Citizens Exposing Truth About Casinos v. Kempthorne

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 2007 Decided July 3, 2007

No. 06-5354

CITIZENS EXPOSING TRUTH ABOUT CASINOS,
A MICHIGAN NON-PROFIT CORPORATION,
APPELLANT

v.

DIRK KEMPTHORNE, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES DEPARTMENT
OF THE INTERIOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 02cv01754)

John J. Bursch argued the cause for appellant. On the briefs
were Rebecca A. Womeldorf, Robert J. Jonker, Daniel P.
Ettinger, and Joseph A. Kuiper.

Aaron P. Avila, Attorney, U.S. Department of Justice,
argued the cause for appellees Dirk Kempthorne, et al. With
him on the brief was Todd S. Aagaard, Attorney. Lisa E. Jones,
 2

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney,
entered appearances.

Reid Payton Chambers argued the cause for appellee
Nottawaseppi Band of Huron Potawatomi Indians. With him on
the brief were Mary J. Pavel, Arthur Lazarus, Jr., and Addie C.
Rolnick. Vanessa L. Ray-Hodge entered an appearance.

Michael A. Cox, Attorney General, Attorney General’s
Office of the State of Michigan, Thomas L. Casey, Solicitor
General, and Todd B. Adams, Assistant Attorney General, were
on the brief of amici curiae State of Michigan and Michigan
Governor Jennifer M. Granholm in support of appellee.

Before: SENTELLE, ROGERS and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: In 2002, the Assistant Secretary of
the Bureau of Indian Affairs of the Department of Interior
decided to take 78.26 acres of farmland in Calhoun County,
Michigan into trust for use by the Nottawaseppi Huron Band of
Potawatomi Indians (“the Band”) to construct and operate a
Class III gambling casino under the Indian Gaming Regulatory
Act (“IGRA”), 25 U.S.C. § 2701 et seq. This followed federal
recognition of the Band in 1995. A non-profit Michigan
membership organization — Citizens Exposing Truth About
Casinos (“Citizens”) — sued the Secretary and Assistant
Secretary (hereafter, “the Secretary”), in part challenging the
Secretary’s determination that the proposed site was within the
“initial reservation” exception, id. § 2719(b)(1)(B)(ii), to
IGRA’s general prohibition on gaming on trust land acquired
after October 17, 1988, id. § 2719(a), and thus exempting it
from the community protection provision in § 2719(b)(1)(A)
 3

before opening a casino at the site. Citizens now appeals the
district court’s grant of summary judgment to the Secretary,
contending that in deferring to the Secretary’s interpretation of
the exception the district court ignored both the letter and intent
of Congress. We affirm.

I.

Two statutes are relevant to this appeal, the first authorizing
the Secretary to acquire lands for Indian tribes and the second
authorizing the Secretary to regulate gaming on Indian
reservations. After reviewing these statutes, we turn to the
proceedings underlying this appeal.

A.
Under the Indian Reorganization Act (“IRA”), the Secretary
may acquire lands for the purpose of providing land for Native
Americans. 25 U.S.C. § 465. Title to such land is “taken in the
name of the United States in trust for the . . . tribe or individual
. . . for which the land is acquired.” Id. The Secretary is
authorized to designate such lands as part of the tribe’s
reservation. Id. § 467. Interior Department regulations provide
that the Secretary may make in-trust acquisitions “[w]hen the
Secretary determines that the acquisition of the land is necessary
to facilitate tribal self-determination, economic development, or
Indian housing.” 25 C.F.R. § 151.3(a)(3). The regulations, as
well as the Secretary’s Guidelines on proclamation of
reservations, define a “reservation” as “that area of land over
which [the] tribe is recognized by the United States as having
governmental jurisdiction.” Id. § 151.2(f); 1997 Dep’t of the
Interior Guidelines for Proclamations (“Guidelines”). The
Guidelines state that once such land is granted trust status, the
Secretary can proclaim it to be a reservation and the tribe then
may take advantage of special federal assistance; the
proclamation also clarifies tribal jurisdiction over the trust
 4

property. Guidelines at 2.

IGRA, enacted in 1988, was designed “in large part to
‘provide a statutory basis for the operation of gaming by Indian
tribes as a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments,’” TOMAC,
Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852,
865 (D.C. Cir. 2006) (quoting 25 U.S.C. § 2702(1)), and “to
ensure that the . . . tribe is the primary beneficiary of the gaming
operation.” 25 U.S.C. § 2702(2). A tribe may conduct gaming
only on “Indian lands” within its jurisdiction. Id. § 2710(b)(1),
(d)(1)(A)(I). “Indian lands” are defined as:

(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.

