Lac Courte Oreilles Band of Indians v. U.S.

• Decision Date: 29 April 2004
• Docket Number: No. 03-2323.,03-2323.
• Citation: 367 F.3d 650
• Parties: LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS OF WISCONSIN, Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin, and Sakaogon Chippewa Community, Mole Lake Band of Lake Superior Chippewa Indians, Plaintiffs-Appellants, v. UNITED STATES of America, United States Department of the Interior, Gale A. Norton, Secretary of the Department of the Interior, et al., Defendants-Appellees, James E. Doyle, Governor of the State of Wisconsin and State of Wisconsin, Intervening Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

367 F.3d 650

LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS OF WISCONSIN, Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin, and Sakaogon Chippewa Community, Mole Lake Band of Lake Superior Chippewa Indians, Plaintiffs-Appellants, v. UNITED STATES of America, United States Department of the Interior, Gale A. Norton, Secretary of the Department of the Interior, et al., Defendants-Appellees, James E. Doyle, Governor of the State of Wisconsin and State of Wisconsin, Intervening Defendants-Appellees.

No. 03-2323.

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2004.

Decided April 29, 2004.

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Robert H. Friebert (argued), Friebert, Finerty & St. John, Milwaukee, WI, for Plaintiffs-Appellants.

David C. Shilton (argued), Department of Justice, Washington, DC, for Defendants-Appellees.

John S. Greene, Thomas C. Bellavia (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Intervenors-Appellees.

Thomas F. Gede, Conference of Western Attorneys General, Sacramento, CA, for Amicus Curiae.

Before FLAUM, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

FLAUM, Chief Judge.

The Plaintiff Tribes appeal the district court's opinion and order declaring the gubernatorial concurrence provision of the Indian Gaming Regulatory Act ("IGRA") constitutional and not in violation of the federal government's trust obligation to Indians. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I. Background

Plaintiffs are three federally-recognized Indian Tribes with reservations in sparsely populated areas of northern Wisconsin ("the Tribes"). While each of the Tribes operates a casino on reservation land, these casinos do not generate income comparable to casinos operated by tribes who have reservations near Wisconsin's urban centers or destination resorts. Seeking to advance their tribal and economic development, the Tribes joined together for the purpose of establishing a jointly owned and operated off-reservation gaming facility in a lucrative location.

The Tribes found a struggling pari-mutuel greyhound racing facility in Hudson, Wisconsin that they wished to acquire and convert into a casino gaming facility. Hudson was attractive to the Tribes because they believed its proximity to the metropolitan areas of Minneapolis and St. Paul and easy accessibility to Interstate Highway 94 would ensure a broad customer base. In October 1992 the Tribes formally submitted their application under the Indian Gaming Regulatory Act ("IGRA") 25 U.S.C. §§ 2701 et seq. to the Department of the Interior seeking to have the Hudson property taken into trust for their benefit for the purpose of operating a casino gaming facility.

The Secretary of the Interior has broad discretion to acquire lands in trust for the benefit of Indian tribes pursuant to Indian Reorganization Act of 1934, 25 U.S.C. § 465. However, this authority is limited by IGRA, which prohibits certain types of gaming on lands acquired in trust by the Secretary of the Interior after October 17, 1988 ("after-acquired lands"). 25 U.S.C. § 2719(a). The Tribes hoped that their application would be favorably received pursuant to 25 U.S.C. § 2719(b)(1)(A), an exception to IGRA's general ban on gaming on after-acquired lands. That exception provides that the general prohibition on gaming shall not apply where:

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.

25 U.S.C. § 2719(b)(1)(A).

The Department of the Interior initially denied the Tribes' application, but later vacated the rejection following a lawsuit and settlement. In February 2001, the Department of the Interior issued findings that the proposal was in the best interests of the Tribes and would not be detrimental to the surrounding community. The Department of the Interior sent the matter to then Governor of Wisconsin Scott McCallum for his concurrence. In May 2001, Governor McCallum issued a letter declining to concur in the Secretary's findings, citing Wisconsin's general disapproval of off-reservation gaming and public policy of permitting only "limited exceptions to the general prohibition against gambling." Governor McCallum opined that the public interest would not be served by the addition of another major casino gaming facility to the seventeen casino gaming facilities already operating in Wisconsin. In June 2001, the Department of the Interior issued a final decision denying the Tribes' application on the grounds that, absent the Governor's concurrence, the exception provided in 25 U.S.C. § 2719(b)(1)(A) did not apply and 25 U.S.C. § 2719(a) precluded the acquisition of the land for the purposes of gaming.

