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 the

government's request for an injunction and refusing to enforce the temporary closure

order of the Chairman of the National Indian Gaming Commission ("NIGC" or

"Commission") to prevent the Santee Sioux Tribe of Nebraska ("the Tribe") from

operating a gambling casino on the Tribe's reservation. We reverse.
At all times relevant to this litigation, the IGRA defined class I gaming as

1

"social games . . . for prizes of minimal value or traditional forms of . . . gaming" in

connection with tribal ceremonies, 25 U.S.C. § 2703(6); see also 25 C.F.R. § 502.2

(1997), class II gaming as "the game of chance commonly known as bingo . . .

including . . . pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games

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 . . . and

electromechanical facsimiles of any game of chance"); 25 C.F.R. § 502.4 (1997).

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I.

In 1988, Congress enacted the Indian Gaming Regulatory Act ("IGRA"), Pub. L.

No. 100-497, 102 Stat. 2467 (1988) (codified as amended at 25 U.S.C. §§ 2701-2721

(1994); 18 U.S.C. §§ 1166-1168 (1994)), which authorizes class III gaming activities

on Indian lands provided 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,

organization, or entity," and "conducted in conformance with a Tribal-State compact."

25 U.S.C. § 2710(d)(1).

In March 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

Tribe's lands. After failing to reach an agreement with the State despite extended

negotiations, the Tribe opened a class III gaming facility on tribal lands in February

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-state compact. See id. § 2710(d)(3)

(negotiation of compact), (7) (jurisdiction of federal courts). 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 of
On appeal, we affirmed the District Court's dismissal of the Tribe's action

2

against the State. See Santee Sioux Tribe v. Nebraska, 121 F.3d 427, 432 (8th Cir.

1997).

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the IGRA. The State requested 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 to

establish that the Tribe's gaming activity constituted a public nuisance suitable for

injunctive relief. 

On March 27, 1996, the United States Supreme Court decided Seminole Tribe v.

Florida, 517 U.S. 44 (1996), wherein the Court held that Congress lacked the authority

to enact the remedial sections of the IGRA allowing an Indian tribe to sue a state, and

that these sections comprised an unconstitutional abrogation of the states' sovereign

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 conducted

in violation of the IGRA, and demanding that the Tribe close its gaming facility on or

before May 3, 1996. The Tribe requested and was granted expedited review before the

Chairman, who declined to amend his original conclusions regarding the violations but

issued a revised order extending the date for closure to May 5, 1996. The Tribe closed

its gaming facility on May 5, 1996, in compliance with this order, but filed an appeal of

the Chairman's order with the full Commission and with the District Court. In the

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
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gaming; and for an order enjoining the NIGC and the United States Department of

Justice from enforcing gaming laws against the Tribe. On June 28, 1996, the Tribe

reopened its gaming facility, which it has continued to operate during the pendency of

this lawsuit.

On July 2, 1996, the United States filed a complaint against the Tribe seeking

orders declaring that the Tribe's conduct of class III gaming violates federal and state

law, enforcing the Chairman's closure order, and enjoining the Tribe from conducting

class III gaming without a valid tribal-state compact. These lawsuits were consolidated

with the agreement of the two parties. 

The District Court dismissed the Tribe's case on July 7, 1996, holding that the

Chairman's temporary closure order was not final agency action subject to judicial

review. The court likewise dismissed the government's case, holding that the United

States 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 enforce

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

gaming activities and that these activities had not been established as a nuisance

subjecting them to injunction under state law.

On July 31, 1996, the NIGC upheld on appeal the Chairman's order of temporary

closure, whereupon that order became final. Subsequently, on August 7, 1996, the

United States filed a motion with the District Court seeking leave to file a supplemental

pleading given that the NIGC had issued its final order. On December 31, 1996, the

District Court denied the government's motion and suggested that the United States was

empowered only to pursue criminal prosecution under the IGRA and that the NIGC had

"neither authorized nor directed the United States Attorney to attempt to enforce the
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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 activities and declining to enforce against the Tribe the closure order of

the Chairman of the NIGC. 

II.

