Franks Landing Indian Cmty. v. National Indian Gaming Comm'r.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK’S LANDING INDIAN No. 17-35368
COMMUNITY, a federally-
recognized self-governing D.C. No.
dependent Indian community, 3:15-cv-05828-BHS
Plaintiff-Appellant,
v. OPINION
NATIONAL INDIAN GAMING
COMMISSION; UNITED STATES
DEPARTMENT OF THE
INTERIOR; JONODEV
CHAUDHURI, in his official
capacity as Chairman of the
National Indian Gaming
Commission; TARA KATUK
MACLEAN SWEENEY, in her
official capacity as Assistant
Secretary of the Interior
Indian Affairs, United States
Department of the Interior;
DAVID BERNHARDT, in his
official capacity as Acting
Secretary of the Interior,
Defendants-Appellees.
2 FRANKS LANDING INDIAN COMTY. V.
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Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted October 11, 2018
Seattle, Washington
Filed March 12, 2019
Before: N. Randy Smith and Morgan Christen, Circuit
Judges, and Robert E. Payne,* District Judge.
Opinion by Judge Christen
SUMMARY**
Tribal Matters
The panel affirmed the district court’s summary judgment
entered in favor of the U.S. Department of the Interior, its
Secretary, and Assistant Secretary of Indian Affairs, in an
action challenging the Department of the Interior’s
determination that Frank’s Landing Indian Community is
ineligible for gaming for purposes of the Indian Gaming
Regulatory Act (“IGRA”).
*
The Honorable Robert E. Payne, United States District Judge for the
Eastern District of Virginia, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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The panel held that IGRA clearly and unambiguously
required federal recognition by the Secretary of the Interior
before a tribe may qualify to participate in Indian gaming.
The panel also held that when Congress amended the Frank’s
Landing Act in 1994, it did not separately authorize the non-
federally recognized Frank’s Landing Indian Community to
engage in Class II gaming. The panel held that the
Department of the Interior correctly concluded that the
Community was not eligible to engage in IGRA gaming.
COUNSEL
Scott David Crowell (argued), Crowell Law Office-Tribal
Advocacy Group, Sedona, Arizona; Bryan T. Newland,
Fletcher Law PLLC, East Lansing, Michigan; Alan S.
Middleton, Law Offices of Alan S. Middleton PLLC, Lake
Forest Park, Washington; for Plaintiff-Appellant.
Kevin W. McArdle (argued), Mary Gabrielle Sprague, and
Devon Lehman McCune, Environment and Natural Resources
Division; Eric Grant, Deputy Assistant Attorney General;
Jeffrey H. Wood, Acting Assistant Attorney General; United
States Department of Justice, Washington, D.C.; Samuel E.
Ennis, Office of the Solicitor, Department of the Interior,
Washington, D.C.; for Defendants-Appellees.
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OPINION
CHRISTEN, Circuit Judge:
Frank’s Landing Indian Community (Community)
appeals the district court’s order granting summary judgment
in favor of appellees Department of the Interior, its Secretary,
and the Assistant Secretary–Indian Affairs. The Community,
which is not a federally recognized tribe, challenges Interior’s
determination that it is ineligible for gaming for purposes of
the Indian Gaming Regulatory Act, (IGRA), 25 U.S.C.
§§ 2701–2721. The Community argues that its unique status,
recognized and defined in the Frank’s Landing Act1 and the
1994 amendments to that Act,2 renders it eligible to engage in
class II gaming.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we
affirm the district court’s judgment. Reviewing Interior’s
decision under the Administrative Procedure Act (APA), we
conclude the agency’s determination was correct. First, we
hold that IGRA clearly and unambiguously requires federal
recognition by the Secretary of the Department of the Interior
before a tribe may qualify to participate in Indian gaming.
Second, we hold that the Frank’s Landing Act does not
authorize the Community to engage in class II gaming.
1
Pub. L. No. 100-153, § 10, 101 Stat. 886, 889.
2
Pub. L. No. 103-435, § 8, 108 Stat. 4566, 4569–70.
