The Cherokee Nation v. United States Dep't of Interior

643 F.Supp.3d 90

The CHEROKEE NATION, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

Civil Action No. 20-2167 (TJK)

United States District Court, District of Columbia

Signed November 23, 2022

Colin Cloud Hampson, Frank Sharp Holleman, IV, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Bonita, CA, Sara Hill, Pro Hac Vice, Cherokee Nation Attorney General Office, Tahlequah, OK, for Plaintiff Cherokee Nation.

Colin Cloud Hampson, Frank Sharp Holleman, IV, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Bonita, CA, Meredith Presley Turpin, Pro Hac Vice, Office of Executive Counsel, Ada, OK, Stephen Greetham, Pro Hac Vice, Greetham Law, P.L.L.C. Office of Senior Counsel, Oklahoma City, OK, for Plaintiff Chickasaw Nation.

Colin Cloud Hampson, Frank Sharp Holleman, IV, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Bonita, CA, Bradley Harold Mallett, Pro Hac Vice, Brian Danker, Pro Hac Vice, Choctaw Nation of Oklahoma Legal & Compliance, Durant, OK, for Plaintiff Choctaw Nation.

Colin Cloud Hampson, Frank Sharp Holleman, IV, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Bonita, CA, for Plaintiff Citizen Potawatomi Nation.

Kristofor R. Swanson, Matthew M. Marinelli, U.S. Department of Justice Natural Resources Section, Washington, DC, for Defendants United States Department of Interior, Bryan Newland.

Daniel Webber, Jr., Pro Hac Vice, Matthew Kane, Pro Hac Vice, Patrick Pearce, Jr., Pro Hac Vice, Phillip Whaley, Pro Hac Vice, Ryan Whaley Coldiron Jantzen Peters & Webber PLLC, Oklahoma City, OK, Jason Reese, Pro Hac Vice, Goodwin Lewis, PLLC Office of the Governor, Oklahoma City, OK, Jeffrey B. Wall, Judson Owen Littleton, Zoe Jacoby, Sullivan & Cromwell LLP, Washington, DC, Mary Catherine Zinsner, Troutman Pepper Hamilton Sanders LLP, Washington, DC, Austin Philip Mayron, Pro Hac Vice, Sullivan & Cromwell LLP, New York, NY, Syed M. Reza, Greenberg Traurig, LLP, McLean, VA, for Defendant J. Kevin Stitt.

Saba Bazzazieh, Wyatt M. Rosette, Rosette, LLP, Washington, DC, Brett Stavin, Rosette, LLP, Oklahoma City, OK, Robert A. Rosette, Rosette, LLP, Chandler, AZ, for Defendant John R. Shotton.

Jeffrey C. Nelson, Maglio Christopher & Toale, P.A., Washington, DC, Klint Cowan, Pro Hac Vice, Fellers Snider, Oklahoma City, OK, Altom M. Maglio, Kehl Van Winkle, MCTLAW-Maglio Christopher & Toale Law Firm, Sarasota, FL, for Defendants Joe Bunch, Brian Givens.

Ben Kappelman, Vernle Charles Durocher, Jr., Dorsey & Whitney LLP, Minneapolis, MN, for Defendant Mark Woommavovah.

Kristofor R. Swanson, Natural Resources Section, Washington, DC, Matthew M. Marinelli, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendant Deb Haaland.

MEMORANDUM OPINION AND ORDER

TIMOTHY J. KELLY, United States District Judge

Plaintiffs are four Native American tribes who each operate casinos in Oklahoma under a tribal-gaming compact with Oklahoma under the Indian Gaming Regulatory Act. In their operative complaint, they seek to have set aside four tribal-gaming compacts for casino operations that four other Native American tribes in Oklahoma submitted to the Secretary of the Department of the Interior for approval and which were approved by inaction by operation of law. Before the Court now and ripe for decision are two motions to dismiss the complaint, a motion to dismiss a counterclaim, a motion to strike portions of one of the pending motions to dismiss, and a motion to compel the production of the administrative record. For the reasons explained below, the Court will grant in part and deny in part one of the motions to dismiss the complaint, deny the other motion to dismiss the complaint, grant the motion to dismiss the counterclaim, deny the motion to strike, and deny as moot the motion to compel the production of the administrative record.

I. Statutory Background

A. Indian Gaming Regulatory Act

In 1987, the Supreme Court held that states "lacked regulatory authority over gaming on Indian lands." Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 794, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014) (citing California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-22, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987)). In response the next year, Congress enacted the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 et seq., to give states "some measure of authority over gaming on Indian lands" within them under the auspices of a federal regulatory framework. See Bay Mills Indian Cmty., 572 U.S. at 795, 134 S.Ct. 2024 (internal quotation marks omitted); Amador Cnty. v. Salazar, 640 F.3d 373, 376 (D.C. Cir. 2011) (citing 25 U.S.C. §§ 2701-02).

