__________

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 Nickel

Casinos, Inc. (Golden Nickel) sued the Dorsey & Whitney law firm (Dorsey)

in state court, alleging that Dorsey had violated state and federal law

while representing a Native American tribe during
-2-

a tribal casino management licensing process. Dorsey removed the case to

federal district court, which remanded to the state court after dismissing

several causes of action and concluding that no federal questions remained.

Dorsey seeks review either by a petition for a writ of mandamus or by

appeal, on the basis that federal questions remain and that the Indian

Gaming Regulation Act (IGRA), 25 U.S.C. §§ 2701 et seq., completely

preempts the field of Indian gaming regulation.

I.

Gaming Corp. and Golden Nickel (the management companies) are

Minnesota 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 in

Wisconsin and was known as the Wisconsin Winnebago Tribe until 1994. The

nation decided to open a casino and negotiated a tribal-state compact with

the state of Wisconsin in 1992 as required by IGRA to allow it to conduct

casino gaming. The nation desired to have Dorsey represent it during the

process of developing the casino, and Golden Nickel hoped to receive the

contract to manage it.

Dorsey had been representing Gaming Corp. but wished to begin

representing the tribe. Since the management companies had overlapping

ownerships, Dorsey wrote to the nation and Golden Nickel advising them of

the possibility that the interests of the nation could be adverse to those

of Golden Nickel and requesting their permission to represent the nation.

The letter contained assurances that Dorsey would disclose no confidential

information gained from its representation of Gaming Corp. In February

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-

representation of the nation, and in July of that year Dorsey became

1

special counsel to the nation under a contract approved by the Bureau of

Indian Affairs. Dorsey states it ended its representation of Gaming Corp.

in April 1993.

On October 7, 1992 Golden Nickel and the nation entered into an

agreement under which Golden Nickel would manage the Ho-Chunk Casino to be

constructed in Baraboo, Wisconsin. Golden Nickel was to provide financing

for the construction and to maintain at all times a valid license from the

Winnebago Gaming Commission, the nation's regulatory body for gaming.

Golden Nickel obtained a provisional license from the tribal gaming

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

companies merged as they proposed. The casino was built and began

operating.

In December 1993 Golden Nickel applied for a permanent license, and

several months later Gaming Corp. also applied for a license. The

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 commission

hearings held from December 1993 through May 1994.

After receiving the evidence, the tribal gaming commission denied the

applications of both Gaming Corp. and Golden Nickel. The commission

concluded that the individuals who owned all of Golden Nickel and much of

Gaming Corp. had violated the terms of the provisional license. It found

that one of the individuals had improperly attempted 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 not

credible. It also found that the management companies 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 management

contract was terminated since Golden Nickel could not continue to operate

the Ho-Chunk Casino without a license.

The management companies appealed the tribal commission's decision

in the nation's courts and also brought suit against several parties in

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 companies $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 Minnesota state court on September 17, 1994. The complaint, and the

amended complaint filed less than a week later, contained eleven counts.

The management companies alleged numerous common law violations. The

thrust of these counts was that Dorsey had made the licensing process

unfair by intentionally or negligently making the management companies

appear unsuitable. Dorsey allegedly used fraudulent and harassing tactics

after having represented that the licensing process would be a mere

formality. Several counts also alleged that Dorsey had violated a

fiduciary duty owed to the management companies arising out of its
-5-

representation of Gaming 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.

Dorsey removed the case to federal court in October 1994. Its

amended notice of removal stated that the complaint raised federal

questions since many of the allegations related to gaming license

proceedings governed by IGRA and since count IX arose under the Indian

Civil Rights Act. Dorsey moved to dismiss the complaint in November on the

basis that the management company causes of action were completely

preempted by IGRA and that count IX did not state a claim because no

private right of action 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 companies were allowed to file a second

amended complaint. Count IX was amended to allege a conspiracy to violate

the Indian Civil Rights Act. Counts XII and XIII were added, alleging

violations of the management companies' due process rights under the

fourteenth and fifth amendments to the United States Constitution.