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BACKGROUND
A. Statutory Background
Adopted in 1987, the Frank’s Landing Act originally
provided as follows:
The Frank’s Landing Indian Community in
the State of Washington is hereby recognized
as eligible for the special programs and
services provided by the United States to
Indians because of their status as Indians and
is recognized as eligible to contract, and to
receive grants, under the Indian Self-
Determination and Education Assistance Act
for such services, but the proviso in section
4(c) of such Act (25 U.S.C. 450b(c)) shall not
apply with respect to grants awarded to, and
contracts entered into with, such Community.
Pub. L. No. 100-153, § 10, 101 Stat. 889.
In 1988, Congress enacted IGRA to provide “a statutory
basis for the operation and regulation” of Indian gaming.
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48 (1996).
IGRA created the National Indian Gaming Commission
(Gaming Commission), the federal agency that regulates three
classes of gaming on Indian lands. See 25 U.S.C.
§§ 2703(6)–(8), 2704, 2710. To conduct class II gaming, an
“Indian tribe” must adopt a “tribal ordinance” concerning the
regulation of class II gaming, and submit the ordinance to the
Chair of the Gaming Commission for approval. 25 U.S.C.
§ 2710(b). IGRA defines “Indian tribe” as follows:
6 FRANKS LANDING INDIAN COMTY. V.
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[A]ny Indian tribe, band, nation, or other
organized group or community of Indians
which—
(A) is recognized as eligible by the
Secretary for the special programs and
services provided by the United States to
Indians because of their status as Indians,
and
(B) is recognized as possessing powers of
self-government.
Id. § 2703(5).
In 1994, Congress amended the Frank’s Landing Act so
that it now provides:
(a) Subject to subsection (b), the Frank’s
Landing Indian Community in the State of
Washington is hereby recognized—
(1) as eligible for the special programs
and services provided by the United States
to Indians because of their status as
Indians and is recognized as eligible to
contract, and to receive grants, under the
Indian Self-Determination and Education
Assistance Act for such services, but the
proviso in section 4(c) of such Act
(25 U.S.C. 450b(c)) shall not apply with
respect to grants awarded to, and contracts
entered into with, such Community; and
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NAT’L INDIAN GAMING COMM’N
(2) as a self-governing dependent Indian
community that is not subject to the
jurisdiction of any federally recognized
tribe.
(b)(1) Nothing in this section may be
construed to alter or affect the jurisdiction of
the State of Washington under section 1162 of
title 18, United States Code.
(2) Nothing in this section may be
construed to constitute the recognition by
the United States that the Frank’s Landing
Indian Community is a federally
recognized Indian tribe.
(3) Notwithstanding any other provision
of law, the Frank’s Landing Indian
Community shall not engage in any class
III gaming activity (as defined in section
3(8) of the Indian Gaming Regulatory Act
of 1988 (25 U.S.C. 2703(8))).
Pub. L. No. 103-435, 108 Stat. 4566, 4569–70 (emphasis
added).
When Congress enacted the Frank’s Landing Act in 1987,
it had not yet enacted IGRA and thus it could not have
considered the Community’s tribal status or gaming rights for
purposes of IGRA. By the time the Frank’s Landing Act was
amended in 1994, IGRA was well established, as was the
process for identifying which groups qualify as federally
recognized tribes.
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B. Federal Recognition
To provide context for our decision that the Community
is ineligible to participate in Indian gaming, we explain what
it means to be a federally recognized tribe.3 “Federal
recognition” of an Indian tribe is a legal term of art meaning
that the federal government acknowledges as a matter of law
that a particular Indian group has tribal status. See H.R. Rep.
No. 103-781, at 2 (1994), as reprinted in 1994 U.S.C.C.A.N.
3768; Felix Cohen, Cohen’s Handbook of Federal Indian
Law § 3.02[3], at 134 (Nell Jessup Newton ed., 2012)
(hereinafter Cohen’s Handbook). Federal recognition
establishes a government-to-government relationship between
the United States and the recognized tribe as a “domestic
dependent nation,” and requires the Secretary to provide “a
panoply of benefits and services” to the tribe and its
members. See Cohen’s Handbook, § 3.02[3], at 134 (internal
quotation marks omitted).
