__________ 95-3441

__________ Gaming Corporation of America; * Golden Nickel Casinos, Inc., * * Plaintiffs/Appellees, * * Appeal from the United States v. * District Court for the * District of Minnesota Dorsey & Whitney, a partnership, * * Defendant/Appellant. *

__________ 95-3696

__________ In re: Dorsey & Whitney, * a partnership, * * Petition for Writ of Mandamus Petitioner. * *

__________ Submitted: January 10, 1996 Filed: June 27, 1996

__________ Before LOKEN, HANSEN, and MURPHY, Circuit Judges.

__________ MURPHY, Circuit Judge.
Gaming Corporation of America (Gaming Corp.) and Golden Nicke l Casinos, Inc. (GoldenNickel) sued the Dorsey & Whitney law firm (Dorsey) in state court, alleging that Dorsey had violated state and federal la w while representing a Native American tribe during

### -2-

a tribal casino manag ement licensing process. Dorsey removed the case to federal district court, which remanded to the st ate court after dismissing several causes of action and concluding that no federal questions remained

. Dorsey se eks review either by a petition for a writ of mandamus or b y appea l, on the basis that federal questions remain and that the India n Gaming Regulation Act (IGRA), 25 U.S.C. §§ 2701 et seq. , completel y preempts the field of Indian gaming regulation.

I.
Gaming Corp. and Golden Nickel (the management companies) ar e Minn esota corporations involved in the management of gambling casinos

. They have overlapping ownership and at one point agreed to merge. Dorsey is a large Minnesota law firm which actively represented Gaming Corp. for some time.

The Ho-Chunk Nation is a recognized Native American tribe i n Wisconsin and was kno wn as the Wisconsin Winnebago Tribe until 1994. The nation decided to open a casino and negotiated a tribal-state compact with the state of Wisconsi n in 1992 as required by IGRA to allow it to conduct casino gaming. The n ation desired to have Dorsey represent it during the process of developing the casino, and Golden Nickel hoped to receive the contract to manage it.

Dorseyhad been representing Gaming Corp. but wished to begi n repres enting the tribe. Since the management companies had overlappin g ownerships, Dorsey wr ote to the nation and Golden Nickel advising them of the possibility that the interests of the nationcould be adverse to those of Golden Nickel and requesting their permission to represent the nation. The letter contained assurances that Dorsey woul d disclose no confidential inf ormation gained from its representation of Gaming Corp. In Februar y 1992 Golden Nickel and the nation both consented to Dorsey's

### Two of the three individuals who signed the agreement on 1 

### behalf of Golden Nickel also had an ownership interest in Gaming Corp.

-3- representa tion of the nation, and in July of that year Dorsey becam e 1 special counsel to the nation under a contract approved by the Bureau of Indian Affairs. Dorsey states it ended its repr esentation of Gaming Corp. in April 1993.

On October 7, 1992 Golden Nickel and the nation entered into a n agreement under which Golden Nickel would manage the Ho-Chunk Casino to be constructed in Baraboo, Wisconsin. Golden Nicke l was to provide financing for the construction and to maintain at all time s a valid license from the Winneba go Gaming Commission, the nation's regulatory body for gaming

. Golden Nickel obtained a provisional license from the tribal gamin g commission in May 1993, which was valid until the end of that year. The agreement also required Gaming Corp. to obtain a license if the management
com panies merged as they proposed. The casino was built and bega n operating.

In Decemb er 1993 Golden Nickel applied for a permanent license, and
sev eral months later Gaming Corp. also applied for a license. Th e management companies apparently planned to merge if both applications were approved. Dorsey assisted the tribal gaming commission in assessing the applications and was in charge of presenting evidence at several commissio n hearings held from December 1993 through May 1994.
After receiving the evidence, the tribal gaming commission deni ed the appl ications of both Gaming Corp. and Golden Nickel. The commissio n concluded that the in dividuals who owned all of Golden Nickel and much of Gaming Corp. had viol ated the terms of the provisional license. It found that one of the individuals had improperly attem pted to influence a member of the nation's business

### Before changing its name to the Ho-Chunk Nation in 1994, 2 

### the tribe's highest governing body was the Winnebago Business Committee. The Winnebago Gaming Commission was subordinate to the business committee. Part of the payment was for the purchase of land adjacent 3 

### to the casino used for parking. This land was owned by Dells Development Corp., a wholly owned subsidiary of Gaming Corp.
-4- committee to secure permanent license approval and that the testimony of

2 the owners of the management companies was often contradictory and no t credible. It also found that the management com panies had failed to sever ties with certain individuals as required by the provisional license. The permanent license applications were denied in July 1994, and the managemen t contract was terminat ed since Golden Nickel could not continue to operate the Ho-Chunk Casino without a license.

The management companies appealed the tribal commission's decisio n in the nation's courts and also brought suit against several parties i n Wisconsin state court . On February 9, 1995, the management companies and the nation reached a settlement of their disputes. The nation agreed to pay the management co mpanies $42 million in exchange for a release of all claims and for land controlled by the companies. 3
Meanwhile, the management companies filed this action against Dorsey in Minnes ota state court on September 17, 1994. The complaint, and th e amended complaint filed less than a week later, contained eleven counts. The ma nagement companies alleged numerous common law violations. Th e thrust of these counts was that Dorsey had made the licensing proces s unfa ir by intentionally or negligently making the management companie s appear unsuitable. Dorsey allegedly used fraudu lent and harassing tactics after having represented that the licensing process would be a mer e formalit y. Several counts also alleged that Dorsey had violated a fiduciary duty owed to the management companies arising out of its

### -5-

representation of Gam ing Corp. Count IX alleged that Dorsey had violated the Indian Civil Rights Act, 25 U.S.C. § 1302. The management companies claimed damage in excess of $100 million.

