643 F.Supp.3d 90
D.D.C.2022Background
- Plaintiffs are four federally recognized Oklahoma tribes that operate Class III gaming under state model compacts; four other Oklahoma tribes negotiated non-model compacts with the Governor and submitted them to the Secretary of the Interior for IGRA review.
- The Secretary took no action within the 45-day review periods, resulting in no-action approvals published in the Federal Register for the Comanche Nation, Otoe‑Missouria Tribe, United Keetoowah Band, and Kialegee Tribal Town.
- Oklahoma officials (AG and legislative leaders) challenged the new compacts under state law; the Oklahoma Supreme Court later held the compacts invalid, but the four tribes continued to pursue or plan Class III gaming under the new compacts.
- Plaintiffs sued under the APA/IGRA asking the court to set aside the Secretary’s no-action approvals, alleging compacts were not legally “entered into” and contained illegal provisions (unauthorized games, unlawful revenue-sharing, regulation of Class II gaming, and preemptive gubernatorial concurrence on land-into-trust).
- The federal defendants moved to dismiss for lack of standing and failure to state a claim; tribal defendants also moved; the Court held Plaintiffs have standing and stated claims for the Comanche and Otoe‑Missouria compacts but not for the United Keetoowah or Kialegee compacts, and dismissed a mirror counterclaim on tribal‑immunity grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge Secretary’s no-action approvals (injury-in-fact) | Plaintiffs allege concrete illegal‑competition injuries from tribes operating under the new compacts | Defendants argue Plaintiffs lack concrete or imminent injury for some compacts; allegations are speculative | Standing exists for Comanche and Otoe‑Missouria compacts; no standing for United Keetoowah and Kialegee compacts |
| Secretary’s duty during 45‑day review to assess whether compact was validly “entered into” under state law | Secretary must disapprove compacts that violate IGRA, including those not validly entered into | Secretary need not resolve state‑law entry disputes within 45 days | Court follows Amador County: Secretary has affirmative duty to determine compliance and disapprove compacts that violate IGRA; AG opinion resolved the state‑law question during the period here |
| Effect of no‑action approval “only to the extent consistent” / severability of illegal provisions | Plaintiffs: illegal provisions required disapproval of entire compacts; thus no‑action approvals were unlawful | Defendants: no‑action approvals operate only to the extent consistent with IGRA; severability prevents full invalidation | Severability/line‑by‑line invalidation is a merits question; at pleading stage court assumes plaintiffs’ Amador‑based theory and denies dismissal on these claims for the two compacts with standing |
| Tribal immunity as to mirror-image counterclaims by tribal defendants | Plaintiffs: tribes retain sovereign immunity and did not waive it by suing; counterclaim barred | Counterclaiming tribe: waiver‑by‑litigation or mirror‑image exception permits counterclaim | Court holds tribal immunity bars Shotton’s counterclaim; no waiver by initiating suit; counterclaim dismissed |
Key Cases Cited
- Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (discussing limits on state regulation of gaming on Indian lands)
- California v. Cabazon Band of Mission Indians, 480 U.S. 202 (background on federal/tribal gaming authority)
- Amador Cnty. v. Salazar, 640 F.3d 373 (D.C. Cir.) (Secretary must disapprove compacts that violate IGRA; central precedent here)
- Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (treatment of tribal jurisdictional/sovereign matters under federal law)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements)
- Haase v. Sessions, 835 F.2d 902 (D.C. Cir.) (pleading‑stage protection against defendant’s evidentiary attacks on standing)
- Ass’n of Gas Distribs. v. FERC, 899 F.2d 1250 (D.C. Cir.) (competitive‑injury standing doctrine)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (imminence standard for threatened injury)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (requirement that threatened injury be certainly impending or present a substantial risk)
- Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751 (tribal sovereign immunity principles)
- Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765 (D.C. Cir.) (tribal immunity waiver rules)