Board of Commissioners of Cherokee County, Kansas v. Kempthorne

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BOARD OF COMMISSIONERS OF
CHEROKEE COUNTY, KANSAS,
Plaintiff,
v.
SALLY JEWEL, in her official capacity Civil Action 08-317 (RC)
as SECRETARY OF THE INTERIOR, et
al.,
Defendants.
MEMORANDUM OPINION
In 2008, the Quapaw Tribe of Oklahoma (“the tribe”) opened the Downstream Casino
Resort, a large complex that straddles the borders of Kansas, Missouri, and Oklahoma. The
actual casino is situated on a plot of land acquired by the Secretary of the Interior and the tribe
by means of the Indian Land Consolidation Act. The Board of Commissioners of Cherokee
County, Kansas, where another portion of the casino complex is located, brought this suit to
invalidate the Secretary’s land acquisition and to force the National Indian Gaming Commission
to determine whether the Indian Gaming Regulatory Act permits the Quapaw to operate a casino
on the land in question. The Secretary and the Gaming Commission have moved to dismiss the
complaint or, in the alternative, for summary judgment; the Board of Commissioners has filed a
cross-motion for partial summary judgment.
I. BACKGROUND
In 1895, a Quapaw woman named Meh-No-Bah was allotted forty acres of land in what
is now the northeastern corner of Oklahoma. AR 45. The Quapaw Allotment Act provided that
such allotments would “be inalienable for a period of twenty-five years” from the date on which
a patent was issued to the allottee. 28 Stat. 907; see also Quapaw Tribe of Oklahoma v. Blue Tee
Corp., 653 F. Supp. 2d 1166, 1170–71 (N.D. Okla. 2009) (discussing history of the Quapaw
allotments). In 1905, Meh-No-Bah died intestate with two heirs—Alexander Beaver (also
known as Alexander Lewis, Alexander Lewis Beaver, and Ah-Sah-Ta) and Newakis Hampton
(also known as Ta-Meh Quapaw and Temeh Quapaw)—each of whom received an undivided
half-interest in the allotment. AR 192–93. In 1921, Congress amended the Quapaw Allotment
Act so that “the restrictions which now exist against the alienation of the lands allotted to and
allotted lands inherited by the Quapaw Indians” specifically named in the amendment were
“extended for the further and additional period of twenty-five years from the date of this Act.”
41 Stat. 1248–49. Neither Meh-No-Bah nor her heirs were named.
Alexander Beaver died in the spring of 1956, passing his undivided half-interest to his
widow, Matilda Stand Beaver. AR 193. She passed her undivided half-interest to three heirs.
Id.1 Newakis Beaver died in 1957, passing her undivided half-interest to a single heir, who in
turn passed that interest to two heirs. By 2004, four people and one estate held undivided
1
Ms. Beaver was a member of the Peoria tribe. AR 193. On August 2, 1956, Congress
passed the Peoria Termination Act, which provided that “[a]ll restrictions on the sale or
encumbrance of trust or restricted land owned by members of the Peoria Tribe of Indians of
Oklahoma . . . regardless of where the land is located, are hereby removed three years after the
date of this Act, and the patents or deeds under which titles are then held shall pass the titles in
fee simple . . . .” 70 Stat. 937. Ms. Beaver died on July 30, 1959, three days before the Peoria
Termination Act took effect. AR 193. One of her heirs was also a member of the Peoria Tribe.
AR 139.
2
interests in the original Meh-No-Bah allotment; two of these were one-quarter interests, while
the other three were one-sixth interests. Id.The creation of undivided but ever-smaller fractional interests in allotted land was one of
many troubling features of the allotment policy. See Babbitt v. Youpee, 519 U.S. 234, 237
(1997) (“The allotment policy ‘quickly proved disastrous for the Indians.’ (quoting Hodel v.
Irving, 481 U.S. 704, 707 (1987))). “The fractionation problem proliferated with each
succeeding generation as multiple heirs took undivided interests in allotments. . . . As most
owners had more than one heir, interests in lands already allotted continued to splinter with each
generation.” Id. at 238. In 1983, Congress passed the Indian Land Consolidation Act, Pub. L.
