United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1546

_____________ United States of America, *
* Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska. Santee Sioux Tribe of Nebraska, a * Federally Recognized Indian Tribe, *
* Appellee. *

_____________ Submitted: November 19, 1997 Filed: January 29, 1998

_____________ Before BOWMAN, BRIGHT, and MURPHY, Circuit Judges.

_____________ BOWMAN, Circuit Judge.

The United States appeals the judgment of the District Court denying th e government's request for an injunction and refusing to enforce the temporary closure order o f the Chairman of the National Indian Gaming Commission ("NIGC" o r "Commis sion") to prevent the Santee Sioux Tribe of Nebraska ("the Tribe") fro m operating a gambling casino on the Tribe's reservation. We reverse.At all times relevant to this litigation, the IGRA defined class I gaming a s 1 "social games . . . for prizes of minimal value or traditional forms of . . . gaming" i n connection with tribal ceremonies, 25 U.S.C. § 2703(6); see also 25 C.F.R. § 502. 2 (1997), cl ass II gaming as "the game of chance commonly known as bingo . .

. including . . . pull-tabs, lotto, punch boards, tip jars, instant bingo, and other game s similar to bingo " and certain card games, 25 U.S.C. § 2703(7)(A); see also 25 C.F.R. § 502.3 (1997), and class III gaming as "all forms of gaming that are not class I gaming
or class II gaming," 25 U.S.C. § 2703(8) (including "slot machines . . . an d electromechanical facsimiles of any game of chance"); 25 C.F.R. § 502.4 (1997).
-2- I.
In 1988, Congress enacted the In dian Gaming Regulatory Act ("IGRA"), Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified as amended at 25 U.S.C. §§ 2701-2721 (1 994); 18 U.S.C. §§ 1166-1168 (1994)), which authorizes class III gaming activitie s on Indian lands p rovided that such activities are permitted under a tribal "ordinance or 1 resolution," "located in a State that permits such gaming for any purpose by any person, org anization, or entity," and "conducted in conformance with a Tribal-State compact." 25 U.S.C. § 2710(d)(1).

InMarch 1993, the Tribe approached the State of Nebraska to engage in tribalstate compact negotiations necessary under the IGRA to conduct class III gaming on the Tri be's lands. After failing to reach an agreement with the State despite extende d negotiat ions, the Tribe opened a class III gaming facility on tribal lands in Februar y 1996. This casino offered tribal members and the general public the opportunity to play video slot machines, video poker machines , and video blackjack machines. In the same month, the Tribe filed suit against the State of Nebraska and its Governor in district court alleging failure to negotiate in good faith for a tribal-st ate compact. See id. § 2710(d)(3) (negotiation of compact), (7) (jurisdiction of federal c ourts). The State asserted that the Tribe's lawsuit was barred by the Eleventh Amendment and counterclaimed , alleging that the Tribe was conducting class III gaming in violation ofOn appeal, we affirmed the District Court's dismissal of the Tribe's actio n 2 against the State. See Santee Sioux Tribe v. Nebraska , 121 F.3d 427, 432 (8th Cir

. 1997).
-3- the IGRA. The State reques ted declaratory and injunctive relief as well as a temporary restraining order to enjoin the Tribe's gaming activities. The District Court denied the State's motion for a temporary restraining order, holding that the State could not use a civil injunction to enjoin purportedly illegal activity, and that the State had failed t o establish that the Tribe's gaming activity constituted a public nuisance suitable fo r injunctive relief.

