RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Grand Traverse Band v. No. 02-1679
ELECTRONIC CITATION: 2004 FED App. 0151P (6th Cir.) Office of U.S. Attorney
File Name: 04a0151p.06
Before: MARTIN and CLAY, Circuit Judges; MILLS,
District Judge.*
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ COUNSEL
GRAND TRAVERSE BAND OF X ARGUED: John M. Charamella, OFFICE OF THE
OTTAWA AND CHIPPEWA - ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
- Riyaz A. Kanji, KANJI & KATZEN, Ann Arbor, Michigan,
INDIANS, for Appellee. ON BRIEF: John M. Charamella, OFFICE
- No. 02-1679
Plaintiff-Appellee, - OF THE ATTORNEY GENERAL, Lansing, Michigan, for
> Appellant. Riyaz A. Kanji, Phillip F. Katzen, KANJI &
,
v. KATZEN, Ann Arbor, Michigan, John F. Petoskey, GRAND
- TRAVE R S E BA N D LEGAL DEPARTMENT,
- Peshawbestown, Michigan, for Appellee.
OFFICE OF THE U.S. -
ATTORNEY FOR THE WESTERN - _________________
DISTRICT OF MICHIGAN , -
Defendant, - OPINION
- _________________
-
STATE OF MICHIGAN , - CLAY, Circuit Judge. The State of Michigan, the
Intervenor-Appellant. - intervenor in this litigation, appeals the April 22, 2002, order
- of the district court, declaring that it is permissible for the
N Grand Traverse Band of Ottawa and Chippewa Indians (“the
Appeal from the United States District Court Band”) to conduct casino-style gaming at a site which is
for the Western District of Michigan at Grand Rapids. located off of the Band’s initial reservation and which was
No. 96-00466—Douglas W. Hillman, District Judge. acquired and placed in trust for the Band after the enactment
of the Indian Gaming Regulatory Act, 25 U.S.C. § 2710 et
Argued: March 10, 2004 seq. (“IGRA”), pursuant to an exception for such gaming on
lands taken into trust as part of the restoration of lands for an
Decided and Filed: May 24, 2004 Indian tribe that is restored to federal recognition, 25 U.S.C.
*
The Hon orable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
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§ 2719(b)(1)(B)(iii). For the reasons that follow, we relationship, the Band experienced increasing poverty, loss of
AFFIRM the well-reasoned decision of the district court. land base and depletion of the resources of its community.
I Between 1872 and 1980, the Band continually sought to
regain its status as a federally recognized tribe. The Band’s
A. Substantive Facts1 efforts succeeded in 1980 when it became the first tribe
“acknowledged” by the Secretary of the Interior pursuant to
The Band is a federally recognized Indian tribe presently the federal acknowledgment process, 25 C.F.R. Part 54 (now
maintaining a government-to-government relationship with 25 C.F.R. Part 83). On January 17, 1984, the Department of
the United States. The Band previously maintained a the Interior declared a single 12.5 acre parcel as the initial
government-to-government relationship with the United reservation of the Band. 49 Fed. Reg. 2025 (Jan. 17, 1984).
States from 1795 until 1872, and is a successor to a series of The history of the Band’s original recognition, executive
treaties with the United States in 1795, 1815, 1836 and 1855. termination and later re-recognition is essentially parallel to
In 1872, then-Secretary of the Interior, Columbus Delano, that of the Pokagon Band of Potawatomi Indians, the Little
improperly severed the government-to-government Traverse Bay Bands of Odawa Indians, and the Little River
relationship between the Band and the United States, ceasing Band of Ottawa Indians. All three tribes were parties to the
to treat the Band as a federally recognized tribe. This same series of treaties and the same termination by Secretary
occurred because the Secretary had misread the 1855 Treaty Delano in 1872.
of Detroit, 10 Stat. 591.2 Following termination of the
On April 20, 1989, the Band acquired title to a parcel of
land in Whitewater Township, Grand Traverse County,
1
The following description is taken fro m the d istrict court’s Michigan, that is commonly referred to as the “Turtle Creek”
memorand um opinion in Grand Traverse Band of Ottawa & Chippewa site. Located on the east shore of Grand Traverse Bay, Turtle
Indians v. Office of the U.S. Attorney of the W. Dist. of Mich., 198 F. Creek is at the heart of the region that comprised the core of
Supp. 2d 920 , 924-26 (W .D. Mich. 2002 ) (“Grand Traverse Band II”).
