Navajo Nation;Northern Edge Navajo Casino v.. the Honorable Bradford Dalley Et Al. Case No. 19–2205,U.s. Court of Appeals for the Tenth District (July 24,2018)

1

The Nation first contends that the district court erred in concluding that IGRA authorizes an Indian tribe to shift jurisdiction to state courts over tort claims stemming from conduct on Indian casino property based on clauses (i) and (ii) of subparagraph (C) of § 2710(d)(3). The Nation asserts that IGRA was not intended to allow for the shifting of jurisdiction from tribal courts to state courts for private tort lawsuits such as the one at bar, but permits the shifting of jurisdiction for only those activities that are “‘necessary for the enforcement’ of laws and regulations that are ‘directly related to and necessary for’ the licensing and regulation of class III gaming activities.” Aplt.'s Opening Br. at 15 (quoting § 2710(d)(3)(C)).

The McNeals acknowledge that the language “gaming activity” in IGRA “refers to gambling, something that typically takes place in a casino,” and more specifically Class III gaming, but stress that “[c]asinos house not only games of chance, but they are also entertainment venues where visitors come not only to gamble but also to eat and drink, and where like [Mr. McNeal], they may use the restroom.” McNeal Aplees.’ Br. at 20. Therefore, the McNeals reason that it is “unrealistic” to interpret IGRA's authorization for compacting regarding the application of state civil laws relating to the regulation of Class III gaming—i.e., to “such activity,” § 2710(d)(3)(C)(i)—to be restricted to laws regarding gambling activities, McNeal Aplees.’ Br. at 20 (noting that the regulation of Class III gaming is not restricted to “slot odds, maximum bets and the thickness of felt at the blackjack tables” but rather relates generally to “activities that go on in a casino”). Judge Dalley takes a similar position: specifically, he argues that the agreement in the tribal‐state compact to “regulate” with respect to injuries like those that the McNeals allegedly suffered, by applying “New Mexico tort law, enforceable in state court[,] is within the proper scope of a gaming compact under the IGRA.” J. Dalley's Br. at 23; see id. (“Class III gaming activities do not take place in a vacuum. Visitors who go to the casino to gamble will necessarily use the casino's bathroom.”).

The Nation counters that personal‐injury claims sounding in tort do not involve civil laws “directly related to, and necessary for,” the regulation of Class III gaming activities, § 2710(d)(3)(C)(i), and therefore IGRA does not authorize compacting with respect to the application of such laws under the circumstances here. We agree with the Nation.

At bottom, the parties' dispute relates to the scope of the term “class III gaming activity.” In Bay Mills, the Supreme Court construed “class III gaming activity” to mean “just what it sounds like—the stuff involved in playing class III games,” and in doing so, expressly interpreted § 2710(d)(3)(C)(i). 134 S. Ct. at 2032 (emphasis added). The Court continued: “[Sections 2710(d)(3)(C)(i) and 2710(d)(9), which authorize tribes to enter into management contracts for Class III gaming] make perfect sense if ‘class III gaming activity’ is what goes on in a casino—[that is,] each roll of the dice and spin of the wheel.” Id. (emphasis added). The Court further concluded that this use of the term was consistent throughout the statute, holding that “the gaming activity is the gambling in the poker hall, not the proceedings of the off‐site administrative authority,” and that the statute's enforcement power over “gaming activity” was a power “to shut down crooked blackjack tables, not the tribal regulatory body meant to oversee them.” Id. at 2033 (emphasizing, “[t]he ‘gaming activit[y]’ is (once again) the gambling” (alteration in original)).

