Native Village of Eklutna v. United States Department of the Interior ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIVE VILLAGE OF EKLUTNA,
Plaintiff,
v.
U.S. DEPARTMENT OF THE INTERIOR,
et al.,
No. 19-cv-2388 (DLF)
Defendants,
and
STATE OF ALASKA,
Defendant-Intervenor.
MEMORANDUM OPINION
“[O]ne problem has always plagued most Alaska Native governments—the lack of a
clearly defined territory subject to their jurisdiction.” David S. Case & David A. Voluck, Alaska
Natives and American Laws 33 (3d ed. 2012). The complexity of this problem—and what sets it
apart from federal-Indian relations in the Lower 48—is due in no small part to Alaska-specific
federal statutes and the lack of treaties between Alaska Natives and the federal government. See
id. at 42. As a result, when it comes to federal-Indian relations, “Alaska is often the exception,
not the rule.” Yellen v. Confederated Tribes of the Chehalis Rsrv., 141 S. Ct. 2434, 2438 (2021)
(quoting Sturgeon v. Frost, 577 U.S. 424, 440 (2016)).
In this action, the Native Village of Eklutna (“Tribe” or “Eklutna”) challenges the
Department of the Interior’s (“Interior”) rejection of its application for an “Indian lands”
determination under the Indian Gaming Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467
(1988) (codified at 25 U.S.C. § 2701 et seq.), as arbitrary and capricious and contrary to law
under the Administrative Procedure Act (APA). The State of Alaska has intervened in support of
Interior. Before the Court is Plaintiff’s Partial Motion for Summary Judgment, Dkt. 51,
Interior’s Cross-Motion for Summary Judgment, Dkt. 54, and Alaska’s Cross-Motion for
Summary Judgment, Dkt. 58. For the reasons that follow, the Court will grant summary
judgment in favor of Interior and Alaska and deny the plaintiff’s motion.
I. BACKGROUND
Eklutna is a federally recognized Indian tribe of the Dena’ina people whose traditional
homeland is the upper Cook Inlet region of Alaska. See A.R. 779, 811–12 (Eklutna Indian Lands
Submission & Ex. 1); Indian Entities Recognized by and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 85 Fed. Reg. 5462, 5466 (Jan. 30, 2020). The Tribe is
headquartered about twenty-seven miles northeast of Anchorage on the Knik Arm of Cook Inlet
where it owns fifty-five acres of fee land. A.R. 977–99, 2052 (Eklutna Indian Lands Submission
Exs. 12–13; Eklutna Indian Lands Third Submission). A tribal council exercises the Tribe’s
inherent sovereign powers under a constitution enacted in 1996. A.R. 953–63 (Eklutna Indian
Lands Submission Ex. 7).
In June 2016, the Tribe requested that the Bureau of Indian Affairs permit the Tribe to
use a parcel of land known as the Ondola Allotment for gambling under Indian Gaming
Regulatory Act. A.R. 778–805 (Eklutna Indian Lands Submission). Eklutna submitted its
request—known as an “Indian lands determination”—along with a proposed commercial lease of
the Allotment for Department approval. A.R. 742–73, 778 (Proposed Lease, Eklutna Indian
Lands Submission).
2
The Ondola Allotment is an 8.05-acre parcel of land that the Bureau of Land
Management issued to Olga Ondola in November 1963 under the Alaska Native Allotment Act,
Pub. L. No. 59-171, ch. 2469, 34 Stat. 197 (1906), amended by Pub. L. No. 84-931, ch. 891, 70
Stat. 954 (1956), repealed by Alaska Native Claims Settlement Act, Pub. L. No. 92-203, § 18(a),
85 Stat. 688, 710 (1971) (codified as amended at 43 U.S.C. §§ 1601–28). A.R. 87–88 (Ondola
Native Allotment). Ondola lived there until her death in 1964, and her son, George Ondola,
inherited an interest in the land and lived there from 1985 until his death. See A.R. 743, 981
(Proposed Lease, Eklutna Indian Lands Submission Ex. 13). George was also an Eklutna tribal
member and served twice as the Tribal Council President. A.R. 981. Their heirs and successors
now own the land, and they are all members of the Tribe. A.R. 742–43, 981, 1249 (Proposed
Lease, Eklutna Indian Lands Submission Ex. 13; Eklutna Indian Lands Second Submission).
The allotment sits twenty-two miles northeast of Anchorage and seven miles southwest of the
Village. A.R. 784, 977–99 (Eklutna Indian Lands Submission & Ex. 12).
On June 18, 2018, John Tahsuda, the Acting Assistant Secretary of Interior, issued a
determination that the Ondola Allotment is not Indian lands under Indian Gaming Regulatory
Act and thus is ineligible for an Indian gaming facility. A.R. 45–61. In his letter, the Assistant
Secretary explained that his analysis was governed by a 1993 opinion by then-Solicitor of
Interior, Thomas Sansonetti (hereinafter “Sansonetti Opinion”), and he rejected the Tribe’s
argument that the Sansonetti Opinion had been superseded by intervening changes in law. A.R.
