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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2003 Decided November 14, 2003
No. 02-5277
CITY OF ROSEVILLE, ET AL.,
APPELLANTS
v.
GALE A. NORTON, IN HER OFFICIAL CAPACITY AS
UNITED STATES SECRETARY OF INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00628)
William P. Horn argued the cause and filed the briefs for
appellants. Barbara A. Miller and Harvey A. Levin entered
appearances.
Stephen P. Collette was on the brief for amicus curiae
National Coalition Against Gambling Expansion in support of
appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Seth P. Waxman argued the cause for appellee The United
Auburn Indian Community. With him on the brief were
Edward C. DuMont, Luke A. Sobota, and Howard Dickstein.
Kirk R. Ruthenberg and Nicholas C. Yost entered appear-
ances.
Elizabeth Ann Peterson, Attorney, U.S. Department of
Justice, argued the cause for federal appellees. With her on
the brief was William B. Lazarus, Attorney.
Before: ROGERS and ROBERTS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal involves the intersec-
tion of two statutes concerning Indian tribes. The Indian
Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721 (2003)
(‘‘IGRA’’), prescribes the conditions under which Indian tribes
may engage in commercial gaming on their reservations.
The Auburn Indian Restoration Act, 25 U.S.C. §§ 1300l–
1300l–7 (2003) (‘‘AIRA’’), restored the Auburn Indian Band
located near Sacramento, California to federal recognition as
an Indian Tribe and authorized the creation of a new reserva-
tion on its behalf. See id. §§ 1300l, 1300l–2. The cities of
Roseville and Rocklin, both located near land approved by the
Secretary of the Interior as part of the Tribe’s new reserva-
tion, and Citizens for Safer Communities, a local nonprofit
organization (hereafter ‘‘the Cities’’), challenge the district
court’s interpretation of section 20 of IGRA. They contend
that the plain language of IGRA required the Secretary, prior
to deciding the land was eligible to be used for gaming, to
find that gaming ‘‘would not be detrimental to the surround-
ing community’’ and to secure the consent of the Governor.
See 25 U.S.C. § 2719(b)(1)(A). We hold, in light of IGRA’s
language, structure, and purpose, that the Auburn Tribe’s
land qualifies as the ‘‘restoration of lands’’ under IGRA
§ 20(b)(1)(B)(iii) even though the land is not located on the
Tribe’s former reservation as of the time the Auburn Tribe
lost federal recognition and is being put to a different use
than the lands on the former reservation, the Rancheria.
Hence, the Secretary was not required to proceed under
3
§ 20(b)(1)(A) as the Cities contend. Accordingly, we affirm
the dismissal of the Cities’ IGRA cause of action and, as this
is the only issue raised on appeal, we affirm the judgment of
the district court.
I.
The Auburn Indian Band is a small tribe, numbering
somewhere around 247 members, most of whom live near the
village of Auburn in central California, not far from Sacra-
mento. The Auburn Band currently has no reservation; in
fact, the Auburn Tribe had no federally recognized existence
between 1967 and 1994. The Band appears to have been
formed when several surviving families of the Maidu and
Meiwok Tribes, both devastated by the settlement policies of
the nineteenth century, grouped into a small community that
survived much of the depredation that came with the settle-
ment of California. In 1917, the federal government provided
the Auburn Tribe with a small 20–acre reservation, which was
expanded to 40 acres in 1953, known as the Auburn ‘‘Ranche-
ria.’’ As part of then-prevailing policies on Indian assimila-
tion, however, Congress withdrew the Auburn Tribe’s recog-
nition and terminated its reservation in 1967, distributing
most of the Rancheria land in fee to individual holders,
pursuant to the terms of the Rancheria Act, Pub. L. No. 85–
671 (1958). The policy of attempting to assimilate Indians by
terminating federal trust responsibilities has since been repu-
diated by the President and Congress, and many tribes
terminated as part of those policies have now been restored
to federal recognition.
Congress restored the Auburn Band’s rights as a federally
recognized tribe in 1994 and authorized the Secretary of the
Interior to take land into trust to serve as the Auburn Tribe’s
reservation. See AIRA, Pub. L. No. 103–434 tit. II (1994), 25
U.S.C. §§ 1300l–1300l–7 (2003). AIRA directs the Secretary
to accept lands located on the Tribe’s former reservation into
trust, id. § 1300l–2(b), but also authorizes the Secretary to
accept other unencumbered lands located elsewhere in Placer
County, id. § 1300l–2(a). AIRA also references the Secre-
tary’s authority, pursuant to the Indian Reorganization Act,
4
25 U.S.C. § 461 et seq., to take additional land into trust
within the tribe’s ‘‘service area,’’ which includes several neigh-
boring counties, id. § 1300l–2(a). Under AIRA, all land
taken into trust pursuant to its terms ‘‘shall be part of the
Tribe’s reservation.’’ Id. § 1300l–2(c).