Dorse yremoved the case to federal court in October 1994. It s amende d notice of removal stated that the complaint raised federa l questi ons since many of the allegations related to gaming licens e proce edings governed by IGRA and since count IX arose under the India n Civil Rights Act. Dorsey moved to dismiss the complaint in November on th e basis that the management company causes of action were completel y preempted by IGRA and that count IX did not state a claim because n o private right of acti on exists under the Indian Civil Rights Act. On the same day the management companies moved to remand to state court.
In April 1995 the management compani es were allowed to file a second amended complaint. Count IX was amended to alle ge a conspiracy to violate the Indian Civil Rights Act. Counts XII and XIII were added, allegin g violat ions of the management companies' due process rights under th e fourteenth and fifth amendments to the United States Constitution.
On August 30, 1995 the district court issued an order dismissin g some claims and remanding the remainder to state court. As a threshold matter it con cluded that state law is not completely preempted by IGRA. I t dismissed for failure to state a claim the due process allegations i n counts XII and XIII and portions of two counts a lleging Dorsey's breach of
a duty of good faith and fair dealing under IGRA. After concluding that the count IX conspiracy related to the Indian Ci vil Rights Act arose under state law and that no federal causes of action remained, it declined t o
exe rcise supplemental jurisdiction and remanded under 28 U.S.C. § 1367(c)(3).
Dorsey then petitioned for a writ of mandamus and also filed

### The relevant portions of 28 U.S.C. § 1447 read: 4 

### (c) A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. . . . (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.

-6- an appe al because of uncertainty about the proper procedure to obtai n review. Dorsey argues that the district court h ad no discretion to remand the case since IGRA completely preempts state la w, that all alleged causes of actio n arise under federal law but fail to state a claim upon whic h relief can be granted , and that all claims should therefore be dismissed.

II.

The management companies argue that this court does not hav e juri sdiction to consider the issues raised, either on appeal or on a petition for a writ o f mandamus. In support of their position they point out that 28 U.S.C. § 1447(d) bars appellate revi ew when a case is remanded because of improper removal or because the federal court lacks subjec t matter jurisdiction.

Section 1447(d) provides that an order of remand is not reviewabl e unless the case was removed under § 1443, the fe deral civil rights removal statut e. This broadly stated restriction has been construed narrowly , however, and the Supreme Court has explained that only cases remanded unde r 28 U.S.C . § 1447(c) are subject to this nonreviewability provision. 4 Quackenbush v. Allsta te Insurance Company , 116 S. Ct. 1712, ____, 1996 WL 287700

### Count IX was later amended after removal to allege a 5 

### conspiracy to violate the Indian Civil Rights Act. See infra

. Several cases relied on heavily by the management companies 6 

### involve situations in which district courts decided claims were not preempted and remanded under 28 U.S.C. § 1447(c); removal was improper, and remand orders were unreviewable under § 1447(d). See, e.g. , Nutter v. Monongahela Power Co. , 4 F.3d 319 (4th Cir. 1993); Baldridge v. Kentucky-Ohio Transportation, Inc. , 983 F.2d 1341, 1350 (6th Cir. 1993) (concluding that the district court had remanded under 28 U.S.C. § 1447(c); Soley v. First National Bank of Commerce , 923 F.2d 406 (5th Cir. 1991); Hansen v. Blue Cross of California , 891 F.2d 1384, 1387-88 (9th Cir. 1989); Whitman v. Raley's Inc , 886 F.2d 1177, 1180-82 (9th Cir. 1989). In this case there was no § 1447(c) remand, so § 1447(d) does not bar review. Thermtron Products, Inc. v. Hermansdorfer , 423 U.S. 336, 346 (1976).
-7- at *4, *7 (U.S., June 3, 1996); Thermtron Produc ts, Inc. v. Hermansdorfer , 423 U .S. 336, 346 (1976). This case was not remanded under 28 U.S.C. § 1447(c), so 1447(d) does not bar review by an appellate court.
Count IX of the original complaint a lleged a violation of the Indian Civil Right s Act, 25 U.S.C. § 1302, so the district court had federa l 5 question jurisdiction at the time of removal apart from the claime d complete preemption by IGRA. The district court explicitly remanded the
case under 28 U.S.C. § 1367(c)(3) after concluding no federal claim s remaine d and declining to exercise supplemental jurisdiction. Gamin g 6 Corporation of America and Golden Nickel Casinos, Inc. v. Dorsey & Whitney , No. 4-94- 1036, slip op. at 15 (D.Minn. Aug. 30, 1995). Because th e district court never lacked subject matter juris diction and remanded under § 1367, n either § 1447(d) nor any other statutory bar exists to ou r jurisdiction. See In re Burns & Wilcox, Ltd. , 5 4 F.3d 475, 477 & n.7 (8th Cir. 1995); Melahn v. Pennock Insurance Inc. , 965 F.2d 1497, 1500-01 (8th Cir. 1992).
The question remains whether this case should be considered on appeal or on the petition for a writ of mandamus. Prior to the

### -8-

recent decision by th e Supreme Court in Quackenbush v. Allstate Insurance Company , 116 S. Ct. 1 712, 1996 WL 287700 (U.S., June 3, 1996), this court had indicated that review of remand orders should be by way of mandamus. In re Burns & Wilcox, Ltd. , 54 F.3d 475, 477 & n.7 (8th Cir. 1995). That
was because Thermtronappeared to prevent an appeal of a remand order unde r the collateral order exception to the final judgment rule. Id.

