WILLIAM M. SKRETNY, Chief Judge.
On March 31, 2009, Plaintiffs commenced this action challenging the legality of a gambling casino operated by the Seneca Nation of Indians ("SNI") in the city of Buffalo (the "Buffalo Parcel"). Their Motion for Summary Judgment, now before the Court, has been fully briefed by the parties and by amicus SNI.
This action is the third lawsuit commenced by largely the same plaintiffs, who have sought the same relief in their successive suits—i.e., a declaration that Indian gaming in Buffalo is unlawful. Each lawsuit alleges violations of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702 et seq., and in each, the plaintiffs have claimed that certain decisions and actions by the defendants were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.
To persons familiar with these serial actions, many of the facts and legal principles discussed below will have a familiar ring; they relate to disputes addressed in prior cases. To the extent new arguments and authority are presented in support of ongoing disputes, those matters are addressed herein. In addition, one new and critical dispute has surfaced regarding the National Indian Gaming Commission's ("NIGC") approval of the SNI's new gaming ordinance. Whereas the parties had agreed in prior suits that the SNI's Buffalo Parcel is subject to an IGRA prohibition against gaming on land acquired after October 17, 1988, that is no longer the case. Defendants have revisited their interpretation of the statute, and now conclude that the IGRA prohibition does not apply to the Buffalo Parcel. Because the Court agrees that Defendants' revised interpretation comports with Congress's clear intent, Plaintiffs' motion is denied in its entirety, and this case is dismissed.
Two statutes have been central to plaintiffs' claims—the Indian Gaming Regulatory
Congress enacted IGRA in 1988 to establish a comprehensive statutory scheme governing gambling on Indian lands. 25 U.S.C. §§ 2701-2721.
The statute provides for three classes of gaming on Indian land, each of which is subject to a different level of regulation. § 2710. The SNI has repeatedly sought to conduct class III gaming on the Buffalo Parcel. This is the "most heavily regulated and most controversial form of gambling" under IGRA, Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 715 (9th Cir.2003), and includes, inter alia, slot machines, games such as baccarat, blackjack, roulette, and craps, and sport betting, parimutuel wagering and lotteries, § 2703(8) and (7)(B); 25 C.F.R. § 502.4. For class III gaming to be lawful: (1) the governing body of the tribe having jurisdiction over the "Indian land" on which it wishes to conduct its gambling operation must authorize class III gaming by adopting an "ordinance" or resolution; (2) the Chairman of the National Indian Gaming Commission ("NIGC" or "Commission") must approve the ordinance; (3) the state in which the "Indian land" is located must permit such gaming; and (4) the gaming must be conducted in conformance with a "tribal-state compact" that regulates such gaming. § 2710(d)(1).
In this case, as in the preceding cases, Plaintiffs maintain that the SNI does not have jurisdiction over the Buffalo Parcel; even if it does, the Parcel is subject to a statutory prohibition against gaming; and the Parcel does not fall within any exception to that prohibition. Two IGRA provisions are at the core of this dispute. First is the statute's definition of Indian lands as:
§ 2703(4) (emphasis supplied). Next is section 20 of IGRA,
In its suits, the plaintiffs have challenged the applicability of these provisions to the Buffalo Parcel, which the SNI purchased in 2005 with funds it received through the Seneca Nation Settlement Act of 1990.
For more than a century prior to SNSA's enactment, the SNI had leased land on its Allegany Reservation
In 1969, the New York State legislature created the Salamanca Indian Lease Authority ("SILA") as a public benefit corporation authorized to negotiate and enter into a new lease with the SNI for all leased reservation lands underlying the city. N.Y. PUB. AUTH. LAW §§ 1790-99. Approximately twenty years of lease negotiations ensued, and finally concluded in May 1990. Fluent v. Salamanca Indian Lease Authority, 847 F.Supp. 1046, 1049-50 (W.D.N.Y.1994). A condition of the lease renewal agreement was that the federal and state governments agree to pay to the SNI a total of $60 million, an amount believed to approximate the difference between the rents the SNI had actually received over the previous 99 years and the fair market rental value of the leased land over that same time period. The federal government was asked to pay $35 million, and the state government $25 million. Id. at 1050; see also, S. REP. No. 101-511, at 23 (1990). Both governments agreed to do so, and Congress passed "An Act to provide for the renegotiation of certain leases of the Seneca Nation, and for other purposes," 104 Stat. 1292 (1990), to which it assigned the short title "Seneca Nation Settlement Act of 1990."
The SNSA requires that the SNI use five million dollars of the United States' payment for economic and community development. Id. § 1774d(b)(2). The bulk of the payment—$30,000,000—was to be "managed, invested, and used . . . as determined by the Nation in accordance with [its] Constitution and laws. . . ." Id. § 1774d(b)(1). The SNSA permits the SNI to acquire with SNSA funds land that is "within its aboriginal area in the State
Id. Land that is held in restricted fee status cannot be sold, leased, or otherwise conveyed without the approval of the federal government. § 177.