The Court's analysis in Bay Mills leads us to the clear conclusion that Class III gaming activity relates only to activities actually involved in the playing of the game, and not activities occurring in proximity to, but not inextricably intertwined with, the betting of chips, the folding of a hand, or suchlike. See Harris v. Lake of Torches Resort & Casino, 862 N.W.2d 903, 2015 WL 1014778, at *5 (Wis. Ct. App. Mar. 10, 2015) (per curiam) (unpublished) (“Applying th[e Bay Mills] definition, Harris—who was injured while working as a cook at a restaurant located in a casino—was not injured in connection with a class III gaming activity.”); see also California v. Iipay Nation of Santa Ysabel, No. 314CV02724AJBNLS, 2016 WL 10650810, at *11 (S.D. Cal. Dec. 12, 2016) (unpublished) (“[T]he gaming activity is not the software‐generated algorithms or the passive observation of the proxy monitors. Rather, it is the patrons' act of selecting the denomination to be wagered, the number of games to be played, and the number of cards to play per game.”). And, even assuming that tort law is a form of “regulation” of “the operation of gaming activities,” as the district court correctly observed, see Aplt.'s App. at 192, actions arising in tort in circumstances similar to this one are not “directly related to, and necessary for, the licensing and regulation of such activity,” § 2710(d)(3)(C)(i), because they do not stem from the actual playing of the casino game. ⁵ Put another way, if individuals are not participating in Class III gaming activities on Indian land—as Bay Mills understands them—when they are allegedly harmed by a tortfeasor, we are hard‐pressed to see how tort claims arising from their activities could be “directly related to, and necessary for, the licensing and regulation” of Class III gaming activities.

This conclusion is ineluctable when the plain statutory text is viewed through the prism of Bay Mills. See United States v. Nichols, 184 F.3d 1169, 1171 (10th Cir. 1999) (“[W]here a statute is clear on its face, we give its words literal effect.”); cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 3 (2012) (“In an age when democratically prescribed texts (such as statutes, ordinances, and regulations) are the rule, the judge's principal function is to give those texts their fair meaning.”). Accordingly, IGRA, in clause (i), does not authorize compacting regarding the application of state tort law under the circumstances here. ⁶

We acknowledge that, in thoughtful decisions, the New Mexico Supreme Court in Doe and the district court here came to contrary conclusions. In particular, the New Mexico Supreme Court concluded that “[t]ort suits are … related to gaming activity in helping ensure that gaming patrons are not exposed to unwarranted dangers, something that inures to the benefit of the Tribes.” 154 P.3d at 655. In support of its position, the Doe court relied on the rationale that Congress “could rationally conclude that tribes ought not to be foreclosed from negotiating such provisions perceived to be in their own interest, and as ‘directly related to, and necessary for, the licensing and regulation’ of gaming.” Id. The district court also arrived at a similar conclusion: “Because tort claims alleged against Indian gaming facilities are ‘directly related to’ the regulation of tortious conduct arising out of Indian gaming, jurisdictional issues arising from such tort claims may be the subject of negotiation for a tribal‐state compact.” Aplt.'s App. at 193.

While we are comfortable assuming that tort, and more specifically personal‐injury lawsuits, constitute a type of regulation, we are unable to discern how applying this form of regulation to a slip‐and‐fall event, like Mr. McNeal's, is “directly related to, and necessary for the licensing and regulation,” § 2710(d)(3)(C)(i), of Class III gaming activity, as Bay Mills conceives of it. For example, whether a casino employee is negligent in cleaning up spilled water on the floor which results in a patron falling has nothing to do with the actual regulation or licensing of Class III gaming, viz., “each roll of the dice and spin of the wheel.” Bay Mills, 134 S. Ct. at 2032. Put differently, just as the licensing or regulation of gaming activity only directly relates to things akin to “gambling in the poker hall” and not to “the proceedings of the off‐site administrative authority,” id. at 2033, it also does not relate to claims arising out of occurrences that happen in proximity to—but not as a result of—the hypothetical card being dealt or chip being bet. Therefore, when viewed through the prism of Bay Mills, we respectfully conclude that the reading of IGRA that we adopt here is the correct one, and that the district court and the New Mexico Supreme Court are mistaken.

