Anthony W. Ishii, SENIOR DISTRICT JUDGE.
Plaintiffs Club One Casino and The Deuce Lounge (collectively "Plaintiffs" or "Club One") bring the instant Administrative Procedures Act ("APA") challenge to the issuance of Secretarial Procedures by the United States Department of the Interior, the Secretary of the Interior, and the Assistant Secretary for Indian Affairs (collectively "DOI" or "Federal Defendants") permitting the North Fork Rancheria of Mono Indians ("North Fork") to conduct tribal gaming on a 305.49 acre parcel of land in Madera County, California (the "Madera Site"). Complaint, Doc. 1 ("Compl.") at ¶ 1. The substance of the APA challenge is directed at whether the Federal Defendants adequately considered whether North Fork had jurisdiction over the Madera Site for purposes of the Indian Gaming Regulatory Act ("IGRA"), 29 U.S.C. § 2701, et seq.
The parties have filed cross motions for summary judgment. Plaintiffs' argument is twofold. First they contend that "the Secretarial Procedures [offend the APA] because defendants . . . never considered . . . whether the North Fork Tribe actually possesses territorial jurisdiction over the proposed casino site." Doc. 36-1 at 12. The Federal Defendants respond that North Fork necessarily has jurisdiction over the proposed gaming site as a result of the fee-to-trust determination conducted pursuant to the Indian Reorganization Act ("IRA"), taking that land into trust for the Tribe. Second, Plaintiffs argue, assuming that the fee-to-trust determination does shift some jurisdiction from the state to the Tribe, the IRA violates of the Tenth Amendment.
For the following reasons, Plaintiffs' motion will be denied and the Federal Defendants' motion will be granted.
Although the background surrounding the proposed gaming facility at the Madera Site is extensive, the Court limits this section to the information relevant to, or addressed in, Plaintiffs' challenge to the Secretary's issuance of Secretarial Procedures.
Club One Casino and The Deuce Lounge are both cardrooms licensed by the State of California. Declaration of Kyle Kirkland, Doc. 36-3 ("Kirkland Decl.") at ¶¶ 2, 6. Club One operates in Fresno, California and is licensed by the City of Fresno. Id at ¶ 2. The Deuce Lounge is located in Goshen, California and licensed by the County of Tulare. Id. at ¶ 6. Both Club One and The Deuce Lounge are limited in the kinds
The Madera Site is roughly 25 miles from Club One and 65 miles from The Deuce Lounge. Kirkland Decl. at ¶¶ 3, 7. The Secretarial Procedures permit North Fork to operate slot machines and banking card games that Plaintiffs cannot operate. See Administrative Record ("AR") at AR00002202 (North Fork is permitted under the Secretarial Procedures to operate "Gaming Devices," i.e., slot machines, and "banking or percentage card games," among other things.) Both Club One and The Deuce Lounge contend that their businesses will suffer if North Fork is permitted to conduct Class III gaming at the Madera Site. Kirkland Decl. at ¶¶ 5, 9.
The North Fork is a federally recognized Indian tribe. AR00000241; see generally Stand Up for California! v. United States Department of the Interior, 204 F.Supp.3d 212, 228-231 (D.D.C. Sept. 6, 2016) aff'd 879 F.3d 1177 (D.C. Cir. Jan. 12, 2018) rehrg. en bank denied (Apr. 10, 2018).
The United States also holds in trust for the Tribe a 61.5-acre tract of land "`located on a steep hillside . . . in . . . North Fork.'" Stand Up for California!, 204 F.Supp.3d at 231. (citation omitted). "The tract contains a community center, basic infrastructure (i.e., roads, water, sewer), pads for nine single-family homes, and the North Fork Tribe's `current government headquarters.'" Id. (citation omitted).