On August 18, 2002, the SNI and the State of New York executed a Tribal-State Gaming Compact (the "Compact") for the conduct of class III gaming at three locations in New York State, one of which was a then-unidentified site to be purchased in the city of Buffalo. The Compact reflects the SNI's intent to use funds it received under SNSA to purchase that land.
Once signed, gaming compacts are forwarded to the Interior Secretary, who may approve, disapprove or take no action on it. § 2710(d)(8). "If the Secretary does not approve or disapprove a compact [within] 45 days after the date on which the compact is submitted to the Secretary for approval, the compact shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with [IGRA]." § 2710(d)(8)(c).
In this particular instance, the Compact was deemed approved by virtue of then-Secretary Norton's decision not to approve or disapprove it. In a letter to the SNI, Norton opined that land to be purchased with SNSA funds would be "Indian lands" within the meaning of IGRA, and would fall within the "settlement of a land claim" exception to IGRA's general prohibition on gaming on lands acquired after 1988. (Docket No. 58-21 at 6-7.) The Secretary nonetheless declined to affirmatively approve the Compact because of policy concerns over its likely impact on the proliferation of off-reservation gaming development. (Id. at 2.) The SNI went on to purchase the Buffalo Parcel, consisting of approximately 9 acres, in October 2005. It gave notice to the State of New York and local governments in accordance with § 1774f(c), and the Parcel assumed restricted fee status by operation of law on December 2, 2005.
The plaintiffs' first lawsuit, filed in January 2006, challenged former-Secretary Norton's conclusions that the Buffalo Parcel was "Indian lands" which fell within the "settlement of a land claim" exception, and also the NIGC Chairman's 2002 decision to approve the SNI's ordinance. Citizens Against Casino Gambling in Erie County v. Kempthorne (CACGEC I). In January 2007, the Court found no indication in the record that the NIGC Chairman had considered the threshold jurisdictional question
Thereafter, in July 2007, the Chairman concluded that the Buffalo Parcel is gaming eligible Indian land, and he approved an amended ordinance the SNI had enacted on June 9, 2007. The plaintiffs commenced their second lawsuit on July 12, 2007, urging that the Buffalo Parcel is not "Indian country" over which the SNI has jurisdiction and, even if it were, the Parcel does not fall within the settlement of a land claim exception to the general prohibition against gaming on newly acquired land. Citizens Against Casino Gambling in Erie County v. Hogen, 07-CV-00451-WMS (CACGEC II). Here, the Court concluded the Buffalo Parcel is Indian country, but is not gaming eligible land.
IGRA provides that NIGC "shall promulgate such regulations and guidelines as it deems appropriate to implement the provisions of [25 U.S.C. §§ 2701-19]." § 2706(b)(10). In 1992 and 1993, the Commission published regulations establishing certain definitions, requirements, and procedures relative to the conduct of gaming under IGRA.
Several years later, in 2000, the Bureau of Indian Affairs ("BIA") published a proposed rule to establish "procedures an Indian tribe must follow in seeking a Secretarial determination [under § 2719(b)(1)(A)]" that a gaming establishment on newly acquired land would be in the best interest of the tribe and its members, and would not be detrimental to the surrounding community. 65 Fed.Reg. 55471 (Aug. 25, 2000). Comments on the proposed rule were permitted until November 13, 2000, and later reopened and extended until March 27, 2002. 66 Fed. Reg. 66847 (Dec. 27, 2001); 67 Fed.Reg. 3846 (Jan. 28, 2002). Thereafter, the proposal lay dormant for several years.
On October 5, 2006, the BIA published an amended proposed rule, with the expanded purpose of setting out "procedures that the Department of the Interior will use to determine whether class II or class III gaming can occur on land acquired in trust for an Indian tribe after October 17, 1988." 71 Fed.Reg. 58769, 58772 (Oct. 5, 2006). The BIA explained it was "publishing a new proposed rule because [it] determined that the rule should address not
After CACGEC II was decided and the new regulations became effective, the SNI submitted to NIGC a second amended gaming ordinance for the Buffalo Parcel. In a letter dated November 14, 2008, NIGC's Acting General Counsel advised DOI of the submission and made the following request:
(Docket No. 58-38, BIA-AR000034.) In response, DOI forwarded to NIGC a Solicitor's M-Opinion, M-37023, dated January 18, 2009, which acknowledged that the new regulations were a departure from the DOI's prior position on restricted fee lands, and discussed reasons for that change of position. (Docket No. 58-8.) Two days later, on January 20, 2009, the NIGC Chairman approved the SNI's ordinance, affirming "NIGC's intent to follow the regulations, including the interpretation that excludes restricted lands from the general prohibition of gaming on after acquired lands." (Docket No. 58-4 at 5.) The Chairman went on to conclude that the Buffalo Parcel, held in restricted fee, is not subject to section 20's after-acquired land prohibition at all and, even if it were, the Buffalo Parcel was acquired as part of the settlement of a land claim and would be excepted from the prohibition. (Docket No. 58-4.)
