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

242 F.Supp.3d 1156

FRANK'S LANDING INDIAN COMMUNITY, Plaintiff,

v.NATIONAL INDIAN GAMING COMMISSION, et al., Defendants.

CASE NO. C15–5828BHS

United States District Court, W.D. Washington, at Tacoma.

Signed March 15, 2017

Bryan Newland, Fletcher PLLC, Lansing, MI, Alan Scott Middleton, Law Offices of Alan S. Middleton, Lake Forest Park, WA, Scott D. Crowell, Law Office of Scott D. Crowell, Sedona, AZ, for Plaintiff.

Devon Lehman McCune, US Department of Justice, Denver, CO, for Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, United States District Judge

This matter comes before the Court on the motion for summary judgment of Plaintiff Frank's Landing Indian Community (the "Community"). Dkt. 33. Also before the Court is the cross-motion for summary judgment of the United States Department of the Interior (the "Department"), Sally Jewell, in her official capacity as the Secretary of the Interior (the "Secretary"), and Lawrence S. Roberts,¹ in his official capacity as Assistant Secretary of the Interior Indian Affairs ("Roberts") (collectively "Defendants"). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and, for the reasons explained below, hereby (1) denies the Community's motion and (2) grants Defendants' motion.

I. PROCEDURAL HISTORY

On November 13, 2015, the "Community filed its complaint against the National Indian Gaming Commission; Jonodev Chaudhuri, in his official capacity as Chairman of the National Indian Gaming Commission (the "Commission"); the Department; the Secretary; and Roberts. Dkt. 1. The Community seeks injunctive and declaratory relief that it qualifies as an Indian tribe under the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701 et. seq. ("IGRA").

On May 12, 2016, the Commission and the Chairman moved to dismiss for lack of jurisdiction and for failure to state a claim. Dkt. 19. On August 15, 2016, the Court granted the Commission and the Chairman's motion to dismiss. Dkt. 29. In granting the motion, the Court explained that "the Community's dispute regarding qualification under the IGRA as an ‘Indian tribe’ is with the Secretary and not with the NIGC or the Chairman." Id. at 9.

On November 4, 2016, the Community moved for summary judgment. Dkt. 33. On January 13, 2017, Defendants responded with their cross-motion for summary judgment. Dkt. 38. On February 10, 2017, the Community replied. Dkt. 39. On March 1, 2017, Defendants replied. Dkt. 40.

II. FACTUAL BACKGROUND

A. Relevant Statutes and Regulations

"Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes." Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 48, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citing 25 U.S.C. § 2702 ). The IGRA established the NIGC within the Department of the Interior to oversee and regulate tribal gaming under the IGRA, see 25 U.S.C. §§ 2702(3), 2704(a), 2706(b), and to take enforcement actions for violations of the statute. Id. § 2713. The NIGC is made up of a Chairman and two Commissioners, each of whom serves on a full-time basis for a three-year term.

Under the IGRA, "[a]n Indian tribe may engage in, or license and regulate, class II gaming on Indian lands within such tribe's jurisdiction, if—the governing body of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman."

25 U.S.C. § 2710(b)(1). The IGRA defines "Indian tribe" as:

(5)... any 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.

* * *

(10) The term "Secretary" means the Secretary of the Interior.

25 U.S.C. § 2703. Similarly, under the federal regulations promulgated by the Secretary for administration of the IGRA:

Indian tribe means any Indian tribe, band, nation, or other organized group or community of Indians that the Secretary recognizes as—

(a) Eligible for the special programs and services provided by the United States to Indians because of their status as Indians; and

(b) Having powers of self-government.

25 C.F.R. § 502.13.

In 1994, Congress enacted the Federally Recognized Indian Tribe List Act (the "List Act"), Pub. L. No. 103–454 (1994) (codified at 25 U.S.C. §§ 5130, 5131 ), which provides that:

For the purposes of this title:

(1) The term "Secretary" means the Secretary of the Interior.

(2) The term "Indian tribe" means any Indian or Alaska Native tribe, band, nation, pueblo, village or community that the Secretary of the Interior acknowledges to exist as an Indian tribe.

25 U.S.C. § 5130 (formerly § 479a). The List Act also requires the Secretary to publish and maintain a list of recognized "Indian tribes," stating:

(a) Publication of list

The Secretary shall publish in the Federal Register a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(b) Frequency of publication

The list shall be published within 60 days of November 2, 1994, and annually on or before every January 30 thereafter.

25 U.S.C. § 5131 (formerly § 479a–1).

To obtain recognition by the Secretary as an "Indian tribe" under the List Act, an Indian or Alaskan Native tribe, band, nation, pueblo, village or community must submit an application to the Secretary by documented petition pursuant to 25 C.F.R. § 83.20 and show that it satisfies the criteria set forth in 25 C.F.R. § 83.11.

B. Current Dispute

The Community is a self-governing dependent Indian community located along the Nisqually River near Olympia, Washington. In 1987, Congress recognized the members of the Community "as eligible for the special programs and services provided by the United States to Indians because of their status as Indians" and "as eligible to contract, and to receive grants, under the Indian Self–Determination and Education Assistance Act for such services." Pub. L. No. 100–153, § 10, 101 Stat. 886, 889 (1987) (the "1987 Frank's Landing Act"). In 1994, Congress amended the law to state the following:

(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 provisio 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) Nothwithstanding 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, § 8, 107 Stat. 4566, 4569 (1994) (the "1994 Amendment").

On December 9, 2014, the Community submitted a purported Class II gaming ordinance to the NIGC for the Chairman's review and approval along with a resolution from the Community's governing body enacting the ordinance. Dkt. 1. The NIGC referred the matter to Interior's Office of the Solicitor, requesting an opinion on whether the Community is a tribe within the meaning of the IGRA, who referred the matter to the Assistant Secretary–Indian Affairs ("AS–IA"), Kevin Washburn. Id. On March 6, 2015, the AS–IA issued a memorandum to the NIGC Chairman conveying Interior's conclusion that the Community is not an Indian tribe within the meaning of the IGRA because it is not a federally-recognized Indian tribe. Id. This memorandum attached another memorandum prepared by the Office of the Solicitor of the Department of the Interior, explaining its legal conclusion that only tribes recognized by the Secretary under the List Act are entitled to engage in gaming under the IGRA. See AR 0080 (memorandum stating that the List Act provides "a definitive means of determining whether an entity is a federally-recognized Indian tribe" for purposes of the IGRA).

The same day, the Chairman issued a letter to the Community's Chairperson indicating that, based on the AS–IA's determination that the Community is not a recognized "Indian tribe" under the IGRA, the Community's submission was not a "tribal ordinance." The Chairman thus indicated that he could not accept the Community's gaming ordinance because it was beyond the scope of his review. Id. ; Ex. A at 1, 4. The letter also noted that the Chairman "did not approve or disapprove this ordinance, because it does not qualify as a tribal ordinance submission for purposes of IGRA," but even if it were a disapproval, "the Community would not possess any appeal rights under NIGC regulations, 25 C.F.R. Part 582, since the Community is not an ‘Indian tribe’ under IGRA and, therefore, would lack standing to appeal." Ex. A at 4 n.23.

On September 18, 2015, the Community submitted requests for reconsideration to the AS–IA and the Chairman. On October 28, 2015, the Office of the AS–IA issued an email to the Community's legal counsel indicating that the AS–IA would not reconsider the issue. Id. , ¶ 36. The NIGC...