Id. § 2703(4). However, gaming regulated under IGRA may not
be conducted on lands the Secretary acquired in trust for a tribe
after October 17, 1988, unless one of the exceptions applies.
One exception allows gaming when “lands are taken into trust
as part of . . . the “initial reservation” of an Indian tribe
acknowledged by the Secretary under the Federal
acknowledgment process.” Id. § 2719(b)(1)(B)(ii). The statute
does not define “reservation” or “initial reservation.” In 2001,
Congress clarified that the Secretary is authorized under IGRA
to determine whether specific land is a reservation for purposes
of IGRA. See 2002 Dep’t of the Interior and Related Agencies
Appropriations Act, Pub. L. No. 107-63, § 134, 115 Stat. 414,
 5

442-43 (2001) (“Appropriations Act”).1 Afterward, by
Memorandum of Agreement, the Secretary and the National
Indian Gaming Commission, which administers IGRA, 25
U.S.C. § 2706(b)(10), agreed that the Secretary is to determine
whether a tribe meets one of IGRA’s exceptions when the
Secretary decides to take land into trust for gaming. See Mem.
of Agreement between the Nat’l Indian Gaming Comm’n and
the Dep’t of the Interior (Feb. 26, 2007).

IGRA also addresses the effects on the local community
where gaming will be conducted. Unless one of the exceptions
applies, when a tribe wishes to conduct gaming on newly
acquired lands, it must obtain the prior concurrence of both the
Secretary and the appropriate State Governor that operating a
casino on the tribe’s land “would not be detrimental to the
surrounding community.” 25 U.S.C. § 2719(b)(1)(A).

B.
The Band is a descendent of the Potawatomi Tribe of

1
Section 134, Clarification of the Secretary of the Interior’s
Authority Under Sections 2701-2721 of Title 25, United States Code,
provides:

The authority to determine whether a specific area of
land is a “reservation” for purposes of sections
2701-2721 of title 25, United States Code, was
delegated to the Secretary of the Interior on October
17, 1988: Provided, That nothing in this section shall
be construed to permit gaming under the Indian
Gaming Regulatory Act on the lands described in
section 123 of Public Law 106-291 or any lands
contiguous to such lands that have not been taken
into trust by the Secretary of the Interior.

Appropriations Act, § 134, 115 Stat. at 442-43.
 6

Huron, Michigan, which signed treaties with the United States
from 1795 through 1833. It unsuccessfully petitioned for federal
recognition in 1934. Prior to federal recognition in 1995, the
Band had been living on a 120-acre piece of property in Athens
Township, Michigan since the mid-1840s. The property, Pine
Creek, was privately acquired by the Band in the 1840s; as of
1995, fifteen members of the Band were living on it and 183
other members lived within a twenty mile radius of it. From
1845 the Governor of Michigan has arguably held title to the
Pine Creek property on behalf of the Band, but the status of the
property is in dispute because the State claims that it lacks
authority to hold land in trust as a reservation for an Indian tribe.
See Amicus Br. of the State of Mich. at 4. Although the Band
calls the property home, the Band does not exercise
governmental jurisdiction over the Pine Creek property, such as
authority over land use, law enforcement, building codes,
zoning, education, fire service, or judiciary. Neither the
Secretary nor the State has recognized the property as Indian
lands.

On December 11, 1999, the Band submitted an application
for the Secretary to acquire several parcels of land under the
IRA in trust for the Band. Ultimately, the Band only proceeded
with one parcel, a 78.26 acre property known as the Sackrider
property, located in Emmett Township in Calhoun County,
Michigan. In May 2000, the Secretary sent consultation letters
to the state and local governments with regulatory jurisdiction
over the land, and three months later gave notice in the Federal
Register of the intention to acquire the Sackrider property in
trust for the Band, see 67 Fed. Reg. 51,867 (Aug. 9, 2002). The
notice stated that the Band had no trust property at the time of its
federal recognition in 1995 and that on December 13, 2000, the
Associate Solicitor for Indian Affairs had opined that the
Sackrider property was “within the geographical region
anticipated as part of the Band’s land base” and could be
 7

included in the initial proclamation of reservation because it
would meet the requirements of the “initial reservation”
exception in IGRA under 25 U.S.C. § 2719(b)(1)(B)(ii). 67 Fed.
Reg. at 51,867 (citing Trust Acquisition for the Huron
Potawatomi, Inc., Letter of Assoc. Solicitor at 2-3 (Dec. 13,
2000) (“2000 Op. Ltr.”)).