The instant lawsuit followed, and Plaintiffs challenge the Buffalo Parcel's status as Indian lands, the validity of the new regulations, and the NIGC's ordinance approval. In their three claims for relief, Plaintiffs maintain that: 1) the Parcel is not Indian country and does not fall within IGRA's definition of Indian lands; 2) even if it were Indian land, it is subject to IGRA's prohibition against gambling on newly acquired land; and 3) the Parcel's acquisition does not qualify for the settlement of a land claim exception.
On June 15, 2009, Defendants moved to dismiss the first claim, which Plaintiffs supported by way of three discrete arguments. On March 30, 2010, the Court granted Defendants' motion in part.
When deciding a motion for summary judgment under Rule 56, the court must draw all justifiable inferences from the record in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.1995). Summary judgment will be granted when the moving party demonstrates that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). While a material question of fact is to be reserved for a jury, questions of law are appropriately decided on a motion for summary judgment. Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Where, as here, the moving party "seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The `entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir. 2001) (citations omitted). More specifically, "[t]he question whether an agency's decision is arbitrary and capricious . . . is a legal issue." Connecticut v. United States DOC, 04cv1271, 2007 U.S. Dist. LEXIS 59320, at *2 (D.Conn. Aug. 15, 2007). Thus, in the agency review context, Plaintiffs' claims that Defendants acted in an arbitrary and capricious manner, or made determinations that are contrary to law, are legal questions that can be resolved on review of the agency record and/or the governing statutes, regardless of whether the questions are presented in the context of a motion to dismiss or in a motion for summary judgment. University Med. Ctr. v. Shalala, 173 F.3d 438, 441 n. 3 (D.C.Cir. 1999) (citations omitted).
The APA provides that a reviewing court must "set aside agency action" that is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(a).
When a court is asked to review an agency's construction of the statute it administers, its review is guided by the principles announced in Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Supreme Court has directed that a court must first employ "traditional tools of statutory construction" to determine whether Congress has expressed its intent on the question before the court. Id. at 842, n. 9, 104 S.Ct. 2778.
Id. at 842-43, 104 S.Ct. 2778; accord, Bacolitsas v. 86th & 3rd Owner, LLC, 702 F.3d 673, 683 n. 5 (2d Cir.2012) (because statute is unambiguous, court need not rely on agency's implementing regulations).
A unique canon of construction applies to statutory provisions involving Indians. Under this canon, "[s]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985); Connecticut ex rel. Blumenthal v. United States DOI, 228 F.3d 82, 92 (2d Cir.2000). Absent ambiguity, however, this canon cannot be used to expand upon or disregard the clear intent of Congress. Negonsott v. Samuels, 507 U.S. 99, 110, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) (citing South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 506, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986)).
In what remains of their first claim for relief, Plaintiffs allege that the Buffalo Parcel is neither "Indian country" nor "Indian lands."
Indian country is defined as:
18 U.S.C. § 1151. "Generally speaking, primary jurisdiction over land that is Indian country rests with the Federal Government and the Indian tribe inhabiting it, not with the States." Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 527 n. 1, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (citation omitted); see also, Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509, 511, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (tribes are "domestic dependent nations" that have inherent sovereign authority over their members and the Indian country that is validly set apart for their use).
In CACGEC II, the parties agreed that tribes have territorial authority over "Indian country," and that territorial jurisdiction must exist before a tribe can validly exercise its governmental power over the land. Plaintiffs had maintained that the Buffalo Parcel is not "Indian country," and Defendants urged that it is. After considering the parties' extensive arguments, the Court concluded that the Buffalo Parcel is "Indian country," such that the SNI has primary jurisdiction over the land.
When Plaintiffs set out the same allegations here, Defendants moved to dismiss based on collateral estoppel and res judicata. The Court concluded Defendants
While the Court was compelled to conclude that Plaintiffs are now positioned to take another bite at this apple, that fact alone is not reason to address arguments and authority already fully considered. For example, Plaintiffs recycle arguments and case law they presented in CACGEC II in support of their ongoing contention that, in enacting SNSA, Congress did not intend to transfer to the SNI primary jurisdiction over land it might purchase with SNSA funds. (Docket No. 58-2 at 40-47.) All such repetitive arguments are rejected for the reasons fully stated in CACGEC II.