In discerning whether IGRA authorizes tribes to allocate jurisdiction regarding tort claims like the McNeals' to state courts, we also look to the text of clause (ii) of subparagraph (C). See King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (noting “the cardinal rule that a statute is to be read as a whole”); accord Massachusetts v. Morash, 490 U.S. 107, 115 (1989). Clause (ii) is entirely congruent with, and strongly reinforces, our view of the limitations of IGRA's authorization of jurisdictional allocations. Notably, this is the only clause in subparagraph (C) that explicitly authorizes tribes to allocate jurisdiction to the states. Specifically, recall that, by its terms, it provides for “the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations.” See § 2710(d)(3)(C)(ii). It is clear to us that this provision applies only to the “laws and regulations” referenced in clause (i). The pronoun “such” in clause (ii) refers unambiguously back to the “laws and regulations” in the immediately preceding provision, clause (i). And those laws and regulations are ones that are “directly related to, and necessary for, the licensing and regulation of such activity.” § 2710(d)(3)(C)(i). And, as we have established supra, the “activity” in clause (i)'s phrase “such activity” is “what goes on in a casino—[that is,] each roll of the dice and spin of the wheel.” Bay Mills, 134 S. Ct. at 2032 (emphasis added).

It necessarily follows that the allocation of civil jurisdiction referenced in clause (ii) pertains solely to the allocation that is “necessary for the enforcement of the laws and regulations,” § 2710(d)(3)(C)(ii), that are “directly related to, and necessary for, the licensing and regulation of” the playing of Class III games, § 2710(d)(3)(C)(i)—and not for the enforcement of laws and regulations pertaining to such tangential matters as the safety of walking surfaces in Class III casino restrooms. Put another way, because tort law in the circumstances here does not directly relate to the licensing and regulation of gambling itself, clause (ii)—which depends upon clause (i) to define the scope of its allocation of civil jurisdiction—does not authorize tribes to agree in gaming compacts to shift (i.e., allocate) jurisdiction to state courts over tort claims like those here. ⁷

2

Appellees present two principal counterarguments, but neither is persuasive. First, they contend that IGRA's legislative history supports the conclusion that the statute was created with the intent of permitting tribes to allocate their jurisdiction when they deemed it in their favor to do so. See McNeal Aplees.’ Br. at 9–13; J. Dalley's Br. at 19–23. However, we need not consider legislative history where, as here, we find the statutory language unambiguous. ⁸ See Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012) (“[R]eliance on legislative history is unnecessary in light of the statute's unambiguous language.” (quoting Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 236 n.3 (2010)) accord United States v. Woods, 571 U.S. 31, 46 n.5 (2013) (“Whether or not legislative history is ever relevant, it need not be consulted when, as here, the statutory text is unambiguous.”); United States v. Hunt, 456 F.3d 1255, 1268 (10th Cir. 2006) (“We recognize that it is not necessary to resort to legislative history when statutory language is unambiguous.”). Moreover, had Congress wanted to permit tribes to allocate jurisdiction in such cases, it could have crafted language to effectuate this purpose, but it did not do so. See Pueblo of Santa Ana v. Nash, 972 F. Supp. 2d 1254, 1265 (D.N.M. 2013) (declining to look for guidance in IGRA's legislative history and “opt[ing] instead to rely on the clear statutory structure of IGRA,” and noting in this regard that Congress could have “worded subparagraph (ii) in a way that obviously or necessarily included a shifting of jurisdiction over such claims [i.e., tort claims involving serving alcohol to intoxicated persons],” but it did not do so); cf. Bay Mills, 134 S. Ct. at 2033–34 (“[T]his Court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address. Truth be told, such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts—addressing one thing without examining all others that might merit comparable treatment.”).

Appellee's second argument is one that we considered and rejected in our independent assessment of the meaning of clause (i)—that is, the argument that tort law is “directly related to, and necessary for, the licensing and regulation of” gaming activity, within the meaning of clause (i). § 2710(d)(3)(C)(i). Accordingly, we conclude that Appellees' two arguments come up short.

