Wilson

Opinion by Judge O’SCANNLAIN; Concurrence by Chief Judge WALLACE; Dissent to Order by Judge CANBY; Concurrence to Dissent by Judges FERGUSON and NORRIS.

ORDER

The opinion filed on November 15, 1994 at slip op. 13873 is amended as follows:

The panel has voted to deny the petitions for rehearing. Chief Judge Wallace and Judge O’Scannlain have voted to reject the suggestions for rehearing en banc, and Judge Kelleher has so recommended.

The full court was advised of the suggestions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.AppJP. 35.

The petitions for rehearing are DENIED and the suggestions for rehearing en banc are REJECTED.

dissenting from the denial of rehearing en banc:

This is a case of major significance in the administration of the Indian Gaming Regulatory Act (“IGRA”) and it has been decided incorrectly, in a manner that conflicts with the Second Circuit’s interpretation of the *1253 same statutory language. The result is to frustrate the scheme of state-tribal negotiation that Congress established in IGRA. We should have granted rehearing en banc to prevent the near-nullification of IGRA in a circuit that encompasses a great portion of the nation’s Indian country. Our failure to do so may close the only route open to many tribes to escape a century of poverty.

Rumsey holds that California, which permits several varieties of Class III gambling, has no duty under IGRA to negotiate with the tribes over the tribes’ ability to conduct any game that is illegal under California law. This ruling effectively frustrates IGRA’s entire plan governing Class III Indian gaming. The primary purpose of IGRA, as set forth in the Act, is “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal…

concurring:

I concur with parts I and II of this opinion. However, I concur only in the result of part III, because the discussion of the legislative history of the Indian Gaming Regulatory Act (Act) is unnecessary. Having concluded that the plain language of the Act controls this case, our opinion should end. The discussion of the Act’s legislative history gives the impression that the Act is not as clear as we say, and that some additional reason is required before we hold as we do. “Where we are not prepared to be governed by what the legislative history says — to take, as it were, the bad with the good — we should not look to the legislative history at all. This text is eminently clear, and we should leave it at that.” United States v. Taylor, 487 U.S. 326, 345 , 108 S.Ct. 2413, 2424 , 101 L.Ed.2d 297 (1988) (Sealia, J., concurring).