No. 97-459, tit. II, 96 Stat. 2517 (codified as amended at 25 U.S.C. § 2201 et seq.), “in part to
reduce fractionated ownership of allotted lands,” Babbitt, 519 U.S. at 238. The Act allowed an
Indian tribe that owned at least half of the undivided interest in a tract of land subject to that
tribe’s jurisdiction to purchase the remaining interests in the tract for their fair market value. 25
U.S.C. § 2204(a). In 2000, Congress gave the Secretary discretionary authority to acquire “any
fractional interests in trust or restricted lands,” at fair market value and with the consent of the
owner, and to hold those interests in trust for the relevant tribe. Indian Land Consolidation Act
Amendments of 2000, Pub. L. No. 106-462, tit. I, § 103, 114 Stat. 1999 (codified as amended at
25 U.S.C. § 2212(a)). In doing so, the Secretary was instructed to “promote the policies
provided for in section 102 of the Indian Land Consolidation Act Amendments of 2000,” 25
U.S.C. § 2212(b)(1), which include “promot[ing] tribal self-sufficiency and self-determination,”
Pub. L. No. 106-462, tit. I, § 102(4), 114 Stat. 1992.
In 2007, using that mechanism, the Secretary purchased four of the five undivided
interests in the Meh-No-Bah allotment. AR 19, 63, 111, 132. She did not perform any
environmental review of the acquisition. The tribe purchased the remaining one-sixth interest
3
using the mechanism set out in 25 U.S.C. § 2204. AR 140. In 2008, the Downstream Casino
Resort opened on the forty-acre plot allotted to Meh-No-Bah more than a hundred years before.
It has been in continuous operation ever since.
The Board of Commissioners of Cherokee County, Kansas, filed suit several months
before the casino opened. The Board of Commissioners alleges, first, that the Secretary violated
the Indian Gaming Regulatory Act by failing to determine whether the Meh-No-Bah allotment
was eligible for gaming before acquiring it, and that the National Indian Gaming Commission
was obligated to make that determination before allowing the casino to open. The Board also
alleges that the Secretary failed to comply with the National Environmental Policy Act, the land-
into-trust regulations and her own internal policies when she acquired the fractional interests in
the Meh-No-Bah allotment. The Secretary has moved to dismiss the complaint or, in the
alternative, for summary judgment; the Board has filed a cross-motion for partial summary
judgment.
II. LEGAL STANDARD
A. Standing
A petitioner seeking judicial review of agency action “must either identify in th[e] record
evidence sufficient to support its standing to seek review or, if there is none . . . submit
additional evidence.” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (citing Amfac
Resorts, L.L.C. v. Dep’t of Interior, 282 F.3d 818, 830 (D.C. Cir. 2002)); see also id. at 900(“When the petitioner’s standing is not self-evident, . . . the petitioner must supplement the
record to the extent necessary to explain and substantiate its entitlement to judicial review.”). To
meet its burden of production, the petitioner “must support each element of its claim to standing
‘by affidavit or other evidence,’” id. at 899 (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)), “and must thereby ‘show a “substantial probability” that it has been injured,
4
that the defendant caused its injury, and that the court could redress that injury,’” Int’l Bhd. of
Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1134 (D.C. Cir. 2005) (quoting Sierra Club,
292 F.3d at 899 (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000))).2
B. Merits
“[W]hen a party seeks review of agency action under the APA, the district judge sits as
an appellate tribunal. The ‘entire case’ on review is a question of law,” Am. Bioscience, Inc. v.
Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), and the “complaint, properly read . . . presents
no factual allegations, but rather only arguments about the legal conclusion to be drawn about
the agency action,” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir.
1993); accord Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009); Univ. Med. Ctr. of S.
Nev. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir. 1999); James Madison Ltd. v. Ludwig, 82 F.3d
1085, 1096 (D.C. Cir. 1996). The district court’s review “is based on the agency record and
limited to determining whether the agency acted arbitrarily or capriciously,” Rempfer, 583 F.3d
at 865, or in violation of another standard set out in 5 U.S.C. § 706(2).