In Quackenbush the Supreme Court disavowed Thermtron to the exten t that case appeared to conflict with the holding in Moses H. Cone Memorial Hospital v. Mercury C onstruction Corp. , 460 U.S. 1, 11-13 (1983). 116 S. Ct. at ____, 1996 WL 287700 at *7. Because the remand order under review in Quackenbush

"is fu nctionally indistinguishable" from the stay order in Moses H. Cone , it should be appealable. Id. The remand "put the litigant s 'effectivelyout of court,'" and "its effect was 'precisely to surrender jurisdic tion of a federal suit to a state court.'" Id. at *5 (quotin g Moses H. Cone , 460 U. S. at 11, n.11). The remand order also would not be able to be reviewed on appeal at some later time. Id. at *6.

The effec t of the district court's remand in this case is identical to that of the order reviewed in Quackenbush and "clearly more 'final' " than the stay order in Moses H. Cone
. Id. By remanding under 28 U.S.C. § 1367(c), the district court surrendered jurisd iction to the state court, and Dorse y would have no other opportunity to appeal that decision in a federal court. The district court "disassociate[d] itself from the case entirely, retaining n othing of the matter on the federal court's docket." Id. The appropriate procedure then is to dismiss Dorsey's petition for a writ of mandamus and undertake our review by way of the appeal.

III.

### -9- Dorseyargues that the district court abused its discretion b y remanding the remaining claims to state court. It contends that IGR A completely preempts state law and that all of the management company claim s therefore arise under federal law. The management companies respond that IGRA is not completely preemptive and the case was properly remanded.

A dist rict court has no discretion to remand a claim that states a federal question. In re City of Mobile , 75 F.3d 605, 607 (11th Cir. 1996) ; Borough o f West Mifflin v. Lancaster , 45 F.3d 780, 787 (3rd Cir. 1995) ; Burks v. Ame rada Hess Corp. , 8 F.3d 301, 304 (5th Cir. 1993). Th e existence of a federal question is an issue of law which we review de novo

.

A.

As a gene ral rule a plaintiff can avoid removal to federal court by alleging only state law claims. Caterpillar Inc. v. Williams , 482 U.S

. 386, 392 (1987). The "well-pleaded complaint rule" requires that a federa l
cause of action must be stated on the face of the complaint before th e defend ant may remove the action based on federal question jurisdiction

. Id. A federal defens e, including the defense that one or more claims are preempted by federal law, does not give the defendant the right to remove to federal court. Id. at 392-93.

Comple te preemption provides an exception to the well-pleade d complaint rule and is different from preemption used only as a defense

. Complete preemption can arise when Congress inte nds that a federal statute preempt a field of la w so completely that state law claims are considered to be converted into federal causes of action. Metropolitan Life Insuranc e Co. v. Taylor , 481 U.S. 58, 65 (1987); Avco Corp. v. Aero Lodge No. 735, Int ern. Ass'n of Machinists and Aerospace Workers , 390 U.S. 557 (1968)

. To be completely preemptive, a statute must have "extraordinary

### The Oneida Nation had sued the state of New York, seeking 7 

### the rental value of properties allegedly ceded to the state without the consent of the United States. The lower federal courts concluded that the action was for possession of real property under state law. The Supreme Court reversed, reasoning that the ultimate issue of possession stated a federal question because its resolution would require sufficient reference to the treaties and laws of the United States. Oneida Indian Nation of New York State v. County of Oneida, N.Y. , 414 U.S. 661, 675 (1974). In reaching its conclusion, the Court considered the history of the unique possessory interests of Indians and the requirement that the
-10- pre-emptive power," a conclusion courts reach reluctantly. Metropolitan Life , 48 1 U.S. at 65. The term "complete preemption" is somewha t mis leading because even when it applies, all claims are not necessaril y covered.

Only t hose claims that fall within the preemptive scope of th e partic ular statute, or treaty, are considered to make out federa l questions, see Metropolitan Life , 481 U.S. at 64-66, but the presence of even one federal clai m gives the defendant the right to remove the entire
case to federal court. 28 U.S.C. § 1441. Complete preemption therefore has jurisdictional consequences that distinguish it from preemptio n asserted only as a defense. The defense of pree mption can prevent a claim from proceeding, but in contrast to complete preemption it does not conver t a state claim into a federal claim.

In Metropolitan Life , the Supreme Court extended the doctrine o f complete preemption to actions under § 502(a) of the Employee Retirement Income Security Act ( ERISA), 29 U.S.C. § 1132(a). 481 U.S. 58. Prior to Metropolitan Life , the Supreme Court had recogni zed complete preemption in § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, Avco Corp. v. Aero Lodge No. 735 , Intern. Ass'n of Machinists and Aerospace Workers , 390 U .S. 557 (1968), and in the possessory interest of Native America n tribes to lands obtained by treaty, Oneida India n Nation of New York State

v. County of Oneida, N.Y. , 414 U.S. 661 (1974) (considered a complet e preem ption case by the Supreme Court; see Caterpillar , 482 U.S. at 39 3 n.8). This court has also found complete preemption in other

7

### United States approve transfers of Indian lands. Id. at 667-74.

At least one district court has been faced with the issue. 8 

### In State of Kansas ex rel. Stephan v. Finney , 1993 WL 192809 (D.Kan. 1993), the state attorney general sued to determine whether Class III gaming was prohibited under Kansas law. Governor Finney, who had negotiated a tribal-state compact with two tribes, removed the action to federal court, claiming that IGRA completely preempted state law. Although the district court seemed to conclude that IGRA is completely preemptive, it decided that whether a state permits Class III gaming is a question of state law, resolvable without reference to IGRA and therefore outside the scope of any preemption. Courts have also remarked on IGRA's comprehensive nature. 9 

### See, e.g. , Sycuan Band of Mission Indians v. Roache , 54 F.3d 535, 538 (9th Cir. 1994), cert. denied , 116 S.Ct. 297 (1995); Forest County Potawatomi Community of Wisconsin v. Norquist , 45 F.3d 1079, 1082 (7th Cir. 1995); Ponca Tribe of Oklahoma v. State of Oklahoma , 37 F.3d 1422, 1425 (10th Cir. 1994), vacated on other grounds , 116 S.Ct. 1410 (1996).