Rather than apply to the Secretary to re-establish their
reservation on the Rancheria, most of which land was unavail-
able because held in fee by individual Indians or non-Indians,
the Auburn Tribe applied for three separate parcels of land:
one for residential and community use, one for commercial
use as a gaming casino, and a third, containing a church
within the boundaries of the old reservation, for community
use. The Tribe submitted a revised application in 2000,
however, to request only the gaming site, reserving the other
two sites for later applications. The gaming site consists of
49.21 acres located in an unincorporated portion of Placer
County, California, and photographs of the area indicate that
the land is flat, barren, and virtually uninhabited. The
parties disagree over how far the land is from the Auburn
Tribe’s Rancheria, but viewing the record most favorably to
the Cities, see Browning v. Clinton, 292 F.3d 235, 242 (D.C.
Cir. 2002), it is at least clear that the land is neither on nor
close to the Tribe’s former reservation, and is possibly as far
as 40 miles away. What is clear, however, is that the land is
close to the Cities.
In response to the Bureau of Indian Affairs’ notice and
request for comments, see 25 C.F.R. § 151.11 (2003), the
Cities opposed the Auburn Tribe’s application, arguing that
the casino would increase crime in their communities and
interfere with planned residential developments nearby, as
well as with the family-oriented nature of the area. More-
over, they argued that because the proposed gaming was to
take place on land acquired after the IGRA’s effective date of
October 17, 1988, the Secretary was not authorized to permit
gaming on the land unless she made a threshold determina-
tion under IGRA § 20(b)(1)(A), 25 U.S.C. § 2719(b)(1)(A),
that the proposed gaming activity ‘‘would not be detrimental
to the surrounding communities’’ and obtained the concur-
rence of the Governor. The Bureau, relying on opinions of
two Associate Solicitors of the Interior Department, took the
5
position that the land was exempt from the threshold no-
community-detriment finding normally applicable under
IGRA § 20(b)(1)(A) to Indian lands acquired after 1988 be-
cause AIRA brought the Auburn Tribe’s land within IGRA’s
exception for a ‘‘restoration of lands’’ to a restored tribe
under § 20(b)(1)(B)(iii). The Cities’ objections based on local
community detriment were therefore not legally relevant, as
IGRA does not require a no-community-detriment finding on
lands that are part of a ‘‘restoration of lands’’ before the
Secretary can authorize gaming. The Cities’ objections were
not entirely irrelevant, however, because the Bureau consid-
ered the Tribe’s land a ‘‘discretionary’’ acquisition, and Interi-
or Department regulations, see 25 C.F.R. pt. 151, require the
Secretary to consider potential land use conflicts and jurisdic-
tional problems. Id. §§ 151.10(f), 151.11(a). Additionally, the
Secretary must balance the need of a tribe for additional land,
the use to which the land will be put, and the distance of the
land from the tribe’s reservation, before exercising discretion
to take new land into trust for Indians. Id. §§ 151.10(b), (c);
id. §§ 151.11(a), (b). The Bureau found that the balance of
these factors favored the Auburn Tribe’s planned use of the
land for gaming. Ultimately, the Secretary, through her
designees, agreed with the legal and factual determinations
and approved the Tribe’s application. Notice was published
in the Federal Register of the Secretary’s intent to take the
land into trust.
The Cities filed suit against the Secretary, other Interior
Department officials, and the United States under a variety of
legal theories, seeking declaratory and injunctive relief, as
well as a decision on the merits of their IGRA cause of action
to prevent the Secretary from permitting gaming on the 49
acres to be taken into trust for the Auburn Tribe. As
relevant here, the Cities alleged that the Secretary had failed
to comply with the requirements of IGRA § 20(b)(1)(A). The
Tribe intervened, and the Secretary moved to dismiss the
IGRA cause of action based on her interpretation of the
‘‘restoration of lands’’ exception in IGRA § 20(b)(1)(B)(iii).
Following the Secretary’s agreement to delay taking the land
into trust, the district court ruled that ‘‘the only reasonable
6
interpretation’’ of IGRA’s ‘‘restoration of lands’’ exception
under § 20(b)(1)(B)(iii) applied to the land that the Secretary
had agreed to take into trust for the Tribe. City of Roseville
v. Norton, 219 F. Supp.2d 130, 157 (D.D.C. 2002). The court
dismissed the Cities’ IGRA cause of action for failure to state
a claim upon which relief can be granted, and also dismissed
or entered summary judgment against the Cities on their
remaining causes of action.
II.
The IGRA was enacted in 1987 to regulate gaming on
Indian land. It does not treat all Indian land equally. ‘‘Class
III’’ gaming, which encompasses most casino-style games, 25
U.S.C. § 2703(8), is generally permitted on Indian reserva-
tions, subject to certain conditions not at issue here including
a valid Tribal–State compact and a validly enacted tribal
ordinance, id. § 2710(d). Section 20 of IGRA, 25 U.S.C.
§ 2719, however, imposes some limits. Section 20(a) creates
a prohibition: gaming is not permitted on Indian land taken
into trust by the Secretary after IGRA’s effective date,
October 17, 1988, unless the land borders an existing reserva-
tion or is within the last recognized reservation of a tribe that
was landless at the time IGRA was enacted (unless the tribe
is in Oklahoma, in which case lands bordering its former
reservation are exempted as well). This prohibition is subject
to two exceptions in § 20(b). The first, § 20(b)(1)(A), allows
the Secretary of the Interior to override § 20(a) and permit
gaming on a newly acquired parcel when, ‘‘after consultation
with the Indian tribe and appropriate State and local officials’’
the Secretary ‘‘determines that a gaming establishment TTT
would be in the best interest of the Indian tribe and its
members, and would not be detrimental to the surrounding
community, but only if the Governor of the State TTT con-
cursTTTT’’ The second, § 20(b)(1)(B), exempts lands taken
into trust as part of the ‘‘settlement of a land claim,’’ ‘‘the
initial reservation of an Indian tribe acknowledged by the
Secretary,’’ or the ‘‘restoration of lands for an Indian tribe
that is restored to federal recognition.’’ §§ 2719(b)(1)(B)(i),
7
(b)(1)(B)(ii), (b)(1)(B)(iii). The IGRA does not define a ‘‘resto-
ration of lands.’’
