Confederated Tribes of Siletz Indians of Oregon v. U.S.

• Decision Date: 13 June 1997
• Docket Number: 94-35373,94-35374,Nos. 94-35304,s. 94-35304
• Citation: 110 F.3d 688
• Parties: 97 Cal. Daily Op. Serv. 2359, 97 Cal. Daily Op. Serv. 4500, 97 Daily Journal D.A.R. 4231, 97 Daily Journal D.A.R. 7480 CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON, Plaintiff-Appellant-Cross-Appellee, v. UNITED STATES of America; United States Department of Interior; Bureau of Indian Affairs; John D. Leshy, Defendants, and United States of America; United States Department of Interior; Tom Sansonnetti; Bruce Babbitt, Secretary of the Department of Interior; Ada E. Deer, Assistant Secretary of the Department of Interior for Indian Affairs, Defendants-Appellees-Cross-Appellants, and John Kitzhaber, Governor of the State of Oregon; State of Oregon, Defendants-Intervenors-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 688

110 F.3d 688

97 Cal. Daily Op. Serv. 2359, 97 Cal. Daily

Op. Serv. 4500,

97 Daily Journal D.A.R. 4231,

97 Daily Journal D.A.R. 7480

CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON Plaintiff-Appellant-Cross-Appellee, v. UNITED STATES of America; United States Department of Interior; Bureau of Indian Affairs; John D Leshy, Defendants and United States of America; United States Department of Interior; Tom Sansonnetti; Bruce Babbitt, Secretary of the Department of Interior; Ada E. Deer, Assistant Secretary of the Department of Interior for Indian Affairs Defendants-Appellees-Cross-Appellants, and John Kitzhaber, Governor of the State of Oregon; State of Oregon, Defendants-Intervenors-Appellees-Cross-Appellants.

Nos. 94-35304, 94-35373, 94-35374.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted July 10, 1995.

Submission Withdrawn April 4, 1996.

Resubmitted March 20, 1997.

Decided March 31, 1997.

As Amended on Denial of Rehearing and Rehearing En Banc

June 13, 1997.

Craig J. Dorsay, Meyer & Wyse, Portland, OR, for plaintiffs-appellants-cross-appellee.

David C. Shilton, United States Department of Justice, Washington, DC, for defendants-appellees-cross-appellants.

Michael D. Reynolds, Assistant Solicitor General and Elizabeth S. Harchenko, Assistant Attorney General, Salem, OR, for defendants-intervenors-appellees-cross-appellants.

Bruce R. Greene, Greene, Meyer & McElroy, Boulder, CO, for amicus Sault Ste. Marie Tribe of Chippewa Indians.

Thomas F. Gede, Assistant Attorney General, Sacramento, CA, for amici states.

Appeals from the United States District Court for the District of Oregon, James M. Burns, District Judge, Presiding. D.C. No. CV-92-01621-JMB.

Before HUG, Chief Judge, GOODWIN, Circuit Judge, and SCHWARZER, ^* District Judge.

HUG, Chief Judge:

This appeal concerns the interpretation of a provision of the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2719. That Act precludes most gaming on land acquired in trust for an Indian tribe after 1988, unless one of several exceptions applies. The exception pertinent to this case permits such gaming provided (1) that the Secretary of the Interior determines that it is in the best interests of the tribe and not detrimental to the surrounding community and (2) that the Governor of the state concurs in that determination. The Secretary denied the gaming application of the Confederated Tribes of Siletz Indians of Oregon ("the Tribes") because the Governor did not concur in the Secretary's favorable determination. The Tribes brought this action to contest the Secretary's denial of their application. The district court entered summary judgment upholding the denial of the application. The principal issue raised in this case is whether the requirement of the Governor's concurrence violates the Appointments Clause or the separation of powers principles under the United States Constitution. In affirming, we hold that it does not.

I.

The Confederated Tribes of Siletz Indians of Oregon (the "Tribes") contest the denial of their application to have land taken in trust for their benefit for the purpose of establishing a gaming facility. The Secretary of the Interior denied the Tribes' application because, pursuant to 25 U.S.C. § 2719(b)(1)(A) of IGRA, gaming on newly acquired trust land requires the concurrence of the Governor of the state in which the trust land is located, and the Governor of the State of Oregon refused to concur. The Tribes filed in the district court an action seeking reversal of the Secretary's denial of their application and the State of Oregon intervened.

