Club One Casino, Inc. v. David Bernhardt ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLUB ONE CASINO, INC., DBA Club No. 18-16696
One Casino; GLCR, INC., DBA The
Deuce Lounge and Casino, D.C. No.
Plaintiffs-Appellants, 1:16-cv-01908-
AWI-EPG
v.
DAVID BERNHARDT; MIKE BLACK,
Acting Assistant Secretary of the OPINION
Interior - Indian Affairs; U.S.
DEPARTMENT OF THE INTERIOR,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted February 11, 2020
San Francisco, California
Filed May 27, 2020
Before: R. Guy Cole, Jr., * Ronald M. Gould, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia
*
The Honorable R. Guy Cole, Jr., Chief Judge of the United States
Court of Appeals for the Sixth Circuit, sitting by designation.
2 CLUB ONE CASINO V. BERNHARDT
SUMMARY **
Tribal Gaming
The panel affirmed the district court’s summary
judgment in favor of the U.S. Department of the Interior and
its Secretary in an action brought by plaintiff cardrooms,
challenging the Secretary’s approval of a Nevada-style
casino project on off-reservation land in the County of
Madera, California by the North Fork Rancheria of Mono
Indians, a federally recognized tribe.
Section 3719 of Indian Gaming Regulatory Act
(“IGRA”) prohibits gaming on any lands acquired by the
Secretary in trust for the benefits of Indian Tribes after
October 17, 1988, unless one of several exceptions applies.
As relevant here, Class III games include casino-style
games, slot machines, and lotteries, and can only be
conducted pursuant to tribal-state compacts approved by the
Secretary. Section 5108 of the Indian Reorganization Act of
1934 (“IRA”) authorized the Secretary to acquire interests or
rights for the purpose of providing land for Indians. In July
2016, in accordance with IGRA, the Secretary prescribed
certain procedures that permitted gaming on the Madera
Parcel (the “Secretarial Procedures”).
The panel rejected plaintiffs’ contention that the
Secretarial Procedures were issued in violation of IGRA.
The panel held that as a matter of law, the federal
government confers tribal jurisdiction over lands it acquires
in trust for the benefit of tribes. The panel further held that
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CLUB ONE CASINO V. BERNHARDT 3
the Tribe’s jurisdiction over the Madera Parcel operated as a
matter of law and the Tribe clearly exercised governmental
power when it entered into agreements with local
governments and enacted ordinances concerning the
property. Finally, the panel rejected plaintiffs’ claim that the
Tribe’s acquisition of any jurisdiction over the Madera
Parcel required the State’s consent or cession. Specifically,
the panel held that the Enclave Clause of the U.S.
Constitution did not apply because the Secretary’s
acquisition of land in trust for the benefit of a tribe did not
result in the creation of a federal enclave or violate the
Clause. The panel also held that 40 U.S.C. § 3112 did not
apply where the jurisdiction at issue here – which was
created by operation of law – was not granted by the State to
the federal government, or taken by the federal government
from the State.
The panel rejected plaintiffs’ contention that to the extent
IRA created tribal jurisdiction upon the Secretary’s
acquisition of land in trust for the benefit of the Tribe, it
violated the Tenth Amendment. The panel held that the IRA
did not offend the Tenth Amendment because Congress has
plenary authority to regulate Indian affairs.
The panel held that plaintiffs waived two arguments
raised for the first time on appeal.
The panel concluded that the Secretary’s actions were
not arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.
4 CLUB ONE CASINO V. BERNHARDT
COUNSEL
Robert D. Links (argued), Adam G. Slote, and Marglyn E.
Paseka, Slote Links & Boreman LLP, San Francisco,
California; Robert A. Olson and Timothy T. Coates, Greines
Martin Stein & Richland LLP, Los Angeles, California; for
Plaintiffs-Appellants.
Tamara Rountree (argued), John David Gunter II, Steven
Miskinis, and Joann Kintz, Attorneys; Eric Grant, Deputy
Assistant Attorney General; Jeffrey Bossert Clark, Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellees.
