Can New York's 1997 ban on combative sport (extreme fighting) be enforced against events held on an Indian reservation in the state?

Plain-English summary

The Franklin County District Attorney asked whether the brand-new state ban on combative sport (the so-called extreme-fighting ban, Chapter 14 of the Laws of 1997) could be enforced if an event were staged on an Indian reservation in the county.

The framework comes from federal Indian law. Indian tribes are sovereigns subordinate primarily to the federal government, not to the states. Oklahoma Tax Comm'n v Potawatomi Tribe, 498 US 505 (1991). For state law to reach tribal members on reservation land, Congress must have expressly authorized it. For New York, the relevant grants are 25 USC §§ 232 and 233 (state jurisdiction over offenses and civil causes of action on reservations in New York) and 18 USC § 1162(a) (Public Law 280 jurisdiction in listed states).

Even with a federal grant, the U.S. Supreme Court in California v Cabazon Band of Mission Indians, 480 US 202 (1987), held that the grant only reaches state laws that are "criminal/prohibitory," not those that are "civil/regulatory." A law is criminal/prohibitory if its intent is to ban conduct outright. It is civil/regulatory if it generally permits the conduct subject to rules. The shorthand: does the conduct violate the state's public policy?

The AG applied Cabazon and concluded that L 1997 ch 14 is criminal/prohibitory. The statute imposes an absolute ban on combative sport, defined as a match in which contestants are not forbidden from delivering kicks, punches, or blows of any kind to the opponent (boxing, sparring, wrestling, and sanctioned martial arts are carved out). It creates a Class A misdemeanor for advancing or profiting from such an event, with a Class E felony for second offenses within five years. The legislative memo characterizes the sport as brutal and not to be condoned by the State.

Confirming the prohibitory character, the new law repealed L 1996 ch 708, which had previously regulated combative sport (requiring licensing, insurance, contestant protections). The Legislature moved deliberately from regulating combative sport to banning it. That is the textbook trajectory of a criminal/prohibitory statute. Combative sport now violates state public policy, so enforcement on reservations falls within the federal grants and is permissible.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Cabazon test?

A state law is criminal/prohibitory and enforceable on Indian reservations (under a federal grant of jurisdiction) if its intent is to forbid the conduct outright. It is civil/regulatory and unenforceable on reservations if it generally permits the conduct subject to regulation. The shorthand from Cabazon: does the conduct violate the state's public policy?

Why doesn't a criminal penalty alone make the law criminal/prohibitory?

Cabazon expressly addressed this: a regulatory law enforceable by criminal penalties does not become criminal/prohibitory just because of the penalty. Otherwise every state law backed by a misdemeanor would qualify. The court looks at whether the underlying activity is generally permitted or generally banned.

How is combative sport different from California's bingo statute in Cabazon?

California permitted "a substantial amount of bingo" subject to operator-staffing rules, so the law was regulatory. New York's combative sport law bans the activity outright. There is no licensing path, no permitted variant; the legislature explicitly repealed the prior licensing scheme. That makes it prohibitory, not regulatory.

What about the carve-outs for boxing, wrestling, and martial arts?

Cabazon notes that limited exceptions do not necessarily convert a prohibitory law into a regulatory one. United States v Marcyes, 557 F2d 1361 (9th Cir 1977). New York's ban defines combative sport narrowly to exclude boxing, sparring, wrestling, and sanctioned martial arts. The remaining banned category (extreme fighting where kicks, punches, and blows are permitted) is absolutely prohibited.

What is the federal grant of jurisdiction for New York?

25 USC § 232 grants New York jurisdiction over offenses by or against Indians on reservations within the state to the same extent as elsewhere in the state. 25 USC § 233 covers civil causes of action. 18 USC § 1162(a) provides Public Law 280 jurisdiction (although New York is covered primarily by §§ 232-233).

Could a tribe still hold combative sport events under tribal law?

The opinion does not address tribal-law authority. It addresses only whether the state can enforce its criminal statute on a reservation. A tribe's separate authority to authorize or regulate activity under tribal law is a different question, governed by tribal-federal relationships outside the AG's purview.

Background and statutory framework

L 1997 ch 14, codified largely in the Unconsolidated Laws governing the State Athletic Commission, established the absolute ban on combative sport. It defined combative sport as any professional match other than boxing, sparring, wrestling, or martial arts in which contestants are not forbidden by the applicable rules from delivering kicks, punches, or blows of any kind to the opponent. The State Athletic Commission was given limited authority to update the list of sanctioned martial arts organizations. L 1997 ch 14 repealed L 1996 ch 708, which had taken a regulatory approach.