A group of Indians may achieve federal recognition in
three ways: (1) by Congressional act; (2) by Secretarial
acknowledgment4 ; or (3) by a decision of a United States
court. See Federally Recognized Indian Tribe List Act of
1994, Pub. L. No. 103-454; United States v. Zepeda, 792 F.3d
1103, 1114 (9th Cir. 2015). As required by the Federally
3
The term “federal recognition” is relevant to understanding the
significance of: (1) IGRA’s requirement that an Indian tribe must be
“recognized as eligible by the Secretary” for special programs and
services; and (2) the Frank’s Landing Act’s provision that the Community
is not a federally recognized Indian tribe.
4
“The terms ‘recognize’ and ‘acknowledge’ are often used
interchangeably.” Cohen’s Handbook, § 3.02[3], at 134 n.21.
FRANKS LANDING INDIAN COMTY. V. 9
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Recognized Indian Tribe List Act of 1994 (List Act),
25 U.S.C. § 5131, the Secretary of the Interior publishes an
annual list of all federally recognized tribes that have
obtained recognition through any one of these three means.
See Zepeda, 792 F.3d 1103 at 1114. The Community has
never petitioned the Secretary for inclusion on the annual list,
and it concedes that it has not been federally recognized
under any of these three pathways.
C. The Community’s Efforts to Engage in Class II
Gaming
The Community submitted a class II gaming ordinance to
the Gaming Commission for review and approval in
December of 2014. In March of 2015, the Assistant
Secretary–Indian Affairs, acting on behalf of Interior, issued
a memorandum to the Chair of the Gaming Commission
concluding that the Community did not qualify as an Indian
tribe for purposes of IGRA because it is not federally
recognized and does not appear on the annual list of
recognized tribes the Secretary publishes pursuant to the List
Act. The Assistant Secretary opined that the Gaming
Commission could rely on this annual list to determine
whether an entity is a federally recognized Indian tribe
because the list is intended to be exhaustive, because it offers
transparency surrounding which groups of Indians are eligible
for gaming pursuant to IGRA, and because it provides a
“bright line” rule that preserves government resources. The
Solicitor of the Department of the Interior also concluded that
the Community was not an Indian tribe for purposes of
IGRA.
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Relying on Interior’s determination, the Chair of the
Gaming Commission concluded that the Commission was
without authority to review the Community’s gaming
ordinance. The Community’s requests for reconsideration
were denied, and the Community filed suit in district court.
The district court dismissed the claims against the Gaming
Commission and its Chair for failure to state a claim.
Thereafter, the court granted summary judgment in favor of
the remaining defendants. The district court reasoned that
IGRA and the Frank’s Landing Act, read together, are
ambiguous regarding whether Congress intended to authorize
the Community to engage in class II gaming, but it
concluded, pursuant to Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843–44
(1984), that defendants reasonably interpreted these statutes.
This appeal of the summary judgment order followed.
STANDARD OF REVIEW
“We review de novo the district court’s summary
judgment ruling[ ], ‘thus reviewing directly the agency’s
action under the [APA’s] arbitrary and capricious standard.’”
Cty. of Amador v. United States Dep’t of the Interior,
872 F.3d 1012, 1020 (9th Cir. 2017) (quoting Alaska
Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir.
2015)), cert. denied, 139 S. Ct. 64 (2018).
DISCUSSION
Interior determined that the Community is not entitled to
conduct Indian gaming for purposes of IGRA because it is not
federally recognized and does not appear on the annual list of
recognized tribes the Secretary publishes pursuant to the List
FRANKS LANDING INDIAN COMTY. V. 11
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Act. Accordingly, the dispositive questions in this case are
narrow: (1) whether an Indian group must be recognized by
the Secretary in order to qualify as an “Indian tribe” for
purposes of IGRA; and, if so, (2) whether the Frank’s
Landing Act nevertheless authorizes the Community to
engage in class II gaming pursuant to IGRA. To resolve
these questions, we start with the definition of “Indian tribe”
in IGRA, § 2703(5). Because the Frank’s Landing Act
granted the Community some form of special status before
Congress adopted IGRA, we also consider the Frank’s
Landing Act, both as originally adopted and as amended in
1994.
