Confederated Tribes of the Grand Ronde Cmty. of Or. v. Jewell

• Decision Date: 29 July 2016
• Docket Number: No. 14-5326,C/w 15-5033,14-5326
• Citation: 830 F.3d 552
• Parties: Confederated Tribes of the Grand Ronde Community of Oregon, Appellant v. Sally Jewell, in her Official capacity as Secretary of the United States Department of the Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

830 F.3d 552

Confederated Tribes of the Grand Ronde Community of Oregon, Appellant

v.Sally Jewell, in her Official capacity as Secretary of the United States Department of the Interior, et al., Appellees.

No. 14-5326

C/w 15-5033

United States Court of Appeals, District of Columbia Circuit.

Argued March 18, 2016

Decided July 29, 2016

Lawrence Robbins, Washington, DC, argued the cause for appellants Confederated Tribes of the Grand Ronde Community of Oregon. With him on the briefs were Gary A. Orseck, and Daniel N. Lerman, Washington, DC.

Benjamin S. Sharp, Washington, DC, argued the cause for appellants Clark County, Washington, et al. With him on the briefs were Jennifer A. MacLean, Donald C. Baur, Eric D. Miller, Brent D. Boger, Vancouver, WA, and Christine M. Cook.

John L. Smeltzer, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were John C. Cruden, Assistant Attorney General, and Elizabeth Ann Peterson, Attorney.

Robert D. Luskin argued the cause for intervenor-appellee the Cowlitz Indian Tribe. With him on the brief were V. Heather Sibbison, Suzanne R. Schaeffer, and Kenneth J. Pfaehler, Washington, DC.

Craig J. Dorsay, Portland, OR, was on the brief for amicus curiae Samish Indian Nation in support of federal appellee Sally Jewell, Secretary of the United States Department of the Interior, and intervenor-appellee Cowlitz Indian Tribe.

Elliott A. Milhollin, Gregory A. Smith, Washington, DC, and Geoffrey D. Strommer, Portland, OR, were on the brief for amici curiae United South and Eastern Tribes, Inc. and Jamestown S'Klallam Tribe in support of intervenor-appellee.

Before: Pillard and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.

Wilkins

, Circuit Judge:

The Cowlitz are an American Indian tribe from southwestern Washington state. After refusing to sign a land cession treaty with the United States in 1855, President Lincoln by 1863 proclamation opened its land to non-Indian settlement. Without a land base, the Cowlitz scattered, and for decades federal Indian policy reflected a mistaken belief that they no longer existed as a distinct communal entity. After a formal process for federal acknowledgment came into being in 1978, the Cowlitz at last gained legal status as a tribe in the eyes of the government in 2002. Reconsidered Final Determination for Federal Acknowledgment of the Cowlitz Indian Tribe, 67 Fed. Reg. 607 (Jan. 4, 2002)

. Immediately thereafter, they successfully petitioned the Department of the Interior to take into trust and declare as their “initial reservation” a parcel of land. The Cowlitz wish to use this parcel for tribal government facilities, elder housing, a cultural center, as well as a casino.

Two groups of Plaintiff-Appellants bring challenges under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. ,

to the Interior Secretary's decision to take the land into trust and to allow casino-style gaming. One group¹ is comprised of Clark County, Washington, homeowners and community members in the area surrounding the parcel, as well as competing gambling clubs and card rooms (collectively, “Clark County”). Another is the Confederated Tribes of the Grand Ronde Community of Oregon (“Grand Ronde”), which owns and operates a competing casino. The District Court consolidated the actions, allowed the Cowlitz to intervene and, in reviewing cross-motions for summary judgment, ruled in favor of the Secretary and the Cowlitz. See Confederated Tribes of the Grand Ronde Cmty. v. Jewell , 75 F.Supp.3d 387 (D.D.C. 2014)

.

For the reasons that follow, we affirm the judgment of the District Court. The Secretary reasonably interpreted and applied the Indian Reorganization Act (“IRA”), 25 U.S.C. § 461 et seq. ,

to conclude that the Cowlitz are a “recognized Indian tribe now under Federal jurisdiction,” 25 U.S.C. § 479. The Secretary also reasonably determined that the Cowlitz meet the “initial-reservation” exception to the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq . Lastly, we reject Appellants' remaining claims of error under the IRA, the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. , and 25 C.F.R. § 83.12(b) (1994), based on the Secretary's alleged failure independently to verify the Tribe's business plan and membership figures.

I.