-11- areas of special federal interest. See Peters v. Union Pacific Railroad Co. , No. 95-1599 (8th Cir. April 1, 1996) (Feder al Railroad Safety Act, 45 U.S.C. § 434); Deford v. Soo Line Railroad Co. , 867 F.2d 1080 (8th Cir.) (Railway Labor Act, as amended, 45 U.S.C. § 151 et seq. ), cert. denied , 49 2 U.S. 927 (1989).
This apparently is the first time a federal appellate court has been asked to consider whether IGRA completely preempts state laws regulating gaming on I ndian lands, but a number of federal courts have noted th e 8 strong preemptive force of IGRA. See, e.g. , Tamiami Partners, Ltd. v

. 9 Miccosukee Tribe of Indians , 63 F.3d 1030 (11th Cir. 1995) ("The occupatio n of this field by [IGRA] is evidenced by the broad reach of the statute's regulatory and enforcement provisions and is underscored by th e comprehensive regulations promulgated under the statute."); Cabazon Band of Mission Indians v. Wilson , 37 F.3d 430, 433-35 (9th Cir. 1994)

### -12-

(IGRA preempts state license fee based on wagers at Indian gamin g facility).
The methodology used in MetropolitanLife to determine whether there
was comple te preemption is useful in guiding our analysis. There th e Supre me Court considered the text of ERISA, congressional committe e reports, and the statements of a sponsor on the Senate floor befor e concluding that § 502(a) completely preempts state law. 481 U.S. at 65-66

. Co ngressional intent is the "ultimate touchstone" guiding preemptio n analysis. Pilot Life Insurance Co. v. Dedeaux , 481 U.S. 41, 45 (1987 ) (citations omitted).

Examination of the text and structure of IGRA, its legislativ e history, and its jurisdictional framework likewi se indicates that Congress intended it completely preempt state law. There is a comprehensiv e treatment of issues affecting the regulation of Indian gaming. One of the stated purposes of IGRA is "the establishment of Federal standards fo r gaming on Indian land s." 25 U.S.C. § 2702(3). The statute also declares that "Indian tribes have the exclusive right to regulate gaming activity
on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State whic h does not, as a matter of criminal law and publ ic policy, prohibit such gaming activity." 25 U.S.C. § 2701(5). IGRA establishes a federal National Indian Gaming Commission (NI GC) to oversee regulation, licensing, background checks of ke y employees, and other facets of gaming. The NIGC can approve or disapprove license applications, management contracts, and tribal gaming ordinances. It can suspend gaming , impose fines, perform its own background checks of individuals, and request the aid of other federal agencies. The commissio n also has a broad grant of regulatory authority.

The statute classifies all gaming into three categories and place s traditional (class I) gaming entirely beyond the reach of both federal and state regulation. 25 U.S.C. § 2710(a)(1). States

### -13-

can influence class II gaming on Indian lands wi thin their borders only if they prohibit those games for everyone under all circumstances. 25 U.S.C. § 2710(b) (1)(A). Short of a complete ban, states have virtually n o regulator yrole in class II gaming. 25 U.S.C. § 2710(b)(4); see Unite d States v. Sisseton-Wahpeton Sioux Tribe , 897 F.2d 358, 364 (8th Cir. 1990) ;
see also Oneida Tribe of Indians of Wisconsin v. State of Wisconsin , 951 F.2d 757, 759 (7th Cir. 1991).
At no poi nt does IGRA give a state the right to make particularized decisions regarding a specific class II gaming o peration. States only may set the minimum licensing criteria for operators of class II facilities an d impose some limitations on card parlor games. See 25 U.S.C

. §§ 2703(7)(A)(ii), 2710(b)(4). The statute itse lf reveals a comprehensive regulatorystructure for Indian gaming. The only avenue for significant state i nvolvement is through tribal-state compacts covering class II I gaming.

The legislative history contains a strong statement about IGRA' s preemptive force. The Senate committee report stated that "S. 555 i s intended to expressly preempt the field in the governance of gamin g activi ties on Indian lands. Consequently, Federal courts should no t balanc e competing Federal, State, and tribal interests to determine th e extent to which various gaming activities are allowed." S.Rep. No. 446, 100th Cong., 2d Sess. 6 (1988), reprinted in198 8 U.S.C.C.A.N. 3071, 3076. Although the Senate committee did not refer to the complete preemptio n doctri ne, cf. Metropolitan Life , 481 U.S. at 65-66, this statemen t demonstrates the intent of Congress that IGRA have extraordinary preemptiv e power, both because of its broad language and be cause it demonstrates that Congress foresaw that it would be federal courts which made determinations about gaming.
When Congress has chosen explicitly to grant jurisdiction to federal courts within a substantive statutory scheme, there may be

### The Supreme Court recently held this subsection 10 

### unconstitutional under the eleventh amendment. The subsection allowed tribes to sue states in federal court in order to encourage states to negotiate compacts. See Seminole Tribe of Florida v. Florida , 116 S. Ct. 1114 (1996).
-14- specia l significance in terms of complete preemption. In Metropolita n Life , the Court compared ERISA's jurisdictional provision to that of § 301 of the LMRA, the first statute found to be completely preemptive. 481 U.S

. at 65; see Avco , 390 U.S. 557 (1968). Section 301 provides that suits "ma y be brought in any dis trict court of the United States having jurisdiction of the parties . . . ." 29 U.S.C. § 185(a). Section 502(f) of ERIS A reads:
The district courts of the United States shall hav e jurisdiction, without respect to the amount in controversy or the citizenship of the parties, to grant the relief provide d for in [§ 502(a), 29 U.S.C. § 1132(a)] in any action.
29 U.S.C. § 1132(f). Both of these statutes provide for actions in federa l court, and both were found to be completely preemptive.

