GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Plaintiff-Appellee, v. OFFICE OF THE U.S. ATTORNEY FOR THE WESTERN DISTRICT OF MICHIGAN, Defendant, State of Michigan, Intervenor-Appellant.
No. 02-1679.
United States Court of Appeals, Sixth Circuit.
Argued: March 10, 2004. Decided and Filed: May 24, 2004.
369 F.3d 960
See also 46 F.Supp.2d 689.
Accordingly, we GRANT the Board‘s application for enforcement of its order.
John F. Petoskey (briefed), Grand Traverse Band Legal Department, Peshawbestown, MI, Riyaz A. Kanji (argued
John M. Charamella (argued and briefed), Office of the Attorney General, Native American Affairs Section Constitution Hall, Lansing, MI, for Plaintiff-Appellee.
Before: MARTIN and CLAY, Circuit Judges; MILLS, District Judge.*
OPINION
CLAY, Circuit Judge.
The State of Michigan, the intervenor in this litigation, appeals the April 22, 2002, order of the district court, declaring that it is permissible for the Grand Traverse Band of Ottawa and Chippewa Indians (“the Band“) to conduct casino-style gaming at a site which is located off of the Band‘s initial reservation and which was acquired and placed in trust for the Band after the enactment of the Indian Gaming Regulatory Act,
I
A. Substantive Facts1
The Band is a federally recognized Indian tribe presently mаintaining a government-to-government relationship with the United States. The Band previously maintained a government-to-government relationship with the United States from 1795 until 1872, and is a successor to a series of treaties with the United States in 1795, 1815, 1836 and 1855. In 1872, then-Secretary of the Interior, Columbus Delano, improperly severed the government-to-government relationship between the Band and the United States, ceasing to treat the Band as a federally recognized tribe. This occurred because the Secretary had misread the 1855 Treaty of Detroit, 10 Stat. 591.2 Following termination of the rela-
Between 1872 and 1980, the Band continually sought to regain its status as a federally recognized tribe. The Band‘s efforts succeeded in 1980 when it became the first tribe “acknowledged” by the Secretary of the Interior pursuant to the federal acknowledgment process,
On April 20, 1989, the Band acquired title to a parcel of land in Whitewater Township, Grand Traverse County, Michigan, that is commonly referred to as the “Turtle Creek” site. Located on the east shore of Grand Traverse Bay, Turtle Creek is at the heart of the region that comprised the core of the Band‘s aboriginal territory and was historically important to the economy and culture of the Band. Acquisition of the Turtle Creek site was important for the Band to maintain a connection to the east shore region and to provide services and economic development to its members located on the east shore. Although the Turtle Creek site is not located within or contiguous to the Band‘s last recognized reservation, it is within the lands that the Band ceded to the United States by the Treaty of 1836. The trust application for the Turtle Creek site did not indicate that it was being acquired for gaming purposes, though it did specify that it may be used for future economic development. The site was placed into federal trust on August 8, 1989.
In August 1993, the Band entered into a tribal-state gaming compact with the State of Michigan pursuant to the IGRA,
On June 13, 1994, the National Indian Gaming Commission approved the Band‘s Gaming Code pursuant to
B. Procedural History
On June 14, 1996, the day the Band commenced casino operations at Turtle
The State contended that the Turtle Creek casino operation is illegal because the IGRA,
The Band‘s original complaint asserted that the gaming prohibition contained in
On March 18, 1999, the district court denied the United States’ motion in a published opinion. See Grand Traverse Band of Ottawa & Chippewa Indians v. United States Attorney for the W. Dist. of Mich., 46 F.Supp.2d 689 (W.D.Mich.1999) (“Grand Traverse Band I“). The district court held that the government had not demonstrated a substantial likelihood of success in proving that the Turtle Creek land does not satisfy the “restoration of lands” exemption,
On August 31, 2001, Kevin Washburn, General Counsel for the NIGC, sent the district court a 19-page letter regarding whether the Turtle Creek site is exempt from the prohibition against casino-style gaming for lands acquired after the effective date of the IGRA. The NIGC found that the Turtle Creek site is exempt from the prohibition pursuant to the exception for lands that are taken into trust as part of “the restoration of lands for an Indian tribe that is restored to Federal recognition.”