“We interpret [each] federal statute by ascertaining the
intent of Congress and by giving effect to its legislative will.”
Artichoke Joe’s California Grand Casino v. Norton, 353 F.3d
712, 720 (9th Cir. 2003) (internal quotation marks omitted).
To resolve this appeal, “we need not decide whether Chevron
deference (or any other level of deference) is appropriate,
because we reach the same conclusion as Interior when we
review the [interpretive questions] de novo.” Cty. of Amador,
872 F.3d at 1021–22.
We hold that Congress intended federal recognition by the
Secretary to be a prerequisite for inclusion in IGRA’s
definition of Indian tribe, and that when it amended the
Frank’s Landing Act in 1994, Congress did not separately
authorize the non-federally recognized Community to engage
in class II gaming.
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A. Congress Made Federal Recognition a Prerequisite
for Indian Gaming.
IGRA states that an “Indian tribe . . . recognized as
eligible by the Secretary for the special programs and
services” may engage in class II gaming. 25 U.S.C.
§ 2703(5)(A); see id. § 2710(b)(1). Our court has never
squarely addressed the meaning of IGRA’s Secretarial
recognition requirement, though we have suggested that only
federally recognized tribes may engage in Indian gaming.
See Artichoke Joe’s, 353 F.3d at 734 (stating that “only
federally recognized tribes are covered” by IGRA, not
individual Indians); see also Timbisha Shoshone Tribe v. U.S.
Dep’t of Interior, 824 F.3d 807, 809 (9th Cir. 2016)
(observing that “only federally recognized tribes may operate
gambling facilities under the federal [IGRA].”)
IGRA’s definition of “Indian tribe” includes
“communit[ies] of Indians” that are “recognized as
possessing powers of self-government.” 25 U.S.C.
§ 2703(5)(B). Interior does not challenge the Community’s
assertion that it is a self-governing community of Indians, but
the parties part ways over how to interpret IGRA’s
requirement that an Indian tribe must be “recognized as
eligible by the Secretary for the special programs and services
provided by the United States to Indians because of their
status as Indians[.]” Id. § 2703(5)(A).
Interior points to IGRA’s requirement that a tribe be
recognized as eligible by the Secretary, and argues that no
such recognition has been made for the Community. The
Community isolates IGRA’s phrase “special programs and
services provided by the United States to Indians because of
FRANKS LANDING INDIAN COMTY. V. 13
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their status as Indians,” and contends that it unambiguously
includes the Community, because the Frank’s Landing Act
provides that it is eligible to participate in “special programs
and services” specifically targeted to Indians. The
Community argues that the phrase “recognized as eligible by
the Secretary” is irrelevant to the task of determining whether
the Community may engage in class II gaming because
Congress has plenary power to legislate concerning Indian
tribes, and the Secretary must accede to what the Community
argues is a congressional directive in the Frank’s Landing
Act—that the Community is eligible for “special programs
and services.” The Community urges us to conclude that it is
therefore eligible to participate in class II gaming.
We agree with the Community that the phrase “special
programs and services provided by the United States to
Indians because of their status as Indians” refers to eligibility
to participate in federal programs specifically targeted to
Indians. See Hoopa Valley Indian Tribe v. Ryan, 415 F.3d
986, 990–91 (9th Cir. 2005) (describing programs and
services provided to Indians “because of their status as
Indians” as “specifically targeted to Indians” (internal
quotation marks omitted)); Navajo Nation v. Dep’t of Health
& Human Servs., 325 F.3d 1133, 1138 (9th Cir. 2003) (en
banc) (same). However, IGRA’s additional phrase
“recognized as eligible by the Secretary” is a key qualifier.
On its face, this phrase means that the Secretary must
recognize an Indian tribe as eligible for special programs and
services. And, as we explain infra, the significance of
Secretarial recognition in the context of federal Indian law
means that a tribe is federally recognized and that it appears
on the Secretary’s annual list. See generally F.A.A. v.