Everyreference to court action in IGRA specifies federal cour t jurisdiction. 25 U.S.C. §§ 2710(d)(7)(A), 2711(d), 2713(c), 2714 , 10 2715(c). State courts are never mentioned. The broadest jurisdictional provision of IGRA specifically provides for appeal of final National India n Gaming Commission decisions to "the appropriate Federal district court," and co vers the most substantive functions of the commission, includin g imposi ng civil penalties and approving of tribal gaming ordinances an d management contracts. 25 U.S.C. § 2714. As in Metropolitan Life and Avco , Con gress apparently intended that challenges to substantive decision s regarding the governance of Indian gaming would be made in federal courts.

IGRA's e xclusive focus on federal courts may also be viewed withi n the larger jurisdictional framework of Indian law. When

### -15-

drafting IGRA, Congress recognized the unique hi story of federal and state jurisd iction over Native Americans and Indian country. The Senat e committee stated: It is a long- and well-e stablished principle of Federal-Indian law as expressed in the United States Constitution, reflected in Federal statutes, and articulated in decisions of th e Sup reme Court, that unless authorized by an act of Congress , the ju risdiction of State governments and the application o f st ate laws do not extend to Indian lands. In modern times , eve n when Congress has enacted laws to allow a limite d app lication of State law on Indian lands, the Congress ha s requ ired the consent of tribal governments before Stat e jurisdiction can be extended to tribal lands. S.Rep. N o. 446, 100th Cong., 2d Sess. 5 (1988), reprinted in 198 8 U.S.C.C.A.N. 3071, 3075.

The legislative history indicates that Congress did not intend t o transfer any jurisdic tional or regulatory power to the states by means of IGRA unless a tribe consented to such a transfer in a tribal-state compact

. Consistent with these principles, the Committee has developed a framework for the regulation of gaming activities on Indian lan ds which provides that in the exercise of its sovereig n rights, unless a tribe a ffirmatively elects to have State laws and State jurisdiction extend to tribal lands, the Congres s will not unilaterally impose or allow State jurisdiction o n Indian lands for the regulation of Indian gaming activities.
The mechanism for facilitating the unusual relationship i n which a tribe might affirmatively seek the extension of State jurisd iction and the application of state laws to activitie s cond ucted on Indian land is a tribal-State compact. In n o in stance, does S. 555 contemplate the extension of Stat e jur isdiction or the application of State laws for any othe r purpose. Further, it is the Committee's intention that to the extent tribal governments elect to relinquish rights in a tribal-State compact that they might have otherwise reserved, the relinquishment of such rights shall be specific to th e tribe s o making the election, and shall not be construed t o extend to other tribes, or as a general abrogation of othe r reserved rights or of tribal sovereignty.

### The Court acknowledged, however, that had California 11 

### prohibited bingo instead of regulating it, state criminal law would have been applied. (Under Pub.L. 280 several states, including California and Wisconsin, were given criminal jurisdiction over some or all of the Indian lands within their borders. 18 U.S.C. § 1162.)
-16- S.Rep. No . 446, 100th Cong., 2d Sess. 5-6 (1988), reprinted in 198 8 U.S.C.C.A.N. 3071, 3075-76.
Congress thus left states with no re gulatory role over gaming except as expressly authoriz ed by IGRA, and under it, the only method by which a state can apply its general civil laws to gaming is through a tribal-state compa ct. Tribal-state compacts are at the core of the scheme Congres s developed to balance the interests of the federal government, the states, and the tribes. They are a creation of federal law, and IGRA prescribes "the p ermissible scope of a Tribal-State compact, see § 2710(d)(3)(C). " Seminole Tribe of Flo rida v. Florida , 116 S. Ct. 1114, 1120 (1996). Such
co mpacts must also be approved by the Secretary of the Interior

. § 2710(d)(3)(B).
A relevant factor to consider regarding the intent of Congress is the effect of California v. Cabazon Band of Mission Indians , 480 U.S. 20 2 (1987), on the final form of IGRA. S.Rep. No. 446, 100th Cong., 2d Sess. 4 (1988), reprinted i n 1988 U.S.C.C.A.N. 3071, 3073-74; see also Cheyenne River Sio ux Tribe v. State of South Dakota , 3 F.3d 273, 275 (8th Cir

. 1993). In Cabazon , t he Supreme Court had concluded that California could not apply its own laws regulating bingo prize limits and card games t o Indian gaming because the relevant interests of the tribes and the federal govern ment outweighed the state's regulatory interest. 480 U.S. 202

. Indian sovereignty, self-sufficiency, and self-government were th e "important federal interests" discussed. Id. at 216-20. The state's majo r int erest was discouraging organized crime. After balancing thes e interests, the Court reasoned that "State regulation would impermissibly infringe on tribal government." Id. at 215, 222. 11

### -17- IGR Aincorporated Cabazon's distinction between prohibition an d regulation, see United States v. Sisseton-Wahpeton Sioux Tribe , 897 F.2d 358 (8th Cir. 1990), but rather than directing the federal courts t o performthe balancing of interests between the state on the one side and the tri be and federal government on the other, Congress conducted th e bal ancing itself. S.Rep. No. 446, 100th Cong., 2d Sess. 6 (1988) , reprinted in 1988 U.S.C.C.A.N. 3071, 3076. It divided gaming into three separate classes, allowed states to prohibit cla ss II and class III gaming if those activities were prohibited throughout a state, and required a tribal-state compact for class III gaming.
The legislative history reveals the intent of Congress in setting up this t ripartite scheme and in considering state, tribal, and federa l interests: [I] n the final analysis, it is the responsibility of th e Cong ress, consistent with its plenary power over India n affairs, to balance competing policy interests and to adjust, where appropriate, the j urisdictional framework for regulation of gaming on Indian lands. S. 555 recognizes primary triba l jurisdiction over bingo and card parlor operations althoug h ove rsight and certain other powers are vested in a federall y established National Indian Gaming Commission. For class III casino, parimutuel and slot machine gaming, the bil l authorizes tribal governments and S tate governments to enter into tribalState compacts to address regulatory and jurisdicti onal issues. S.Rep. N o. 446, 100th Cong., 2d Sess. 3 (1988), reprinted in 198 8 U.S.C.C.A.N. 3071, 3073.

