Frank's Landing Indian Community v. National Indian Gaming Commission

          Argued and Submitted October 11, 2018 Seattle, Washington

         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 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.

          Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding D.C. No. 3:15-cv-05828-BHS

          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.

          Before: N. Randy Smith and Morgan Christen, Circuit Judges, and Robert E. Payne, ^[*] District Judge.

          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 Act^[1] 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.

         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:

[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 ...