Cooper, 566 U.S. 284, 291–92 (2012) (observing the
14 FRANKS LANDING INDIAN COMTY. V.
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“cardinal rule of statutory construction” that when “Congress
employs a term of art, it presumably knows and adopts the
cluster of ideas that were attached to each borrowed word in
the body of learning from which it was taken.” (internal
quotation marks omitted)); Dolan v. U.S.P.S., 546 U.S. 481,
486 (2006) (“Interpretation of a word or phrase depends upon
reading the whole statutory text, considering the purpose and
context of the statute, and consulting any precedents or
authorities that inform the analysis.”).
The administrative process by which the Secretary
federally recognizes an Indian tribe was set out in Interior’s
Part 83 regulations in 1978, long before the adoption of
IGRA. See 43 Fed. Reg. 39,361 (Sept. 5, 1978). The Part 83
regulations established a “procedure and policy for
acknowledging that certain American Indian tribes exist.
Such acknowledgment of tribal existence by the Department
[of the Interior] is a prerequisite to the protection, services,
and benefits from the Federal Government available to Indian
tribes.” 43 Fed. Reg. at 39,362. The Part 83 regulations
required the Secretary to publish “a list of all Indian tribes
which are recognized and receiving services from the Bureau
of Indian Affairs.” Id. Inclusion on the Secretary’s list
signifies that a tribe has been federally recognized and is
eligible to receive services from the Bureau. Id.
We assume Congress is knowledgeable about existing law
pertinent to the legislation it enacts, see South Dakota v.
Yankton Sioux Tribe, 522 U.S. 329, 351 (1998), and the
Part 83 regulations were longstanding by the time Congress
enacted IGRA in 1988. Thus, we have no doubt about what
Congress intended when it used the phrase “recognized as
eligible by the Secretary” in IGRA; this phrase is
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NAT’L INDIAN GAMING COMM’N
synonymous with federal recognition. See Pit River Home &
Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1094–96
(9th Cir. 1994) (concluding a tribe was not “recognized by
the Secretary” because the tribe was not federally recognized
in any statute or treaty, and was not listed pursuant to Part 83
regulations). Use of “recognized as eligible by the Secretary”
in IGRA’s definition of “Indian tribe” reflects Congressional
intent to require formal Secretarial recognition as a
prerequisite for gaming.5
Our conclusion that IGRA only applies to tribes
recognized on the Secretary’s annual list is consistent with
5
The Community argues that Native Village of Noatak v. Hoffman
supports its position. 896 F.2d 1157, 1160 (9th Cir. 1990), rev’d on other
grounds by Blatchford v. Native Village of Noatak and Circle Village,
501 U.S. 775 (1991). There, in a different context, we said that “[i]f
Congress has recognized the tribe, a fortiori the tribe is entitled to
recognition and is in fact recognized by the Secretary of the Interior.” Id.But the issue in Noatak was whether two Native Villages were entitled to
bring suit in federal court pursuant to 28 U.S.C. § 1362; i.e., whether the
villages were “Indian tribe[s] or band[s] with [] governing bod[ies] duly
recognized by the Secretary of the Interior” Id. One of the villages had
a governing body approved by the Secretary pursuant to 25 U.S.C. § 476,
id., and when the Native Villages filed their complaint in 1985, they were
already included on the Secretary’s annual List. See 48 Fed. Reg.
56,865–66 (Dec. 23, 1983). In contrast, the question here is whether the
Community qualified as a tribe for purposes of IGRA. IGRA
unambiguously requires recognition by the Secretary, and the Community
concedes that it is not a federally recognized tribe. Further, Congress
declared the Community eligible for “special programs and services”
before IGRA was enacted, so it could not have intended the original
Frank’s Landing Act to bestow IGRA’s benefits upon the Community.
Congress did not take the opportunity to expand the Community’s ability
to participate in IGRA gaming when it amended the Frank’s Landing Act
in 1994.
16 FRANKS LANDING INDIAN COMTY. V.
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the observations of other federal courts,6 and we know of no
court that has ruled otherwise. It is unsurprising that the
particular interpretive question we address here has not been
examined in our earlier caselaw; IGRA’s plain language
provides that an Indian tribe is one that is “recognized as
eligible by the Secretary” for “special programs and
services,” and this type of recognition is typically determined
by simply confirming whether an Indian group appears on the
Secretary’s annual list. In this case, the Community’s
status—as set forth in the Frank’s Landing Act—is unique.