OPINION
MURGUIA, Circuit Judge:
This action is one in a series of actions 1 concerning the
proposed construction and operation of a Nevada-style
casino on off-reservation land in the County of Madera,
California (the “Madera Parcel”) by the North Fork
Rancheria of Mono Indians (the “North Fork” or “Tribe”), a
federally recognized tribe. Plaintiffs-Appellants, Club One
Casino and the Deuce Lounge, are cardrooms licensed by the
State of California (the “State”). Plaintiffs contend that the
approval of the casino project by the United States Secretary
of the Interior (the “Secretary”) and the United States
1
See Picayune Rancheria of Chukchansi Indians v. United States
Dep’t of Interior, No. 1:16-CV-0950-AWI-EPG, 2017 WL 3581735,
at *3–5 (E.D. Cal. Aug. 18, 2017) (reviewing actions related to the
proposed casino).
CLUB ONE CASINO V. BERNHARDT 5
Department of the Interior (collectively, Defendants-
Appellees) is unlawful, and they brought a host of
procedural, statutory, and constitutional challenges. The
district court granted summary judgment against Plaintiffs
on all claims. We affirm.
I
The North Fork Rancheria of Mono Indians of California
are the modern descendants of the Mono Indians, who have
used and occupied lands in and near California’s San
Joaquin Valley for several centuries. The Tribe has
approximately 1,750 citizens, is headquartered in North
Fork, Madera County, California, and has been federally
recognized since 1915.
In March 2005, the North Fork applied to the Department
of the Interior to have a 305-acre plot of land in Madera
County taken into trust by the United States pursuant to
section 5108 of the Indian Reorganization Act (“IRA”),
25 U.S.C. §§ 5101–5144. The Tribe proposes to construct a
casino resort on the property.
In September 2011, the Secretary made a determination
pursuant to section 2719 of the Indian Gaming Regulatory
Act (“IGRA”), id. §§ 2701–2721, finding that gaming on the
land would be in the best interest of the North Fork and not
detrimental to the surrounding community (the “Secretarial
Determination”). In August 2012, the Governor of the State
of California (the “Governor”) informed the Secretary that
he concurred in the Secretarial Determination and negotiated
a compact with the North Fork to govern gaming at the
Madera Parcel. In February 2013, the Madera Parcel was
acquired in trust by the Secretary for the benefit of the North
Fork. In June 2013, the California Legislature passed
Assembly Bill 277, which ratified the compact, and the
6 CLUB ONE CASINO V. BERNHARDT
Governor signed the legislation into law the following
month. Enough signatures, however, were gathered to place
a veto referendum (“Proposition 48”) on the November 2014
ballot, which proposed voiding the California Legislature’s
ratification of the compact. Proposition 48 passed with
sixty-one percent of the vote—meaning that Assembly Bill
277, which had ratified the compact between the Tribe and
the State, was vetoed by the voters.
After this defeat at the polls, the North Fork requested
that the State negotiate a new tribal-state compact to govern
gaming at the Madera Parcel. The State refused, citing
Proposition 48’s passage. In March 2015, the Tribe brought
an action under IGRA, alleging that the State failed to
negotiate in good faith. N. Fork Rancheria of Mono Indians
of Cal. v. California, No. 1:15-CV-00419-AWI-SAB, 2015
WL 11438206, at *1 (E.D. Cal. Nov. 13, 2015). The district
court agreed, finding that the State’s refusal to negotiate a
compact post-referendum violated IGRA, and ordered the
State and the North Fork to conclude a compact within sixty
days. Id. at *8, *12. When the parties failed to do so, the
court selected a mediator and directed the parties to submit
their last best offers. The parties complied with the order
and the mediator selected the North Fork’s proposed
compact as “the compact that best comported with IGRA,
Federal law, and the orders of this Court.” The mediator
thereafter submitted the compact to the State for its consent.
The State did not consent to the selected compact within the
statutorily required time period and the mediator’s proposed
compact was submitted to the Secretary pursuant to
section 2710(d)(7)(B)(vii) of IGRA.
In July 2016, in accordance with IGRA, the Secretary
prescribed certain procedures that permitted gaming on the
Madera Parcel (the “Secretarial Procedures”). The
CLUB ONE CASINO V. BERNHARDT 7
Secretarial Procedures do not include express findings as to
whether the North Fork had jurisdiction or exercised
governmental power over the Madera Parcel or whether the
Madera Parcel was Indian land.
