No. 91-635 IN THE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA, 

### EX REL., A. LENDLIEF AND DONALD C. JUNEAU, Relators,
-vs- I MONTANA NINTH JUDICIAL DISTRICT COURT, GLACIER COUNTY, THE HONORABLE ROBERT S. KELLER, Presiding Judge, Respondent.

ORIGINAL PROCEEDING:
COUNSEL OF RECORD: For Relators: Joseph R. Hunt argued, Johnson & Hu t, (Juneau) Shelby,Montana Charles 

### F. Moses, Moses Law Firm, (Lin Billings, Montana Marcus S. Topel, David R. Callaway argued, Topel & Goodman, (Poll) San Francisco, California For Respondent: Hon. Marc Racicot, Attorney General, Deanne L. Sandholm argued, Assistant Attorney General, Helena, Mon James C. Nelson, Glacier CountyAttorney, Cut Bank, Montana

Filed: Submitted: September 24, 1992 Decided: April 13, 1993

ClerkJustice Fre er delivered the Q e Court.

This case arose from a criminal proceeding in Glacier County. 58 counts f misdemeanor conspiracy in

s st theMontanaRestaurantand C
an Reservation 

### i moved to dismiss for lack of jurisdiction. The District Court fs the Ninth Judicial District, Glacier County, denied the motion, This Court accepted supervisory control in order to de jurisdictional issue before trial. We affirm. The issues before 

### us are: 1. For purposes of criminal jurisdiction, is a person an "Indianw if he has no Indian ancestry but has been adopted by an Indian family and raised on the reservation?

9 4 Does the State of Plsntana 

### have jurisdiction over nonIndian defendants for crimes committed on the reservation where there is no I 3. Does the State of ]Montana have authority to regulate gambling on the reservation? Carl Kipp, Bob Juneau and defendant, Don Juneau operated the Montana 

### Restaurant and Casino on the Blackfeet Reservation in Glacier County,Montana. The Blackfeet tribal business pe in Carl KippDsname. It was stipulated that Carl Kipp and Bob Juneau are Indians. Don Juneau's Indian status is at issue, On November 1988, the Glacier information charging Stanford R. Poll (Poll), Arthur A. Lindlie (Lindlief) and DonJuneauwith 58 coants sf misdemeanor conspiracy 2in violation of 5 45 -102 (1)

### ,MCA, involvingagreementsto conduct
(Casino) in ~rowning, Montana. All offenses are alleged to have occurred between Hay 1, 1987, and June li 1988; The information

Tribe; (b) the sovereignty of the Blackfeet Tribe; (c) the preemptionby the federalgovernment under ArticleVI of theUnited ates Constitution and con rolling juris iction over all Indian affairs; and (d) the preemption by the Blackfeet Nation of jurisdiction over business activities within the exterior boundaries of the laekfeet Reservation. TheStateopposed themotion arguingthatall threedefendants 

## ---- Poll,Lindlief and Don Juneau,were non-Indian; that the Casino not theTr ribe had 

### no sive scheme of authorizing, or regulating the 181ackfe IndianReservation, whether by Indians or non-Indians. Lindlief and Poll challenged the State" assertion concerning Don Juneau" nno-Indian status and further contended that their criminal liability was predicated solely on the eonduet of individualswho were Indians not subject to state jurisdiction and that the Casino was being operated pursuant to a tribal business

he motion to dismiss, however, 

### urging this Court to accept 

### an application for 

### an approp 3in order to d e jurisdictional question in ad rial., for a writ of supervisory control with this Court. This Court denied the petitisn on the grounds there w3s not an adequate factual record Id exercise supervis eurt held an evi or; May 19, 1990. Su n submitte briefs arguing the jurisdiction of t t, The District Court again denied the defendants' motion to dismiss. On December 31, 1991, Poll, Eindlief and Don Juneau again petitioned this Court to issue a writ of supervisory co March 10, 1992, this Court accepted jurisdictionof theapplication for writ of supervisory control to determine the jurisdictional issue before trial. Additional bri fing was ordered and the case was orally argued before this Court on September 2, 1992. 1 Forpurposes of criminal jurisdiction, 