Plaintiffs do offer one new case in support of their argument that sovereignty does not rest in the SNI. They cite Hawaii v. Office of Hawaiian Affairs, a 2009 United States Supreme Court decision, for the proposition that a congressional transfer of sovereignty must be express, not inferred or implied. 556 U.S. 163, 129 S.Ct. 1436, 173 L.Ed.2d 333 (2009). The case involved a joint resolution of Congress which, inter alia, "apologized" to Native Hawaiians for the overthrow of the Kingdom of Hawaii and "acknowledged" the resultant suppression of the inherent sovereignty of the Native Hawaiian people. Id. at 168-69, 129 S.Ct. 1436. The Hawaii State Supreme Court found that Congress had thereby divested Hawaii of its sovereign authority to sell or transfer public lands until potential native claims to the land were resolved. The United States Supreme Court reversed, finding that the resolution's conciliatory and precatory terms were "not the kind that Congress uses to create substantive rights—especially those that are enforceable against the co sovereign States." Id. at 173, 129 S.Ct. 1436.
Plaintiffs have made no attempt to reconcile the conciliatory language at issue in Hawaii with the SNSA's directive terms, which authorize payment to the SNI, permit the Nation to use funds to acquire land, and provide an avenue for the land to be placed under governmental protection against alienation and removed from state and local tax rolls. This Court found, in CACGEC II, that the SNSA does precisely what Plaintiffs contend is required; it expresses an intent to transfer sovereignty to the SNI in language mirroring that of other statutes that have been found to effect such transfers. 2008 WL 2746566, at *42-45, 2008 U.S. Dist. LEXIS 52395, at *141-48. Plaintiffs point to nothing in Hawaii that warrants revising that conclusion.
The two additional cases Plaintiffs cite in their reply brief reinforce, rather than call into question, the CACGEC II conclusion on this issue. The SNI has jurisdiction over the Buffalo Parcel because Congress expressly provided for transfer, after giving the state and local governments opportunity to comment. See Miami Tribe of Oklahoma v. United States, 656 F.3d 1129, 1145 (10th Cir. 2011) (jurisdiction is established by federal authority and derives from the will of Congress). Conversely, where no expression of congressional intent or purpose exists, a tribe cannot establish jurisdiction through its unilateral actions. See Oklahoma v. Hobia, 2012 WL 2995044, 2012 U.S. Dist. LEXIS 100793 (July 20, 2012) (landless Kialagee Tribal Town did not obtain jurisdiction
Plaintiffs next urge the Court to take another look at its prior Indian country analysis because "the administrative record reflects that DOI [now] views the definition of `Indian country' to be irrelevant to the definition of `Indian lands.'" (Docket No. 58-2 at 47 (citing Docket No. 58-38, BIA-AR000500; 73 Fed.Reg. 29354, 29357).) From there, they conclude that the Court's Indian country analysis in CACGEC II was neither necessary to, nor dispositive of, the question of jurisdiction over the Buffalo Parcel. This argument mischaracterizes the administrative record. Defendants consistently have stated that there is a two-step process to determine whether restricted fee land is "Indian lands" within the meaning of IGRA. The initial inquiry is whether the tribe has territorial jurisdiction over the land, and the "Indian country" analysis is directed to this question. The next inquiry involves the tribe's relationship to the land. "Indian country" held by a tribe in restricted fee is not "Indian lands" for purposes of IGRA unless the tribe actually asserts its governmental power over the land.
In support of their argument that DOI has changed its view on the import of the "Indian country" analysis, Plaintiffs point to its refusal to adopt 18 U.S.C. § 1151's definition of reservation in its section 20 regulations. (Docket No. 58-2 at 47-48.) But one need only look to section 20's purpose to understand that Plaintiffs' argument lacks merit. As noted, Defendants consider the "Indian country" analysis central to the question of jurisdiction. IGRA's section 20, however, does not come into play until after tribal jurisdiction has been established and it is determined that the land in question is "Indian lands" for purposes of IGRA.
One question addressed under section 20 is whether, for purposes of gaming eligibility, a newly acquired parcel of trust land (over which a tribe necessarily has jurisdiction) is within, or contiguous to the tribe's reservation boundaries as they existed on October 17, 1988. § 2719(a)(1). Because there is no need to revisit the question of jurisdiction to make this geographic determination, DOI found no need to reference or incorporate 18 U.S.C. § 1151's definition of reservation. In short, the statements Plaintiffs' point to are unrelated to the subject of jurisdiction and do not represent a change in position.
Finally, in their reply, Plaintiffs urge that the Supreme Court's decision in City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005), "effectively uncouples the Indian country issue from the jurisdiction question." (Docket No. 65 at 8-9.) The Court disagrees. City of Sherrill involved various parcels of city land purchased by the Oneida Nation in the late 1990s. The parcels were within the tribe's historic reservation area, but last possessed by the tribe in 1805. 544 U.S. at 202, 125 S.Ct. 1478. The Oneidas refused to pay property taxes, claiming sovereignty over the reacquired parcels, and the district court concluded the parcels were not taxable. The Second Circuit affirmed, ruling that the land had been set aside by treaty for the Oneida's use, and Congress had not since acted to diminish or disestablish
Significantly, the Supreme Court did not disturb the Second Circuit's conclusion that a historic reservation that was never disestablished remains "Indian country," but it did reverse on other grounds. The Court found that the reestablishment of Indian sovereign control over land that had undergone significant development in the intervening centuries, had been part of the tax base throughout, and was located in an area populated overwhelmingly by non-Indians, "would have disruptive practical consequences" that rendered a shift in governance inequitable. Id. at 221, 125 S.Ct. 1478. There is nothing in this holding that signals a carte blanche rejection of the long established relationship between "Indian country" and tribal jurisdiction. Rather, the decision suggests that the facts of a particular case and equitable principles are properly considered where, though jurisdiction historically remains with a tribe, it has not occupied the land or exercised governmental authority over it for centuries. This result is a far cry from "effectively uncoupling" the Indian country definition from the jurisdictional question in all instances.