* * *

In sum, we conclude that clauses (i) and (ii), by their plain meaning, do not authorize tribes to allocate during the compacting process jurisdiction to state courts for tort claims such as the McNeals' arising on Indian land. We therefore turn to the second question of whether clause (vii)'s catch‐all provision permits tribal‐state compacts to serve as vehicles for shifting civil jurisdiction over such tort claims.

1

The Nation next challenges the district court's alternative holding that even if the first two clauses of § 2710(d)(3)(C) do not permit the allocating of jurisdiction during the compacting process, the Nation could have allocated jurisdiction over the McNeals' tort claims pursuant to clause (vii), the catch‐all provision. Aplt.'s App. at 193 (district court reasoning that “[b]ecause tort liability resulting from ‘the operation of gaming activities’ is ‘directly related to’ the same [i.e., operation], the catchall provision … also provides authority for Tribes and states to negotiate the allocation of jurisdiction of such tort claims”). As noted above, clause (vii) provides that a compact may include “any other subjects that are directly related to the operation of gaming activities.” § 2710(d)(3)(C)(vii). We ultimately conclude that the district court's reading of clause (vii) is mistaken and thus sustain the Nation's challenge.

Given that we must “presume that [Congress] says in a statute what it means and means in the statute what it says there,” Conn. Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992) (collecting cases); accord Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985), it is significant that the subject of jurisdictional allocation is only mentioned in clause (ii). As the Nation puts it, “there is no language in that section [i.e., clause (vii)] that pertains to the allocation of jurisdiction between the tribe and the state.” Aplt.'s Reply Br. at 12 (emphasis omitted). This omission provides a significant clue that Congress did not contemplate that this provision would cover the topic of the allocation of jurisdiction over civil lawsuits between states and tribes. Although the Appellees argue that the legislative history points to a different result, this omission militates in favor of a conclusion that our “judicial inquiry into the applicability of [clause (vii)] begins and ends with what [clause (ii)] does say and with what [clause (vii)] does not.” Germain, 503 U.S. at 254; United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“The task of resolving the dispute over the meaning of § 506(b) begins where all such inquiries must begin: with the language of the statute itself. In this case it is also where the inquiry should end, for where, as here, the statute's language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (citation omitted) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))). Here, clause (ii) speaks directly and specifically to tribal‐state compacting regarding the allocation of jurisdiction, whereas clause (vii) does not explicitly raise the topic of jurisdictional allocation. This constitutes a significant clue that Congress did not intend for this provision to relate to tribal‐state compacting regarding the allocation of jurisdiction.

To be sure, clause (vii) functions as a catch‐all provision, and, consequently, Congress expressed its scope in broad terms, to encompass “any other subjects that are directly related to the operation of gaming activities,” § 2710(d)(3)(C)(vii). But the key word here is “other.” ⁹ Typically, statutory language is given its “ordinary, everyday” meaning, unless the context suggests otherwise. Toomer v. City Cab, 443 F.3d 1191, 1194 (10th Cir. 2006) (“We must construe the words of the statute in their ordinary, everyday sense.”); accord Chickasaw Nation v. United States, 208 F.3d 871, 876 (10th Cir. 2000); see Scalia & Garner, supra, at 69 (“Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.” (emphasis omitted)). And applying the ordinary and everyday meaning of the word “other” in clause (vii), it becomes patent that Congress did not intend for that clause to address the “subjects” covered in the preceding clauses of subsection (C)—including the jurisdictional‐allocation subject of clause (ii). See Webster's Third New International Dictionary 1598 (1961) [hereinafter “Webster's”] (defining “other” to mean, inter alia, “being the ones distinct from the one or those first mentioned” and “not the same: Different”); The American Heritage Dictionary 880 (2d ed. 1982) [hereinafter “American Heritage”] (defining “other” to mean, inter alia, “[d]ifferent from that or those implied or specified”); see also The New Oxford American Dictionary 1205 (2d ed. 2005) [hereinafter “New Oxford”] (noting that the word “other” is “used to refer to a person or thing that is different from one already mentioned or known about” and further defining it, inter alia, to mean “those remaining in a group; those not already mentioned”); cf. Wis. Cent. Ltd. v. United States, ––– U.S. ––––, 138 S. Ct. 2067, 2071 (2018) (“As usual, our job is to interpret the words consistent with their ‘ordinary meaning … at the time Congress enacted the statute.’” (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)) (then citing contemporary dictionaries to determine meaning of the disputed statutory term)).