On August 30, 1995 the district court issued an order dismissing some

claims and remanding the remainder to state court. As a threshold matter

it concluded that state law is not completely preempted by IGRA. It

dismissed for failure to state a claim the due process allegations in

counts XII and XIII and portions of two counts alleging 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 Civil Rights Act arose under

state law and that no federal causes of action remained, it declined to

exercise 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 appeal because of uncertainty about the proper procedure to obtain

review. Dorsey argues that the district court had no discretion to remand

the case since IGRA completely preempts state law, that all alleged causes

of action arise under federal law but fail to state a claim upon which

relief can be granted, and that all claims should therefore be dismissed.

II.

The management companies argue that this court does not have

jurisdiction to consider the issues raised, either on appeal or on a

petition for a writ of mandamus. In support of their position they point

out that 28 U.S.C. § 1447(d) bars appellate review when a case is remanded

because of improper removal or because the federal court lacks subject

matter jurisdiction.

Section 1447(d) provides that an order of remand is not reviewable

unless the case was removed under § 1443, the federal civil rights removal

statute. This broadly stated restriction has been construed narrowly,

however, and the Supreme Court has explained that only cases remanded under

28 U.S.C. § 1447(c) are subject to this nonreviewability provision.4

Quackenbush v. Allstate 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 Products, 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 alleged a violation of the Indian

Civil Rights Act, 25 U.S.C. § 1302, so the district court had federal

5

question jurisdiction at the time of removal apart from the claimed

complete preemption by IGRA. The district court explicitly remanded the

case under 28 U.S.C. § 1367(c)(3) after concluding no federal claims

remained and declining to exercise supplemental jurisdiction. Gaming

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 the

district court never lacked subject matter jurisdiction and remanded under

§ 1367, neither § 1447(d) nor any other statutory bar exists to our

jurisdiction. See In re Burns & Wilcox, Ltd., 54 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 the Supreme Court in Quackenbush v. Allstate Insurance

Company, 116 S. Ct. 1712, 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 Thermtron appeared to prevent an appeal of a remand order under

the collateral order exception to the final judgment rule. Id.

In Quackenbush the Supreme Court disavowed Thermtron to the extent

that case appeared to conflict with the holding in Moses H. Cone Memorial

Hospital v. Mercury Construction 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 functionally indistinguishable" from the stay order in

Moses H. Cone, it should be appealable. Id. The remand "put the litigants

'effectively out of court,'" and "its effect was 'precisely to surrender

jurisdiction of a federal suit to a state court.'" Id. at *5 (quoting

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 effect 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 jurisdiction to the state court,

and Dorsey would have no other opportunity to appeal that decision in a

federal court. The district court "disassociate[d] itself from the case

entirely, retaining nothing 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.
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Dorsey argues that the district court abused its discretion by

remanding the remaining claims to state court. It contends that IGRA

completely preempts state law and that all of the management company claims

therefore arise under federal law. The management companies respond that

IGRA is not completely preemptive and the case was properly remanded.

A district 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 of 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). The

existence of a federal question is an issue of law which we review de novo.

A.

As a general 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 federal

cause of action must be stated on the face of the complaint before the

defendant may remove the action based on federal question jurisdiction.

Id. A federal defense, 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.

Complete preemption provides an exception to the well-pleaded

complaint rule and is different from preemption used only as a defense.

Complete preemption can arise when Congress intends that a federal statute

preempt a field of law so completely that state law claims are considered

to be converted into federal causes of action. Metropolitan Life Insurance

Co. v. Taylor, 481 U.S. 58, 65 (1987); Avco Corp. v. Aero Lodge No. 735,

Intern. 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, 481 U.S. at 65. The term "complete preemption" is somewhat

misleading because even when it applies, all claims are not necessarily

covered.

Only those claims that fall within the preemptive scope of the

particular statute, or treaty, are considered to make out federal

questions, see Metropolitan Life, 481 U.S. at 64-66, but the presence of

even one federal claim 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 preemption

asserted only as a defense. The defense of preemption can prevent a claim

from proceeding, but in contrast to complete preemption it does not convert

a state claim into a federal claim.

In Metropolitan Life, the Supreme Court extended the doctrine of

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 recognized 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 American

tribes to lands obtained by treaty, Oneida Indian Nation of New York State

v. County of Oneida, N.Y., 414 U.S. 661 (1974) (considered a complete

preemption case by the Supreme Court; see Caterpillar, 482 U.S. at 393

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) (Federal 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, 492

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 Indian lands, but a number of federal courts have noted the

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 occupation

of this field by [IGRA] is evidenced by the broad reach of the statute's

regulatory and enforcement provisions and is underscored by the

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 gaming

facility).