For the reasons stated, the Court finds there is no need to revisit the necessity for, our outcome of, the CACGEC II Indian country analysis. The Court previously concluded that the Buffalo Parcel is sovereign territory, and after considering Plaintiffs' new arguments, it confirms that holding today.
As discussed above, Plaintiffs previously challenged the Buffalo Parcel's status as "Indian lands" based solely on their assertion that SNSA did not transfer primary jurisdiction to the SNI. Here, they advance a new argument and urge that a historical understanding of how trust and restricted fee lands came to exist compels but one conclusion; Congress "inten[ded] to limit Indian gambling [to] lands that were subject to aboriginal jurisdiction as of the enactment of IGRA." (Docket No. 58-2 at 40.)
The history of Indian land holdings was discussed in detail in CACGEC II, and is summarized here for the convenience of those who may be unfamiliar with the prior cases. Early in America's history, Native Americans, through treaty negotiations, relinquished vast territories to the United States or the States. Some tribes retained reserved land within their aboriginal territory, others were removed westward to new land in exchange for their aboriginal holdings. Statutes enacted during this period understood "Indian lands" to include lands that tribes may cede to the United States by treaty. § 152, 5 Stat. 135 (1837).
In the latter 1800s, there was a shift in U.S. policy. The government abandoned treaty making in favor of allotment and assimilation. Under the General Allotment Act of 1887, tribe members gave up their ownership interest in commonly held reservation land for an individual land allotment that either was held by the government in "trust" for the Indian, or by the Indian in "restricted fee." §§ 331 et seq., 24 Stat. 388. The land remained in trust or restricted status for a specified
The allotment policy persisted until 1934, when Congress passed the Indian Reorganization Act ("IRA"). §§ 461 et seq., 48 Stat. 984. Among other things, the IRA was directed toward stemming the loss of Indian land that had resulted from allotment. The statute put an end to the granting of allotments, § 461, extended indefinitely all existing periods of trust or restriction on remaining allotments, § 462, and authorized the Secretary to restore surplus lands to tribal ownership, § 463, permit the transfer of restricted Indian lands to the tribe, § 464, and acquire land in the name of the United States in trust for an Indian tribe or individual Indian, § 465. A number of statutes enacted after the IRA include a definition of "Indian lands" quite similar to IGRA, § 81, 114 Stat. 46 (2000); § 407d, 70 Stat. 721 (1956); § 1680n, 106 Stat. 4589 (1992).
Plaintiffs now urge that, by including non-reservation trust and restricted fee lands in IGRA's "Indian lands" definition, Congress was necessarily referring to historical land holdings and thereby intended to limit gaming to lands over which tribes had "aboriginal" or "preexisting"
The Court is not persuaded for the simple reason that "trust lands" clearly are not limited to historical allotments. To the contrary, the IRA's trust provision remains the long standing method by which new lands, both on and off reservation, are acquired for the benefit of Indians. As Defendants and amicus correctly observe, Plaintiffs' interpretation would render at least a portion of IGRA superfluous. Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (expressing "a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment"); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) (courts look to the statutory language at issue as well as the language and design of the statute as a whole). Section 20 expressly prohibits gaming on lands acquired by the Secretary in trust after October 17, 1988. § 2719(a). If, as Plaintiffs maintain, Congress intended the term "Indian lands" to itself prohibit gaming on trust lands acquired after IGRA's enactment, the section 20 prohibition serves no purpose.
Plaintiffs also point to Carcieri v. Salazar in support of their argument that Congress intended to take a purely historic view of "Indian lands." 555 U.S. 379, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009). In that case, the State of Rhode Island challenged the Secretary's authority to accept into trust a 31-acre parcel of land adjacent to the Narragansett tribe's existing land.
Plaintiffs do not attempt to explain Carcieri's relevance to IGRA's definition of "Indian lands." They point to no limiting language in § 2703(4)—such as "now," "presently," "aboriginal," or "preexisting"—to support their assertion that only lands that were under tribal governance on October 17, 1988 can qualify as "Indian lands." To the contrary, the definition is written entirely in the present tense and it expansively includes "all" and "any" lands falling within the categories specified.
For fee land to qualify as "Indian lands," it need only be "held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power." § 2703(4). Thus, the Court rejects Plaintiffs' contention that land meeting this criteria is not "Indian lands" simply because it was acquired after 1988.
