Exposing Truth about Casinos v. Kempthorne

• Citation: 492 F.3d 460
• Decision Date: 03 July 2007
• Docket Number: No. 06-5354.,06-5354.
• Parties: CITIZENS EXPOSING TRUTH ABOUT CASINOS, a Michigan Non-Profit Corporation, Appellant v. Dirk KEMPTHORNE, in his Official Capacity as Secretary of the United States Department of the Interior, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

492 F.3d 460

CITIZENS EXPOSING TRUTH ABOUT CASINOS, a Michigan Non-Profit Corporation, Appellant v. Dirk KEMPTHORNE, in his Official Capacity as Secretary of the United States Department of the Interior, et al., Appellees.

No. 06-5354.

United States Court of Appeals, District of Columbia Circuit.

Argued May 14, 2007.

Decided July 3, 2007.

Appeal from the United States District Court for the District of Columbia (No. 02cv01754).

John J. Bursch argued the cause for appellant. On the briefs were Rebecca A. Womeldorf, Robert J. Jonker, Daniel P. Ettinger, and Joseph A. Kuiper.

Aaron P. Avila, Attorney, U.S. Department of Justice, argued the cause for appellees Dirk Kempthorne, et al. With him on the brief was Todd S. Aagaard, Attorney. Lisa E. Jones, Attorney, and R. Craig Lawrence, Assistant U.S. Attorney, entered appearances.

Reid Payton Chambers argued the cause for appellee Nottawaseppi Band of Huron Potawatomi Indians. With him on the brief were Mary J. Pavel, Arthur Lazarus, Jr., and Addie C. Rolnick. Vanessa L. Ray-Hodge entered an appearance.

Michael A. Cox, Attorney General, Attorney General's Office of the State of Michigan, Thomas L. Casey, Solicitor General, and Todd B. Adams, Assistant Attorney General, were on the brief of amici curiae State of Michigan and Michigan Governor Jennifer M. Granholm in support of appellee.

Before: SENTELLE, ROGERS and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In 2002, the Assistant Secretary of the Bureau of Indian Affairs of the Department of Interior decided to take 78.26 acres of farmland in Calhoun County, Michigan into trust for use by the Nottawaseppi Huron Band of Potawatomi Indians ("the Band") to construct and operate a Class III gambling casino under the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 et seq. This followed federal recognition of the Band in 1995. A non-profit Michigan membership organization — Citizens Exposing Truth About Casinos ("Citizens") — sued the Secretary and Assistant Secretary (hereafter, "the Secretary"), in part challenging the Secretary's determination that the proposed site was within the "initial reservation" exception, id. § 2719(b)(1)(B)(ii), to IGRA's general prohibition on gaming on trust land acquired after October 17, 1988, id. § 2719(a), and thus exempting it from the community protection provision in § 2719(b)(1)(A) before opening a casino at the site. Citizens now appeals the district court's grant of summary judgment to the Secretary, contending that in deferring to the Secretary's interpretation of the exception the district court ignored both the letter and intent of Congress. We affirm.

I.

Two statutes are relevant to this appeal, the first authorizing the Secretary to acquire lands for Indian tribes and the second authorizing the Secretary to regulate gaming on Indian reservations. After reviewing these statutes, we turn to the proceedings underlying this appeal.

A.

Under the Indian Reorganization Act ("IRA"), the Secretary may acquire lands for the purpose of providing land for Native Americans. 25 U.S.C. § 465. Title to such land is "taken in the name of the United States in trust for the . . . tribe or individual. . . for which the land is acquired." Id. The Secretary is authorized to designate such lands as part of the tribe's reservation. Id. § 467. Interior Department regulations provide that the Secretary may make in-trust acquisitions "[w]hen 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)(3). The regulations, as well as the Secretary's Guidelines on proclamation of reservations, define a "reservation" as "that area of land over which [the] tribe is recognized by the United States as having governmental jurisdiction." Id. § 151.2(f); 1997 Dep't of the Interior Guidelines for Proclamations ("Guidelines"). The Guidelines state that once such land is granted trust status, the Secretary can proclaim it to be a reservation and the tribe then may take advantage of special federal assistance; the proclamation also clarifies tribal jurisdiction over the trust property. Guidelines at 2.

IGRA, enacted in 1988, was designed "in large part 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,'" TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 865 (D.C.Cir.2006) (quoting 25 U.S.C. § 2702(1)), and "to ensure that the . . . tribe is the primary beneficiary of the gaming operation." 25 U.S.C. § 2702(2). A tribe may conduct gaming only on "Indian lands" within its jurisdiction. Id. § 2710(b)(1), (d)(1)(A)(I). "Indian lands" are defined as:

(A) all lands within the limits of any Indian reservation; and

(B) 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.

