Frank's Landing Indian Cmty. v. Nat'l Indian Gaming Comm'n

918 F.3d 610

FRANK'S LANDING INDIAN COMMUNITY, a Federally-Recognized Self-Governing Dependent Indian Community, Plaintiff-Appellant,

v.NATIONAL INDIAN GAMING COMMISSION; United States Department of The Interior; Jonodev Chaudhuri, in His Official Capacity as Chairman of the National Indian Gaming Commission; Tara Katuk Maclean Sweeney, in Her Official Capacity as Assistant Secretary of the Interior Indian Affairs, United States Department of the Interior; David Bernhardt, in His Official Capacity as Acting Secretary of the Interior, Defendants-Appellees.

No. 17-35368

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 11, 2018 Seattle, Washington

Filed March 12, 2019

Scott David Crowell (argued), Crowell Law Office-Tribal Advocacy Group, Sedona, Arizona; Bryan T. Newland, Fletcher Law PLLC, East Lansing, Michigan; Alan S. Middleton, Law Offices of Alan S. Middleton PLLC, Lake Forest Park, Washington; for Plaintiff-Appellant.

Kevin W. McArdle (argued), Mary Gabrielle Sprague, and Devon Lehman McCune, Environment and Natural Resources Division; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; Samuel E. Ennis, Office of the Solicitor, Department of the Interior, Washington, D.C.; for Defendants-Appellees.

Before: N. Randy Smith and Morgan Christen, Circuit Judges, and Robert E. Payne,^* District Judge.

CHRISTEN, Circuit Judge:

Frank's Landing Indian Community (Community) appeals the district court's order granting summary judgment in favor of appellees Department of the Interior, its Secretary, and the Assistant Secretary–Indian Affairs. The Community, which is not a federally recognized tribe, challenges Interior's determination that it is ineligible for gaming for purposes of the Indian Gaming Regulatory Act, (IGRA), 25 U.S.C. §§ 2701 – 2721. The Community argues that its unique status, recognized and defined in the Frank's Landing Act¹ and the 1994 amendments to that Act,² renders it eligible to engage in class II gaming.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the district court's judgment. Reviewing Interior's decision under the Administrative Procedure Act (APA), we conclude the agency's determination was correct. First, we hold that IGRA clearly and unambiguously requires federal recognition by the Secretary of the Department of the Interior before a tribe may qualify to participate in Indian gaming. Second, we hold that the Frank's Landing Act does not authorize the Community to engage in class II gaming.

BACKGROUND

A. Statutory Background

Adopted in 1987, the Frank's Landing Act originally provided as follows:

The Frank's Landing Indian Community in the State of Washington is hereby recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and is recognized as eligible to contract, and to receive grants, under the Indian Self-Determination and Education Assistance Act for such services, but the proviso in section 4(c) of such Act ( 25 U.S.C. 450b(c) ) shall not apply with respect to grants awarded to, and contracts entered into with, such Community.

Pub. L. No. 100-153, § 10, 101 Stat. 889.

In 1988, Congress enacted IGRA to provide "a statutory basis for the operation and regulation" of Indian gaming. Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 48, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). IGRA created the National Indian Gaming Commission (Gaming Commission), the federal agency that regulates three classes of gaming on Indian lands. See 25 U.S.C. §§ 2703(6) – (8), 2704, 2710. To conduct class II gaming, an "Indian tribe" must adopt a "tribal ordinance" concerning the regulation of class II gaming, and submit the ordinance to the Chair of the Gaming Commission for approval. 25 U.S.C. § 2710(b). IGRA defines "Indian tribe" as follows:

[A]ny Indian tribe, band, nation, or other organized group or community of Indians which—

(A) is recognized as eligible by the Secretary for the special programs and services provided by the United States to Indians because of their status as Indians, and

(B) is recognized as possessing powers of self-government.

Id. § 2703(5).

In 1994, Congress amended the Frank's Landing Act so that it now provides:

(a) Subject to subsection (b), the Frank's Landing Indian Community in the State of Washington is hereby recognized—

(1) as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and is recognized as eligible to contract, and to receive grants, under the Indian Self-Determination and Education Assistance Act for such services, but the proviso in section 4(c) of such Act ( 25 U.S.C. 450b(c) ) shall not apply with respect to grants awarded to, and contracts entered into with, such Community; and

(2) as a self-governing dependent Indian community that is not subject to the jurisdiction of any federally recognized tribe.

