Littlefield v. Mashpee Wampanoag Indian Tribe

United States Court of Appeals
For the First Circuit

No. 16-2484

DAVID LITTLEFIELD; MICHELLE LITTLEFIELD; TRACY ACORD; DEBORAH
CANARY; FRANCIS CANARY, JR.; VERONICA CASEY; PATRICIA COLBERT;
VIVIAN COURCY; WILL COURCY; DONNA DEFARIA; ANTONIO DEFARIA; KIM
DORSEY; KELLY DORSEY; FRANCIS LAGACE; JILL LAGACE; DAVID LEWRY;
KATHLEEN LEWRY; MICHELLE LEWRY; RICHARD LEWRY; ROBERT LINCOLN;
CHRISTINA MCMAHON; CAROL MURPHY; DOROTHY PEIRCE; DAVID PURDY;
LOUISE SILVIA,

Plaintiffs, Appellees,

v.

MASHPEE WAMPANOAG INDIAN TRIBE,

Defendant, Appellant,

BUREAU OF INDIAN AFFAIRS, U.S. Department of the Interior; RYAN
ZINKE, in his official capacity as Secretary, U.S. Department of
the Interior; LAWRENCE ROBERTS, Acting Assistant Secretary,
Indian Affairs, U.S. Department of the Interior; U.S. DEPARTMENT
OF THE INTERIOR; UNITED STATES OF AMERICA,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Circuit Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.

* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 Benjamin J. Wish, with whom Howard M. Cooper, Max D. Stern,
and Todd & Weld, LLP were on brief, for appellant.
David H. Tennant, with whom Law Office of David Tennant PLLC,
David J. Apfel, Roberto M. Braceras, Andrew Kim, and Goodwin
Procter LLP were on brief, for appellees.

February 27, 2020
 LYNCH, Circuit Judge. In 2015, the Department of the

Interior's Bureau of Indian Affairs ("BIA") approved the taking of

two areas of land into trust for the Mashpee Wampanoag Indian Tribe

("the Tribe"). The Tribe planned to use land taken into trust in

Mashpee, Massachusetts, largely for housing, while it planned to

use land in Taunton, Massachusetts, for economic activities,

primarily a gaming casino and resort, to produce needed income for

the Tribe. The BIA's approval construed section 19 of the Indian

Reorganization Act of 1934 ("IRA"), 25 U.S.C. § 5129,1 to permit

it to accept lands for the Tribe. Opposed local residents filed

a federal suit challenging the BIA's decision. The district court

found, on its own reading of the statute, that the BIA was wrong

that it had authority to take land into trust for the Tribe, and

it remanded the matter to the BIA. The court's order is the

subject of this appeal.

Only a few facts need be recited,2 and the procedural

history of the litigation can be recounted briefly. After first

rejecting appellees' contention that we lack jurisdiction to hear

1 At the time of the BIA's 2015 decision, the statutory
provision at issue here was located at 25 U.S.C. § 479.
2 A description of the Tribe's history may be found in the
BIA's Record of Decision. See Bureau of Indian Affairs, Record of
Decision: Trust Acquisition and Reservation Proclamation for 151
Acres in the City of Taunton, Massachusetts, and 170 Acres in the
Town of Mashpee, Massachusetts, for the Mashpee Wampanoag Tribe,
at 101-17 (Sept. 18, 2015), https://www.bia.gov/sites/bia.gov/
files/assets/public/oig/pdf/idc1-031724.pdf.

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this appeal, we then move directly to the issue of statutory

interpretation of 25 U.S.C. § 5129, a pure issue of law. We hold

that the plain meaning of the IRA's text precludes the BIA's

interpretation of that section, and so we affirm.

I.