On August 30, 2002, Citizens sued the Secretary, alleging
that: (1) the Secretary had failed to comply with the National
Environment Protection Act, 42 U.S.C. § 4321 et seq.; (2) there
was no valid compact between the Band and the State with
regard to acquisition of the 78.26 acre site; (3) the Secretary’s
authority to acquire land in trust for the Indians violated the non-
delegation doctrine; and (4) the Sackrider property did not
qualify for any of the exceptions to IGRA’s general prohibition
on gaming on trust lands acquired after October 17, 1998. On
motions for summary judgment by the Secretary and by the
Band, as intervenor, the district court granted the Secretary’s
motion on the statutory interpretation issue that is raised by
Citizens on appeal. Observing that Citizens’s “objective is to
delay or, if possible, prevent the construction of the [Band’s]
proposed casino altogether,” Mem. Op. of Apr. 23, 2004 at 5,
the district court noted that Pine Creek’s status as a state
reservation is a matter of some disagreement but that it is
“undisputed that the [Pine Creek] property is not a reservation
under federal law, and therefore does not fall under the purview
of IGRA,” id. at 7. The district court concluded that inasmuch
as the Secretary acts under the IRA in taking land into trust, the
Secretary could reasonably conclude, upon applying the
definition of “reservation” under the IRA regulations, that the
Sackrider property qualified as an “initial reservation” under
IGRA, 25 U.S.C. § 2719(b)(1)(B)(ii). See id. The district court
rejected Citizens’s argument that the Sackrider property could
not be a “reservation” because it was not going be a residence
for the Band, noting the absence of any such statutory or
 8

regulatory requirement for land designated a reservation. See id.
Citizens appeals, and our review of the grant of summary
judgment is de novo. See Wilson v. Peña, 79 F.3d 154, 160 n.1
(D.C. Cir. 1996).

II.

The Band, an appellee, contends that Citizens lacks
prudential standing to challenge the Secretary’s decision to take
the Sackrider property into trust as the Band’s “initial
reservation,” asking the court to revisit the decision in TOMAC
v. Norton, 193 F. Supp. 2d 182, 190 (D.D.C. 2002), aff’d, 433
F.3d 852, 860 (D.C. Cir. 2006). In that case, “Taxpayers of
Michigan Against Casinos” included as members residents who
lived adjacent to another tribe’s proposed casino site. Through
TOMAC they sought injunctive and declaratory relief against
the Secretary on grounds similar to those relied on by Citizens.
TOMAC, 433 F.3d at 857-58. The district court rejected the
challenge to TOMAC’s prudential standing, TOMAC, 193 F.
Supp. 2d at 187, citing Florida Audubon Society v. Bentsen, 94
F.3d 658, 672 (D.C. Cir. 1996) (en banc), and Humane Society
of the United States v. Hodel, 840 F.2d 45, 53-59 (D.C. Cir.
1988). This court summarily affirmed this ruling, TOMAC, 433
F.3d at 860, also citing National Credit Union Administration v.
First National Bank & Trust Co., 522 U.S. 479, 492 (1998).
The court is bound by its precedent absent en banc review.
LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc).

The Band maintains that private citizens seeking to restrict
tribal gaming because of its impact on surrounding communities
are not within the zone of interests protected by IGRA’s “initial
reservation” exception. In its view, the exception was intended
to ensure that tribes not recognized in 1988 were not
disadvantaged relative to tribes with established land bases in
their ability to conduct gaming, and it is not concerned with
 9

impacts on surrounding communities. The Band focuses on the
fact that Congress did not require the Secretary in applying this
exception to determine whether gaming on lands taken into trust
would “be detrimental to the surrounding community.”

Contrary to the Band’s view, Citizens’s claim is sufficiently
congruent with congressional purpose because it seeks to
enforce the provision that Congress included regarding affected
communities. See Mova Pharm. Corp. v. Shalala, 140 F.3d
1060, 1075 (D.C. Cir. 1998). Inclusion of this provision
demonstrates that Congress could not have intended to preclude
efforts to enforce it, even if enforcement might prevent a
landless tribe from gaining the benefits of IGRA. See Block v.
Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984). The rigors of
prudential standing are not so onerous as to preclude Citizens’s
challenge. See Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 400-
01 (1987). The Band’s reliance on Grand Council of the Crees
v. FERC, 198 F.3d 950 (D.C. Cir. 2000), is misplaced; in that
case, the court held that the non-economic, non-competitive
injury alleged by the Council was outside the zone of interests
of the Federal Power Act, 15 U.S.C. § 824d, an entirely different
statutory scheme that did not include a provision for community
protection comparable to that in IGRA, see Grand Council, 198
F.3d at 956; see also Bennett v. Spear, 520 U.S. 154, 175-76
(1997).