As was the case in CACGEC II, Plaintiffs do not contest the NIGC's finding that, since purchasing the Buffalo Parcel, the SNI has exercised its tribal governmental authority over the land. Accordingly, as in CACGEC II, Plaintiffs have offered no basis upon which the Court can conclude that the Parcel is not "Indian lands" within the meaning of IGRA.
The fact that land acquired after 1988 may qualify as "Indian lands" does not mean that the land is gaming eligible. IGRA's section 20 sets forth circumstances in which gaming on newly acquired land is prohibited, and the meaning and scope of its provisions are now at issue. In their second claim, Plaintiffs urge that, even assuming the Buffalo Parcel is Indian lands, it is subject to section 20's prohibition against gaming on lands purchased after October 17, 1988.
Section 20 states, in pertinent part:
§ 2719(a) (emphasis added). Defendants maintain that the plain language of this provision limits the prohibition to trust lands only, and so it does not apply to the Buffalo Parcel.
This dispute is a matter of first impression. In CACGEC II the parties agreed that, notwithstanding the prohibition's specific reference to "trust" lands, Congress intended that it would also apply to newly-acquired
(Docket No. 58-21 at 6-7.) The NIGC also adopted this view when it approved the SNI's amended gaming ordinance.
The BIA's proposed regulations, published on October 5, 2006, adhered to the same interpretation:
71 Fed.Reg. 58769, 58773 (emphasis supplied). Defendants continued to advance this position, and did not deviate from it, in litigating CACGEC II.
The only opposition to this view appeared in the SNI's CACGEC II amicus brief. The Nation urged that IGRA must be interpreted in accord with its plain text, which compels the conclusion that Congress intended the section 20 prohibition to apply only to trust lands. But, as was noted earlier in CACGEC II, absent exceptional circumstances, amicus curiae cannot implicate issues not presented by the parties. 471 F.Supp.2d 295, 311 (W.D.N.Y. 2007). The Court accepted the parties' unified position that the term "in trust," as used in the section 20 prohibition, included both trust and restricted fee land. Because the parties were in accord on this issue and the SNI did not argue exceptional circumstances, any discussion of this issue in CACGEC II is necessarily dicta.
While Defendants did not put this issue into dispute in CACGEC II, it did alter its position during the pendency of that litigation. During that time, the BIA removed all reference to restricted fee land from its final regulations, published May 20, 2008, and stated its revised position that section 20, by its plain language, applies only to
Now that section 20's meaning is squarely at issue, Plaintiffs urge that congressional intent is clear, and the Court need not go beyond Chevron's step one to confirm that, as the parties agreed in CACGEC II, IGRA generally prohibits gaming on all newly acquired Indian land. They further maintain that, even were the statute ambiguous, neither the DOI's nor the NIGC's new interpretation is entitled to deference.
Defendants, too, argue that congressional intent is clear, but they reach the opposite conclusion—that the section 20 prohibition applies to trust land only. And, they contend, even assuming ambiguity, their revised interpretation is a reasonable construction of the statute. In this regard, the NIGC Chairman concluded that his "new interpretation is superior and entitled to deference" because the change "presently only affects one tribe," and the new reading conforms to the plain language of the statute, resolves any ambiguity in favor of Indian tribes, and "frees restricted land from section 2719's prohibition, thus promoting, rather than inhibiting, IGRA's objective to encourage tribal economic development." (Docket No. 58-4 at 12, 18-19.)
To answer questions of congressional intent, Chevron directs courts to first apply the "traditional tools of statutory construction" and determine if intent is clear. 467 U.S. at 842, n. 9, 104 S.Ct. 2778. There are many such tools, but prime among them is a plain text reading of the statute. As discussed fully below, having fully considered the parties' arguments, the Court finds that Congress intended that section 20 apply only to lands held in trust.
Much of Plaintiffs' briefing is devoted to challenging the DOI's interpretation of the phrase "in trust" as set forth in the section 20 regulations. They do so by arguing that the BIA's new regulations are invalid and, alternatively, that the regulations are not entitled to deference. In particular, Plaintiffs urge that DOI lacks authority to issue legislative regulations under IGRA,
None of these issues need be resolved here. Even assuming, arguendo, the rulemaking process was somehow defective, or the regulations not entitled to deference, that would not be the end of the matter. The final agency action here, as in CACGEC II, is the NIGC's approval of the SNI's gaming ordinance. Thus, it is the validity of the NIGC's interpretation and application of section 20 that is determinative of Plaintiffs' challenge to SNI gaming on the Buffalo Parcel.
When NIGC received the SNI's second amended gaming ordinance, it asked DOI for a description of its policy reasons for altering its position on section 20's applicability to restricted fee land. NIGC noted that "if the Chairman is to approve the [SNI's] gaming ordinance on the grounds that section 2719 does not apply to restricted fee land, he must provide a reasoned analysis for this new interpretation." (Docket No. 58-38, BIA-AR000034.)