Congres s thus chose not to allow the federal courts to analyze th e relative interests of the state, tribal, and fed eral governments on a case bycase basis. Rather, it created a fixed division of jurisdiction. If a state law seeks to regulate gaming,

### -18-

it will not be applied. If a state law prohibits a class of gaming, it ma y have forc e. The courts are not to interfere with this balancing o f inter ests, they are not to conduct a Cabazon balancing analysis. Thi s
avo ids inconsistent results depending upon the governmental interest s involved i n each case. With only the limited exceptions noted above , Congress left the sta tes without a significant role under IGRA unless one is negotiated through a compact.
The compact here between the nation and the state of Wisconsin adopts the statutory pattern of jurisdiction. The majo r jurisdictional provision reads: "This Compact does not change the alloca tion of civil jurisdiction among f ederal, state, and tribal courts, unless specifically provide d otherwise in the Compact." Winnebago/State of W isconsin Gaming Compact of 1992 at 36 (Joint Appendix at 158).
The issue of whether complete preemp tion exists is separate from the issue of w hether a private remedy is created under a federal statute

. Caterpilla r Inc. v. Williams , 482 U.S. 386, 391 n.4 (1987). Complet e preemptio n can sometimes lead to dismissal of all claims in a case

. Althou gh courts may be reluctant to conclude that Congress intende d plaintiffs to be left without recourse, see M. Nahas & Co., Inc. v. First National Bank of Hot Springs , 930 F.2d 608, 612 (8th Cir. 1991), the inten t of Congre ss is what controls. Pilot Life Insurance Co. v. Dedeaux , 48 1 U.S. 41, 45 (1987) (citations omitted). IGRA has a carefully balance d jurisdictional scheme, through which Congress ga ve the states the right to negotiate tribal-state compacts but declined to grant them broade r authority without tribal consent.

The s tatute itself and its legislative history show the intent o f Congres s that IGRA control Indian gaming and that state regulation o f gam ing take place within the statute's carefully defined structure. W e therefore conclude that IGRA has the

### Early in its history the Supreme Court determined that 12 

### states did not have jurisdiction over Indian lands unless jurisdiction were affirmatively granted by Congress. For example, in Worcester v. Georgia , 31 U.S. 515, 6 Pet. 515, 560 (U.S. 1832), the Court remarked on the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States, with their consent: that their territory was separated from that of any state within whose chartered limits they might reside, by a boundary line, established by treaties: that, within their boundary, they possessed rights with which no state could interfere: and that the whole power of regulating intercourse with them, was vested in the United
-19- requisite extraordinary preemptive force necessa ry to satisfy the complete preemption exception to the well-pleaded complaint rule.

B.
The conclusion that IGRA completely preempts state law is reenforced when the statute is viewed in the context of Ind ian law. "The traditional notions of Indian sovereignty provide a crucial 'backdrop' against which any assertion of state authority must be assesse d." White Mountain Apache Tribe v. Bracker , 448 U.S. 136, 143 (1980) (citation omitted). A long lin e of Supreme Court decisions illustrates the importance of the federal and tribal interests in I ndian cases and the authority of Congress to protect those interests.

Congress has "plenary and exclusive power . . . to deal with Indian tribes." Bryan v. Itasca County, Minnesota , 426 U.S. 373, 376 n.2 (1976); see also Morton v. Ma ncari , 417 U.S. 535, 551-52 (1974) (plenary power is "drawn both explicitly and implicitly" from the Indian Commerce Clause , U.S. Con st. Art. I, § 8, cl. 3, and the President's treaty power, U.S

. Const. Art. II, § 2, cl. 2); United States v. Si oux Nation of Indians , 448 U.S. 371, 413 (1980) ("Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, . . .") (quotin g Lone Wolf v. Hitchcock , 187 U.S. 553, 565 (1903)). 12

### States.

From these principles, the Court concluded that "the laws of Georgia can have no force" on Cherokee land. Id. at 561 ( quoted in Oneida Indian Nation of New York State v. County of Oneida, N.Y. , 414 U.S. 661, 671 (1974)). Dorsey argues that the Mescalero test should be used to 13 

### decide whether there is complete preemption here, but the Supreme Court has not yet applied that test to a case in which complete preemption is asserted. Since IGRA meets the more demanding standard from Metropolitan Life , we need not consider whether the Mescalero test is appropriate here. Mescalero , 462 U.S. at 333- 34.
-20- Principles of Indian sovereignty andjurisdiction have developed and changed over time, but the Supreme Court very recently reaffirmed tha t Indian commerce is "under the exclusive control of the Federal Government. " Seminole Tribe of Florida v. Florida , 116 S.Ct. 1114, 1131 (1996). Native Amer icans are entitled to the benefit of the doubt if legislation i s ambigu ous. "[S]tatutes passed for the benefit of dependent India n tribe s . . . are to be liberally construed, doubtful expressions bein g resolved in favor of the Indians." Bryan , 426 U.S. at 392.
Because of unique federal and tribal interests a less stringent test is ap plied when preemption is asserted as a defense in cases involvin g Indian affairs. New Mexico v. Mescalero Apache Tribe , 462 U.S. 324, 334 (1983). In non-Indian cases the intent of Congr ess is the "touchstone" of the analysis, but because of "'[t]he unique historical origins of tribal
sove reignty' and the federal commitment to tribal self-sufficiency an d self-determination," id. , express congressional intent is not required in the context of Indian affairs: State jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and triba l interests reflected in f ederal law, unless the state interests at stake are sufficient to justify the assertion of stat e authority.
Id. (citin g White Mountain Apache Tribe v. Bracker , 448 U.S. 136, 14 5 (1980)). 13

### -21- This line of cases demonstrates a continuing federal concern fo r tribal economic development, self-sufficiency, and self-government whic h Congr ess reaffirmed in the text of IGRA. 25 U.S.C. § 2701(4). In thi s overal l historical context, the intent of Congress that IGRA "expressl y preempt the field" is particularly compelling, a nd the statute can be seen to have the "extraordinary" preemptive force required by Metropolitan Life

.

