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 challenge is directed at whether the Federal Defendants adequately considered whether North Fork exercised jurisdiction over the Madera Site for purposes of the Indian Gaming Regulatory Act ("IGRA"), 29 U.S.C. § 2701, et seq. To be very clear, the scope of this action is limited to reviewing to Secretary's prescription of gaming procedures for North Fork on the Madera Site; the Secretary's 2012 fee-to-trust determination is not challenged.
Plaintiffs moved to supplement the administrative record. On September 25, 2017, the Court authorized additional briefing "regarding what it means for an Indian tribe to exercise jurisdiction over Indian lands for purposes of IGRA." Doc. 30 at 8. Both parties submitted supplemental briefing. For the following reasons, Plaintiffs' motion to supplement the administrative record will be denied.
This Court set out the factual background regarding this action in its prior order. Doc. 30 at 2-4.
As the Court set out in its prior order, the scope of judicial review and the process for determining the adequacy of an administrative record in the APA context is as follows:
Natural Resources Defense Council v. Zinke, 2017 WL 3705108, *2-3 (E.D. Cal. Aug. 28, 2017). A plaintiff can overcome the presumption of regularity in four situations: "(1) if admission [of supplemental evidence] is necessary to determine whether the agency has considered all relevant factors and has explained its decision [;] (2) if the agency has relied on documents not in the record[;] (3) when supplementing the record is necessary to explain technical terms or complex subject matter[;] or (4) when plaintiffs make a showing of agency bad faith." Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) (citing Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)).
It is Plaintiffs' position that supplementation of the administrative record is necessary to demonstrate that the Federal Defendants failed to consider whether North Fork exercised territorial jurisdiction over the Madera Site on the date when Secretarial Procedures were prescribed. Plaintiffs argue that the supplementation material falls within the first Lands Council category—evidence necessary to show that the Federal Defendants failed to consider all relevant factors in coming to its decision. See Lands Council, 395 F.3d at 1029. Specifically, Plaintiffs seek supplementation of the record to include the following documents:
Doc. 22 at 3.
As the Court made clear in its last order,
Doc. 30 at 6. Based on the substantive issue identified, the Court invited the parties to submit briefing regarding "what it means for an Indian tribe to exercise jurisdiction over Indian lands for purposes of IGRA." Doc 30 at 8.
Factually, there is no disputed that the Madera Site was taken into trust for North Fork on February 5, 2013. The parties further agree that the Madera Site was not reserved by the United States for North Fork when the State of California was admitted to the Union, that the Madera Site was not acquired pursuant to the Enclaves Clause of the Constitution, and that the State of California did not expressly cede jurisdiction over the land to the United States.
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. See Silas Mason Co v. Tax Com'n of State of Washington, 302 U.S. 186, 197 (1937). The parties are equally agreed that "Congress can acquire exclusive or partial jurisdiction over lands within a State by the State's consent or cession. . . ." Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976). 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.
Plaintiffs' position is that North Fork must have "acquired territorial jurisdiction of the Madera" Site in order to exercise jurisdiction over the land within the meaning of 25 U.S.C. §§ 2710(d)(3)(A) and 2710(d)(7)(B)(vii)(II). Doc. 32 at 2. Plaintiffs contend that territorial jurisdiction over land within a state's territorial jurisdiction can only be acquired in three situations: (1) when the land "is reserved by the United States at the time the state is admitted into the Union; (2) when "[t]he land is acquired pursuant to the Enclaves Clause;" or (3) when the state expressly cedes jurisdiction to the United States. Doc. 32 at 6. In order to make a showing in first situation, Plaintiffs argue, a historical review of the property is required. Doc. 32 at 3. To that end, Plaintiffs seek to supplement the administrative record with the aforementioned documents.
Plaintiffs also contend that, beyond the inquiry regarding North Fork's exercise of jurisdiction over the land, the supplementation material is also necessarily considered in determining whether North Fork exercised "governmental power over the land." See Doc. 32 at 13-15; 25 U.S.C. § 2703(4)(B); 25 C.F.R. § 502.12(b).
Defendants' response to the Court's question regarding the meaning of the phrase is that "[j]urisdiction for purposes of IGRA has no special meaning. . . . Thus the question is: does a tribe have jurisdiction over trust land?" Doc. 31 at 2. That answer is less than helpful.
An Indian tribe may engage in gaming under IGRA only on "Indian land" over which the tribe has jurisdiction. 25 U.S.C. § 2710(d)(3)(A), (d)(7)(B)(vii)(II). Under IGRA, the term "Indian lands" means (A) all lands within any Indian reservation, and (B) land over which an Indian tribe exercises governmental power and that is either (1) held in trust by the United States for the tribe, or (2) held by a tribe or individual subject to restriction by the United States against alienation. 25 U.S.C. § 2703(4); 25 C.F.R. 502.12. Jurisdiction over the land and governmental power
In order to determine whether any of the proposed supplementation material is necessary to determine whether the Secretary erroneously determined that the Indian tribe exercised jurisdiction over the Madera Site, the Court must set out how an Indian tribe exercises jurisdiction over land.
