Frank's Landing Indian Community, a federally-recognized self-governing dependent Indian community, Plaintiff-Appellant,
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.
and Submitted October 11, 2018 Seattle, Washington
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").
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.
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
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
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
Before: N. Randy Smith and Morgan Christen, Circuit Judges,
and Robert E. Payne, [*] District Judge.
CHRISTEN, CIRCUIT JUDGE.
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
and the 1994 amendments to that Act,  renders it eligible to
engage in class II gaming.
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.
in 1987, the Frank's Landing Act originally provided as
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.
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
[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).
1994, Congress amended the Frank's Landing Act so ...