### is aperson an vsJhdiants if he has no Indian ancestry but has opted by an In family and raised on the reservation? It was stipulated by the parties that Lindlief and Poll are not Indians. Therefore, this issue centers on defendant Don Juneau- Don Juneau was born of non-Indian parents but later ted by an Indian, Bewtsn Juneau. Don Juneauwas raised on the Blackfeet Reservation and has lived and worked there all his life. Don Juneau testified that he is not enrolled as a member of any federally recognized Indian tribe; he does not vote in Indian elections;he does not receive any per capita ederal benefits as an Indian; and, he has 

### never hei a Tribal office. He is married 4ts a full- f the Rocky Boy Tribe and has children that are half Indian. Defendants maintain that Don Juneau is an "Indiansefor purposes sf criminal juris eymaintain that Congress has ianm as it is use in criminal jurisdiction that since Juneauwas adslfpte

0-8-125(1), MCA, provides: After the final decree of adoption is entered, the relation of parent and child and all the rights, duties, and other legal consequences sf the natural relation of child and parent shall thereafter exist between such adopted child and the adoptive parents adopting such child and the kindred of the adoptive parents. Under this statute,the adopted child joinsthe adoptive familyas if born to them. Don Juneau's father is 518 Indian. Thus, Don Juneau maintains that under the above statute, he is 5/16 Indian and therefore, is an "Indianwunder federal and state law. Defendants maintain that for purposes of criminal jurisdiction, "Indianm is a status, not a racial classification. United States v. Indian Boy X (9th Cir. 1977), 565 F,2d 585 (The Ninth Circuit based federal jurisdiction on residence and enrollment without mention of the percentage of Indianblood); St. Cloud v. United States (D.S.D. 1988), 702 F.Supp. 1456 (The court noted that Indian blood alone was no sufficien criminal jurisdiction ecause j urisdistion over Indians on reservationswas based on status,not race). efendants contend that although on Juneau is no lood, every is life is Indian; he was adopted by an Indian; attended Indian schools;practiced the 

### In ated in tribal customs; dian friends; and, has In Thus, defendants urge that Don Juneau is an Indian and meets the status =f Indian fcrcrfminaf dtirisdi ~+i nn nl~rnn~e~ J -A .L-------** r--r ----- ains that criminal ju court over Don ependent upon s statusas anon-Indian,citin Mont. 335, 790 ?.2d 983, where this Cour test of United States v. Rogers (l845), 4 How. 567, 16 U,S. 200, for determining whether a person has Indian status: (1) the defendant must have a significant amount of Indian blood; and (2) thedefendantmust have federal or tribal recognitionasan Indian. Don Juneau is unable to meet either prong of the test. The State Don Juneau fails the first part of the test because he has no Indianblood. He fails the secondpart of the test because he is not an enrolled member of the tribe and he receives no federal benefits as an Indian. The LaPier cas is controlling, U der the secon LaPier test,DonJuneau was required to show thathehad fede tribal recognitionas an Indian. Hehas failed to submit anyproof todemonstratethe Blackfeet Tribe has recognized him as an Indian. As previously pointed out, he is not an enrolled member of any Indian tribe and he receives no enefits as 

### an India therefore conclude that Don Juneau has failed to prove that he has received federal or tribal recognition as an Indian. We conclude at Don Juneau has failed to meet the test of EaPier. We do not find it necessary to discuss the issue from LaPier of the necessity of a significant amount sf Indian blood. As 6efendants conten that such a longer appro ecause "Indian" is a status, an classification to e determine antity of Indian blood.
nJuneau has fai est