Plaintiffs' understanding of the limited ways in which the United States can obtain jurisdiction from a state is flawed. Fundamentally, Congress has the power to regulate commerce with the Indian Tribes. Constitution Art. 1 § 8, cl. 3. The "central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs." Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989). "Congress . . . has the power to create tribal rights within a State without the State's consent." Kansas v. United States, 249 F.3d 1213, 1229 (10th Cir. 2001). At least partially under that power, Congress enacted the IRA, Section 5 of which authorizes Secretary of the Interior "to acquire . . . any interest in lands . . . [in] trust . . . for purpose of providing land for Indians." 25 U.S.C. § 5108
"Indian tribes are `domestic dependent nations' that exercise `inherent sovereign authority.'" Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024, 2030 (2014) (quoting Cherokee Nation v. Georgia, 30 U.S. 1 (1831)); see McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 172 (1973) ("The Indian sovereignty doctrine . . . provides a backdrop against which the applicable treaties and federal statutes must be read.") As a result of that sovereignty and federal plenary authority over governing Indian tribes, "primary jurisdiction over land that is Indian country rests with the Federal Government and the Indian tribe inhabiting it, and not with the States." Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 n.1 (1998) (citing South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998)); see 18 U.S.C. § 1151 (defining Indian country for purposes of criminal jurisdiction); Cohen's Handbook of Federal Indian Law § 3.04[2][c][iv], at 198. Land taken into trust by the United States for the benefit of an Indian tribe is Indian country. Oklahoma Tax Com'n v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991) (citing United States v. John, 437 U.S. 634, (1978)); United States v. McGowan, 302 U.S. 535, 538-539 (1938) (Regardless of the nomenclature used in designating land set aside for an Indian tribe, land is "Indian country [when] it [is] validly set apart for the use of the Indians. . . ."); South Dakota v. Dept. of Interior, 665 F.3d 986, 990 (8th Cir. 2012); United States v. Roberts, 185 F.3d 1225, 1131-1132 (10th Cir. 1999) Langley v. Ryder, 778 F.3d 1092, 1095 (5th Cir. 1985); Cheyenne-Arapaho Tribes of Oklahoma v. State of Oklahoma., 618 F.2d 665, 667-668 (10th Cir. 1980).
Plaintiffs suggest that a transfer of land pursuant to Section 5108 only impacts title to land, not jurisdiction over it. Plaintiffs are wrong. "When 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." Upstate Citizens for Equality, Inc. v. United States, 841 F.3d at 569 (emphasis added); see Venetie, 552 U.S. at 528-529 ("Congress [can] exercise jurisdiction over" lands "validly set apart for the use of the Indians" that are "under the superintendence of the" United States.); see also Stop the Casino 101 Coalition v. Brown, 230 Cal.App.4th 280, 289 (Cal. Ct. App. 2014) (citing City of Roseville v. Norton, 219 F.Supp.2d 130 (D.D.C. 2002)) ("[A]cceptance by the federal government of land in trust for an Indian tribe thereby confers jurisdiction on the tribe.") Contrary to Plaintiffs' contentions, transfer of jurisdiction from a State to the Federal Government and an Indian tribe does not require consent by a state. See Nevada v. Hicks, 533 U.S. 353, 365 (2001) ("The States' inherent jurisdiction on reservations can of course be stripped by Congress."); City of Roseville, 219 F.Supp.2d at 130.
When the Secretary takes land into trust for an Indian tribe, some but not all jurisdiction is transferred from the State to the Indian tribe and the Federal Government. The fee-to-trust determination does not result in the Federal Government or an Indian tribe holding exclusive jurisdiction over the land.
No review of the history of the land is required to determine whether North Fork exercises jurisdiction over the Madera Site. That basis for supplementation of the record is rejected.
The Court must next ask whether the supplementation material is relevant for determining whether North Fork exercises sufficient "governmental power" over the Madera Site. See 25 U.S.C. § 2703(4). "The term is undefined in IGRA and `the case law considering this 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)); accord Kansas v. United States, 249 F.3d 1213, 1228 (10th Cir. 2001).
What is clear from case authority is that exercise of governmental power requires more than a tribe's "theoretical authority"; it requires "the presence of concrete manifestations of . . . authority." Massachusetts v. Wampanoag Tribe of Gay Head, 853 F.3d 618, 625 (1st Cir. 2017); State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 703 (1st Cir. 1994).
All of the documents with which Plaintiffs seek to supplement the record relate to events that predate or happened concurrently with the Secretary's fee-to-trust determination. Prior to the fee-to-trust acquisition of the Madera Site, North Fork could not have exercised governmental authority over the land. Plaintiffs recognize as much. Doc. 32 at 2 ("Absent jurisdiction, the exercise of governmental power is, at best ineffective, and at worst, invasion." (citation omitted)) Plaintiffs have presented no argument to suggest that any of the proposed supplementation materials weigh on whether North Fork exercised governmental power of the Madera Site when the Secretary set conditions under which North Fork could conduct gaming. For that reason, insofar as Plaintiffs moves to supplement the record to show that the Secretary failed to consider evidence relevant to North Fork's exercise of governmental power over the Madera Site, that motion will be denied.
Based on the foregoing, Plaintiff's motion to supplement the administrative record is DENIED.
IT IS SO ORDERED.