On appeal, the Cities contend that the district court erred
as a matter of law in holding, contrary to the plain meaning of
IGRA § 20(b)(1)(A), that the Secretary was not required to
make a threshold determination that the use of the Auburn
Tribe’s land for gaming would not be detrimental to the
surrounding communities and to obtain the Governor’s con-
currence. The Cities do not challenge the Secretary’s author-
ity under AIRA to take the land into trust for the Tribe. Nor
do they contend on appeal that the Secretary’s decision to
accept the Tribe’s application improperly balanced the factors
set forth in the Department’s regulations, 25 C.F.R. pt. 151,
by failing to give adequate weight to the Cities’ concerns.
Thus, the Cities’ appeal presents a single question of statuto-
ry interpretation. They contend that the Secretary violated
IGRA because the Auburn Tribe’s acquisition of the 49.21
acres cannot be a ‘‘restoration of lands’’ under IGRA
§ 20(b)(1)(B)(iii) as the Tribe never owned those acres in the
past as part of its former reservation, the Rancheria, and the
tract of land is too different from the Rancheria to be a
‘‘restoration’’ of it. IGRA § 20(b)(1)(A) therefore forbids
gaming on the land absent a finding by the Secretary, con-
curred in by the Governor, that gaming will not have a
detrimental effect on the local community – a finding the
Secretary did not make pursuant to § 20(b)(1)(A). The Cities
maintain that the ‘‘restoration of lands’’ exception can bear
only one meaning, namely, that lands must be either identical
or almost identical to those previously owned in order to be a
‘‘restoration,’’ and that that reading is necessitated by the
IGRA’s overall policy of limiting the expansion of Indian
gaming.
A.
A few preliminary comments on the nature of our review.
The district court dismissed the Cities’ IGRA cause of action
on the merits, holding that IGRA’s ‘‘restoration of lands’’
exception applied, and no party has challenged the district
8
court’s decision to interpret the statute de novo. All parties
urge this court to decide the matter as a question of law.
The Secretary, while noting that her interpretation is due
deference, and invoking limited deference under Skidmore v.
Swift & Co., 323 U.S. 134 (1944), in the district court, does not
invoke deference now as a basis for affirming the district
court, and seeks affirmance of her interpretation of
§ 20(b)(1)(B)(iii) on the grounds relied upon by the district
court.
We hold, in light of IGRA’s language, structure, and pur-
pose, that the Auburn Tribe’s land qualifies as the ‘‘restora-
tion of lands’’ under IGRA § 20(b)(1)(B)(iii) even though the
land is not located on the Tribe’s former reservation as of the
time the Auburn Tribe lost federal recognition and is being
put to a different use than the lands on the former reserva-
tion, the Rancheria. The Secretary, therefore, was not re-
quired to proceed under § 20(b)(1)(A) as the Cities contend.
See infra Part II B. This holding is consistent with the
Secretary’s interpretation. To the extent that the Secretary’s
interpretation of the ‘‘restoration of lands’’ provision may
include nuances regarding its application to Indian lands not
acquired pursuant to a restoration act, the court has no
occasion to reach the issue of deference to her interpretation
in such circumstances. Therefore, we turn to the merits of
the Cities’ contentions, examining the text of the statutory
exception, its context within IGRA, and IGRA’s structure and
purposes to determine the intent of Congress in enacting the
‘‘restoration of land’’ exception. See generally Babbitt v.
Sweet Home Chapter of Communities for a Great Oregon,
515 U.S. 687 (1995); Engine Mfrs. Ass’n v. U.S. E.P.A., 88
F.3d 1075 (D.C. Cir. 1996).
B.
All parties urge plain meaning constructions of the excep-
tion, albeit with different nuances. The Cities, citing Web-
ster’s Dictionary, urge the narrowest construction of the word
‘‘restoration’’ as ‘‘bring[ing] back to an original state,’’ in light
of their view that IGRA is designed to restrict gambling on
9
Indian reservations and to protect surrounding communities.
The Secretary and the Tribe, also referring us to the dictio-
nary, urge an interpretation of the word ‘‘restoration’’ that
encompasses the concept of ‘‘restitution.’’ The Tribe also
points to this meaning of the word in ancient times as
encompassing a broader concept of compensation. The Book
of Exodus, for instance, at Chapter 22, Verse 1, requires that
someone guilty of killing or selling another’s stock must
‘‘restore five oxen for an ox, and four sheep for a sheep.’’
No circuit court of appeals has yet had occasion to address
the scope of IGRA’s ‘‘restoration of lands’’ exception under
§ 20(b)(1)(B)(iii), and district courts have assumed that lands
are ‘‘restored’’ when included in a tribe’s restoration act.
