Oregon v. Norton

• Decision Date: 01 July 2003
• Docket Number: No. CIV. 02-6104-TC.,CIV. 02-6104-TC.
• Citation: 271 F.Supp.2d 1270
• Parties: State of OREGON and John A. Kitzhaber, Governor, Plaintiffs, v. Gale NORTON, Secretary of the United States Department of the Interior; and Neal A. McCaleb, Assistant Secretary for Indian Affairs, United States Department of the Interior, Defendants, and Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians, Intervenor.
• Court: U.S. District Court — District of Oregon

Page 1270

271 F.Supp.2d 1270

State of OREGON and John A. Kitzhaber, Governor, Plaintiffs, v. Gale NORTON, Secretary of the United States Department of the Interior; and Neal A. McCaleb, Assistant Secretary for Indian Affairs, United States Department of the Interior, Defendants, and Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians, Intervenor.

No. CIV. 02-6104-TC.

United States District Court, D. Oregon.

July 1, 2003.

David E. Leith, Department of Justice, Salem, OR, for Plaintiffs.

Timothy W. Simmons, United States Attorney's Office, Portland, OR, for Defendants.

OPINION AND ORDER

COFFIN, United States Magistrate Judge.

For the second time, a federal district court is called upon to decide whether a parcel of land held in trust for Intervenor Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians ("the Tribe") may be considered land restored to the Tribe and thus eligible for gaming under the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701, et seq. Plaintiffs State of Oregon and the Governor ("the State") challenge a decision by the Secretary of the United States Department of the Interior ("the Secretary") that the parcel of land known as the Hatch Tract was acquired as part of the restoration of lands to the Tribe. See 25 U.S.C. § 2719(b)(1)(B)(iii). The State contends that Congress did not delegate authority to the Secretary to make such a determination, and that even such authority existed, the Secretary abused her discretion in finding that the Hatch Tract constitutes restored land. The State seeks review of the Secretary's decision pursuant to the Administrative Procedure Act, 5 U.S.C. § 701, et seq.

On May 7, 2003, the court heard oral argument on the parties' cross-motions for summary judgment. Upon review and consideration of the briefing, argument, and relevant authorities, the State's motion is denied, and the Secretary's and the Tribe's motions are granted.

I. BACKGROUND FACTS

The Tribe is presently a federally recognized Indian tribe with a governing body recognized by the Secretary. The Tribe is headquartered in Coos Bay, Oregon.

On August 13, 1954, the United States terminated the Tribe's status as a federally recognized Indian tribe. See Indians of Western Oregon Termination Act, as codified in 25 U.S.C. §§ 691-708. As a result, the Tribe's reservation lands were dispersed, and the Tribe and its members could not participate in federal Indian programs or receive services provided by the United States to recognized Indian tribes.¹

On October 17, 1984, Congress restored the Tribe's status under the Coos, Lower Umpqua and Siuslaw Restoration Act ("Restoration Act"). 25 U.S.C. §§ 714-714f. Section 7 of the Restoration Act provided for establishment of a reservation and authorized the Secretary to take three specific parcels of land into trust for the benefit of the Tribe:

One parcel consists of 6.1 acres, upon which is a meeting hall where tribal business has been conducted since 1937. This land is held in private trust and is untaxed. Another parcel, which is undeveloped, consists of 1.02 acres on Coos County that is an historic fishing site. The third parcel is a 3-acre cemetery in Curry County that is also untaxed.

130 Cong. Rec. 22,422 (1984) (cited in Intervenor-Defendant's Memorandum of Points and Authorities, p. 8); see also 25 U.S.C. § 714e(b).

On October 14, 1998, Congress amended the Restoration Act to include an additional parcel of land known as the Peterman Tract located in Lane County, Oregon, near the town of Florence. The Peterman Tract, comprising .6 acres of land, is a right-of-way to an Indian cemetery containing the remains of tribal ancestors.

The Hatch Tract is a 98-acre parcel of land contiguous to the Peterman Tract. It is the site of a former Siuslaw village and located within the former Siletz Reservation, to which the Tribe's members were removed in 1862. The Hatch Tract was a public domain allotment subsequently deeded to an ancestor of a tribal member. The Hatch Tract has always been held by the Tribe or its members, and it has never been subject to state or local taxation. After the death of a tribal member who occupied the land, the family sought to transfer the Hatch Tract to tribal ownership and offered the land to the Tribe. Sometime prior to March 1998, the Tribe requested that the Secretary accept the Hatch Tract into trust for the benefit of the Tribe. On March 2, 1998, the Secretary officially acquired the Hatch Tract in trust.