The methodology used in Metropolitan Life to determine whether there

was complete preemption is useful in guiding our analysis. There the

Supreme Court considered the text of ERISA, congressional committee

reports, and the statements of a sponsor on the Senate floor before

concluding that § 502(a) completely preempts state law. 481 U.S. at 65-66.

Congressional intent is the "ultimate touchstone" guiding preemption

analysis. Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 45 (1987)

(citations omitted).

Examination of the text and structure of IGRA, its legislative

history, and its jurisdictional framework likewise indicates that Congress

intended it completely preempt state law. There is a comprehensive

treatment of issues affecting the regulation of Indian gaming. One of the

stated purposes of IGRA is "the establishment of Federal standards for

gaming on Indian lands." 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 which does not, as a matter of

criminal law and public policy, prohibit such gaming activity." 25 U.S.C.

§ 2701(5). IGRA establishes a federal National Indian Gaming Commission

(NIGC) to oversee regulation, licensing, background checks of key

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 commission

also has a broad grant of regulatory authority.

The statute classifies all gaming into three categories and places

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 within 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 no

regulatory role in class II gaming. 25 U.S.C. § 2710(b)(4); see United

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 point does IGRA give a state the right to make particularized

decisions regarding a specific class II gaming operation. States only may

set the minimum licensing criteria for operators of class II facilities and

impose some limitations on card parlor games. See 25 U.S.C.

§§ 2703(7)(A)(ii), 2710(b)(4). The statute itself reveals a comprehensive

regulatory structure for Indian gaming. The only avenue for significant

state involvement is through tribal-state compacts covering class III

gaming.

The legislative history contains a strong statement about IGRA's

preemptive force. The Senate committee report stated that "S. 555 is

intended to expressly preempt the field in the governance of gaming

activities on Indian lands. Consequently, Federal courts should not

balance competing Federal, State, and tribal interests to determine the

extent to which various gaming activities are allowed." S.Rep. No. 446,

100th Cong., 2d Sess. 6 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3076.

Although the Senate committee did not refer to the complete preemption

doctrine, cf. Metropolitan Life, 481 U.S. at 65-66, this statement

demonstrates the intent of Congress that IGRA have extraordinary preemptive

power, both because of its broad language and because 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-

special significance in terms of complete preemption. In Metropolitan

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 "may

be brought in any district court of the United States having jurisdiction

of the parties . . . ." 29 U.S.C. § 185(a). Section 502(f) of ERISA

reads:

The district courts of the United States shall have

jurisdiction, without respect to the amount in controversy or

the citizenship of the parties, to grant the relief provided

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 federal

court, and both were found to be completely preemptive.

Every reference to court action in IGRA specifies federal court

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 Indian

Gaming Commission decisions to "the appropriate Federal district court,"

and covers the most substantive functions of the commission, including

imposing civil penalties and approving of tribal gaming ordinances and

management contracts. 25 U.S.C. § 2714. As in Metropolitan Life and Avco,

Congress apparently intended that challenges to substantive decisions

regarding the governance of Indian gaming would be made in federal courts.

IGRA's exclusive focus on federal courts may also be viewed within

the larger jurisdictional framework of Indian law. When
-15-

drafting IGRA, Congress recognized the unique history of federal and state

jurisdiction over Native Americans and Indian country. The Senate

committee stated:

It is a long- and well-established principle of Federal-Indian

law as expressed in the United States Constitution, reflected

in Federal statutes, and articulated in decisions of the

Supreme Court, that unless authorized by an act of Congress,

the jurisdiction of State governments and the application of

state laws do not extend to Indian lands. In modern times,

even when Congress has enacted laws to allow a limited

application of State law on Indian lands, the Congress has

required the consent of tribal governments before State

jurisdiction can be extended to tribal lands.

S.Rep. No. 446, 100th Cong., 2d Sess. 5 (1988), reprinted in 1988

U.S.C.C.A.N. 3071, 3075.

The legislative history indicates that Congress did not intend to

transfer any jurisdictional 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

lands which provides that in the exercise of its sovereign

rights, unless a tribe affirmatively elects to have State laws

and State jurisdiction extend to tribal lands, the Congress

will not unilaterally impose or allow State jurisdiction on

Indian lands for the regulation of Indian gaming activities.