45, 49–50 (discussing Governmental Jurisdiction of Alaska Native Villages Over Land and
Nonmembers, Op. Sol. Interior M-36975 (Jan. 11, 1993)). Under the Sansonetti Opinion’s
framework for Alaska Native tribal authority, the Assistant Secretary examined the history of
3
statutes governing Alaska Natives, the Eklutna people, and the Ondola Allotment site. A.R. 50–
55.
He then employed five factors “that reflect the fact-specific concerns expressed in” the
Sansonetti Opinion to determine whether the Allotment had the requisite nexus with the Tribe to
be “Indian lands”—that is, whether tribal jurisdiction existed. A.R. 56. Those factors were “(1)
“Tribal membership of the original allottees and their heirs; (2) proximity to an existing Indian
reservation; (3) allotment location relative to treaty-recognized hunting, fishing, and gathering
territories; (4) the provision of Tribal police and other services in the area; and (5)
acknowledgment by local governments of Tribal regulatory and enforcement authority at the
site.” A.R. 56; see A.R. 56–60 (analyzing each factor). Weighing these factors, the Assistant
Secretary concluded they counseled against a finding of tribal jurisdiction because there was
never an Indian reservation near the Allotment, the local authorities did not acknowledge the
Tribe’s territorial authority over the site, and the ownership by Tribal members alone was
insufficient to counteract all the other factors. A.R. 61. Since the Allotment was not “Indian
lands,” the Assistant Secretary rejected the Tribe’s proposed lease of the Allotment. A.R. 61.
On August 8, 2019, the Tribe filed the instant action in this Court bringing three claims
against Interior and its officers. See generally Compl., Dkt. 1. First, the Tribe alleges that
Department of Interior’s Indian lands determination was arbitrary, capricious, and contrary to
law in violation of the APA, 5 U.S.C. § 706(2)(A), (C). Compl. ¶¶ 101–16. Second, the Tribe
alleges that Interior’s decision was improperly influenced by political considerations in violation
of the APA, 5 U.S.C. § 706(2)(A). Compl. ¶¶ 117–22. Third, the Tribe alleges that the
disapproval of the proposed lease was arbitrary and capricious in violation of the APA, 5 U.S.C.
§ 706(2)(A). Compl. ¶¶ 123–27. The Tribe requests declaratory relief holding that the Ondola
4
Allotment is Indian lands and an injunction requiring Interior to approve the proposed lease. Id.
at 26.
Before briefing on the cross-motions for summary judgment and in furtherance of
Eklutna’s second count, the Tribe sought extra-record discovery in the form of depositions of
senior Department officials. See Motion for Leave to Take Extra-Record Discovery, Dkt. 36.
This Court denied the motion because the plaintiff failed to adduce evidence that “r[o]se to a
‘strong showing of bad faith or improper behavior.’” Order at 6, Dkt. 47 (quoting Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)). Thereafter, the plaintiff moved for
partial summary judgment as to counts one and three. Motion for Partial Summary Judgment,
Dkt. 51. Interior filed a cross-motion for summary judgment in December, followed by
intervenor-defendant Alaska in January. Cross-Motion for Summary Judgment, Dkt. 55; Cross-
Motion for Summary Judgment, Dkt. 59. These motions are now ripe for resolution.
II. LEGAL STANDARDS
A court grants summary judgment if the moving party “shows 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A
“material” fact is one with potential to change the substantive outcome of the litigation. See
Liberty Lobby, 477 U.S. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A
dispute is “genuine” if a reasonable jury could determine that the evidence warrants a verdict for
the nonmoving party. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895.
In an APA case, summary judgment “serves as the mechanism for deciding, as a matter
of law, whether the agency action is supported by the administrative record and otherwise
consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90
5
(D.D.C. 2006). The Court will “hold unlawful and set aside” agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. §
706(2)(A), “in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right,” id. § 706(2)(C), or “unsupported by substantial evidence,” id. § 706(2)(E).
In an arbitrary-and-capricious challenge, the core question is whether the agency’s
decision was “the product of reasoned decisionmaking.” Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983); see also Nat’l Telephone Coop. Ass’n
v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009) (“The APA’s arbitrary-and-capricious standard
requires that agency rules be reasonable and reasonably explained.”). The court’s review is
“fundamentally deferential—especially with respect to matters relating to an agency’s areas of
technical expertise.” Fox v. Clinton, 684 F.3d 67, 75 (D.C. Cir. 2012) (quotation marks and
alteration omitted). The court “is not to substitute its judgment for that of the agency.” State
Farm, 463 U.S. at 43. “Nevertheless, 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.” Id. (internal quotation marks omitted). When reviewing that explanation, the
court “must consider whether the decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.” Id. (internal quotation marks omitted).
For example, an agency action is arbitrary and capricious if the agency “entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before [it], or [the explanation] is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.” Id. “The party challenging
an agency’s action as arbitrary and capricious bears the burden of proof.” Pierce v. SEC, 786
F.3d 1027, 1035 (D.C. Cir. 2015) (internal quotation marks and citation omitted).