We do not know of any other group with a comparable status,
and neither does the Community.
Having reviewed the applicable statutory text and
considering the sequence in which the related legislation was
enacted, we conclude that Congress clearly and
unambiguously intended federal recognition by the Secretary
to be a prerequisite for inclusion in IGRA’s definition of
6
See Wisconsin v. Ho-Chunk Nation, 784 F.3d 1076, 1079 (7th Cir.
2015) (“IGRA divides all Indian gaming (that is, gambling run by
federally recognized tribes) into three classes.”); Narragansett Indian
Tribe v. Nat’l Indian Gaming Comm’n, 158 F.3d 1335, 1337 (D.C. Cir.
1998) (noting that IGRA “permits federally recognized tribes to apply for
Commission approval of gaming proposals.”); Passamaquoddy Tribe v.
Maine, 75 F.3d 784, 792 n.4 (1st Cir. 1996) (observing that “[IGRA] has
no application to tribes that do not seek and attain formal federal
recognition.”); Carruthers v. Flaum, 365 F. Supp. 2d 448, 451, 466–67
(S.D.N.Y. 2005) (concluding that because the Unkechaug are not federally
recognized, IGRA provides no exception to New York’s general
prohibition on gambling); First Am. Casino Corp. v. E. Pequot Nation,
175 F. Supp. 2d 205, 208 (D. Conn. 2000) (“Unless and until defendant
obtains federal acknowledgment, its activities are not regulated by
IGRA.”).
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“Indian tribe.” IGRA does not authorize the non-federally
recognized Community to engage in class II gaming.
B. The Frank’s Landing Act Does Not Authorize the
Community to Engage in Indian Gaming.
Despite IGRA’s requirement that an Indian tribe must be
recognized by the Secretary, the Community argues that the
Frank’s Landing Act separately granted it permission to
engage in class II gaming. Specifically, the Community
argues that because Congress defined “Indian tribe” in IGRA
with the “precise language” used in the Frank’s Landing Act,
Congress intended to authorize the Community to engage in
class II gaming.
Both the 1987 Frank’s Landing Act and the 1994
amended Act provide that the Community is:
recognized as eligible for the special
programs and services provided by the United
States to Indians because of their status as
Indians and is recognized as eligible to
contract, and to receive grants, under the
Indian Self-Determination and Education
Assistance Act for such services. . . .
Pub. L. No. 100-153, 101 Stat. 886, 889; § 10, Pub. L. No.
103-435, 108 Stat. 4566, 4569. Plainly, this language
indicates that Congress intended the Community to be
eligible for special programs and services by virtue of their
status as Indians, and Congress made clear that it intended the
Community would contract for, and receive grants pursuant
to, the Indian Self-Determination and Education Assistance
18 FRANKS LANDING INDIAN COMTY. V.
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Act. See Indian Self-Determination and Education Assistance
Act, 25 U.S.C. § 5321(a)(1)(E) (providing that upon request,
the Secretary shall enter into self-determination contracts that
include programs “for the benefit of Indians because of their
status as Indians[.]”). But neither the 1987 Frank’s Landing
Act nor the 1994 amendments contain IGRA’s qualifying
phrase signaling federal recognition, “recognized as eligible
by the Secretary[,]” 25 U.S.C. § 2703(5) (emphasis added).
Further, Congress underscored that the 1994 amendments
were not intended to federally recognize the Community by
specifying that “[n]othing in this section may be construed to
constitute the recognition by the United States that the
[Community] is a federally recognized Indian tribe.” Pub. L.
No. 103-435, § 8, 108 Stat. 4569.
The Community argues that we should infer that Congress
intended to allow it to engage in class I or II gaming because
the amended Act only expressly prohibits the Community
from engaging in class III gaming. To support this argument,
the Community invokes the rule that a statute should be
construed so that no clause, sentence, or word is rendered
superfluous, and argues that there would have been no need
to expressly prohibit it from engaging in class III gaming if
lack of federal recognition rendered it ineligible to participate
in all IGRA gaming. Interior responds that Congress would
not choose such an indirect route to convey an easily
expressed message, and that there is no indication that this
class III provision means anything other than what it
says—that notwithstanding any other provision of law, i.e.,
notwithstanding federal recognition at some future time, the
Community is prohibited from engaging in class III gaming.