The relevant facts in this case are undisputed.
the Band’s aboriginal territory and was historically important
to the economy and culture of the Band. Acquisition of the
2
Henry Schoolcraft, who negotiated the 1836 Tre aty of Washington
Turtle Creek site was important for the Band to maintain a
on behalf of the United States, combin ed the Ottawa and Chippewa connection to the east shore region and to provide services
nations into a jo int political unit solely for purposes of facilitating the and economic development to its members located on the east
negotiation of that treaty. In the years that followed, the Ottawas and shore. Although the Turtle Creek site is not located within or
Chippewas vociferously comp lained about being joined together as a contiguous to the Band’s last recognized reservation, it is
single political unit. To address their complaints, the 1855 Treaty of
Detroit contained language dissolving the artificial joinder of the two
tribes. This language, however, was not intended to terminate federal
recognition of either tribe, but to permit the United States to deal with the
Ottawas and the Chippewas as separate political entities. Ignoring the terminated.” Letter from Secretary of the Interior Delano to Commission
historical context of the treaty language, Secretary Delano interpreted the of Indian Affairs at 3 (M ar. 27 , 1872). Beginning in that year, the
1855 treaty as providing for the d issolution of the trib es once the annuity Department of the Interior, believing that the federal government no
paym ents it called for were completed in the spring of 1872, and hence longer had any trust obligations to the tribes, ceased to recognize the
decreed that upon finalization of those payments “tribal relations will be tribes either jointly or sep arately.
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within the lands that the Band ceded to the United States by action against the U.S. Attorney for the Western District of
the Treaty of 1836. The trust application for the Turtle Creek Michigan. The complaint sought a declaration concerning the
site did not indicate that it was being acquired for gaming legality of the Class III (casino-style) gaming being
purposes, though it did specify that it may be used for future conducted at Turtle Creek. The United States filed a
economic development. The site was placed into federal trust counterclaim, seeking to declare the Turtle Creek facility
on August 8, 1989. illegal and to enjoin further gaming at the facility. The State
of Michigan was permitted to intervene as a defendant and to
In August 1993, the Band entered into a tribal-state gaming file a complaint seeking to declare the operations illegal under
compact with the State of Michigan pursuant to the IGRA, 25 the tribal-state compact.
U.S.C. § 2710, for Class III (casino-style) gaming on
reservation lands. The compact is virtually identical to those The State contended that the Turtle Creek casino operation
signed between the State and six other Indian tribes on the is illegal because the IGRA, 25 U.S.C. § 2719, bars casino
same day. The United States Department of the Interior gaming on tribal lands taken into trust after October 17, 1988
approved the compact under the IGRA’s procedures. The (which is the case with Turtle Creek), unless the land meets
Michigan House of Representatives and the Michigan Senate one of the exceptions set forth in § 2719. The State argued
approved the compacts by concurrent resolution on that Turtle Creek does not meet any of the § 2719 exceptions,
September 21, 1993 and September 30, 1993, respectively. and, consequently, casino-style gaming is unlawful, absent a
The compacts became effective on November 30, 1993, when determination by the Secretary of the Interior and the consent
the Secretary of the Interior published his approval of the of the Governor of Michigan, that the casino would be in the
compacts in the Federal Register. 58 Fed. Reg. 63,262 best interests of the tribe and its members and would not be
(1993). detrimental to the surrounding community. The Band has not
sought such a determination from the Secretary, nor the
On June 13, 1994, the National Indian Gaming consent of the Governor, insisting that the Turtle Creek
Commission approved the Band’s Gaming Code pursuant to location satisfies one of the § 2719 exceptions.