6
To the extent that an agency action is based on the agency’s interpretation of a statute it
administers, the court’s review is governed by the two-step Chevron doctrine. At Step One, a
court must determine “whether Congress has directly spoken to the precise question at issue” or
instead has delegated to an agency the legislative authority to “elucidate a specific provision of
the statute by regulation.” Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842, 843–44 (1984). If the latter, a court must reach Step Two, which asks whether the agency
action “is based on a permissible construction of the statute” or instead is “manifestly contrary to
the statute.” Id. at 843, 844. Chevron deference applies “with muted effect” when an agency
interprets Indian legislation. Cobell v. Salazar, 573 F.3d 808, 812 (D.C. Cir. 2009). In such
cases, a court shall “liberally construe the statute in favor of Native Americans.” El Paso Nat.
Gas Co. v. United States, 632 F.3d 1272, 1278 (D.C. Cir. 2011).
III. ANALYSIS
A. The Indian Lands Determination Was Not Arbitrary and Capricious or
Contrary to Law
The Tribe argues that Interior’s determination that the Ondola Allotment is not Indian
lands under Indian Gaming Regulatory Act and thus ineligible for an Indian gaming facility is
incorrect for two reasons: First, Interior applied the wrong legal standard for determining
whether the Ondola Allotment is Indian lands; and second, Interior’s application of the
Sansonetti Opinion was arbitrary and capricious. See Pl.’s Mem. in Supp. of Summ. J. at 13,
Dkt. 51-1. The Court takes each argument in turn.
7
1. The Sansonetti Opinion Is the Governing Standard and Has Not Been
Superseded
As a matter of law, “[a]n agency’s decision is an abuse of discretion if the agency has
applied an incorrect legal standard in making its decision.” Buffalo Field Campaign v. Zinke,
289 F. Supp. 3d 103, 109 (D.D.C. 2018) (citing Price v. District of Columbia, 792 F.3d 112, 114
(D.C. Cir. 2015)). When making an Indian lands determination in Alaska, Interior applies the
legal standard set forth in the 1993 Sansonetti Opinion. See A.R. 45 (Ondola Allotment
Determination). The Tribe challenges the application of that standard to the Ondola Allotment
because it claims the 1993 Opinion was incorrect, and even if it was not, it has been undermined
by intervening changes in the law. See Pl.’s Mem. at 21–35. The Court disagrees. The
Sansonetti Opinion was valid in the first instance and remains so today.
i. Statutory Framework and Sansonetti Opinion
The Indian Gaming Regulatory Act is the statutory scheme through which the federal
government approves and regulates Indian gaming. See generally 25 U.S.C. § 2702 (statement
of policy). The Act allows Indian tribes to conduct gaming activity on “Indian lands” subject to
approval by the Bureau of Indian Affairs and under the regulation of National Indian Gaming
Commission. Id. §§ 2704–06, 2710(a)(2), (b). As both parties agree, the Indian Gaming
Regulatory Act lays the initial legal foundation for the Indian lands determination by defining
“Indian lands” as:
(A) all lands within the limits of any Indian reservation; and
(B) 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). Congress has delegated the authority to make Indian lands determinations to the
Assistant Secretary of Interior for Indian Affairs.
8
In 1993, the Secretary of Interior commissioned Solicitor Sansonetti “to develop the legal
position of the United States on ‘the nature and scope of so-called governmental powers over
lands and nonmembers that a Native village can exercise after the Alaska Claims Settlement
Act.’” A.R. 2140 (Sansonetti Opinion). In a 133-page opinion that Sansonetti described as “one
of the most difficult to prepare during [his] tenure,” he extensively reviewed the history of
Alaska, its acquisition from Russia, the status of the native groups from the time of acquisition to
the present, the legislation dealing with Alaska Natives, and the various actions Interior had
taken with respect to Alaska Native groups. A.R. 2270; see generally A.R. 2140–2272. Interior
relies on the standards set forth in this Opinion to the determine whether a plot of land is one
“over which an Indian tribe exercises governmental power” as required by Indian Gaming
Regulatory Act. 25 U.S.C. § 2703(4)(B); see A.R. 45 (Ondola Allotment Determination).
Sansonetti began by noting that the questions surrounding the Alaska Natives were
complex because of “Alaska’s unique circumstances and history.” A.R. 2142. He recognized
that there was one key statute for understanding Alaska Native tribes without any parallel in
federal Indian law—the Alaska Native Claims Settlement Act. See A.R. 2215–46. Although this
Act did not terminate the tribal governments, it dealt primarily with “new, state-chartered
corporate organizations” when it allocated land and money in exchange for the renunciation of
aboriginal title claims. A.R. 2246. As such, Sansonetti found it necessary to determine how the
Alaska Native Claims Settlement Act interacts with traditional Indian-law principles for
determining tribal territorial power. A.R. 2246–47.