The Band had a government-to-government relationship with the United States until 1876 at which time BIA officers improperly terminated the federal trust relationship by administrative action. The clear import of acknowledgment of the [Band] under federal aсknowledgment procedures was to “undo” the effect of the improper administrative action and to resume a proper government-to-government relationship between [the Band] and the federal government. The result was “restoration” under the plain meaning of that term. Accordingly, it is difficult to argue that the [Band] is not a “restored tribe” if the term should be interpreted according to its plain meaning.... The Band has assembled substantial evidence tending to establish that the Turtle Creek site has been important to the tribe throughout its history and remained so immediately on resumption of federal recognition.... The site is within the area ceded to the United States by the ancestors of the present [Band].... The region surrounding the casino site also has a modern nexus to the tribe. It is located within the “service area” for which tribal members are entitled to receive services by the BIA.... At the time of termination, Band members lived not far from the Turtle Creek site. For most of the Band‘s recorded history, it has lived and worked in this general area.... In light of this showing of continuous interest in the area, the Band has regained beneficial title to land that it may have ceded but did not abandon. In regaining its beneficial use (the fee being held by the United States) to land that has been at the heart of the Band‘s culture throughout history and particularly within the context of its restoration process, the [NIGC] believes that the Turtle Creek site constitutes land that has been not merely obtained but, in some sense, “restored” to the Band under Section
2719(b)(1)(B)(iii) .
(J.A. 222-31.) The Department of the Interior subsequently concurred with the NIGC‘s opinion.
As a consequence of this administrative opinion, the United States abandoned its opposition to the Turtle Creek casino and withdrew from the litigation. The district court then permitted the Band to amend its complaint for a second time, to reflect that the only issues that remained for trial were whether the Turtle Creek site satisfied the “restoration of lands exception” and whether the tribal-state compact afforded the Governor of Michigan with an absolute veto power over the siting of a casino at Turtle Creek.
The court then independently examined whether the Turtle Creek site is exempt from the prohibition pursuant to the exception for lands that are taken into trust as part of “the restoration of lands for an Indian tribe that is restored to Federal recognition” under
The court found that the words “restored” and “restoration” in the statutory exception were not defined in the IGRA, and therefore it looked to the plain meaning of the words. Grand Traverse Band II, 198 F.Supp.2d at 928. The court noted that the dictionary definition of “restore” includes the following meanings: to give back (as something lost or taken away), make restitution of, return, to put or bring back (as into existence or use); and to bring back or put back into a former or original state. Id. (citing Webster‘s New Third New Int‘l Dictionary 1936 (1976)). The court also looked to the dictionary definition of “restoration,” which includes the following meanings: an act of restoring or the condition or fact of being restored: as bringing back to or putting back in to a former position or conditions, reinstatement, renewal, or reestablishment. Id. (citing Webster‘s at 1936). The court then held that the Band clearly was a “restored tribe” under a plain meaning interpretation:
[T]he undisputed history of the Band‘s treaties with the Unitеd States and its prior relationship to the Secretary and the BIA demonstrates that the Band was recognized and treated with by the United States. Both prior to and after such treaties, until 1872, the Band was dealt with by the Secretary as a recognized tribe. Only in 1872 was that relationship administratively terminated by the BIA. This history of recognition by Congress through treaties (and historical administration by the Secretary), subsequent withdrawal of recognition, and yet later re-acknowledgment by the Secretary fits squarely within the dictionary definitions of “restore” and is reasonably construed as a process of restoration of tribal recognition. The plain language of subsection
(b)(1)(B)(iii) therefore suggests that this Band is restored.
Having found in favor of the Band on the first question (whether the Band was a
Based on the forеgoing, the district court concluded that casino-style gaming is permissible at the Turtle Creek site pursuant to
II
In this appeal, the State has not contested the district court‘s ruling that the acquisition of Turtle Creek was part of a “restoration of lands.” Accordingly, the sole issue for this Court is whether the Band is a tribe “restored to federal recognition.”3 Like the district court below, we answer this question in the affirmative.
Section 20 of the Indian Gaming Regulatory Act (“IGRA“),
(a) Prohibition on lands acquired in trust by Secretary
Except as provided in subsection (b) of this section, gаming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988, unless-
(1) such lands are located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988; or
(2) the Indian tribe has no reservation on October 17, 1988, and-
* * * *
(B) such lands are located in a State other than Oklahoma and are within the Indian tribe‘s last recognized reservation within the State or States within which such Indian tribe is presently located.
(b) Exceptions
(1) Subsection (a) of this section will not apply when-
(A) 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 аnd 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; or
(B) lands are taken into trust as part of-
(i) a settlement of a land claim,
(ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or
(iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.
The IGRA does not define the words “restored” and “restoration” in the “restoration of lands” exception set forth at
The State attempts to evade the plain language of the “restoration of lands” exception by arguing that the term “restoration” has a distinct meaning when applied to Indian tribes and their trust status with the federal government—a meaning that precludes tribes like the Band from constituting a restored tribe when it has been re-recognized administratively through the “acknowledgment” process. The State argues that Indian tribes inherently possess sovereignty, subject only to the plenary powers, and trust obligations, of the United States. The State further argues that an Indian tribe‘s trust relationship with the United States, once established by Congress, can be extinguished only by Congressional action and not by administrative action of the Secretary of the Interior. Moreover, when Congress has terminated that trust relationship, only Congress can restore it; the Secretary of the Interior has no power to restore trust status administratively through the acknowledgment process. The State points to a federal regulation providing that “groups which are, or the members of which are, subject to congressional legislation terminating or forbidding the Federal relationship may not be acknowledged” by the Secretary.
To support its view that the power to terminate the trust relationship of a Congressionally-recognized tribe lies exclusively with Congress, the State cites the First Circuit‘s decision in Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.1975). In that case, the federal government argued, among other things, that the Passamaquoddy Tribe was equitably precluded from invoking the trust relationship purportedly established by Congress through the Indian Nonintercourse Act. The court rejected this argument, holding that “once Congress has established a trust relationship with an Indian tribe, Congress alone has the right to determine when its guardianship shall cease.” Id. at 380 (citing United States v. Nice, 241 U.S. 591, 598, 36 S.Ct. 696, 60 L.Ed. 1192 (1916); Tiger v. W. Investment Co., 221 U.S. 286, 315, 31 S.Ct. 578, 55 L.Ed. 738 (1911)). The tribe simply did not have the power to terminate the relationship. Id. The unremarkable holding in Passamaquoddy, however, is irrelevant to the instant case. There is no dispute that only Congress had the legal right to terminate the Band‘s recognition because Congress originally had recognized the Band. But the relevant question is whether a termination nevertheless took place because the executive branch of the government illegally acted as if the Band‘s recognition had been terminated, as evidenced by its refusal to carry out any trust obligations for over one hundred years.
A prominent treatise on federal Indian law states that federal recognition of a tribe requires (1) a legal basis for recognition (i.e. Congressional or Executive action) and (2) the empirical indicia of recognition, namely, a “continuing political relationship with the group, such as by providing services through the Bureau of Indian Affairs.” Cohen, Handbook of Federal Indian Law 6 (1982). The First Circuit adopted Professor Cohen‘s test for tribal recognition in Mashpee Tribe v. Sec‘y of the Interior, 820 F.2d 480, 484 (1st Cir.1987) (Breyer, C.J.). See also W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1056 (10th Cir.1993) (“Historically, the federal government has treated a tribe as ‘recognized’ if Congress or the President has created a reservation for the group and the United States has a continuing political relationship with the group.“) (citing Cohen, supra, at 6). The implication of Professor Cohen‘s two-part test, which we adopt today, is that the empirical acts that are tantamount to the termination of tribal recognition are analytically distinct from the legality of those acts, just as the empirical act of terminating an individual‘s employment (e.g., being told to leave the workplace and never to return) is distinct from the legality of that act (e.g., a breach of contract).