When a plaintiff seeks to “compel agency action unlawfully withheld or unreasonably
delayed,” 5 U.S.C. § 706(1), the “claim . . . can proceed only where [the] plaintiff asserts that an
agency failed to take a discrete agency action that it is required to take,” Kaufman v. Mukasey,
524 F.3d 1334, 1338 (D.C. Cir. 2008) (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S.
55, 63 (2004)) (emphases in Norton). “[W]hen an agency is compelled by law to act, but the
manner of its action is left to the agency’s discretion, the ‘court can compel the agency to act,
[although it] has no power to specify what th[at] action must be.’” Id. (quoting Norton, 542 U.S.
2Although these cases discuss standing to challenge agency action in the court of
appeals, “that requirement is the same, of course, as it would be if such review were conducted
in the first instance by the district court.” Sierra Club, 292 F.3d at 899; accord Teamsters, 429
F.3d at 1134.
5
at 65) (last two alterations in original); accord Enterprise Nat’l Bank v. Vilsack, 568 F.3d 229,
234 (D.C. Cir. 2009).
The defendants have moved to dismiss or, in the alternative, for summary judgment.
Although, in the context of challenges to agency action, “there is no real distinction . . . between
the question presented on a 12(b)(6) motion and a motion for summary judgment,” Marshall
Cnty. Health Care Auth., 988 F.2d at 1226, the D.C. Circuit has suggested that “[i]t is probably
the better practice for a district court always to convert to summary judgment” in such cases. Id.at 1226 n.5. This court therefore treats the defendants’ motion as one brought for summary
judgment, and evaluates both it and the plaintiff’s cross-motion for partial summary judgment
under the standards discussed above.
III. ANALYSIS
A. Indian Gaming and Indian Lands
Under the Indian Gaming Regulatory Act (“IGRA”), “[a] tribe may conduct gaming only
on ‘Indian lands’ within its jurisdiction.” Citizens Exposing Truth About Casinos v. Kempthorne
(“CETAC”), 492 F.3d 460, 462 (D.C. Cir. 2007) (quoting 25 U.S.C. §§ 2710(b)(1), (d)(1)(A)(I)).
The statute defines “Indian lands” to include:
(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.
25 U.S.C. § 2703(4). But the statute prohibits gaming “on lands acquired by the Secretary in
trust for the benefit of an Indian tribe after October 17, 1988, unless” one of several statutory
exceptions applies. Id. § 2719(a). Among those exceptions, gaming is permitted on more-
recently-acquired trust or restricted lands if “the Indian tribe ha[d] no reservation on October 17,
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1988, and (A) such lands are located in Oklahoma, and (i) are within the boundaries of the
Indian tribe’s former reservation, as defined by the Secretary, or (ii) are contiguous to other land
held in trust or restricted status by the United States for the Indian tribe in Oklahoma.” Id.
§ 2719(a)(2).
IGRA defines several classes of gaming, subjecting each to a different regulatory
scheme. Class I gaming is not at issue here. “Class II gaming includes bingo and card games
except for ‘banking’ card games like baccarat, chemin de fer, and blackjack.” North Cnty. Cmty.
Alliance, Inc. v. Salazar, 573 F.3d 738, 741 (9th Cir. 2009) (citing 25 U.S.C. § 2703(7)). In
order to conduct class II gaming, a tribe must adopt a gaming ordinance or resolution and have it
approved by the National Indian Gaming Commission (“NIGC”), “a regulatory body created by
IGRA with rulemaking and enforcement authority.” Amador Cnty., Cal. v. Salazar, 640 F.3d
373, 376 (D.C. Cir. 2011); see 25 U.S.C. § 2710(b)(1)(B) (requiring NIGC approval of gaming
ordinance or resolution). The NIGC must give its approval “if the proposed ordinance meets
certain specified conditions.” North Cnty. Cmty. Alliance, 573 F.3d at 744 (citing 25 U.S.C.