The Madera Site is a 305.49-acre plot of land in Madera County, California, approximately
In March of 2005, North Fork submitted an application to the Bureau of Indian Affairs ("BIA") to have the Madera Site taken into trust for the purpose of operating a Class III gaming facility ("fee-to-trust application"). Doc. 37-2 at 5; AR00000240. In the same month, North Fork also requested that the Secretary make the two-part after-acquired lands determination
On November 26, 2012, the Assistant Secretary—Indian Affairs issued a Record of Decision approving the fee-to-trust application ("the IRA ROD"). Doc. 37-2 at 7; AR00000159-00000227. The Madera Site was acquired in trust by the United States for the benefit of North Fork in 2013. North Fork Rancheria of Mono Indians of California v. State of California, 2015 WL 11438206, *2 (E.D. Cal. Nov. 13, 2015) ("North Fork v. California"); Doc. 37-2 at 3. Prior to the acquisition of the Madera Site in trust for North Fork, the land was privately owned. Doc. 37-2 at 4; Doc. 30 at 3. Jurisdiction over the land was not reserved by the United States when California was admitted to the Union in 1850. Doc. 37-2 at 4. The State of California has never taken express steps to cede territorial jurisdiction over the land to the United States or North Fork and the United States has never issued a written acceptance of cession of jurisdiction in connection with the Madera Site. Doc. 37-2 at 4.
On August 31, 2012, the Governor concluded a compact with North Fork to conduct Class III gaming at the Madera Site. Doc. 37-2 at 7; AR00000320-00000438. That compact was concluded on the same date as the Governor's concurrence with the Secretary's two-part determination and before the IRA ROD issued or the land was taken into trust for North Fork. The Governor's office then forwarded the compact to the California Legislature for ratification. Doc. 37-2 at 7; North Fork v. California, 2015 WL 11438206 at *2. On June 27, 2013, the California Legislature ratified the compact by means of Assembly Bill 277 ("AB 277"), and the Governor signed the bill on July 3, 2013. Doc. 37-2 at 8. The California Secretary of State forwarded the compact to the Secretary of the Interior on July 16, 2013, with the notation that the effective date of the compact would be January 1, 2014, unless a referendum measure qualified for the ballot. AR00000439-00000440.
Notice of the completed compact was published in the Federal Register on October 22, 2013, stating that the compact was "approved" and was taking effect to "the extent it was consistent with IGRA." 78 Fed.Reg. 62649-01 (Oct. 22, 2013). On November 20, 2013, the Secretary of State informed the Secretary of the Interior that a veto referendum on AR 277 qualified for the ballot ("Proposition 48") and that the measure would go before voters at the November 3, 2014 general election. AR00000455. Sixty one percent of California voters voted against the legislative ratification of the compact. Doc. 37-2 at 8.
On January 2, 2015, North Fork requested that the State of California enter into negotiations for a new compact for Class III gaming on the Madera Site. Doc. 37-2 at 8-9; North Fork v. California, 2015 WL 11438206 at *7. The State refused, indicating that negotiations for a compact regarding gaming at the Madera Site would be "futile" given the result of the referendum. Id.
On March 17, 2015, North Fork filed suit against California pursuant to 25 U.S.C. § 2710(d)(7), seeking a determination that the State of California did not negotiate in good faith toward an enforceable compact. Doc. 37-2 at 9; see generally North Fork v. California, 2015 WL 11438206. On November 13, 2015, the Court held that by refusing to negotiate, California failed to negotiate in good faith to conclude a Tribal-State compact within the meaning of 25 U.S.C. § 2710(d)(7)(B)(ii-iii). Id. at *8. On that basis, the Court ordered North Fork and California to conclude a compact within 60 days of the date of that order. Id. at *8, 12 (citing 25 U.S.C. § 2710(d)(7)(B)(iii)).
North Fork and California did not conclude a compact within the 60-day period allowed. Doc. 37-2 at 9. On January 25, 2016, the Court appointed a mediator and directed North Fork and California to submit their last best offers. Doc. 37-2 at 9; see 25 U.S.C. § 2710(d)(7)(B)(iv). The mediator was directed to select from the two proposed compacts the one which best comported with IGRA, other Federal law, and the findings and order of the Court. Doc. 37-2 at 9; see 25 U.S.C. § 2710(d)(7)(B)(vii). On February 11, 2016, the mediator determined that the proposed compact submitted by North Fork best met the Court's direction. Doc.37-2 at 9; AR00000002-AR00000003. From the date that the mediator returned the selected compact to the California, California was permitted to sixty days to consent to the selected compact or decline to do so. 25 U.S.C. § 2710(d)(7)(B)(vi). California did not consent to the compact within the time permitted. Doc. 37-2 at 10; AR00000001. In conformity with the requirements of IGRA and the order of the Court, the mediator forwarded the selected compact to the Secretary of the Interior to prescribe procedures under which North Fork could conduct Class III gaming at the Madera Site. Doc. 37-2 at 10; AR00000001; see 25 U.S.C. 2710(d)(7)(B)(vii).