The DOI responded with the Solicitor's M-Opinion. Therein, the DOI observed that the phrase "`in trust' has a common
In moving for summary judgment on this issue, Plaintiffs maintain that: 1) NIGC's reliance on DOI's revised position was unreasonable; 2) the Chairman considered the "in trust" language in isolation, without regard to congressional intent; and 3) the Chairman's stated reasons for his changed position are unsupportable. Each argument is addressed below.
Plaintiffs first urge that the Chairman should not have relied on DOI's revised position because its regulatory drafting team was tasked with devising regulations "of general applicability." (Docket No. 58-2 at 31.) NIGC, on the other hand, was required to consider section 20 in the "unique fact specific context" of SNSA, as former-Secretary Norton had done in 2002. (Id.) It is quite evident, on the face of the Chairman's ordinance approval, that NIGC fully considered Secretary Norton's earlier reasoning, which NIGC had previously adopted, in his analysis. Thus, the charge of error in this regard is without merit.
In support of their second argument, Plaintiffs generally maintain the Chairman abused his discretion by failing to take into account "the language and design of IGRA as a whole, its legislative history, and the impact of SNSA on [section 20]." (Id. at 32.) They contend that former-Secretary Norton understood the necessity for such an approach when, in 2002, she concluded that Congress did not intend to limit section 20 "to only per se trust acquisitions" because such a construction would undermine IGRA's regulatory regime.
It is evident here that both DOI and NIGC considered the body of Indian law existing at the time of IGRA's passage and thereafter. The DOI's M-Opinion confirms that: "[s]ince 1934, . . . the Secretary has had broad authority under the [IRA] to acquire lands . . . in trust . . ., [but] the Secretary lacks any general authority to place restrictions on lands tribes acquire in fee."
It is this conclusion that Plaintiffs dispute, and they maintain the Chairman abused his discretion when he changed the position he had taken in his earlier ordinance approval. There, the Chairman had found that section 20 can only sensibly be read to include both trust land and restricted fee lands because, otherwise, tribes could avoid the prohibition against gaming by taking land into restricted fee and creating exceptions Congress likely did not intend. (Docket Nos. 58-2 at 33; 58-7 at 4.) Based on what he then viewed as a loophole that would permit gaming in circumstances Congress had not envisioned, the Chairman found section 20 was ambiguous, and went on to provide a "reasonable interpretation" that would resolve the perceived conflict. (Docket No. 58-7 at 4.) See Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) ("Ambiguity is a creature not of definitional possibilities but of statutory context").
As part of his analysis in the current ordinance approval, the Chairman revisited his previously stated concern that tribes might go out and purchase new land in fee and then claim the acquisitions are "Indian lands" eligible for gaming. Citing CACGEC II, 2008 WL 2746566, at *40-41, 2008 U.S. Dist. LEXIS 52395, at *135-36, the Chairman observed that "the Non-intercourse Act [§ 177] does not apply to off reservation fee land acquired by a tribe outside of Indian country,"
A matter the Chairman did not discuss, but implicitly recognized, is that there are circumstances in which tribes may acquire fee land that is in "Indian country." One question, then, is whether tribes have the potential to circumvent IGRA by acquiring such land. The Court finds City of Sherrill instructive in this regard. 544 U.S. 197, 125 S.Ct. 1478. As previously discussed, the Oneida Nation purchased land within a reservation that had never been disestablished. The Circuit Court concluded the reacquired land was "Indian country" subject to tribal jurisdiction. While the Supreme Court did not disturb the "Indian country" determination, it considered the equities involved in reestablishing Indian sovereignty over land that had been under state and local control for almost two centuries, and reversed on the Circuit's holding on jurisdiction.
In light of City of Sherrill, it seems evident that a tribe's long-dormant sovereignty is not presumptively revived where it reacquires "Indian country."
Finally, Plaintiffs urge that it may be necessary, in the course of construing the meaning of a statute, to consider the implications of a later statute. They quote extensively from FDA v. Brown & Williamson Tobacco Corp. for this proposition, and suggest the Chairman erred when he failed to consider the impact of the later-enacted SNSA on section 20's meaning. 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).
Brown & Williamson involved regulations promulgated by the FDA concerning the "promotion, labeling, and accessibility to children and adolescents" of tobacco products. Id. at 128, 120 S.Ct. 1291. The Court was asked to determine whether the FDA has authority, under the Federal Food Drug, and Cosmetic Act ("FDCA"), to regulate in this area. In discussing statutory construction, the Court observed that an existing statute "may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand," id. at 132, 120 S.Ct. 1291, and that "`a specific policy embodied in a later federal statute should control our construction of the [earlier] statute, even though it has not been expressly amended,'" id. at 143, 120 S.Ct. 1291 (quoting United States v. Estate of Romani, 523 U.S. 517, 530-31, 118 S.Ct. 1478, 140 L.Ed.2d 710 (1998)). After considering 35 years of post-FDCA legislation, in which Congress enacted several tobacco-specific statutes and repeatedly reserved to itself exclusive policymaking authority with regard to cigarettes, the Court concluded that the FDA lacked authority to promulgate regulations regulating tobacco products. Brown & Williamson, 529 U.S. at 148-55, 120 S.Ct. 1291.
