Miami Tribe of Oklahoma v. US

Citation927 F. Supp. 1419
Decision Date10 April 1996
Docket NumberNo. 95-2205-JWL.,95-2205-JWL.
PartiesMIAMI TRIBE OF OKLAHOMA, Plaintiff, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — District of Kansas

Kip A. Kubin, Payne & Jones, Chtd., Overland Park, KS, for Miami Tribe of Oklahoma.

Janice M. Karlin, Office of United States Attorney, Kansas City, KS, Glen R. Goodsell, U.S. Department of Justice, General Litigation Section, Environment and Natural Resources Div., Washington, DC, for U.S., DOI, and Bruce Babbit.

Glen R. Goodsell, U.S. Department of Justice, General Litigation Section, Environment and Natural Resources Div., Washington, DC, for DOI, Chairman of the National Indian Gaming Commission, Harold Monteau, and National Indian Gaming Commission.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

On January 30, 1995, the National Indian Gaming Commission (NIGC) disapproved a class II gaming management contract between plaintiff Miami Tribe of Oklahoma and Butler National Service Corporation. The disapproval was affirmed on April 4, 1995 and supplemented on June 9, 1995. In support of its disapproval, the NIGC cited an opinion obtained from the Department of the Interior that the land encompassed by the management contract is not "Indian land" as defined by 25 U.S.C. § 2703(4). Plaintiff then petitioned this court for review of the agency's decision and now seeks a ruling that the land in question does constitute Indian land. For the reasons set forth below, the court concludes that the land in question is not Indian land. As a result, the NIGC's action is affirmed.

I. Procedural Background

This case arises from plaintiff's proposal, in the form of the management contract, to build a bingo facility on land known as the Maria Christiana Miami Reserve No. 35 (Reserve No. 35).1 Under 25 U.S.C. § 2711, an Indian tribe may, subject to the approval of the chairman of the NIGC, enter into such a contract.

As part of its review, the NIGC requested an opinion from the Department of Interior regarding whether or not Reserve No. 35 qualified as "Indian land" within the meaning of the Indian Gaming Regulatory Act (IGRA). Noting the request but prior to receiving the opinion, the NIGC disapproved the management contract, citing four bases. First, the management contract was not authorized by the Miami Tribe Gaming Act (MTGA), the tribal ordinance governing gambling. Second, no determination regarding the environmental impact of the proposed development had been made. Third, the background investigations required by 25 C.F.R. § 537 were not complete. Fourth, plaintiff had either not submitted some necessary documents or had submitted incomplete documents.

Plaintiff appealed the ruling but the NIGC affirmed on April 4, 1995. In its affirmation, however, the NIGC noted that the first basis for disapproval was no longer applicable due to an amendment to the MTGA. On June 9, 1995, the NIGC supplemented its ruling with the opinion of the Department of Interior that Reserve No. 35 was not Indian lands as defined by IGRA.

II. Discussion

The IGRA defines "Indian lands" to mean:

(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.

25 U.S.C. § 2703(4). Both parties agree that Reserve No. 35 is not within the limits of any Indian reservation. Both parties agree that Reserve No. 35 is a restricted Indian allotment that satisfies the first component of section 2703(4)(B). As a result, the parties' dispute centers on whether or not plaintiff exercises governmental power over Reserve No. 35. The NIGC ruled that it does not. Plaintiff challenges that conclusion and the procedure used to reach it.

A. Procedural Concerns

Before turning to plaintiff's substantive arguments, the court addresses plaintiff's procedural concerns. Because plaintiff's papers present arguments in an uninterrupted flow, however, it is not clear exactly what procedures plaintiff challenges. Plaintiff apparently objects to the NIGC's reliance on the legal analysis of the Department of the Interior rather than following the procedures outlined in 5 U.S.C. § 554. The court finds 5 U.S.C. § 554 inapplicable, however.

Section 554 applies only when the statute requires the adjudication "to be determined on the record after opportunity for an agency hearing." Id. § 554(a); accord York v. Secretary of Treasury, 774 F.2d 417, 420 (10th Cir.1985). Plaintiff has pointed to no section of the IGRA or its accompanying regulations requiring a hearing on the record before the NIGC determines whether or not to approve a management contract. Nor has the court found any such requirement. Section 2706(b)(8) permits, but does not require, the NIGC to hold hearings "as it deems appropriate." In sharp contrast, the IGRA does impose a hearing requirement on certain other decisions. See, e.g., 25 U.S.C. § 2710(c)(2) (suspension of a gaming license); id. § 2710(c)(4) (issuance of certificate of self-regulation); id. § 2710(c)(6) (removal of certificate of self-regulation); id. § 2711(f)2 (modification or voidance of a management contract) id. § 2713(b)(2) (determination of whether an order of temporary closure should be dissolved or made permanent). Under this statutory framework, the court concludes that the NIGC was not obligated to comply with 5 U.S.C. § 554 when determining whether or not to approve the management contract.