§ 2710(b)(2)). “There is no explicit requirement in IGRA that, as a precondition to the NIGC’s
approval, a proposed ordinance identify the specific sites on which the proposed gaming is to
take place.” Id. at 744–45. The Ninth Circuit has concluded that no such implicit requirement
exists, either. Id. at 747. Nonetheless, some tribal gaming ordinances do specify the sites on
which gaming will take place—and, when they do, the NIGC concedes that it has an obligation
to determine whether those sites are eligible for gaming under IGRA. Id. at 746 (“The NIGC
states in its brief to us that when a site-specific ordinance is presented for approval it has an
obligation to make an Indian lands determination for the specifically identified site or sites.”);
Neighbors of Casino San Pablo v. Salazar, 773 F. Supp. 2d 141, 146 n.10 (D.D.C. 2011)
(“Defendants acknowledge that the NIGC should make an Indian lands determination if a tribe
7
submits a site-specific gaming ordinance . . . that indicates the proposed location of the gaming.”
(internal quotation marks omitted)); Defs.’ Br. at 38. And, under its regulations as amended in
2008, “the NIGC is authorized to require that a tribe submit Indian lands information when
submitting a proposed ordinance for approval.” North Cnty. Cmty. Alliance, 573 F.3d at 747
(citing 25 C.F.R. § 522.2 (“A tribe shall submit to the Chairman [of the NIGC] . . . with a request
for approval of a class II. . . ordinance or resolution . . . . (i) . . . Indian lands . . . documentation
that the Chairman may in his or her discretion request as needed.”)).
A tribe must also issue “[a] separate license . . . for each place, facility, or location on
Indian lands at which class II gaming is conducted.” 25 U.S.C. § 2710(b)(1). The NIGC does
not approve those licenses but, as of 2008, a tribe must “submit to the Chair [of the NIGC] a
notice that a facility license is under consideration for issuance at least 120 days before opening
any new place, facility, or location on Indian lands where class II . . . gaming will occur.” 25
C.F.R. § 559.2(a). “That notice must contain specified information about the location and status
of the property on which the facility is to be located, so that the NIGC may determine whether
the property is Indian lands eligible for gaming.” North Cnty. Cmty. Alliance, 573 F.3d at 748;
see also 25 C.F.R. § 559.1(a) (describing regulations as intended “to ensure that each place,
facility, or location where class II . . . gaming will occur is located on Indian lands eligible for
gaming”).
For a tribe to engage in class III gaming, which “includes banking card games and slot
machines,” North Cnty. Cmty. Alliance, 573 F.3d at 741 (citing 25 U.S.C. § 2703(8)), both a
tribal gaming ordinance or resolution approved by the Gaming Commission and a tribal-state
compact approved by the Secretary must be in place. Amador Cnty., 640 F.3d at 376 (citing 25
U.S.C. § 2710(d)(1)(A), (2)(C) (gaming ordinance or resolution); id. § 2710(d)(1)(C) (tribal-state
compact)). There is no statutory requirement that the compact identify gaming sites. Most
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statutory and regulatory provisions governing gaming ordinances and licenses apply equally to
class III gaming facilities. See 25 U.S.C. § 2710(d)(1)(A)(ii) (class III gaming ordinance must
“meet[] the requirements of subsection (b) of this section”); 25 C.F.R. §§ 522.2, 559.1–2.
The Board of Commissioners contends that the National Indian Gaming Commission has
a nondiscretionary duty to determine whether, given this statutory scheme, the tribe can legally
conduct gaming on the Meh-No-Bah allotment. Two courts have held that the NIGC need not
make a site-specific determination of gaming eligibility before approving a gaming ordinance
that does not specify sites. See North Cnty. Cmty. Alliance, 573 F.3d at 746–47; Neighbors of
Casino San Pablo, 773 F. Supp. 2d at 146 (“[T]he plain language of the IGRA did not require
the NIGC to perform an independent ‘Indian lands’ determination in conjunction with the . . .
submission of non-site-specific gaming ordinances.” (footnote omitted)); but see Citizens
Against Casino Gambling in Erie Cnty. v. Kempthorne, 471 F. Supp. 2d 295, 322–27 (W.D.N.Y.