On March 27, 1996, the United State s Supreme Court decided Seminole Tribe v. Florida , 517 U.S. 44 ( 1996), wherein the Court held that Congress lacked the authority to enact t he remedial sections of the IGRA allowing an Indian tribe to sue a state, and that th ese sections comprised an unconstitutional abrogation of the states' sovereig n immunity. In light of this decision, the District Court dismissed the Tribe's suit against the state of Nebraska and denied the Tribe's motion for a new trial. 2

On April 25, 1996, the Chairman of the NIGC entered a notice of violation, see 25 C.F.R. § 573.3 (1996), and an order of temporary closure, see 25 U.S.C

. §§ 2705(a)(1), 2713(b); 25 C.F.R. § 573.6(11) (1996), informing the Tribe that, in the absence of a tribal-state compact, its class III gaming activities were being conducte d in violation of the IGRA, and demanding that the Tribe close its gaming facility on or before May 3, 1996. The Tribe reque sted and was granted expedited review before the Chairman, who declined to amend his original conclusions regarding the violations but issued a revised order exten ding the date for closure to May 5, 1996. The Tribe closed its gaming facility on May 5, 199 6, in compliance with this order, but filed an appeal of the Chairman's order with the full Commission and with the District Court. In th e District Court, the Tribe prayed for an order declaring that the tribal-state compacting provisions of the IGRA were unconstitutional and that the State permits class III-4-

gaming; and for an order enjoining the NIGC and the United States Department o f Justice from enforcing gaming laws against the Tribe. On June 28, 1996, the Trib e reopened its gaming facility, which it has continued to operate during the pendency of this lawsuit.

On Ju ly 2, 1996, the United States filed a complaint against the Tribe seekin g orders de claring that the Tribe's conduct of class III gaming violates federal and stat e law, enf orcing the Chairman's closure order, and enjoining the Tribe from conductin g class III gaming without a valid trib al-state compact. These lawsuits were consolidated with the agreement of the two parties.

The Distri ct Court dismissed the Tribe's case on July 7, 1996, holding that th e Chairman's temporary closure order was not final agency action subject to judicia l review. The court likewise dismissed the government's case, holding that the Unite d State s was not entitled to a civil injunction enforcing the Chairman's order (which , although temporary, was still in effect) because the IGRA vested authority to enforc e such orders with the NIGC and its Chairman. The court also held that civil injunctive relief could not be employed to enjoin the Tribe's purportedly illegal activities. Finally, the court held that there

was no statute granting the court authority to enjoin the Tribe's gami ng activities and that these activities had not been established as a nuisanc e subjecting them to injunction under state law.
On July 31, 1996, the NIGC upheld on a ppeal the Chairman's order of temporary cl osure, whereupon that order became final. Subsequently, on August 7, 1996, th e United States filed a motion with the District Court seeking leave to file a supplemental plead ing given that the NIGC had issued its final order. On December 31, 1996, th e District Court denied the government's mo tion and suggested that the United States was empowered only to pursue criminal prosecut ion under the IGRA and that the NIGC had "neither authorized nor directed the United States Attorney to attempt to enforce the-5-

Commission's order by seeking a civil injunction." Memorandum Opinion & Order at 6 (Dec. 31, 1996).
The United States appeals the decision of the District Court refusing to enjoin the Tribe's gaming a

ctivities and declining to enforce against the Tribe the closure order of the Chairman of the NIGC.

II.

We initi ally must determine whether the United States, acting through th e Attorney General and her United States Attorneys, is entitled to maintain this action to enforce the closure order issued by the N IGC. The government contends that the broad grant of authority to litigate given to the Attorney General and her United State s Attorneys under 28 U.S.C. § 516 (1994) encompasses an action to enforce the NIGC's closure order intended to prevent the Tribe's illegal gaming activity. Section 51 6 provides, "Except as otherwise auth orized by law, the conduct of litigation in which the United States, an agency, or officer t hereof is a party, or is interested, . . . is reserved to officers of the Department of Justice, under the direction of the Attorney General." The Tr ibe, on the other hand, contends that the Attorney General has no authority under § 516 to enforce closure orders issued by the NIGC or its Chairman. We hold that th e Attorney Genera

l is empowered under § 516 to seek enforcement of the closure orders of the NIGC.
The IGRA authorizes the Chairman of the NIGC to issue temporary closure ord ers as wellas to assess civil fines for violations of the Act, the NIGC regulations, or tribal ordinances, see 25 U.S.C. §§ 2705(a)(1), 2713(a)(1), 2713(b)(1), and provides fo r appeal of the Chairman's decisions to the full Commission, which may dissolve or make permanent t