25 C.F.R. §§ 522.6 and 522.8. In accordance with the Band’s
Gaming Code, the Grand Traverse Band Gaming Commission The Band’s original complaint asserted that the gaming
issued a license authorizing casino-style gaming at the Turtle prohibition contained in 25 U.S.C. § 2719 does not apply
Creek site. The Band opened its Turtle Creek Casino on June when a Tribe has a valid tribal-state compact. Following the
14, 1996. The casino’s operations now employ hundreds of decision of this Court in Keweenaw Bay Indian Community
tribal members and fund hundreds of tribal government v. United States, 136 F.3d 469 (6th Cir. 1998), the Band
positions responsible for administering programs such as abandoned this claim, amended its complaint, and asserted
health care, elder care, child care, youth services, education, that the Turtle Creek site is “within or contiguous to the
housing, economic development and law enforcement. boundaries of the reservation of the Indian tribe on October
17, 1988,” pursuant to § 2719(a)(1), and thus was exempted
B. Procedural History from the prohibition against casino-style gaming. The United
States then moved for a preliminary injunction against
On June 14, 1996, the day the Band commenced casino continued gaming operations at Turtle Creek. In response, the
operations at Turtle Creek, it brought a declaratory judgment Band proffered additional theories to support its exemption
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from the prohibition: (1) the Turtle Creek land is exempt restoration of lands for an Indian tribe that is restored to
because it had been taken into trust as part of “the initial Federal recognition.” 25 U.S.C. § 2719(b)(1)(B)(iii). To
reservation of an Indian tribe acknowledged by the Secretary” reach this conclusion, the NIGC answered two questions:
of Interior, pursuant to § 2719(b)(1)(B)(ii) and (2) the land is (1) whether the Band became an Indian tribe that “is restored
exempt because it constituted part of “the restoration of lands to Federal Recognition” when the Secretary of the Interior
for an Indian tribe that is restored to Federal recognition” invoked an administrative process to formally “acknowledge”
pursuant to § 2719(b)(1)(B)(iii). the tribe in 1980; and (2) whether the Turtle Creek lands were
taken into trust as part of the restoration of lands for the Band.
On March 18, 1999, the district court denied the United In answering both questions in the affirmative, the NIGC
States’ motion in a published opinion. See Grand Traverse reasoned as follows:
Band of Ottawa & Chippewa Indians v. United States
Attorney for the W. Dist. of Mich., 46 F. Supp.2d 689 (W.D. The Band had a government-to-government relationship
Mich. 1999) (“Grand Traverse Band I”). The district court with the United States until 1876 at which time BIA
held that the government had not demonstrated a substantial officers improperly terminated the federal trust
likelihood of success in proving that the Turtle Creek land relationship by administrative action. The clear import
does not satisfy the “restoration of lands” exemption, 25 of acknowledgment of the [Band] under federal
U.S.C. § 2719(b)(1)(B)(iii). Id. at 702-04. The district court acknowledgment procedures was to “undo” the effect of
further stayed the litigation, pending a reference of the matter the improper administrative action and to resume a
to the National Indian Gaming Commission (“NIGC”). Id. at proper government-to-government relationship between
706. The court found that it could benefit from the NIGC’s [the Band] and the federal government. The result was
determination of both factual and legal issues relating to the “restoration” under the plain meaning of that term.
application of the “restoration of lands” exception. Id. at 707- Accordingly, it is difficult to argue that the [Band] is not
08. The State appealed the district court’s denial of the a “restored tribe” if the term should be interpreted
preliminary injunction, but this Court dismissed the appeal according to its plain meaning. …The Band has
because the State, as an intervenor, had not joined with the assembled substantial evidence tending to establish that
United States’ motion for preliminary injunction, and the Turtle Creek site has been important to the tribe
therefore lacked standing to pursue the appeal. See Grand throughout its history and remained so immediately on
Traverse Band of Ottawa & Chippewa Indians v. Office of the resumption of federal recognition.…The site is within the
U.S. Attorney for the W. Dist. of Mich., No. 99-1584 (6th Cir. area ceded to the United States by the ancestors of the
May 17, 2001). present [Band].…The region surrounding the casino site
also has a modern nexus to the tribe. It is located within
On August 31, 2001, Kevin Washburn, General Counsel for the “service area” for which tribal members are entitled
the NIGC, sent the district court a 19-page letter regarding to receive services by the BIA.…At the time of
whether the Turtle Creek site is exempt from the prohibition termination, Band members lived not far from the Turtle
against casino-style gaming for lands acquired after the Creek site. For most of the Band’s recorded history, it
effective date of the IGRA. The NIGC found that the Turtle has lived and worked in this general area.…In light of
Creek site is exempt from the prohibition pursuant to the this showing of continuous interest in the area, the Band
exception for lands that are taken into trust as part of “the has regained beneficial title to land that it may have
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ceded but did not abandon. In regaining its beneficial Corp., 533 U.S. 218, 228-30, 233-35)). The court deemed it
use (the fee being held by the United States) to land that appropriate to afford the NIGC opinion “substantial weight”
has been at the heart of the Band’s culture throughout and found no reasonable basis for altering its conclusion that
history and particularly within the context of its the Band is a restored tribe within the meaning of the IGRA.
restoration process, the [NIGC] believes that the Turtle Id.