Plaintiffs, the cardrooms, sued the Secretary and the
Department of the Interior in the district court in December
2016. They challenged the Secretary’s issuance of the
Secretarial Procedures under the Administrative Procedure
Act, claiming: (1) the Secretarial Procedures were issued in
violation of IGRA, as the Tribe purportedly never acquired
jurisdiction or exercised governmental power over the
Madera Parcel; and (2) assuming the Tribe acquired
jurisdiction and exercised governmental power, IRA violates
the Tenth Amendment to the Constitution by reducing the
State’s jurisdiction over land within its territory without its
agreement.
On cross-motions for summary judgment, the district
court denied Plaintiffs’ motion and granted Defendants’
motion. In accordance with case law from other circuits, the
district court held that: (1) the Tribe had jurisdiction over
the Madera Parcel for purposes of IGRA by virtue of the land
being acquired in trust for the Tribe and neither consent nor
cession by the State was required; (2) Plaintiffs’ Tenth
Amendment challenge was not properly before the court, as
Plaintiffs had only challenged the issuance of the Secretarial
Procedures, not the Secretary’s acquisition of the Madera
Parcel in trust for the benefit of the Tribe; and
(3) alternatively, Plaintiffs lacked standing to bring the
Tenth Amendment challenge. Plaintiffs timely appealed.
II
We review the district court’s grant of summary
judgment de novo to determine whether the Secretary’s
8 CLUB ONE CASINO V. BERNHARDT
actions were “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A); Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d
544, 554 (9th Cir. 2016). We have described the arbitrary
and capricious standard as deferential and narrow,
establishing a “high threshold” for setting aside agency
action. River Runners for Wilderness v. Martin, 593 F.3d
1064, 1067, 1070 (9th Cir. 2010) (per curiam). We also
review purely legal questions de novo. Wagner v. Nat’l
Transp. Safety Bd., 86 F.3d 928, 930 (9th Cir. 1996).
III
Before proceeding to our analysis, we pause to set out
the applicable statutory landscape. Gaming in Indian
country is a multi-billion-dollar industry conducted pursuant
to the Indian Gaming Regulatory Act of 1988. IGRA
“accommodate[s] the interests of tribes in pursuing gaming
but also set[s] forth a federal regulatory regime, and g[ives]
a powerful role to states by providing for significant state
involvement in the decision to permit casino-style gaming.”
Cohen’s Handbook of Federal Indian Law § 12.01, at 876
(2012) (“Federal Indian Law”).
Gaming is permitted only on Indian lands, which are
defined as “all lands within the limits of any Indian
reservation,” 25 U.S.C. § 2703(4)(A), and “any lands title to
which is either held in trust by the United States for the
benefit of any Indian tribe or individual or held by any Indian
tribe or individual subject to restriction by the United States
against alienation and over which an Indian tribe exercises
governmental power,” id. § 2703(4)(B). Thus, a tribe may
engage in gaming activities either: (1) on a reservation; or
(2) off a reservation on tribal or individual trust land, or land
not held in trust but subject to a restriction on alienation, but
CLUB ONE CASINO V. BERNHARDT 9
only if a tribe exercises governmental power over this trust
or restricted land. Id. § 2703(4).
Importantly, section 2719 of IGRA prohibits gaming on
any lands acquired by the Secretary in trust for the benefit of
Indian tribes after October 17, 1988, unless one of several
exceptions applies. An exception pertinent to this appeal
permits gaming if the Secretary makes a two-part
determination: (1) finding that gaming on land acquired in
trust after 1988 “would be in the best interest of the Indian
tribe and its members”; and (2) that such gaming “would not
be detrimental to the surrounding community, but only if the
Governor of the State in which the gaming activity is to be
conducted concurs in the Secretary’s determination.” Id.
§ 2719(b)(1)(A).
Additionally, IGRA divides gaming into three classes.
As relevant here, Class III 2 games include casino-style
games, slot machines, and lotteries. See id. § 2703(8).
Generally, Class III games can only be conducted pursuant
to tribal-state compacts approved by the Secretary. Id.
§ 2710(d)(1)(C), (3)(B). If a state generally permits such
gaming, IGRA authorizes a tribe to bring an action in federal
court 3 against a state that refuses to enter into negotiations at
2
Class I games include social and traditional games for prizes of
minimal value. Federal Indian Law § 12.02, at 881–82. Class I gaming
is within the sole jurisdiction of tribes. Id. Class II games include bingo,
bingo-like games, and certain non-banking (meaning, players compete
against each other and not the “house”) card games. Id. Class II gaming
is jointly regulated by tribes and the National Indian Gaming
Commission, excluding a role for states. Id.