## , no further discussio We hold that Don Juneau is not an Indian for criminal jurisdiction,

Does the State of Montana have jurisdiction over non-India defendants for crimes committed on the reservationwhere there is dian victim? Defendants maintain that when making a determination as to whether a statehas jurisdictionoverparticular victimless crimes committedby non-Indians within thereservation,it isnecessaryto examine the federal, tribal and state interests involved ts determine if the particular state has been preempted. The respondentscontend that the assertion of stateauthority

interests when a non-Indian commits an offense against a nonIndian. Duro v. Reina (lggO), 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693; Statev. LaPier (1990), 242 Mont. 335, 790 P.2d 983;

efendants in this case a e charged 

### with conspiracy,and that
e ~bject of each conspiracy charged in this case is 

### a violation ieulargambling la islation of t Montana are also crimesbecause they are committedwithout injury topersons or therogertyof ersons,and t in this case where victimless crimes

s a ave criminal jurisdictio Indians, I established thatthe inherent sovereignty of tne rfbes does not extend to criminal jurisdiction Wheelerreaffirmedthelongstandin jurisdiction over crimes csmitte Duro, 110 Sect.at 2059. The Duro Court extended that rule by holding that tribal jurisdiction does not extend to non-member Indians. Id,at 2059, Not only is DonJuneaunot amember of the Blackfeet Tribe,he is not an Indian. Therefore,under Duro the Blackfeet Tribe has no criminal jurisdiction over him. We hold that the State of Montana has jurisdiction overnon-Indiandefendants forcrireescommittedon the reservationwhere there is no Indianvictim.

Does the State of Montana have authority to regulategambling
on the reservation? Defendants maintain that it is not the involvement of the defendants with the tribe that is at issue here, but rather the

interfere with tribal ssverei nty. Theypoint ou that the failure sf the State to re late gambling on the reservation will not impede the State's ability to re ling outsiits right to self-govern, The State maintains that the determination of jurisdiction
over the ga eE

articularized in and tribal interests at stake as reflected in federal lawand the State interestsat stake. The State maintains that it has a substantial interest in protecting its citizens from the problems associated with unregulated gambling and that Montana has strictly regulated gambling. Section 23-5-102, MCA (1987). Finally, the State contends that the exercise of stateauthoritywithin the Blackfeet Reservation does not infringe upon federal or tribal interests where a non-Indian commits an offense against a non-Indian. In White Mountain Apache Tribe v. Bracker (1980)' 448 U.S. 136, 100 Sect.2578, 65L.Ed.2d 665,the State ofArizona soughtto apply its motor carrier license and use taxes to the Pinetop Lagging Company (Pinetop). Pinetop consisted of two non-Indian corlporatisns doing business solely on the Reservation. Pinetop paid the taxes under under federal. Pa taxes csul. logging activities conducted exclusivelywithin the re onhauling activities on Bureau of IndianAffairs (BIB roads.ates was a the federal gsveratment?~ regulation sf the harvesting, sale an

White Mountain Tribe was also a party to the action, It argued
e tax waul ave an adverse affe he TribeFs ositi~n of taxeswoul minethe fed of assuring prefits which would inure to the Tribe. The Court concluded that federal management was so pervasive
as to preclude the additional burdens resulting from the Arizona taxes and held that the Arizona taxes were preempted by federal law. Itheld that where a State asserts authority over the conduct of non-Indians engaging in activity on the reservation, a particularized inquiry must be made into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law. White Mountain, 448 U.S. at 145. Inthe casebefore us, in contrasttoWhite Mountain,neither the United States nor the tribe are pa e action, The States cou arty and ar

Tribe couB Statetsinvolvement woul adversely af inance, but it did not. Onl the non-Indiantatepsinvolvement

State jurisdiction
ses charged in the inform and June 1, 1988. The effective date of the Indian Gaming ctober 17, 198 such an extensive regulatory act to alleged criminal activities which occurredprior to its enactment would be improper. Itwould violate both state and federal law with 

### re laws. As previously noted, the United States could have made itself a party and argued for federal law preemption but chosenot to do so. We do not find it necessary to further discuss the Indian ~aming Regulatory Act. With regard to the claimed adverse effect upon the Tribe's ordinance the recent case of Northern Border Pipeline Co. 

### v. State of Montana (1989), 237 Mont. 117, 772 P.2d 829, is applicable. Inthat case thisCourt considered the argument on the part of Northern Border Pipeline Company, that the tax interfered with tribal self-government. This Court stated:Sioux ane Assiniboine Tribes.