2007). The Board of Commissioners does not make the argument raised and rejected in those
cases: that the NIGC should have made an eligibility determination before approving the tribe’s
gaming ordinance or tribal-state compact, neither of which specify gaming sites. Instead, the
Board argues that the Secretary was required to determine the gaming eligibility of the Meh-No-
Bah allotment before acquiring interests in it under the Indian Land Consolidation Act, and that
the NIGC was required to do so when the tribe gave notice that it planned to license gaming on
that parcel. The defendants take the position that although the NIGC has discretionary authority
to bring an enforcement action against any Indian gaming operation that violates IGRA, NIGC
regulations, or a tribal gaming ordinance, neither the Secretary nor the NIGC is required to
determine the gaming eligibility of a particular parcel unless it is named as a gaming site in an
ordinance or tribal-state compact.
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Both the Ninth Circuit and one judge in this district have rejected the argument that the
NIGC has an enforceable duty to determine whether a site is gaming-eligible when it learns that
a tribe intends to construct a gaming facility there. The Ninth Circuit could not “find anything in
the text of IGRA, or in the regulations in effect in 2006” that would require “the NIGC to make
an Indian lands determination when a tribe licensed or began construction of a class II gaming
facility already authorized by a non-site-specific ordinance.” North Cnty. Cmty. Alliance, 573
F.3d at 747. It therefore concluded “that NIGC was under no judicially enforceable obligation to
make an Indian lands determination in 2006.” Id. The Ninth Circuit limited its holding to the
state of the law in 2006 because, in 2008, the NIGC promulgated the regulations discussed
above, which require tribes to provide the Commission with information about gaming eligibility
before licensing a gaming site, and which empower the Commission to request information
about gaming eligibility before approving an ordinance. 25 C.F.R. §§ 522.2, 559.1–2. The
Ninth Circuit noted that “[t]he validity and proper interpretation of these new regulations” was
not before it, because the regulations were not in place “at the times relevant to [that] suit.”
North Cnty. Cmty. Alliance, 573 F.3d at 747. In 2011, however, after those regulations had come
into force, a judge in this district similarly concluded that “knowledge of gaming activities . . .
does not create an additional legal duty (such as an Indian lands determination) not imposed by
statute.” Neighbors of Casino San Pablo, 773 F. Supp. 2d at 147.
In its briefing here, the Board of Commissioners has not identified any statutory or
regulatory basis for the alleged requirement that the NIGC determine the gaming eligibility of
parcels on which it knows that gaming is planned, nor that the Secretary make a similar
determination when she acquires land that she knows will be used for gaming. Instead, the
Board insists that because eligibility for gaming “is the predicate question under IGRA,”
“fundamental to the statute,” and “fundamental to [the NIGC’s] jurisdiction under IGRA,” Pltf.’s
10
Br. at 41, Congress has “implicitly required,” id. at 44, that the Secretary and the NIGC make an
eligibility determination. But, having examined the text and the structure of IGRA and its
implementing regulations, the court cannot discern any such “discrete agency action that [the
agency] is required to take.” Kaufman, 524 F.3d at 1338 (quoting Norton, 542 U.S. at 63)
(emphases in Norton).
The NIGC clearly has the authority to enforce civil penalties against those who violate
IGRA. See 25 U.S.C. § 2713. And the Supreme Court has “held that ‘an agency’s decision not
to prosecute or enforce, whether through civil or criminal process, is a decision generally
committed to an agency’s absolute discretion’ and therefore is presumptively unreviewable.”
Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1256–57 (D.C. Cir. 2005) (quoting Heckler
v. Chaney, 470 U.S. 821, 831 (1985)). “This presumption of unreviewability may be overcome
‘where the substantive statute has provided guidelines for the agency to follow in exercising its
enforcement powers,’ or ‘where the agency has conspicuously and expressly adopted a general
policy that is so extreme as to amount to an abdication of its statutory responsibilities.’” Id.(quoting Baltimore Gas & Elec. Co. v. FERC, 252 F.3d 456, 460 (D.C. Cir. 2001) (quoting
Chaney, 470 U.S. at 833 & n. 4)) (internal quotation marks omitted). Neither exception applies
here. IGRA did not require either the Secretary or the NIGC to determine the gaming eligibility
of the Meh-No-Bah allotment; it simply authorized them to do so, and committed civil
enforcement to the discretion of the NIGC.
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B. Acquisitions Under the Indian Land Consolidation Act
In its remaining claims, the Board of Commissioners contends that the Secretary violated
the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., as well as her own regulations
and policies, in acquiring the majority of the Meh-No-Bah allotment. The Secretary argues, first,
that the Board of Commissioners lacks standing to maintain this portion of its suit.
To establish constitutional standing, “a plaintiff must show (1) it has suffered an ‘injury
in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000)
(citing Lujan, 504 U.S. at 560–61). Petitioners seeking judicial review of agency action must
identify evidence, either in the record or outside of it, to demonstrate a substantial probability
that they satisfy each element of standing. Int’l Bhd. of Teamsters, 429 F.3d at 1134; Sierra
Club, 292 F.3d at 899.
There is no real doubt that the Board of Commissioners has suffered a concrete and
actual injury: Cherokee County is responsible for repairing county roads and ensuring public
safety, which has surely become more expensive as visitors have driven to and from the parking
lot of the Downstream Casino Resort, which is located in the county.
Whether those alleged injuries are fairly traceable to the Secretary’s decision to acquire
most interests in the Meh-No-Bah allotment is a much closer question. The Secretary argues that
there is no causal link between her acquisition of land under the Indian Land Consolidation Act
and the Board of Commissioners’ injuries, all of which have been caused by the tribe’s operation
of a casino. Citing the provisions of IGRA discussed above, the Secretary notes that her
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acquisition on behalf of the tribe did not authorize gaming—which is true, but which does not in
itself defeat standing.
In Taxpayers of Michigan Against Casinos v. Norton (“TOMAC”), an advocacy group
challenged a decision by the Bureau of Indian Affairs to take land into trust under the Pokagon
Restoration Act, 25 U.S.C. § 1300j-5, “so that the Pokagon Band of Potawatomi Indians c[ould]
build a casino.” TOMAC, 193 F. Supp. 2d 182, 185 (D.D.C. 2002). The organization argued
that a casino would “hurt the quality of life in surrounding communities.” Id. at 186. The
Secretary moved to dismiss the complaint for lack of standing, and the district court
acknowledged that “the injuries asserted by TOMAC members arise, not directly from the
challenged act of placing the land in trust, but rather from the intended use of the land by the
Pokagon, who are not before the court.” Id. at 188. Yet the district court concluded that
neighbors to the site had standing to challenge the Secretary’s decision to take that land into
trust.3 As the court explained:
The necessary linkage is easy to identify . . . . TOMAC members’ injuries due to
operation of the casino are traceable to the Bureau[ of Indian Affairs]’s actions,
because the taking of the site in trust is a necessary prerequisite to both Class II and
Class III gaming, 25 U.S.C. § 2710(b)(1), (d)(1), and because taking the land into
trust would give the Pokagon authority to compel the State of Michigan to negotiate
over Class III gaming. These factors not only establish that the individual TOMAC
members’ injuries would be “fairly traceable” to the defendant’s actions, but they
3
The Supreme Court implicitly reached the same conclusion in Match-E-Be-Nash-She-
Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012), in which a plaintiff
challenged the Secretary’s decision to take land into trust under the Indian Reorganization Act,
25 U.S.C. § 465, so that a tribe could build a casino. Although there was no discussion of
constitutional standing in that case—only prudential standing—the Court could not have reached
the merits of the case if the plaintiff lacked standing to sue. See id. at 2210 (discussing the
argument that the “relationship between § 465 and Patchak’s asserted interests is insufficient . . .
because the statute focuses on land acquisition, whereas Patchak’s interests relate to the land’s
use as a casino”); id. at 2212 (concluding that because “the Secretary will typically acquire land
with the eventual use in mind, after assessing potential conflicts that use might create. . . .
neighbors to the use (like Patchak) are reasonable—indeed, predictable—challengers of the
Secretary’s decisions”).
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also help to satisfy the redressability requirement—since a decision not to take the
land in trust would prevent the Pokagon from building a casino on that site and from
satisfying the requirements of IGRA for casino gambling.
Id. (citations omitted). The D.C. Circuit affirmed this ruling without elaboration.