Nor could one persuasively argue that the term “other” in clause (vii) authorizes the allocation of jurisdiction with respect to subjects other than those covered by the jurisdictional‐allocation language of clause (ii). In our view, a well‐established canon of statutory construction—the negative‐implication canon (i.e., the canon expressio unius est exclusio alterius) would fatally undercut such an argument. That canon provides that the “expressi[on] [of] one item of [an] associated group or series excludes another left unmentioned.” N.L.R.B. v. SW Gen., Inc., ––– U.S. ––––, 137 S. Ct. 929, 940 (2017) (quoting Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002)). In other words, “[t]he notion is one of negative implication: the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” Seneca‐Cayuga Tribe of Okla. v. Nat'l Indian Gaming Comm'n, 327 F.3d 1019, 1034 & n.24 (10th Cir. 2003) (quoting William N. Eskridge, et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 947 (3d ed. 2001)) see also Scalia & Gardner, supra, at 107 (discussing the operation of the “negative‐implication canon”).

Here, clause (ii) is the only clause in subsection (C) that expressly addresses the allocation of jurisdiction between states and tribes. And, as our reasoning in Part III.B.1, supra, demonstrates, it does so in specific terms—albeit by cross‐reference—to clause (i). That is, by its use of the language “such laws and regulations,” clause (ii) expressly refers back to the “laws and regulations” of clause (i)—which are “directly related to, and necessary for, the licensing and regulation of” the playing of Class III games, § 2710(d)(3)(C)(i). And it contemplates tribal‐state compacting regarding the allocation of criminal and civil jurisdiction “necessary for the enforcement” of the laws and regulations specified in clause (i). § 2710(d)(3)(C)(ii). Thus, the allocation of jurisdiction referenced in clause (ii) pertains solely to the allocation that is “necessary for the enforcement of the laws and regulations,” id., that are “directly related to, and necessary for, the licensing and regulation of” the playing of Class III games, § 2710(d)(3)(C)(i)—that is, “what goes on in a casino—[that is,] each roll of the dice and spin of the wheel,” Bay Mills, 134 S. Ct. at 2032 (emphasis added).

Therefore, clause (ii)'s specific textual expression (by cross‐reference) of matters covered by its jurisdictional allocation reasonably indicates that Congress did not envision that any distinct subjects—such as tort claims arising from a casino's failure to safely maintain floors in its restrooms—would provide the grounds for a jurisdictional allocation. See Halverson v. Slater, 129 F.3d 180, 186 & n.8 (D.C. Cir. 1997) (applying the negative‐implication canon to hold that a statute that specifically “delineates the class of permissible delegatees as officers, employees and members of the Coast Guard” was “intended to exclude delegation to non‐Coast Guard officials” under another, general delegation statute, even though the former statute “did not expressly prohibit delegation of” the “powers and duties [at issue] to a non‐Coast Guard official” and did not explicitly use the term “only” in listing the class of delegatees); see also United States v. Giordano, 416 U.S. 505, 514 (1974) (tacitly applying the logic of the negative‐implication canon in concluding that, though the statute at issue did not use “[e]qually precise language forbidding delegation” as those which delegated duties only to certain officials, its language “fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate,” and another statute that generally authorized the Attorney General to delegate his or her duties to agency employees did not permit further delegation of the power to authorize wiretap applications); Scalia & Garner, supra, at 107 (“The doctrine properly applies only when the unius (or technically, unum, the thing specified) can reasonably be thought to be an expression of all that shares in the grant or prohibition involved.”); id. at 108 (noting that “[t]he more specific the enumeration, the greater the force of the canon”); id. at 111 (discussing Giordano in the context of noting that “the negative‐implication canon is so intuitive that courts often apply it correctly without calling it by name”). Thus, we do not believe that the term “other” in clause (vii) authorizes the allocation of jurisdiction with respect to subjects other than those covered by the jurisdictional‐allocation language of clause (ii). Cf. Scalia & Garner, supra, at 167 (“Context is a primary determinant of meaning. A legal instrument typically contains many interrelated parts that make up the whole. The entirety of the document thus provides context for each of its parts.”).

