Fort Sill Apache Tribe v. Nat'l Indian Gaming Comm'n, Civil Action No. 14-958 (ESH)
| Decision Date | 30 April 2020 |
| Docket Number | Civil Action No. 14-958 (ESH) |
| Citation | 459 F.Supp.3d 256 |
| Parties | FORT SILL APACHE TRIBE, Plaintiff, v. NATIONAL INDIAN GAMING COMMISSION, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
John P. Racin, Law Office of John P. Racin, Washington, DC, for Plaintiff.
Peter Kryn Dykema, U.S. Department of Justice, Washington, DC, for Defendants.
Plaintiff Fort Sill Apache Tribe (the "Fort Sill Apaches" or the "Tribe"), a federally recognized Indian tribe, brought this action against the National Indian Gaming Commission (the "NIGC"); Jonodev Chaudhuri, Chairman of the NIGC; the Department of the Interior ("DOI"); Ryan Zinke, Secretary of the Interior;1 Michael Black, Assistant Secretary of Indian Affairs; and the United States. The Tribe claims that the NIGC violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. , by ruling that gaming on the Tribe's lands at Akela Flats, New Mexico, would violate the Indian Gaming Regulatory Act (the "IGRA"), 25 U.S.C. §§ 2701 et seq. Before the Court are the parties' cross-motions for summary judgment. For the reasons stated herein, the Court will grant defendants' motion for summary judgment and deny the Tribe's motion.
Because this case implicates the federal government's formal acknowledgment of Indian tribes and a tribe's ability to conduct gaming on its lands, it is necessary to review the statutes and regulations governing these matters.
Historically, the federal government recognized Indian tribes through treaties, executive orders, and acts of Congress. Mackinac Tribe v. Jewell , 829 F.3d 754, 755 (D.C. Cir. 2016). Even with the passage of the Indian Reorganization Act (the "IRA") in 1934, federal recognition of Indian tribes "proceeded in an ad hoc manner, ... with the Bureau of Indian Affairs [ (the "BIA") ] reviewing petitions for federal recognition on a case-by-case basis." Id. at 756. "Finally, in 1978, [DOI] promulgated Part 83 of its regulations under the IRA (also known as the Federal Acknowledgment Process), which set out uniform procedures through which Indian groups could seek formal recognition." Id. "The[se] regulations established the first detailed, systematic process for review of petitions from groups seeking Federal acknowledgment." Procedures for Establishing That an American Indian Group Exists as an Indian Tribe, 59 Fed. Reg. 9,280, 9,280 (Feb. 25, 1994). The process set forth in Part 83 applied only to Indian tribes that had not achieved federal recognition and did not apply to those tribes "already [federally] acknowledged ... and ... receiving services from the [BIA]." 25 C.F.R. § 54.3(b) (1978).2 Additionally, the regulations required the Secretary of DOI (the "Secretary") to publish annually "a list of all Indian tribes which are recognized and receiving services from the [BIA]."3 25 C.F.R. § 54.6(b) (1978).
Congress enacted the 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). The IGRA allows Indian tribes to conduct or permit "Class II" and "Class III" gaming activities on eligible "Indian lands." 25 U.S.C. § 2710(b)(1), (d)(1). Section 20(a) of the IGRA, 25 U.S.C. § 2719(a), expressly prohibits such gaming "on Indian land taken into trust by the Secretary after IGRA's effective date, October 17, 1988, unless the land borders an existing reservation or is within the last recognized reservation of a tribe that was landless at the time IGRA was enacted (unless the tribe is in Oklahoma, in which case lands bordering [the tribe's] former reservation are exempted as well)." City of Roseville v. Norton , 348 F.3d 1020, 1024 (D.C. Cir. 2003). Section 20(a)'s prohibition is subject to two categories of exceptions provided for in Section 20(b). See 25 U.S.C. § 2719(b). The first, Section 20(b)(1)(A), allows the Secretary to permit gaming on lands otherwise prohibited by Section 20(a) under certain circumstances. The second exception, Section 20(b)(1)(B), which is relevant to this case, "exempts lands taken into trust as part of the ‘settlement of a land claim,’ ‘the initial reservation of an Indian tribe acknowledged by the Secretary,’ or the ‘restoration of lands for an Indian tribe that is restored to federal recognition.’ " City of Roseville , 348 F.3d at 1024 (describing 25 U.S.C. §§ 2719(b)(1)(B)(i), (b)(1)(B)(ii), (b)(1)(B)(iii) ).