The mechanism for facilitating the unusual relationship in

which a tribe might affirmatively seek the extension of State

jurisdiction and the application of state laws to activities

conducted on Indian land is a tribal-State compact. In no

instance, does S. 555 contemplate the extension of State

jurisdiction or the application of State laws for any other

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 the

tribe so making the election, and shall not be construed to

extend to other tribes, or as a general abrogation of other

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 1988

U.S.C.C.A.N. 3071, 3075-76.

Congress thus left states with no regulatory role over gaming except

as expressly authorized 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

compact. Tribal-state compacts are at the core of the scheme Congress

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 permissible scope of a Tribal-State compact, see § 2710(d)(3)(C)."

Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1120 (1996). Such

compacts 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. 202

(1987), on the final form of IGRA. S.Rep. No. 446, 100th Cong., 2d Sess.

4 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3073-74; see also Cheyenne

River Sioux Tribe v. State of South Dakota, 3 F.3d 273, 275 (8th Cir.

1993). In Cabazon, the Supreme Court had concluded that California could

not apply its own laws regulating bingo prize limits and card games to

Indian gaming because the relevant interests of the tribes and the federal

government outweighed the state's regulatory interest. 480 U.S. 202.

Indian sovereignty, self-sufficiency, and self-government were the

"important federal interests" discussed. Id. at 216-20. The state's major

interest was discouraging organized crime. After balancing these

interests, the Court reasoned that "State regulation would impermissibly

infringe on tribal government." Id. at 215, 222.11
-17-

IGRA incorporated Cabazon's distinction between prohibition and

regulation, see United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d

358 (8th Cir. 1990), but rather than directing the federal courts to

perform the balancing of interests between the state on the one side and

the tribe and federal government on the other, Congress conducted the

balancing 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 class 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 tripartite scheme and in considering state, tribal, and federal

interests:

[I]n the final analysis, it is the responsibility of the

Congress, consistent with its plenary power over Indian

affairs, to balance competing policy interests and to adjust,

where appropriate, the jurisdictional framework for regulation

of gaming on Indian lands. S. 555 recognizes primary tribal

jurisdiction over bingo and card parlor operations although

oversight and certain other powers are vested in a federally

established National Indian Gaming Commission. For class III

casino, parimutuel and slot machine gaming, the bill authorizes

tribal governments and State governments to enter into tribalState compacts to address regulatory and jurisdictional issues.

S.Rep. No. 446, 100th Cong., 2d Sess. 3 (1988), reprinted in 1988

U.S.C.C.A.N. 3071, 3073.

Congress thus chose not to allow the federal courts to analyze the

relative interests of the state, tribal, and federal governments on a case

by case 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 may

have force. The courts are not to interfere with this balancing of

interests, they are not to conduct a Cabazon balancing analysis. This

avoids inconsistent results depending upon the governmental interests

involved in each case. With only the limited exceptions noted above,

Congress left the states 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 major jurisdictional provision

reads: "This Compact does not change the allocation of civil jurisdiction

among federal, state, and tribal courts, unless specifically provided

otherwise in the Compact." Winnebago/State of Wisconsin Gaming Compact of

1992 at 36 (Joint Appendix at 158).

The issue of whether complete preemption exists is separate from the

issue of whether a private remedy is created under a federal statute.

Caterpillar Inc. v. Williams, 482 U.S. 386, 391 n.4 (1987). Complete

preemption can sometimes lead to dismissal of all claims in a case.

Although courts may be reluctant to conclude that Congress intended

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 intent

of Congress is what controls. Pilot Life Insurance Co. v. Dedeaux, 481

U.S. 41, 45 (1987) (citations omitted). IGRA has a carefully balanced

jurisdictional scheme, through which Congress gave the states the right to

negotiate tribal-state compacts but declined to grant them broader

authority without tribal consent.

The statute itself and its legislative history show the intent of

Congress that IGRA control Indian gaming and that state regulation of

gaming take place within the statute's carefully defined structure. We

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 necessary 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 Indian law. "The traditional

notions of Indian sovereignty provide a crucial 'backdrop' against which

any assertion of state authority must be assessed." White Mountain Apache

Tribe v. Bracker, 448 U.S. 136, 143 (1980) (citation omitted). A long line

of Supreme Court decisions illustrates the importance of the federal and

tribal interests in Indian 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. Mancari, 417 U.S. 535, 551-52 (1974) (plenary power is

"drawn both explicitly and implicitly" from the Indian Commerce Clause,

U.S. Const. Art. I, § 8, cl. 3, and the President's treaty power, U.S.