he Chairman's orders, see id. §§ 2706(a)(5), 2713(b)(2). The NIGC's final orders are then appealable to the district court. See id. § 2713(c). Neither theWe note that the United States Attorney ap peared before the District Court and 3
annou nced his representation of the United States and all other named defendants i n this action without complaint from the Tribe. Furthermore, the District Court noted in its Fin dings of Fact and Conclusions of Law at 2 (July 10, 1996) that although th e Tri be's complaint did not name the United States as a defendant and was filed onl y again stthe named defendants including the NIGC, it was "actually a suit against th e United States as defendant." Again, the Trib e was not heard to complain of the court's conclusion.
-6- IGRA nor its accompanying regulations gra nts specifically to the NIGC or its Chairman independent authority to litigate the agency's decisions. Nor does the IGRA addres s specifically the Attorney General's authority to institute judicial proceedings on behalf of the Chairman or the NIGC to enforce closure orders or assessments of civil fines.

Because t he IGRA is silent with respect to the authority to conduct litigatio n necessary to enforce theNIGC's closure orders in the event those orders are ignored or its assessments are left unpaid by Indian Tribes engaging in gaming activities in violation of the Act, we must assume that Congre ss intended for the Attorney General to conduct this enforcement function on behalf of the agency. "Pursuant to 28 U.S.C. § 516, the 3 Attorney General has exclusive authority and plenary power to control the conduct o f litigation in which the United States is involved, u nless Congress specially authorizes an agency to proceed without the supervision of the Attorney General." United States v. Hercules, Inc. , 961 F.2d 796, 798 (8th Cir. 1992) (construing Attorney General' s authority under CERCLA to enter cost recovery settlement). Furthermore, the Attorney General may file su it on behalf of the United States without specific statutory authority wheneve r the United States has a justiciable interest. See United States v. Republi c Steel Corp. , 362 U.S. 482, 492 (1960) ("The tes t [is] whether the United States [has] an inter estto protect or defend."). "[T]he statutory authority of the Attorney General t o
co ntrol litigation is not diminished without a clear and unambiguous directive fro m Congress." Hercules , 961 F.2d at 798; see also Federal Trade Comm'n v. Guignon , 390 F.2d 323, 324 (8th Cir. 1968) (noting that agencies can-7-

conduct their own litigation only when granted "specific authorization to proceed without the advice, assistance or supervision of the Attorney General").
We cannot imagine that Congress intended to vest in the Chairman and the NIGC the power to assess fines against the tribal operators of the facilities and to orde r temporary closures of Indian gaming facilities operating in violation o f the IGRA without prov iding for a means to ensure compliance with those decisions. The IGRA's silence

on the matter of enforcement of the Chairman's closure orders compels our conclusion that the broad authority to litigate granted to the Attorney General under 28 U.S.C. § 516 envisions the action taken here by the United States Attorney to en force, on behalf of the NIGC and the United States as an interested party, the Chairman's order demanding that the Tribe close its gaming facility.

III.

Bec ause we conclude that the United States has the authority to pursue thi s litigat ion, we must next address the government's contention that the District Cour t improp erly refused to enforce the Chairman's closure order. We review the Distric t Co urt's analysis of federal statutory law de novo. See Rifkin v. McDonnell Dougla s Corp. , 78 F.3d 1277, 1280 (8th Cir. 1996). The Chairman's closure order was based on the ab sence of a compact between the Tribe and the State of Nebraska permitting th e condu ctof class III gaming on the Tribe's lands, as required under the IGRA. It i s und isputed before this Court that the video slot, poker, and blackjack machines bein g operated by the Tribe constitute class III gaming devices as defined under the IGRA