The general rule, Sansonetti explained, is that Indian tribes have jurisdiction over persons
and property in “Indian country” within the limitations imposed by Congress. A.R. 2247 (citing
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 142 (1982)). But that is not the end of the
9
tribal-jurisdiction inquiry. For lands that are Indian country, the analysis proceeds from “general
principles concerning tribal, federal, and state jurisdiction to the specific facts and law applicable
to the particular situation to determine whether Congress has acted to alter the general
principles.” A.R. 2249.
In the case of the Alaska Native Allotments (of which the Ondola Allotment is one),
Congress created “an exception to the general rule that the territorial basis for tribal authority
coincides with the federal Indian country status of lands.” A.R. 2263 (citing Native Village of
Venetie IRA Council v. Alaska, 944 F.2d 548, 558 n.12 (9th Cir. 1991)). The Alaska Native
Allotments differed from allotments in the Lower 48 because (1) the Alaska Native Allotment
Act “d[id] not make tribal membership a criteria for receiving an allotment,” A.R. 2267, and (2)
these allotments “were not carved out of any reservation,” A.R. 2268. The text of the Act also
provided that the allotment “shall be deemed the homestead of the allotee and its heirs.” Id. For
these reasons, Sansonetti concluded that the Alaska Native Allotments were “more similar to
homestead act allotments rather than tribal affiliation public domain allotments.” A.R. 2266.
ii. Initial Validity
The Tribe advances two arguments why the Sansonetti Opinion was incorrect from the
outset. First, it argues that Sansonetti was incorrect to consider (1) the lack of a tribal-
membership requirement for an allottee and (2) the reservation carve-out status for the allotment
in distinguishing between the Alaska Native Allotment Act and other allotment schemes. See
Pl.’s Mem. at 26–29. Second, the Tribe argues that he was wrong to consider the Alaska Native
Claims Settlement Act to determine tribal territorial jurisdiction. See id. at 29–31. Both
arguments fail.
10
Sansonetti’s interpretation of the Alaska Native Allotment Act was correct. Although the
two factors he identified—tribal membership and reservation carve-out status—may not make a
difference in every comparison of Alaska and Lower 48 allotments, the Tribe is incorrect that
these factors are irrelevant in determining tribal territorial sovereignty over a parcel of land, see
Pl.’s Mem. at 26–28. For example, there would be no “tribal jurisdiction over an Indian
homestead allotment obtained by an Indian who had abandoned tribal relations” because there
would be neither “indication of congressional intent to permit such jurisdiction” nor “original
tribal nexus to support such jurisdiction.” A.R. 2266. And the Supreme Court has long held that
tribal-membership status is relevant to sovereignty analyses. See, e.g., Montana v. United States,
450 U.S. 544, 557–67 (1981) (considering tribal regulation of fishing and hunting differently
depending both on status of land and on status of person). Similarly, the fact that an allotment
was not carved out of a reservation also may not be dispositive of tribal jurisdiction in every
case, but it too is informative: When an allotment has been carved out of a reservation, one is
certain that the tribe at least once exercised sovereignty over the parcel; otherwise, not. Cf.
Solem v. Bartlett, 465 U.S. 463, 466–72 (1984) (explaining the different consequences of carving
allotments out of reservations depending on statute for the allotment’s status henceforth); United
States v. Nice, 241 U.S. 591, 595–96 (1916) (explaining that allotments out of reservations land
that would eventually be conveyed in fee to the Indian and his heirs did not dissolve the tribal
relation while the land was still in trust status). Because both factors that Sansonetti identified in
analyzing the Alaska Native Allotment Act reflect the political connection between the land and
the Tribe under the allotment scheme, the Sansonetti Opinion did not misinterpret the Act.
Sansonetti also correctly determined that the Alaska Native Claims Settlement Act
“largely controls in determining whether” Alaska Native tribes exercise jurisdiction over
11
Alaskan lands. A.R. 2247. Although the Act’s text does not explicitly address tribal
governmental authority, its distribution of land in particular tenure to particular parties has legal
significance in determining the scope of tribal governmental authority. Cf., e.g., United States v.
Mazurie, 419 U.S. 544, 554–55 (1975) (considering land tenure for purposes of federal
jurisdiction); Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 467–68
(D.C. Cir. 2007) (considering property’s context in determining what qualifies as a reservation).
And neither the House committee report nor the 1988 amendment on which the Tribe relies
undermines this conclusion. The fact that a House committee report did not speak to tribal
jurisdiction, see Pl.’s Mem. at 30 (quoting H.R. Rep. No. 99-712, at 27 (1986)), does not mean
that Congress did not affect the status of tribes or tribal jurisdiction. The 1988 amendment,
which provides that “no provision of this Act shall . . . confer on, or deny to, any Native
organization any degree of sovereign governmental authority over lands . . . or persons in
Alaska,” Pub. L. No. 100-241, § 2(8)(B), 101 Stat. 1788, 1789 (1988) (codified at 43 U.S.C. §
1601 note), is inapposite. That amendment concerned the “degree[s]” of tribal authority—i.e.,
not whether a tribe has sovereign control over land, but what that sovereignty entails. The Tribe
is incorrect that Alaska Native Claims Settlement Act simply resolved “disputed aboriginal land
claims” and played no role in defining the extent of territorial jurisdiction. See Pl.’s Mem. at 29.
