Citizens Against Casino Gambling in Erie Cnty. v. Chaudhuri

• Decision Date: 15 September 2015
• Docket Number: 13–2777.,Nos. 11–5171,11–5466,13–2339,s. 11–5171
• Parties: CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY, Joel Rose and Robert Heffern, as Co–Chairpersons; D. Min. G. Stanford Bratton, Reverend, Executive Director of the Network of Religious Communities ; Network of Religious Communities ; National Coalition Against Gambling Expansion; Preservation Coalition of Erie County, Incorporated; Coalition Against Gambling in New York–Action, Incorporated; Campaign for Buffalo–History Architecture & Culture; Sam Hoyt, Assemblyman; Maria Whyte; John McKendry; Shelley McKendry; Dominic J. Carbone; Geoffrey D. Butler; Elizabeth F. Barrett; Julie Cleary; Erin C. Davison; Alice E. Patton; Maureen C. Schaeffer; Joel A. Giambra, Individually and as Erie County Executive ; Keith H. Scott, Sr., Pastor; Dora Richardson; and Josephine Rush, Plaintiffs–Appellants–Cross–Appellees, v. Jonodev Osceola CHAUDHURI, in his official capacity as Chairman of the National Indian Gaming Commission; The National Indian Gaming Commission; Sally Jewell, in her official capacity as Secretary of the Interior; and The United States Department of the Interior, Defendants–Appellees–Cross–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

802 F.3d 267

CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY, Joel Rose and Robert Heffern, as Co–Chairpersons; D. Min. G. Stanford Bratton, Reverend, Executive Director of the Network of Religious Communities ; Network of Religious Communities ; National Coalition Against Gambling Expansion; Preservation Coalition of Erie County, Incorporated; Coalition Against Gambling in New York–Action, Incorporated; Campaign for Buffalo–History Architecture & Culture; Sam Hoyt, Assemblyman; Maria Whyte; John McKendry; Shelley McKendry; Dominic J. Carbone; Geoffrey D. Butler; Elizabeth F. Barrett; Julie Cleary; Erin C. Davison; Alice E. Patton; Maureen C. Schaeffer; Joel A. Giambra, Individually and as Erie County Executive ; Keith H. Scott, Sr., Pastor; Dora Richardson; and Josephine Rush, Plaintiffs–Appellants–Cross–Appellees

v.Jonodev Osceola CHAUDHURI, in his official capacity as Chairman of the National Indian Gaming Commission; The National Indian Gaming Commission; Sally Jewell, in her official capacity as Secretary of the Interior; and The United States Department of the Interior, Defendants–Appellees–Cross–Appellants.^*

Nos. 11–5171

11–5466

13–2339

13–2777.

United States Court of Appeals, Second Circuit.

Argued: Jan. 16, 2015.

Decided: Sept. 15, 2015.

Cornelius D. Murray, O'Connell and Aronowitz, P.C., Albany, NY, for Plaintiffs–Appellants–Cross–Appellees.

Katherine J. Barton, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C. (Michael Hoenig, Office of General Counsel, National Indian Gaming Commission, Washington, D.C.; Andrew S. Caulum, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; Robert G. Dreher, Sam Hirsch, Acting Assistant Attorney General; William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, NY; Mary E. Fleming, Assistant United States Attorney, Western District of New York, Buffalo, NY; Gina L. Allery, John L. Smeltzer, United States Department of Justice, Environment & National Resources Division, Washington, D.C., on the brief), for Defendants–Appellees–Cross–Appellants.

Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI (Christopher Karns, General Counsel, Seneca Nation of Indians, Salamanca, NY; Carol E. Heckman, Harter, Secrest & Emery, LLP, Buffalo, NY; David A. Giampetroni, Lucy Wells Braun, Philip H. Tinker, Kanji & Katzen, PLLC, Ann Arbor, MI, on the brief), for the Seneca Nation of Indians as amicus curiae in support of Defendants–Appellees–Cross–Appellants.

Before: KATZMANN, Chief Judge, LOHIER and DRONEY, Circuit Judges.

Opinion

DRONEY, Circuit Judge:

The plaintiffs-appellants (“plaintiffs”) are organizations and individuals that oppose the operation of a casino in Buffalo, New York, by the Seneca Nation of Indians. They brought three successive lawsuits in the United States District Court for the Western District of New York against the National Indian Gaming Commission (“NIGC”), its Chairman, the U.S. Department of the Interior (“DOI”), and the Secretary of the Interior. In these three actions, the plaintiffs argued that the NIGC did not act in accordance with federal law in approving an ordinance and subsequent amendments to that ordinance that permitted the Seneca Nation to operate a class III gaming facility—a casino—on land owned by the Seneca Nation in Buffalo (“the Buffalo Parcel”). In the third lawsuit (“CACGEC III ”), which addressed the NIGC's approval of the most recent version of the ordinance, the district court (Skretny, J. ) denied the plaintiffs' motion for summary judgment and entered judgment dismissing the case.

