369 F.3d 960 | 6th Cir. | 2004
Before: MARTIN and CLAY, Circuit Judges; MILLS,
District Judge. [*] UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL ARGUED: John M. Charamella, OFFICE OF THE G RAND T RAVERSE B AND OF (cid:88) ATTORNEY GENERAL, Lansing, Michigan, for Appellant. (cid:45) O TTAWA AND C HIPPEWA Riyaz A. Kanji, KANJI & KATZEN, Ann Arbor, Michigan, (cid:45) I NDIANS , for Appellee. ON BRIEF: John M. Charamella, OFFICE (cid:45) No. 02-1679 Plaintiff-Appellee, OF THE ATTORNEY GENERAL, Lansing, Michigan, for (cid:45) >
Appellant. Riyaz A. Kanji, Phillip F. Katzen, KANJI & (cid:44) KATZEN, Ann Arbor, Michigan, John F. Petoskey, GRAND v. (cid:45) TRAVE R S E BAND LEGAL DEPARTMENT, (cid:45) Peshawbestown, Michigan, for Appellee. O FFICE OF THE U.S. (cid:45) (cid:45) A TTORNEY FOR THE W ESTERN
_________________ (cid:45) D ISTRICT OF M ICHIGAN , (cid:45) OPINION Defendant, (cid:45) _________________ (cid:45) S TATE OF M ICHIGAN , (cid:45) CLAY, Circuit Judge. The State of Michigan, the (cid:45) Intervenor-Appellant. intervenor in this litigation, appeals the April 22, 2002, order (cid:45) of the district court, declaring that it is permissible for the (cid:78) Grand Traverse Band of Ottawa and Chippewa Indians (“the Band”) to conduct casino-style gaming at a site which is
Appeal from the United States District Court located off of the Band’s initial reservation and which was for the Western District of Michigan at Grand Rapids. acquired and placed in trust for the Band after the enactment No. 96-00466—Douglas W. Hillman, District Judge. of the Indian Gaming Regulatory Act, 25 U.S.C. § 2710 et seq. (“IGRA”), pursuant to an exception for such gaming on
Argued: March 10, 2004 lands taken into trust as part of the restoration of lands for an Indian tribe that is restored to federal recognition, 25 U.S.C.
Decided and Filed: May 24, 2004 I Between 1872 and 1980, the Band continually sought to regain its status as a federally recognized tribe. The Band’s A. Substantive Facts [1] efforts succeeded in 1980 when it became the first tribe “acknowledged” by the Secretary of the Interior pursuant to
The Band is a federally recognized Indian tribe presently the federal acknowledgment process, 25 C.F.R. Part 54 (now maintaining a government-to-government relationship with 25 C.F.R. Part 83). On January 17, 1984, the Department of the United States. The Band previously maintained a the Interior declared a single 12.5 acre parcel as the initial government-to-government relationship with the United reservation of the Band. 49 Fed. Reg. 2025 (Jan. 17, 1984). States from 1795 until 1872, and is a successor to a series of The history of the Band’s original recognition, executive treaties with the United States in 1795, 1815, 1836 and 1855. termination and later re-recognition is essentially parallel to In 1872, then-Secretary of the Interior, Columbus Delano, that of the Pokagon Band of Potawatomi Indians, the Little improperly severed the government-to-government Traverse Bay Bands of Odawa Indians, and the Little River relationship between the Band and the United States, ceasing Band of Ottawa Indians. All three tribes were parties to the to treat the Band as a federally recognized tribe. This same series of treaties and the same termination by Secretary occurred because the Secretary had misread the 1855 Treaty Delano in 1872. of Detroit, 10 Stat. 591. [2] Following termination of the On April 20, 1989, the Band acquired title to a parcel of land in Whitewater Township, Grand Traverse County, the Secretary of the Interior published his approval of the of the Governor of Michigan, that the casino would be in the compacts in the Federal Register. 58 Fed. Reg. 63,262 best interests of the tribe and its members and would not be (1993). detrimental to the surrounding community. The Band has not
sought such a determination from the Secretary, nor the On June 13, 1994, the National Indian Gaming consent of the Governor, insisting that the Turtle Creek Commission approved the Band’s Gaming Code pursuant to location satisfies one of the § 2719 exceptions. 25 C.F.R. §§ 522.6 and 522.8. In accordance with the Band’s Gaming Code, the Grand Traverse Band Gaming Commission The Band’s original complaint asserted that the gaming issued a license authorizing casino-style gaming at the Turtle prohibition contained in 25 U.S.C. § 2719 does not apply Creek site. The Band opened its Turtle Creek Casino on June when a Tribe has a valid tribal-state compact. Following the 14, 1996. The casino’s operations now employ hundreds of decision of this Court in Keweenaw Bay Indian Community tribal members and fund hundreds of tribal government v. United States, 136 F.3d 469 (6th Cir. 1998), the Band positions responsible for administering programs such as abandoned this claim, amended its complaint, and asserted health care, elder care, child care, youth services, education, that the Turtle Creek site is “within or contiguous to the housing, economic development and law enforcement. boundaries of the reservation of the Indian tribe on October
17, 1988,” pursuant to § 2719(a)(1), and thus was exempted B. Procedural History from the prohibition against casino-style gaming. The United States then moved for a preliminary injunction against On June 14, 1996, the day the Band commenced casino continued gaming operations at Turtle Creek. In response, the operations at Turtle Creek, it brought a declaratory judgment Band proffered additional theories to support its exemption No. 02-1679 Grand Traverse Band v. 7 8 Grand Traverse Band v. No. 02-1679 Office of U.S. Attorney Office of U.S. Attorney from the prohibition: (1) the Turtle Creek land is exempt restoration of lands for an Indian tribe that is restored to because it had been taken into trust as part of “the initial Federal recognition.” 25 U.S.C. § 2719(b)(1)(B)(iii). To reservation of an Indian tribe acknowledged by the Secretary” reach this conclusion, the NIGC answered two questions: of Interior, pursuant to § 2719(b)(1)(B)(ii) and (2) the land is (1) whether the Band became an Indian tribe that “is restored exempt because it constituted part of “the restoration of lands to Federal Recognition” when the Secretary of the Interior for an Indian tribe that is restored to Federal recognition” invoked an administrative process to formally “acknowledge” pursuant to § 2719(b)(1)(B)(iii). the tribe in 1980; and (2) whether the Turtle Creek lands were
taken into trust as part of the restoration of lands for the Band. On March 18, 1999, the district court denied the United In answering both questions in the affirmative, the NIGC States’ motion in a published opinion. See Grand Traverse reasoned as follows: Band of Ottawa & Chippewa Indians v. United States Attorney for the W. Dist. of Mich., 46 F. Supp.2d 689 (W.D. The Band had a government-to-government relationship Mich. 1999) (“ Grand Traverse Band I ”). The district court with the United States until 1876 at which time BIA held that the government had not demonstrated a substantial officers improperly terminated the federal trust likelihood of success in proving that the Turtle Creek land relationship by administrative action. The clear import does not satisfy the “restoration of lands” exemption, 25 of acknowledgment of the [Band] under federal U.S.C. § 2719(b)(1)(B)(iii). Id. at 702-04. The district court acknowledgment procedures was to “undo” the effect of further stayed the litigation, pending a reference of the matter the improper administrative action and to resume a to the National Indian Gaming Commission (“NIGC”). Id. at proper government-to-government relationship between 706. The court found that it could benefit from the NIGC’s [the Band] and the federal government. The result was determination of both factual and legal issues relating to the “restoration” under the plain meaning of that term. application of the “restoration of lands” exception. Id. at 707- Accordingly, it is difficult to argue that the [Band] is not 08. The State appealed the district court’s denial of the a “restored tribe” if the term should be interpreted preliminary injunction, but this Court dismissed the appeal according to its plain meaning. …The Band has because the State, as an intervenor, had not joined with the assembled substantial evidence tending to establish that United States’ motion for preliminary injunction, and the Turtle Creek site has been important to the tribe therefore lacked standing to pursue the appeal. See Grand throughout its history and remained so immediately on Traverse Band of Ottawa & Chippewa Indians v. Office of the resumption of federal recognition.…The site is within the U.S. Attorney for the W. Dist. of Mich., No. 99-1584 (6th Cir. area ceded to the United States by the ancestors of the May 17, 2001). present [Band].…The region surrounding the casino site
also has a modern nexus to the tribe. It is located within On August 31, 2001, Kevin Washburn, General Counsel for the “service area” for which tribal members are entitled the NIGC, sent the district court a 19-page letter regarding to receive services by the BIA.…At the time of whether the Turtle Creek site is exempt from the prohibition termination, Band members lived not far from the Turtle against casino-style gaming for lands acquired after the Creek site. For most of the Band’s recorded history, it effective date of the IGRA. The NIGC found that the Turtle has lived and worked in this general area.…In light of Creek site is exempt from the prohibition pursuant to the this showing of continuous interest in the area, the Band exception for lands that are taken into trust as part of “the
has regained beneficial title to land that it may have No. 02-1679 Grand Traverse Band v. 9 10 Grand Traverse Band v. No. 02-1679 Office of U.S. Attorney Office of U.S. Attorney ceded but did not abandon. In regaining its beneficial Corp., 533 U.S. 218, 228-30, 233-35)). The court deemed it use (the fee being held by the United States) to land that appropriate to afford the NIGC opinion “substantial weight” has been at the heart of the Band’s culture throughout and found no reasonable basis for altering its conclusion that history and particularly within the context of its the Band is a restored tribe within the meaning of the IGRA. restoration process, the [NIGC] believes that the Turtle Id. Creek site constitutes land that has been not merely The court then independently examined whether the Turtle obtained but, in some sense, “restored’ to the Band under Creek site is exempt from the prohibition pursuant to the Section 2719(b)(1)(B)(iii).
exception for lands that are taken into trust as part of “the (J.A. 222-31.) The Department of the Interior subsequently restoration of lands for an Indian tribe that is restored to concurred with the NIGC’s opinion. Federal recognition” under 25 U.S.C. § 2719(b)(1)(B)(iii).
As the NIGC had done, the court broke this question into two As a consequence of this administrative opinion, the United parts: first, whether the Band is a “restored tribe” and second, States abandoned its opposition to the Turtle Creek casino whether the acquisition of Turtle Creek is part of a and withdrew from the litigation. The district court then “restoration of lands.” permitted the Band to amend its complaint for a second time, to reflect that the only issues that remained for trial were The court found that the words “restored” and “restoration” whether the Turtle Creek site satisfied the “restoration of in the statutory exception were not defined in the IGRA, and lands exception” and whether the tribal-state compact therefore it looked to the plain meaning of the words. Grand afforded the Governor of Michigan with an absolute veto Traverse Band II, 198 F. Supp.2d at 928. The court noted power over the siting of a casino at Turtle Creek. that the dictionary definition of “restore” includes the
following meanings: to give back (as something lost or taken A bench trial was held in January, 2002. On April 22, away), make restitution of, return, to put or bring back (as 2002, the district court issued a memorandum opinion and into existence or use); and to bring back or put back into a order in which it held that the Turtle Creek site was subject to former or original state. Id. (citing Webster’s New Third the “restoration of lands” exception. Grand Traverse II, New Int’l Dictionary 1936 (1976)). The court also looked to supra. The court noted, and the parties agreed, that the the dictionary definition of “restoration,” which includes the NIGC’s finding that the “restoration of lands” exception following meanings: an act of restoring or the condition or applied to the Turtle Creek site was not entitled to the highest fact of being restored: as bringing back to or putting back in level of deference accorded to an administrative agency to a former position or conditions, reinstatement, renewal, or because the NIGC had not employed formal adjudicatory reestablishment. Id. (citing Webster’s at 1936). The court procedures. Grand Traverse Band II, 198 F. Supp. 2d at 927
then held that the Band clearly was a “restored tribe” under a (holding that NIGC opinion was not entitled to deference per plain meaning interpretation: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). Nevertheless, the court gave such [T]he undisputed history of the Band’s treaties with the deference to the NIGC opinion as it deemed appropriate “in United States and its prior relationship to the Secretary light of the thoroughness, reasoning and consistency of its and the BIA demonstrates that the Band was recognized determination.” Id. at 928 (citing United States v. Mead and treated with by the United States. Both prior to and No. 02-1679 Grand Traverse Band v. 11 12 Grand Traverse Band v. No. 02-1679
Office of U.S. Attorney Office of U.S. Attorney after such treaties, until 1872, the Band was dealt with by II the Secretary as a recognized tribe. Only in 1872 was
In this appeal, the State has not contested the district court’s that relationship administratively terminated by the BIA. ruling that the acquisition of Turtle Creek was part of a This history–of recognition by Congress through treaties “restoration of lands.” Accordingly, the sole issue for this (and historical administration by the Secretary), Court is whether the Band is a tribe “restored to federal subsequent withdrawal of recognition, and yet later re-
recognition.” [3] Like the district court below, we answer this acknowledgment by the Secretary–fits squarely within question in the affirmative. the dictionary definitions of “restore” and is reasonably construed as a process of restoration of tribal recognition.
Section 20 of the Indian Gaming Regulatory Act (“IGRA”), The plain language of subsection (b)(1)(B)(iii) therefore 25 U.S.C. § 2719, generally prohibits casino-style gaming on suggests that this Band is restored. lands acquired by the Secretary of the Interior in trust for an Indian tribe after October 17, 1988, unless an exception is
Id. at 934. satisfied. That section states, in relevant part: Having found in favor of the Band on the first question (a) Prohibition on lands acquired in trust by Secretary (whether the Band was a tribe restored to federal recognition), the district court proceeded to address the second question
Except as provided in subsection (b) of this section, (whether the Turtle Creek site was acquired as part of a gaming regulated by this chapter shall not be conducted “restoration of lands”). The court ruled in favor of the Band on lands acquired by the Secretary in trust for the benefit on this question as well. Id. at 936. The court further rejected of an Indian tribe after October 17, 1988, unless-- the State’s assertion that casino-style gaming is barred by section 2(C) of the tribal-State compact, which allegedly
(1) such lands are located within or contiguous to gives the Governor of Michigan absolute veto power over the boundaries of the reservation of the Indian tribe gaming activities on lands taken into trust for the Band. Id. on October 17, 1988; or at 937. The court held that the plain language of the compact merely incorporated by reference the Governor’s concurrence
(2) the Indian tribe has no reservation on October power “pursuant to 25 U.S.C. § 2719,” and therefore the 17, 1988, and– Governor had no greater veto power than that vested by § 2719. Id. at 938.
* * * * Based on the foregoing, the district court concluded that (B) such lands are located in a State other than casino-style gaming is permissible at the Turtle Creek site Oklahoma and are within the Indian tribe’s last pursuant to 25 U.S.C. § 2719(b)(1)(B)(iii) (the “restoration of lands” exception). The court entered judgment in favor of the Band on April 22, 2002. Id. at 940. The State filed a timely [3] appeal. There are no disputed issues of fact on ap peal, only issues of statutory interpretation, which this court reviews under a de novo standard. Un ited States v. M iami Univ., 294 F.3d 797 , 806 (6th C ir. 2002).
No. 02-1679 Grand Traverse Band v. 13 14 Grand Traverse Band v. No. 02-1679 Office of U.S. Attorney Office of U.S. Attorney recognized reservation within the State or States absent an indication Congress intended them to bear some within which such Indian tribe is presently different import.” Williams v. Taylor, 529 U.S. 420, 431-32 located. (2000) (internal quotation marks and citations omitted)
(referring to Webster’s dictionary definitions to determine the (b) Exceptions meaning of a statutory term). The district court appropriately looked to the dictionary definitions of “restore” and (1) Subsection (a) of this section will not apply “restoration,” which include the following meanings: to give when-- back, return, make restitution, reinstatement, renewal, and reestablishment. Grand Traverse Band II, 198 F. Supp.2d at
(A) the Secretary, after consultation with the 928 (citing Webster’s at 1936). The court then correctly held Indian tribe and appropriate State and local that the Band clearly was a “restored tribe” under these officials, including officials of other nearby definitions. The Band had treaties with the United States and Indian tribes, determines that a gaming a prior relationship with the Secretary of the Interior at least establishment on newly acquired lands would as far back as 1795. Until 1872, the Secretary had treated the be in the best interest of the Indian tribe and its Band as a recognized tribe. As the State concedes, the members, and would not be detrimental to the “United States unilaterally ceased to treat the Band as a surrounding community, but only if the federally-recognized tribe commencing in 1872, when Governor of the State in which the gaming Secretary of the Interior Columbus Delano improperly activity is to be conducted concurs in the severed the government-to-government relationship between Secretary's determination; or the United States and the Band.” In 1980, the Secretary finally re-established the government-to-government
(B) lands are taken into trust as part of-- relationship through the administrative “acknowledgment” process. As the district court concluded, this history of
(i) a settlement of a land claim, governmental recognition, withdrawal of recognition, and then reinstatement of recognition “fits squarely within the
(ii) the initial reservation of an Indian tribe dictionary definitions of ‘restore’ and is reasonably construed acknowledged by the Secretary under the as a process of restoration of tribal recognition.” Grand Federal acknowledgment process, or Traverse II, 198 F. Supp.2d at 934. Thus, we hold that the Band is a tribe “restored to Federal recognition” under the
(iii) the restoration of lands for an Indian plain language of 25 U.S.C. § 2719 (b)(1)(B)(iii). tribe that is restored to Federal recognition. The State attempts to evade the plain language of the
25 U.S.C.A. § 2719.
“restoration of lands” exception by arguing that the term “restoration” has a distinct meaning when applied to Indian
The IGRA does not define the words “restored” and tribes and their trust status with the federal government – a “restoration” in the “restoration of lands” exception set forth meaning that precludes tribes like the Band from constituting at § 2719(b)(1)(B)(iii). Therefore, this Court must give the a restored tribe when it has been re-recognized words “their ordinary, contemporary, common meaning, administratively through the “acknowledgment” process. The No. 02-1679 Grand Traverse Band v. 15 16 Grand Traverse Band v. No. 02-1679 Office of U.S. Attorney Office of U.S. Attorney State argues that Indian tribes inherently possess sovereignty, this argument, holding that “once Congress has established a subject only to the plenary powers, and trust obligations, of trust relationship with an Indian tribe, Congress alone has the the United States. The State further argues that an Indian right to determine when its guardianship shall cease.” Id. at tribe’s trust relationship with the United States, once 380 (citing United States v. Nice, 241 U.S. 591, 598 (1916); established by Congress, can be extinguished only by Tiger v. W. Investment Co., 221 U.S. 286, 315 (1911)). The Congressional action and not by administrative action of the tribe simply did not have the power to terminate the Secretary of the Interior. Moreover, when Congress has relationship. Id. The unremarkable holding in terminated that trust relationship, only Congress can restore Passamaquoddy, however, is irrelevant to the instant case. it; the Secretary of the Interior has no power to restore trust There is no dispute that only Congress had the legal right to status administratively through the acknowledgment process. terminate the Band’s recognition because Congress originally The State points to a federal regulation providing that “groups had recognized the Band. But the relevant question is which are, or the members of which are, subject to whether a termination nevertheless took place because the congressional legislation terminating or forbidding the executive branch of the government illegally acted as if the Federal relationship may not be acknowledged” by the Band’s recognition had been terminated, as evidenced by its Secretary. 25 C.F.R. § 83.3(e). refusal to carry out any trust obligations for over one hundred
years. The Band counters that a termination of tribal recognition can occur not only through Congressional legislation but also A prominent treatise on federal Indian law states that through a complete refusal of the federal government, which federal recognition of a tribe requires (1) a legal basis for includes the executive branch, to treat the Band as a tribe. recognition (i.e. Congressional or Executive action) and Thus, in 1872 and for the next hundred years, during which (2) the empirical indicia of recognition, namely, a “continuing the Secretary of the Interior erroneously refused to treat the political relationship with the group, such as by providing Band as a tribe, the Band suffered a de facto termination of services through the Bureau of Indian Affairs.” Cohen, the trust relationship, even though only Congress legally Handbook of Federal Indian Law 6 (1982). The First Circuit could terminate that relationship. Since the executive branch adopted Professor Cohen’s test for tribal recognition in effectively could terminate the trust relationship, it also could Mashpee Tribe v. Sec’y of the Interior, 820 F.2d 480, 484 (1st restore it, which is what the acknowledgment process Cir. 1987) (Breyer, C.J.). See also W. Shoshone Bus. Council accomplished. v. Babbitt, 1 F.3d 1052, 1056 (10th Cir. 1993) (“Historically,
the federal government has treated a tribe as ‘recognized’ if To support its view that the power to terminate the trust Congress or the President has created a reservation for the relationship of a Congressionally-recognized tribe lies group and the United States has a continuing political exclusively with Congress, the State cites the First Circuit’s relationship with the group.”) (citing Cohen, supra , at 6). The decision in Joint Tribal Council of the Passamaquoddy Tribe implication of Professor Cohen’s two-part test, which we v. Morton, 528 F.2d 370 (1st Cir. 1975). In that case, the adopt today, is that the empirical acts that are tantamount to federal government argued, among other things, that the the termination of tribal recognition are analytically distinct Passamaquoddy Tribe was equitably precluded from invoking from the legality of those acts, just as the empirical act of the trust relationship purportedly established by Congress terminating an individual’s employment (e.g., being told to through the Indian Nonintercourse Act. The court rejected No. 02-1679 Grand Traverse Band v. 17 18 Grand Traverse Band v. No. 02-1679
Office of U.S. Attorney Office of U.S. Attorney leave the workplace and never to return) is distinct from the Since the Secretary of the Interior had the power to legality of that act (e.g., a breach of contract). terminate the Band’s federal recognition, he also had the
power to restore that recognition. That is exactly what the Once tribal recognition is understood as having both legal Secretary did in 1980 through the newly-promulgated and empirical elements, it becomes clear that the State’s acknowledgment process, which “applies only to those argument must fail. The State has conceded that “[t]he American Indian groups indigenous to the continental United United States unilaterally ceased to treat the Band as a States which are not currently acknowledged as Indian tribes federally-recognized tribe commencing in 1872, when by the Department” of the Interior and who have not been Secretary of the Interior Columbus Delano improperly subject to federal legislation that expressly terminated the severed the government-to-government relationship between federal relationship. 25 C.F.R. §§ 83.3(a), 83.3(e), 83.7(g). the United States and the Band.” In other words, acting
The result of this administrative acknowledgment was a through the Secretary of the Interior, the federal government restoration of federal recognition, a necessary component of terminated the political relationship with the group, in which includes the resumption of the government’s political particular, the provision of services. Because the Department relationship with the Band. Contrary to the State’s position, of Interior refused to recognize the Band as a political entity, the restoration of federal recognition was not contingent on “the Band experienced increasing poverty, loss of land base Congressional action, because it was administrative action and depletion of the resources of its community,” particularly that terminated the recognition in the first place. On the facts when compared to those tribes that appeared on the of this case, a tribe like the Band, which was administratively Department of Interior’s list of federally recognized tribes.
“acknowledged,” also is a “restored” tribe. Grand Traverse Band II, 198 F. Supp.2d at 924. Thus, the undisputed facts show that the federal government withdrew The State persists in arguing that an administratively the Band’s recognition in 1872 under the second factor of the “acknowledged” tribe like the Band cannot simultaneously be Cohen test. [4]
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 whose trust [4] Indeed, the federal government admitted the Band’s lack of
status had previously been terminated by Congressional recognition in 1979, one year before the Band was acknowledged by the action. In contrast, argues the State, Congress has used the Secretary of the Interior. In a 1979 brief filed in a case concerning the Band’s fishing rights und er a 1836 treaty, the U nited S tates argued, term “affirmed” when recognizing tribes, such as the Pokagon
Band of Potawatomi Indians, that had never been the subject The problem with fishing rights for [the Grand T raverse Band of Congressional termination. E.g., 25 U.S.C. §§ 1300j, of] Ottawas is that there is no fed erally recognized tribal en tity . 1300j-1. W ithout such an entity, the federal governm ent must oppose the assertion of treaty fishing rights by individual Ottawas or Congress, however, has not consistently referred to unrecognized O ttawa groups.
legislatively terminated-and-later-recognized tribes as Mem. of the Un ited States Relating to Treaty Fishing Rights of Ottawa “restored” tribes. When Congress reversed its legislative Indians, United States v. Michigan, No. M 26-73 ( W .D. M ich.), at 2 termination of the Menominee Tribe, it provided that federal (attached as Appendix 1 to App ellee’s Br. ) (emp hasis ad ded ). No. 02-1679 Grand Traverse Band v. 19 20 Grand Traverse Band v. No. 02-1679
Office of U.S. Attorney Office of U.S. Attorney recognition was “extended” to the Tribe. 25 U.S.C. best interest of the Indian tribe and not detrimental to the § 903a(a). Congress also reversed its legislative terminations surrounding community, and the Governor has concurred in of three other tribes by providing that federal recognition was the Secretary's determination; (2) the lands were taken into “extended or confirmed” to those tribes. Id. § 861(a), (b). trust as part of a settlement of a land claim; (3) the lands were Finally, although Congress used the term “affirmed” when it taken into trust as part of the initial reservation of an Indian legislatively recognized the Pokagon Band, whose trust status tribe acknowledged by the Secretary under the federal had not previously been terminated by Congress, the report of acknowledgment process; or (4) the lands were taken into the Senate Committee on Indian Affairs that accompanied the trust as part of the restoration of lands for an Indian tribe that legislation stated, is restored to federal recognition. 25 U.S.C. § 2719(b)(1).
The State argues that the “acknowledged tribe” exception and The Committee concludes that the Band was not the “restoration of lands” exception are expressly limited to terminated through an act of the Congress, but rather the either “acknowledged” or “restored” tribes, respectively, and Pokagon Band was unfairly terminated as a result of both that the two exceptions are mutually exclusive. The State faulty and inconsistent administrative decisions contrary further argues that if such overlap is permitted, the to the intent of Congress, federal Indian law and the trust “acknowledged tribe” exception is relegated to mere responsibility of the United States.…The Band’s claim surplusage, because any lands established as the initial of rights and status as a treaty-based tribe, and the need reservation of an acknowledged tribe also qualify as restored to restore and clarify that status has been clearly lands for a restored tribe under the “restoration of lands” demonstrated.
exception. According to the State, no tribe would ever resort to the “acknowledged tribe” exception because it could
S. Rep. No. 103-266 at 6 (1994) (emphasis added). This invoke the more liberal provisions of the “restoration of language not only confirms the above conclusion that an lands” exception. executive agency can terminate the recognition of a Congressionally-recognized tribe, but also shows that The State’s arguments lack merit. As stated above, a tribe Congress did not intend to meaningfully distinguish the word like the Band, which has had its federal recognition “affirmed” from “restored.” Thus, the district court correctly terminated by administrative action or inaction, can be concluded that “the State has failed to demonstrate that restored to federal recognition through the administrative Congress consistently and exclusively used only the word acknowledgment process. Thus, it is possible for a tribe to be “restore” when restoring Indian tribes through legislative both “restored” and “acknowledged.” Moreover, the district action.” Grand Traverse Band II, 198 F. Supp.2d at 930.
court did not hold that every acknowledged tribe automatically constitutes a restored tribe. In fact, the court
The State next argues that the structure of the exceptions set noted that there will be situations where there is no overlap, forth in § 2719 evidence Congressional intent that an such as when the Secretary of the Interior has acknowledged “acknowledged” tribe cannot also be a “restored” tribe. As a tribe that had never previously been recognized by the noted above, the general prohibition against casino-style federal government. Grand Traverse Band II, 198 F. Supp.2d gaming on tribal lands acquired after October 17, 1988 does at 932. See also 69 Fed. Reg. 550-01 (Feb. 5, 2004) not apply when (1) the Secretary of the Interior has made a (administrative acknowledgment of the Schaghticoke Tribal determination that a gaming establishment would be in the Nation, which was never Congressionally-recognized); 67 No. 02-1679 Grand Traverse Band v. 21 22 Grand Traverse Band v. No. 02-1679 Office of U.S. Attorney Office of U.S. Attorney Fed. Reg. 44234-02 (July 1, 2002) (administrative 25 U.S.C. § 2702(1) (providing that the purpose of the statute acknowledgment of the Eastern Pequot Tribe, which was is to provide a statutory basis for gaming by Indian tribes “as never Congressionally-recognized). Such a tribe might be a means of promoting tribal economic development, self- able to invoke the “acknowledged tribe” exception, but not sufficiency, and strong tribal governments”). Although the “restoration of lands” exception, because the tribe’s § 2719 creates a presumptive bar against casino-style gaming federal recognition, which was never lost in the first place, on Indian lands acquired after the enactment of the IGRA, cannot, by definition, be restored. Also, a tribe that is that bar should be construed narrowly (and the exceptions to restored through legislative action, as opposed to the the bar broadly) in order to be consistent with the purpose of administrative “acknowledgment” process, cannot, by the IGRA, which is to encourage gaming. Cf. City of statutory definition and administrative regulations, invoke the Roseville v. Norton, 348 F.3d 1020, 1030-32 (D.C. Cir. 2003) “acknowledged tribe” exception. Thus, the “acknowledged (holding that the “restoration of lands” exception should be tribe” exception is not rendered mere surplusage simply interpreted broadly because the IGRA’s exceptions “embody because a tribe like the Band might be able to invoke another policies counseling for a broader reading” due to the statute’s exception as well. general purpose of promoting tribal economic development
and self-sufficiency; also applying the Indian canon of Finally, even assuming, arguendo, that the State has statutory construction to resolve any ambiguities in favor of “muddied the waters” with respect to the meanings of the a broad reading of the “restoration of lands” exception). terms “restored” and “acknowledged,” the Supreme Court repeatedly has held that “‘statutes are to be construed liberally III in favor of the Indians, with ambiguous provisions interpreted For all the foregoing reasons, the district court properly to their benefit.’” Chickasaw Nation v. United States, 534
found that the Grand Traverse Band of Ottawa and Chippewa U.S. 84, 94 (2001) (quoting Montana v. Blackfeet Tribe, 471 Indians is an Indian tribe that is restored to federal recognition U.S. 759, 766 (1988)). This canon is “rooted in the unique under the Indian Gaming Regulatory Act, 25 U.S.C. trust relationship between the United States and the Indians.” § 2719(b)(1)(B)(iii). The district court’s order of April 22, Blackfeet Tribe, 471 U.S. at 766 (internal quotation marks and 2002 is therefore AFFIRMED . 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 (citing Blackfeet Tribe, 471 U.S. at 766).
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 affecting 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
NOTES
[*] The Hon orable R ichard M ills, United States District Judge for the Central District of Illinois, sitting by designation. 1 No. 02-1679 Grand Traverse Band v. 3 4 Grand Traverse Band v. No. 02-1679 Office of U.S. Attorney Office of U.S. Attorney § 2719(b)(1)(B)(iii). For the reasons that follow, we relationship, the Band experienced increasing poverty, loss of AFFIRM the well-reasoned decision of the district court. land base and depletion of the resources of its community.
[1] Michigan, that is commonly referred to as the “Turtle Creek” The following description is taken fro m the d istrict court’s site. Located on the east shore of Grand Traverse Bay, Turtle memorand um opinion in Grand Traverse Band of Ottawa & Chippewa Indians v. Office of the U.S. Attorney of the W. Dist. of Mich., 198 F. Creek is at the heart of the region that comprised the core of Supp. 2d 920 , 924-26 (W .D. Mich. 2002 ) (“ Grand Traverse Band II ”). the Band’s aboriginal territory and was historically important The relevant facts in this case are undisputed. to the economy and culture of the Band. Acquisition of the Turtle Creek site was important for the Band to maintain a
[2] Henry Schoolcraft, who negotiated the 1836 Tre aty of Washington connection to the east shore region and to provide services on behalf of the United States, combin ed the Ottawa and Chippewa and economic development to its members located on the east nations into a jo int political unit solely for purposes of facilitating the shore. Although the Turtle Creek site is not located within or negotiation of that treaty. In the years that followed, the Ottawas and Chippewas vociferously comp lained about being joined together as a contiguous to the Band’s last recognized reservation, it is single political unit. To address their complaints, the 1855 Treaty of Detroit contained language dissolving the artificial joinder of the two tribes. This language, however, was not intended to terminate federal recognition of either tribe, but to permit the United States to deal with the Ottawas and the Chippewas as separate political entities. Ignoring the terminated.” Letter from Secretary of the Interior Delano to Commission historical context of the treaty language, Secretary Delano interpreted the of Indian Affairs at 3 (M ar. 27 , 1872). Beginning in that year, the 1855 treaty as providing for the d issolution of the trib es once the annuity Department of the Interior, believing that the federal government no paym ents it called for were completed in the spring of 1872, and hence longer had any trust obligations to the tribes, ceased to recognize the decreed that upon finalization of those payments “tribal relations will be tribes either jointly or sep arately. No. 02-1679 Grand Traverse Band v. 5 6 Grand Traverse Band v. No. 02-1679 Office of U.S. Attorney Office of U.S. Attorney within the lands that the Band ceded to the United States by action against the U.S. Attorney for the Western District of the Treaty of 1836. The trust application for the Turtle Creek Michigan. The complaint sought a declaration concerning the site did not indicate that it was being acquired for gaming legality of the Class III (casino-style) gaming being purposes, though it did specify that it may be used for future conducted at Turtle Creek. The United States filed a economic development. The site was placed into federal trust counterclaim, seeking to declare the Turtle Creek facility on August 8, 1989. illegal and to enjoin further gaming at the facility. The State of Michigan was permitted to intervene as a defendant and to In August 1993, the Band entered into a tribal-state gaming file a complaint seeking to declare the operations illegal under compact with the State of Michigan pursuant to the IGRA, 25 the tribal-state compact. U.S.C. § 2710, for Class III (casino-style) gaming on reservation lands. The compact is virtually identical to those The State contended that the Turtle Creek casino operation signed between the State and six other Indian tribes on the is illegal because the IGRA, 25 U.S.C. § 2719, bars casino same day. The United States Department of the Interior gaming on tribal lands taken into trust after October 17, 1988 approved the compact under the IGRA’s procedures. The (which is the case with Turtle Creek), unless the land meets Michigan House of Representatives and the Michigan Senate one of the exceptions set forth in § 2719. The State argued approved the compacts by concurrent resolution on that Turtle Creek does not meet any of the § 2719 exceptions, September 21, 1993 and September 30, 1993, respectively. and, consequently, casino-style gaming is unlawful, absent a The compacts became effective on November 30, 1993, when determination by the Secretary of the Interior and the consent