3
As a result of the Supreme Court’s ruling in Seminole Tribe of Fla.
v. Florida, 517 U.S. 44 (1996), states may assert Eleventh Amendment
immunity from tribal lawsuits alleging failure to negotiate in good
10 CLUB ONE CASINO V. BERNHARDT
all or has refused to negotiate a Class III tribal-state compact
in good faith. Id. § 2710(d)(7)(A)(i), (B)(i). If there is a
finding by a district court that the state failed to negotiate in
good faith, IGRA requires the district court to order the tribe
and the state to negotiate a compact within sixty days. Id.
§ 2710(d)(7)(B)(iii). If a compact fails to materialize within
sixty days, the district court shall appoint a mediator who
will require the tribe and the state to submit their best and
final proposal for a compact. Id. § 2710(d)(7)(B)(iv). The
mediator then selects the compact that best comports with
policies embodied in IGRA and other applicable federal
laws. Id. If the state still refuses to agree to be bound by the
chosen compact, IGRA requires the mediator to refer the
matter to the Secretary, who must then issue gaming
procedures consistent with the compact selected by the
mediator, other relevant provisions of IGRA, and the laws of
the state. Id. § 2710(d)(7)(B)(vii).
In addition to IGRA, this appeal implicates the Indian
Reorganization Act of 1934. IRA authorizes the Secretary
“in his discretion” to acquire “any interest in lands, water
rights, or surface rights to lands, within or without existing
reservations,” through purchase, gift, or exchange “for the
purpose of providing land for Indians.” Id. § 5108 (formerly
§ 465). IRA reflected a major shift in federal policy from
one favoring diminishment of tribal lands to one protecting
tribal lands and supporting tribal self-government and
economic development. See Mescalero Apache Tribe v.
Jones, 411 U.S. 145, 152 (1973).
faith—meaning, tribes are prohibited from bringing lawsuits in federal
court against a state without the consent of the state. California has
waived its immunity and has thereby consented to such suits. See Cal.
Gov’t Code § 98005.
CLUB ONE CASINO V. BERNHARDT 11
In sum, in order for a tribe to engage in any gaming on
off-reservation land acquired after October 17, 1988, the
following must take place: (1) land—which is either held in
trust by the United States for the benefit of any Indian tribe
or individual or held by any Indian tribe or individual subject
to restriction by the United States against alienation,
25 U.S.C. § 2703(4)(B)—must be acquired; (2) the
Secretary must make a determination finding that gaming
would be in the best interest of the Indian tribe and its
members, and would not be detrimental to the surrounding
community, id. § 2719(b)(1)(A); and (3) the governor of the
state must concur in the determination, id.
In order for a tribe to engage in Class III gaming,
however, the Secretary must also either approve a tribal-
state compact, id. § 2710(d)(1)(C), or prescribe secretarial
procedures, if the state failed to negotiate in good faith, id.
§ 2710(d)(7)(B)(vii). As explained above, if a state refuses
to negotiate a tribal-state compact in good faith or to enter
into negotiations at all, IGRA authorizes the Secretary to
permit gaming by issuing gaming procedures consistent with
a compact selected by a mediator, other relevant provisions
of IGRA, and the laws of the state.
IV
On appeal, Plaintiffs re-assert the arguments they
presented to the district court. Plaintiffs contend that:
(1) the Secretarial Procedures were issued in violation of
IGRA, as the Tribe purportedly never acquired jurisdiction
or exercised governmental power over the Madera Parcel;
and (2) assuming the Tribe acquired jurisdiction and
exercised governmental power, IRA violates the Tenth
Amendment by reducing the State’s jurisdiction over land
within its territory without its agreement. Plaintiffs also,
however, introduce two additional arguments, which they
12 CLUB ONE CASINO V. BERNHARDT
present for the first time on appeal: (1) that the Secretarial
Determination finding that gaming at the Madera Parcel
would be in the best interest of the North Fork and not
detrimental to the surrounding community did not reflect
sufficiently robust consultation, as required by law; and
(2) that the Governor lacked authority to concur in the
Secretarial Determination. We address the first two
arguments below, and we conclude that the latter two have
been waived.