C.

All the claims in this case relate t o Dorsey's representation of the nation during consideration by the Winnebago Gaming Commission of th e management companies' permanent license applications, and all the claims must be examined individually in order to determ ine whether they fall into the scope of complete preemption.
The parti es suggest quite different tests to determine which claims may b e preempted. Dorsey suggests that any claim which "directl y implicates Indian gaming regulation" is preempted. Its position is that all of the claims are within the scope of preemption because thei r
res olution would require an examination of the fairness of the nation' s licens ing process. The management companies argue that only claim s requiring "application or interpretation of IGRA" should be preempted.

Relevant to analysis of the scope of preemption are both th e ratio nale used in Metropolitan Life concerning ERISA preemption an d congressional statements about IGRA itself. Whe ther a cause of action has a sufficient relationship to an employee benefit plan determines the scope of ERISA's preemption. Metropolitan Life , 481

### The management companies do not argue that Wisconsin's 14 

### compact with the nation was intended to transfer any relevant control of the tribal licensing process. The compact sets out licensing criteria for the nation, but they largely mirror the federal standards in IGRA. The compact also requires the tribe to provide the results of its background checks to the state. The state may make its own determination regarding the suitability of a license applicant. Compact, § VII. Under both IGRA and the compact, the tribe has the right to deny a license even where the state would approve it.
-22- U.S
. at 62-63, 67. Thus, state law regulating insurance is viable o r "saved," but all othe r state law claims "relating to" an employee benefit plan and covered under § 502(a) of ERISA are preempted. Id. The statemen t byCongress that IGRA is intended to "expressly preempt the field in the governance of gaming activities on Indian lands" is a useful starting poin t in dete rmining congressional intent. See Pilot Life Insurance Co. v

. Dedeaux , 481 U.S. 41, 45 (1987) (citations omitted). The key question is whether a particular claim will interfere with tribal governance of gaming

.

The tribal licensing process is required and regulated by IGRA

. Tribes must submit the results of the required background checks to th e NIGC. 25 U.S.C. §§ 2710(d)(1)(A)(ii), 2710(b)(2)(F)(ii). A description of that li censing process must be included in the tribal ordinance o r
res olution necessary to begin class II and class III gaming. Tha t ordinance or resolution must in turn be approved by the NIGC. 25 U.S.C. § 2710(b), (d). The question of licensing is therefore of "central concer n to the federal statute," Franchise Tax Board v. Construction Laborer s Vacati on Trust , 463 U.S. 1, 25-26 (1983), and Congress unmistakabl y intended that tribes play a significant role in the regulation of gaming.

Con gress struggled through several sessions to find a statutor y scheme which would incorporate and balance the interests of tribes, states , and the federal government. The tribal-state compact was the device i t ultimatel ychose. If a state, through its civil laws, were able t o regulate the tribal licensing process outside the parameters of its compac t with th e nation, it would bypass the balance struck by Congress. An y 14 claim which would

### Emphasis on the effect a claim would have on the tribe's 15 

### ability to govern gaming is also consistent with the Mescalero test of whether a claim "interferes or is incompatible with federal and tribal interests reflected in federal law." 462 U.S. at 334.
-23- direc tlyaffect or interfere with a tribe's ability to conduct its ow n licensing process should fall within the scope of complete preemption. 15

The mana gement companies argue that their claims do not affect th e nation 's ability to regulate gaming because this action only involve s non-Ind ian parties, but this overlooks the nation's relationship wit h Dor sey. The nation hired Dorsey to assist it in carrying out it s
con gressionallyauthorized governmental responsibility to determine th e suitability of the management companies.
Dorsey argues that the management company causes of action are direct challenges to the out come of the licensing process and therefore directly implicate governance of gaming. At one point th e second amended complaint
even refers to a "sham licensing process," and it contains numerou s references to a "scheme" by Dorsey and the "members and elements" of the nation to use the licensing process to terminate the nation's relationship with the management companies.
Subject to congressional divestment, the nation has a great interest in no t having its decisions questioned by the tribunal of anothe r soverei gn. IGRA reflects the intent of Congress that tribes maintai n consid erable control of gaming to further their economic and politica l development. The nation established the

### The management companies dismissed their appeal after they 16 

### reached a settlement with the nation.
-24- gaming commission as its licensing body under IGRA and prescribed th e proce dures to be used by the commission under the nation's gamin g ordinance. The nation also has an appeals process which the managemen t
com panies used in this action against the tribe. Nothing in th e 16 structure created by IGRA or in the tribal-state compact here suggests tha t the management companies should have the right to use state law t o challenge the outcome of an internal governmental decision by the nation.

The management companies chose to enter into the licensing proces s in the hope of securing a contract with the tribe. The tribe has a recognized interest in connection with parties who have explicit consensua l dea lings with it. Cf. Montana v. United States , 450 U.S. 544, 565-6 6 (1981); A -1 Contractors v. Strate , 76 F.3d 930, 935 (8th Cir. 1996) (e n banc).