When the exception has been litigated, the question has
usually been whether there can be a ‘‘restoration of lands for
an Indian tribe restored to federal recognition’’ even though
the recognition of the Tribe and the land grant did not occur
as a result of the same statute – implying that when they do
it is the paradigm ‘‘restoration of lands.’’ For example, in
Confederated Tribes of Coos v. Babbitt, 116 F. Supp.2d 155,
161–65 (D.D.C. 2000), the court rejected the Secretary’s
interpretation, since modified, that the ‘‘restoration of lands’’
exception applies only to lands taken into trust pursuant to a
statute restoring a tribe to federal recognition, and held that
lands a tribe acquires by other means might also qualify
under certain circumstances. Similar cases include Oregon v.
Norton, 271 F. Supp.2d 1270, 1275–80 (D. Or. 2003); Grand
Traverse Band of Ottowa and Chippewa Indians v. United
States, 46 F. Supp.2d 689, 700–09 (W.D.Mich. 1999) (‘‘Grand
Traverse I’’); and Grand Traverse Band of Ottowa and
Chippewa Indians v. United States, 198 F. Supp.2d 920, 934–
37 (W.D.Mich. 2002) (‘‘Grand Traverse II’’). Even assuming
the instant case is not at the center of the paradigm because
the AIRA does not identify these particular 49 acres in Placer
County, the term ‘‘restoration’’ can nonetheless readily be
construed to include lands acquired pursuant to the restora-
tion statute (AIRA) from within the restored tribe’s service
area designated in the AIRA. Other cases interpreting the
exception have also interpreted it broadly, for instance, in
10
TOMAC v. Norton, 193 F. Supp.2d 182, 192–94 (D.D.C. 2002),
and Sault Ste. Marie Tribe v. United States, 78 F. Supp.2d
699, 705–07 (W.D.Mich. 1999), as well as in Grand Traverse I,
46 F. Supp.2d 695–700, and Grand Traverse II, 198 F.
Supp.2d at 928–34, district courts have read the other term in
the exception – ‘‘Indian tribe that is restored to federal
recognition’’ – expansively, so as to include tribes whose
termination or recognition is accomplished administratively
rather than by an act of Congress.
Because the Auburn Tribe’s land is located in Placer Coun-
ty, which was a designated area in the AIRA, and thus
became, by operation of law, the Tribe’s reservation, see 25
U.S.C. § 1300l–2(c), the court has no occasion to decide
whether land obtained by a tribe other than through the
tribe’s restoration act is the ‘‘restoration of lands’’ for IGRA
purposes, nor whether ‘‘restored’’ tribes include those whose
termination or recognition has not been the result of congres-
sional action. Instead, the court must decide the ancillary
question presented by the Cities’ appeal of whether lands
identified in a tribe’s restoration act as its reservation must
meet the additional qualification of prior tribal ownership
before the land can be considered a ‘‘restoration of lands for
an Indian tribe that is restored to federal recognition.’’
All parties contend that the plain meaning of
§ 20(b)(1)(B)(iii) controls. The Cities point to the dictionary
definition of the word ‘‘restore,’’ and contend that the plain
meaning of the term ‘‘restoration of lands’’ cannot encompass
lands over which a tribe did not exert prior ownership, or
which are dissimilar from those the tribe previously owned.
Because to ‘‘restore’’ something means to ‘‘bring [it] back to
an original state,’’ they maintain that the only lands that can
be ‘‘restored’’ to the Auburn Tribe are those on its prior
reservation, the Rancheria, or lands sufficiently similar in
nature that they can be said to bring the reservation back to
its ‘‘original’’ state. Other land acquired pursuant to AIRA,
such as the 49 acres that the Secretary has agreed to take
into trust, are simply ‘‘lands acquired by the Secretary in
trust for the benefit of an Indian Tribe after October 17,
1988’’ for which the Auburn Tribe, like any other tribe that
11
acquires new land, must meet the requirements of IGRA
§ 20(b)(1)(A) before the land can be used for commercial
gaming. The Cities maintain that the narrow reading of the
word ‘‘restore’’ is supported by IGRA’s general ban on Indian
gaming because if a ‘‘restoration’’ of lands is allowed to
encompass lands to which a tribe does not demonstrate a
prior connection, such as prior ownership, the exception will
swallow the rule. However, the Secretary and the Tribe
respond with dictionary definitions of their own, contending
that ‘‘restoration’’ encompasses the concept of ‘‘restitution,’’
such that it can be a ‘‘restoration’’ to give the Auburn Tribe
lands to make restitution for past wrongs. They point out
that this meaning of the word, even if less common in
everyday parlance, is also included in the dictionary, fits far
better with the structure of IGRA and the remedial purposes
of AIRA, and is supported by AIRA’s provision that all lands
taken into trust pursuant to the act ‘‘shall be part of the
Tribe’s reservation.’’ 25 U.S.C. § 1300l–2(c).
There is much to commend the interpretation of the Secre-
tary and the Auburn Tribe regarding the scope of the ‘‘resto-
ration of lands’’ exception. The IGRA plainly includes excep-
tions to its general prohibition of gaming on off-reservation
sites, and Congress’ purpose in enacting IGRA includes the
promotion of tribal economic self-sufficiency, see 25 U.S.C.