Federal Indian-law jurisdiction over New York reservations is governed by 25 USC §§ 232 (criminal) and 233 (civil), supplemented by 18 USC § 1162(a). Penal Law § 10.00(1) defines "offense" for state law purposes. The Cabazon line of cases (Cabazon, Mashantucket Pequot Tribe v Connecticut, 913 F2d 1024 (2d Cir 1990), Seminole Tribe v Butterworth, 658 F2d 310 (5th Cir 1981)) set the doctrinal framework.

Citations

• Penal Law § 10.00(1) (definition of "offense").
• Unconsolidated Laws §§ 8917(c), 8923 (State Athletic Commission authority over boxing and wrestling).
• 19 NYCRR §§ 208.20, 210.8, 210.9, 210.27, 215.11 (Athletic Commission regulations).
• 18 USC § 1162(a) (Public Law 280 jurisdiction).
• 25 USC § 232 (state criminal jurisdiction over New York reservations).
• 25 USC § 233 (state civil jurisdiction over New York reservations).
• 28 USC § 1360(a) (civil jurisdiction extension).
• L 1997 ch 14 (combative sport ban).
• L 1996 ch 708 (prior licensing scheme; repealed by L 1997 ch 14).
• California v Cabazon Band of Mission Indians, 480 US 202 (1987) (criminal/prohibitory versus civil/regulatory test).
• Oklahoma Tax Comm'n v Potawatomi Tribe, 498 US 505 (1991) (tribal sovereignty subordinate to federal government, not states).
• Mashantucket Pequot Tribe v State of Conn., 913 F2d 1024 (2d Cir 1990), cert denied, 499 US 975 (1991) (applying Cabazon in the Second Circuit).
• Seminole Tribe of Florida v Butterworth, 658 F2d 310 (5th Cir), cert denied, 455 US 1020 (1981) (applying Cabazon framework to bingo).
• United States v Marcyes, 557 F2d 1361 (9th Cir 1977) (limited exceptions do not convert prohibitory law into regulatory).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-39_pw.pdf

Original opinion text

PENAL LAW § 10.00(1); UNCONSOLIDATED LAWS §§ 8917(c), 8923; 19
NYCRR §§ 208.20, 210.8, 210.9, 210.27, 215.11; 18 USC § 1162(a);
25 USC §§ 232, 233; 28 USC § 1360(a); L 1997 CH 14; L 1996 CH
708.
Chapter 14 of the Laws of 1997 establishes a complete ban on
combative sport and creates criminal penalties for violations.
Clearly, under the statute's provisions and legislative history
combative sport is contrary to the public policy of the State.
Chapter 14, therefore, is a criminal statute which under Federal
authority may be enforced on Indian reservations.
August 12, 1997
Hon. Richard H. Edwards
District Attorney
County of Franklin
Court House
63 West Main Street
Malone, NY 12953

Informal Opinion
No. 97-39

Dear Mr. Edwards:
You have requested our opinion as to whether recently
enacted legislation relating to "combative sport" is enforceable
on Indian reservations.
The statute provides that "[n]o combative sport shall be
conducted, held or given within the State of New York, and no
licenses may be approved by the commission [State Athletic
Commission] for such matches or exhibitions". L 1997, Ch 14(2).
"A person who knowingly advances or profits from a combative
sport activity shall be guilty of a class A misdemeanor, and
shall be guilty of a class E felony if he or she has been
convicted in the previous five years of violating this
subdivision". Id., Ch 14(3). The statute also establishes civil
penalties. Id., Ch 14(3).
Chapter 14 defines combative sport1 and distinguishes it
from boxing, sparring, wrestling and martial arts. Id.,
1

Combative sport is defined as
any professional match or exhibition other
than boxing, sparring, wrestling or martial
arts wherein the contestants deliver, or are
not forbidden by the applicable rules thereof
from delivering kicks, punches or blows of
any kind to the body of an opponent or
opponents. For the purposes of this section,
the term "martial arts" shall include any
professional match or exhibition sanctioned
by [specific organizations, which may be
removed from or added to the list by the
State Athletic Commission based in part on
whether the organization has certain rules to
protect contestants].