A
Plaintiffs contend that the Secretarial Procedures, which
permit gaming on the Madera Parcel, were issued in
violation of IGRA because the Tribe purportedly lacked
jurisdiction and did not exercise governmental power over
the Madera Parcel. In support of this argument Plaintiffs
appear to claim that: (1) tribal jurisdiction was not
automatically obtained by the Tribe when the United States
acquired the Madera Parcel in trust for the benefit of the
Tribe; (2) the Secretary was required, but failed, to consider
whether the Tribe possessed jurisdiction and whether the
Tribe exercised governmental power over the Madera
Parcel; and (3) the Tribe’s acquisition of any jurisdiction
over the Madera Parcel requires the State’s consent or
cession—neither of which was granted. None of these
arguments has merit.
1
As noted above, IRA authorizes the Secretary “in his
discretion” to acquire “any interest in lands, water rights, or
surface rights to lands, within or without existing Indian
reservations,” through purchase, gift, or exchange “for the
purpose of providing land for Indians.” Id. § 5108. And
while there is no Ninth Circuit precedent precisely on point,
CLUB ONE CASINO V. BERNHARDT 13
other circuits have logically concluded that, as a matter of
law, the federal government confers tribal jurisdiction over
lands it acquires in trust for the benefit of tribes. We agree.
In Upstate Citizens for Equality, Inc. v. United States, for
example, the Second Circuit concluded that “[l]and held by
the federal government in trust for Indians under [section
5108 of IRA] ‘is generally not subject to (1) state or local
taxation; (2) local zoning and regulatory requirements; or,
(3) state criminal and civil jurisdiction [over Indians], unless
the tribe consents to such jurisdiction.’” 841 F.3d 556, 561
(2d Cir. 2016) (alteration in original) (quoting Conn. ex rel.
Blumenthal v. United States Dep’t of Interior, 228 F.3d 82,
85–86 (2d Cir. 2000)). The court further noted that the
federal government may, “by acquiring land for a tribe,
divest a state of important aspects of its jurisdiction, even if
a state previously exercised wholesale jurisdiction over the
land and even if ‘federal supervision over [a tribe] has not
been continuous.’” Id. at 568 (alteration in original)
(quoting United States v. John, 437 U.S. 634, 653 (1978)).
Accordingly, “[w]hen the federal government takes land into
trust for an Indian tribe, the state that previously exercised
jurisdiction over the land cedes some of its authority to the
federal and tribal governments.” Id. at 569 (emphasis
added). 4
Similarly, in Yankton Sioux Tribe v. Podhradsky, the
Eighth Circuit concluded that “land held in trust under [IRA]
4
Notably and importantly, federal and Indian authority do not
entirely displace state authority over land taken into trust. Upstate
Citizens for Equality, 841 F.3d at 572. For example, under Public Law
280, 18 U.S.C. § 1162(a), California retains “broad criminal jurisdiction
over offenses committed by or against Indians within all Indian country
within the State.” California v. Cabazon Band of Mission Indians,
480 U.S. 202, 207 (1987), superseded on other grounds by statute.
14 CLUB ONE CASINO V. BERNHARDT
is effectively removed from state jurisdiction,” for “when
Congress enacted [IRA] ‘it doubtless intended and
understood that the Indians for whom the land was acquired
would be able to use the land free from state or local
regulation or interference as well as free from taxation.’”
606 F.3d 994, 1011 (8th Cir. 2010) (quoting Chase v.
McMasters, 573 F.2d 1011, 1018 (8th Cir. 1978)).
As a general matter, too, off-reservation trust land like
the Madera Parcel is “Indian country” with all the
jurisdictional consequences that attach to that status. 5
Federal law defines “Indian country,” in part, as “all
dependent Indian communities within the borders of the
United States whether within the original or subsequently
acquired territory thereof, and whether within or without the
limits of a state.” 18 U.S.C. § 1151(b). Off-reservation trust
land set aside for Indian use is Indian country under
subsection (b) of the Indian country statute. Off-reservation
trust land is, by definition, land set aside for Indian use and
subject to federal control. Federal control over trust land is
evident and made clear in regulations such as 25 C.F.R.
§ 1.4(a), which precludes state or local regulation of
property “belonging to any Indian or Indian tribe, band, or
community that is held in trust by the United States[.]”