In sum, both of Eklutna’s arguments about the Sansonetti Opinion’s initial validity are
unavailing. And consistent favorable treatment of the Opinion by courts supports this
conclusion. See Confederated Tribes of the Chehalis Rsrv. v. Mnuchin, 976 F.3d 15, 18, 26
(D.C. Cir. 2020), rev’d on other grounds, 141 S. Ct. 2434 (2021); Alaska ex rel. Yukon Flats Sch.
Dist. v. Native Village of Venetie Tribal Gov’t, 101 F.3d 1286, 1303 (9th Cir. 1996) (Fernandez,
12
J., concurring), rev’d on other grounds, 522 U.S. 520 (1998); Native Village of Venetie I.R.A.
Council v. Alaska, 1994 WL 730893, at *12 (D. Alaska Dec. 23, 1994).
iii. Intervening Law
The Tribe is also incorrect that later-enacted statutes invalidated the 1993 Sansonetti
Opinion. See Pl.’s Mem. at 31–35. Neither the Federally Recognized Indian Tribe List Act,
Pub. L. No. 103-454, § 103(4)–(5), 108 Stat. 4791, 4791–92 (1994) (List Act), the Tlingit and
Haida Status Clarification Act, id. § 202(4), 108 Stat. at 4792, nor the “privileges-and-
immunities” amendment to the Indian Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984
(1934) (codified at 25 U.S.C. § 461 et seq.), amended by Pub. L. No. 103-263, §5(b), 108 Stat.
707 (1994) (codified at 25 U.S.C. § 5123(f)–(g)), call into question the Opinion’s legal
foundation. As the Assistant Secretary found, the Opinion still provides the proper standard for
Interior’s Alaskan Indian lands determinations.
The List Act, the first statute the Tribe highlights, requires the Secretary of Interior to
“publish in the Federal Register a list of all Indian tribes which the Secretary recognizes to be
eligible for the special programs and services by the United States to Indians because of their
status as Indians.” § 104(a), 108 Stat. at 4792. This Act “repudiate[ed] the policy of terminating
recognized Indian tribes” and implemented a new policy of “restor[ing] recognition to tribes that
previously have been terminated.” § 103(5), 108 Stat. at 4791. It also made clear that only
Congress can terminate a tribe that has been recognized. § 103(4), 108 Stat. at 4791. But the
List Act’s passage had no impact on the continuing validity of the Sansonetti Opinion for two
reasons. First, there is no general conflict between the List Act and the Opinion because the
Opinion recognized that Alaska Native tribes had “retained governmental powers” after the
Alaska Native Claims Settlement Act was enacted, and that statute was insufficiently clear to
13
serve as a certain and complete termination statute as to Alaska Native tribes so as to
“extinguish[] the sovereign powers of Native villages that are tribes.” A.R. 2246. The Opinion
even found that “it would be improper to conclude that no Native village in Alaska could qualify
as a federally recognized tribe.” A.R. 2270. The List Act merely codified what Solicitor
Sansonetti had already suspected to be the case—that there were federally recognized tribes in
Alaska—and made clear that, once recognized, neither Interior nor the Bureau of Indian Affairs
could disestablish those tribes. Second, the Opinion does not conflict with the List Act in the
case of this specific tribe because the Eklutna Tribe has been a federally recognized tribe since
before the List Act and the Sansonetti Opinion, and it remains one to this day. See Indian
Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian
Affairs, 58 Fed. Reg. 54364, 54369 (1993); Indian Tribal Entities Recognized and Eligible to
Receive Services from the United States Bureau of Indian Affairs, 48 Fed. Reg. 56862, 56865
(1983). And as Interior itself recognizes, it lacks the power to disestablish a tribe. Thus, the List
Act has had no impact on the validity or applicability of the Sansonetti Opinion to the Tribe’s
claim.
Nor did the Tlingit and Haida Status Clarification Act undercut the Sansonetti Opinion.
In this Act, Congress reaffirmed the federally recognized tribal status of the Central Council of
Tlingit and Haida Indian Tribes of Alaska after the Secretary left the tribe off the list of federally
recognized tribes. §§ 202–03, 108 Stat. at 4792 (codified at 25 U.S.C. §§1212–13). Congress
found this omission improper because the United States had declared them a federally
recognized tribe by statute in 1935, and only Congress has authority to terminate federally
recognized tribes. § 202, 108 Stat. at 4792. This response to an improper action by Interior as to
one particular tribe has no bearing on the legal standard set forth in the Sansonetti Opinion. The
14
Opinion made no claim as to the Tlingit and Haida’s tribal status, nor did it suggest the Secretary
had the authority to terminate or otherwise diminish the status of federally recognized tribes. As
such, the passage of this Act did not undermine the ongoing viability of the Sansonetti Opinion.