Generally, IGRA authorizes tribal gaming only on "Indian lands," defined as lands within the limits of an "Indian reservation" as well as lands held in trust by the United States "for the benefit of any Indian tribe." 25 U.S.C. § 2710(a)(1)-(2), (b)(1), (d)(1); id. § 2703(4); Amador Cnty., 640 F.3d at 376-77. For any land that the Secretary of the Department of the Interior ("Secretary") acquires after October 17, 1988 to hold in trust for an "Indian tribe," further restrictions apply. See 25 U.S.C. § 2719(a).¹ As relevant here, IGRA permits gaming on such land if the Secretary:

after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination.

Id. § 2719(b)(1)(A). This is called the "two-part determination" or "Secretarial Determination." See 25 C.F.R. § 292.2.

IGRA also divides gaming into three classes. Amador Cnty., 640 F.3d at 376. "Class I gaming" consists of "social games" played for nominal prizes and "traditional forms of Indian gaming" occurring in connection with tribal ceremonies or celebrations. See 25 U.S.C. § 2703(6). "Class II gaming" consists of bingo, "games similar to bingo," and certain card games. Id. § 2703(7)(A)-(B). "Class III gaming" consists of "all forms of gaming that are not class I gaming or class II gaming." Id. § 2703(8). Class III gaming includes most conventional casino games—blackjack, roulette, slot machines, and the like. Amador Cnty., 640 F.3d at 376; 25 C.F.R. § 502.4.

"Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribes," meaning that it is not regulated by IGRA and cannot be regulated by a state. See 25 U.S.C. § 2710(a)(1); Colo. River Indian Tribes v. Nat'l Indian Gaming Comm'n, 466 F.3d 134, 135 (D.C. Cir. 2006); Cabazon Band of Mission Indians v. Nat'l Indian Gaming Comm'n, 827 F. Supp. 26, 28 n.1 (D.D.C. 1993). Class II gaming on "Indian lands" is also "within the jurisdiction of the Indian tribes," though IGRA regulates it. 25 U.S.C. § 2710(a)(2), (b)-(c); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48 n.1, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Colo. River Indian Tribes, 466 F.3d at 135-36. Class III gaming on "Indian lands" is subject to both IGRA and state regulation, and before commencing class III gaming, "a tribe must satisfy three conditions." See Amador Cnty., 640 F.3d at 376; see also 25 U.S.C. § 2710(d)(1). First, "the gaming must be authorized by a tribal ordinance or resolution that has been approved by the National Indian Gaming Commission." Amador Cnty., 640 F.3d at 376 (citing 25 U.S.C. § 2710(d)(1)(A), (d)(2)(C)). Second, "the Indian lands where the gaming will take place must be located within a state that permits [such] gaming 'for any purpose by any person, organization, or entity.'" Id. (quoting 25 U.S.C. § 2710(d)(1)(B)). Third, the gaming must be "conducted in conformance with a tribal-state compact that has been approved by the Secretary." Id. (citing 25 U.S.C. § 2710(d)(1)(C)).

IGRA regulates the tribal-gaming compacting process in several ways pertinent here. For one, IGRA specifies the subjects that may be negotiated between the tribe and the state in the compacting process. See 25 U.S.C. § 2710(d)(3)(C)(i)-(vii). Courts have interpreted this list as exclusive, meaning that IGRA compacts may not address other subjects besides those listed. See, e.g., Forest Cnty. Potawatomi Cmty. v. United States, 330 F. Supp. 3d 269, 275, 280 (D.D.C. 2018); Chicken Ranch Rancheria of Me-Wuk Indians v. California, 42 F.4th 1024, 1034-35 (9th Cir. 2022). One permitted subject is "assessment[s] by the State of [class III gaming] activities in such amounts as are necessary to defray the costs of regulating [class III gaming] activity." 25 U.S.C. § 2710(d)(3)(C)(iii). But these cost-related "assessment[s]" cannot amount to a "tax, fee, charge, or other assessment" on tribal gaming. See id. § 2710(d)(4).

Once the tribe and the state have negotiated a compact, it then must be "legally entered into by both parties." See 25 C.F.R. § 293.7; see also 25 U.S.C. § 2710(d)(3)(B), (d)(8)(A). State law governs whether the state has "legally entered into" the compact. See, e.g., Kickapoo Tribe of Indians v. Babbitt, 827 F. Supp. 37, 46 (D.D.C. 1993), rev'd on other grounds, 43 F.3d 1491 (D.C. Cir. 1995); accord Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1553, 1557-58 (10th Cir. 1997). If a compact has not been legally entered into under state law, it is "invalid" under IGRA. See, e.g., Kickapoo Tribe of Indians, 827 F. Supp. at 46 (citing 25 U.S.C. § 2710(d)(8)(A)); accord Pueblo of Santa Ana, 104 F.3d at 1555, 1559.

After a tribe and a state have "entered into" a tribal-gaming compact, they must submit the compact to the Secretary for review. See 25 C.F.R. § 2710(d)(8)(A); 25 C.F.R. § 293.7; Amador Cnty., 640 F.3d at 377. Once that happens, the Secretary "has three choices." Amador Cnty., 640 F.3d at 377. First, she "may approve the compact."

Id. (citing 25...