### '!



### . Northern Border also cites tw3 recene state csurt decisicrLs,one front Arizoza and one fronNewMexico, fortheproposition that consideration of a federal preemption claim necessarily includes consideration of self-government, thereby 

# - f' affording standhcj for a nsn-~na_;ar,to assert a selfgovernment elaia, We disa ese hoidinqs, an decline to apply them. (Citationssmittzd.: (E=phasis added.) Northern Border Pi~eline Co., 237 Mont. at 128, 772 P.2d at 836. Based upon White Mountain Apache and Northern Border, we conclude that the defendants do not have standing to raise the argument that the action of the State interferes with the selfgovernment of the Blackfeet~eservation.Wehold that the State of Montana has authority to regulate gambling by non-Indians on the reservation. We hold that the District Court properly had jurisdictionwe concur: 

## /4

Justices ..-

for Justice William E'.Hunt, Sr,Justice Terry N, Trieweiler concurrin in part an issenting in

iththemajorit not offered sufficient evidenc an Indian
asthat statuspertains to jurisdictional considerations. However, I disagree with this Court's holding 

### in Siate

### v. Lal?er j1930), 242 Mont. 335, 790 P.2d 983,that toprove statusas an Indianrequires
a person to prove both a significant amount of Indian blood and tribal or federal recognition. That test isantiquated and ignores the modern reality that many people of Indian descent are not enrolled tribal members for various reasons and that an inherent element of tribal sovereignty is to enroll members, regardless of their degree of Indianancestry. However, in this case,Juneauhas not proven Indian statusby any criteriawhich has been previously recognized in case law or by federal statute. I concurwi at Indian tribesdo not have criminal jurisdiction over non-Indians. However, that lack of jurisdiction is not based upon the U.S. Supreme Court's decision in Duro

### v.Reina (l990), 495 U.S. 676, 110 S. Ct. 2053, 109 L. Ed. 2d 693. 

### Duru was concerned with tribal authority to prosecute a nonmember Indianwho committed a crime or,tribal land, Furthermore, regardlessofDuro's applicability to this case, it has


### en effectively reversed by a subse ent Congressional action which restored tribal criminal jurisdiction over nonmember Indianswho break the lawon tribal land, As ointed out iniCfor.lsseau=c v. Ulitdd

er 24, emergenc ion was pass e Indian CivilRig U.S,C. 5 1301( and legislative the SupremeCourt s holding in Buro. This islation was later laced with identical pe legislation on October 28, 1991.

Indian tribes lack criminal jurisdiction over non-Indianswho commit crimes on tribal land because of the U.S. Supreme CourtIs

S. Ct. 1011, 55 L. Ed. 2d 209. In his dissent to that decision, JusticeMarshall stated: In the absence of affirmative withdrawal by treaty or statute, I an of the view that Indian tribes enjoy as a necessary aspect of their retained sovereigntythe right to try andpunish allpersonswho commit offenses against tribal law within the reservation.

While I agree with JusticeMarshall's dissent, and while the majority opinion in Oliphant appears to be neither historically nor legallywell-founded,itdoespreclude tribal criminal jurisdiction over non-Indians for laws broken on the reservation. However, it does not logically follow that because tribes canno prosecute non-Indianswho commit crimes in Indian country, that the State of Montana has jurisdiction over non-Indian defendants for crimes committed s the reservation. That conclusion in Issue I1 of they opinion completely ignores the traditional role o ndian affairs. hether the ate of Montana has regulatory authority over any activity commi rough its criminal statutes or otheLrwise, is the test set forth by the U.S. Supreme Court in 

### H%iieM~~~i~t~liri Apache Tribe v. Bracker (1980), 448 U.S. 136, 

### loo S. ct. 2578, 65
I;. Ed. 2d 665. In that case, the U.S. Supreme Court held that where,as in this case, @'a state asserts authority over the conduct of non-Indians engaging in activity on the reservation, theremust
[A] particularized inquiry into thenature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.