Finally, the addition of the “privileges-and-immunities” provisions to the Indian
Reorganization Act also did not invalidate the Sansonetti Opinion’s legal reasoning. This
amendment provides that “[a]ny regulation or administrative decision or determination of a
department or agency of the United States that is in existence or effect on the date of the
enactment of this Act and that classifies, enhances, or diminishes the privileges and immunities
available to the Indian tribe relative to a federally recognized Indian tribe relative to the
privileges and immunities available to other federally recognized tribes by virtue of their status
as Indian tribes shall have no force or effect.” § 5(b), 108 Stat. at 709 (codified at 25 U.S.C. §
5123(g)). The key purpose of this clause is to “prohibit[] disparate treatment between similarly
situated recognized tribes.” Koi Nation of N. Cal. v. U.S. Dep’t of Interior, 361 F. Supp. 3d 14,
54 (D.D.C. 2019). Although Eklutna is correct that its application for an Indian lands
determination was denied while applications of other tribes in the Lower 48 were not, Eklutna
fails to grapple with the requirement that its different treatment be arbitrary. And though it is
true that a nearly identical statutory provision, § 5123(f), “prohibit[s] the [Bureau of Indian
Affairs] from finding [one tribe] lack[ed] territorial jurisdiction while other tribes possess[ed] it,”
Cherokee Nation v. Bernhardt, 936 F.3d 1142, 1160 (10th Cir. 2019) (citation omitted), both
provisions require only that Interior apply the same legal rule in the same manner, not that
Interior necessarily reach the same outcome. Despite Eklutna’s contentions otherwise, the
Sansonetti Opinion does not set out a new legal test but instead sets forth the starting point for
15
applying the general legal test for Indian tribal territorial jurisdiction to the unique factual and
legal circumstances in Alaska.
As discussed above, the Sansonetti Opinion’s starting point was “the general principles of
Indian law.” A.R. 2247. Sansonetti recognized that the general rule is that Indian tribes have
jurisdiction over “Indian country” property “except so far as that jurisdiction has been restrained
and abridged by treaty or act of Congress.” A.R. 2247 (internal quotation marks omitted)
(quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 140 (1982)). Because Alaska Native
tribes have been governed by different acts of Congress—from the Alaska Native Allotment Act
to the Alaska Native Claims Settlement Act—than tribes in the Lower 48 for over one hundred
years, see Case & Voluck, supra, at 42, a neutral application of the general Indian lands test
necessarily looks different in Alaska than it does in the Lower 48. That is not arbitrary; rather, it
reflects the fact that Congress has decided that a different scheme should govern federal–native
relations in Alaska.
The Sansonetti Opinion then conducted its analysis of the impact of the Alaska-specific
statutes within the parameters established by cases involving a wide range of different tribes.
See, e.g., A.R. 2248–49 (discussing, inter alia, Indian Country, U.S.A. v. Oklahoma Tax
Comm’n, 829 F.2d 967 (10th Cir. 1987) (explaining the significance of the “Indian country”
determination, id. at 973); Mescalero Apache Tribe v. Jones, 411 U.S. 147, 148–49 (1973)
(discussing off-reservation tribal activity)). After a threshold determination of whether
“particular lands involved are properly classified as Indian country,” the Opinion considered “the
specific facts and law applicable to the particular situation to determine whether Congress ha[d]
acted to alter the general principles” when it came to tribal territorial jurisdiction over Indian
country lands. A.R. 2249.
16
The Opinion acknowledged that Alaska Native Allotments were “Indian country,” A.R.
2263, and then explained why they differed from allotments in the Lower 48. First, the Alaska
Native Allotment Act “d[id] not make tribal membership a criteria for receiving an allotment.”
A.R. 2267. Second, these allotments “were not carved out of any reservation.” A.R. 2268.
Finally, “the statute specifically provide[d] that the allotment ‘shall be deemed the homestead of
the allottee and his heirs.’” A.R. 2268. The Opinion concluded that the first two factors,
coupled with the statutory language, made these allotments more akin to general Indian
homestead allotments rather than tribal or reservation allotments from which tribal territorial
jurisdiction could spring. See A.R. 2268. The Alaska Native Allotment Act allotments lacked
the key connection to a tribal territorial base such as a reservation. See A.R. 2268. This was in
no small part because there was not a general federal practice of establishing reservations in
Alaska, and to this day only one reservation exists. See A.R. 2146, 2168, 2172, 2178 n.110.
Nothing in the Sansonetti Opinion amounts to arbitrary discrimination on behalf of
Interior. The Solicitor applied the same legal test that determined tribal territorial jurisdiction
across the United States, and that test’s statute-specific analysis led to a different conclusion for
jurisdiction over Indian country allotments in Alaska. This legal test remains the appropriate
legal standard even after the passage of legislation, including the “privileges-and-immunities”
amendment to the Indian Reservation Act. And because the statutes at issue are sufficiently
clear, there is no need to apply the Indian canon of construction—which “direct[s] courts to
liberally construe statutes in favor of Native Americans”—as the Tribe suggests. El Paso Nat.
Gas Co. v. United States, 632 F.3d 1272, 1278 (D.C. Cir. 2011) (declining to apply the Indian
canon to the Uranium Mill Tailings Remediation and Control Act for that reason). For all of
17
these reasons, Interior applied the correct legal standard when making the Ondola Allotment
Indian lands determination.