Creek site constitutes land that has been not merely
obtained but, in some sense, “restored’ to the Band under The court then independently examined whether the Turtle
Section 2719(b)(1)(B)(iii). Creek site is exempt from the prohibition pursuant to the
exception for lands that are taken into trust as part of “the
(J.A. 222-31.) The Department of the Interior subsequently restoration of lands for an Indian tribe that is restored to
concurred with the NIGC’s opinion. Federal recognition” under 25 U.S.C. § 2719(b)(1)(B)(iii).
As the NIGC had done, the court broke this question into two
As a consequence of this administrative opinion, the United parts: first, whether the Band is a “restored tribe” and second,
States abandoned its opposition to the Turtle Creek casino whether the acquisition of Turtle Creek is part of a
and withdrew from the litigation. The district court then “restoration of lands.”
permitted the Band to amend its complaint for a second time,
to reflect that the only issues that remained for trial were The court found that the words “restored” and “restoration”
whether the Turtle Creek site satisfied the “restoration of in the statutory exception were not defined in the IGRA, and
lands exception” and whether the tribal-state compact therefore it looked to the plain meaning of the words. Grand
afforded the Governor of Michigan with an absolute veto Traverse Band II, 198 F. Supp.2d at 928. The court noted
power over the siting of a casino at Turtle Creek. that the dictionary definition of “restore” includes the
following meanings: to give back (as something lost or taken
A bench trial was held in January, 2002. On April 22, away), make restitution of, return, to put or bring back (as
2002, the district court issued a memorandum opinion and into existence or use); and to bring back or put back into a
order in which it held that the Turtle Creek site was subject to former or original state. Id. (citing Webster’s New Third
the “restoration of lands” exception. Grand Traverse II, New Int’l Dictionary 1936 (1976)). The court also looked to
supra. The court noted, and the parties agreed, that the the dictionary definition of “restoration,” which includes the
NIGC’s finding that the “restoration of lands” exception following meanings: an act of restoring or the condition or
applied to the Turtle Creek site was not entitled to the highest fact of being restored: as bringing back to or putting back in
level of deference accorded to an administrative agency to a former position or conditions, reinstatement, renewal, or
because the NIGC had not employed formal adjudicatory reestablishment. Id. (citing Webster’s at 1936). The court
procedures. Grand Traverse Band II, 198 F. Supp. 2d at 927 then held that the Band clearly was a “restored tribe” under a
(holding that NIGC opinion was not entitled to deference per plain meaning interpretation:
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)). Nevertheless, the court gave such [T]he undisputed history of the Band’s treaties with the
deference to the NIGC opinion as it deemed appropriate “in United States and its prior relationship to the Secretary
light of the thoroughness, reasoning and consistency of its and the BIA demonstrates that the Band was recognized
determination.” Id. at 928 (citing United States v. Mead and treated with by the United States. Both prior to and
No. 02-1679 Grand Traverse Band v. 11 12 Grand Traverse Band v. No. 02-1679
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after such treaties, until 1872, the Band was dealt with by II
the Secretary as a recognized tribe. Only in 1872 was
that relationship administratively terminated by the BIA. In this appeal, the State has not contested the district court’s
This history–of recognition by Congress through treaties ruling that the acquisition of Turtle Creek was part of a
(and historical administration by the Secretary), “restoration of lands.” Accordingly, the sole issue for this
subsequent withdrawal of recognition, and yet later re- Court is whether the Band is a tribe “restored to federal
acknowledgment by the Secretary–fits squarely within recognition.”3 Like the district court below, we answer this
the dictionary definitions of “restore” and is reasonably question in the affirmative.
construed as a process of restoration of tribal recognition.
The plain language of subsection (b)(1)(B)(iii) therefore Section 20 of the Indian Gaming Regulatory Act (“IGRA”),
suggests that this Band is restored. 25 U.S.C. § 2719, generally prohibits casino-style gaming on
lands acquired by the Secretary of the Interior in trust for an
Id. at 934. Indian tribe after October 17, 1988, unless an exception is
satisfied. That section states, in relevant part:
Having found in favor of the Band on the first question
(whether the Band was a tribe restored to federal recognition), (a) Prohibition on lands acquired in trust by Secretary
the district court proceeded to address the second question
(whether the Turtle Creek site was acquired as part of a Except as provided in subsection (b) of this section,
“restoration of lands”). The court ruled in favor of the Band gaming regulated by this chapter shall not be conducted
on this question as well. Id. at 936. The court further rejected on lands acquired by the Secretary in trust for the benefit
the State’s assertion that casino-style gaming is barred by of an Indian tribe after October 17, 1988, unless--
section 2(C) of the tribal-State compact, which allegedly
gives the Governor of Michigan absolute veto power over (1) such lands are located within or contiguous to
gaming activities on lands taken into trust for the Band. Id. the boundaries of the reservation of the Indian tribe
at 937. The court held that the plain language of the compact on October 17, 1988; or
merely incorporated by reference the Governor’s concurrence
power “pursuant to 25 U.S.C. § 2719,” and therefore the (2) the Indian tribe has no reservation on October
Governor had no greater veto power than that vested by 17, 1988, and–
§ 2719. Id. at 938. * * * *
Based on the foregoing, the district court concluded that (B) such lands are located in a State other than
casino-style gaming is permissible at the Turtle Creek site Oklahoma and are within the Indian tribe’s last
pursuant to 25 U.S.C. § 2719(b)(1)(B)(iii) (the “restoration of
lands” exception). The court entered judgment in favor of the
Band on April 22, 2002. Id. at 940. The State filed a timely 3
appeal. There are no disputed issues of fact on ap peal, only issues of
statutory interpretation, which this court reviews under a de novo
standard. Un ited States v. M iami Univ., 294 F.3d 797 , 806 (6th C ir.
2002).
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recognized reservation within the State or States absent an indication Congress intended them to bear some
within which such Indian tribe is presently different import.” Williams v. Taylor, 529 U.S. 420, 431-32
located. (2000) (internal quotation marks and citations omitted)
(referring to Webster’s dictionary definitions to determine the
(b) Exceptions meaning of a statutory term). The district court appropriately
looked to the dictionary definitions of “restore” and
(1) Subsection (a) of this section will not apply “restoration,” which include the following meanings: to give
when-- back, return, make restitution, reinstatement, renewal, and
reestablishment. Grand Traverse Band II, 198 F. Supp.2d at
(A) the Secretary, after consultation with the 928 (citing Webster’s at 1936). The court then correctly held
Indian tribe and appropriate State and local that the Band clearly was a “restored tribe” under these
officials, including officials of other nearby definitions. The Band had treaties with the United States and
Indian tribes, determines that a gaming a prior relationship with the Secretary of the Interior at least
establishment on newly acquired lands would as far back as 1795. Until 1872, the Secretary had treated the
be in the best interest of the Indian tribe and its Band as a recognized tribe. As the State concedes, the
members, and would not be detrimental to the “United States unilaterally ceased to treat the Band as a
surrounding community, but only if the federally-recognized tribe commencing in 1872, when
Governor of the State in which the gaming Secretary of the Interior Columbus Delano improperly
activity is to be conducted concurs in the severed the government-to-government relationship between
Secretary's determination; or the United States and the Band.” In 1980, the Secretary
finally re-established the government-to-government
(B) lands are taken into trust as part of-- relationship through the administrative “acknowledgment”
(i) a settlement of a land claim, process. As the district court concluded, this history of
governmental recognition, withdrawal of recognition, and
(ii) the initial reservation of an Indian tribe then reinstatement of recognition “fits squarely within the
acknowledged by the Secretary under the dictionary definitions of ‘restore’ and is reasonably construed
Federal acknowledgment process, or as a process of restoration of tribal recognition.” Grand
Traverse II, 198 F. Supp.2d at 934. Thus, we hold that the
(iii) the restoration of lands for an Indian Band is a tribe “restored to Federal recognition” under the
tribe that is restored to Federal recognition. plain language of 25 U.S.C. § 2719 (b)(1)(B)(iii).
25 U.S.C.A. § 2719. The State attempts to evade the plain language of the
“restoration of lands” exception by arguing that the term
The IGRA does not define the words “restored” and “restoration” has a distinct meaning when applied to Indian
“restoration” in the “restoration of lands” exception set forth tribes and their trust status with the federal government – a
at § 2719(b)(1)(B)(iii). Therefore, this Court must give the meaning that precludes tribes like the Band from constituting
words “their ordinary, contemporary, common meaning, a restored tribe when it has been re-recognized
administratively through the “acknowledgment” process. The
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State argues that Indian tribes inherently possess sovereignty, this argument, holding that “once Congress has established a
subject only to the plenary powers, and trust obligations, of trust relationship with an Indian tribe, Congress alone has the
the United States. The State further argues that an Indian right to determine when its guardianship shall cease.” Id. at
tribe’s trust relationship with the United States, once 380 (citing United States v. Nice, 241 U.S. 591, 598 (1916);
established by Congress, can be extinguished only by Tiger v. W. Investment Co., 221 U.S. 286, 315 (1911)). The
Congressional action and not by administrative action of the tribe simply did not have the power to terminate the
Secretary of the Interior. Moreover, when Congress has relationship. Id. The unremarkable holding in
terminated that trust relationship, only Congress can restore Passamaquoddy, however, is irrelevant to the instant case.
it; the Secretary of the Interior has no power to restore trust There is no dispute that only Congress had the legal right to
status administratively through the acknowledgment process. terminate the Band’s recognition because Congress originally
The State points to a federal regulation providing that “groups had recognized the Band. But the relevant question is
which are, or the members of which are, subject to whether a termination nevertheless took place because the
congressional legislation terminating or forbidding the executive branch of the government illegally acted as if the
Federal relationship may not be acknowledged” by the Band’s recognition had been terminated, as evidenced by its
Secretary. 25 C.F.R. § 83.3(e). refusal to carry out any trust obligations for over one hundred
years.
The Band counters that a termination of tribal recognition
can occur not only through Congressional legislation but also A prominent treatise on federal Indian law states that
through a complete refusal of the federal government, which federal recognition of a tribe requires (1) a legal basis for
includes the executive branch, to treat the Band as a tribe. recognition (i.e. Congressional or Executive action) and
Thus, in 1872 and for the next hundred years, during which (2) the empirical indicia of recognition, namely, a “continuing
the Secretary of the Interior erroneously refused to treat the political relationship with the group, such as by providing
Band as a tribe, the Band suffered a de facto termination of services through the Bureau of Indian Affairs.” Cohen,
the trust relationship, even though only Congress legally Handbook of Federal Indian Law 6 (1982). The First Circuit
could terminate that relationship. Since the executive branch adopted Professor Cohen’s test for tribal recognition in
effectively could terminate the trust relationship, it also could Mashpee Tribe v. Sec’y of the Interior, 820 F.2d 480, 484 (1st
restore it, which is what the acknowledgment process Cir. 1987) (Breyer, C.J.). See also W. Shoshone Bus. Council
accomplished. v. Babbitt, 1 F.3d 1052, 1056 (10th Cir. 1993) (“Historically,
the federal government has treated a tribe as ‘recognized’ if
To support its view that the power to terminate the trust Congress or the President has created a reservation for the
relationship of a Congressionally-recognized tribe lies group and the United States has a continuing political
exclusively with Congress, the State cites the First Circuit’s relationship with the group.”) (citing Cohen, supra, at 6). The
decision in Joint Tribal Council of the Passamaquoddy Tribe implication of Professor Cohen’s two-part test, which we
v. Morton, 528 F.2d 370 (1st Cir. 1975). In that case, the adopt today, is that the empirical acts that are tantamount to
federal government argued, among other things, that the the termination of tribal recognition are analytically distinct
Passamaquoddy Tribe was equitably precluded from invoking from the legality of those acts, just as the empirical act of
the trust relationship purportedly established by Congress terminating an individual’s employment (e.g., being told to
through the Indian Nonintercourse Act. The court rejected
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leave the workplace and never to return) is distinct from the Since the Secretary of the Interior had the power to
legality of that act (e.g., a breach of contract). terminate the Band’s federal recognition, he also had the
power to restore that recognition. That is exactly what the
Once tribal recognition is understood as having both legal Secretary did in 1980 through the newly-promulgated
and empirical elements, it becomes clear that the State’s acknowledgment process, which “applies only to those
argument must fail. The State has conceded that “[t]he American Indian groups indigenous to the continental United
United States unilaterally ceased to treat the Band as a States which are not currently acknowledged as Indian tribes
federally-recognized tribe commencing in 1872, when by the Department” of the Interior and who have not been
Secretary of the Interior Columbus Delano improperly subject to federal legislation that expressly terminated the
severed the government-to-government relationship between federal relationship. 25 C.F.R. §§ 83.3(a), 83.3(e), 83.7(g).
the United States and the Band.” In other words, acting The result of this administrative acknowledgment was a
through the Secretary of the Interior, the federal government restoration of federal recognition, a necessary component of
terminated the political relationship with the group, in which includes the resumption of the government’s political
particular, the provision of services. Because the Department relationship with the Band. Contrary to the State’s position,
of Interior refused to recognize the Band as a political entity, the restoration of federal recognition was not contingent on
“the Band experienced increasing poverty, loss of land base Congressional action, because it was administrative action
and depletion of the resources of its community,” particularly that terminated the recognition in the first place. On the facts
when compared to those tribes that appeared on the of this case, a tribe like the Band, which was administratively
Department of Interior’s list of federally recognized tribes. “acknowledged,” also is a “restored” tribe.
Grand Traverse Band II, 198 F. Supp.2d at 924. Thus, the
undisputed facts show that the federal government withdrew The State persists in arguing that an administratively
the Band’s recognition in 1872 under the second factor of the “acknowledged” tribe like the Band cannot simultaneously be
Cohen test.4 a “restored” tribe by pointing to statutory language Congress
has employed in other legislation concerning Indians. The
State argues that Congress has consistently used the term
“restored” to describe the legislative reestablishment of
4
Indeed, the federal government admitted the Band’s lack of government-to-government relations with tribes whose trust
recognition in 1979, one year before the Band was acknowledged by the status had previously been terminated by Congressional
Secretary of the Interior. In a 1979 brief filed in a case concerning the action. In contrast, argues the State, Congress has used the
Band’s fishing rights und er a 1836 treaty, the U nited S tates argued, term “affirmed” when recognizing tribes, such as the Pokagon
The problem with fishing rights for [the Grand T raverse Band
Band of Potawatomi Indians, that had never been the subject
of] Ottawas is that there is no fed erally recognized tribal en tity. of Congressional termination. E.g., 25 U.S.C. §§ 1300j,
W ithout such an entity, the federal governm ent must oppose the 1300j-1.
assertion of treaty fishing rights by individual Ottawas or
unrecognized O ttawa groups. Congress, however, has not consistently referred to
legislatively terminated-and-later-recognized tribes as
Mem. of the Un ited States Relating to Treaty Fishing Rights of Ottawa
Indians, United States v. Michigan, No. M 26-73 ( W .D. M ich.), at 2
“restored” tribes. When Congress reversed its legislative
(attached as Appendix 1 to App ellee’s Br.) (emp hasis ad ded ). termination of the Menominee Tribe, it provided that federal
No. 02-1679 Grand Traverse Band v. 19 20 Grand Traverse Band v. No. 02-1679
Office of U.S. Attorney Office of U.S. Attorney
recognition was “extended” to the Tribe. 25 U.S.C. best interest of the Indian tribe and not detrimental to the
§ 903a(a). Congress also reversed its legislative terminations surrounding community, and the Governor has concurred in
of three other tribes by providing that federal recognition was the Secretary's determination; (2) the lands were taken into
“extended or confirmed” to those tribes. Id. § 861(a), (b). trust as part of a settlement of a land claim; (3) the lands were
Finally, although Congress used the term “affirmed” when it taken into trust as part of the initial reservation of an Indian
legislatively recognized the Pokagon Band, whose trust status tribe acknowledged by the Secretary under the federal
had not previously been terminated by Congress, the report of acknowledgment process; or (4) the lands were taken into
the Senate Committee on Indian Affairs that accompanied the trust as part of the restoration of lands for an Indian tribe that
legislation stated, is restored to federal recognition. 25 U.S.C. § 2719(b)(1).
The State argues that the “acknowledged tribe” exception and
The Committee concludes that the Band was not the “restoration of lands” exception are expressly limited to
terminated through an act of the Congress, but rather the either “acknowledged” or “restored” tribes, respectively, and
Pokagon Band was unfairly terminated as a result of both that the two exceptions are mutually exclusive. The State
faulty and inconsistent administrative decisions contrary further argues that if such overlap is permitted, the
to the intent of Congress, federal Indian law and the trust “acknowledged tribe” exception is relegated to mere
responsibility of the United States.…The Band’s claim surplusage, because any lands established as the initial
of rights and status as a treaty-based tribe, and the need reservation of an acknowledged tribe also qualify as restored
to restore and clarify that status has been clearly lands for a restored tribe under the “restoration of lands”
demonstrated. exception. According to the State, no tribe would ever resort
to the “acknowledged tribe” exception because it could
S. Rep. No. 103-266 at 6 (1994) (emphasis added). This invoke the more liberal provisions of the “restoration of
language not only confirms the above conclusion that an lands” exception.
executive agency can terminate the recognition of a
Congressionally-recognized tribe, but also shows that The State’s arguments lack merit. As stated above, a tribe
Congress did not intend to meaningfully distinguish the word like the Band, which has had its federal recognition
“affirmed” from “restored.” Thus, the district court correctly terminated by administrative action or inaction, can be
concluded that “the State has failed to demonstrate that restored to federal recognition through the administrative
Congress consistently and exclusively used only the word acknowledgment process. Thus, it is possible for a tribe to be
“restore” when restoring Indian tribes through legislative both “restored” and “acknowledged.” Moreover, the district
action.” Grand Traverse Band II,198 F. Supp.2d at 930. court did not hold that every acknowledged tribe
automatically constitutes a restored tribe. In fact, the court
The State next argues that the structure of the exceptions set noted that there will be situations where there is no overlap,
forth in § 2719 evidence Congressional intent that an such as when the Secretary of the Interior has acknowledged
“acknowledged” tribe cannot also be a “restored” tribe. As a tribe that had never previously been recognized by the
noted above, the general prohibition against casino-style federal government. Grand Traverse Band II, 198 F. Supp.2d
gaming on tribal lands acquired after October 17, 1988 does at 932. See also 69 Fed. Reg. 550-01 (Feb. 5, 2004)
not apply when (1) the Secretary of the Interior has made a (administrative acknowledgment of the Schaghticoke Tribal
determination that a gaming establishment would be in the Nation, which was never Congressionally-recognized); 67
No. 02-1679 Grand Traverse Band v. 21 22 Grand Traverse Band v. No. 02-1679
Office of U.S. Attorney Office of U.S. Attorney
Fed. Reg. 44234-02 (July 1, 2002) (administrative 25 U.S.C. § 2702(1) (providing that the purpose of the statute
acknowledgment of the Eastern Pequot Tribe, which was is to provide a statutory basis for gaming by Indian tribes “as
never Congressionally-recognized). Such a tribe might be a means of promoting tribal economic development, self-
able to invoke the “acknowledged tribe” exception, but not sufficiency, and strong tribal governments”). Although
the “restoration of lands” exception, because the tribe’s § 2719 creates a presumptive bar against casino-style gaming
federal recognition, which was never lost in the first place, on Indian lands acquired after the enactment of the IGRA,
cannot, by definition, be restored. Also, a tribe that is that bar should be construed narrowly (and the exceptions to
restored through legislative action, as opposed to the the bar broadly) in order to be consistent with the purpose of
administrative “acknowledgment” process, cannot, by the IGRA, which is to encourage gaming. Cf. City of
statutory definition and administrative regulations, invoke the Roseville v. Norton, 348 F.3d 1020, 1030-32 (D.C. Cir. 2003)
“acknowledged tribe” exception. Thus, the “acknowledged (holding that the “restoration of lands” exception should be
tribe” exception is not rendered mere surplusage simply interpreted broadly because the IGRA’s exceptions “embody
because a tribe like the Band might be able to invoke another policies counseling for a broader reading” due to the statute’s
exception as well. general purpose of promoting tribal economic development
and self-sufficiency; also applying the Indian canon of
Finally, even assuming, arguendo, that the State has statutory construction to resolve any ambiguities in favor of
“muddied the waters” with respect to the meanings of the a broad reading of the “restoration of lands” exception).
terms “restored” and “acknowledged,” the Supreme Court
repeatedly has held that “‘statutes are to be construed liberally III
in favor of the Indians, with ambiguous provisions interpreted
to their benefit.’” Chickasaw Nation v. United States, 534 For all the foregoing reasons, the district court properly
U.S. 84, 94 (2001) (quoting Montana v. Blackfeet Tribe, 471 found that the Grand Traverse Band of Ottawa and Chippewa
U.S. 759, 766 (1988)). This canon is “rooted in the unique Indians is an Indian tribe that is restored to federal recognition
trust relationship between the United States and the Indians.” under the Indian Gaming Regulatory Act, 25 U.S.C.
Blackfeet Tribe, 471 U.S. at 766 (internal quotation marks and § 2719(b)(1)(B)(iii). The district court’s order of April 22,
citations omitted). The force of this interpretive canon can be 2002 is therefore AFFIRMED.
overcome only when “other circumstances evidencing
congressional intent” demonstrate that “the statute is ‘fairly
capable’ of two interpretations… [or] that the [conflicting]
interpretation is fairly ‘possible.’” Chickasaw Nation, 534
U.S. at 94 (citing Blackfeet Tribe, 471 U.S. at 766).
The State has pointed to no evidence of Congressional
intent that would forbid this Court from invoking the canon
of statutory construction applied to statutes affecting Indians
and their trust relationship with the United States. Indeed, the
only evidence of intent strongly suggests that the thrust of the
IGRA is to promote Indian gaming, not to limit it. See