Accordingly, we hold that Citizens has prudential standing
to challenge the Secretary’s interpretation of IGRA’s “initial
reservation” exception.

III.

Citizens contends that it simply seeks to ensure that the
Band complies with the community protection provision of
IGRA, 25 U.S.C. § 2719(b)(1)(A), before operating a casino.
 10

For that provision to apply, Citizens must demonstrate that the
Secretary’s decision to take the Sackrider Property into trust
under the IRA and designate it under IGRA as the Band’s
“initial reservation” was based on an impermissible
interpretation of the statute. We first address the nature of the
deference due to the Secretary’s interpretation of the “initial
reservation” exception before turning to Citizens’s reasons for
contending that no deference is due.

A.
Usually, where the agency is interpreting a statute that
Congress has authorized it to implement, the court’s review
follows the familiar two-step analysis in Chevron, U.S.A., Inc.
v. NRDC, 467 U.S. 837 (1984). If Congress has spoken to the
question at issue, then that is the end of the matter. Id. at 842-
43. But if Congress has left a gap in the statute or the text of the
statute is ambiguous, then the court must determine if the
agency’s interpretation is permissible, and if so, the court must
defer to it. Id. at 843. Citizens contends, however, that no
Chevron deference is due to the Secretary’s interpretation of
IGRA’s “initial reservation” exception for several reasons.

First, Citizens maintains no Chevron deference is due
because the Gaming Commission, not the Secretary, is charged
with administering IGRA. This ignores both the Secretary’s
substantial role in administering IGRA, most relevantly here in
determining whether an exception to IGRA’s gaming ban
applies, and Congress’s action in 2002 eliminating any doubt
about the Secretary’s authority to determine whether specific
land is a “reservation” and overruling the legal premise of the
Tenth Circuit’s decision in Sac & Fox Nation v. Norton, 240
F.3d 1250 (10th Cir. 2001), not to defer to the Secretary. See
Appropriations Act, supra note 1. To the extent that Citizens
relies on Citizens Against Casino Gambling in Erie County v.
Kempthorne, 471 F. Supp. 2d 295 (W.D.N.Y. 2007), which
 11

relied on Sac & Fox, it is without persuasive force. This court
has declined to follow the Tenth Circuit’s lead. See City of
Roseville v. Norton, 348 F.3d 1020, 1029 (D.C. Cir. 2003).

Second, Citizens maintains that no Chevron deference is
due because the Secretary’s interpretation does not carry the
force of law. Citizens relies on Christensen v. Harris County,
529 U.S. 576, 586 (2000), where the Supreme Court held that an
opinion letter was due no Chevron deference because it did not
constitute the official exercise of delegated authority to enforce
the Federal Labor Standards Act (“FLSA”) against a particular
employer. In that case, employees had sued their employer for
alleged violations of the FLSA and sought to rely on the opinion
letter to the employer from the Acting Administrator of the
Wage and Hour Division of the Labor Department that stated
that in the absence of an agreement with the employees,
employers could not require employees to use compensatory
time. The Supreme Court observed:

[W]e confront an interpretation contained in an opinion
letter, not one arrived at after, for example, a formal
adjudication or notice-and-comment rulemaking.
Interpretations such as those in opinion letters – like
interpretations contained in policy statements, agency
manuals, and enforcement guidelines, all of which lack
the force of law – do not warrant Chevron-style
deference.

Id. at 587.

Neither the Supreme Court nor this court has read
Christensen to have limited Chevron deference to rulemakings
and formal adjudications only, much less to preclude Chevron
deference to situations involving application of an agency’s
delegated authority to particular facts. In United States v. Mead
 12

Corp., 533 U.S. 218, 231 (2001), the Court acknowledged that
even in the absence of notice and comment or administrative
formality there may be reasons for according Chevron deference
where an agency action has the force of law; see also id. at 231
n.13 (citing NationsBank of N.C., N.A. v. Variable Annuity Life
Ins. Co., 513 U.S. 251, 256-57 (1995)). See Barnhart v. Walton,
535 U.S. 212, 222 (2002). In FEC v. National Rifle Ass’n of
America, 254 F.3d 173, 186 (D.C. Cir. 2001), this court held that
advisory opinions of the Federal Election Commission (“FEC”)
that reflected its considered judgment made pursuant to
congressionally delegated lawmaking power and that had
binding legal effect were due Chevron deference. Contrasting
the formality of the FEC opinion letters, the court noted that the
Labor Department letter in Christensen neither bound the agency
nor the requesting party and was not the result of a statutorily-
created decision-making process. Id. The court further noted
that virtually every post-Christensen decision that had declined
to give Chevron deference did so in view of the informal agency
procedures that were involved. Id. (citing cases). Other circuits
have similarly understood the limits of Christensen’s holding.
See Heimmermann v. First Union Mortgage Corp., 305 F.3d
1257, 1261-62 (11th Cir. 2002); Miami Univ. Wrestling Club v.
Miami Univ., 302 F.3d 608, 615 (6th Cir. 2002); Schuetz v. Banc
One Mortgage Corp., 292 F.3d 1004, 1012 (9th Cir. 2002); see
also Navajo Nation v. Dep’t of Health & Human Servs., 285 F.3d
864, 871-72 (9th Cir. 2002), aff’d en banc on other grounds, 325
F.3d 1133 (9th Cir. 2003).

Christensen is not controlling here. The Secretary’s
determination that the “initial reservation” exception applied to
the Sackrider property was intended to have the force of law, as
it formed the basis for the Secretary’s decision under the IRA to
acquire the property in trust for the Band. Citizens challenges
the Secretary’s exercise of express authority under the IRA and
IGRA to acquire land in trust and proclaim reservations and to
 13

determine what constitutes a “reservation.” Cf. Pharm. Research
& Mfrs. of Am. v. Thompson, 362 F.3d 817, 822 (D.C. Cir 2004).
The Secretary gave formal public notice in the Federal Register
of the determination and the basis for it, including the opinion
letter on which the Secretary relied. Although publication in the
federal register is not in itself sufficient to constitute an agency’s
intent that its pronouncement have the force of law, see
Christensen, 529 U.S. at 587, where, as here, that publication
reflects a deliberating agency’s self-binding choice, as well as a
declaration of policy, it is further evidence of a Chevron-worthy
interpretation. As such, given the formal decision making
process involved, Chevron applies.

B.
In deciding to acquire the Sackrider property in trust for the
Band, the Secretary relied on the opinion of the Acting Associate
Solicitor of the Division of Indian Affairs. The opinion, set forth
in a letter to the Midwest Regional Director of the Bureau of
Indian Affairs, stated that the first time a federal reservation is
proclaimed for the Band, it constitutes the “initial reservation”
under 25 U.S.C. § 2719(b)(1)(B)(ii). 2000 Op. Ltr. at 2-3. The
land must be placed in trust at or before the time of initial
proclamation, and an “initial reservation” may only be requested
once. The opinion letter explained that these procedures would
put a newly recognized tribe in a position similar to tribes that
had land in trust before the ban established in IGRA for lands
acquired in trust after October 17, 1988. On appeal the Secretary
maintains that this analysis rests upon the plain meaning of the
phrase “initial reservation” to mean the first land taken into trust
for a tribe under federal law and proclaimed a “reservation”
under 25 U.S.C. § 467. This reading is consistent, the Secretary
points out, with IGRA’s purpose and the “initial reservation”
exception because, as this court has recognized, IGRA’s
exception “ensur[es] that tribes lacking reservations when IGRA
was enacted are not disadvantaged relative to more established
 14

ones.” City of Roseville, 348 F.3d at 1030. It is also consistent,
the Secretary notes, with the “Indian canon of construction,”
which provides that ambiguous provisions enacted for the benefit
of the Indians are to be liberally construed in their favor. Id. at
1032.

Against this interpretation Citizens offer two reason why the
Secretary’s interpretation of the “initial reservation” exception
is impermissible: First, the Sackrider property is not a
“reservation” because a “reservation” is only land used for
residences of tribal members, and the Band intends to use the
property for gaming; second, the Pine Creek property is the
Band’s “initial reservation,” making the Sackrider property its
second “reservation” at best. Neither reason survives scrutiny.

As support for its first reason, Citizens purports to find
support for its interpretation of “reservation” as meaning the
tribe’s residence in Felix S. Cohen’s Handbook of Federal
Indian Law (1982 ed.) (“HANDBOOK”). The Secretary observes
that that edition does not reflect the official position of the
United States or the Secretary because it was contracted to the
University of New Mexico School of Law, which ultimately
privately copyrighted it. Appellees’ Br. at 40. In any event,
Citizens relies on a sentence stating that in the 1850s “the
modern meaning of Indian reservation emerged, referring to land
set aside under federal protection for the residence of tribal
Indians.” HANDBOOK, supra, at 34. In doing so Citizens does
not acknowledge that the sentence is part of a historical
discussion about the genesis of the term “Indian country” as used
in 18 U.S.C. § 1151(a), which governs criminal jurisdiction and
does not limit a “reservation” to land with houses. The
Handbook explains that the term ”reservation” originally meant
land a tribe “reserved” to itself under a treaty, HANDBOOK,
supra, at 34-35 & n.66, and that the term broadened to include
lands that the United States set aside from public lands not
 15

originally owned by the tribes for the tribes’ use and occupation.
Id. The term thus expanded to include “land set aside under
federal protection for the residence of tribal Indians.” Id.

Although this explanation appears at first to lend some
support for Citizens’s interpretation of “reservation,” the
Handbook concludes that the “use of the term ‘reservation’ from
public land law soon merged with the treaty use of the word to
form a single definition describing federally-protected Indian
tribal lands without any particular dependence on source. This
definition of the term ‘reservation’ has since been generally used
and accepted.” HANDBOOK, supra, at 34-35 n.66. Tellingly, in
the “generally used and accepted” definition of “reservation,”
there is no reference to a requirement that the land be used as
housing in order to qualify as a “reservation.”

Second, Citizens relies on the Tenth Circuit’s decision in
Sac & Fox, 240 F.3d 1250, not to defer to the Secretary’s
interpretation of “reservation.” But Congress overturned that
decision, see supra note 1, and even if Congress has not so acted,
this court has declined to follow Sac & Fox, see City of
Roseville, 348 F.3d at 1029-30. Contrary to Citizens’s
suggestion that a later public law cannot amend an earlier
enactment without actually changing the language of the statute,
Section 134 is a free-standing statute that is to be given legal
effect. See Mail Order Ass’n of Am. v. U.S. Postal Serv., 986
F.2d 509, 515 (D.C. Cir. 1993).

Third, in Citizens’s view, the “established meaning” of
“reservation” as meaning residence is consistent with Congress’s
intent. It says IGRA was designed to help minimize the “ill-
effects of gambling,” protect surrounding communities from
gaming on Indian lands, and prohibit gaming on after-acquired
lands unless the Secretary and the State governor determine
gaming will not have a detrimental effect on the surrounding host
 16

community. Appellant’s Br. at 31-33. It is true that Congress
intended for the Secretary to take into account the concerns of
affected communities by requiring, in certain situations
involving newly-acquired tribal land, that the Secretary and State
governor concur that a casino on the tribe’s land “would not be
detrimental to the surrounding community.” 25 U.S.C.
§ 2719(b)(1)(A). But this court has recognized that Congress’s
overarching intent was “in large part to ‘provide a statutory basis
for the operation of gaming by Indian tribes as a means of
promoting tribal economic development, self-sufficiency, and
strong tribal governments,” TOMAC, 433 F.3d at 865, and to do
so “to ensure that the Indian tribe is the primary beneficiary of
the gaming operation,” 25 U.S.C. § 2702(1)-(2). Congress’s
primary purpose in enacting IGRA is evident as well from the
inclusion of several exceptions to the gaming prohibition on
after-acquired lands in order to allow newly acknowledged or
restored tribes to engage in gaming on par with other tribes. See
City of Roseville, 348 F.3d at 1030. So understood, as the
Secretary points out, Citizens has overemphasized one provision
in the overall structure of IGRA, which is insufficient to
demonstrate no deference is due to the Secretary’s statutory
interpretation.

Fourth, Citizens maintains that the Secretary improperly
seeks to incorporate regulations promulgated under the IRA into
IGRA. But Citizens offers no reason, and we find none, why the
Secretary could not reasonably view the two statutes in tandem.
Congress enacted IGRA against the backdrop of its prior
authorization in the IRA to the Secretary to take lands in to trust
and to proclaim them a “reservation” for a tribe. As the district
court pointed out, because the Secretary takes the lands in trust
for a tribe under the IRA, it is consistent with IGRA for the
Secretary to look to the IRA implementing regulations in
concluding that a federally proclaimed “reservation” under the
IRA would be a “reservation” for the purpose of IGRA’s “initial
 17

reservation” exception. Cf. TOMAC, 433 F.3d at 864-65;
Roseville, 348 F.3d at 1031. To the extent that Citizens contends
that applying the IRA’s definition of “reservation” is inconsistent
with IGRA’s definition of “Indian lands,” because Congress
intended the terms to have different meanings, it fails to show
that the Secretary treats the concepts of “reservation” and trust
lands interchangeably. Compare 25 C.F.R. § 151.2(d) (defining
“trust land”), with id. § 151.2(f) (defining “Indian reservation”).
As the Secretary points out, “the Sackrider property would not
qualify as a reservation until the Band applied for and obtained
a reservation proclamation under 25 U.S.C. § 467.” Appellees’
Br. at 48.

Fifth, Citizens maintains that the Secretary “upset[s] the
careful parity intended by IGRA” because “a newly
acknowledged tribe would be in a far better position than an
existing tribe from the standpoint of selecting a casino site.”
Appellant’s Br. at 35. This argument might be more problematic
had Congress not made clear its intent in enacting IGRA. As the
court noted in City of Roseville, without the exceptions a tribe
recognized prior to IGRA’s enactment would have had
opportunities to acquire new trust lands that a post-IGRA newly-
federally recognized tribe would not have had. 348 F.3d at 1030.
The Secretary persuasively explains that the purpose of the
“initial reservation” exception is not to create parity in selecting
a casino site, but rather “to ‘grandfather’ certain lands acquired
after IGRA by treating them similarly to lands held by tribes
already recognized at the time IGRA was adopted.” 2000 Op.
Ltr. at 3. This thereby ensures that such tribes are not precluded
from gaming. The Senate Committee on Indian Affairs reported
in describing IGRA’s exceptions that they were meant to set
“forth policies with respect to lands acquired in trust after
[IGRA’s] enactment.” S. REP. NO. 100-446, at 20 (1988),
reprinted in 1988 U.S.C.C.A.N. 3071, 3090; no House Report on
this legislation was submitted. Citizens’s interpretation thus
 18

misconstrues the purpose of the “initial reservation” exception
and incorrectly suggests that a newly recognized tribe may select
any piece of land for its casino site; under the IRA, the land must
still be acquired in trust by the Secretary whose determination is
based on a number of factors. See 25 C.F.R. pt. 151.

In rejecting Citizens’s first reason for denying deference to
the Secretary’s interpretation, then, we conclude that Citizens
fails to demonstrate that the word “reservation” has an
established meaning that would limit it to lands used for tribal
housing. We find no basis on which to conclude that the word
“reservation” is unambiguous and has the asserted rigid meaning
in the United States Code, Ariz. Pub. Serv. Co. v. EPA, 211 F.3d
1280, 1293 (D.C. Cir. 2000). Because IGRA was designed
primarily to establish a legal basis for Indian gaming as part of
fostering tribal economic self-sufficiency, not to respond to
community concerns about casinos, see TOMAC, 433 F.3d at
865; City of Roseville, 348 F.3d at 1030, it would appear to
follow that the Secretary’s interpretation that the “initial
reservation” exception includes lands acquired in trust by the
United States for a tribe and proclaimed a “reservation” by the
Secretary under the IRA for use for a casino is permissible under
Chevron.

Citizens’s second reason for not according deference to the
Secretary’s interpretation focuses on the fact that the Pine Creek
property has functioned as the Band’s “reservation” for more than
120 years, thus making Sackrider property the Band’s second
reservation. This reason conflates the question of the Band’s
historical home with the inquiry into the land’s status for the
purposes of IGRA, which are two distinct inquiries. While the
Band lived on the Pine Creek land during that time, there is some
dispute, as the district court noted, with regard to the status of the
Pine Creek property. Apparently, the land was given to the
Governor of Michigan to hold for the Band, but the State claims
 19

that the Governor has no authority to hold land as a “state
reservation” for a tribe. See Amicus Br. of the State of Michigan
at 4. Citizens points to no legal basis on which this court could
conclude that there is such a thing as a “state reservation” under
Michigan law. Although Citizens points to statements by the
Interior Department during the course of considering whether to
grant the Band’s application for federal recognition that the Pine
Creek property is an official state reservation, see DEP’T OF THE
INTERIOR, HISTORICAL REPORT ON HURON POTAWATOMI, INC. 4,
66 (1995), the Secretary points out that at that time the
Department was not making an official finding regarding the state
trust status of the Pine Creek property and the Department was
aware of the long-standing controversy over the status of the Pine
Creek property, id. at 66-67, 139-44.

The relevant inquiry is the status of the Pine Creek property
under federal law. Citizens has failed to show that Pine Creek
has any. It is undisputed that the United States does not hold the
Pine Creek property in trust, that it is neither a federal reservation
nor has it been proclaimed a “reservation” pursuant to 25 U.S.C.
§ 467, and that the Band does not exercise governmental
authority over the property as is required, see id. § 2703(4)(B).
In enacting the “initial reservation” exception, Congress did not
indicate that it intended to include a state reservation over which
a tribe did not exercise governmental jurisdiction. To the
contrary, the structure of IGRA’s prohibition on gaming on after-
acquired lands and its exceptions indicate that Congress’s frame
of reference was federal reservations. The gaming prohibition in
Section 2719(a) applies to lands acquired by the Secretary in trust
for the benefit of a tribe after October 17, 1988, while
Section 2719(b)(1)(B)(ii) makes subsection (a) inapplicable when
such lands are taken, by the Secretary, as part of an “initial
reservation” “under the Federal acknowledgment process,” 25
U.S.C. § 2719(b)(1)(B)(ii). This statutory structure is
incompatible with Citizens’s position that Congress intended the
 20

“initial reservation” exception to include state reservations, and
would leave the Band without an “initial reservation” on which
to game under IGRA — a result contrary to the rationale of the
exception. Whether or not the Pine Creek property is held in trust
by the State for the Band thus becomes irrelevant.

Moreover, Citizens’s view would lead to anomalous results.
It would be a remarkable proposition, the Secretary suggests, to
conclude that lands to which the State of Michigan holds title,
assuming Pine Creek were a state reservation within IGRA’s
“initial reservation” exception, would be subject to IGRA.
Where Congress intended statutes to apply to both federal and
state reservations, it has so stated in the statutory text. See, e.g.,
7 U.S.C. § 1926(a)(1); id. § 2662(a); 29 U.S.C. § 741(a); 42
U.S.C. § 2991b(a). Although Citizens points to provisions that
refer to “federal Indian reservations”2 or “Indian reservations
under the jurisdiction of the United States,”3 Citizens has pointed
to no federal statute that uses the term “reservation” that has been
applied to both federal and state reservations. As such, the
Secretary has the better argument: When Congress intends a
statute to apply to state reservations it ordinarily says so.

Ultimately, however, Citizens’s view that the Sackrider
property is a second “reservation” illustrates that Congress’s use

2
See, e.g., 23 U.S.C. § 101(a)(25) (referring to “nontaxable
Indian Lands, or other Federal reservations”); id. § 202(b)(1)(A)
(same); 25 U.S.C. § 1644(a) (referring to “Federal Indian reservations
and trust areas”); id. § 1678(b)(referring to “Federal reservations”); id.
§ 1683 (referring to “Federal Indian reservation”); 30 U.S.C.
§ 1291(9) (same); id. § 185(b)(1) (referring to “Federal reservation”).
3
See, e.g., 7 U.S.C. § 1985(e)(1)(A)(ii) (referring to “any
Indian reservation under the jurisdiction of the United States”); 18
U.S.C. § 1151 (same); 23 U.S.C. § 402(i)(4)(A) (same); 25 U.S.C. §
3902(3)(A) (same); 33 U.S.C. § 1377(h)(1) (same).
 21

of the word “reservation” is ambiguous. The Secretary could
reasonably conclude that the “initial reservation” exception of
IGRA is to be read together with the “new Indian reservations”
provision of Section 467 and that the “initial reservation” for
purposes of Section 2719 is the land identified in the initial
reservation proclamation under Section 467 after the tribe
receives federal recognition. Here, the Sackrider property is
included in the proposed reservation proclamation under Section
467 and thus qualifies as an “initial reservation” under Section
2719. Further, as IGRA is designed to promote the economic
viability of Indian Tribes, the Indian canon of statutory
construction requires the court to resolve any doubt in favor of
the Band. See City of Roseville, 348 F.3d at 1032. 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). Doing so avoids what the
Secretary characterizes as another remarkable proposition
whereby a state, not the Secretary, could create a tribe’s “initial
reservation” for the purposes of IGRA notwithstanding the
“independent Federal regulatory authority for gaming on Indian
lands” created in IGRA, 25 U.S.C. § 2702(3).

Accordingly, because the Secretary’s interpretation of
IGRA’s “initial reservation” exception is due deference under
Chevron and is a permissible interpretation that is consistent with
the Indian canon of statutory construction, we affirm the grant of
summary judgment to the Secretary.