2. The Application of the Sansonetti Opinion to the Ondola Allotment Was
Not Arbitrary and Capricious
The record also reveals that Interior “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action including a ‘rational connection between the facts found
and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962)). As discussed above, Interior considered five factors, A.R. 56,
to determine whether there was a “tribal nexus” between Eklutna and the Ondola Allotment
sufficient to create territorial jurisdiction:
(1) Tribal membership of the original allottees and their heirs;
(2) proximity to an existing Indian reservation;
(3) allotment location relative to treaty-recognized hunting, fishing, and gathering
territories;
(4) the provision of Tribal police and other services in the area; and
(5) acknowledgment by local governments of Tribal regulatory and enforcement
authority at the site.
A.R. 56. The parties agree that Ondola, the allottee, and her heirs were and are members of the
Eklutna Tribe, see, e.g., Pl.’s Mem. at 37 n.21, but they disagree over the remaining factors. The
Court takes their arguments in turn.
The Tribe claims that Interior retroactively recharacterized its earlier Indian lands
decisions as turning on proximity to “an existing source of Tribal territorial sovereignty,” as
opposed to “distance from ‘the tribal community.’” Pl.’s Mem. at 21 (quoting A.R. 57, 2469,
2511). But that is not what Interior did. Instead, Interior merely recognized an important
distinction between its earlier decisions and the present one—namely, that the other tribes had
reservations, which are sources of territorial sovereignty, and Eklutna does not. See A.R. 56–57,
18
2469, 2511. This is not an arbitrary or capricious difference in a legal regime determining
territorial jurisdiction.
Interior also did not act arbitrarily when it found that the Ondola family’s tribal
membership was not dispositive. Nor did it “completely . . . disregard[] the Tribe’s evidence.”
Pl.’s Mem. at 37. The Assistant Secretary merely said that the family’s tribal membership was
not sufficient to answer the tribal jurisdiction question. A.R. 56–57. This is not the same as
treating particular evidence as helpful in one circumstance and “characterize[ing] that same type
of evidence very differently and dismiss[ing] it as entirely unhelpful for” another tribe. Mashpee
Wampanoag Tribe v. Bernhardt, 466 F. Supp. 3d 199, 230 (D.D.C. 2020).
Interior considered the Tribe’s close connection to lands near and including the Ondola
Allotment but also found it insufficient. See A.R. 51–53. The Tribe notes that the allotment is
within their “traditional lands in the upper Cook Inlet region” and that the allotment was once
within a federal reserve—“the Eklutna School Reserve that had been set aside for the benefit and
education of Alaska Natives.” Pl.’s Mem. at 36. But the School Reserve is not the same as the
reservations considered in other Indian lands determinations because it is for a “vocational
boarding school for Alaska Natives” run by the U.S. Bureau of Education, A.R. 51, not for a
particular tribe, see, e.g., A.R. 2455 (Whitecloud Indian lands determination). As the Supreme
Court has recognized, “the Indian tribes retain ‘attributes of sovereignty over both their members
and their territory.’” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980)
(emphasis added) (quoting Mazurie, 419 U.S. at 557); see also id. at 143 (explicitly discussing
“[t]ribal reservations” (emphasis added)). This does not extend to any territory placed in reserve
by the federal government for use of Indians generally. Cf. Montana, 450 U.S. at 566 (“A tribe
may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee
19
lands within its reservation . . . .” (emphasis added)). Interior’s decision to distinguish tribal
reservations run by Indian tribes from educational reservations run by the federal government is
not arbitrary in the context of territorial jurisdiction because the two kinds of reservations are
controlled by two different sovereigns—a tribe versus the federal government.
Applying the fourth prong, Interior considered various government services provided by
the Tribe but found them insufficient. The Assistant Secretary looked at the Tribe’s provision of
services such as cutting trees on the Ondola Allotment “for fire safety purposes and . . . for
cultural activities elsewhere” and food delivery “to Ms. Ondola and her family.” A.R. 59.
Interior considered this evidence but found it lacking, noting that there was not provision of
policing in the area or general services to nearby Tribal members. A.R. 59. The Tribe points to
other tribal services such as the placement of foster children with the Ondola family under the
Indian Child Welfare Act, Pub. L. No. 95-608, 92 Stat. 3069 (1978), land maintenance, and
environmental regulation to suggest that there were sufficient tribal services at the site to meet
this prong. See Pl.’s Mem. at 40–41. But as Interior noted, see A.R. 60, there is a difference
between jurisdiction over members and jurisdiction over land, and given the nature of these
services, it was not arbitrary for Interior to conclude that the Tribe exercised only the former
here, cf. Plains Com. Bank v. Long Fam. Land & Cattle Co., 554 U.S. 316, 327–29 (2008)
(distinguishing between authority over tribal members and over land). Even, to the extent that
environmental regulations arguably evidence jurisdiction over territory, that alone is insufficient
to tilt this prong in favor of the Tribe when (1) the other provided services are clearly personal—
rather than territorial—in nature and (2) there is an absence of core governmental services
provided by the Tribe.