On July 29, 2016, the Secretary issued Secretarial Procedures permitting the Tribe to conduct Class III gaming without
The administrative record contains no evidence that any governmental entity had affirmatively concluded that North Fork had territorial jurisdiction over the Madera Site. Doc. 37-2 at 10-11. However, in resolving the cross-motions for judgment on the pleadings in North Fork v. California, 2015 WL 11438206 at *8, the Court explained that it was "undisputed" between North Fork and California that "the Madera [Site] [is] gaming-eligible Indian land[ ] within the meaning of 25 U.S.C. §§ 2703(4) and 2719(b)(1)(A)." See also North Fork v. California, 2016 WL 4208452, *5 (E.D. Cal. Aug. 10, 2016) (subsequent determination) (The Court emphasized that the State of California admitted that North Fork "exercises jurisdiction over the Madera Parcel, which constitutes `Indian lands' under IGRA.")
On October 16, 2015, the North Fork Tribal Council passed Resolution No. 15-58 approving a general policy for permitting of Indian agricultural lands and a conservation plan for the Madera Site. Declaration of Steven Miskinis, Doc. 37-3 ("Miskinis Decl.") at 1-6.
Club One filed a motion, seeking to supplement the administrative record compiled by the Secretary. Doc. 22. Club One argued that consideration of the ownership history of the Madera Site is relevant to whether North Fork had jurisdiction over that land. Id. at 5-6, 8-10. Therefore, Club One argued, supplementation of the record was necessary to determine whether the Secretary had considered all factors relevant to the prescribing of Secretarial Procedures for Class III gaming. Id. at 5.
In order to determine whether to permit supplementation of the administrative record, it was "necessary [for the Court] to determine" what it means for "an Indian tribe [to] exercise jurisdiction over land" for purposes of IGRA. Doc. 33 at 6.
The Court made the following limited determination:
Doc. 33 at 9-10. Because the parties were (and are) in agreement that the Madera Site was held in trust by the United States for North Fork at the time the Secretary prescribed gaming procedures (and Club One is not challenging the fee-to-trust determination), the Court found that the material relating to the ownership history of the Madera Site was irrelevant to the Secretarial determination in question here—the prescribing of gaming procedures.
Summary judgment is an appropriate mechanism for reviewing agency decisions under the APA. Turtle Island Restoration Network v. United States Dept. of Commerce, 878 F.3d 725, 732 (9th Cir. 2017); City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997); Occidental Engineering Co. v. Immigration & Naturalization Service, 753 F.2d 766, 769-70 (9th Cir.1985). However, courts do not utilize the standard analysis for determining whether a genuine issue of material fact exists. See Occidental, 753 F.2d at 769-70; Academy of Our Lady of Peace v. City of San Diego, 835 F.Supp.2d 895, 902 (S.D. Cal. 2011); California RSA No. 4 v. Madera Cnty., 332 F.Supp.2d 1291, 1301 (E.D. Cal. 2003). A court "is not required to resolve any facts in a review of an administrative proceeding." Occidental, 753 F.2d at 769; California RSA, 332 F.Supp.2d at 1301. Instead, in reviewing an agency action, the relevant legal question for a court reviewing a factual determination is "whether the agency could reasonably have found the facts as it did." San Francisco, 130 F.3d at 877; Occidental, 753 F.2d at 769.
The Court's review in resolving an APA challenge to an agency action is circumscribed: the court will only set aside agency action if its "`findings[ ] and conclusions [are] found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' `in excess of statutory jurisdiction' or `without observance of procedure required by law." Turtle Island, 878 F.3d at 732 (quoting 5 U.S.C. § 706(2)(A), (C)-(D)). Agency action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law "only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Defs. Of Wildlife v. Zinke, 856 F.3d 1248, 1256-1257 (9th Cir. 2017) (citation omitted); See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (An "agency must examine the relevant data and articulate a satisfactory explanation for its action.") This standard is "highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric., 499 F.3d 1108, 1115 (9th Cir. 2007) (quoting Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). Review under this standard is narrow, and the court may not substitute its judgment for that of the agency. Morongo Band of Mission Indians v. Fed. Aviation
Assuming an error was made, the Court considers whether it was harmless. 5 U.S.C. § 706. In the context of agency review, the role of harmless error is constrained. The doctrine may be employed only "when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached." Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir.1982).