The Tribes initiated this litigation in the United States District Court for the District of Columbia in May 2001 seeking a declaration that the gubernatorial concurrence provision of § 2719(b)(1)(A) was unconstitutional. The State of Wisconsin and Governor McCallum moved to intervene in July 2001. The Tribes moved for judgment on the pleadings in December 2001. The case was eventually transferred to the United States District Court for the Western District of Wisconsin in October 2002. The Tribes renewed their motion for judgment on the pleadings in November 2002, and both defendants filed cross-motions for judgment on the pleadings.¹ The Tribes filed an opposition to the defendants' motions in addition to a "conditional motion" to file a second amended complaint. The conditional motion requested that the Tribes be permitted to add a claim that Governor McCallum had relied on improper factors in refusing to concur, in the event that the court upheld the constitutionality of the gubernatorial concurrence provision of § 2719(b)(1)(A).

In April 2003, the district court granted the defendants' motions for judgment on the pleadings, finding that the gubernatorial concurrence provision is not an unconstitutional delegation of power, nor does it violate the separation of powers doctrine, the Appointments Clause, Art. II, § 2, or the Tenth Amendment. Further, the district court found that the Tribes' claim that the gubernatorial concurrence requirement represented a breach of trust was barred by sovereign immunity and was without support in law. Finally, the district court denied the Tribes' conditional motion to amend, stating that it was untimely and futile. The district court subsequently denied the Tribes' Rule 59 motion to vacate the judgment and the Tribes now appeal. We uphold the judgment of the district court because we conclude that § 2719(b)(1)(A) does not violate separation of powers principles, the nondelegation doctrine, the Appointments Clause, principles of federalism, or the federal government's trust obligations to Indians.

II. Analysis

The Tribes challenge the constitutionality of the gubernatorial concurrence provision of the Indian Gaming Regulations Act ("IGRA"), 25 U.S.C. § 2719(b)(1)(A) on multiple grounds. The constitutionality of a federal statute is an issue of law subject to de novo review. United States v. Hausmann, 345 F.3d 952, 958 (7th Cir.2003). When "it is fairly possible[,]" this Court is "to interpret the statute in a manner that renders it constitutionally valid." Communications Workers of Am. v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988).

Following 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), which held that Congress had not yet expressly granted the States jurisdiction to enforce state civil gaming regulations on Indian reservation land, Congress passed IGRA for the purpose of creating a federal regulatory scheme for the operation of gaming on Indian lands. 25 U.S.C. § 2702. IGRA states that the operation of gaming by Indian tribes is to serve "as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1). IGRA recognizes that the States have an interest in the regulation of gaming on Indian lands within their borders and allows state regulation of Indian gaming in two ways: (1) state criminal laws that prohibit gaming are enforceable on tribal lands, see 25 U.S.C. § 2701(5), and (2) Indian tribes who choose to engage in Class III gaming may do so only pursuant to a Tribal-State compact, see 25 U.S.C. § 2710(d)(1).²

At issue in this litigation is § 2719(b)(1)(A), which allows the Secretary of the Interior to deviate from IGRA's general prohibition of gaming on after-acquired lands if certain prerequisites are met. Under § 2719(b)(1)(A), the Secretary of the Interior may take land not contiguous to the reservation of the applicant Indian tribe into trust for the purpose of operating a gaming establishment if the Secretary finds that two factual predicates exist, namely, whether (1) "a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members," and (2) "would not be detrimental to the surrounding community," and if the "Governor of the State in which the gaming activity would be conducted" concurs in the Secretary's favorable determination. 25 U.S.C. § 2719(b)(1)(A).

A.

The Tribes assert that the gubernatorial concurrence provision of § 2719(b)(1)(a) violates the separation of powers doctrine because it prevents the Executive Branch from executing the laws. In their view, § 2719(b)(1)(A) unconstitutionally diverts to the Governors of the 50 States the final decisional authority delegated by IGRA...