Id. § 2703(4). However, gaming regulated under IGRA may not be conducted on lands the Secretary acquired in trust for a tribe after October 17, 1988, unless one of the exceptions applies. One exception allows gaming when "lands are taken into trust as part of . . . the "initial reservation" of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process." Id. § 2719(b)(1)(B)(ii). The statute does not define "reservation" or "initial reservation." In 2001, Congress clarified that the Secretary is authorized under IGRA to determine whether specific land is a reservation for purposes of IGRA. See 2002 Dep't of the Interior and Related Agencies Appropriations Act, Pub.L. No. 107-63, § 134, 115 Stat. 414, 442-43 (2001) ("Appropriations Act").¹ Afterward, by Memorandum of Agreement, the Secretary and the National Indian Gaming Commission, which administers IGRA, 25 U.S.C. § 2706(b)(10), agreed that the Secretary is to determine whether a tribe meets one of IGRA's exceptions when the Secretary decides to take land into trust for gaming. See Mem. of Agreement between the Nat'l Indian Gaming Comm'n and the Dep't of the Interior (Feb. 26, 2007).

IGRA also addresses the effects on the local community where gaming will be conducted. Unless one of the exceptions applies, when a tribe wishes to conduct gaming on newly acquired lands, it must obtain the prior concurrence of both the Secretary and the appropriate State Governor that operating a casino on the tribe's land "would not be detrimental to the surrounding community." 25 U.S.C. § 2719(b)(1)(A).

B.

The Band is a descendent of the Potawatomi Tribe of Huron, Michigan, which signed treaties with the United States from 1795 through 1833. It unsuccessfully petitioned for federal recognition in 1934. Prior to federal recognition in 1995, the Band had been living on a 120-acre piece of property in Athens Township, Michigan since the mid-1840s. The property, Pine Creek, was privately acquired by the Band in the 1840s; as of 1995, fifteen members of the Band were living on it and 183 other members lived within a twenty mile radius of it. From 1845 the Governor of Michigan has arguably held title to the Pine Creek property on behalf of the Band, but the status of the property is in dispute because the State claims that it lacks authority to hold land in trust as a reservation for an Indian tribe. See Amicus Br. of the State of Mich. at 4. Although the Band calls the property home, the Band does not exercise governmental jurisdiction over the Pine Creek property, such as authority over land use, law enforcement, building codes, zoning, education, fire service, or judiciary. Neither the Secretary nor the State has recognized the property as Indian lands.

On December 11, 1999, the Band submitted an application for the Secretary to acquire several parcels of land under the IRA in trust for the Band. Ultimately, the Band only proceeded with one parcel, a 78.26 acre property known as the Sackrider property, located in Emmett Township in Calhoun County, Michigan. In May 2000, the Secretary sent consultation letters to the state and local governments with regulatory jurisdiction over the land, and three months later gave notice in the Federal Register of the intention to acquire the Sackrider property in trust for the Band, see 67 Fed.Reg. 51,867 (Aug. 9, 2002). The notice stated that the Band had no trust property at the time of its federal recognition in 1995 and that on December 13, 2000, the Associate Solicitor for Indian Affairs had opined that the Sackrider property was "within the geographical region anticipated as part of the Band's land base" and could be included in the initial proclamation of reservation because it would meet the requirements of the "initial reservation" exception in IGRA under 25 U.S.C. § 2719(b)(1)(B)(ii). 67 Fed.Reg. at 51,867 (citing Trust Acquisition for the Huron Potawatomi, Inc., Letter of Assoc. Solicitor at 2-3 (Dec. 13, 2000) ("2000 Op. Ltr.")).

On August 30, 2002, Citizens sued the Secretary, alleging that: (1) the Secretary had failed to comply with the National Environment Protection Act, 42 U.S.C. § 4321 et seq.; (2) there was no valid compact between the Band and the State with regard to acquisition of the 78.26 acre site; (3) the Secretary's authority to acquire land in trust for the Indians violated the non-delegation doctrine; and (4) the Sackrider property did not qualify for any of the exceptions to IGRA's general prohibition on gaming on trust lands acquired after October 17, 1998. On motions for summary judgment by the Secretary and by the Band, as intervenor, the district court granted the Secretary's motion on the statutory interpretation issue that is raised by Citizens on appeal....