Lastly, our conclusion is independently and distinctly bolstered by our “preference for avoiding surplusage constructions.” King v. Burwell, ––– U.S. ––––, 135 S. Ct. 2480, 2483 (2015) (quoting Lamie v. United States Trustee, 540 U.S. 526, 536 (2004)); Duncan v. Walker, 533 U.S. 167, 174 (2001) (declining to “adopt respondent's construction of the statute” because it would render a word in the statute “insignificant, if not wholly superfluous”). More specifically, “[t]he canon against surplusage indicates that we generally must give effect to all statutory provisions, so that no part will be inoperative or superfluous—each phrase must have distinct meaning.” Chevron Mining Inc. v. United States, 863 F.3d 1261, 1283 n.15 (10th Cir. 2017); see Scalia & Garner, supra, at 174 (“If possible, every word and every provision is to be given effect . … None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” (emphasis omitted)). Yet, if we were to adopt an expansive reading of clause (vii), in which jurisdiction may be allocated for “any … subjects that are directly related to the operation of gaming activities,” § 2710(d)(3)(C)(vii) ¹⁰ —including tort claims arising from a casino's failure to safely maintain floors in its restrooms—it would render clause (ii)'s jurisdictional‐allocation language mere surplusage.

Put more finely, such a reading would wholly swallow clause (ii)'s specific and narrow allowance for jurisdictional allocations that are “necessary for the enforcement of the laws and regulations,” § 2710(d)(3)(C)(ii), that are “directly related to, and necessary for, the licensing and regulation of” the playing of Class III games, § 2710(d)(3)(C)(i). That is because such laws and regulations directly pertaining to, and necessary for, the licensing and regulation of Class III games, and the matters necessary for their enforcement, patently constitute one of the subjects that is “directly related to the operation of gaming activities.” § 2710(d)(3)(C)(vii). In this regard, we have no doubt that (given its common, everyday meaning) the term “operation” in this context sweeps broadly. See Webster's, supra, at 1581 (defining “operation” to mean, inter alia, “method or manner of functioning”); American Heritage, supra, at 871 (defining “operation” to mean, inter alia, “[a] process or series of acts performed to effect a certain purpose or result”); see also New Oxford, supra, at 1193 (defining “operation” to mean, inter alia, “an activity in which” a “business or organization; a company” “is involved”); cf. Chemehuevi Indian Tribe v. Brown, No. EDCV161347JFWMRWX, 2017 WL 2971864, at *6 (C.D. Cal. Mar. 30, 2017) (unpublished) (noting that “if Congress intended the permissible topics set forth in … [clause] (vii) to be more narrowly construed, it would not have utilized the broad language it did”). And, therefore, even with the limiting language “directly,” clause (vii) would have the effect of subsuming, and rendering of no effect, the language and substance of clause (ii)—viz., if clause (vii) were construed in the expansive manner noted, to include the subject of jurisdictional allocation, it would have this effect.