2
Ch 14(2). The statute also defines the acts of advancing and
profiting from combative sport activity. Id., Ch 14(3).
Finally, the legislation repealed chapter 708 of the Laws of
1996, which required the licensing of combative sport events,
established restrictions on attendance at these events, required
insurance, provided limitations on fighting in order to protect
contestants, and delegated regulatory authority over combative
sport to the State Athletic Commission.
The Memorandum in Support of Assembly 2718 (enacted as
Chapter 14) characterizes combative sport as a bloody sport, also
known as extreme fighting, which involves two unprotected
opponents kicking, punching, kneeing and pummeling each other
until one surrenders. It states that "this is a brutal sport
that should not be condoned by the State of New York".
Your question is whether Chapter 14 of the Laws of 1997 may
be enforced on Indian reservations. Indian tribes retain
attributes of sovereignty over both their members and their
territory. Tribal sovereignty is generally subordinate only to
the Federal government and not to the states. Oklahoma Tax
Comm'n. v Potawatomi Tribe, 498 US 505, 510 (1991). State laws
may be applied to tribal Indians on their reservations with
express authorization by Congress. Id. In this regard, the
State of New York has been granted jurisdiction over "offenses
committed by or against Indians on Indian reservations within the
State of New York to the same extent as the courts of the State
have jurisdiction over offenses committed elsewhere within the
State as defined by the laws of the State". 25 USC § 232. See,
Penal Law § 10.00(1) for the definition of an "offense".
In California v Cabazon Band of Mission Indians, 480 US 202
(1987), the United States Supreme Court adopted a test to
determine whether a state law is "criminal\prohibitory" and
therefore enforceable on Indian reservations under Federal
authority or "civil\regulatory" and thus outside the delegation
of authority to the state. Id., p 209.2
If the intent of the
state law is to prohibit certain conduct, it falls within the
grant of criminal jurisdiction. Id. If the state law, however,
generally permits the conduct, subject to regulation, it is
classified as civil\regulatory and may not be enforced on an
Indian reservation. Id. "The shorthand test is whether the
conduct at issue violates the State's public policy." Id.;

2

The Supreme Court recognized that a grant of general civil
regulatory power over Indian reservations would result in the
destruction of tribal institutions and values. Cabazon, supra,
p 208. Congress has promoted the goals of Indian
self-government, tribal self-sufficiency and economic
development. Potawatomi, supra, p 510.

3
Mashantucket Pequot Tribe v State of Conn., 913 F2d 1024, 1029
(2d Cir 1990), cert denied, 499 US 975 (1991); Seminole Tribe of
Florida v Butterworth, 658 F2d 310, 313 (5th Cir), cert denied,
455 US 1020 (1981).
In Cabazon, the State of California sought to apply to
Indian tribes a state statute, adopted under a Federal grant of
jurisdiction (18 USC § 1162[a]), permitting the playing of bingo
only when the games are operated and staffed by members of
designated charitable organizations who could not be paid for
their services. Cabazon, supra, p 205. California asserted that
bingo games on the reservations violated these and other
restrictions on the playing of bingo. Id. Since violation of
the California statute relating to bingo is a misdemeanor, the
state claimed that the statute is a criminal law which may be
enforced on Indian reservations. Id., p 209.
In finding that the California bingo statute is regulatory,
the Court noted that the state permits a substantial amount of
bingo. Cabazon, supra, pp 210-211. Also, the Court found that a
regulatory law enforceable by criminal as well as civil penalties
is not converted into a criminal\prohibitory law only by reason
of the criminal penalty. Id., p 211.
The Court notes in its opinion that this test is not a
"bright-line" rule. Id., p 210. The applicable state law must
be examined closely to determine whether it is regulatory or
prohibitory. Id., p 211. For example, limited exceptions to the
statutory prohibition will not necessarily make the law
regulatory. Id., citing, United States v Marcyes, 557 F2d 1361,
1363-1365 (9th Cir 1977).
In our view, under the above analysis Chapter 14 of the Laws
of 1997 is criminal\prohibitory rather than civil\regulatory. It
establishes an absolute ban on the conduct of combative sport
within the State of New York and creates criminal penalties for
violations. The legislative intent, referred to above, clearly
characterizes combative sport as a bloody, uncivilized form of
fighting which should not be condoned by the State of New York.
Applying the test enunciated in Cabazon, Mashantucket Pequot and
Seminole, it is clear under the express language of the statute
and its legislative history that combative sport violates the
State's public policy.
Further evidence that Chapter 14 is not civil\regulatory is
its repeal of a prior State law which provided for the licensing
and regulation of combative sport. Under Chapter 14, combative
sport is a defined activity, distinguished from wrestling,
boxing, sparring and the martial arts. Also, the statutes and
regulations applicable to the State Athletic Commission make it
clear that combative sport does not qualify as boxing or

4
wrestling, which are regulated by the Commission. Unconsolidated
Laws §§ 8917(c), 8923; 19 NYCRR §§ 208.20, 210.8, 210.9, 210.27,
215.11.
We conclude that Chapter 14 of the Laws of 1997 establishes
a complete ban on combative sport and creates criminal penalties
for violations. Clearly, under the statute's provisions and
legislative history combative sport is contrary to the public
policy of the State. Chapter 14, therefore, is a criminal
statute which under Federal authority may be enforced on Indian
reservations.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions