The federal government's treatment of the plaintiff, the Koi Nation of Northern California ("Koi Nation"), a landless federally recognized Indian tribe, has been marked by decades of mistreatment, including terminating and selling the tribe's reservation in 1956 and denying the tribe the special programs and services provided only to those tribes with federally recognized status. Finally, in 2000, after persistent efforts by the Koi Nation, the defendant, the United States Department of the Interior ("DOI"), acknowledged the "egregious" administrative mistake and reaffirmed the Koi Nation's status as a federally recognized tribe, without requiring the tribe to undergo a formal regulatory process to obtain the same result. In a stark example of the government giving with one hand and taking away with the other, DOI's correction of its own long-standing error is now being used by DOI as the basis to deny the Koi Nation's eligibility for an exception to a statutory prohibition on gaming on Indian land, set out in the Indian Gaming Regulatory Act ("IGRA"),
The Koi Nation initiated this lawsuit to challenge DOI's decision, on January 19, 2017, to deny the tribe's eligibility for the IGRA exception, known as the "restored lands exception,"
I. BACKGROUND
The Koi Nation, known until a name change in 2012 as the "Lower Lake
After decades of improperly denying the Koi Nation's status as a federally recognized tribe, DOI "sought to correct its error," AR at 4 (DOI 2017 Decision at 4), and, on December 29, 2000, DOI's Assistant Secretary of Indian Affairs reaffirmed the tribe's status as a federally recognized tribe,
The Koi Nation finally received a response to the tribe's multiple requests for a determination on January 19, 2017, when DOI issued the decision challenged in this lawsuit, concluding that the tribe is not eligible to game on lands under IGRA's restored lands exception, in reliance on DOI's implementing regulation, codified at
The Koi Nation's claims involve a complex statutory and administrative framework, as well as a lengthy history of interactions between DOI and the tribe. This context is summarized below.
The parties' dispute over DOI's 2017 Decision implicates several statutes, including IGRA, the IRA, and the Federally Recognized Indian Tribe List Act of 1994 ("List Act"), and various implementing regulations, all of which are reviewed below.
1. The Indian Gaming Regulatory Act (IGRA)
IGRA,
IGRA provides that Indian tribes may conduct "Class II" and "Class III" gaming activities only on eligible "Indian lands."
This gaming prohibition in § 20(a) is subject to two categories of exceptions in § 20(b) ("Section 20 exceptions"). "The first, § 20(b)(1)(A), allows the Secretary of the Interior to override § 20(a) and permit gaming on a newly acquired parcel when, 'after consultation with the Indian tribe and appropriate State and local officials' the Secretary 'determines that a gaming establishment ... 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 ... concurs....' "
2. Relevant IGRA Implementing Regulations, 25 C.F.R. Part 292
In 2008, DOI promulgated regulations, at
Qualification for the restored lands exception involves a multi-part analysis, focusing on whether a tribe is one that is "restored to Federal recognition," and whether newly acquired lands on which that tribe seeks to conduct gaming are "restored" lands. See
The three methods for an Indian tribe to be restored to federally recognized status to qualify for the restored lands exception in IGRA's § 20(b), are set out in
For a tribe to qualify as having been restored to Federal recognition for purposes of § 292.7, the tribe must show at least one of the following:
(a) Congressional enactment of legislation recognizing, acknowledging, affirming, reaffirming, or restoring the government-to-government relationship between the United States and the tribe (required for tribes terminated by Congressional action);
(b) Recognition through the administrative Federal Acknowledgment Process under § 83.8 of this chapter; or
(c) A Federal court determination in which the United States is a party or court-approved settlement agreement entered into by the United States.
In addition to these three methods to be "restored to Federal recognition" under § 292.10, a separate regulation, codified at § 292.26, exempts from the Part 292 regulations, which were promulgated in 2008, any earlier final agency decisions or opinions regarding the applicability of IGRA's Section 20 exceptions. See
3. Process for Federal Acknowledgment of Indian Tribes, 25 C.F.R. Part 83
Until 1978, the federal government's recognition of Indian tribes "proceeded in an ad hoc manner ... with [BIA] ... reviewing petitions for federal recognition on a case-by-case basis." Mackinac Tribe v. Jewell ,
As the D.C. Circuit has summarized, "[a] group seeking recognition under Part 83 must submit a petition to Interior documenting certain criteria, including whether it has been identified as an American Indian entity on a 'substantially continuous basis' since 1900; whether it comprises a 'distinct community;' whether it has historically maintained 'political influence or authority over its members;' and whether its membership 'consists of individuals who descend from a historical Indian tribe.' " Mackinac Tribe ,
For eligibility under IGRA's restored lands exception, as implemented in
4. Federally Recognized Indian Tribe List Act of 1994 (List Act)
The List Act requires the Secretary to publish annually in the Federal Register a list of federally recognized Indian tribes. See
These same congressional findings further state that "Congress has expressly repudiated the policy of terminating recognized Indian tribes,"
The Secretary's list failed to include the Koi Nation as a federally recognized tribe until 2000, with issuance by DOI's Assistant Secretary of Indian Affairs of the DOI 2000 Recognition Memo. AR at 4 (DOI 2017 Decision at 4).