20
Finally, under the fifth prong, Eklutna challenges Interior’s conclusion that state or local
governments do not recognize Eklutna’ tribal jurisdiction. See Pl.’s Mem. at 41. Eklutna points
to agreements with the Municipality of Anchorage, id., but as the Assistant Secretary explained,
“[t]he agreement [with the Anchorage Police Department] relates to matters of personal, not
territorial jurisdiction, and does not otherwise acknowledge Tribal territorial jurisdiction or
reference Tribal lands.” A.R. 59 (emphasis added). That is because the agreement, as even the
Tribe recognizes, covers “comprehensive service to members of the Tribe of Eklutna.” A.R. 795
(Eklutna Indian Lands Submission) (emphasis added). Indeed, Interior followed the delineation
between jurisdiction over territory and jurisdiction over persons that the Supreme Court has
consistently recognized. See, e.g., Montana, 450 U.S. at 564–66; United States v. Wheeler, 435
U.S. 313, 324–26 (1978), superseded by statute on other grounds as stated in United States v.
Lara, 541 U.S. 193 (2004); Mazurie, 419 U.S. at 557. Because the purpose of Interior’s inquiry
was to determine territorial jurisdiction, it is not irrational or arbitrary for Interior to discount
agreements about personal jurisdiction under this final prong.
In sum, Interior’s conclusion that the Ondola Allotment did not meet the requirements of
the Indian lands test was rational. Though the Tribe may not agree with Interior’s application of
law to the facts at hand, the record shows that Interior made a reasoned judgment which the
Court will not second-guess. Thus, the Tribe’s claim that Interior acted arbitrarily and
capriciously in applying the Indian lands test set forth in the Sansonetti Opinion must fail.
21
B. The Indian Lands Determination Was Not Improperly Influenced by
Political Considerations
The Tribe’s second claim—that “political communications by members of the Alaska
Delegation . . . influenced the outcome of Interior’s decision” such that Interior’s decision was
arbitrary and capricious, Compl. ¶¶ 121–22—fails for three reasons.
First, there are no material facts in dispute. Because the Court is reviewing the agency’s
action under the APA, the Court is limited to the administrative record. See, e.g., Hill
Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013) (“[I]t is black-letter
administrative law that in an APA case, a reviewing court ‘should have before it neither more
nor less information than did the agency when it made its decision.’” (quoting Walter O. Boswell
Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir.1984))); James Madison Ltd. ex rel. Hecht
v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996) (“Generally speaking, district courts reviewing
agency action under the APA’s arbitrary and capricious standard do not resolve factual issues,
but operate instead as appellate courts resolving legal questions.”). On the record before this
Court, summary judgment in favor of Interior is appropriate.
Second, this Court has already addressed the plaintiff’s request for extra-record
discovery. See Order, Dkt. 47. That decision is now the law of the case, not subject to
disturbance on resolution of motions for summary judgment. See, e.g., Al Bahlul v. United
States, 967 F.3d 858, 875 (D.C. Cir. 2020). “The law-of-the-case doctrine dictates that ‘the same
issue presented a second time in the same case in the same court should lead to the same result.’”
Id. (emphasis omitted) (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en
banc)). That doctrine squarely applies here.
22
Third, the Tribe’s claim fails on the merits. To succeed on its claim, the Tribe bears the
burden of showing that political influence “actually affected the outcome on the merits” or
“enter[ed] the decision maker’s ‘calculus of consideration.’” ATX, Inc. v. U.S. Dep’t of Transp.,
41 F.3d 1522, 1529–30 (D.C. Cir. 1994). To do so, the Tribe must “demonstrate clear
interference.” Peter Kiewit Sons’ Co. v. U.S. Army Corps of Eng’rs, 714 F.2d 163, 169 (D.C.
Cir. 1983). For the reasons discussed in this Court’s Order from August 26, 2020, and in section
III.A above, the Tribe has not come close to meeting this burden.
For these reasons, the Court will grant summary judgment for Interior on this claim.
C. Interior’s Disapproval of the Proposed Lease Was Not Arbitrary and
Capricious.
Eklutna’s final claim is that the disapproval of their proposed lease was arbitrary and
capricious because it was based on a flawed Indian lands determination. See Pl.’s Mem. in
Support of Summary Judgment at 43–44. Because the Indian lands determination was not
flawed, see supra section III.A, this claim must also fail. A gaming lease can be approved only
on Indian lands. See 25 U.S.C. § 2710(b)(1), (d)(1)(A)(i); accord Citizens Exposing Truth About
Casinos, 492 F.3d at 462. Thus, the Secretary lacked discretion to reach any other determination
on the proposed lease, which precludes the decision from being arbitrary and capricious.
Summary judgment for Interior is therefore appropriate on this claim as well.
23
CONCLUSION
For the foregoing reasons, the defendants’ Cross-Motions for Summary Judgment are
granted and the plaintiff’s Motion for Summary Judgment is denied. A separate order consistent
with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
September 22, 2021
24