. Likewise, it is undisputed that the Tribe and the State of Nebraska have not entered into a tribal-state compact to allow c lass III gaming on the Tribe's lands. The District Court concluded, however, that, "[a]lthough it would appear that the Chairman's closure order does remain in effect notwithstanding the Tribe's appeal of that ord er to the Commission, I find that the United States is not entitled to civil injunctive relief-8-

enforcing that order." Findings of Fact and Concl usions of Law at 9-10 (July 10, 1996). The Dis trict Court reasoned that any civil remedy available under the IGRA fo r violat ions of the Chairman's closure order was limited to the imposition of fines by the Chairman under 25 U.S.C. § 2713(a), and that the government was empowered under the IGRA to seek only criminal prosecution of violations of the Chairman's orders. We conclude, however, that under 25 U.S.C. § 2713(a), the Chairman is au thorized to assess fines for violations of the IGRA itse lf, not for violations of closure orders entered under the auspices of the IGRA, and that the United States may pursue injunctive relief t o ensure the Tribe's compliance with the Chairman's closure order.

Section 2713 of the IGRA, entitled "Civil penalties," grants the Chairman th e power to either levy and collect fines for "any violation" of any tribal regulation, an y provision of the IGRA, or any regulation pr escribed by the NIGC, 25 U.S.C. § 2713(a),

or to issue orders of temporary closure for "substantial violation" of tribal regulations, any provision of the IGRA, or any NIGC regulation, 25 U.S.C. § 2713(b). In th e Commission's regu lations, temporary closure orders are included in the section entitled "enforcement," 25 C.F.R. pt. 573 (1996) (covering notices of violation and orders o f temporar y closure), while civil fines are in a separate self-titled section, see id. pt. 575 (1996) ( covering how and when civil fines will be assessed, as well as settlements , reduction s, waivers, and final assessments). Section 575.4 of the NIGC regulation s addresses when civil fines will be assessed and does not include the imposition of fines for non-compliance with the Chairman's closure orders.

The tex t of the statute distinguishing between the options available to th e Cha irmanfor violations of the Act and its accompanying regulations, as well as th e regulations themselves classifyi ng closure orders as an enforcement mechanism distinct from the assessment of civil fines, indicates that the Chairman's authority to levy fines was not intended as a means of en forcing closure orders. We conclude that the District Court erred in refusing to enforce the Chairman's closure order on this basis.Section 2710(d)(1) of Title 25 of the United States Code provides that class III 4 gamin g shall be permissible on Indian lands only if the activities are authorized by a tribal ordin ance or resolution; "located in a State that permits such gaming for an y purposeby any person, organization, or entity"; and "conducted in conformance with a Tribal-State compact."

-9- IV.
The United States next argues that, because it was entitle d to pursue this litigation on behalf of the Chairman

and the NIGC to stop the Tribe's illegal activity and because the asse ssment of civil fines is not an option available under the IGRA to ensur e complia nce with the Chairman's closure orders, the District Court erred in refusing t o issue an injunction enjoining the Tribe from the further conduct of class III gaming

. "[I]njunctive relief should not be cons idered unless the record shows 'a real threat of [a] future violation [of the law] or a contempora ry violation of a nature likely to continue or recur.'" W ebb v. Missouri Pac. R.R. , 98 F.3d 1067, 1068 (8th Cir. 1996) (quotin g United States v. Oregon State Med. Soc'y , 34 3 U.S. 326, 333 (1952) (internal quotation alt erations in Webb )). Because the Tribe's gaming activities constitute a continuin g vio lation of Nebraska law made applicable in Indian country through the IGRA, w e conclude that the District Court erred in refusing to issue an injunction--a remed y available under Nebraska law. See infra Part IV.B.

A.
The Tribe's gaming activities violat e the IGRA because they are being conducted in contravention of Nebraska law. Under the IGRA, an Indian tribe may engage in a gaming activity on tribal lands only if that specific gami ng activity is permitted under the laws of the State where the tribal land is located. See 25 U.S.C. § 2710(d)(1)(B). The 4 IGRA also provides that "for purposes of Federal law, all State laws pertaining to-10-

the licensing, regulation, or prohibition of gambling, in cluding but not limited to criminal sanctions . . . shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State." 18 U.S.C. § 1166(a) (emphasis added).