We initially must determine whether the United States, acting through the

Attorney General and her United States Attorneys, is entitled to maintain this action to

enforce the closure order issued by the NIGC. The government contends that the broad

grant of authority to litigate given to the Attorney General and her United States

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 516

provides, "Except as otherwise authorized by law, the conduct of litigation in which the

United States, an agency, or officer thereof is a party, or is interested, . . . is reserved to

officers of the Department of Justice, under the direction of the Attorney General." The

Tribe, 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 the

Attorney General 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 orders

as well as 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 for

appeal of the Chairman's decisions to the full Commission, which may dissolve or make

permanent the 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 the
We note that the United States Attorney appeared before the District Court and 3

announced his representation of the United States and all other named defendants in

this action without complaint from the Tribe. Furthermore, the District Court noted in

its Findings of Fact and Conclusions of Law at 2 (July 10, 1996) that although the

Tribe's complaint did not name the United States as a defendant and was filed only

against the named defendants including the NIGC, it was "actually a suit against the

United States as defendant." Again, the Tribe was not heard to complain of the court's

conclusion. 

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IGRA nor its accompanying regulations grants specifically to the NIGC or its Chairman

independent authority to litigate the agency's decisions. Nor does the IGRA address

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 the IGRA is silent with respect to the authority to conduct litigation

necessary to enforce the NIGC'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 Congress 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 of

litigation in which the United States is involved, unless 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 suit on behalf of the United States without specific statutory authority

whenever the United States has a justiciable interest. See United States v. Republic

Steel Corp., 362 U.S. 482, 492 (1960) ("The test [is] whether the United States [has] an

interest to protect or defend."). "[T]he statutory authority of the Attorney General to

control litigation is not diminished without a clear and unambiguous directive from

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
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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 order

temporary closures of Indian gaming facilities operating in violation of the IGRA without

providing 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 enforce, 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.

Because we conclude that the United States has the authority to pursue this

litigation, we must next address the government's contention that the District Court

improperly refused to enforce the Chairman's closure order. We review the District

Court's analysis of federal statutory law de novo. See Rifkin v. McDonnell Douglas

Corp., 78 F.3d 1277, 1280 (8th Cir. 1996). The Chairman's closure order was based on

the absence of a compact between the Tribe and the State of Nebraska permitting the

conduct of class III gaming on the Tribe's lands, as required under the IGRA. It is

undisputed before this Court that the video slot, poker, and blackjack machines being

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 class 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 order to the Commission,

I find that the United States is not entitled to civil injunctive relief
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enforcing that order." Findings of Fact and Conclusions of Law at 9-10 (July 10, 1996).

The District Court reasoned that any civil remedy available under the IGRA for

violations 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 authorized to assess

fines for violations of the IGRA itself, not for violations of closure orders entered under

the auspices of the IGRA, and that the United States may pursue injunctive relief to

ensure the Tribe's compliance with the Chairman's closure order.

Section 2713 of the IGRA, entitled "Civil penalties," grants the Chairman the

power to either levy and collect fines for "any violation" of any tribal regulation, any

provision of the IGRA, or any regulation prescribed 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 the

Commission's regulations, temporary closure orders are included in the section entitled

"enforcement," 25 C.F.R. pt. 573 (1996) (covering notices of violation and orders of

temporary 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,

reductions, waivers, and final assessments). Section 575.4 of the NIGC regulations

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 text of the statute distinguishing between the options available to the

Chairman for violations of the Act and its accompanying regulations, as well as the

regulations themselves classifying 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 enforcing 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

gaming shall be permissible on Indian lands only if the activities are authorized by a

tribal ordinance or resolution; "located in a State that permits such gaming for any

purpose by any person, organization, or entity"; and "conducted in conformance with

a Tribal-State compact." 

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IV.

The United States next argues that, because it was entitled to pursue this litigation

on behalf of the Chairman and the NIGC to stop the Tribe's illegal activity and because

the assessment of civil fines is not an option available under the IGRA to ensure

compliance with the Chairman's closure orders, the District Court erred in refusing to

issue an injunction enjoining the Tribe from the further conduct of class III gaming.

"[I]njunctive relief should not be considered unless the record shows 'a real threat of [a]

future violation [of the law] or a contemporary violation of a nature likely to continue or

recur.'" Webb v. Missouri Pac. R.R., 98 F.3d 1067, 1068 (8th Cir. 1996) (quoting

United States v. Oregon State Med. Soc'y, 343 U.S. 326, 333 (1952) (internal quotation

alterations in Webb)). Because the Tribe's gaming activities constitute a continuing

violation of Nebraska law made applicable in Indian country through the IGRA, we

conclude that the District Court erred in refusing to issue an injunction--a remedy

available under Nebraska law. See infra Part IV.B.