Const. Art. II, § 2, cl. 2); United States v. Sioux 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, . . .") (quoting

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 and jurisdiction have developed and

changed over time, but the Supreme Court very recently reaffirmed that

Indian commerce is "under the exclusive control of the Federal Government."

Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1131 (1996). Native

Americans are entitled to the benefit of the doubt if legislation is

ambiguous. "[S]tatutes passed for the benefit of dependent Indian

tribes . . . are to be liberally construed, doubtful expressions being

resolved in favor of the Indians." Bryan, 426 U.S. at 392.

Because of unique federal and tribal interests a less stringent test

is applied when preemption is asserted as a defense in cases involving

Indian affairs. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334

(1983). In non-Indian cases the intent of Congress is the "touchstone" of

the analysis, but because of "'[t]he unique historical origins of tribal

sovereignty' and the federal commitment to tribal self-sufficiency and

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 tribal

interests reflected in federal law, unless the state interests

at stake are sufficient to justify the assertion of state

authority.

Id. (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145

(1980)).13
-21-

This line of cases demonstrates a continuing federal concern for

tribal economic development, self-sufficiency, and self-government which

Congress reaffirmed in the text of IGRA. 25 U.S.C. § 2701(4). In this

overall historical context, the intent of Congress that IGRA "expressly

preempt the field" is particularly compelling, and the statute can be seen

to have the "extraordinary" preemptive force required by Metropolitan Life.

C.

All the claims in this case relate to Dorsey's representation of the

nation during consideration by the Winnebago Gaming Commission of the

management companies' permanent license applications, and all the claims

must be examined individually in order to determine whether they fall into

the scope of complete preemption.

The parties suggest quite different tests to determine which claims

may be preempted. Dorsey suggests that any claim which "directly

implicates Indian gaming regulation" is preempted. Its position is that

all of the claims are within the scope of preemption because their

resolution would require an examination of the fairness of the nation's

licensing process. The management companies argue that only claims

requiring "application or interpretation of IGRA" should be preempted.

Relevant to analysis of the scope of preemption are both the

rationale used in Metropolitan Life concerning ERISA preemption and

congressional statements about IGRA itself. Whether 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 or

"saved," but all other state law claims "relating to" an employee benefit

plan and covered under § 502(a) of ERISA are preempted. Id. The statement

by Congress that IGRA is intended to "expressly preempt the field in the

governance of gaming activities on Indian lands" is a useful starting point

in determining 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 the

NIGC. 25 U.S.C. §§ 2710(d)(1)(A)(ii), 2710(b)(2)(F)(ii). A description

of that licensing process must be included in the tribal ordinance or

resolution necessary to begin class II and class III gaming. That

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 concern

to the federal statute," Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1, 25-26 (1983), and Congress unmistakably

intended that tribes play a significant role in the regulation of gaming.

Congress struggled through several sessions to find a statutory

scheme which would incorporate and balance the interests of tribes, states,

and the federal government. The tribal-state compact was the device it

ultimately chose. If a state, through its civil laws, were able to

regulate the tribal licensing process outside the parameters of its compact

with the nation, it would bypass the balance struck by Congress. Any

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-

directly affect or interfere with a tribe's ability to conduct its own

licensing process should fall within the scope of complete preemption.15

The management companies argue that their claims do not affect the

nation's ability to regulate gaming because this action only involves

non-Indian parties, but this overlooks the nation's relationship with

Dorsey. The nation hired Dorsey to assist it in carrying out its

congressionally authorized governmental responsibility to determine the

suitability of the management companies.

Dorsey argues that the management company causes of action are direct

challenges to the outcome of the licensing process and therefore directly

implicate governance of gaming. At one point the second amended complaint

even refers to a "sham licensing process," and it contains numerous

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 not having its decisions questioned by the tribunal of another

sovereign. IGRA reflects the intent of Congress that tribes maintain

considerable control of gaming to further their economic and political

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 the

procedures to be used by the commission under the nation's gaming

ordinance. The nation also has an appeals process which the management

companies used in this action against the tribe. Nothing in the

16

structure created by IGRA or in the tribal-state compact here suggests that

the management companies should have the right to use state law to

challenge the outcome of an internal governmental decision by the nation.