On March 16, 1998, in a meeting between representatives of the Tribe and the Bureau of Indian Affairs, the Tribe orally requested that the Hatch Tract be certified as exempt from IGRA's gaming prohibition on lands acquired after October 17, 1988, the effective date of IGRA. 25 U.S.C. § 2719(a). The Tribe asserted that the Hatch Tract qualified for exemption as either "land located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988," 25 U.S.C. § 2719(a)(1) (contiguous lands exception), or lands taken into trust as part of the "restoration of lands" to a restored tribe. Id. § 2719(b)(1)(B)(iii) (restored lands exception). The Tribe memorialized this request in a letter dated March 23, 1998. On April 20, 1999, the Tribe repeated their request in a meeting with Department of Interior representatives.

By letter dated October 21, 1999, the Secretary determined that the Hatch Tract did not qualify for gaming under either exception. The Secretary found that the Hatch Tract was not contiguous to the Tribe's reservation boundaries as of October 17, 1988, because the 1998 addition of the Peterman Tract to the Tribe's reservation did not relate back to the establishment of the reservation on October 17, 1984. Further, the Secretary adopted the opinion and conclusion of the Solicitor that the phrase "restoration of lands" referred only to the congressional restoration of lands identified in a congressional act of restoration. Therefore, because the Hatch Tract was not identified in the Restoration Act, the Secretary determined that it did not constitute lands restored to the Tribe.

The Tribe challenged the Secretary's decision in the United States District Court for the District of Columbia. See Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians v. Babbitt, 116 F.Supp.2d 155 (D.D.C.2000) (hereinafter Confederated Tribes). The district court upheld the Secretary's determination that the Hatch Tract was not contiguous to the Tribe's reservation boundaries as of October 17, 1988. However, the district court rejected the Secretary's contention that the word "restore" was a term of art and that the phrase "restoration of lands" included only those lands identified by Congress in an act restoring tribal status. Confederated Tribes, 116 F.Supp.2d at 163. Rather, the district court found that "restore" and "restoration lands" could be construed in accordance with the intent to limit gaming on lands acquired after the enactment of IGRA while affording parity to "belatedly restored tribes." Id. at 164. In so finding, the court relied on the analysis and reasoning set forth in Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 46 F.Supp.2d 689 (W.D.Mich.1999) (Grand Traverse I).² Confederated Tribes, 116 F.Supp.2d at 163-64.

The district court concluded that the Secretary "used an unduly restrictive analysis in determining that the Hatch Tract was ineligible for gaming," and "failed to adequately consider the principle of liberal [statutory] construction in favor of Indians." Id. at 164. Thus, the district court remanded the matter to the Secretary to "fully consider all matters which may entitle [the Tribe] to an exception pursuant to section 2719(b)(1)(B)(iii)." Id.

Upon remand, the Secretary informed the Tribe by letter dated December 20, 2002, that the Hatch Tract was exempt from IGRA's general prohibition on gaming. With guidance from the district court in Confederated Tribes, the Secretary construed the terms restore and restoration of land in accordance with their ordinary meaning coupled with geographical and temporal limitations. The Secretary reviewed the materials relevant to the Hatch Tract and found that it reflected a historical, geographical and temporal connection to the Tribe. Thus, the Secretary concluded that the Hatch Tract constituted lands restored to the Tribe.

On April 12, 2002, the State filed suit challenging the Secretary's determination that the Hatch Tract was eligible for gaming under IGRA.

In January 2003, the Tribe and the State amended the Tribe's gaming compact by mutual agreement. With respect to the location of the Tribe's casino, the compact provides:

Gaming Location. As of the date of this Compact, the parties are in disagreement regarding whether certain lands, known as the "Hatch Tract," ... are eligible for gaming, pursuant to 24 U.S.C. § 2719. The Secretary of the U.S. Department of the Interior issued a decision that the Hatch Tract is eligible for gaming; however, the State and the Governor are challenging that decision in a case entitled Oregon v. Norton, Civil Case No. 02-6104-TC (D.C. Or. filed Apr. 12, 2002). In the event there is a final judicial decision in that case that the Hatch Tract is eligible for gaming, pursuant to 25 U.S.C. § 2719, the Tribes' Gaming Facility authorized by the Compact shall be located on the Hatch Tract.

Amended Tribal-State Compact for Regulation of Class III Gaming Between the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians and the State of Oregon, § 4(C) (Jan. 6, 2003) (attached to the Tribe's Memorandum of Points and Authorities in Support of Motion for Summary Judgment).

II. STANDARDS

The State seeks review of the Secretary's decision pursuant to the APA. 5 U.S.C. § 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action...