5. The Indian Reorganization Act (IRA)
The IRA, enacted in 1934, "marked a shift away 'from assimilation policies and
The IRA was amended in 1994, the same year as enactment of the List Act. In recognition of the sovereignty of federally recognized tribes, the IRA amendments expressly granted federally recognized tribes privileges and immunities, including from application of certain administrative regulations and decisions. See Act to Make Certain Technical Corrections, Pub. L. No. 103-263, § 5(b),
B. FACTUAL BACKGROUND
The Koi Nation is a federally recognized Indian tribe with origins tracing back to the Village of Koi, located on an island in Clear Lake, California. AR at 1-2, 4 (DOI 2017 Decision at 1-2, 4). On January 25, 1916, the United States, acting through BIA, purchased an approximately 141-acre tract of land in Lake County, California, which became the Koi Nation's Rancheria. AR at 2 (DOI 2017 Decision at 2). Subsequently, on June 5, 1935, BIA "certified a list of twenty Rancheria residents eligible to vote in elections conducted pursuant to the Indian Reorganization Act."
1. The Sale of the Koi Nation's Rancheria
In 1951, the Lake County, California Board of Supervisors "contacted ... BIA about the possibility of acquiring the Rancheria for use as a municipal airport."
Two years later, in 1958, Congress passed the Rancheria Act, authorizing "the Secretary to begin the process of terminating the government-to-government relationship between the United States and
2. The Koi Nation's Treatment as a Terminated Tribe
Neither the Lower Lake Act nor the Rancheria Act addressed or authorized termination of the Koi Nation's status as a federally recognized Indian tribe. See
Indeed, BIA repeatedly referred to the Koi Nation's status as a tribe whose federal recognition had been terminated. For example, in a February 1, 1975 publication, BIA's Division of Law Enforcement Services listed the Koi Nation, then known as the Lower Lake Rancheria, as "terminated" pursuant to the Lower Lake Act. See AR at 89-90, 93-94 (Indian Law Enforcement History, BIA Division of Law Enforcement Services (Feb. 1, 1975) ("BIA 1975 Law Enforcement Manual") at 1-2, 60-61) (listing "Lower Lake" as a tribe terminated in 1956 under the Lower Lake Act); see also AR at 3 & n.22 (DOI 2017 Decision at 3 & n.22). Similarly, on October 21, 1980, a BIA official sought approval from the Acting Director of BIA's Sacramento Area Office to place the Koi Nation on the Federal Register list of federally recognized tribes and added that such approval should "include [the] date restored." AR at 377 (Memorandum from BIA Sacramento Area Office (Oct. 31, 1980) ("BIA 1980 Memo") ); AR at 396 (NIGC Decision and Order (Oct. 7, 2008) ("NIGC 2008 Decision") at 3). BIA, however, declined to include the Koi Nation on the Federal Register list of federally recognized tribes. See AR at 377-79 (BIA 1980 Memo).
3. The Koi Nation's Reaffirmation as a Federally Recognized Tribe
The Advisory Council on California Indian Policy, on behalf of the Koi Nation, wrote to the Assistant Secretary of Indian
In October and, again, in November 1999, BIA representatives met with the Koi Nation regarding an initiative by DOI's Assistant Secretary of Indian Affairs "to pursue the legislative restoration of a number of tribes presently viewed as terminated." AR at 82 (Memorandum from Superintendent, BIA's Central California Agency, to BIA's Regional Director, Pacific Region (Sept. 14, 2000) ("BIA 2000 Recommendation Memo") ); AR at 291 (DOI 2000 Recognition Letter). In BIA's view, these meetings resulted in an "understanding" among the attendees that if additional research "suggest[ed]" the Koi Nation "should not be presently considered as terminated, administrative reaffirmation of the Tribe's federal recognition would be sought." AR at 83 (BIA 2000 Recommendation Memo). Just under a year later, on September 14, 2000, BIA's Central California Agency analyzed the Koi Nation's history, questioned the Koi Nation's treatment as a terminated tribe since "the effect of the Lower Lake Act was not to terminate" the Koi Nation, and recommended reaffirmation of the tribe's recognized status, which had been improperly ignored. See AR at 82-88 (BIA 2000 Recommendation Memo).
On December 29, 2000, DOI's Assistant Secretary of Indian Affairs, Kevin Gover, issued a letter to the Koi Nation, which "follow[ed] up" on the Fall 1999 meetings. See AR at 291 (DOI 2000 Recognition Letter). After acknowledging "the long-standing and unfortunate omission" of the Koi Nation "from recognition and services" by BIA following the Lower Lake Act and Rancheria Act, DOI's Assistant Secretary of Indian Affairs "reaffirm[ed] the Federal recognition" of the Koi Nation and directed that the Koi Nation be included on the Secretary's list of federally recognized tribes.
On the same day, DOI's Assistant Secretary of Indian Affairs also issued an internal memorandum discussing reaffirmation of the federally recognized status of the Koi Nation and two other Indian tribes. AR at 293 (DOI 2000 Recognition Memo at 4). This memorandum explained that the three tribes were not "required to go through the Federal acknowledgment process outlined in"
The memorandum conceded that, even though the Koi Nation's "tribal status [has] been continuously maintained by the tribal members," AR at 295 (DOI 2000 Recognition Memo at 6), "for reasons not clearly understood, [the Tribe was] simply ignored as the BIA went through fundamental organization and philosophical changes," and "an administrative error by the [BIA] occurred in the initial failure to place the tribe[ ] on the Federal Register List of entities recognized and eligible to receive services from the [BIA]," AR at 293 (DOI 2000 Recognition Memo at 4). Having identified the "egregious oversight" and "unfortunate part of the Bureau's legacy," the memorandum concluded that the error "must be corrected" and the tribe's "rightful existence must now be reaffirmed."
4. The Koi Nation's 2006 and 2008 Unsuccessful Requests for a "Restored Tribe" Determination
After achieving formal recognition again in 2000, almost eight years prior to the promulgation in 2008 of the challenged regulation,
While the 2006 request was pending before the Secretary, on March 17, 2008, the Koi Nation sought approval from NIGC for a gaming ordinance, AR at 394 (NIGC 2008 Decision at 1), which is a necessary approval before a tribe may open a gaming operation on land regulated under IGRA, see
The Koi Nation administratively appealed that disapproval, AR at 394 (NIGC 2008 Decision at 1), but on October 7, 2008, the full Commission affirmed the Chairman's disapproval, AR at 414 (NIGC 2008 Decision at 21). Although the Koi Nation's "case arouse[d] the Commission's sympathy," NIGC rejected the Koi Nation's gaming ordinance both because the tribe was landless and because DOI's December 2000 finding that the tribe was not terminated meant the tribe was not "restored within the meaning of IGRA because it was never terminated." AR at 395, 401-02, 405-14 (NIGC 2008 Decision at 2, 8-9, 12-21).
5. DOI's 2008 Promulgation of IGRA Part 292 Regulations
BIA published a notice of proposed rulemaking, on October 5, 2006, "to establish procedures that an Indian tribe must follow in seeking to conduct gaming on lands acquired after October 17, 1988." Notice of Proposed Rulemaking,
The Koi Nation timely provided comments, criticizing the description of how tribes "qualify as having been restored to Federal recognition," in the proposed
DOI rejected the Koi Nation's proposal to expand the methods of administrative
Second, DOI found confirmation of this conclusion in the List Act, which was enacted in 1994 and "identified only the part 83 procedures as the process for administrative recognition."
On May 20, 2008, BIA published the Final Rule implementing IGRA's Section 20 exceptions to the statutory prohibition on Indian tribe gaming activities on lands acquired after October 17, 1988.
6. Koi Nation's Efforts for Formal Determination As Restored Tribe Under the Part 292 Regulations, Leading to Challenged DOI 2017 Decision
After promulgation of the 2008 regulations at
On April 28, 2014, the Koi Nation submitted another request, this time to the Assistant Secretary of Indian Affairs, for a determination that the tribe qualified as a "restored tribe" for purposes of IGRA and this statute's implementing Part 292 regulations. AR at 326-36 (Koi 2014 Request Letter at 1-11). The Koi Nation supplemented this request with additional letters and supporting documents in December 2014, January 2016, July 2016, September 2016, and December 2016, all of which DOI treated as part of the Koi Nation's initial April 2014 request. See AR at 1 n.2 (DOI 2017 Decision at 1 n.2).
On January 19, 2017, DOI issued the challenged decision denying the Koi Nation's April 2014 request for a determination that it is "an Indian tribe that is restored to Federal recognition" for purposes of IGRA, as that exception is defined by the Part 292 regulations,
C. PROCEDURAL HISTORY
The Koi Nation filed its Complaint asserting four claims, on August 23, 2017, seeking declaratory and injunctive relief, against DOI, as well as DOI's Secretary and Acting Assistant Secretary for Indian Affairs, in their official capacities (collectively, the "defendants"). Compl. at 1. The Koi Nation alleges, first, that it constitutes a tribe "restored to Federal recognition" under IGRA's restored lands exception, and that DOI "invalidly narrowed" the definition of "restored to Federal recognition" in promulgating
To remedy these alleged violations, the Koi Nation seeks to set aside DOI's 2017 Decision and a declaration that the tribe "qualifies as an Indian tribe 'restored to federal recognition' under IGRA, pursuant to
After certifying the AR, see Notice of Lodging AR, ECF No. 12; Joint Status Report and Proposed Briefing Schedule, ECF No. 13 (notifying the Court that the parties agreed to the contents of the AR, as supplemented by the Koi Nation), the parties filed their cross-motions for summary judgment, which are now ripe for resolution.
II. LEGAL STANDARD
A. SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when the court finds, based on the pleadings, depositions, affidavits, and other factual materials in the record, "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a), (c) ; see also Tolan v. Cotton ,
In APA cases such as this one, involving cross-motions for summary judgment, "the district judge sits as an appellate tribunal. The 'entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson ,
B. ADMINISTRATIVE PROCEDURE ACT
Under the APA, a reviewing court must set aside a challenged agency action that is found to be, inter alia , "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,"
To pass arbitrary and capricious muster, "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. ("State Farm "),
The D.C. Circuit has summarized the circumstances under which an agency action would normally be "arbitrary and capricious" to include "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
III. DISCUSSION
The Koi Nation contends that the defendants violated the APA, as alleged in Count IV of the Complaint, by (1) invalidly narrowing IGRA's restored lands exception in
A. THE KOI NATION'S CLAIMS ARE RIPE FOR JUDICIAL REVIEW
Defendants' ripeness challenge is addressed first because "[r]ipeness is a justiciability doctrine that is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction." La. Pub. Serv. Comm'n v. FERC ,
DOI's 2017 Decision shows the flaw in the defendants' ripeness argument that DOI "cаnnot determine" whether the restored lands exception applies to the Koi Nation until the tribe obtains a parcel of land. DOI states in this decision that, "I regret to inform you that in applying the regulations to your factual submission, I have determined that the Tribe doesn't satisfy the regulatory requirements to constitute a 'restored tribe,' pursuant to 292.10(b)," and "[a]lthough the Tribe has not submitted a fee-to-trust request for gaming purposes pursuant to IGRA's 'restored lands' exception, based on my determination today if the Tribe did submit such an application I would have no alternative but to deny it." AR at 1-2. The decision concludes, "This decision constitutes a final agency action under the Administrative Procedure Act." Id. at 2.
In short, even while landless, the Koi Nation received DOI's final decision denying "restored tribe" status, demonstrating that DOI can determine whether the restored lands exception applies to a landless tribe. The fact that DOI has already made a final determination, applying the Part 292 regulations to the Koi Nation and concluding IGRA's restored lands exception is not available to the tribe, renders the Koi Nation's challenge to this decision ripe. See Nat'l Park Hosp. Ass'n v. Dep't of Interior ,
B. THE KOI NATION'S CLAIMS ARE TIMELY UNDER THE APPLICABLE STATUTE OF LIMITATIONS
The parties agree that the applicable statute of limitations is six years, under
The predicate for this untimeliness argument is the defendants' characterization as "facial challenges" the claims that
1. Accrual from Adoption and Publication of the Part 292 Regulations
According to the defendants,
Nonetheless, the D.C. Circuit has explained that an agency's regulations "may be attacked in two ways once the statutory limitations period has expired." NLRB Union v. Fed. Labor Relations Auth. ,
D.C. Circuit "case law makes it clear" that the first method is an "established, narrow exception to the statutory time limit" for challenges to regulations that conflict with the statute from which an agency's authority derives. Genuine Parts Co. v. EPA ,
The defendants rely on Alaska v. U.S. Department of Agriculture ,
Accordingly, since the instant action involves DOI's application of
2. Accrual from Prior Opportunities to Challenge
The defendants raise, in the alternative, the argument that since the Koi Nation had notice and opportunities to raise the same challenges to the Part 292 regulations made here between 2008, when the Part 292 regulations were promulgated, and 2014, six years from that date, the instant claims should be time-barred. As support, the defendants contend that the Koi Nation's facial challenges accrued when the tribe "knew or should have
As a factual basis for this contention that the Koi Nation by 2008 should have known, and in fact knew, the Part 292 regulations excluded the Koi Nation from the definition of a tribe "restored to Federal recognition" under IGRA, and that the tribe had the opportunity then to directly challenge
Without contesting these facts, see Pl.'s Opp'n at 12, the Koi Nation disputes that the tribe had an opportunity to make the same challenges in 2008, because the tribe did not believe the challenges were ripe in 2008, absent any final agency action until the DOI 2017 Decision, see
In any event, the defendants' statute of limitations argument, based on the Koi Nation's prior notice and opportunities to challenge
Without addressing Independent Community Bankers of America or many of its progeny, the defendants make a cursory attempt to distinguish NextWave Personal Communications, Inc. v. FCC ,
None of the cases cited by the defendants, for the proposition that the as-applied exception to the statute of limitations is constrained to circumstances where a litigant lacked a prior opportunity to challenge the regulation at issue, actually expresses such a condition but instead more broadly sanction challenges such as the Koi Nation's outside the limitations period. See Defs.' Reply at 4 (citing Genuine Parts Co. ,
The fact that the Koi Nation was on notice, during the notice-and-comment process for the Section 20 Final Rule and at the time of the 2008 NIGC decision, that the tribe could be found ineligible for the restored lands exception does not foreclose the tribe from challenging the pertinent regulations under the APA now, under the exception to the statute of limitations for parties affected by an agency's application of a rule. Indeed, Montana v. Clark ,
In sum, although
C. THE CHALLENGED REGULATION'S IMPLEMENTATION OF IGRA'S RESTORED LANDS EXCEPTION
The Koi Nation contends that the challenged regulation,
As explained in more detail below, the Court agrees with the Koi Nation that the phrase "restored to Federal recognition" in IGRA's restored lands exception, under
1. "Restored to Federal Recognition" Is Unambiguous As Applied to the Koi Nation
Regardless of whether Chevron deference or the Indian canon of construction applies, the law is well-settled that under Chevron , a court must first determine "whether Congress has directly addressed the precise question at issue," before assessing whether the agency's interpretation of a statute was reasonable. Mayo Found. for Med. Educ. & Research v. United States ,
To discern whether Congress has addressed this precise question, "traditional tools of statutory construction" are used. Humane Soc'y of United States v. Zinke ,
At the outset, the "language at issue" is examined to determine whether it "has a plain and unambiguous meaning with regard to the particular dispute in [this] case." United States v. Villanueva-Sotelo ,
As to the operative phrase "restored to Federal recognition," as used in IGRA's restored lands exception,
Here, DOI's reaffirmation in 2000 that the Koi Nation was federally recognized put the tribe "back into a former or proper position," TOMAC ,
Likewise, the Koi Nation's reaffirmation returned the tribe to its "former" place,
The defendants skip over this plain meaning of "restored to Federal recognition" to argue that, putting aside how the federal government erroneously treated the Koi Nation, the tribe never lost its "legal status" as a federally recognized tribe, and thus never needed this status to be restored. See Defs.' Opp'n at 23- 24 (citing DOI's 2000 Recognition Memo, which asserted that the tribe was "never administratively terminated nor were [its] relations with the United States broken," AR at 460 (DOI 2000 Recognition Memo at 4); that the "government-to-government relationship with the United States was never terminated,"
Regulatory consistency does not make this position correct, however. The agency's "past mistake," and correction of that error through reaffirmation of the Koi Nation, does not "excuse the agency's current missteps" because "[i]n administrative law, as elsewhere, two wrongs do not make a right." See Am. Wild Horse Pres. Campaign v. Perdue ,
In addition, this blinkered construction of IGRA's Section 20 restored lands exception ignores the reality experienced by the Koi Nation, and binding precedent makes clear and better policy requires that reality controls. By contrast to the agency's focus on a tribe's technical legal status, which conveniently ignores any erroneous positions taken by the federal government, courts have looked to the reality of how a tribe is treated to determine whether federally recognized status was lost and the need for restoration triggered.
For example, in TOMAC , the D.C. Circuit considered whether the Pokagon Band of Potawatomi Indians ("Pokagon Band") was a tribe "restored to Federal recognition" under IGRA.
Here, similarly, even though Congress did not terminate the Koi Nation's federally recognized status through the Lower Lake Act, the tribe was for all intents and purрoses treated as terminated due to faulty administrative decisions that incorrectly assumed the Lower Lake Act terminated the tribe. Just as the D.C. Circuit had no trouble finding the Pokagon Band's status terminated, the circumstances surrounding the treatment of the Koi Nation leads inexorably to the same conclusion. See
Likewise, in a case cited approvingly by the D.C. Circuit in TOMAC ,
In addition to the plain meaning of the restored lands exception, two aspects of IGRA's structure indicate Congress's intent to include tribes like the Koi Nation, which were improperly treated as terminated and subsequently reaffirmed outside the Part 83 process, as tribes restored to federal recognition. First, "the syntax of" the restored lands exception, "which discusses not simply the restoration of the lands themselves, but their restoration 'for an Indian tribe,' fits more comfortably
Even if the statute's language were not dispositive, "other indicia of [legislative] intent" further demonstrate that Congress intended to include tribes like the Koi Nation in the restored lands exception. Villanueva-Sotelo ,
DOI's narrow interpretation of the restored lands exception would bar a tribe, such as the Koi Nation, which until reaffirmation was mistakenly treated as terminated, both from eligibility to participate in the Part 83 Federal acknowledgment process and from eligibility for the Section 20 exception as a "restored" tribe outside the Part 83 process. Such exclusion of the Koi Nation would only compound the legacy of the agency's mistreatment by continuing to deny the tribe the benefits that tribes not subject to incorrect termination were able to seek during the Koi Nation's period of mistreatment. This result would also frustrate the exception's purpose by leaving this landless tribe when IGRA was enacted severely disadvantaged relative to established tribes that never lost their federal recognition and the concomitant benefits of such status. DOI's interpretation fails to compensate the Koi Nation for lost opportunities caused by the federal government's improper treatment of the tribe as terminated, which treatment prevented the tribe from acquiring lands in trust by the time Congress enacted IGRA in 1988, see AR at 3 (DOI 2017 Decision at 3), the
For all of these reasons, the Court concludes that the Koi Nation is a tribe "restored to Federal recognition" within the meaning of IGRA's Section 20 restored lands exception, based on DOI's de facto termination and subsequent reaffirmation of the tribe's recognized status, even though that reaffirmation occurred without congressional action or through the Federal acknowledgement process set out in Part 83.
2. Chevron Deference in Indian Law
Even assuming the statute wеre ambiguous as applied to the Koi Nation's circumstances, the Indian canon of construction would counsel resolving that ambiguity in favor of the Koi Nation. When presented with an ambiguous statute, the analysis ordinarily would shift to Chevron step two, where "the question for the court is whether the agency's answer is based on a permissible construction of the statute," City of Arlington v. FCC ,
In cases involving American Indians, however, the law is well-settled that "statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Montana v. Blackfeet Tribe of Indians ,
"This departure from the Chevron norm arises from the fact that the rule of liberally construing statutes to the benefit of the Indians arises not from the ordinary exegesis, but from principles of equitable obligations and normative rules of behavior, applicable to the trust relationship between the United States and the Native American people." Cal. Valley Miwok Tribe v. United States ,
The Indian canon of construction "applies only to statutes that are both ambiguous and passed for the benefit of Indian tribes." Ho-Chunk, Inc. v. Sessions ,
Despite this binding precedent, the defendants rely on two cases to posit that Chevron deference must be applied here in lieu of the Indian canon of construction. See Defs. 'Opp'n at 15 (citing CETAC ,
The defendants next switch tactics to argue that, to the extent the Indian canon of construction applies here to require an interpretation beneficial to Indian tribes, deference should still be given to the agency's interpretation since "[a]n interpretation of the restored lands exception that would benefit this particular tribe, by allowing unlimited use of restored land for gaming purposes, would not necessarily benefit other tribes also engaged in gaming. It might well work to their disadvantage." Defs.' Opp'n at 21. This argument suffers from several flaws.
First, this argument is predicated on the exaggerated notion that including the Koi Nation as a tribe "restored to Federal recognition" would allow "unlimited use of restored land for gaming purposes." Id. This premise is simply incorrect. A determination that the Koi Nation is a restored tribe is merely a first step since gaming under the restored lands exception also requires the Secretary to take land into trust, which is based on a number of factors. See CETAC ,
Second, the defendants' conclusory argument fails to identify any evidence suggesting that other tribes would be harmed if the restored lands exception covers those tribes mistakenly treated as terminated and then reaffirmed administratively outside of the Part 83 Federal acknowledgment process. Indeed, the defendants have not disputed the Koi Nation's claim that it "is the only tribe" that was not federally recognized when IGRA was passed, subsequently reaffirmed, and then left without a determination that the tribe is "restored" for purposes of IGRA. Pl.'s Mem. at 25. The purported detrimental impact of one additional tribe potentially being able to game on "restored lands," if any are acquired, on other tribes is highly speculative and falls far short of showing any impact at all, let alone one that is detrimental to Indian tribes generally.
Finally, the D.C. Circuit has recognized that, by enacting IGRA, "Congress's overarching intent was 'in large part to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments' ... and to do so to ensure that the Indian tribe is the primary beneficiary of the gaming operation." CETAC ,
* * *
DOI's regulation,
D. SIMILARLY SITUATED TRIBES
Alternatively, the Koi Nation claims that
1.
Section 5123(f) prohibits federal agencies from promulgating "any" regulations or making "any" decisions, pursuant to the IRA "or any other" Act of Congress, "with respect to a federally recognized Indian
The defendants' argument that the "privileges and immunities" referenced in § 5123(f) are limited to certain "powers of self-governance," Defs.' Opp'n at 26 n.10, is incorrect. First, the defendants offer no textual support for this narrow reading of the plain language of the statute. See generally Defs.' Opp'n; Defs.' Reply. That text, to the contrary, makes § 5123(f) applicable to "any" agency regulation or decision, pursuant to the IRA or "any other Act of Congress," and without limiting the "privileges and immunities" protection to particular powers of self-governance as the defendants urge. See Akiachak Native Cmty. v. Jewell ("Akiachak I "),
In addition, gaming activities on Indian lands under IGRA's restored lands exception certainly are "privileges ... available to the Indian tribe" by virtue of a tribe's status as a recognized Indian tribe.
Second, the legislative history on which defendants rely further undermines the defendants' narrow reading of § 5123(f). Specifically, the defendants cherry-pick statements by Senator Inouye, a co-sponsor of the 1994 amendments to the IRA, discussing one purpose of those amendments to reject DOI's policy of distinguishing some tribes as "created" under the IRA and lacking certain inherent powers of self-government, in contrast to other "historic" tribes that predated the IRA.
The defendants simply ignore statements by the legislation's other co-sponsor, Senator McCain, who explained "[t]he recognition of an Indian tribe by the Federal Government is ... the recognition that there is a sovereign entity with governmental authority."
In short, the defendants' threshold arguments that § 5123(f) is inapplicable to IGRA fail.
2. The Koi Nation Is Similarly Situated to the Grand Traverse Band and Ione Band
Contrary to the defendants' contention that the Koi Nation is not similarly situated to other tribes deemed restored to federal recognition under IGRA, the Koi Nation points to two tribes, the Grand Traverse Band and the Ione Band, as examples of how "the Part 292 Regulations diminish the privileges available to the Koi Nation under IGRA relative to the privileges available to other federally recognized Indian tribes that have suffered from de facto termination by the Executive Branch." Pl.'s Opp'n at 15-18.
The defendants do not dispute that § 5123(f) prohibits disparate treatment between similarly situated recognized tribes. See generally Defs.' Opp'n; Defs.' Reply. The two tribes identified by the Koi Nation as similarly situated share significant salient historical facts with the Koi Nation. The Grand Traverse Band after a period of recognition, was mistakenly treated as terminated for decades and then "restored," for purposes of IGRA's restored lands exception, when the federal government recognized the tribe again, through the Part 83 Federal acknowledgment process. Grand Traverse ,
The defendants try to distinguish the histories of both comparator tribes. According to the defendants, unlike the Koi Nation, the Grand Traverse Band re-attained recognition through the Part 83 Federal acknowledgment process and thus satisfies the Part 292 criteria to be considered "restored" under IGRA. See
The defendants' myopic focus on the different means by which the Koi Nation and the Grand Traverse Band achieved restoration of their federally recognized status overlooks the similarities in how both tribes lost that status. As the Sixth Circuit explained with respect to the
DOI's reaffirmation of the recognized status of both the Koi Nation and the Grand Traverse Band, after years of mistaken terminated treatment, through different administrative methods does not lessen that similarity. Therefore, treating the Koi Nation differently due to DOI's reaffirmation of the tribe's status, rather than under the Part 83 Federal acknowledgment process, violates
As to the Ione Band, the defendants conceded in the DOI 2017 Decision "the only distinction" between the Koi Nation and the Ione Band was that the latter was grandfathered into the restored lands exception, under
To be precise, the Koi Nation's request for a restored tribe determination, see AR at 500-01 (Koi Mar. 29, 2006 Request
In any event, the defendants fail to identify why the specification of land is relevant to whether a tribe is "restored to Federal recognition" under
As a last gasp argument, the defendants note that an agency may change implementation of an ambiguous statute in certain circumstances. See Defs.' Reply at 16. Even if correct, this does not excuse DOI's implementation of an interpretation of IGRA's restored lands exception in a manner that violates § 5123(f), which prohibits the agency from promulgating "any" regulation or making "any" decision "with respect to a federally recognized Indian tribe" that diminishes the tribe's privileges "relative to other federally recognized tribes by virtue of their status as Indian tribes." The DOI 2017 Decision admits that
Thus, DOI's application of
Even if DOI's interpretation of IGRA's restored lands exception were permissible, the Koi Nation argues that in promulgating the challenged regulation,
Here, the defendants concede that DOI's interpretation of the restored lands exception changed upon the agency's promulgation of
DOI's first reason is that at the time of IGRA's enactment in 1988, the Part 83 regulations had already been in effect since 1978 to provide a uniform administrative, rather than ad hoc, procedure for federal recognition of tribes.
In any event, DOI's conclusion that Congress when enacting IGRA sought, without any textual reference or express limitation in Section 20's restored lands exception, to exclude tribes recognized outside the Part 83 Federal acknowledgment process, simply because that process was extant at the time of IGRA's enactment, takes a leap too far. As already noted, see supra Section III.C.1, Congress was perfectly capable of limiting a Section 20 exception to tribes administratively recognized only in the Part 83 process and did so in another exception, see
DOI's second reason for the policy change to exclude from IGRA's restored lands exception any tribe administratively recognized outside the Part 83 Federal acknowledgment process fares no better. This second reason reliеd on a single congressional finding in the 1994 List Act that referenced "only the part 83 procedures as the process for administrative recognition."
Moreover, DOI's exclusion from the restored lands exception of tribes that had their recognized status reaffirmed by the agency outside the Part 83 Federal acknowledgment process in order "to correct particular errors,"
Thus, every effort by DOI to identify, correctly аnd promptly, federally recognized tribes, whether through the Part 83 process or though administrative correction of the agency's erroneous treatment of a tribe outside that process, promotes the expressed purpose, goals and efficacy of the List Act. In fact, DOI's correction, in 2000, of the agency's erroneous treatment of the Koi Nation's status through the agency's waiver of the Part 83 process and reaffirmation of the tribe's recognized status, "was intended to rectify a past wrong, without litigation or utilizing the Part 83 acknowledgement process," AR at 6 (DOI 2017 Decision at 6), and provided a prompt correction of the Federal Register list of federally recognized tribes with the addition of the Koi Nation. Encouraging DOI to correct its own mistakes and thereby avoid the comparatively lengthy alternative methods of federal recognition, through congressional action, court order predicated on litigation, or the Part 83 administrative process, is wholly consistent with the over-arching goals of the List Act, and more sensible public policy than discouraging such agency self-correction.
By contrast, excluding from the restored lands exception reaffirmed tribes, such as the Koi Nation, that had been incorrectly left off the Federal Register list of federally recognized tribes, penalizes such tribes, discouraging them from seeking correction of agency errors regarding evaluation of a tribe's status outside the Part 83 process, and thereby undermines the strong public policy interests reflected in the List Act to have DOI strive for correct and accurate decision-making with respect to federally recognized tribes. In this way, the defendants' position here is antithetical to the purpose animating the List Act of maintaining an accurate, up-to-date list of federally recognized tribes.
DOI's gaps in reasoning for the agency's interpretation of the restored lands exception, which purported to make the exception harmonious with the List Act, renders the agency's explanation for
IV. CONCLUSION
For the foregoing reasons, the Koi Nation's Motion for Summary Judgment, ECF No. 14 is granted, and the defendants' Cross-Motion for Summary Judgment, ECF No. 15, is denied. An Order consistent with this Memorandum Opinion will be entered contemporaneously.
Notes
The AR totals over 500 pages. See generally AR. The portions of the AR cited or otherwise relied upon in the parties' briefing have been docketed in a four-part Joint Appendix, see J.A., ECF Nos. 21-1-21-4, but the full AR has also been submitted to the Court, see Min. Order (Dec. 17, 2018) (directing submission of full AR). For clarity, AR citations are to the AR, rather than the Joint Appendix. The portions of the full AR not cited herein have been reviewed in resolving the pending motions.
Indeed, the first two requirements appear met. As to the first requirement, showing that the tribe was at one time federally recognized may be met if the "United States at one time acquired land for the tribe's benefit," or with "other evidence" demonstrating "the existence of a government-to-government relationship between the tribe and the United States."
The Procedures for Federal Acknowledgment of Indian Tribes, currently codified at
The List Act's requirement that the Secretary annually publish a list of federally recognized tribes was originally codified at 25 U.S.C. § 479a-1(a), and subsequently re-codified at
DOI began publishing a list of federally recognized Indian tribes approximately every three years beginning in 1979, see, e.g. , Indian Tribal Entities That Have a Government-to-Government Relationship with the United States,
BIA had made an earlier effort, in 2000, with a proposed rule to establish "procеdures that an Indian tribe must follow in seeking a Secretarial determination [under [§ 2719(b)(1)(A) of IGRA] that a gaming establishment would be in the best interest of the Indian tribe and its members and would not be detrimental to the surrounding community," Notice of Proposed Rulemaking,
Thus, the Koi Nation "do[es] not seek a new
The Koi Nation also argues that DOI's waiver of the Part 83 Federal acknowledgment process for the tribe amounted to recognition "under the ambit of"
The defendants' reliance on Hire Order Ltd. v. Marianos,
The defendants' reliance on Federal Circuit cases to contend the Koi Nation's claims accrued when the tribe knew or should have known of the material facts giving rise to its claims, are neither binding nor persuasive, since these cases do not discuss the statute of limitations under § 2401(a) or otherwise as applied to APA claims. See Defs.' Opp'n at 11 (citing Wolfchild v. United States ,
The D.C. Circuit previously considered a portion of the Koi Nation's history in Muwekma. There, the Muwekma Ohlone Tribe ("Muwekma") claimed recognition without having to use the Part 83 Federal acknowledgment process, just like the Koi Nation, for which the Part 83 process had been waived and recognition reaffirmed outside that process. Muwekma ,
By contrast to the Grand Traverse Band, the defendants denied to the Koi Nation the availability of the Federal acknowledgement process set out in DOI's Part 83 regulations to qualify for IGRA's Section 20 restored lands exception, because the Part 83 "acknowledgment regulation does not apply to Indian tribes whose government-to-government relationship was never severed." See Defs.' Reply at 14 (quoting AR at 460 (DOI 2000 Recognition Memo at 4) ).
By contrast to the D.C. and Sixth Circuits, the Ninth Circuit found that the phrase "restored to Federal recognition" in the restored lands exception was ambiguous as applied to the Ione Band of Miwok Indians ("Ione Band"), which had been treated as terminated until DOI "changed its mind about the Band's 'recognized' status," Cty. of Amador v.U.S. Dep't of the Interior ,
Recent Supreme Court cases suggest a retreat from Chevron , but the Supreme Court has not abandoned the framework. SAS Inst., Inc. v. Iancu , --- U.S. ----,
The Koi Nation also claims that DOI violated the Equal Protection Clause of the U.S. Constitution through the agency's disparate treatment of the tribe as compared to similarly situated recognized tribes. Pl.'s Mem. at 45 n.6. This allegation is not in the Koi Nation's Complaint, see Compl., and therefore is not properly raised on summary judgment. See Sloan ex rel. Juergens v. Urban Title Servs., Inc. ,
The defendants incorrectly contend that the district court's decision in Akiachak I has no precedential value and may not even be cited because it was vacated by the D.C. Circuit, having become moot by the time of the appeal. Defs.' Opp'n at 29 n.12 (citing Akiachak II ,
The defendants cite an Eighth Circuit decision to bolster the argument that § 5123(f) concerns only "the authority and procedures whereby an Indian tribe may organize itself and adopt a tribal constitution and bylaws." Defs.' Opp'n at 26 n.10 (internal quotation marks omitted) (quоting Twin Cities Chippewa Tribal Council v. Minn. Chippewa Tribe ,
The Koi Nation initially claimed DOI's promulgation of
The defendants caution that creating a class of restored tribes for the Grand Traverse Band, the Ione Band, and the Koi Nation would grant superior gaming rights for these tribes, in violation of
Relatedly, the Koi Nation claims that the explanation in DOI's 2017 Decision is arbitrary and capricious, in violation of the APA. Compl. ¶¶ 1-116, 117, 124 (Count IV). As support for this claim, the Koi Nation argues the challenged decision should be vacated for: (1) failing adequately to consider the tribe's treatment as terminated for a half-century, Pl.'s Mem. at 22-23 (citing State Farm ,