Plaintiffs' motion indicates that it presents two issues: (1) whether the Secretary violated IGRA when he issued Secretarial Procedures "authorizing North Fork . . . to operate a casino on off-reservation land that is still under state jurisdiction?";
The Court will resolve the first issue: No, because the land was taken into trust by the United States for North Fork, North Fork had jurisdiction over that land for purposes of IGRA and therefore IGRA was not violated by Secretary prescribing Secretarial Procedures.
Next, the Court will not resolve the second issue because the agency action that purportedly violates the Tenth Amendment—the fee-to-trust determination made pursuant to the IRA—is not challenged in this action therefore the question is not properly before the Court. Insofar as Plaintiffs seek to vindicate the State of California's partial divestment of jurisdiction by operation of the IRA, it is well settled in this Circuit that they lack standing to do so. Oregon v. Legal Servs. Corp., 552 F.3d 965, 972 (9th Cir. 2009) (citing Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 144, 59 S.Ct. 366, 83 S.Ct. 543 (1939); Stop The Casino 101 Coalition v. Salazar, 384 Fed.Appx. 546, 548 (9th Cir. 2010); See City of Roseville v. Norton, 219 F.Supp.2d 130, 146-148 (D.D.C. 2002).
Finally, the court will resolve the third issue: Secretarial Procedures are not inconsistent with California law merely because a compact does not exist.
In the final stage of the IGRA remedial process, the Secretary must prescribe gaming procedures under which Class III gaming may be conducted "on the Indian lands over which the Indian tribe has jurisdiction." 25 U.S.C. § 2710(d)(7)(B)(vii)(II); see also 25 U.S.C. 2710(d)(3)(A). Courts, including this Court, have read that section as imposing two requirements.
The second requirement, arising from the definition of "Indian land," is that the tribe "exercise governmental power" over the land. 25 U.S.C. § 2703(4)(B); See Wampanoag Tribe, 853 F.3d at 624-626 (citing, inter alia, State of R.I. v. Narragansett Indian Tribe, 19 F.3d 685, 702 (1st Cir. 1994)); Chaudhuri, 802 F.3d at 286.
In short, an Indian tribe must exercise governmental power over land held in trust by the United States for the tribe for the land to be Indian land. 25 U.S.C. § 2703(4)(B). In order to conduct gaming on that Indian land (or demand that a state negotiate toward an enforceable compact), the Indian tribe conducting that gaming must be the tribe that has jurisdiction over that land.
Plaintiffs begin their argument by quoting the portion of this Court's November 29, 2017 order that framed the issue then before the Court: "Legally, the parties are in agreement that, at least in the ordinary case, acquisition of an ownership interest in land by the United States only impacts title to that land; it does not divest the State of jurisdiction over that land. [citation omitted] . . . The parties disagree regarding the jurisdictional impact of the Secretary taking the Madera Site into trust for North Fork through the authority delegated to the Secretary by the IRA." Doc. 36-1 at 10 (quoting Doc. 33 at 5). It is not until much later in Plaintiffs' argument that they recognize that the Court resolved that question in its November 29,
In both iterations of Plaintiffs' argument, the reasoning is as follows: IGRA requires "territorial jurisdiction" over any land where Class III gaming is to be conducted; California has territorial jurisdiction over all land within its borders, including the Madera Site; transfer of title to real property does not impact territorial jurisdiction over that real property; in order for an Indian tribe to acquire jurisdiction over land sufficient for purposes of IGRA, the State in which the land lies must expressly cede jurisdiction to the tribe or the United States; no express cession of jurisdiction by California has taken place with respect to the Madera Site and the United States has not expressly accepted jurisdiction of the Madera Site; therefore North Fork does not have jurisdiction over the Madera Site and the Secretary erred in issuing Secretarial Procedures.
To Plaintiffs' motion to supplement and motion for summary judgment, the Secretary has responded that North Fork's jurisdiction over the Madera Site, for purposes of IGRA, arose through the act of placing the land in trust for the tribe. The Court agreed with the Secretary's position in denying Plaintiffs' motion to supplement the administrative record and the Court remains in agreement now.
As a starting point, Congress has the power to regulate commerce with the Indian tribes. U.S. Const. art. I, § 8, cl. 3 (conferring upon Congress the power "[t]o regulate commerce . . . with the Indian tribes.") The Supreme Court has described Congressional authority under the Indian Commerce Clause as "plenary." Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989); Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (noting that Congress has plenary power "to deal with the special problems of Indians," including the power to legislate); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998). The IRA was enacted, at least in part, pursuant to that authority. See Upstate Citizens, 841 F.3d at 568; South Dakota v. United States Department of the Interior, 787 F.Supp.2d 981, 992 (D. S.D. 2011).