The IRA authorizes the Secretary of the Interior "to

acquire land and hold it in trust 'for the purpose of providing

land for Indians.'" Carcieri v. Salazar, 555 U.S. 379, 381–82,

(2009) (quoting 25 U.S.C. § 5108). The IRA further defines

"Indian" as follows:

The term "Indian" as used in this Act shall
include [1] all persons of Indian descent who
are members of any recognized Indian tribe now
under Federal jurisdiction, and [2] all
persons who are descendants of such members
who were, on June 1, 1934, residing within the
present boundaries of any Indian reservation,
and shall further include [3] all other
persons of one-half or more Indian blood.

25 U.S.C. § 5129 (numbers in brackets added). The Secretary may

take land into trust only for persons and tribes that meet one of

these definitions of Indian.

The facts underlying this matter are not disputed. The

Tribe received federal recognition in 2007. See 72 Fed. Reg. 8007

(Feb. 22, 2007). Shortly thereafter, also in 2007, the Tribe

submitted a "fee-to-trust" application requesting that the

Department of the Interior acquire land in trust as the Tribe's

reservation. The Tribe's application, as last amended in November

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2012, requested that the Department accept about 170 acres in

Mashpee, Massachusetts, and about 151 acres in Taunton,

Massachusetts. The Mashpee land was already owned by the Tribe

and in tribal use. The Tribe planned to acquire the Taunton land,

which was "developed as a commercial/industrial park," to build

and run "an approximately 400,000 sq. ft. gaming-resort complex,

water park, and 3 hotels."

On September 18, 2015, the BIA issued a written decision

that granted the Tribe's fee-to-trust application. On November

10, 2015, the Department took the lands into trust and, shortly

thereafter, proclaimed the land to be the Tribe's reservation.

See 81 Fed. Reg. 948 (Jan. 8, 2016).

On February 4, 2016, the plaintiffs filed suit to

challenge the BIA's decision taking the land into trust. On July

7, 2016, the parties cross-moved for summary judgment on the

plaintiffs' first cause of action. Plaintiffs requested that, if

the district court found that the BIA exceeded its statutory

authority, it also issue a "final, appealable order" so that the

judgment would be "immediately appealable." The defendants did

not oppose this argument.

On July 28, 2016, the district court found that the BIA

had exceeded its authority, entered summary judgment for the

plaintiffs under Fed. R. Civ. P. 54(b), and ordered the matter

remanded to the agency. On October 12, 2016, the court issued an

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order clarifying "that it ruled that in order to qualify as

eligible beneficiaries under the second definition of 'Indian' set

forth in the [IRA], the [Tribe was] required to have been 'under

federal jurisdiction' in 1934." The court explained that "[h]aving

remanded this matter to the Secretary, it is no violation of the

Court's order should the agency wish to analyze the [Tribe's]

eligibility under the first definition of 'Indian.'"

On December 8, 2016, the Tribe brought this appeal. The

government also appealed, but on April 27, 2017, it moved to

dismiss voluntarily its appeal. The government's motion did not

offer a reason for the decision to dismiss its appeal.

On September 7, 2018, the BIA issued a new decision that

addressed whether the Tribe could qualify under the first

definition. It concluded that the Tribe was not under federal

jurisdiction in 1934 and could not qualify under the first

definition. The BIA also specifically stated that its "analysis

and decision on remand is strictly limited to the question of the

Tribe's jurisdictional status in 1934, and does not otherwise

revisit or alter the remainder of the Department's analysis of the

second definition of 'Indian' in the 2015 [decision]."

On September 27, 2018, the Tribe sued the Secretary of

the Interior ("the Secretary") in the U.S. District Court for the

District of Columbia to challenge the BIA's second decision

concluding that the Tribe did not meet the first definition of

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"Indian" under the IRA. See Complaint, Mashpee Wampanoag Tribe v.

Zinke, No. 1:18-cv-02242 (D.D.C. Sept. 27, 2018). The Tribe's

complaint alleges that the Secretary's application of the first

definition was arbitrary, capricious, and contrary to law in

violation of the Administrative Procedure Act, 5 U.S.C. § 706.

Id. at 18. Appellees here moved to intervene in that case without

opposition, and, as of October 29, 2019, cross-motions for summary

judgment were fully briefed. Nothing in the Tribe's complaint in

the D.C. case or the summary judgment briefing implicates the BIA's

interpretation of the second definition of Indian, at issue here.

II.

Having won in the trial court, appellees try to prevent

appellate review by arguing we lack jurisdiction to hear this

appeal. They give two reasons. First, they contend that

Interior's actions after the district court's judgment have mooted

this case. Second, they argue that the district court's judgment

became unreviewable on appeal after the government dropped its

appeal. We address these issues in turn.

With respect to mootness, appellees contend that

Interior "abandon[ed] . . . its earlier decision" when it issued

the 2018 decision. Not so. The 2018 decision, which addressed

only whether the Tribe qualified under the first definition of

Indian, specified that it did not "revisit or alter" the earlier

2015 decision's conclusion as to the second definition. The cases

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appellees advance in support of their argument are inapposite.

They all involve agency actions that specifically rescinded and

superseded a prior action. See, e.g., Akiachak Native Cmty. v.

U.S. Dep't of Interior, 827 F.3d 100, 113 (D.C. Cir. 2016) ("[O]nce

the Department of Interior rescinded the Alaska exception, this

case became moot."). In this case, the agency specifically left

its prior decision in place.3 The case is not moot.

Appellees also urge that we lack appellate jurisdiction

to decide this case. They argue that, in general, orders remanding

an issue to an agency are not immediately appealable except by the

agency. As a result, they reason, the government's decision to

dismiss its appeal stripped this court of jurisdiction over this

appeal. The Tribe replies that this rule is not an absolute rule

and, on the facts of this case, permits its appeal.

This court has jurisdiction over "final decisions of the

district courts of the United States." 28 U.S.C. § 1291. The

final decision rule "precludes 'piecemeal, prejudgment appeals'

that would 'undermin[e] efficient judicial administration and

encroac[h] upon the prerogatives of district court judges.'"

3 Nor does this appeal meet the normal criteria for
mootness. A case becomes "moot when the court cannot give any
effectual relief to the potentially prevailing party." Town of
Portsmouth v. Lewis, 813 F.3d 54, 58 (1st Cir. 2016) (quoting Am.
Civil Liberties Union of Mass. v. U.S. Conference of Catholic
Bishops, 705 F.3d 44, 52 (1st Cir. 2013)). Here, were we to
reverse the district court's judgment, the Tribe would receive the
benefit of the BIA's 2015 decision to take the land into trust.

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Ritzen Grp., Inc. v. Jackson Masonry, LLC, No. 18-938, 2020 WL

201023, at *2 (U.S. Jan. 14, 2020) (alterations in original)

(quoting Bullard v. Blue Hills Bank, 575 U.S. 496, 501 (2015)).

To effectuate that purpose, "the requirement of finality is to be

given a 'practical rather than a technical construction.'" Eisen

v. Carlisle & Jacquelin, 417 U.S. 156, 171 (1974) (quoting Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).

The cases appellees cite for the principle that only the

government may appeal a remand order, again, are inapposite, and

do not mean that the government's decision to dismiss its appeal

here destroys our jurisdiction. Those cases reason that, on the

facts presented there, the government agency may resolve the

underlying issue on remand, thus rendering a decision non-final

for purposes of appellate judicial review. See, e.g., Sierra Club

v. U.S. Dep't of Agric., 716 F.3d 653, 656 (D.C. Cir. 2013) ("This

rule promotes judicial economy and efficiency by avoiding the

inconvenience and cost of two appeals: one from the remand order

and one from a later district court decision reviewing the

proceedings on remand.").

Even as to this "rule," this court has recognized that,

consistent with the rule's theoretical underpinning, "[e]xceptions

have been recognized in some cases, . . . and [judicial] appeals

have been allowed from orders remanding to an administrative agency

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for further proceedings," often based on efficiency concerns. Mall

Props., Inc. v. Marsh, 841 F.2d 440, 441–42 (1st Cir. 1988).

In Mall Properties, unlike here, the United States was

appellee, not appellant, and had filed a motion to dismiss the

appeal brought by another, arguing as grounds for dismissal that

the district court's remand order was not an appealable final

order. Id. at 440. This court dismissed the appeal, finding that

its "allowance . . . would violate the efficiency concerns behind

the policy against piecemeal appeals" because, on remand, the

agency could reach the same result "on independent proper grounds."

Id. at 443. In this case, unlike in Mall Properties, the

government was appellant along with the Tribe as to the district

court judgment, but ultimately voluntarily dismissed that appeal.

The government has not at any point argued, as it did in Mall

Properties, that the remand order could not be appealed. Indeed,

it gave no reason at all for its voluntary dismissal.

In this case, there is both real and practical finality,

and it would be contrary to judicial efficiency to dismiss this

appeal. The Ninth Circuit has held that "[a] remand order is final

where (1) the district court conclusively resolves a separable

legal issue, (2) the remand order forces the agency to apply a

potentially erroneous rule which may result in a wasted proceeding,

and (3) review would, as a practical matter, be foreclosed if an

immediate appeal were unavailable." Collord v. U.S. Dep't of

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Interior, 154 F.3d 933, 935 (9th Cir. 1998) (citing Chugach Alaska

Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990)). Where these

"considerations," which are not "strict prerequisites," are met,

the district court's merits decision on which its remand order was

based has the necessary "practical finality" to be appealed.

Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1175-76 (9th Cir.

2011) (finding appellate jurisdiction over a private party's

appeal of a remand order after the United States voluntarily

dismissed its appeal). These cases support our finding of

jurisdiction here.

The first consideration identified by the Ninth Circuit

is clearly met in this case. The district court conclusively

resolved a separable legal issue when it granted summary judgment

to the plaintiffs on their first cause of action, holding that the

BIA exceeded its authority by construing the second definition of

"Indian" as it did. The second and third considerations are not

directly applicable here because the agency has already completed

its remand proceedings. The outcome of the remand proceedings

shows that the district court's merits decision has the requisite

practical finality to be appealed. The BIA's 2018 remand decision

addressed a different issue and respected the agency's 2015 finding

on the issue now before us. The agency's 2018 decision also does

not implicate the legal questions about the second definition of

"Indian" that are the subject of this appeal. The questions here

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have been fully briefed to this court. The challenge in D.C. to

the agency's 2018 decision does not involve the issue before us.

There is no gain, and only potential loss, to judicial

efficiency by dismissing this appeal. There is both Article III

jurisdiction and finality of the judgment being reviewed. We have

jurisdiction over this appeal, and turn to the merits.

III.

A. The Plain Meaning of the Second Definition in IRA Section 19

In 2009, the Supreme Court held that the word "now"

unambiguously limits the first definition to members of those

tribes that were under federal jurisdiction when the IRA became

law in 1934. Carcieri, 555 U.S. at 391. The Court did not address

the second definition of Indian. It is the proper construction of

that second definition that is the issue now before us.

In its 2015 decision here granting the Tribe's fee-into-

trust application, the BIA relied exclusively on the second

definition of Indian, stating specifically that it did not consider

whether the Tribe might qualify under the first definition. The

BIA construed the term "such" to refer only to the phrase "members

of any recognized Indian tribe," a portion of the language set

forth in the first definition, rather than to the complete

antecedent "members of any recognized Indian tribe now under

Federal jurisdiction." Reasoning that the second definition's use

of "such members" was ambiguous, the BIA determined that its own

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interpretation was reasonable and was entitled to judicial

deference. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837 (1984).

The district court held the BIA's interpretation was

error because the statute's plain meaning required that "such" be

read to refer to the entire "any recognized Indian Tribe now under

federal jurisdiction" (emphasis added). Because the BIA had not

determined that the Tribe was under federal jurisdiction in 1934,

to meet the requirements of Carcieri, 555 U.S. at 391, the Tribe

had not met the IRA's definition of Indian. And that meant the

land could not be taken in trust.

Like Carcieri itself, "[t]his case requires us to apply

settled principles of statutory construction under which we must

first determine whether the statutory text is plain and

unambiguous." Id. at 387 (citing United States v. Gonzales, 520

U.S. 1, 4 (1997)). "If it is, we must apply the statute according

to its terms." Id. We employ the same methodology to determine

whether the text is plain and unambiguous as used in the Carcieri

majority opinion.

"We begin with the ordinary meaning of the word '[such],'

as understood when the IRA was enacted." Id. at 388. At that

time, the adjective "such" limited the words it modified to those

with characteristics just described. See Such, Black's Law

Dictionary (3d ed. 1933) (defining such as "[a]like, similar, of

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that kind, of the like kind; 'such' represents the object as

already particularized in terms which are not mentioned, and is a

descriptive and relative word, referring to the last antecedent");

Such, Webster's New International Dictionary 2518 (2d ed. 1934)

(defining such as "[o]f this or that kind, character or measure;

of the sort or degree previously indicated or contextually implied"

and "[h]aving the quality already or just specified").

The ordinary and normal reading of "such" here is that

it refers to the entire antecedent phrase. Normal usage in the

English language would read the word "such" as referring to the

entire antecedent phrase. See United States v. Ahlers, 305 F.3d

54, 61 (1st Cir. 2002) (finding the use of "such" to "plainly

refer[] back to" the entire antecedent phrase). We add that the

antecedent phrase itself contains no natural breaks. Nor does the

antecedent include a connector such as "or."

Given these dictionary definitions, we look to whether

there is anything in the text of the statute which suggests that

the use of the descriptive "such" is ambiguous as to whether it

refers to the entire antecedent clause. In our view, the word

"such" plainly refers to the words used in the entire prior

definition to limit the members included in the second definition

of Indian. Nothing about the text suggests that the word "such"

refers to only a portion of the prior phrase. Rather, the plain

meaning is that the "such members" referred to in the second

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definition are limited in the same way as the "members" in the

first definition, but with the addition of those members'

"descendants . . . who were, on June 1, 1934, residing within the

present boundaries of any Indian reservation." Thus, the second

definition is not redundant of the first definition. It newly

encompasses certain descendants of such members.

The Tribe's argument that the use of "such" here is

ambiguous advances cases that found the use of "such" in certain

contexts created ambiguity. There surely is no per se rule that

the word "such" is always ambiguous as to the antecedent to which

it refers. Nor can there be a rule that "such" is never ambiguous.

Whether the word "such" creates ambiguity depends on context.

Here, nothing about the context in which "such" is used creates

ambiguity.

We reject the argument that our reading is precluded

because it would create surplusage. The Tribe argues that our

reading renders the second definition surplusage because, under

our interpretation, it will never find practical application. See

Nielsen v. Preap, 139 S. Ct. 954, 969 (2019) (no statutory

provision "should needlessly be given an interpretation that

causes it to duplicate another provision or to have no consequence"

(quoting Antonin Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts 174 (2012))). The Tribe argues that,

because Indian tribes define their own membership, few if any non-

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member descendants would ever seek IRA benefits and, at any rate,

the record in this case contains no evidence of anyone who would

be included in our interpretation of the second definition but not

in the first definition.

This argument fails for several reasons. First, it is

plainly possible that someone, a descendant, could qualify under

the second definition, as we interpret it, without being a tribal

member. Indeed, the regulatory history shows a recognition of

exactly that possibility, as we discuss later. The record does

not establish whether such a scenario is likely, but that is not

the test. Regardless, whether likely or not, that cannot alter

the plain meaning of the second definition. Second, that many

people might qualify under both definitions does not render the

second definition surplusage as to some people.

Even if there were some redundancy, that would not alter

the plain meaning. The Supreme Court has recently reminded us

that Congress sometimes builds redundancy into statutes:

If one possible interpretation of a statute
would cause some redundancy and another
interpretation would avoid redundancy, that
difference in the two interpretations can
supply a clue as to the better interpretation
of a statute. But only a clue. Sometimes the
better overall reading of the statute contains
some redundancy.

Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019).

The second definition serves the role of providing that certain

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unenrolled descendants of tribe members receive IRA benefits. This

is consistent with Commissioner Collier's 1936 recognition,

described below, that "[t]here will not be many applicants under

Class 2, because most persons in this category will themselves be

enrolled members of the tribe . . . and hence included under Class

1."

The cases advanced by the Tribe do not undercut our

conclusion. In Hogar Agua y Vida en el Desierto, Inc. v. Suarez-

Medina, 36 F.3d 177, 186 (1st Cir. 1994), this court noted the

possibility of "latent ambiguity in a statutory modifier like

'such.'" That case construed the Fair Housing Act's anti-

discrimination provisions, which do not apply to "any single-

family house sold or rented by an owner" where "such private

individual owner does not own more than three such single-family

houses at any one time." Id. at 179 (emphasis added) (quoting 42

U.S.C. § 3603(b)(1)). The owner there owned more than three

single-family houses but had not sold or rented more than three of

them. Id. at 180. This court construed "such" to refer only to

"any single-family house," not to "sold or rented by an owner."

Id. at 186. Since the statute banned discriminatory refusals to

sell or rent housing, if the entire antecedent phrase about houses

sold or rented applied, houses that an owner refused to rent or

sell would not count toward the requirement that the owner own

three single-family homes. Id. We further noted "authoritative

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legislative history" that "contradict[ed]" the opposite

conclusion. Id. Significantly, the antecedent phrase in Hogar

was a compound phrase which used the word "or," unlike the

antecedent phrase in this case. The word "or" does not appear in

the antecedent phrase here.

The Tribe also argues that United States v. Krstic, 558

F.3d 1010 (9th Cir. 2009), supports its reading. That case dealt

with a criminal statute that provided:

Whoever knowingly forges, counterfeits,
alters, or falsely makes any immigrant or
nonimmigrant visa, permit, border crossing
card, alien registration receipt card, or
other document . . . or . . . possesses . . .
any such visa, permit, border crossing card,
alien registration receipt card, or other
document . . . knowing it to be forged,
counterfeited, altered, or falsely made, or to
have been procured by means of any false claim
or statement . . . [shall be punished].

18 U.S.C. § 1546(a) (emphasis added). Krstic, who was charged

with obtaining an alien registration receipt card by making false

statements, argued that the words "any such" referred to and

incorporated the verbs in the first part of the statute. Krstic,

558 F.3d at 1012-13. On that reading, only possessing or obtaining

a "forged, counterfeited, altered, or falsely made" document would

violate the statute. Id. at 1013. The Ninth Circuit reasoned:

"No bright-line rule governs this area of the English language.

'Such' can refer exclusively to preceding nouns and adjectives.

It can also refer to surrounding verbs, adverbial phrases, or other

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clauses. Context is typically determinative. Unfortunately,

context does not help us here." Id. Ultimately, the court found

that the two interpretations were equally reasonable and found

against Krstic only by reference to legislative history, which

made clear that legislators had not intended Krstic's reading.

Id. at 1016-17. The court noted that, "with this section, Congress

has achieved in a single 124–word sentence a level of confusion it

usually takes pages to create," in part by including "several

candidates" for the antecedent to which "such" might refer. Id.

at 1013.

The Tribe argues that we should find ambiguity here for

the same reasons that the Ninth Circuit found ambiguity in Krstic.

But the text of the IRA does not present the same interpretive

challenge as the text of the statute at issue in Krstic. Krstic's

proposed reading of § 1546(a) would have had the clear effect of

decriminalizing conduct intended to be proscribed, while rendering

the statute's reference to "procure[ment] by means of any false

claim or statement" applicable only to a document that was already

forged. Id. at 1017. As the Ninth Circuit held, nothing in the

statute's text or history supported the notion that Congress

intended that result. Id. at 1016-17. By contrast, this text

here does not allow "several candidates" for the possible meaning

of "such," nor is there reason to think Congress intended the

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antecedent language to which "such" refers to be read as the Tribe

would have it.

B. Contemporaneous Understanding of the IRA

The Carcieri Court, after concluding that the statute's

plain meaning was unambiguous, then looked to contemporaneous

executive documents as confirmation of its interpretation. See

Carcieri, 555 U.S. at 390-91. To the extent that reference to

statutory history is permissible to demonstrate a statute's plain

meaning, we note that, in this case, one of the same documents

relied on by the Carcieri Court is again at odds with the Tribe's

and the BIA's interpretation.

On March 7, 1936, Commissioner of Indian Affairs John

Collier issued a circular to Indian superintendents that stated in

part:

[I]f a person of Indian descent belongs to a
recognized tribe which was under Federal
jurisdiction on the date of the Act (Class 1)
or is a descendant of such member residing on
a reservation June 1, 1934, [sic] (Class 2),
he is entitled to participate in the benefits
of the Act . . . .
. . . .
There will not be many applicants
under Class 2, because most persons in this
category will themselves be enrolled members
of the tribe . . . and hence included under
Class 1.

The circular also described those eligible under the third

definition of Indian as "persons having one-half or more Indian

blood who are neither enrolled members of a tribe (Class 1) nor

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unenrolled descendants of such members residing on a reservation

June 1, 1934, [sic] (Class 2)."

Commissioner Collier's understanding that those eligible

under the first and second definitions would substantially overlap

in that not many applicants would prove eligibility under the

second definition is consistent with our understanding of the

second definition's plain meaning. Although Collier's

interpretation in the circular is not entitled to deference because

the statute's plain meaning is unambiguous, as in Carcieri, it

confirms our interpretation.

C. Canons of Construction

The Tribe offers other arguments in support of the BIA's

interpretation based on the canons of statutory interpretation.4

But these canons apply only in cases of textual ambiguity. And we

have found no ambiguity.

Under the commands of the Supreme Court, a statute that

"does not contain conflicting provisions or ambiguous language"

does not "require a narrowing construction or application of any

4 The Tribe offers two canons of construction they argue
support their interpretation: "the canon of construction that
remedial statutes should be liberally construed" in favor of their
remedial purpose, Peyton v. Rowe, 391 U.S. 54, 65 (1968), and the
canon that "statutes are to be construed liberally in favor of the
Indians, with ambiguous provisions interpreted to their benefit,"
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).
The Tribe argues that, because the IRA is a remedial statute
intended to benefit Indians, any ambiguity should be resolved in
the Tribe's favor under these two canons.

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other canon or interpretative tool." Barnhart v. Sigmon Coal Co.,

534 U.S. 438, 461 (2002). In particular, the Court has been clear

that the Indian canon of construction "does not permit reliance on

ambiguities that do not exist; nor does it permit disregard of the

clearly expressed intent of Congress." South Carolina v. Catawba

Indian Tribe, Inc., 476 U.S. 498, 506 (1986). That is also the

effect of Carcieri. Nor does the remedial statute canon allow us

to "stretch" the statute's coverage "well beyond what the statutory

text can naturally bear." Fla. Dep't of Revenue v. Piccadilly

Cafeterias, Inc., 554 U.S. 33, 51 (2008). Again, Carcieri

precludes resort to these canons.

IV.

Because the IRA unambiguously forecloses the BIA's

interpretation of 25 U.S.C. § 5129, the Secretary lacked authority

to take land into trust for the benefit of the Tribe. We affirm

the judgment of the district court. No costs are awarded.

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