The majority o inion has perfo ed no such analysis. It relies on its previous decision inNorthemBorder PipelineCompany v.State (1989), 237 Mont. 117, 772 P.2d 829, for its refusal to do so. For
reasons Iwill explain later in this opinion, Idecline to follow this Court% decision in~Vo~hem Border elim. However, themajority (which relies on i\i'i, em

### BorderBiQelize) has refused to 

### even perform thatdegree of analysiswhich is requiredby itspreviousdecision. InI%'orthem BorderPigeline, thedisputewas overproperty taxes assessed by the State of Montana against that portion of a natural gas pipelinewhich traversed an Indianreservation,but

### whichwas ownedby a noa-Indian corporation. The portion 

### w

preempted by federal regulation and that its tax interfered with the Tribes8 sovereign ri hts of self- After an extensive discussion of federal regulation in this area, the
ma jority concluded ax was nei her preempted by federal statutes nor regulations, However, itheld that sinceneither the Tribes nor the federal government were parties to the suit, plaintiff did not have standing to assert the Tribest sovereign right of self-government. Idisagree with that conclusionbecause under the 

### miteMo~lntain test, an analysis of the state, federal, and tribal interests involves related considerations which cannot be analyzed separately. After pointing out in the 

### miteMountain decision that both federal law an the rights of rese ians to make their own lawsmay provide independent,but relatedbarriers to the assertion of state regulatory authority, the U.S. Supreme Court stated: Thetwo barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable o activityundertaken

### on thereservation or

y tribal ers, They are d, however, in two mportant 

# . The right of self-government is ultimately ndent on 

### an road power of Congress. 

### FtihireMountain, 448 U.S. at 143,

### ore, I agreewith t e reasoning af the Court of A

The state asserts that Pea ference with tribal ree, InRamahNavajo

32, 102 S. (19821, the United States Supreme Co o determine state tax m 0 a business on Indian rese federal law, federal,tribal,and state interestsmust be analyzed

# - "These interests tend to erect two

'independent but relatedtbarriers to the exercise of state authority over commercial activity on an Indian reservation: stateauthoritymaybepre-empted by federal law, or it may interfere with the tribe's ability to exercise its sovereign

### function^.'^ Id. at 837, 102 S.Ct. at 3398, 73 L.Ed.2d at 1179; WhiteMountainApache Tribe

### v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665

(1980). Because the preemption issue cannot be considered without also considerins the tribal sovereisntv issuer,l Peabody, of necessity, must have standina to raise the issue of interference with tribal sovereisntv. [Emphasisadded.] PeabodyCoalCo,, 761P.2d at 1098-99, denied (1989)

### , 490U,S, 1051,

Therefore, 

### I will discuss in this opinion both federal preemptionand theState's interference with theTribe's abilityto exercise its sovereign function, However, by failing to discuss either issue, the majority has not even followed its previous decision 

### in 

### LAl~a!~em BorderI;t"E'pelkeghich it relied on to ign~re the issues raised by defendants on appeal. L PREEMPTIONrnment in the issue of gambling on Indian reservations is extensive. In 1951, Congressprohibited the possession of gambling devices in Indian country. 15 U.S,C, 5 1175 (1951)- In 1970, Congress enacted the Organized
prohibits an provides federal unishment for the operation of illegal gambling businesses. That Act has been previously held le to India reservations, Un States v.F~~T; (9th Cir. 1980), 624 F.2 (19811, 449 U-S, 1111, 101 S. Ct. 920, 66 L. Ed. 2d 839. However, themost comprehensive federal preemption of all is contained in the Indian Gaming Regulatory Act which was enacted by Congress and became effective on October 17, 1988, Itsprovisions
are included in 18 U.S.C. 85 1166 to 1168 (l988), and 25 U.S.C. 05 2701 to 2721 (1988). For purposes of considering the federal and Indian interests in this issue, it is especially enlightening to refer to the Congressional findings which precede the actual terms of the Act and are set forth at 25 U.S,C. 5 2701 (1988). There, Congress stated that: (1) numerous 1ndian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue; (2) Federal courts have held that section 81 of ires Secre aria1 review of management contracts dealing with 1ndian gaming, but does not provide standards for approval of such contracts; (3) existing Federal law does not provide clear regulations for the conduct of gaming on a1 goal of Pe a1 Indianpolicy is promote tribal economic development, tribal self-sufficiency, and strong tribal government; andon these policy consi ions, Congress has establishe comprehensive and extensive control ov ling on Indian reservationsI including legalization of some forms of gambling, 18 U.S.C. 5 1166(c) (1) (1988); establishment of a commission tomonitor gaming on Indian lands,25 U.S. 2, 55 2704 and 2706 (1988); delegation of exclusive jurisdiction to the tribes
over some forms of gambling, 25U.S.C. 5 2710 (1988);authorization for tribes to enter into negotiations with the various states for the purpose of reaching an agreement concerning the conduct of gaming activities on reservations, 25 U.S,C. 5 2710(d)(3)(A)