§ 2702(1), a purpose with which Congress’ enactment of
AIRA is entirely consistent. Moreover, the syntax of the
statute, which discusses not simply the restoration of the
lands themselves, but their restoration ‘‘for an Indian tribe,’’
fits more comfortably with the concept of restitution. Even
the definitions of ‘‘restore’’ the Cities quote in their own brief
include the notion of restitution. See Appellants’ Br. at 14,
quoting Webster’s II New Riverside University Dictionary p.
1002 (The Riverside Publishing Co. 1994). But, for the
reasons advanced by the Cities, a narrower construction of
the exception is not without a measure of plausibility. In
sum, neither side can prevail by quoting the dictionary.
We turn, therefore, to context, for the court is to ‘‘consider
not only the bare meaning of the word but also its placement
and purpose in the statutory scheme,’’ Bailey v. United
12
States, 516 U.S. 137, 145 (1995). The force of the Cities’
interpretation fades upon closer analysis, particularly in light
of the general environment in which IGRA was enacted, its
structure and general purpose. Even assuming that the
Cities’ definition of ‘‘restore’’ as to ‘‘bring back to an original
state’’ is the more common meaning of the word, the statuto-
ry context makes broader readings of § 20(b)(1)(B)(iii) more
plausible. That a ‘‘restoration of lands’’ could easily encom-
pass new lands given to a restored tribe to re-establish its
land base and compensate it for historical wrongs is evident
here, where much of the Auburn Tribe’s Rancheria is, as a
practical matter, unavailable to it. Further, even under the
Cities’ definition of ‘‘restore’’ as to ‘‘bring back to an original
state,’’ there would appear to be no reason to limit the
‘‘original state’’ to 1967, rather than the earlier period before
the Tribe was granted only a 40–acre reservation. Section
20(b)(1)(B)(iii) refers to the restoration of ‘‘lands,’’ not the
restoration of a ‘‘reservation.’’ The Maidu and Meiwok
Tribes from which the Auburn Tribe descended once occupied
much of central California. For the Cities to now argue that
the 49 acres are a windfall, as if the Tribe’s ancestors had
never possessed any more, is ahistorical. Given the history of
Indian tribes’ confinement to reservations, it is not reasonable
to suppose that Congress intended ‘‘restoration’’ to be strictly
limited to land constituting a tribe’s reservation immediately
before federal recognition was terminated.
The Cities’ interpretation is also difficult to reconcile with
IGRA’s other provisions. Limiting a ‘‘restoration of lands’’ to
the return of lands on a tribe’s prior reservation practically
reads the ‘‘restoration of lands’’ provision out of existence.
As one of the exemptions under § 20(b), the ‘‘restoration of
lands’’ in § 20(b)(1)(B)(iii), unless it is surplusage, must ex-
empt some land that would otherwise fall within the gaming
prohibition of § 20(a). But § 20(a)(2)(B) explicitly excludes
the ‘‘last recognized reservation’’ of a tribe that ‘‘has no
reservation on October 17, 1988’’ from § 20(a)’s prohibition.
Under the Cities’ plain meaning interpretation whereby the
only lands that can be part of a ‘‘restoration’’ are those in a
tribe’s former reservation, the exception would be virtually
13
bereft of meaning because gaming on such lands is not
prohibited in the first place. If the Auburn Tribe had
reacquired some of the land on its former reservation, the
Rancheria, it would have no need to look to the ‘‘restoration
of lands’’ exception in § 20(b)(1)(B)(iii) in order to use the
land for commercial gaming because § 20(a)(2)(B) would have
excluded its Rancheria from § 20(a)’s ban on gaming. While
a few scenarios might exist where § 20(b)(1)(B)(iii) would
remain applicable under the Cities’ interpretation (such as in
the case of tribes who held other reservations prior to their
‘‘last recognized reservation’’), the scope of the exemption
would be substantially diminished in a manner that would
appear inconsistent with Congress’ general goal under IGRA
of ‘‘promoting tribal economic development’’ and ‘‘self-
sufficiency,’’ Diamond Game Enterprises, Inc. v. Reno, 230
F.3d 365, 366–67 (D.C. Cir. 2000). It is generally presumed
that Congress does not intend to enact surplusage, see Bab-
bitt v. Sweet Home Chapter of Communities for a Greater
Oregon, 515 U.S. 687, 698 (1995). The difficulty of reassem-
bling a former reservation as a result of the passage of
substantial periods of time between the loss of federal recog-
nition and its restoration is illustrated by the experience of
the Auburn Tribe: its Rancheria is largely held in fee by
individuals and unavailable as a practical matter more than a
quarter of a century later. To be given meaningful effect,
then, a ‘‘restoration of lands’’ would seem to encompass more
than only the return of a tribe’s former reservation.
To the extent that the Cities contend, as a fallback position,
that, at the very least, land cannot be considered brought
‘‘back to its original state’’ unless it is at least similar to the
reservation it replaces, the Cities effectively concede that a
broader interpretation of the term ‘‘restoration’’ is appropri-
ate. While this fallback interpretation would still allow the
exception in § 20(b)(1)(B)(iii) to retain some meaning inde-
pendent of § 20(a)(2)(B), it concedes that lands different than
those previously held by a tribe can still be part of a
‘‘restoration.’’ Indeed, the Cities’ view that the Secretary
violated IGRA by failing to make a factual determination that
14
the accepted tract of land was substantially identical to the
old Rancheria depends on their view that the 49.21 acres
cannot meet this standard because is too geographically dis-
tant, considerably more valuable, and to be put to commercial
rather than residential use. But to the extent the Cities rely
on the notion that the Auburn Tribe’s new land cannot be a
‘‘restoration’’ because it is not being used residentially, like
the old Rancheria was, their argument is nonsensical. The
point of the ‘‘restoration of lands’’ exception is that such lands
may be used for commercial gaming; it would make no sense
if a tribe’s use of land for gaming could defeat the land’s
eligibility for gaming. Moreover, these considerations under-
mine the Cities’ plain meaning interpretation by admitting
that a ‘‘restoration of lands’’ to a tribe can include different
lands than those on its former reservation, as occurred here.
Essentially, the Cities maintain that the ‘‘restoration of
lands’’ exception cannot be read in a manner that would allow
the Auburn Tribe to put together a new reservation that an
‘‘established’’ tribe would not be permitted to acquire, name-
ly, a gaming parcel separate from its residential and commu-
nity areas. This explains the Cities’ reasoning that a broad
reading of the exception would swallow the rule. Because the
Tribe would not have been permitted to acquire the 49 acres
for gaming if its federal recognition had never been terminat-
ed, its ‘‘restoration’’ should not allow it greater rights than it
otherwise would have enjoyed as a chronologically continuous
tribe. This approach is problematic for several reasons.
Had the Auburn Tribe never been terminated, it would have
had opportunities for development in the intervening years,
including the possible acquisition of new land prior to the
effective date of IGRA. A ‘‘restoration of lands’’ compensates
the Tribe not only for what it lost by the act of termination,
but also for opportunities lost in the interim.
The Cities focus therefore on the underlying prohibition in
§ 20(a) of gaming on ‘‘lands acquired by the Secretary in
trust for the benefit of an Indian tribe after October 17,
1988.’’ They maintain that IGRA § 20 was the product of a
bill passed by the House of Representatives in the prior
legislative session, H.R. 1920, 99th Cong. (2d Sess. 1986), and
15
that the legislative history and floor remarks on that bill and
its Senate counterpart by several Members of Congress, see
132 Cong. Rec. H.2012–02 (daily ed. April 21, 1986); id.
S.15390–02 (daily ed. Oct. 6, 1986), indicate that Congress was
opposed to the expansion of Indian gaming beyond tribes’
1988 reservations. This may be true, but neither H.R. 1920
nor its Senate counterpart contained the ‘‘restoration of
lands’’ exception, and hence that legislative history, even
assuming it could be of persuasive force for what a later
Congress enacted, offers little if any insight on how broad an
exception Congress made to its gaming-ban policy for re-
stored tribes. The Cities also point to Sac and Fox Nation v.
Norton, 240 F.3d 1250 (10th Cir. 2001), cert. denied sub nom.
Wyandotte Nation v. Sac and Fox Nation of Missouri, 534
U.S. 1078 (2002), although their reliance is largely misplaced.
In that case, a tribe had acquired land in downtown Kansas
City, Missouri, that was located more than two hundred miles
from the tribe’s principal reservation. The tribe sought
permission to use the land for gaming under § 20(a)(1), which
exempts land bordering a tribe’s ‘‘reservation’’ from § 20(a)’s
ban. The Tenth Circuit rejected the Secretary’s position that
a ‘‘reservation’’ could include land held in trust for an Indian
tribe by the federal government for non-residential purposes,
reasoning that such a broad reading of the word ‘‘reservation’’
would undermine the anti-gaming-expansion policies of
§ 20(a). Id. 1264–67. By contrast, the Auburn Tribe’s 49.21
acres are part of the Tribe’s reservation by operation of law,
under AIRA, 25 U.S.C. § 1300l–2(c), regardless of whether
the land falls within IGRA’s ‘‘restoration of lands’’ exception
in § 20(b)(1)(B)(iii). To the extent, however, that the Tenth
Circuit interpreted ‘‘reservation’’ in light of § 20’s general
limit of gaming on lands acquired by tribes after 1988, the
decision in Sac and Fox Nation is consistent with the Cities’
view that the ‘‘restoration of lands’’ exception be similarly
narrowly construed.
The approach of the Tenth Circuit in Sac and Fox Nation
is not persuasive here. First, Congress rebuked the decision
almost immediately, enacting legislation stating that the au-
thority to determine whether land is a ‘‘reservation’’ was
16
delegated to the Secretary as of the effective date of IGRA.
See Pub. L. No. 107–63, § 134 (2001). Second, the Cities
point to nothing to indicate that Congress contemplated that
the Auburn Tribe’s reservation would be composed of only
one parcel of land. Had the Tribe acquired one tract of land
for residential and gaming purposes, the Cities would not
want the land considered a ‘‘restoration of lands’’ if the land
was not part of the former Rancheria, even if it bordered on
the Rancheria. Had the Tribe been able to reacquire the
Rancheria, used it solely for gaming, and then acquired,
pursuant to the land-acquisition provision in the Indian Reor-
ganization Act, 25 U.S.C. § 465, other land in a different
county for residential use, the reacquired Rancheria would be
a ‘‘restoration of lands’’ under the Cities’ interpretation even
though the resulting reservation would conflict with the no-
off-reservation-gaming policy of § 20(a).
Even assuming the policy underlying IGRA § 20(a) does
support a narrow reading of the ‘‘restoration of lands’’ excep-
tion, the IGRA exceptions in § 20(b)(2) as well as AIRA itself
all embody policies counseling for a broader reading. The
general purpose of IGRA is ‘‘promoting tribal economic devel-
opment’’ and ‘‘self-sufficiency.’’ Diamond Game Enterprises,
Inc. v. Reno, 230 F.3d at 366–67; 25 U.S.C. § 2702(1). A
reading allowing the Auburn Tribe to participate in that
economic base furthers this purpose of IGRA while a reading
that confines ‘‘restoration of lands’’ to the old reservation, the
Rancheria, (most of which is now in the hands of homeowners,
many non-Indian, and hence unavailable for development)
would likely deny the Tribe this opportunity. The same
objective is apparent in AIRA, which directs the Secretary to
consult with the tribe regarding a plan for economic develop-
ment. See 25 U.S.C. § 1300l–1(a). AIRA’s purpose of re-
establishing the Auburn Tribe as an economically viable
entity would be served by considering the new reservation
established under the Restoration Act a ‘‘restoration of lands’’
allowing it to operate a gaming facility.
Indeed, the exceptions in IGRA § 20(b)(1)(B) serve pur-
poses of their own, ensuring that tribes lacking reservations
when IGRA was enacted are not disadvantaged relative to
17
more established ones. The Cities’ position, that reading the
‘‘restoration of lands’’ exception to refer only to lands identi-
cal or comparable to lands held at the time of termination
prevents ‘‘new’’ tribes from acquiring more rights than ‘‘old’’
ones, would frustrate this purpose. A tribe’s pre-termination
reservation is, as here, not always available. Given the
passage of years between termination and restoration of
federal recognition of tribes, it is likely that earlier reserva-
tion land could not easily be reestablished as a reservation for
a restored tribe. Indeed, the Senate Committee Report to
AIRA points out that only 22 of the 40 acres in the Auburn
Tribe’s old reservation were in Indian hands at the time
AIRA was enacted, see S. Rep. No. 103–340, at 6 (1994). If
the ‘‘restoration of lands’’ exception applied only to such
lands, the ‘‘equalization’’ purpose of the exception would mean
very little in practice. While the Cities’ fallback position that
substantively similar lands can also be a ‘‘restoration’’ would
do less disservice to this purpose, that reading is, for reasons
discussed, not a convincing interpretation of the exception.
Furthermore, the fact that IGRA § 20(b)(1)(B)(ii) provides
a parallel exception for the ‘‘initial reservation of an Indian
Tribe acknowledged by the Secretary’’ supports the broad
reading of the ‘‘restoration of lands’’ exception. Acknowl-
edged tribes, which may or may not have been formally
recognized by the federal government at some point in the
past, are those that gain recognition by administrative, rather
than Congressional, action, see generally 25 C.F.R. pt. 83.
The parallel placement of the two exceptions in the statute, as
well as the analogous situation in which restored and ac-
knowledged tribes find themselves, imply that these excep-
tions should be treated similarly. Yet it would be anomalous
for Congress to confine restored tribes to whatever of their
pre-termination reservation is available while simultaneously
allowing acknowledged tribes to conduct gaming anywhere on
their initial reservation. A far more sensible reading is that
the ‘‘restoration of lands’’ is to a restored tribe what the
‘‘initial reservation’’ is to an acknowledged tribe: the lands
the Secretary takes into trust to re-establish the tribe’s
economic viability.
18
The Cities’ concern is misplaced in maintaining that only a
narrow interpretation of IGRA’s ‘‘restoration of lands’’ excep-
tion will prevent AIRA from granting the Auburn Tribe ‘‘an
unlimited, unquestionable and unreviewable right to acquire
any tract of land of any size anywhere in Placer County as
‘restored’ land and commence operation of a casino,’’ Appel-
lants’ Br. at 27. To the extent that AIRA gives the Secretary
discretion to accept lands into trust within a wide geographi-
cal range, it is not all that different from other statutes
restoring Indian tribes to federal recognition. See, e.g., Pon-
ca Restoration Act, Pub. L. No. 101–484 § 10(c)(1) (1990);
Ysleta del Sur Pueblo and Alabama and Coushatta Indian
Tribes of Texas Restoration Act, Pub. L. No. 100–89
§ 105(g)(2) (1987); Coquille Restoration Act, Pub. L. No.
101–42 § 5(a) (1989); Klamath Indian Tribe Restoration Act,
Pub. L. No. 99–398 § 6 (1986). When Congress has wanted
to limit the geographical range in which a restored tribe’s
reservation can be located, it has done so by specifying a
particular tract of land as the restored tribes’ reservation.
See, e.g., Coos, Lower Umpqua, and Siuslaw Restoration Act,
Pub. L. No. 98–481 § 7 (1984). Indeed, the Secretary enjoys
considerable discretionary authority to acquire land for Indi-
ans under the Indian Reorganization Act, 25 U.S.C. § 465,
which authorizes the Secretary ‘‘in h[er] discretion, to acquire
TTT any interest in lands TTT for the purpose of providing
land for Indians.’’ The Secretary then will have considerable
authority to take land in Placer county into trust, both under
AIRA and the Indian Reorganization Act, regardless of
whether those lands constitute a ‘‘restoration’’ for IGRA
purposes.
The Cities contend, however, that Congress would never
have intended to give the Auburn Tribe such a broad exemp-
tion from the no-community-detriment and governor’s-
consent requirements of § 20(b)(1)(A) as it will have if any
land the Tribe acquires in Placer County is automatically a
‘‘restoration.’’ While the language of AIRA broadly identifies
the entire county as a place in which the Tribe might acquire
lands eligible for gaming, the Cities’ position ignores that the
location and shape of the new reservation is constrained by
departmental regulations. AIRA provides that the Secretary
‘‘may’’ take lands in Placer County in trust. See 25 U.S.C.
19
§ 1300l-(a). Interior Department regulations require the
Secretary to consider numerous factors to guide the exercise
of discretion in deciding whether or not to take particular
lands into trust for a tribe, including ‘‘the need of the TTT
tribe for more land,’’ ‘‘[t]he purposes for which the land will
be used,’’ ‘‘potential conflicts of land use,’’ and ‘‘jurisdictional
problems.’’ See 25 C.F.R. §§ 151.10(b), (c), (f), 151.11(a).
Those regulations also provide that ‘‘as the distance between
the tribe’s reservation and the land to be acquired increases,
the Secretary shall give greater scrutiny to the tribe’s justifi-
cation of anticipated benefits from the acquisition’’ and
‘‘greater weight’’ to jurisdictional concerns. Id. §§ 151.11(b),
(d).
The Cities’ real policy objection is that the 49 acres ulti-
mately selected by the Secretary is not an appropriate site for
gaming. Although they disagree with the Secretary’s deter-
mination in weighing the relevant factors in 25 C.F.R.
§§ 151.10–151.11, the Cities do not contend on appeal that the
Secretary failed to engage in the requisite balancing or acted
arbitrarily or capriciously in applying those factors.
Finally, were there any remaining doubt that Congress
intended IGRA’s ‘‘restoration of lands’’ exception to be read
broadly, to encompass more than a tribe’s former reservation
as of the date of the termination of its federal recognition, the
Cities appear to appreciate that their interpretation would not
prevail. The Indian Canon of statutory construction would
resolve any doubt. The Supreme Court has on numerous
occasions noted that ambiguities in federal statutes are to be
read liberally in favor of the Indians. See generally County
of Yakima v. Confederated Tribes & Bands of Yakima Indian
Nation, 502 U.S. 251, 269 (1992); Montana v. Blackfeet Tribe,
471 U.S. 759, 766 (1985). IGRA is designed to promote the
economic viability of Indian Tribes, and AIRA focuses on
ensuring the same for the Auburn Tribe. In this context, the
Indian canon requires the court to resolve any doubt in favor
of the tribe.
To the extent the Cities contend the canon is inappropriate-
ly applied to laws disfavoring Indians, pointing to IGRA
20
§ 20(a), the Cities continue to overlook the role that IGRA’s
exceptions in § 20(b)(1)(B) play in the statutory scheme,
namely to confer a benefit onto tribes that were landless
when IGRA was enacted. Neither Chickasaw Nation v.
United States, 534 U.S. 84, 93–95 (2001), where the Court
found no ambiguity, nor Sac and Fox Nation v. Norton, 240
F.3d 1250, previously distinguished, which did not invoke the
canon, can assist the Cities here. Moreover, the Cities’
suggestion that the Indian canon is no longer relevant be-
cause it is predicated upon the weakness of, and special trust
responsibilities of the federal government for, American Indi-
ans, conditions no longer true in an age when tribes have
‘‘increasing political clout and sophistication,’’ Appellants’ Br.
at 29–30, ignores that the Supreme Court has applied the
canon even when the federal government is not a party, e.g.,
Blackfeet Tribe, 471 U.S. 759. Hence, even assuming that the
purpose behind the canon is more apposite to the interpreta-
tion of Indian treaties forced upon tribes then lacking legal
sophistication than to third-party suits involving federal stat-
utes, its applicability to ambiguous statutes purporting to
benefit Indians is settled.
Accordingly, we hold, as the Secretary has concluded, in
light of IGRA’s language, structure, and purpose, that the
Auburn Tribe’s land qualifies as the ‘‘restoration of lands’’
under IGRA § 20(b)(1)(B)(iii) even though the land is not
located on the Tribe’s former reservation as of the time the
Auburn Tribe lost federal recognition and is being put to a
different use than the lands on the former reservation, the
Rancheria. Hence, the Secretary did not violate IGRA by
failing to make a no-detriment finding under § 20(b)(1)(A).
Because the Cities lack standing to invoke 25 U.S.C. § 476(f),
which protects tribes against agency decisions that diminish
the privileges and immunities available to one tribe relative to
other federally recognized tribes, see Ass’n of Data Process-
ing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970);
American Federation of Government Employees, AFL–CIO
v. Rumsfeld, 321 F.3d 139, 157–60 (D.C. Cir. 2003), we affirm
the dismissal of the Cities’ IGRA cause of action and, absent
other challenge, we affirm the judgment of the district court.