It is u ndisputed that the Tribe is operating video poker, blackjack, and slo t machines in its gaming facility. These forms of gambling are illegal in Nebraska, se e State ex rel. Spire v. Strawberries, Inc. , 47 3 N.W.2d 428, 436 (Neb. 1991) (per curiam) (labeling video poker, blackjack, and dice machines "gambling devices" within th e meaning of Nebraska Revised Statutes § 28-1101), because the possession or operation of a "gambling device," including "any mechanical gaming device, computer gamin g device, electronic gaming device, or video gaming device which has the capability o f

awar ding something of value," is prohibited, Neb. Rev. Stat. § 28-1101(5) (1995); see also id. § 28-1107 (1995). This language is incorporated into related Nebraska statutes aut horizing certain forms of gambling in the State. See id. §§ 9-204(2) (Supp. 1996 ) (defining "bingo" toexclude any "mechanical gaming device, computer gaming device, electro nic gaming device, or video gaming device" and any activity prohibited unde r Neb raskaRevised Statutes Chapter 28, article 11); 9-411(2) (Supp. 1996), 9-507(2 ) (Supp. 1996) (defining "lottery" to exclude "any gambling scheme which uses an y mechani cal, computer, electronic, or video gaming device which has the capability o f

aw arding something of value" and any activity prohibited under Nebraska Revise d Statutes Chapter 28, article 11); § 9-312 (Supp. 1996) (defining "[l]ottery by the sale of pickle cards" to exclude any activity prohibited under Chapter 28, article 11); see also id. §§ 9-607(2) (Supp. 1996) (defining "lottery" to exclude "any gamblin g scheme which uses any mechanical gaming device, co mputer gaming device, electronic gaming device

or video gaming device"), 9-701(1)(a) (Supp. 1996) (excluding from the definition of "gift enterprise" "any . . . player-activated electronic or electromechanical facsimile of any game of chance; or any slot machine of any kind"); 9-803(5)(b) (Supp. 1996 ) ("[l]ottery game shall not be construed to mean any video lottery game"). The-11-

vide o gaming devices operated by the Tribe clearly fall within the definition o f prohibi ted "gambling devices" under Nebraska law and, by virtue of 25 U.S.C

. § 2710(d)(1)(B) and 18 U.S.C. § 1166, are likewise prohibited under the IGRA.

The Tribe's argument that its gaming devices are permitted under the Nebrask a statutes is not well taken given the uniform prohibi tion of these devices under the State's stat utory scheme. As noted above, the State has consistently excluded from permitted gambling activities the use of gaming devices similar to those operated by t he Tribe. The Tribe argues that, because the Nebraska Attorney General and th e Nebraska Department of Revenue have approved the use of a device known by the acronym "SLOTS " (Sele ctive Lottery Output Terminal System) to display keno results, the State ha s approved the use of video gaming devices. This argument, however, fails to take into account the fundamental difference between "SLOTS" and a traditional slot machine

. The "SLOTS" device is only a means of allowing keno players to view k eno results, and, unlike a slot machine, is not a means of conducting the game itself. See Opinion o f Nebraska Attorney General at 11 (Sept. 18, 1995).

Because the video gambling engaged in by the Tribe is not permissible unde r Neb raskalaw, this activity is being conducted in violation of the IGRA, and th e contention of the United States th at it is entitled to an injunction from the District Court enjoining the further conduct of such activity by the Tribe is correct.