(b)(1) Nothing in this section may be construed to alter or affect the jurisdiction of the State of Washington under section 1162 of title 18, United States Code.

(2) Nothing in this section may be construed to constitute the recognition by the United States that the Frank's Landing Indian Community is a federally recognized Indian tribe.

(3) Notwithstanding any other provision of law, the Frank's Landing Indian Community shall not engage in any class III gaming activity (as defined in section 3(8) of the Indian Gaming Regulatory Act of 1988 ( 25 U.S.C. 2703(8) )).

Pub. L. No. 103-435, 108 Stat. 4566, 4569–70 (emphasis added).

When Congress enacted the Frank's Landing Act in 1987, it had not yet enacted IGRA and thus it could not have considered the Community's tribal status or gaming rights for purposes of IGRA. By the time the Frank's Landing Act was amended in 1994, IGRA was well established, as was the process for identifying which groups qualify as federally recognized tribes.

B. Federal Recognition

To provide context for our decision that the Community is ineligible to participate in Indian gaming, we explain what it means to be a federally recognized tribe.³ "Federal recognition" of an Indian tribe is a legal term of art meaning that the federal government acknowledges as a matter of law that a particular Indian group has tribal status. See H.R. Rep. No. 103-781, at 2 (1994), as reprinted in 1994 U.S.C.C.A.N. 3768; Felix Cohen, Cohen's Handbook of Federal Indian Law § 3.02[3], at 134 (Nell Jessup Newton ed., 2012) (hereinafter Cohen's Handbook ). Federal recognition establishes a government-to-government relationship between the United States and the recognized tribe as a "domestic dependent nation," and requires the Secretary to provide "a panoply of benefits and services" to the tribe and its members. See Cohen's Handbook , § 3.02[3], at 134 (internal quotation marks omitted).

A group of Indians may achieve federal recognition in three ways: (1) by Congressional act; (2) by Secretarial acknowledgment⁴ ; or (3) by a decision of a United States court. See Federally Recognized Indian Tribe List Act of 1994, Pub. L. No. 103-454 ; United States v. Zepeda , 792 F.3d 1103, 1114 (9th Cir. 2015). As required by the Federally Recognized Indian Tribe List Act of 1994 (List Act), 25 U.S.C. § 5131, the Secretary of the Interior publishes an annual list of all federally recognized tribes that have obtained recognition through any one of these three means. See Zepeda , 792 F.3d 1103 at 1114. The Community has never petitioned the Secretary for inclusion on the annual list, and it concedes that it has not been federally recognized under any of these three pathways.

C. The Community's Efforts to Engage in Class II Gaming

The Community submitted a class II gaming ordinance to the Gaming Commission for review and approval in December of 2014. In March of 2015, the Assistant Secretary–Indian Affairs, acting on behalf of Interior, issued a memorandum to the Chair of the Gaming Commission concluding that the Community did not qualify as an Indian tribe for purposes of IGRA because it is not federally recognized and does not appear on the annual list of recognized tribes the Secretary publishes pursuant to the List Act. The Assistant Secretary opined that the Gaming Commission could rely on this annual list to determine whether an entity is a federally recognized Indian tribe because the list is intended to be exhaustive, because it offers transparency surrounding which groups of Indians are eligible for gaming pursuant to IGRA, and because it provides a "bright line" rule that preserves government resources. The Solicitor of the Department of the Interior also concluded that the Community was not an Indian tribe for purposes of IGRA.

Relying on Interior's determination, the Chair of the Gaming Commission concluded that the Commission was without authority to review the Community's gaming ordinance. The Community's requests for reconsideration were denied, and the Community filed suit in district court. The district court dismissed the claims against the Gaming Commission and its Chair for failure to state a claim. Thereafter, the court granted summary judgment in favor of the remaining defendants. The district court reasoned that IGRA and the Frank's Landing Act, read together, are ambiguous regarding whether Congress intended to authorize the Community to engage in class II gaming, but it concluded, pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), that defendants reasonably interpreted these statutes. This appeal of the summary judgment order followed.

STANDARD OF REVIEW

"We review de novo the district court's summary judgment ruling[ ], ‘thus reviewing directly the agency's action under the [APA's] arbitrary and capricious standard.’ "

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