The United States Supreme Court has been clear that § 5 of the IRA "provides the proper avenue for" an Indian tribe "to reestablish sovereign authority over territory. . . ." City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197, 221, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005) (citing 25 U.S.C. § 465, now codified at 25 U.S.C. § 5108); See Carcieri v. Kempthorne, 497 F.3d 15, 36 (1st Cir. 2007) rev'd on other grounds 555 U.S. 379, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009) (Regardless of how an Indian tribe lost "aboriginal title or ancient sovereignty" over land—even if it is fully extinguished—§ 5 is appropriate to "establish[ ] tribal sovereignty over land."); Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 531 n.6, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (suggesting that action by Congress or an executive agency acting under delegated authority can create or recognize Indian rights with respect to property). However, the Supreme Court did not detail the precise ways that taking land into trust for an Indian tribe impact
Other circuits share a similar understanding. The Second Circuit held in Upstate Citizens, 841 F.3d at 569, that "[w]hen the federal government takes land into trust for an Indian tribe, the state that previously exercised jurisdiction over the land cedes some of its authority to the federal and tribal governments." accord Chaudhuri, 802 F.3d at 284 (finding in dicta that lands taken into trust pursuant to § 5 of the IRA are subject to tribal jurisdiction). See also, Upstate Citizens for Equality, Inc. v. United States, ___ U.S. ___, ___ S.Ct. ___, ____, 199 L.Ed.2d 372, 2017 WL 5660979, *1, 3 (Nov. 27, 2017) (Thomas, J., dissenting from denial of cert.) (The Supreme Court's reading of the IRA in Sherrill and the Second Circuit's reading of the IRA in Upstate Citizens permit the Secretary "to take any state land and strip the State of almost all sovereign power over it `for the purpose of providing land for the Indians.'") The Court agrees with the Second Circuit that use of the fee-to-trust provision of § 5 of the IRA shifts at least some jurisdiction from the State to a tribe and the federal government.
The cases cited by Plaintiffs do not undermine that conclusion.
IGRA does not define what it means to have jurisdiction over Indian land. The answers that Courts have given to this
"`[L]ands held in trust by the United States for the Tribes are Indian Country within the meaning of § 1151(a).'" U.S. v. Sohappy, 770 F.2d 816, 822 (9th Cir. 1985) (quoting Hydro Resources, Inc. v. EPA, 608 F.3d 1131 (10th Cir. 2010)); accord State of Ariz. v. EPA, 151 F.3d 1205, 1214 (9th Cir. 1998); HRI, Inc. 198 F.3d at 1254; Citizens Against Casino Gambling in Erie County v. Hogen, 2008 WL 2746566 at *34 (W.D.N.Y. 2008) (collecting cases). For purposes of determining whether land is Indian country, the Supreme Court does not differentiate between lands taken into trust prior to statehood of the State in which the lands lie and those lands taken into trust after. See U.S. v. John, 437 U.S. 634, 649, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978) (explaining that all doubt was removed that land was subject to federal criminal jurisdiction when it was declared to be held in trust for a tribe); U.S. v. McGowan, 302 U.S. 535, 537-538, 58 S.Ct. 286, 82 S.Ct. 410 (1938) (finding that land taken in trust by the United States for an Indian tribe after Nevada's induction into the union was Indian country because it was validly set apart for use of the Indians).
The First Circuit appears to require a lesser showing that the Second Circuit to prove that a tribe has jurisdiction over land for purposes of IGRA—that a tribe possesses "that portion of jurisdiction they possess by nature of their sovereign existence as a people." Wampanoag Tribe, 853 F.3d at 624. The First Circuit went on to suggest that a tribe's possession of any jurisdiction (and a state's possession of anything short of exclusive jurisdiction) meets the threshold showing. Id. at 625 n.5; accord Narragansett, 19 F.3d at 701.
In this Court's estimation, a logical reading of the "having jurisdiction over" language is simply that it is a linkage requirement between the Indian tribe and the Indian land at issue. In other words, that language is included to ensure that an Indian tribe in California, for instance, does not seek authorization to conduct Class III gaming on Indian land under the jurisdiction of some other tribe in New York. When a tribe possesses Indian lands, that tribe necessarily has jurisdiction over those lands. Such a reading is consistent with the language of § 2710(d)(3)(A):
25 U.S.C. § 2710(d)(3)(A). Congress uses linking language to explain that negotiation by a tribe must be with "the State in which [its Indian] lands are located," not some other State. In the same way, Congress explains that the tribe "having jurisdiction over the Indian lands upon which a class III activity . . . is to be conducted" shall seek to negotiate with a State. That language is not to suggest some additional jurisdictional requirement but to link the specific tribe to specific Indian lands.
Regardless of which standard is correct, North Fork has jurisdiction over the Madera Site. Applying the Second Circuit's test from Upstate Citizens, the land acquired in trust by the United States for the benefit of North Fork is Indian country, set apart for the use of the tribe and under federal superintendence. It is therefore under North Fork's tribal jurisdiction. Sohappy, 770 F.2d at 822; Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 511, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). Applying the First Circuit's test from Wampanoag Tribe, the Madera Site is under North Fork's tribal jurisdiction because the fee-to-trust process shifted at least some jurisdiction to the tribe. Santa Rosa, 532 F.2d at 666 n. 17; Chaudhuri, 802 F.3d at 285. Finally, North Fork easily meets the linkage requirement that this Court would impose; North Fork is the Indian tribe for whom the United States holds the Madera Site.
The term "exercising governmental power" is "undefined by IGRA and `the case law considering the phrase is sparse." Commonwealth v. Wampanoag Tribe of Gay Head, 144 F.Supp.3d 152, 166 (D. Mass. 2015) (quoting Miami Tribe of Okla. v. United States, 5 F.Supp.2d 1213, 1217 (D. Kan. 1998)). Indeed, many circuit courts simply conclude that land is Indian land when it is held in trust by the United States for the benefit of a tribe without asking if a tribe exercises governmental power over that land. Kansas ex rel. Schmidt v. Zinke, 861 F.3d 1024, 1032 n.3 (10th Cir. 2017) cert. denied ___ U.S. ___, 138 S.Ct. 571, 199 L.Ed.2d 437 ("There is no question that the Kansas land constitutes `Indian land' because the land was taken into trust for the Quapaw Tribe in 2012."); Alabama v. PCI Gaming Authority, 801 F.3d 1278, 1290-1293 (11th Cir. 2015) (concluding that lands are Indian lands after only finding that they were taken into trust for the tribe by the Secretary of the Interior); See Big Lagoon Rancheria, 789 F.3d at 953.
That said, the other circuit courts suggests a need for actual use of the jurisdictional authority over the land; some showing of "concrete manifestations of that authority." Wampanoag Tribe, 853 F.3d at 625 (quoting State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 703 (1st Cir. 1994)). In Wampanoag Tribe, the First Circuit explained that the tribe need not have achieved "full-fledged self-governance, but merely movement in that direction . . . to evince that the Tribe exercises . . . enough governmental power to satisfy" that requirement. 853 F.3d at 625-626. Any doubt in resolving whether a tribe exercises sufficient governmental power is "to be resolved in favor of Indians." Id. at 626 (quoting, inter alia, Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586-587, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977)).
The Second Circuit in Wampanoag Tribe and in Narragansett had no problem determining that the Tribes exercised governmental power. The Wampanoag Tribe "established a housing program," "entered into an intergovernmental agreement with the EPA," "operat[ed] a health care clinic," offered social services and public safety services, passed ordinances, and employed a judge. Wampanoag Tribe, 853 F.3d at 626. The Narragansett Tribe had "established a housing authority," had government-to-government relations with the EPA, and took "advantage of the Indian Self-Determination and Education Assistance Act." Narragansett, 19 F.3d at 703. See also Chaudhuri, 802 F.3d at 286 (noting in dicta that a tribe exercised governmental power over land where it policed, fenced, posted signs on, and enacted ordinances relating to that land).
Even assuming the First and Second Circuits are correct, there is sufficient evidence in the administrative record such that it was not arbitrary or capricious for the Secretary to conclude that North Fork exercised governmental power over the Madera Site.
In this case, the Secretary was procedurally in a different position than in Wampanoag Tribe and Narragansett. Here, a determination had already been made that the Madera Site is Indian land. In North Fork v. California, 2015 WL 11438206 at *8, where this Court resolved cross motions for judgment on the pleadings between North Fork and California, the Court made clear that "it [was] undisputed [between California and North
Next, even assuming the Secretary was required to delve beyond the Court's determination, the evidence available to the Secretary in the time before the Secretarial Procedures were issued indicated that North Fork had enacted an ordinance with respect the Madera Site. Miskinis Decl., Doc. 37-2 at 4-6.
At the final stage of the remedial process, the Secretary must prescribe gaming procedures "which are consistent with the proposed compact selected by the mediator . . ., the provisions of [IGRA], and the relevant provisions of the laws of the State." 25 U.S.C. § 2710(d)(7)(B)(vii)(II). Plaintiffs argue in their motion (and abandon the argument in their reply) that the Secretarial Procedures are inconsistent with California law because no Compact exists governing Class III gaming. Plaintiffs are mistaken.
As a preliminary matter, Secretarial Procedures cannot be issued if a valid compact governing Class III gaming on an Indian tribe's Indian lands exists. See 25 U.S.C. §§ 2710(d)(3)(A), 2710(d)(7)(B)(vi-vii). To be clear, it is Plaintiffs' position that Secretarial Procedures, if issued to permit an Indian tribe in California to conduct Class III gaming, will always violate IGRA. For that proposition, Plaintiffs direct the Court to Article IV, sections 19(e) and 19(f) of the California Constitution which, collectively, preclude Nevada style gaming except by Indian tribes conducting such gaming pursuant to tribal-state compacts. Cal. Const., art. IV, § 19(e-f). Plaintiffs reason that Secretarial Procedures are not a compact and therefore gaming at the Madera Site under such procedures is inconsistent with the California Constitution. Plaintiffs cite no case authority for this proposition and it is undercut by the California Supreme Court's decision in Hotel Employees and Restaurant Employees Intern. Union v. Davis, 21 Cal.4th 585, 88 Cal.Rptr.2d 56, 981 P.2d 990 (1999). In Hotel Employees the California Supreme Court addressed, inter alia, California's statutory waiver of immunity enacted in response to Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
Cal. Gov't Code § 98005. The Hotel Employees court explained that the waiver of immunity was designed to give effect to IGRA's remedial framework, 25 U.S.C. § 2710(d)(7). Hotel Employees, 21 Cal.4th at 615, 88 Cal.Rptr.2d 56, 981 P.2d 990 ("The [above-quoted portion] of section 98005, in providing the state's consent to such a suit, is obviously intended to restore to California tribes the remedy provided in IGRA.") The issuance of Secretarial Procedures is the part of the remedial process that gives it teeth. If gaming pursuant to Secretarial Procedures was not contemplated, the purpose of the remedial process—restoring leverage to tribes to sue recalcitrant states and thereby force them into a compact—would be wholly eroded. U.S. v. Spokane Tribe of Indians, 139 F.3d 1297, 1299-1300 (9th Cir. 1998). The State of California did not waive jurisdiction so a tribe could bring a claim without a remedy.
Moreover, there is good reason to treat Secretarial Procedures issued pursuant to § 2710(d)(7)(A)(vii) as equivalent to a Tribal-State compact for purposes of IGRA and therefore also for purposes of the relevant portions of California law designed to mirror IGRA. Section 2710(d)(1) makes clear that "[c]lass III gaming activities shall be lawful on Indian lands only if such activities are," among other things, "conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect." If Secretarial Procedures prescribed pursuant to section 2710(d)(7)(A)(vii) are not treated as equivalent to a Tribal-State compact for purposes of IGRA, then the remedial process would be meaningless. Secretarial Procedures could never be issued because Secretarial Procedures—necessarily issued in the absence of a compact that is in effect—would always be "[in]consistent with . . . the provisions of [IGRA]. . . ." 25 U.S.C. § 2710(d)(7)(B)(vii)(I). The Court will not read IGRA to have created (or the State of California to have waived immunity as to) an empty remedial process. Such an out-come must be rejected.
The Secretary's issuance of Secretarial Procedures was not arbitrary, capricious, or otherwise not in accordance with law for any of the reasons identified by Plaintiffs. Again, the Court does not address the alleged unconstitutionality of the jurisdictional shift caused by the fee-to-trust determination as that determination is not properly before this Court, as described above.
Based on the foregoing, IT IS HEREBY ORDERED that the Plaintiffs' motion for summary judgment is DENIED and the Federal Defendants' motion for summary judgment is GRANTED.
IT IS SO ORDERED.