Once tribal recognition is understood as having both legal and empirical elements, it becomes clear that the State‘s argument must fail. The State has conceded that “[t]he United States unilaterally ceased to treat the Band as a federally-recognized tribe commencing in 1872, when Secretary
Since the Secretary of the Interior had the power to terminate the Band‘s federal recognition, he also had the power to restore that recognition. That is exactly what the Secretary did in 1980 through the newly-promulgated acknowledgment process, which “applies only to those American Indian groups indigenous to the continental United States which are not currently acknowledged as Indian tribes by the Department” of the Interior and who have not been subject to federal legislation that expressly terminated the federal relationship.
The State persists in arguing that an administratively “acknowledged” tribe like the Band cannot simultaneously be a “restored” tribe by pointing to statutory language Congress has employed in other legislation concerning Indians. The State argues that Congress has consistently used the term “restored” to describe the legislative reestablishment of government-to-government relations with tribes whosе trust status had previously been terminated by Congressional action. In contrast, argues the State, Congress has used the term “affirmed” when recognizing tribes, such as the Pokagon Band of Potawatomi Indians, that had never been the subject of Congressional termination. E.g.,
Congress, however, has not consistently referred to legislatively terminated-and-later-recognized tribes as “restored” tribes. When Congress reversed its legislative termination of the Menominee Tribe, it provided that federal recognition was “extended” to the Tribe.
The Committee concludes that the Band was not terminated through an act of the Congress, but rather the Pokagon Band was unfairly terminated as a result of both faulty and inconsistent administrative decisions contrary to the intent of Congress, federal Indian law and the trust responsibility of the United States.... The Band‘s claim of rights and status as a treaty-based tribe, and the need to restore and clarify that status has been clearly demonstrated.
S.Rep. No. 103-266 at 6 (1994) (emphasis added). This language not only confirms the above conclusion that an executive agency can terminate the recognition of a Congressionally-recognized tribe, but also shows that Congress did not intend to meaningfully distinguish the word “affirmed” from “restored.” Thus, the district court correctly concluded that “the State has failed to demonstrate that Congress consistently and exclusively used only the word “restore” when restoring Indian tribes through legislative action.” Grand Traverse Band II, 198 F.Supp.2d at 930.
The State next argues that the structure of the exceptions set forth in
The State‘s arguments lack merit. As stated above, a tribe like the Band, which has had its federal recognition terminated by administrative action or inaction, can be restored to federal recognition through the administrativе acknowledgment process. Thus, it is possible for a tribe to be both “restored” and “acknowledged.” Moreover, the district court did not hold that every acknowledged tribe automatically constitutes a restored tribe. In fact, the court noted that there will be situations where there is no overlap, such as when the Secretary of the Interior has acknowl-
Finally, even assuming, arguendo, that the State has “muddied the waters” with respect to the meanings of the terms “restored” and “acknowledged,” the Supreme Court repeatedly has held that “‘statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.‘” Chickasaw Nation v. United States, 534 U.S. 84, 94, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1988)). This canon is “rooted in the unique trust relationship between the United States and the Indians.” Blackfeet Tribe, 471 U.S. at 766, 105 S.Ct. 2399 (internal quotation marks and citations omitted). The force of this interpretive canon can be overcome only when “other circumstances evidencing congressional intent” demonstrate that “the statute is ‘fairly capable’ of two interpretations ... [or] that the [conflicting] interpretation is fairly ‘possible.‘” Chickasaw Nation, 534 U.S. at 94, 122 S.Ct. 528 (citing Blackfeet Tribe, 471 U.S. at 766, 105 S.Ct. 2399).
The State has pointed to no evidence of Congressional intent that would forbid this Court from invoking the canon of statutory construction applied to statutes affeсting Indians and their trust relationship with the United States. Indeed, the only evidence of intent strongly suggests that the thrust of the IGRA is to promote Indian gaming, not to limit it. See
III
For all the foregoing reasons, the district court properly found that the Grand Traverse Band of Ottawa and Chippewa
Notes
Mem. of the United States Relating to Treaty Fishing Rights of Ottawa Indians, United States v. Michigan, No. M 26-73 (W.D.Mich.), at 2 (attached as Appendix 1 to Appellee‘s Br.) (emphasis added).The problem with fishing rights for [the Grand Traverse Band of Ottawas] is that there is no federally recognized tribal entity. Without such an entity, the federal government must oppose the assertion of treaty fishing rights by individual Ottawas or unrecognized Ottawa groups.