The management companies chose to enter into the licensing process

in the hope of securing a contract with the tribe. The tribe has a

recognized interest in connection with parties who have explicit consensual

dealings with it. Cf. Montana v. United States, 450 U.S. 544, 565-66

(1981); A-1 Contractors v. Strate, 76 F.3d 930, 935 (8th Cir. 1996) (en

banc).

Tribes need to be able to hire agents, including counsel, to assist

in the process of regulating gaming. As any government with aspects of

sovereignty, a tribe must be able to expect loyalty and candor from its

agents. If the tribe's relationship with its attorney, or attorney advice

to it, could be explored in litigation in an unrestricted fashion, its

ability to receive the candid advice essential to a thorough licensing

process would be compromised. The purpose of Congress in requiring

background checks could be thwarted if retained counsel were inhibited in

discussing with the tribe what is learned during licensing investigations,

for example. Some causes of action could have a direct effect on the

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

thinking on overall issues of preemption and did not explore the

possibility that only some claims might fall within the preemptive scope

of IGRA. In light of this, it would be unwise for us now to rule

definitively on 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 gaming

or would require examination of the relationship between Dorsey and the

nation. Inquiry into Dorsey's performance of its duty to the nation could

threaten the tribe's legitimate interests, question the correctness of its

licensing decisions, and risk influencing how counsel could serve tribes

in the future. Under IGRA state law may not be applied to regulate the

tribal licensing process, even if indirectly, unless a tribal-state compact

so provides.

Potentially valid claims under state law are those which would not

interfere with the nation's governance of gaming. To the extent a count

alleges a violation of a duty owed to one of the management companies

because of an attorney-client relationship or other independent duty, it

may be a valid state law count. Resolution of such claims would not appear

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

process would appear to fall within the scope of IGRA's complete

preemption. Such preempted claims may not be remanded to state court under

28 U.S.C. § 1367(c) even though they purport to raise only issues of state

law. In re City of Mobile, 75 F.3d 605, 607 (11th Cir. 1996); Borough of

West 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 its

discretion by remanding count IX. Originally count IX alleged a violation

of the Indian Civil Rights Act. 25 U.S.C. § 1302. After the case was

removed, the management companies amended count IX to allege a conspiracy

to violate the Indian Civil Rights Act. Dorsey argues that the amended

count arises under federal law and could not be remanded.

The district court correctly noted that there is no private right of

action under the Indian Civil Rights Act under these circumstances. Santa

Clara Pueblo v. Martinez, 436 U.S. 49 (1978). It then concluded that the

management companies had stated a cause of action for conspiracy under

Minnesota law and cited Merrell Dow Pharmaceuticals Inc. v. Thompson, 478

U.S. 804 (1986). In Merrell Dow, the Supreme Court concluded that a state

law cause of action merely incorporating federal law as an element does not

arise under federal law. 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 presumption

of negligence. Id.

Merrell Dow does not control here, however, because unlike the

negligence action in that case, a conspiracy claim is not an independent

cause of action. Under Minnesota law conspiracy is based on the commission

of an underlying tort:

[S]ince in so-called civil conspiracy cases liability is

predicated upon the tort committed by the conspirators and not

upon the conspiracy, allegation[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 824

(citations omitted). The Minnesota court concluded that "[a]ccurately

speaking, there is no such thing as a civil action for conspiracy," and

"there can be no recovery unless substantive wrongs are pleaded." Id. The

true purpose of conspiracy is "to show facts for vicarious liability of

defendants for acts committed by others, joinder of joint tortfeasors, and

aggravation of damages." Id.

The conspiracy claim here arises under federal law for the purposes

of jurisdiction since federal law is the only measure of whether Dorsey and

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 measures

to be employed. In contrast, the federal standard 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 law

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.

§ 1367(c)(3). In re City of Mobile, 75 F.3d 605, 607 (11th Cir. 1996);

Borough of 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 case

back to state court. The order of the district court is reversed, and the

case is remanded for further proceedings consistent with this opinion. The

petition for a writ of mandamus is dismissed.

A true copy.

Attest:

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