Moreover, plaintiff admits that nothing in the IGRA or its regulations prohibit the NIGC from requesting a legal opinion from the Department of Interior. In its reply brief, however, plaintiff passingly states that such procedure violated its due process. The court disagrees. Plaintiff fully participated in the decision making process. Record document 61, for example, notes the NIGC's request for plaintiff's position on the Indian lands issue and contains the tribe's submission. In that document, plaintiff voices its opinion that it has submitted "all ... documents needed for completion of review." Plaintiff thus considered its position fully briefed. Record document 60 indicates that a copy of plaintiff's submission was attached to the NIGC's request for an opinion from the Department of Interior. Record document 74 also illustrates plaintiff's participation in the process. That neither the Department of Interior nor the NIGC agreed with plaintiff does not compel the conclusion that plaintiff did not receive due process. On the contrary, the record indicates that plaintiff's participation was solicited, received and considered. As noted above, the IGRA does not entitle plaintiff to a hearing on this question. Under these circumstances, the court finds plaintiff received the process it was due.

B. Standard of Review

The NIGC's determination constitutes a final agency decision that is reviewable by this court. 25 U.S.C. § 2714. The NIGC, citing the opinion provided by the Department of Interior, concluded that plaintiff does not exercise governmental power over Reserve No. 35 because that land is not within the jurisdiction of the Miami tribe. After careful consideration, the court concludes that this decision is subject to two types of review.

Implicit in the NIGC's decision is the agency's determination that only those lands within an Indian tribe's jurisdiction can qualify as "Indian lands." That is, a necessary prelude to the exercise of governmental power is the existence of jurisdiction. This interpretation of the IGRA by the agency that administers the statute is reviewed according to the standards set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

The conclusion that plaintiff does not have jurisdiction, however, does not depend on an interpretation of a statute committed to the NIGC. Rather, the conclusion derives from the NIGC's evaluation of various treaties, United States Attorney General Opinions, House of Representative and Senate Committee Reports and court decisions, most dating from a century before the existence of the NIGC. As both parties agree, whether or not those combined authorities confer jurisdiction on plaintiff over Reserve No. 35 is a question of law. Legal determinations of this type are subject to de novo review. See Koch v. United States, 47 F.3d 1015, 1017 (10th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 303, 133 L.Ed.2d 208 (1995); Howard v. Federal Aviation Admin., 17 F.3d 1213, 1215 (9th Cir.1994).3

C. Requiring Jurisdiction to Exercise Governmental Power

The IGRA created the NIGC to, among other things, review management contracts for class II gaming. See 25 U.S.C. §§ 2704 and 2711. Part of that responsibility includes determining whether or not a tribe exercises governmental power over the land on which it seeks to conduct gaming. As noted above, when reviewing plaintiff's management contract, the NIGC implicitly decided that in order to exercise governmental power for purposes of 25 U.S.C. § 2703(4), a tribe must first have jurisdiction over the land. In Chevron, the Supreme Court established a two step review for such decisions:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question of whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative
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11 cases
  • MIAMI TRIBE OF OK v. US
    • United States
    • U.S. District Court — District of Kansas
    • January 4, 2010
    ...A more detailed history of the Maria Christiana Allotment, Miami Reserve No. 35, is set forth in Miami Tribe of Okla. v. United States, 927 F.Supp. 1419, 1424-26 (D.Kan. 1996). See also Miami Tribe of Okla. v. United States, 5 F.Supp.2d 1213 (D.Kan.1998); State ex rel. Graves v. United Stat......
  • Miami Tribe of Okla. v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 30, 2011
    ...DeRome family were excluded from the 1854 list because they were not considered of Miami blood. Miami Tribe of Okla. v. United States, 927 F.Supp. 1419, 1424 (D.Kan.1996) (citing H.R. Exec. Doc. No. 23, 49th Cong., 1st Sess. 1, 6 (1886)). In a unilateral decision, Congress added the petitio......
  • Miami Tribe of Oklahoma v. U.S., CIV.A.03-2220-DJW.
    • United States
    • U.S. District Court — District of Kansas
    • June 22, 2005
    ...§§ 702-706. 2. The Maria Christiana Miami Reserve No. 35 has a long and intricate litigation history. See Miami Tribe of Okla. v. United States, 927 F.Supp. 1419 (D.Kan.1996); Miami Tribe of Okla. v. United States, 5 F.Supp.2d 1213 (D.Kan.1998); State ex rel Graves v. United States, 86 F.Su......
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    • United States
    • U.S. District Court — Western District of Michigan
    • March 18, 1999
    ...statute. The NIGC is charged with interpreting and applying the IGRA to Indian lands used for gaming. See Miami Tribe of Oklahoma v. United States, 927 F.Supp. 1419, 1422 (D.Kan.1996) (holding that NIGC had authority to determine whether particular lands were within the tribe's jurisdiction......
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