B.
In denying the government's reque st for injunctive relief, the District Court relied on the maxim that equity generally will no t enjoin the commission of a crime. See, e.g. , 11A Charles Alan Wright et al., Federal Practice and Procedure § 2942, at 70 (2d ed. 1995). As noted by the District Court, this general rule has three exceptions under-12-

which an injunction will issue: 1) in cases of national emergency; 2) in cases o f widespread public nuisance; and 3) in cases where a statute grants a court the power to enjoin a crime. See id. at 71-74. The government argue s that the language of 18 U.S.C. § 1166( a), which makes "all State laws" pertaining to gambling applicable in India n
co untry, encompasses the State's civil and criminal statutory and case law. According to the gov ernment, "all State laws" necessarily includes Nebraska civil case la w auth orizing injunctive relief to effectuate the closure of gambling establishment s determined under State law to be public nuisances. We agree.

The IGRA incorporates by reference "all State laws pertaining to the licensing , regulation, or prohibition of gambling . . . in the same manner and to the same extent as such laws apply e lsewhere in the State," 18 U.S.C. § 1166(a), and does not distinguish betwee n case law and statutory law. The Rules of Decision Act, 28 U.S.C. § 165 2 (1994), provi des that the "laws of the several states . . . shall be regarded as rules o f decision in civil actions in the courts of the United States, in cases where they apply." The Un ited States Supreme Court has pronounced that "judicial decisions" are laws of the state within the meaning of the Rules of Decision Act. Commissioner v. Estate of Bosch , 387 U.S . 456, 464 (1967). We hold that the IGRA's incorporation of "all State laws" includes both state statutory and case law.

In Strawberries , the Nebraska Supreme Court specifically held that a gamin g ope ration offering video gambling machines much like those operated by the Trib e constituted a public nuisance under Nebraska law. See 473 N.W.2d at 435 ( citing cases). The Court further noted that an injunction is the proper remedy to protect "public rights, property, or welfare, whether or not the acts complained of violate a criminal statute or constit ute a nuisance." Id. at 436. Injunctive relief may be granted by a court "where there has been a continuing and flagrant course of violations of the law even thoug h these acts may be subject to criminal prosecution." Id.-13-

H e re, the Tribe's conduct of illegal gambling has been "continuing and flagrant" and, although potentiallysubject to criminal prosecution by the United States under the pro visions of the IGRA, this activity is likewise subject to injunctive relief pursuant to applicable Nebraska law. The Tribe's ongoing gambling activity constitutes a continuing and flagran t violation of law that the District Court should have enjoined pursuant t o Nebraska law.

Becaus e injunctive relief is available to halt illegal gambling activity unde r Nebraska State law, see Strawberrie s , 473 N.W.2d at 436-37, this relief has been made available under federal law by virtue of 25 U.S.C. § 1166, and the District Court erred in refusing to grant the government's request for an order enjoining the Tribe's gaming activities.

V.
The Tribe argues that be cause of the Supreme Court's determination in Seminole Tribe that Congress was not empowered to authorize lawsuits by Indian tribes against states tha t fail to negotiate in good faith for a tribal-state compact, all provisions of the IGRA related to compact

ing are unconstitutional. We decline to address this argument givenour conclusion that, under the IGRA, the State is not required to negotiate fo r gambling that is illegal u nder Nebraska law. See Cheyenne River Sioux Tribe v. South Dako ta , 3 F.3d 273, 279 (8th Cir. 1993) ("The 'such gaming' language of 25 U.S.C

. § 2710(d)(1)(B) d oes not require the state to negotiate with respect to forms of gaming it does not presently permit."); see also Citizen Ban d Potawatomi Indian Tribe v. Green , 995 F.2d 179, 181 (10th Cir. 1993) ("Congress must have meant that gambling devices be legal [within state law] absent the Tribal-State compact; otherwise it would not have been nec essary to require both that gambling devices be legal, 25 U.S.C

. § 2710(d) (6)(A), and that the compact be 'in effect,' id. § 2710(d)(6)(B)."). As w e already have determined, th e class III gambling activities in which the Tribe is engaged-14-

are illegal u nder Nebraska law, ruling out any duty on the part of the State to negotiate a compact with the Tribe for such gambling.

VI.

The decision of the Dist

rict Court is reversed and the case remanded for entry of

an order enj oining the Tribe's operation of class III gaming devices and enforcing th e Chairman's closure order.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT