.J. 581, 585 (2013).

6 Reading the statutory exception as permitting skill-intensive poker

would produce the absurd result of giving a statute enabling a strict

constitutional prohibition on gambling the effect of permitting it,

depending on the level of skill involved in the game. “The Court

disfavors constructions that would lead to absurd . . . results.” State v.

Doe, 92 P.3d 521, 525 (Idaho 2004).

STATE OF IDAHO V. COEUR D’ALENE TRIBE 11

offer those games. See, e.g., N. Arapaho Tribe v. Wyoming,

389 F.3d 1308, 1312–13 (10th Cir. 2004); Mashantucket

Pequot Tribe v. Connecticut, 913 F.2d 1024, 1031–32 (2d

Cir. 1990). Unlike the statutes in Arapaho and Mashantucket,

Idaho law does not permit social or charitable casino gaming.

Rather, it permits “promotional contests and drawings

conducted incidentally to bona fide nongaming business

operations.” IDAHO CODE § 18-3801(4). The exception only

allows contests when “prizes are awarded without [charging]

consideration,” id., a category that does not include Hold’em.

Uneven enforcement of the poker prohibition does not

convert Hold’em into Class II gaming. Whether Hold’em is

“played at any location in the State” is largely irrelevant

because the statute is conjunctive and one of the conditions is

not satisfied. See 25 U.S.C. § 2703(7)(A)(ii) (Class II games

“are not explicitly prohibited by the laws of the State and are

played at any location in the State”) (emphasis added). As

poker is explicitly prohibited, it does not matter whether it is

played in the State. Nor does the exercise of prosecutorial

discretion show that poker is not prohibited by law. See

generally Bland v. Fessler, 88 F.3d 729, 737 (9th Cir. 1996).

Even if desuetude were a valid legal principle, the record

shows that the State enforces the statute and has not

disavowed it.7

7 The passage from Artichoke Joe’s California Grand Casino v. Norton,

353 F.3d 712, 722 (9th Cir. 2003), that “mere tolerance of class III gaming

might be enough to satisfy § 2710(d)(1)(B)’s requirement,” does not

compel a contrary result. Artichoke Joe’s addressed a separate provision

of the IGRA, and is thus not on point. The case, even if it were on point,

does not decide the question. Lastly, the passage is dicta that has never

been adopted as a holding.

STATE OF IDAHO V. 12 COEUR D’ALENE TRIBE

B. Violation of the Compact

The Tribe next argues that the statute does not abrogate

tribal sovereign immunity because the Compact only

encompasses a subset of Class III gaming. We affirm

because the Compact comprehensively addresses the full

range of Class III gaming.

As discussed supra, Article 6.2 of the Compact only

permits the lottery, parimutuel betting, and additional games

that “may hereafter be authorized to be conducted in the

State.” The parties disagreed as to the scope of gaming

permitted and agreed to pursue a declaratory judgment, which

Coeur d’Alene I resolved by stating that no other gaming was

permitted in Idaho.

Article 6.5 of the Compact squarely addresses this

contingency in providing that, upon conclusion of the

litigation, “[i]n the event the court(s) determines that no

additional types of games are permitted in Idaho under the

Act, the Tribe’s gaming shall be limited to the gaming

authorized in Article 6.2.” Articles 6.2 and 6.5

comprehensively address which Class III games are permitted

and prohibited.

The Tribe argues that our decision in Cabazon Band of

Mission Indians v. Wilson, 124 F.3d 1050 (9th Cir. 1997),

shows that the Tribe did not violate the Compact. But the

Compact in Cabazon only addressed parimutuel betting. Id.

at 1059. Thus, we determined that slot machines were “not

the subject of a Tribal-State compact.” Id. Here, in contrast,

the Compact covers all Class III gaming. The finding that the

Band did not breach the Compact “[b]ecause the slot

machines . . . are not mentioned,” id. at 1060, does not apply

STATE OF IDAHO V. COEUR D’ALENE TRIBE 13

where, as here, the Compact establishes that “gaming shall be

limited to the gaming authorized in Article 6.2.”

II. Venue

The Tribe argues that venue was improper because the

Compact provides an exclusive dispute resolution

mechanism. The court did not analyze the arbitration clause,

instead concluding that the Tribe “decided it would prefer to

litigate.” We affirm based on the Compact.8

The Compact permits litigation, provided neither party

has given notice of its intent to pursue arbitration. It provides

“[i]f the dispute is not resolved . . . within sixty days after

service of the notice . . . either party may pursue binding

arbitration to enforce or resolve disputes.” Tribal-State

Gaming Compact at 27 (emphasis added). In contrast, the

Compact contains an exclusive complaint mechanism. Id.

Interpreting the contract “as a whole and every part . . . with

reference to the whole,” Shakey’s Inc. v. Covalt, 704 F.2d

426, 434 (9th Cir. 1983), the Compact contains a mandatory

complaint mechanism and a permissive arbitration

mechanism.

“To be mandatory, a clause must contain language that

clearly designates a forum as the exclusive one.” N.

California Dist. Council of Laborers v. Pittsburg-Des Moines

Steel Co., 69 F.3d 1034, 1037 (9th Cir. 1995). The arbitration

clause does not clearly designate an exclusive forum. Rather,

it provides that “both parties consent to binding arbitration as

provided herein.” A clause in which parties consent to

8 The panel may affirm on any basis finding support in the record. See

United States v. Campbell, 291 F.3d 1169, 1172 (9th Cir. 2002).

STATE OF IDAHO V. 14 COEUR D’ALENE TRIBE

arbitrate does not constitute a clear designation of an

exclusive forum.

Applying the principle of expressio unius est exclusio

alterius, see Lares v. West One Bank (In re Lares), 188 F.3d

1166, 1169 (9th Cir. 1999) (citing Ace Realty, Inc. v.

Anderson, 682 P.2d 1289, 1296 (Idaho Ct. App. 1984)), the

clause providing arbitral exclusivity in a narrow circumstance

supports the interpretation that litigation is not barred in other

circumstances or in general. The Compact states that “[o]nce

a party has given notice of intent to pursue binding arbitration

. . . the matter in controversy may not be litigated in court.”

The parties could have only logically intended that, absent

such notice, litigation would be permitted. Otherwise, this

clause would be meaningless surplusage, informing the

parties that in addition to always barring litigation, the

Compact also bars it when arbitration is invoked. See Wright

v. Vill. of Wilder, 117 P.2d 1002, 1003 (Idaho 1941) (“[T]he

various provisions of a contract or statute must be so

construed (if possible) as to give force and effect to every part

thereof.”).9

III. Preliminary Injunction

To obtain a preliminary injunction, the moving party

“must establish that: (1) it is likely to succeed on the merits;

9 Although ambiguous arbitration clauses are to be resolved in favor of

coverage, see AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.

643, 650 (1986), the rule does not apply here because the arbitration

clause is unambiguous. Furthermore, the rule pertains to disputes about

the scope of arbitration clauses. Here, in contrast, the State and Tribe

concur that the arbitration clause would have applied if either party

invoked it. The parties do not dispute the scope of the clause, but its effect

(whether it provides an exclusive forum).

STATE OF IDAHO V. COEUR D’ALENE TRIBE 15

(2) it is likely to suffer irreparable harm in the absence of

preliminary relief; (3) the balance of equities tips in its favor;

and (4) an injunction is in the public interest.” Pom

Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir.

2014) (citing Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 20 (2008)). The parties do not dispute that our

immunity analysis determines the “success on the merits”

prong.

On the irreparable harm prong, the district court did not

err in determining that the State would likely suffer

irreparable harm to its economic and public policy interests

if the Tribe were not enjoined from offering Hold’em in

violation of IGRA and the Compact. See Kansas v. United

States, 249 F.3d 1213, 1228 (10th Cir. 2001). Purely

economic harms are generally not irreparable, as money lost

may be recovered later, in the ordinary course of litigation.

Sampson v. Murray, 415 U.S. 61, 61–62, 89–92 (1974)

(reversing injunction against firing of probationary

government employee because loss of earnings is not

irreparable harm). But, as the Tribe conceded at argument,

the Tribe’s sovereign immunity likely would bar the State

from recovering monetary damages incurred during the

course of this litigation due to the Tribe’s violation of IGRA

and the Compact. See 25 U.S.C. § 2710(d)(7)(A)(ii)); see

also Wisconsin v. Stockbridge-Munsee Cmty., 67 F. Supp. 2d

990, 1019–20 (E.D. Wis. 1999) (Tribe’s sovereign immunity

limits availability of alternative remedies). The inferences

made by the district court based on the record did not

constitute an abuse of discretion. See Small v. Avanti Health

Sys., LLC, 661 F.3d 1180, 1195–96 (9th Cir. 2011); see also

Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d

989, 1000 (9th Cir. 2011) (suggesting that reviewing court

may evaluate arguments presented on appeal).

STATE OF IDAHO V. 16 COEUR D’ALENE TRIBE

Similarly, the district court did not err in finding that the

balance of hardships tipped decidedly in the State’s favor and

that the public interest supported granting injunctive relief.

Allowing the Tribe to continue to offer Hold’em would

permit ongoing violations of the Compact and federal law. In

contrast, the primary public interest that would be served by

denying the motion for injunctive relief—the economic

benefits to be gained by offering Hold’em—would only

accrue by permitting unlawful gaming.

CONCLUSION

We affirm the district court’s denial of the Tribe’s motion

to dismiss. The district court correctly determined that the

elements of the statute were satisfied, such that the Tribe’s

sovereign immunity was abrogated. We affirm the court’s

venue ruling, although we do so on the basis of the terms of

the Compact. Lastly, we affirm the grant of injunctive relief

because the district court’s findings are supported by the

record.

AFFIRMED