“Generally speaking, primary jurisdiction over land that is
Indian country rests with the Federal Government and the
Indian tribe inhabiting it, and not with the States.” Native
Vill. of Venetie, 522 U.S. at 527 n.1.
5
“Although this definition by its terms relates only to federal
criminal jurisdiction, we have recognized that it also generally applies to
questions of civil jurisdiction . . . .” Alaska v. Native Vill. of Venetie
Tribal Gov’t, 522 U.S. 520, 527 (1998).
CLUB ONE CASINO V. BERNHARDT 15
As such, the federal government confers tribal
jurisdiction over lands it acquires in trust for the benefit of
tribes as a matter of law.
2
Plaintiffs’ next contention, that the Secretary was
somehow legally required to consider whether the Tribe
possessed jurisdiction and exercised governmental power
over the Madera Parcel, is equally unpersuasive. Plaintiffs
do not point to any provision of IGRA—or any other
relevant authority, for that matter—requiring the Secretary
to make either determination. We decline to read into IGRA
unnecessary requirements demanded neither by law nor
logic. As to jurisdiction specifically, requiring the Secretary
to evaluate whether the Tribe possesses jurisdiction over the
land would be illogical. As noted above, the Tribe’s
jurisdiction over the Madera Parcel operates as a matter of
law; it is not a question of fact. Upstate Citizens for
Equality, 841 F.3d at 569 (“When the federal government
takes land into trust for an Indian tribe, the state that
previously exercised jurisdiction over the land cedes some
of its authority to the federal and tribal governments.”).
As to governance, the Tribe most certainly exercises
governmental power over the Madera Parcel. IGRA
authorizes gaming on “any lands title to which is . . . held in
trust by the United States for the benefit of any Indian tribe
. . . and over which an Indian tribe exercises governmental
power.” 25 U.S.C. § 2703(4)(B) (emphasis added).
Although federal courts have not often had occasion to
consider whether a tribe “exercises governmental power”
within the meaning of IGRA, those that have considered the
question have held that exercising governmental power
requires a showing of both theoretical power to exercise
jurisdiction over the property and proof of actual exercise of
16 CLUB ONE CASINO V. BERNHARDT
that authority. For example, the First Circuit in Rhode Island
v. Narragansett Indian Tribe held that “[m]eeting this
requirement does not depend upon the Tribe’s theoretical
authority, but upon the presence of concrete manifestations
of that authority.” 19 F.3d 685, 703 (1st Cir. 1994).
In Massachusetts v. Wampanoag Tribe of Gay Head, the
First Circuit similarly concluded that a tribe which had
passed ordinances and entered into agreements with state
and local governments for the provision of law enforcement
and firefighting services exercised governmental power
sufficiently within the meaning of IGRA. 853 F.3d 618,
625–26 (1st Cir. 2017). The court underscored that “the
achievement of full-fledged self-governance” was not
necessary—only “merely movement in that direction.” Id.
at 626.
Here, the record clearly indicates that in late 2006 the
Tribe entered into “enforceable and binding” agreements
with the County of Madera and the City of Madera for the
provision of law enforcement and fire protection services at
the Madera Parcel. The Tribe also enacted a gaming
ordinance in 2009 “governing the conduct of gaming” at the
Madera Parcel. The district court also took judicial notice of
the fact that the Tribe enacted an ordinance in October 2015
approving a conservation plan for the Madera Parcel.
For these reasons, both conditions were met here. The
Tribe’s jurisdiction over the Madera Parcel operates as a
matter of law and the Tribe clearly exercised governmental
power when it entered into agreements with local
governments and enacted ordinances concerning the
property.
CLUB ONE CASINO V. BERNHARDT 17
3
Plaintiffs’ final claim in support of their argument that
the Secretarial Procedures were issued in violation of
IGRA—that the Tribe’s acquisition of any jurisdiction over
the Madera Parcel requires the State’s consent or cession—
is also unavailing. Plaintiffs point to the Constitution’s
Enclave Clause and a federal statute, 40 U.S.C. § 3112, as
the sources of those requirements. 6
The Enclave Clause does not apply here. The
Secretary’s acquisition of land in trust for the benefit of a
tribe does not result in the creation of a federal enclave or
violate the Enclave Clause. See, e.g., Upstate Citizens for
Equality, 841 F.3d at 571 (“When land is taken into trust by
the federal government for Indian tribes, the federal
government does not obtain such categorically exclusive
jurisdiction over the entrusted lands.”); City of Roseville v.
Norton, 219 F. Supp. 2d 130, 151 (D.D.C. 2002) (“[I]t is
clear that land taken into trust for Indians does not create an
exclusive federal enclave. Consequently, the Enclaves [sic]
Clause is not implicated[.]”). “State jurisdiction is . . . only
6
In general, Congress may acquire jurisdiction from a state through
two methods: consent and cession. The first method, consent, arises
from the Constitution’s Enclave Clause. Case law construing the clause
instructs that state consent is needed only when the federal government
takes “exclusive” jurisdiction over land within a state. See, e.g., Paul v.
United States, 371 U.S. 245, 263 (1963). “Exclusive” jurisdiction for
Enclave Clause purposes is equivalent to the sweeping power that
Congress exerts over the District of Columbia, the first subject of the
clause. Id. The second method, cession, relates to 40 U.S.C. § 3112.
Under this federal statute, the federal government can acquire
jurisdiction from a state by filing a notice accepting the state’s
jurisdiction with the state’s governor or in such manner as may be
prescribed by the laws of the state where the lands are situated. 40 U.S.C.
§ 3112(b).
18 CLUB ONE CASINO V. BERNHARDT
reduced, and not eliminated, when the federal government
takes land into trust for a tribe. Because federal and Indian
authority do not wholly displace state authority over land
taken into trust pursuant to § 5 of the IRA, the Enclave
Clause poses no barrier to the entrustment that occurred
here.” Upstate Citizens for Equality, 841 F.3d at 572.
Section 3112 also does not apply. By its own terms, the
statute sets forth requirements for the federal government’s
acceptance of jurisdiction over land. See, e.g., 40 U.S.C.
§ 3112(b) (“[The federal government] shall indicate
acceptance of jurisdiction . . . by filing a notice of acceptance
with the Governor of the State[.]”) Here, the federal
government is not accepting jurisdiction “from the State.” In
other words, the jurisdiction at issue here—which was
created by operation of law, as noted above—was not
granted by the State to the federal government, or taken by
the federal government from the State. See, e.g., Kleppe v.
New Mexico, 426 U.S. 529, 541–43 (1976) (noting the
distinction between Congress’ constitutional powers and its
derivative legislative powers acquired from a state, and
noting that where Congress acts pursuant to a non-derivative
constitutional power, federal legislation preempts
conflicting state law). The federal government’s power
under IRA to acquire the Madera Parcel in trust for the
benefit of the Tribe is derived from Congress’ broad general
power, pursuant to the Indian Commerce Clause, to legislate
with respect to Indian tribes—power which has been
consistently described as “plenary and exclusive” power
over Indian affairs. United States v. Lara, 541 U.S. 193, 200
(2004); see also Cotton Petroleum Corp. v. New Mexico,
490 U.S. 163, 192 (1989) (“[T]he central function of the
Indian Commerce Clause is to provide Congress with
plenary power to legislate in the field of Indian affairs[.]”).
Therefore, when Congress so acts, the federal legislation
CLUB ONE CASINO V. BERNHARDT 19
necessarily overrides conflicting state laws under the
Supremacy Clause. See Kleppe, 426 U.S. at 543.
Thus, Plaintiffs’ claim that the Tribe’s acquisition of any
jurisdiction over the Madera Parcel requires the State’s
consent or cession fails.
B
Plaintiffs also contend that to the extent IRA creates
tribal jurisdiction upon the Secretary’s acquisition of land in
trust for the benefit of the Tribe, it violates the Tenth
Amendment. 7 Plaintiffs assert that “tak[ing] sovereignty
from a State without that State’s consent or permission”
violates the Tenth Amendment, as “[t]erritorial jurisdiction
is a fundamental component of State sovereignty.”
The authority to regulate Indian affairs is among the
enumerated powers of the federal government. U.S. Const.
art. I, § 8, cl. 3; Cotton Petroleum Corp., 490 U.S. at 192;
Morton v. Mancari, 417 U.S. 535, 551 (1974) (noting that
Congress has plenary power “to deal with the special
problems of Indians,” including the power to legislate on
their behalf). “With the adoption of the Constitution, Indian
relations became the exclusive province of federal law.”
Cty. of Oneida v. Oneida Indian Nation of New York,
470 U.S. 226, 234 (1985); see also United States v. Forty-
Three Gallons of Whiskey, 93 U.S. 188, 194 (1876)
(“Congress now has the exclusive and absolute power to
regulate commerce with the Indian tribes[.]”).
7
Plaintiffs have standing to bring this claim pursuant to Bond v.
United States, 564 U.S. 211, 220–21 (2011).
20 CLUB ONE CASINO V. BERNHARDT
The Tenth Amendment to the Constitution reserves to
the states those powers not expressly delegated to the federal
government. The powers delegated to the federal
government and those reserved to the states by the Tenth
Amendment are mutually exclusive. “If a power is delegated
to Congress in the Constitution, the Tenth Amendment
expressly disclaims any reservation of that power to the
States[.]” New York v. United States, 505 U.S. 144, 156
(1992).
Because Congress has plenary authority to regulate
Indian affairs, contrary to Plaintiffs’ argument, IRA does not
offend the Tenth Amendment. See, e.g., Carcieri v.
Kempthorne, 497 F.3d 15, 39–40 (1st Cir. 2007) (en banc)
(emphasizing that powers expressly delegated to Congress
do not implicate the Tenth Amendment), rev’d on other
grounds sub nom. Carcieri v. Salazar, 555 U.S. 379 (2009);
see also Gila River Indian Cmty. v. United States, 729 F.3d
1139, 1154 (9th Cir. 2013), as amended (July 9, 2013)
(holding that a federal statute “was well within congressional
power under the Indian Commerce Clause and is not
trumped by the Tenth Amendment”).
C
Plaintiffs also raise two arguments for the first time on
appeal. First, Plaintiffs claim the Secretarial Determination
that gaming would be in the best interest of the Tribe and
would not be detrimental to the surrounding community did
not reflect sufficiently robust consultation with “appropriate
State and local officials” pursuant to section 2719(b)(1)(A)
of IGRA because some local authorities opposed the Tribe’s
request for gaming on off-reservation lands. Second,
Plaintiffs claim that the Governor’s 2012 concurrence in the
Secretarial Determination was unauthorized as a matter of
CLUB ONE CASINO V. BERNHARDT 21
state law 8 and, alternatively, was revoked before the
issuance of the Secretarial Procedures. Neither of these
arguments were presented to the district court.
“Absent exceptional circumstances, we generally will
not consider arguments raised for the first time on appeal,
although we have discretion to do so.” El Paso City v. Am.
W. Airlines, Inc. (In re Am. W. Airlines, Inc.), 217 F.3d 1161,
1165 (9th Cir. 2000). Plaintiffs have failed to address any of
the exceptions to the general rule that an argument raised for
the first time on appeal is waived. See United States v.
Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990) (discussing the
limited circumstances where the Court may consider an issue
raised for the first time on appeal, which include when there
are “exceptional circumstances” why the issue was not
raised in the trial court, when the new issue arose while the
appeal was pending because of a change in the law, and
when the issue presented is purely one of law and the
opposing party will not suffer prejudice as a result of the
failure to raise the issue in the trial court).
Accordingly, Plaintiffs have waived these arguments.
8
The California Supreme Court has granted review of two related
cases involving the following legal question: “May the Governor concur
in a decision by the Secretary of the Interior to take off-reservation land
in trust for purposes of tribal gaming without legislative authorization or
ratification, or does such an action violate the separation of powers
provisions of the state Constitution?” United Auburn Indian Cmty. of
the Auburn Rancheria v. Brown, No. S238544 (review granted Jan. 25,
2017); Stand Up for California! v. State, No. S239630 (review granted
Mar. 22, 2017) (briefing deferred pending decision in United Auburn).
22 CLUB ONE CASINO V. BERNHARDT
V
In summary, the Tribe’s jurisdiction over the Madera
Parcel operates as a matter of law and the Tribe clearly
exercised governmental power when it entered into
agreements with local governments and enacted ordinances
concerning the property. Because neither the Enclave
Clause nor 40 U.S.C. § 3112 are implicated here, neither the
State’s consent nor cession is required for the Tribe to
acquire any jurisdiction over the Madera Parcel. Finally,
IRA does not offend the Tenth Amendment because
Congress has plenary authority to regulate Indian affairs. As
such, we conclude that the Secretary’s actions were not
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); Alaska
Oil & Gas, 815 F.3d at 554.
AFFIRMED.