(1988 j ;authority for tribes to enter into management contracts for the operation of gaming facilities, 5 U,S,C, 5 2711 (1988); and provision for the imposition civil ine for violation of any of the Act's provisions, 25 U.S.C. 5 2713 (1988). Most importantly, however, may be the provision found at 18 U.S.C. 5 1166(d) (1988)which provides that: TheUnited States shall have exclusive jurisdictionover criminal prosecutions of violations of State ga laws that are made applicable under this sect tri rsuant to a Tribal-Stat the tary of the Interior under section 1I(d)(8f of the Indian Gaming Regulatory Act, or under any other provision of ral law, has consent to the transfer to the S of on with respect to gambling on the lands of the Indian tribe.statute,wh
grounds that theviolations that are alleged in this case occurred prior to the effective date of the Federal. Act. The majority reasons that to a ply the unequivocal federalpreemptions found at 18 U.S.C. 5 1166(d) (19 8)would violate constitutional provisions which prohibit expostfact0 laws. However, in making this argument, the majority completely ignores its previous definition of ex

### post facto laws. InStatev.Lei.stiko (Mont. 1992), 844 P.2d 97, 49 St. Rep.

1104,we established a two-parttest todetermine whether a statute violates the ban on expost facto laws. In order to satisfy the test,
we held that: "(1) the lawmust be retrospective, and (2) it must disadvantage the offender affectedby it. Millerv.Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360-61." 

### Leistiko, 844 P.2d at 100. We also held that ii [tjomeet the second prong of the test, theUnited States Supreme Court has said, "i]t is axiomatic that for a law to be ex post facto it must be more onerous thantheprior 

### law. [Citation omitted.] 

### Lekdko, 844P,2d at 100. lied to the facts in this case, 18 U.S.C. 1166(d) (1988) is not an expostfacto law because it would not disadvantage ants- It does not change the substantive law that pertained to their conduct. Itmerely specifies which governmenthas jurisdiction to prosecute them for violations of those State gaming laws that they are accus ofhaving violated. It ismerely

v.fl/ilemaiz (1979), 185Mont, 299, 315, 605 .2d 1000, 1011, "changes inprocedure not affectingmaterially the rights of a defendant do 

### not. come within the constitutional prohibitionn against 

### expostfact0 laws.The provision found at 18 U.S.C. 116Q(d) (1988) is clearly procedural, and became effective on October 17, 1988. The prosecution of this action was not commenced until November 8, 1988, and if for no other reason, was prohibited by the terms of this statute. It is clear that without considering the separate tribal interests,the independent but interrelated federal interest is sufficient to preclude the exercise of state jurisdiction over the defendants in this case. The federal government has specifically recognizedby- s federal Indian policy 

### is to promote tribal economic development and self-sufficiencyand that the best way to do that is to give Indian tribes the exclusive authority to regulate gaming activity on their reservations, so long as it is not specifically prohibited by federal law and is conducted in a state where the activity is not otherwise ed. 25 U.S.C. 5 2701 (1988). Furthermore, even when federal or state laws which regulate gambling are violated in Indian country, the federal government has exclusive jurisdiction
over criminal prosecutions for those violations.While consi eration of federal. interests and federal ri is, by itself, a suffieient ying state ndants, aE examination of tribal interests inthismatter, and a compa the State's interest,make t e error of the majority opinion even clearer. TRIBAL INTERESTS First of all, it 