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Like the district court, we read the amended Act’s
prohibition of class III gaming as an express limitation on the
Community’s class III gaming rights if it is ever federally
recognized. The words Congress used make this clear.
Subsections (b)(1) and (b)(2) provide that “[n]othing in this
section may be construed to” alter or affect the criminal
jurisdiction of Washington under Public Law 2807 or to
constitute federal recognition of the Community. Congress
employed language with a much broader sweep when it
drafted subsection (b)(3). That subsection states
“[n]otwithstanding any other provision of law” the
Community shall not engage in class III gaming. The
Supreme Court recently observed that “[t]he ordinary
meaning of ‘notwithstanding’ is ‘in spite of,’ or ‘without
prevention or obstruction from or by.’” N.L.R.B. v. SW Gen.,
Inc., — U.S. —, 137 S. Ct. 929, 939 (2017) (quoting
Webster’s Third New International Dictionary 1545 (1986);
Black’s Law Dictionary 1091 (7th ed. 1999)). The Court
explained that the word “notwithstanding” demonstrates
“which provision prevails in the event of a clash,” id.(quoting A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 126–27 (2012)), and that a
“notwithstanding” clause “confirms rather than constrains
breadth.” Id. at 940.
Accordingly, we read “notwithstanding” in
subsection (b)(3) as a signal that the amended Act’s broad
prohibition on class III gaming shall prevail in the event of a
conflict with “any other provision of law.” In contrast, the
preface to subsections (b)(1) and (b)(2)—“[n]othing in this
section”—constrains the reach of the amended Act with
7
18 U.S.C. § 1162.
20 FRANKS LANDING INDIAN COMTY. V.
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respect to Public Law 280 and federal recognition. This
variation in language reflects a deliberate choice, see S.E.C.
v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (“the use of
different words or terms within a statute demonstrates that
Congress intended to convey a different meaning for those
words.”).
The historical context of the Frank’s Landing Act also
confirms that the Community is not authorized to engage in
gaming. On the same day Congress amended the Frank’s
Landing Act, November 2, 1994, see 108 Stat. 4566, 4569, it
codified Interior’s longstanding Part 83 practice of publishing
a list of recognized tribes, see 108 Stat. 4791. As explained,
the List Act directed the Secretary to annually publish “a list
of all Indian tribes which the Secretary recognizes to be
eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.”
25 U.S.C. § 5131. Assuming, as we must, that Congress was
knowledgeable about Interior’s longstanding Part 83
regulations, IGRA’s requirement that tribes be recognized by
the Secretary, and the List Act’s codification of the
Secretary’s annual list, it is conspicuous that Congress did not
take the opportunity when it amended the Frank’s Landing
Act to specifically authorize the Community to engage in
class II gaming. Indeed, Congress did just the opposite by
unequivocally stating that the Frank’s Landing Act
amendments were not intended to confer federal recognition.
See Pub. Law No. 103-435, 108 Stat. 4566, 4569.
In light of the express statement in the Frank’s Landing
Act that the Community is not a federally recognized tribe,
the amended Act’s broad limitation on class III gaming
rights, and the context in which the Act was amended, we
FRANKS LANDING INDIAN COMTY. V. 21
NAT’L INDIAN GAMING COMM’N
conclude it is not susceptible to more than one reasonable
interpretation. The Frank’s Landing Act does not separately
authorize the Community to engage in Indian gaming.
CONCLUSION
Congress clearly and unambiguously intended federal
recognition by the Secretary to be a prerequisite for
participation in IGRA gaming. Congress did not separately
authorize the non-federally recognized Community to engage
in class II gaming by amending the Frank’s Landing Act.
Therefore, Interior correctly concluded that the Community
was not eligible to engage in IGRA gaming and we affirm the
district court’s order granting summary judgment in favor of
the appellees.
AFFIRMED.