We hold that the district court correctly dismissed the plaintiffs' complaint in CACGEC III because the DOI and the NIGC's determination that the Buffalo Parcel is eligible for class III gaming under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701 –2721, was not arbitrary or capricious, an abuse of discretion, or in violation of law. We further hold that Congress intended the Buffalo Parcel to be subject to tribal jurisdiction, as required for the land to be eligible for gaming under IGRA. Finally, we hold that IGRA Section 20's prohibition of gaming on trust lands acquired after IGRA's enactment in 1988, 25 U.S.C. § 2719(a), does not apply to the Buffalo Parcel. Because the gaming ordinances at issue in the first two lawsuits (“CACGEC I ” and “CACGEC II ”) have been superseded by the most recent amended ordinance, the appeals of CACGEC I and CACGEC II are moot. Accordingly, we AFFIRM the judgment of the district court in CACGEC III and dismiss the appeals of CACGEC I and CACGEC II .

BACKGROUND

This appeal has a long history that, as mentioned above, includes three lawsuits. While much of that background is described here, a more detailed history can be found in the district court's prior opinions in those cases. See Citizens Against Casino Gambling in Erie Cty. v. Kempthorne, 471 F.Supp.2d 295 (“CACGEC I ”), amended on reconsideration by No. 06–CV–0001, 2007 WL 1200473 (W.D.N.Y. Apr. 20, 2007) ; Citizens Against Casino Gambling in Erie Cty. v. Hogen, No. 07–CV–451 (WMS), 2008 WL 2746566 (W.D.N.Y. July 8, 2008) (“CACGEC II ”); Citizens Against Casino Gambling in Erie Cty. v. Stevens, 945 F.Supp.2d 391 (W.D.N.Y.2013) (“CACGEC III ”).

I. Statutory Background

Understanding the factual and procedural background of this appeal requires familiarity with two statutory schemes: the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 –2721, and the Seneca Nation Settlement Act of 1990 (“SNSA”), 25 U.S.C. §§ 1774 –1774h.

A. The Indian Gaming Regulatory Act

Congress enacted IGRA in 1988 “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.” 25 U.S.C. § 2702(1). IGRA established independent federal regulatory authority and federal standards for gaming on Indian lands. See id. § 2702(3). It also established the NIGC as a commission within the DOI to monitor gaming and promulgate regulations and guidelines to implement IGRA. See id. §§ 2704(a), 2706(b).

IGRA authorizes gaming on “Indian lands,” which it defines as (1) “all lands within the limits of any Indian reservation” and (2) “any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or 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.”¹ Id. § 2703(4).

Three classes of gaming may be permitted on Indian lands, subject to different levels of regulation. See id. § 2710. At issue here is “class III” gaming, which is “the most closely regulated” form of gaming under IGRA. Michigan v. Bay Mills Indian Cmty., ––– U.S. ––––, 134 S.Ct. 2024, 2028, 188 L.Ed.2d 1071 (2014). It “includes casino games, slot machines, and horse racing.” Id.

Indian lands are eligible for class III gaming activities only if those activities are:

(A) authorized by an ordinance or resolution that—

(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands,

(ii) meets the requirements of subsection (b) of this section,² and

(iii) is approved by the Chairman [of the NIGC],

(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and

(C) conducted in conformance with a Tribal–State compact entered into by the Indian tribe and the State ... that is in effect.

25 U.S.C. § 2710(d)(1). In this way, IGRA “seeks to balance the competing sovereign interests of the federal government, state governments, and Indian tribes, by giving each a role in the regulatory scheme.” Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 715 (9th Cir.2003).

Section 20 of IGRA, however, prohibits gaming “on lands acquired by the Secretary [of the Interior] in trust for the benefit of an Indian tribe after October 17, 1988,” the date of IGRA's enactment. 25 U.S.C. § 2719(a). This prohibition is subject to some exceptions, including one of relevance here for subsequently acquired “lands [that] are taken into trust as part of ... a settlement of a land claim.” Id. § 2719(b)(1)(B)(i).

B. The Seneca Nation Settlement Act of 1990

1. The Seneca Nation of Indians

The Seneca Nation of Indians is one of the Six Nations of the Iroquois Confederacy. See Banner v. United States, 238 F.3d 1348, 1350 (Fed.Cir.2001) ; Seneca Nation of Indians v. New York, 206 F.Supp.2d 448, 458 (W.D.N.Y.2002), aff'd, 382 F.3d 245 (2d Cir.2004). Prior to the colonization of North America, the Iroquois Confederacy occupied approximately thirty-five million acres of land east of the Mississippi River, mostly in modern-day New York and Pennsylvania. See Banner, 238 F.3d at 1350.

By the end of the Revolutionary War, the Six Nations lost most of what has been referred to as their “aboriginal lands” to the European settlers. See id. The Senecas—who had been allied with Great Britain during the war—were largely driven from their villages and settled along the banks of Buffalo Creek in what is now Buffalo, New York. See Seneca Nation of Indians, 206 F.Supp.2d at 469, 471.

In 1790, Congress passed the first Indian Trade and Intercourse Act (“the Non–Intercourse Act”), ch. 33, 1 Stat. 137 (1790); see Mohegan Tribe v. Connecticut, 638 F.2d 612, 616 (2d Cir.1980). The Act provided that:

no sale of lands made by any Indians, or any nation or tribe of Indians ... within the United States, shall be valid to any person or persons, or to any state, ... unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.

Non–Intercourse Act § 4, 1 Stat. at 138. The Act's “obvious purpose” was “to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties, except the United States, without the consent of Congress, and to enable the Government, acting as...