The 1934 IRA was meant “to promote economic development among American Indians, with a special emphasis on preventing and recouping losses of land caused by previous federal policies.” Mich. Gambling Opposition v. Kempthorne , 525 F.3d 23, 31 (D.C. Cir. 2008)

. Whereas a prior policy of allotment sought “to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large,” Cty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation , 502 U.S. 251, 254, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992), Congress enacted the IRA, among other things, to “conserve and develop Indian lands and resources,” Pub. L. No. 383, 48 Stat. 984, 984 (1934). As part of this effort, the statute permits the Secretary of the Interior to accept lands into federal trust for “Indians.” 25 U.S.C. § 465.

There are three ways to qualify as an “Indian” under the IRA, which extends to:

[1] [A]ll persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction ...

[2] [A]ll persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and ...

[3] [A]ll other persons of one-half or more Indian blood.

25 U.S.C. § 479

. In Carcieri v. Salazar, the Supreme Court held that the word, “now,” unambiguously limits the first definition to members of those tribes that were under federal jurisdiction in the year 1934. 555 U.S. 379, 391, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009). In so holding, it did not pass on the exact meaning of “recognized” or “under Federal jurisdiction.” These two terms are at the heart of our case.

Appellants challenge whether the Cowlitz qualify as “Indians” under the IRA because another statute—the IGRA—permits gaming on land that the Secretary takes into trust on behalf of Indians pursuant to the IRA. 25 U.S.C. § 2719

. For

lands acquired after October 17, 1988, there is a blanket prohibition on IGRA-regulated gaming, id. § 2719(a)

, unless the land meets certain statutory criteria, id. § 2719(b). Pertinent to our case, the IGRA contains an exception for land acquired as part of “the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process”—the so-called “initial-reservation” exception. Id. § 2719(b)(1)(B)(ii). Another exception—for so-called “restored lands”—applies where land has been acquired as part of “the restoration of lands for an Indian tribe that is restored to Federal recognition.” Id. § 2719(b)(1)(B)(iii). These exceptions “ensur[e] that tribes lacking reservations when [the] IGRA was enacted are not disadvantaged relative to more established ones.” City of Roseville v. Norton , 348 F.3d 1020, 1030 (D.C. Cir. 2003). For the whole point of the IGRA is to “provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” Diamond Game Enters. v. Reno , 230 F.3d 365, 366–67 (D.C. Cir. 2000) (quoting 25 U.S.C. § 2702(1) ).

After an Indian Claims Commission (“ICC”)² decision concluded that the federal government had “deprived the Cowlitz Tribe of its aboriginal title as of March 20, 1863, without the payment of any consideration therefor,”³ 25 Ind. Cl. Comm. 442, 463 (June 23, 1971), it was not until years later in 2002 that the Tribe gained federal acknowledgment.⁴ Final Determination to Acknowledge the Cowlitz Indian Tribe, 65 Fed. Reg. 8,436 (Feb. 18, 2000)

; 67 Fed. Reg. at 607. The federal acknowledgment process requires an applicant group to show, inter alia , that it has existed as a distinct community since 1900. See 25 C.F.R. § 83.11(b). The acknowledgment conferred on the Cowlitz legal status as an Indian tribe, thereby qualifying them for the protection, services, and benefits afforded by the federal government to Indian tribes. Felix S. Cohen's Handbook of Federal Indian Law 134 (2012 ed.) [hereinafter Cohen].

The same day the Cowlitz gained federal acknowledgment, they submitted an application to Interior requesting that it accept into trust and declare a 151.87-acre parcel of land their “initial reservation.” The parcel is located in Clark County, Washington, closest to the town of La Center, and is approximately 24 miles from the Tribe's headquarters in Longview, Washington, 30 minutes from Portland, Oregon, and 20 minutes from Vancouver, Washington. Grand Ronde's casino, in comparison, is located approximately 65 miles from Portland. The parties dispute the Cowlitz's historical connections to the parcel, but at least agree that it is 14 miles south of Cowlitz aboriginal territory, where the tribe exercised exclusive use and occupancy.

As part of the tribal gaming approval process, while the initial-reservation request and land-into-trust petition were pending with Interior, the National Indian Gaming Commission (“NIGC”)⁵ issued a 2005 Opinion suggesting that the parcel also could qualify for the IGRA's restored-lands exception.⁶ The Bureau of Indian Affairs next prepared a draft environmental impact statement (“DEIS”) and final environmental impact statement (“FEIS”) in 2006 and 2008, respectively. See 42 U.S.C. § 4332(C)

(requiring a detailed environmental impact statement for “major Federal actions significantly affecting the quality of the human environment”). In 2010, the Secretary initially approved the land-trust application, and declared the land to be the initial reservation of the Cowlitz. Following a separate APA challenge and remand, Interior issued a revised record of decision (“ROD”) in April 2013 that, among other things,...