TOMAC v. Norton, 433 F.3d 852, 860 (D.C. Cir. 2006) (“We note at the outset that we agree
with the District Court’s finding that TOMAC has Article III . . . standing to challenge BIA’s
actions . . . . There is no serious question about TOMAC’s standing that warrants further
discussion by this court.” (citations omitted)).4
The Secretary argues that, unlike in TOMAC, taking the Meh-No-Bah allotment into trust
was not “a necessary prerequisite” to the operation of a casino on the parcel because, she says,
prior to their acquisition the fractionated interests were either “held in trust by the United States
for the benefit of an[ ] Indian . . . individual or held by an[ ] Indian . . . individual subject to
restriction by the United States against alienation,” 25 U.S.C. § 2703(4)(B), and were therefore
already eligible for gaming. It is not clear from the record whether this is true. On the one hand,
the mechanism by which the Secretary acquired a five-sixths interest in the Meh-No-Bah
allotment was statutorily limited to the acquisition of “fractional interest[s] in trust or restricted
lands,” 25 U.S.C. § 2212(a)(1), and each of the deeds effecting the acquisition is labeled as a
“Deed to Restricted Indian Land,” AR 19, 63, 111, 132. The deed conveying the final one-sixth
interest is similarly labeled and attests that the interest was “restricted or held in trust by the
United States” before its transfer. AR 140. On the other hand, as the Board notes, the Meh-No-
Bah allotment was made under the Act of March 2, 1895, which provided that allotments would
“be inalienable for a period of twenty-five years.” 28 Stat. 907. The record does not contain any
4
The D.C. Circuit also suggested that environmental review was required before the land
could be taken into trust. See TOMAC, 433 F.3d at 857 (“Before proceeding with the project, the
Bureau [of Indian Affairs] was required under NEPA to assess the potential environmental
impacts of the gaming resort.”).
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information about how or when that restriction was extended, if in fact it was, and the Secretary
has provided no explanation.
Instead, the Secretary suggests that, at some point before 2007, she took the restricted
interests into trust on behalf of Meh-No-Bah or her heirs. Defs. Br. at 3 (“At the beginning of
April 2007, the entire Meh-No-Bah Allotment was held by the United States in trust for four
individual Indians and one Indian estate in varying shares.”); id. at 19 (“The United States was
trustee of the land before the transfer, and it remained trustee after the transfer.”); id. at 23
(describing the transfer as a “simple change in trust beneficiary from the individual Indians to
the Tribe”). The Secretary does not explain how or when she took these interests into trust prior
to the transactions at issue here, and there is no discussion of any such process in the
administrative record. To the contrary, the record indicates that there was some uncertainty
about the status of several of the interests acquired by the Secretary, and that others were
restricted—although, again, there is no explanation of how the restriction against alienation
survived until 2007. See, e.g., Letter from John L. Berrey, Chairman, Quapaw Tribal Business
Committee to Jeanette Hanna, Regional Director, U.S. Bureau of Indian Affairs, AR 151 (“It is
our understanding that your office will shortly . . . make a determination concerning whether
[certain] interests in [the] tract are fee or restricted interests, and that it is highly likely [that they]
will be determined to be fee interests.”); id. at 152 (“A two-thirds interest in the [Meh-No-Bah]
tract has . . . remained in restricted status since the . . . allotment in 1895.”).
On the record before it, the court cannot determine whether the Meh-No-Bah allotment
was eligible for gaming before the Secretary acquired a five-sixths interest in trust for the
tribe—that is, whether the acquisition was a “necessary prerequisite to . . . Class II and Class III
gaming” on that tract. Cf. TOMAC, 193 F. Supp. 2d at 188. But the court need not make that
determination to decide the issue of causation. It is perfectly clear that, before the land
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acquisition challenged here, the tribe was not legally entitled to build and operate a casino on the
Meh-No-Bah allotment. The reason for that is simple: the tribe had no legal rights to the land.
After the acquisition, it did. And so, even if (as the Secretary argues) the tribe could have
entered a long-term lease with the owners of the fractionated interests in the allotment instead of
petitioning the Secretary to take those interests into trust on the tribe’s behalf—and even if the
allotment was already gaming eligible—the tribe still needed to do something to acquire the right
to build a casino there. It could not just build on land that it did not control. The Secretary
removed this roadblock, with the apparent knowledge that the tribe intended to construct a
casino. See AR 201 (“Mr. Barry called yesterday about the 40 acre tract that the Tribe wants to
build a casino on.”). Injuries resulting from the construction and operation of the casino are
therefore fairly traceable to the Secretary’s decision to acquire interests in the Meh-No-Bah
allotment, regardless of whether that land was eligible for gaming before the acquisition or
whether the acquisition itself made the land gaming-eligible.