The district court found that the Governor's concurrence provision of IGRA, 25 U.S.C. § 2719(b)(1)(A), violates both the Appointments Clause and separation of powers principles because it allows a state governor to "veto" findings made by the Secretary of the Interior. The Tribes were nonetheless denied relief. The district court held that because the remaining portion of section 2719(b)(1)(A) could not function independently in a manner consistent with the intent of Congress, the entire section 2719(b)(1)(A) must be severed from IGRA.

The Tribes appealed the district court's judgment, claiming that the district court erred by severing the entire exception provision of the statute. The United States cross-appealed, contending that the district court erred in finding the Governor's concurrence provision unconstitutional, but agreeing with the Tribes that the district court erred in severing too much of the statute. The State of Oregon, as intervenor, also cross-appealed, agreeing with the United States that the district court erred in finding the Governor's concurrence provision unconstitutional, but contending that if the requirement were unconstitutional, the court was correct in its severance order. We have jurisdiction of these appeals pursuant to 28 U.S.C. § 1291, and we affirm the judgment of the district court on different grounds. We uphold the Secretary's denial of the Tribe's trust application because § 2719(b)(1)(A) does not violate either the Appointments Clause or separation of powers principles.

II.

The Confederated Siletz Tribes of Oregon applied to the Secretary of the Interior to have land taken in trust for the purpose of gaming. The Secretary of the Interior is authorized to take land in trust for the benefit of an Indian tribe

(1) when the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or within a tribal consolidation area; or, (2) when the tribe already owns an interest in the land or, (3) when the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing.

25 C.F.R. § 151.3(a) (authorized by 25 U.S.C. § 465). ¹ Gaming on Indian land, including trust land, is governed by IGRA. IGRA was the outgrowth of several years of discussions and negotiations seeking a method to allow the states to be involved in the regulation of Indian gaming in light of the Supreme Court's decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). See S.Rep. 446, 100th Cong., 2d Sess. 1-2, reprinted in 1988 U.S.C.C.A.N. 3071, 3071-72. Section 2719(a) of IGRA states:

Except as provided in subsection (b) of this section, gaming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988...

Section 2719(b) provides a number of exceptions to the general prohibition. The exception at issue in this case is section 2719(b)(1)(A), which reads:

(1) Subsection (a) of this section will not apply when--

(A) the Secretary, after consultation with the Indian tribe and appropriate State, and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination ....

(emphasis added.)

The Tribes first approached the Bureau of Indian Affairs ("BIA") in March 1992, with their proposal to have land taken in trust for the purpose of gaming. The land at issue is a 16-acre tract of land near Salem, Oregon, 50 miles from the Tribes' reservation. The BIA requested comments on the proposal from the County and the City of Salem. On April 20, 1992, the Governor submitted objections to the proposal.

In June 1992, the Tribes submitted their formal application to have the land taken in trust. The BIA again solicited comments from the County, the City of Salem, the Governor, and other local tribes. In October 1992, the Governor again submitted objections to the application. On November 6, 1992, the Secretary of the Interior found that the proposal was in the best interest of the Tribes and not detrimental to the community and sought the Governor's concurrence in his determination. The Governor refused to concur. On December 21, 1992, the Secretary denied the Tribes' application on the ground that the Governor did not concur in this determination. The Secretary invited the Tribes to reapply for acquisition of the land in trust for nongaming purposes.

The Tribes filed an action to challenge the denial of their application. The district court held that the language in section 2719(b)(1)(A), requiring the state governor's concurrence, violated the Appointments Clause and separation of powers principles. Confederated Tribes of Siletz Indians v. United States, 841 F.Supp. 1479, 1489 (D.Or.1994). The district court also held that section 2719(b)(1)(A) must be severed in its entirety in order to be consistent with the intent of Congress to permit gaming on such newly acquired territory only with the State's concurrence. Id. at 1490-91. It therefore denied the Tribes' appeal of the Secretary's denial of their trust application because there was no longer an exception to section 2719(a) through which they could establish gaming on newly acquired lands. Id. at 1491.

III.

We review the constitutionality of a statute de novo. United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 747 (9th Cir.1993), cert. denied, 510 U.S. 1140, 114 S.Ct. 1125, 127 L.Ed.2d 433 (1994).

When reviewing congressional enactments, such as IGRA, for constitutional infirmities, we give "great weight to the decision of Congress." Fullilove v. Klutznick, 448 U.S. 448, 472, 100 S.Ct. 2758, 2772, 65 L.Ed.2d 902 (1980). In addition, a court is obligated, whenever possible, to interpret a statute in a manner which renders it constitutionally valid. Communications Workers of America v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 2657, 101 L.Ed.2d 634 (1988). "When [a federal court] is asked to invalidate a statutory provision that has...