Tribes ne ed to be able to hire agents, including counsel, to assist in the pr ocess of regulating gaming. As any government with aspects o f sovereign ty, a tribe must be able to expect loyalty and candor from it s agents. If the tribe's relationship with its at torney, or attorney advice to it , could be explored in litigation in an unrestricted fashion, it s abilityto receive the candid advice essential to a thorough licensin g process would be compromised. The purpose of Congress in requirin g background checks cou ld be thwarted if retained counsel were inhibited in discussing with the tribe what is learned during licensing investigations, for examp le. Some causes of action could have a direct effect on th e tribe's efforts to conduct its licensing process even where the tribe is not a party.

Those causes of action which would interfere with the nation' s ability to govern gaming should fall within the scope of IGRA's

### -25-

preemption of state law. In their briefs the parties concentrated their th inking on overall issues of preemption and did not explore th e possibilitythat only some claims might fall within the preemptive scope of IGRA. In light of this, it would be unwise for us now to rul e definitivelyon the individual claims, but some factors are likely to be of relevance to the development of the issues on remand.
The proposition that the preemptive scope of IGRA encompasses a claim is strong for claims that would intrude on the tribe's regulation of gamin g
or would require examination of the relationship between Dorsey and th e nation. Inquiry into Dorsey's performance of it s duty to the nation could threaten the tribe's legitimate interests, quest ion the correctness of its licensing decisions, and risk influencing how counsel could serve tribes in th e future. Under IGRA state law may not be applied to regulate th e tribal licensing process, even if indirectly, unless a tribal-state compac t so provides.

Potentia llyvalid claims under state law are those which would no t interfere with the nation's governance of gaming. To the extent a count all eges a violation of a duty owed to one of the management companie s because of an attorney-client relationship or other independent duty, it may be a valid state law count. Resolution of such claims would not appea r to involve attempted discovery of communications by the tribe to Dorsey or the merits of the licensing decision.
Any claims based on Dorsey's duty to the nation during the licensing pr ocess would appear to fall within the scope of IGRA's complet e preemption. Such preempted claims may not be remanded to state court unde r 28 U.S.C. § 1367(c) even though they purport to raise only issues of state law. In re City of M obile , 75 F.3d 605, 607 (11th Cir. 1996); Borough of Wes t Mifflin v. Lancaster , 45 F.3d 780, 787 (3rd Cir. 1995); Burks v

. Amerada Hess Corp. , 8 F.3d 301,

### -26-

304 (5th Cir. 1993).

IV.

Dorsey's final argument is that the district court abused it s discretion by remanding count IX. Originally co unt IX alleged a violation of the Indian Civil Rights Act. 25 U.S.C. § 1302. After the case wa s removed, the manageme nt companies amended count IX to allege a conspiracy to violat e the Indian Civil Rights Act. Dorsey argues that the amende d count arises under federal law and could not be remanded.
The district court correctly noted t hat there is no private right of action under the Indian Civil Rights Act under t hese circumstances. Santa Clara Pueblo v. Marti nez , 436 U.S. 49 (1978). It then concluded that the management companies had stated a cause of action for conspiracy unde r Minnesota law and cit ed Merrell Dow Pharmaceuticals Inc. v. Thompson , 478 U.S. 804 (1986). In Merrell Dow , the Supreme Co urt concluded that a state law cause of action merely incorporating federal law as an element does no t arise under federal l aw. The negligence claim in Merrell Dow arose under state law even though it was alleged that a violation of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. , created a rebuttable presumptio n of negligence. Id.

Merrell Dow does not control here, however, because unlike th e negligence action in that case, a conspiracy claim is not an independent
cause of action. Under Minnesota law conspiracy is based on the commissio n of an underlying tort: [S]in ce in so-called civil conspiracy cases liability i s predicated upon the tort committed by the conspirators and not upon the conspiracy, all egation[s] of conspiracy do not change the nature of the cause of action. Harding v. Ohio Casualty Insurance Co. , 41 N.W.2d 818, 825 (Minn. 1950). Thus, "the gist of the action is not the conspiracy

### -27-

charged , but the tort working the damage to the plaintiff." Id. at 82 4 (cit ations omitted). The Minnesota court concluded that "[a]ccuratel y speaking, there is no such thing as a civil action for conspiracy," an d "there can be no recovery unless substantive wrongs are pleaded." Id. Th e true purpose of conspiracy is "to show facts for vicarious liability o f defendants for acts committed by others, joinder of joint tortfeasors, and aggravation of damages." Id.

The consp iracy claim here arises under federal law for the purposes of jurisdiction since federal law is the only measure of whether Dorsey an d the nation conspired to commit an unlawful act or to commit a lawful act in an unlawful manner. See Harding , 41 N.W.2d at 824. The Indian Civil Rights Act, 25 U.S.C. § 1302, is the sole basis for the conspiracy alleged in amended count IX, so provisions of that law are the substantive measure s to be employed. In contrast, the federal standa rd used in Merrell Dow was merely one criterion the jury could use to decide whether the defendant's acts were unreasonable as a matter of state law. Furthermore, if state la w conspiracy(or aiding and abetting) claims based solely on violations of federal law were said to arise under state law, litigants could both avoid federal question jurisdiction and create causes of action where Congress intended there to be none. Count IX was properly removed; it stated a federal question, and it could therefore not be remanded under 28 U.S.C. § 136 7(c)(3). In re City of Mobile , 75 F.3d 605, 607 (11th Cir. 1996) ; Borough o f West Mifflin v. Lancaster , 45 F.3d 780, 787 (3rd Cir. 1995) ; Burks v. Amerada Hess Corp. , 8 F.3d 301, 304 (5th Cir. 1993).

### -28- V.

Because federal questions remained, it was error to send this cas e back to state court. The order of the district court is reversed, and the
case is remanded for further proceedings consistent with this opinion. Th e petition for a writ of mandamus is dismissed.

A true copy.

Attest:

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