The question of redressability, however, does turn on the pre-acquisition gaming
eligibility of the Meh-No-Bah allotment. The Board of Commissioners asks the court to reopen
the acquisition process to allow for environmental review, returning the consolidated interests to
their original owners until that review is complete.5 That remedy would redress the Board’s
injuries if (and only if) it would be reasonably likely to cause the casino to shut down, because
(as the Secretary repeatedly notes) all of the Board’s injuries stem from the operation of the
casino. If the Meh-No-Bah allotment was ineligible for gaming prior to the Secretary’s
acquisition on behalf of the tribe, then undoing that acquisition would render the land ineligible
5
The Board of Commissioners also asks for an order that the NIGC enjoin the operation
of the casino on the grounds that the land on which it sits is ineligible for gaming, but (as
discussed above) the NIGC enjoys the discretionary authority to exercise its enforcement powers
without judicial oversight.
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once again—and it is reasonably likely that, if the land on which the casino sat became ineligible
for gaming, the casino would indeed shut down, either out of prudence or as the result of an
NIGC enforcement action. But if the Meh-No-Bah allotment was gaming eligible before the
acquisition at issue here, because the fractionated interests were held in trust or restricted status
by Indian individuals, then returning ownership of the land to those individuals would not be
reasonably likely to cause the casino to cease operation. Obviously, some negotiations would be
required between the tribe and the former owners of the land supporting its casino, and those
negotiations might well deliver a windfall to the owners—but it is not reasonably likely that the
parties would agree to shut down an apparently lucrative business rather than agreeing to share
its proceeds. To demonstrate redressability, then, the Board of Commissioners must point to
evidence sufficient to demonstrate a substantial probability the land on which the casino sits was
ineligible for gaming before the acquisitions challenged here. See Int’l Brotherhood of
Teamsters, 429 F.3d at 1134; Sierra Club, 292 F.3d at 899.
The Board of Commissioners has not done so. Instead, the Board argues that the court
can find in its favor even if it accepts the Secretary’s assertion that the interests in the Meh-No-
Bah allotment were in trust or restricted status prior to the challenged acquisitions. Pl.’s Br. at
22. To support her argument, the Secretary points to the deeds by which the interests were
acquired, all of which describe the land as being either held in trust or restricted, AR 19, 63, 111,
132, and the method of acquisition, which required as much, see 25 U.S.C. § 2212(a). Although
it does not concede that point, the Board marshals very little evidence to the contrary, merely
citing the Quapaw Allotment Act and arguing that, by the terms of that statute, any restriction
against alienation terminated in the 1920s. See 28 Stat. 907 (providing that allotments would “be
inalienable for a period of twenty-five years” from the date on which a patent was issued to the
allottee). The Secretary has determined otherwise, but has not explained her determination. At
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this stage of the analysis, however, it is not the Secretary’s obligation to do so. Rather, it is the
Board of Commissioners’ burden to show a substantial probability that the determination was
incorrect, and so establish the redressability of its injuries. The Board could have attempted to
compel the Secretary to elaborate on her determination, but it believed that the issue would not
be fatal to its case. That belief was incorrect.
The Board of Commissioners has not demonstrated a substantial probability that the
injuries it has suffered as a result of the casino’s operation would be redressed by the relief that it
seeks here. It therefore lacks standing to challenge the Secretary’s acquisition of interests in the
Meh-No-Bah allotment on behalf of the tribe.
IV. CONCLUSION
For the reasons discussed above, the court concludes that the NIGC is not required to
issue a determination as to the gaming eligibility of the Meh-No-Bah allotment, and that the
Board of Commissioners has not established its standing to challenge the Secretary’s decision to
take that land into trust, because it has not shown a substantial probability that a judgment it its
favor would redress its injuries.
Rudolph Contreras
United States District Judge
Date: July 25, 2013
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