Put another way, if clause (vii)'s language were read to allow for compacts to allocate jurisdiction with respect to any subjects directly related to the operation of Class III games, the more specific and limited jurisdictional‐allocation language of clause (ii) would be (in substance) duplicative, nugatory, and of no effect—i.e., surplusage. Consequently, we conclude that the statutory‐construction canon that counsels courts to avoid interpretations that render statutory terms surplusage is an independent and distinct ground for rejecting the expansive reading of clause (vii) discussed herein. See Halverson, 129 F.3d at 185 (rejecting argument that a specific delegation statute does not “provide any delegation authority beyond what [the agency head] already possesses under [a general delegation statute], and thus, at most, merely confirms his … authority [under that general delegation statute]” because “[t]his reading plainly violates the familiar doctrine that the Congress cannot be presumed to do a futile thing”).

2

The Appellees present three counterarguments; none lands with any force. First, Appellees, again citing to the statute's legislative history, contend that the catch‐all section (i.e., clause (vii)) should be read broadly, consistent with their understanding of Congress's intent. See McNeal Aplees.’ Br. at 9–13; J. Dalley's Br. at 16–23. This argument can gain no traction here, however, in light of our conclusion that the statute is unambiguous. Because it is so, we have no need (much less an inclination) to “resort” to the statute's legislative history. Public Lands Council v. Babbitt, 167 F.3d 1287, 1306 (10th Cir. 1999) (“Courts should not resort to legislative history in order to ascertain Congress's intent when the plain language of the statute is unambiguous.”); see Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986) (“When the meaning of the statute is clear, it is both unnecessary and improper to resort to legislative history to divine congressional intent.”).

Second, the McNeals rely on the Ninth Circuit's opinion in In re Indian Gaming Related Cases, 331 F.3d 1094 (9th Cir. 2003), for the proposition that clause (vii) must be read broadly to provide state residents protection from injury while they are at the casinos. See McNeal Aplees.’ Br. at 15–16. This argument is unconvincing. First of all, it goes without saying that the Ninth Circuit's construction of IGRA is not binding on us. Furthermore, the Ninth Circuit's pertinent holding in that case—viz., that labor issues were “directly related to the operation of gaming activities” under clause (vii), In re Indian Gaming, 331 F.3d at 1115–16—does not speak to the essential question before us: whether Congress intended clause (vii)'s broad and general language to authorize tribes and states to compact regarding the allocation of jurisdiction over tort claims like the McNeals'. Lastly, insofar as In re Indian Gaming informs our resolution of that question, it actually undercuts the McNeals' position. The latter two points would benefit from a little more discussion.

Specifically, in analyzing and ultimately distinguishing In re Indian Gaming, we accept, without definitively opining on the matter, the proposition that labor issues fall within the broad scope of clause (vii)'s “operation of gaming activities,” even when the term “gaming activities” is viewed through the prism of Bay Mills, to mean the actual playing of Class III games. See Bay Mills, 134 S. Ct. at 2032 (emphasis added) (defining “gaming activity” as “what goes on in a casino—[that is,] each roll of the dice and spin of the wheel”); Bryan H. Wildenthal, Federal Labor Law, Indian Sovereignty, and the Canons of Construction, 86 Or. L. Rev. 413, 429–30 (2007) (Noting that many state‐tribal compacts “address[ed] the issue of labor relations” pursuant to IGRA and that “it was anticipated by language in IGRA in which Congress—while not expressly referring to labor issues—broadly authorized states and tribes to include compact provisions on ‘any … subjects that are directly related to the operation of gaming activities’”); id. at 430 n.47 (“There may well be grounds to question the use of IGRA to impose labor relations requirements on Indian tribes, though it seems to be a well‐established practice.”). But that proposition does not directly offer any insight into the specific question we must decide, regarding whether the subject of jurisdictional allocation over claims (notably, tort slip‐and‐fall claims) is included within the scope of clause (vii). More specifically, nothing in In re Indian Gaming suggests that clause (vii) permits the allocation of jurisdiction at all; indeed, the McNeals seem to recognize this by failing to make any such argument. Cf. Cohen's Handbook, supra, § 12.05[3], at 894 (describing the case as dealing with “revenue‐sharing” and “labor relations” disputes, and not discussing any jurisdictional concerns).