The present case is readily distinguished. IGRA was enacted to establish a regulatory scheme governing the conduct of all Indian gaming. SNSA is a later-enacted statute that is neither a statute of general applicability
As Plaintiffs correctly note, the specific question of whether gaming can occur on the Buffalo Parcel does not end with the section 20 analysis. Because a subsequent statute, SNSA, permits the SNI to acquire new "Indian lands," the Court must look to that Act to determine whether Congress also addressed the issue of gaming on such lands. In this regard, the NIGC Chairman concluded that: "if and when Congress enacts a law which allows a tribe to have restricted fee land, it intends for such land to be eligible for gaming under IGRA unless Congress explicitly provides to the contrary." (Docket No. 58-4 at 20.)
When Congress passes a specific, narrow statute permitting an action that is otherwise unavailable under law, any restrictions on that action must necessarily be addressed in the new statute. As the SNI observes in its amicus brief, Congress has "amply demonstrated its ability" to address Indian gaming in tribe specific legislation. (Docket No. 62 at 26.)
One example is the Rhode Island Indian Claims Settlement Act, enacted in 1978 to effectuate the resolution of land claims brought by the Narragansett Tribe of Indians. §§ 1701 et seq. At that time, the Narragansett Tribe was not acknowledged by the federal government, and so the settlement lands were to be acquired, held, and managed by a state corporation. §§ 1706, 1707(c). The Tribe received federal recognition in 1983, and thereafter requested that the Secretary take the settlement lands into trust. Carcieri v. Salazar, 555 U.S. at 384-85, 129 S.Ct. 1058. In 1996, Congress amended the Settlement Act to provide that: "[f]or purposes of the Indian Gaming Regulatory Act . . ., [Narragansett] settlement lands shall not be treated as Indian lands." § 1708. In short, even assuming the Secretary's trust acquisition fell within a section 20 exemption or exception, no gaming could occur there. See also, Alabama Coushatta Restoration Act, § 737(a) (1987 (pre-IGRA)) ("All gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe.").
Similarly, where, as in SNSA, Congress provides for the creation of new "Indian lands" in a manner not contemplated in section 20, the land is gaming eligible under IGRA unless Congress provides otherwise. There is no such statement of intent in SNSA, express or implied, nor has Congress acted, in the many years this dispute has been pending, to limit gaming on land acquired with SNSA funds.
In CACGEC II, the Court accepted the position taken by Defendants in that litigation—
At that time, there was no regulatory definition of "land claim" in effect. The Court, in concluding SNSA did not settle a "land claim," applied what it found was the least restrictive definition of the term Congress could have intended—i.e., the possession of an enforceable right to relief against the United States, whether or not that right had ever been asserted. 2008 WL 2746566, at *56, 2008 U.S. Dist. LEXIS 52395, at *186. The parties agreed that any enforceable right against the United States relating to the SNSA land leases would have arisen from the Nonintercourse Act. Id. at *57, 2008 U.S. Dist. LEXIS 52395 at *189. But, as fully discussed in CACGEC II, prior to the SNI's negotiation of the 99-year leases discussed in SNSA, Congress had expressly authorized the SNI to negotiate its Salamanca leases without the need for formal treaty or convention, thereby taking the land outside the Nonintercourse Act, 25 U.S.C. § 177. Id. at *57-58, 2008 U.S. Dist. LEXIS 52395 at *191-202. In short, the Act could not be the source of an enforceable right giving rise to a land claim.
The BIA's final regulations now define a "land claim" as:
25 C.F.R. § 292.2. The regulations further provide that the "settlement of a land claim" exception applies if the land at issue is:
25 CFR 292.5
In his most recent ordinance approval, the Chairman acknowledges that "NIGC is bound by [the CACGEC II] decision unless it is overturned on appeal." (Docket No. 58-4 at 20.) He opines, nonetheless, that, if the Court were to reject the government's revised interpretation of the section 20 prohibition, the Buffalo Parcel's acquisition "would meet the requirements of section 2719's settlement of a land claim exception under the new regulations." (Id. at 21.) Plaintiffs' third claim for relief is directed to this statement.
The Court has thoroughly reviewed the arguments presented by the parties and
For the reasons stated, Plaintiffs' motion is denied in its entirety and this case is dismissed.
IT HEREBY IS ORDERED that Plaintiffs' Motion for Summary Judgment (Docket No. 58) is DENIED.
FURTHER, that the Clerk of the Court is directed to enter Judgment in favor of Defendants and to close this case.
SO ORDERED.