A.

The Tribe's gaming activities violate 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 gaming 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
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the licensing, regulation, or prohibition of gambling, including 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 undisputed that the Tribe is operating video poker, blackjack, and slot

machines in its gaming facility. These forms of gambling are illegal in Nebraska, see

State ex rel. Spire v. Strawberries, Inc., 473 N.W.2d 428, 436 (Neb. 1991) (per curiam)

(labeling video poker, blackjack, and dice machines "gambling devices" within the

meaning of Nebraska Revised Statutes § 28-1101), because the possession or operation

of a "gambling device," including "any mechanical gaming device, computer gaming

device, electronic gaming device, or video gaming device which has the capability of

awarding 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

authorizing certain forms of gambling in the State. See id. §§ 9-204(2) (Supp. 1996)

(defining "bingo" to exclude any "mechanical gaming device, computer gaming device,

electronic gaming device, or video gaming device" and any activity prohibited under

Nebraska Revised Statutes Chapter 28, article 11); 9-411(2) (Supp. 1996), 9-507(2)

(Supp. 1996) (defining "lottery" to exclude "any gambling scheme which uses any

mechanical, computer, electronic, or video gaming device which has the capability of

awarding something of value" and any activity prohibited under Nebraska Revised

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 gambling scheme which

uses any mechanical gaming device, computer 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
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video gaming devices operated by the Tribe clearly fall within the definition of

prohibited "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 Nebraska

statutes is not well taken given the uniform prohibition of these devices under the State's

statutory scheme. As noted above, the State has consistently excluded from permitted

gambling activities the use of gaming devices similar to those operated by the Tribe. The

Tribe argues that, because the Nebraska Attorney General and the Nebraska Department

of Revenue have approved the use of a device known by the acronym "SLOTS"

(Selective Lottery Output Terminal System) to display keno results, the State has

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 keno results, and,

unlike a slot machine, is not a means of conducting the game itself. See Opinion of

Nebraska Attorney General at 11 (Sept. 18, 1995). 

Because the video gambling engaged in by the Tribe is not permissible under

Nebraska law, this activity is being conducted in violation of the IGRA, and the

contention of the United States that 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 request for injunctive relief, the District Court relied

on the maxim that equity generally will not 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
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which an injunction will issue: 1) in cases of national emergency; 2) in cases of

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 argues that the language of 18 U.S.C.

§ 1166(a), which makes "all State laws" pertaining to gambling applicable in Indian

country, encompasses the State's civil and criminal statutory and case law. According

to the government, "all State laws" necessarily includes Nebraska civil case law

authorizing injunctive relief to effectuate the closure of gambling establishments

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 elsewhere in the State," 18 U.S.C. § 1166(a), and does not distinguish

between case law and statutory law. The Rules of Decision Act, 28 U.S.C. § 1652

(1994), provides that the "laws of the several states . . . shall be regarded as rules of

decision in civil actions in the courts of the United States, in cases where they apply."

The United 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 gaming

operation offering video gambling machines much like those operated by the Tribe

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

constitute 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 though

these acts may be subject to criminal prosecution." Id.
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Here, the Tribe's conduct of illegal gambling has been "continuing and flagrant"

and, although potentially subject to criminal prosecution by the United States under the

provisions 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 flagrant violation of law that the District Court should have enjoined pursuant to

Nebraska law.

Because injunctive relief is available to halt illegal gambling activity under

Nebraska State law, see Strawberries, 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 because of the Supreme Court's determination in Seminole

Tribe that Congress was not empowered to authorize lawsuits by Indian tribes against

states that fail to negotiate in good faith for a tribal-state compact, all provisions of the

IGRA related to compacting are unconstitutional. We decline to address this argument

given our conclusion that, under the IGRA, the State is not required to negotiate for

gambling that is illegal under Nebraska law. See Cheyenne River Sioux Tribe v. South

Dakota, 3 F.3d 273, 279 (8th Cir. 1993) ("The 'such gaming' language of 25 U.S.C.

§ 2710(d)(1)(B) does not require the state to negotiate with respect to forms of gaming

it does not presently permit."); see also Citizen Band 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 necessary 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 we

already have determined, the class III gambling activities in which the Tribe is engaged
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are illegal under 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 District Court is reversed and the case remanded for entry of

an order enjoining the Tribe's operation of class III gaming devices and enforcing the

Chairman's closure order. 

A true copy.

Attest:

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