Furthermore, to the extent that the inclusion of labor‐relations issues within the ambit of clause (vii) offers clues regarding the resolution of the question before us, they do not avail the McNeals. Specifically, assuming that labor‐relations issues “directly relate[ ] to the operation of gaming activities,” § 2710(d)(3)(C)(vii), it does not strike us as remarkable that such issues would fall squarely within the scope of clause (vii) because labor‐relations issues are not expressly addressed in any of the preceding clauses of subparagraph (C) and, therefore, would be “other” in relation to the subjects addressed in those preceding clauses. In other words, labor‐relations issues would naturally fall within clause (vii)'s catch‐all category of “any other subject,” id. (emphasis added), because that subject is not mentioned in the preceding clauses of subparagraph (C). In contrast, this logic undercuts the notion that the subject of jurisdictional allocation falls within the scope of clause (vii) because this subject is expressly addressed in the preceding clauses—specifically, in clause (ii). Therefore, to the extent that In re Indian Gaming informs our resolution of the question we must answer here, it actually belies the McNeals' argument.

Third, and lastly, Judge Dalley contends that the reading of § 2710(d)(3)(C) that we now endorse “would invalidate many provisions in this and other gaming compacts that have been negotiated by tribes and states.” J. Dalley's Br. at 27. For example, he asserts that key provisions of the tribal‐state compact before us—involving “the physical safety of patrons and employees,” “wages on construction projects,” and “criminal jurisdiction” over offenses committed by non‐Indians on Indian land—will all be “invalidate[d]” because they do not “directly relate[ ] to” “gaming activities,” as this statutory language is understood through the lens of Bay Mills. See id. We find Judge Dalley's argument unpersuasive, however.

First of all, Judge Dalley's brief fails to offer us much by the way of reasoning to explain the basis for his parade of horribles, relying instead on conclusory statements. See id. (“None of these provisions is likely sufficiently ‘directly related to’ ‘gaming activities’ under the Navajo Nation and Pueblo of Santa Ana's interpretations of the IGRA to survive scrutiny.”). Second, at least in the absence of such reasoning, we are hard‐pressed to see how the reading of the statutory language “directly related to … gaming activities,” § 2510(d)(3)(C)(vii); see also § 2510(d)(3)(C)(i) (“directly related to … such [gaming] activity”), that we endorse here could have the widespread destructive effect that Judge Dalley predicts. This language is construed in the context of our limited procedural holding that relates solely to whether IGRA authorizes tribes to allocate jurisdiction over tort claims like the McNeals' to state courts. This holding does not address what substantive matters are proper subjects of compacting under IGRA, such as the physical safety of casino staff and visitors, and the proper wage rates on casino projects, much less invalidate compact provisions pertaining to such substantive subjects. As noted, the question before us is a procedural one involving the statutory authorization under IGRA to shift jurisdiction over tort claims like those of the McNeals. Furthermore, even assuming arguendo that the Tribe has allocated to New Mexico in the instant compact criminal jurisdiction over offenses committed by non‐Indians on tribal land, the propriety of this procedural subject is not before us, and we have no obligation nor inclination to opine on the implications of our decision for the vitality of this compact provision.

In all events, our main concern here ultimately must be the faithful and true interpretation of IGRA's plain terms, not the ostensible collateral effects of our interpretation on existing compact provisions; generally, this is true at least so long as our interpretation would not yield absurd results, and it patently would not do so, nor does Judge Dalley argue to this effect. See, e.g., Sebelius v. Cloer, 569 U.S. 369, 381 (2013) (“We reiterate that ‘when [a] statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.’” (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000))). Thus, we reject Judge Dalley's argument as well.

* * *

In sum, we hold that clause (vii) of IGRA does not authorize tribes to allocate to states jurisdiction over tort claims like the McNeals', based on our interpretation of the clause's plain language, in the context of the other clauses of subparagraph (C) of § 2710(d)(3).