### is clear that the Blackfeet Tribeprovided a comprehensive set of laws regulating gambling on its reservation, even before federal enactment of the Indian Gaming RegulatoryAct. In 1975, the Blackfeet Tribe of the Blackfeet Resewation enacted
an amendment to Ordinance No. 41 of the Blackfeet Tribal Law and Order Code of 1967. That amended ordinance permitted gambling on the Blackfeet Reservation only in accordance with the ordinance, It established a gaming commission for the purpose of adopting rulesand regulations pertaining to gambling and for thepurpose of issuing licenses to gaming establishments. The ordinance also provided for criminal penalties for its violation. Inaddition to settingup this regulatory system for gaming on the Blackfeet Reservation, the Tribal Ordinance set forth specific regulationsregarding sports or gambling pools; punch boards,pull tabs, and similar devices; bingo, raffles, and ens; horse race betting and pari-mutuel betting; setting the legal age for gambling; prohibiting gambling for anything other than cash; and establishing specific procedures for criminaland civil enforcement of the ordinance. There can be no question that state regulationunder these circumstanceswould have a strong impact "on the right of reservation Indians to make 

### their own 

### laws and he ruled by
hemore, the facts in this ease demonstrate that almost all of the impac of the gaming operationwhich the defendantswere as upon Indians located on the Blackfeet Reservation. TheMontana Restaura -t; and Casino, here theactivit complainedof took place, was owned by three people, Donald Juneau, Bob Juneau, and Carl Kipp. Both Bob Juneau and earl Kipp were Indians. The evidence indicated that, on the average, 90 percent of the customers who gambled on the premises were Indian, Of the 21 employeesat thebusiness, 20were Indian. And before thebusiness could operate,both a tribal businesspermit and a license for each video poker and keno machine had to be issued by the Tribal Department of Revenue, In other words, the Tribe had an interest inprotecting thebusinessVs customers,providing employment on the reservation,and in generating tribal revenue. It is clear from all of the foregoing that tribal interests and the interests of the Tribe in self-government weigh heavily in favor ofprohibiting State jurisdiction over the activities of the defendants, STATE INTEREST The State interest,on the otherhand, 

### isvery slight, if any exists at all. The State contends that 

### it interest in regulatin ate ofMontana in order to protect the welfare of its citizens and avoid thedomination of gaming en ganized crime- It cites authority fo

of its citi patterns, the increase in local crime, the fostering of prostitution, the development of corruption, and the infiltration
crime

# .iVo~~das de U.S. 328, 341, 106 %. Ct, 296 2977, 92 L. Ed. 2d 266, 280. The State's expressed concern for themoral well-being of its citizens would be more persuasive if it was not engaged in the promotion of gambling activities through its own state lottery 

### (see Montana State Lottery Act of 1985, Title 23, Chapter 5, Part 10, renumbered in 1991 asTitle 23, Chapter 7,

### seespecifca@, 5 23-7-102, MCA), and if local governments were not becoming increasingly dependent on revenue generated by off-reservation gambling erprises. (SeeS 23-5- 09, MCA, 

### Bin o and.Kens; 23-5-306, MCA, Live Card Game Tables; §3 23-5-610 and -612, MCA, Video Gambling Machines.) However,even if the State's concerns couldbe accepted at face value, nothing has been accomplished in this case by the prosecution of thesedefend he State concedes that ithasno authority to prosecute Indians for activities conducted on Indian land, and therefore, Dona uneaufspartners who are Indian,

the time of the istrict Court hearing in this case) in the same fashion that they have always operated it without any interferencefrom the State, Refusal to allow the State to regulate the defendantsf lingactivitieson Indianlandwill have absolutely erail regulation sf the State of Montana. CONCLUSION easons, I do not see how any responsible consideration of the factors we nave been compelled to considerby the U.S. Supreme Court in U/hitelMountrrin can lead to any conclusion other than that, when considering state, federal, and tribal interests in the context of this case, the exercise of State authority over thedefendants for the crimes theyhavebeen charged with would violate federal law and unreasonably interferewith the tribal interests which are at stake. Therefore, Iconclude that the judgment of the District Court shouldbe reversed and the chargesagainst the defendants shouldbe dismissed.

Justice KarlaM. 

### Gray concurs in the foregoing concurrenceand dissent.