The IGRA established the NIGC as an entity within DOI and charged it with ensuring that gaming on Indian lands is conducted consistent with the IGRA. 25 U.S.C. §§ 2704 – 06.4 The IGRA grants the Chairman of the NIGC the power "to levy and collect appropriate civil fines ... against the tribal operator of an Indian game or a management contractor engaged in gaming for any violation of any provision of [the IGRA]." 25 U.S.C. § 2713(a)(1) ; see also 25 U.S.C. § 2705 (). Tribes that are fined by the Chairman have the opportunity to appeal to the full NIGC. 25 U.S.C. § 2713(a)(2). Because the NIGC is part of DOI, the Secretary of DOI may review NIGC decisions. 43 C.F.R. § 4.5(a)(2).
The predecessors of the Fort Sill Apache Tribe, the Chiricahua and Warm Springs Apache Tribes (the "Chiricahua Apaches"), originated in what is now Arizona and New Mexico. (Administrative Record ("AR") 84) After the conclusion of the war between the United States and the Apache leader Geronimo and his people in the late nineteenth century, the United States Army took the Chiricahua Apaches as prisoners of war. (AR 3145) The Army forcibly relocated them to military prisons in Florida, Alabama, and, finally, Oklahoma, where they remained imprisoned until 1913. (AR 3146) Upon release, many members of the Chiricahua Apaches returned to New Mexico, but seventy-six members stayed in Oklahoma, resettled on land allotted in trust for the benefit of members of the three original tribes of Oklahoma—the Comanche, the Kiowa, and the Apache—(the "KCA Reservation"), and organized as the Fort Sill Apache Tribe. (AR 3146; AR 84) In 1976, the Commissioner of Indian Affairs formally approved the Tribe's Constitution and acknowledged the Tribe as federally recognized. (AR 85) The United States and the Tribe have maintained a government-to-government relationship since that time. (AR 3146)
In an effort to open a gaming facility, the Tribe sought to acquire land in trust on the KCA Reservation. (AR 79) In 1999, DOI transferred trust title in a 0.53-acre parcel on the KCA Reservation for the benefit of the Tribe. (Id. ) In 2005, the Comanche Nation of Oklahoma sued the United States challenging the land transfer as invalid because the government failed to seek Comanche approval beforehand (the "Comanche litigation"). See Compl., Comanche Nation v. United States , No. CIV-05-328, ECF No. 1 (W.D. Okla. Mar. 23, 2005). The Fort Sill Apache Tribe intervened in the lawsuit. (AR 80) In 2007, the three parties entered into a settlement agreement, in which the Tribe agreed to withdraw and abandon any applications for property on the KCA Reservation.6 (AR 81) In exchange, the government agreed "to accept and timely process" the Tribe's application for a reservation proclamation on land held in trust for the Tribe in Akela Flats, New Mexico, an area within the aboriginal lands of the Chiricahua Apaches.7 (AR 85)
A. The 2008 Opinion of the NIGC
Following the conclusion of the Comanche litigation, the Tribe sought to open a gaming facility on its Akela Flats territory. In response to requests for information from the NIGC in January 2008, the Tribe submitted documents in support of its plan to conduct gaming there. (AR 3138–39) In February 2008, the Acting General Counsel of the NIGC sent a letter to the Tribe stating her "preliminary view" that gaming at Akela Flats would violate the IGRA. (AR 3139–40) After further exchanges between the Tribe and the NIGC, on May 19, 2008, the Tribe withdrew its application to game at Akela Flats. (AR 3141) That same day, the Acting General Counsel of the NIGC issued an advisory opinion concluding that gaming on Akela Flats was barred by Section 20(a) of the IGRA and that the Tribe could not meet any of Section 20(b)'s exceptions (the "2008 Opinion"). (See AR 44–73) With regard to the IGRA's restored lands exception, 25 U.S.C. § 2719(b)(1)(B)(iii), the NIGC accepted the Tribe's claim that the federal government recognized both the Chiricahua Apaches and the Tribe but concluded that the Tribe failed to show that the government ever terminated its recognition of either tribe, a requirement of the exception. (AR 58–61) Specifically, the NIGC rejected the Tribe's argument that the imprisonment of the Chiricahua Apaches after Geronimo's surrender constituted a termination of the government-to-government relationship. (AR 59–60) The NIGC found that "the United States military forces' decision to take the Chiricahua [Apaches] as prisoners of war indicate[ed] that the Tribe was still considered a hostile but separate and sovereign entity." (AR 60)
The NIGC also concluded that Akela Flats failed to meet another requirement of the restored lands exception, namely, that its acquisition be part of a "restoration of lands." (AR 61–70) To determine whether the land met this requirement, the NIGC applied the three-factor balancing test used by courts, which analyzes "(1) the factual circumstances of the acquisition, (2) the location of the acquisition," and "(3) the temporal relationship of the acquisition to the tribal restoration." (AR 62) As to the first factor, the NIGC concluded that "the evidence does not support the idea that Akela Flats is part of the Tribe's initial attempts to reestablish...
To continue reading
Request your trial