State of Neb. v. UNITED States Dep't of INTERIOR

• Decision Date: 19 October 2010
• Docket Number: No. 09-1657.,09-1657.
• Citation: 625 F.3d 501
• Parties: State of NEBRASKA, ex rel. Jon BRUNING, Attorney General of the State of Nebraska; State of Iowa, ex. rel. Thomas J. Miller, Attorney General of Iowa, Appellees, City of Council Bluffs, Iowa, Intervenor-Appellee, v. UNITED STATES DEPARTMENT OF INTERIOR; Dirk Kempthorne, in his official capacity as Secretary of the United States Department of the Interior; National Indian Gaming Commission; Philip N. Hogen, in his official capacity as Chairman of the National Indian Gaming Commission; Cloyce V. Choney, in his official capacity as Vice Commissioner of the National Indian Gaming Commission; Norman H. Desrosiers, in his official capacity as Commissioner of the National Indian Gaming Commission, Appellants, Ponca Tribe of Nebraska, Amicus on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

625 F.3d 501

State of NEBRASKA, ex rel. Jon BRUNING, Attorney General of the State of Nebraska; State of Iowa, ex. rel. Thomas J. Miller, Attorney General of Iowa, Appellees,City of Council Bluffs, Iowa, Intervenor-Appellee,

v. UNITED STATES DEPARTMENT OF INTERIOR; Dirk Kempthorne, in his official capacity as Secretary of the United States Department of the Interior; National Indian Gaming Commission; Philip N. Hogen, in his official capacity as Chairman of the National Indian Gaming Commission; Cloyce V. Choney, in his official capacity as Vice Commissioner of the National Indian Gaming Commission; Norman H. Desrosiers, in his official capacity as Commissioner of the National Indian Gaming Commission, Appellants,Ponca Tribe of Nebraska, Amicus on Behalf of Appellant.

No. 09-1657.

United States Court of Appeals,Eighth Circuit.

Submitted: Jan. 12, 2010.

Filed: Oct. 19, 2010.

Jonathan Lynwood Abram, argued, Washington, DC (Audrey E. Moog, Washington, DC, John R. Lundquist, Assistant Attorney General, Des Moines, IA, Katherine J. Spohn, Assistant Attorney General, Lincoln, NE, Richard Wade, City Attorney, Council Bluffs, IA, Thomas D. Waterman and Stacey L. Hall, Davenport, IA, on the brief), for appellees.

James T. Meggesto, argued, Washington, DC (Patricia A. Millett and Chastity E. Bedonie, Washington, DC, on the brief), for amicus curiae on behalf of appellant, Ponca Tribe of Nebraska.

James C. Kilbourne, argued, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC (S. Craig Alexander and Mary Gabrielle Sprague, U.S. Dept. of Justice, Environment & Natural Resources Div., Jonathan R. Damm, U.S. Dept. of the Interior, and Maria Getoff, National Indian Gaming Com'n, Washington, DC, on the brief), for appellants.

Before SMITH and COLLOTON, Circuit Judges, and KORNMANN, ¹ District Judge.

SMITH, Circuit Judge.

The United States Department of the Interior (DOI) and National Indian Gaming Commission (NIGC) appeal from the district court's judgment reversing and vacating the NIGC's decision concluding that the Ponca Tribe of Nebraska's (“the Tribe”) five-acre parcel in Carter Lake, Iowa, was eligible for gaming under the Indian Gaming Regulatory Act (IGRA) as land taken into trust as part of “the restoration of lands for an Indian tribe that is restored to Federal recognition” pursuant to 25 U.S.C. § 2719(b)(1)(B)(iii) (“the restored lands exception”). In reaching its decision, the NIGC had concluded that a purported agreement between the Tribe's attorney and the State of Iowa acknowledging that the parcel was not eligible for gaming under this provision, as documented in a notice published by the Bureau of Indian Affairs (BIA), was not a relevant factual circumstance in determining whether the restored lands exception applied. The State of Iowa, State of Nebraska, and City of Council Bluffs, Iowa, (collectively, “the States”) appealed to the district court, which reversed the NIGC's decision as unlawful, arbitrary, and not well-reasoned. On appeal, the DOI and NIGC argue that, once the district court corrected the NIGC's legal error by holding that the agreement and notice were relevant factual circumstances, it should have remanded the case to the NIGC to allow it to make a new decision based on all relevant factors. We now remand the case to the district court with instructions to remand to the NIGC for reconsideration of its restored lands analysis in accordance with this opinion.

I. Background

On September 24, 1999, the Tribe ² purchased in fee 4.8 acres of land in Carter Lake, Iowa (“Carter Lake land”). Thereafter, on January 10, 2000, the Tribe passed a resolution requesting that the BIA place the land into trust and stating that “[t]he property will be utilized to provide services to our tribal members, primarily health services.” Three months later, the Tribe negotiated a “Cooperation and Jurisdictional Agreement” with the City of Carter Lake in which the parties agreed that it would be mutually beneficial for the Tribe to operate a medical clinic and a pharmacy on the recently purchased land.

The BIA Great Plains Regional Director (“Regional Director”) ³ considered the Tribe's request to take the land into trust under the Indian Reorganization Act (IRA), 25 U.S.C. § 465, and the implementing regulations, 25 C.F.R. § 151. According to the Regional Director, the PRA “extended to the tribe and its members all federal laws of general application to Indians, including specifically ... [the] Indian Reorganization Act (IRA).” In turn, § 5 of the IRA provides that

[t]he Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians.

25 U.S.C. § 465. Based on § 465, the Regional Director concluded that the BIA had statutory authority to accept land in trust for the Tribe's benefit. She then found that the Tribe was “in need of additional land to deliver contracted federal and tribal services to their members.” According to the Regional Director, the Tribe would use the land to “provide health and pharmaceutical services to its members, and to other Indians within the Carter Lake service area of the Ponca Tribe.”

On September 15, 2000, the Regional Director advised relevant state and local officials in Iowa that she “intend[ed] to accept the land into trust for the benefit of the Ponca Tribe of Nebraska.” Pottawattamie County, Iowa, and the State of Iowa appealed her decision to the Interior Board of Indian Appeals (IBIA). They argued, in part, that (1) the PRA prohibited the Secretary of the DOI from taking land into trust outside of Boyd and Knox Counties and (2) the Tribe actually intended to use the land for gaming. In response, the Tribe maintained that it would only use the land for governmental and health-care services.

On August 7, 2002, the IBIA affirmed the Regional Director's decision to take the Carter Lake land into trust. In its decision, the IBIA concluded “that the plain language of the Restoration Act provides that the Secretary has the same discretionary authority to take land into trust for the Tribe that she has for any other IRA tribe.” State of Iowa & Bd. of Supervisors of Pottawattamie County, Iowa v. Great Plains Reg'l Dir., Bureau of Indian Affairs, 38 IBIA 42, 46 (2002). Additionally, with regard to the Tribe's true intent for use of the land, the IBIA found that “[t]here is nothing other than pure speculation to suggest that the Tribe intends to use this property for gaming purposes.” Id. at 52.

Although the State of Iowa had the right to seek judicial review of the IBIA's decision, the Tribe, the State of Iowa, and Pottawattamie County reached a purported agreement to avoid further litigation. ⁴ The purported agreement provided that the State of Iowa would forgo litigation in federal district court in exchange for the Tribe's agreement that the Carter Lake land would be used for governmental services and not for gaming. On November 26, 2002, Michael Mason, the Tribe's attorney, sent an email to the BIA concerning the purported agreement, which states:

Following is the language to append to the notice of decision for the trust acquisition for the Ponca Tribe of Nebraska in Carter Lake. This was negotiated with Ass't Attorney General Jean Davis of the State of Iowa and County Attorney Richard Crowl of Pottawattamie County, Iowa.

“The trust acquisition of the Carter Lake lands has been made for non-gaming related purposes, as requested by the Ponca Tribe and discussed in the September 15, 2000 decision under the Regional Director's analysis of 25 CFR 151.10(c). As an acquisition occurring after October 17, 1988, any gaming or gaming-related activities on the Carter Lake lands are subject to the Two-Part Determination under 25 U.S.C. Sec. 2719. In making its request to have the Carter Lake lands taken into trust, the Ponca Tribe has acknowledged that the lands are not eligible for the exceptions under 25 U.S.C. Sec. 2719(b)(1)(B). There may be no gaming or gaming-related activities on the lands unless and until approved under the October 2001 Checklist for Gaming Acquisitions, Gaming-Related Acquisitions and Two-Part Determinations Under Section 20 of the Indian Gaming Regulatory Act has been obtained.”

On behalf of the Ponca Tribe of Nebraska, I request publication of the decision to take the Tribe's Carter Lake lands in trust as soon as possible.

The IGRA, 25 U.S.C. § 2719, referenced in Mason's email, prohibits gaming on trust land acquired by an Indian tribe after October 17, 1998, unless an exception applies. One exception permits gaming under the “Two-Part Determination” procedure if “the Secretary ... determines that a gaming establishment on newly acquired land would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community” and “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). Another exception-the restored lands exception-provides that the IGRA's gaming prohibition does not apply when “lands are taken into trust as part of ... the restoration of lands for an Indian tribe that is restored to Federal recognition.” Id. § 2719(b)(1)(B)(iii).

The BIA agreed to include in its Notice of Intent the paragraph that Mason requested. After initially not including the paragraph, the BIA published a “Corrected Notice of Intent To Take Land In Trust” (“Corrected Notice”) on December 6, 2002. The Corrected Notice included nearly verbatim the language that attorney Mason requested.

On December 13, 2002, Jean M. Davis, the State of Iowa's Assistant Attorney General,...