Scotts Valley Band of Pomo Indians v. United States Department of the Interior

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________
)
SCOTTS VALLEY BAND OF )
POMO INDIANS, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-1544 (ABJ)
)
UNITED STATES )
DEPARTMENT OF )
THE INTERIOR, et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

On May 24, 2019, plaintiff, the Scotts Valley Band of Pomo Indians (“Scotts Valley”),

brought this action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06, against

the United States Department of the Interior (“Interior”); David L. Bernhardt, in his official

capacity as Secretary of the Interior; Tara Sweeney, in her official capacity as Assistant Secretary

for Indian Affairs; and John Tahsuda, in his official capacity as Principal Deputy to the Assistant

for Indian Affairs. 1 Compl. [Dkt. # 1]. Plaintiff challenged a February 7, 2019 Indian Lands

Opinion (“ILO” or “Tahsuda letter”) issued on behalf of the agency by the then-Principal Deputy

to the Assistant Secretary, John Tahsuda, which found that a parcel of land in the City of Vallejo,

California, would not qualify for gaming under what is known as the “restored lands” exception

in the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq. This decision rendered

1 In 2021, Deb Haaland, the Secretary of Interior, and Bryan Newland, the Secretary for
Indian Affairs, were automatically substituted as defendants pursuant to Federal Rule of Civil
Procedure 25(d). Defendant John Tahsuda, no longer at the Department, was terminated as a
defendant on August 27, 2021.
the land ineligible for gaming purposes under the IGRA and brought an end to Scotts Valley’s

efforts to acquire the land to establish a casino.

The parties have each filed a motion for summary judgment. Plaintiff argues that the

agency’s decision was arbitrary, capricious, and otherwise not in accordance with law in

contravention of the APA, and it requests that the Court remand the ILO to the agency for

reconsideration. Pl.’s Mot. for Summ. J. [Dkt. # 48], Mem. of P. & A. in Supp. of Pl.’s Mot. for

Summ. J. [Dkt. # 48-1] (“Pl.’s Mot.”). Defendants move for judgment in their favor on the grounds

that the ILO is procedurally sound, the agency followed its implementing regulations in rendering

the decision, and the regulations are based on permissible interpretations of the underlying statutes.

Fed. Defs.’ Cross-Mot. for Summ. J. [Dkt. # 54], Mem. in Supp. of Fed. Defs.’ Cross-Mot. for

Summ. J. and in Opp. to Pl.’s Mot. (“Defs.’ Mot.”).

For the reasons set forth below, the motions will each be granted in part and denied in part.

The Court will enter judgment in favor of defendants on the issues of whether the then-Principal

Deputy had the authority to issue the February 7, 2019 Indian Lands Opinion; whether the agency

exceeded its authority under the IGRA when it promulgated Part 292, 25 C.F.R. § 292, interpreting

the restored lands exception in the statute; and whether, for purposes of the APA, the agency

examined the relevant data and set forth a reasoned basis for its decision in the ILO. However,

even if one grants the agency’s analysis due deference, the application of the well-settled Indian

canon of statutory construction that the Court is also required to consider leads to the conclusion

that the ILO cannot be sustained. The decision involves the application of an ambiguous term in

a regulation promulgated to implement an ambiguous provision in a statute passed for the benefit

of Native Americans. Resolving all inferences and doubts in favor of the Band, then, the Court

finds that the ILO is arbitrary and capricious, does not give fair consideration to the historical

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circumstances that severed the Band’s connection to its land in the first place, and left the Band in

a disadvantageous position compared to other tribes. Therefore, the Court will enter judgment in

favor of plaintiff on that issue and remand the ILO to the agency.

STATUTORY AND REGULATORY FRAMEWORK

Plaintiff argues, among other things, that the agency violated the APA because it exceeded

its statutory authority under the Indian Gaming Regulatory Act and the Indian Reorganization Act

(“IRA”), 25 U.S.C. § 5101 et seq., when it implemented a regulation to administer the IGRA

known as Part 292.

I. Indian Gaming Regulatory Act

In 1988, Congress enacted the IGRA “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.” 25 U.S.C. § 2702. Under the IGRA, a tribe may conduct gaming

activities only on eligible “Indian lands,” id. § 2710(b)(1), (d)(1), defined to include “all lands

within the limits of any Indian reservation” and “any lands title to which is . . . held in trust by the

United States for the benefit of any Indian tribe.” Id. § 2703(4)(A–B). However, the IGRA

prohibits gaming “on lands acquired by the Secretary in trust for the benefit of an Indian tribe after

October 17, 1988,” unless the land falls into one of several enumerated exceptions. Id. § 2719(a).

The statutory exception at issue in this case is referred to as the “restored lands” exception; it

permits gaming on “lands . . . taken into trust as part of . . . the restoration of lands for an Indian

tribe that is restored to Federal recognition.” Id. § 2719(b)(1)(B)(iii); see City of Roseville v.

Norton, 348 F.3d 1020, 1024 (D.C. Cir. 2003) (describing IGRA exceptions); 25 C.F.R. § 292.7

(denoting 25 U.S.C. § 2719(b)(1)(B)(iii) as the “restored lands” exception). This exception “helps

ensure ‘that tribes lacking reservations when [the IGRA] was enacted are not disadvantaged

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relative to more established ones.’” Butte County v. Chaudhuri, 887 F.3d 501, 503 (D.C.

Cir. 2018), quoting City of Roseville, 348 F.3d at 1030. While the IGRA predicates an important

exception to the prohibition on gaming on “the restoration of lands,” it does not go on to define

the term. See City of Roseville, 348 F.3d at 1024.

II. Part 292

In 2008, the Department of Interior, which administers the IGRA through the Bureau of

Indian Affairs (“BIA”), promulgated a set of regulations, found at 25 C.F.R. § 292 (“Part 292”),

to “implement section 2719 of IGRA by articulating standards that the Department will follow in

interpreting the various exceptions to the gaming prohibition on after-acquired trust lands

contained in section 2719 of IGRA.” Final Rule, Gaming on Trust Lands Acquired After

October 17, 1988, 73 Fed. Reg. 29354 (May 20, 2008) (“Final Rule”).

Part 292 sets out four criteria that must be satisfied to invoke the restored lands exception.

First, the tribe must have once been federally recognized. 25 C.F.R. § 292.7(a). Second, the tribe

must have later “lost its government-to-government relationship,” which can be shown by pointing

to “[l]egislative termination,” “[c]onsistent historical written documentation from the Federal

Government effectively stating it no longer recognized a government-to-government relationship

with the tribe,” or “[c]ongressional restoration legislation that recognize[d] the existence of the

previous government-to-government relationship.” Id. §§ 292.7(b), 292.9. Third, the tribe must

have been “restored to Federal recognition.” Id. § 292.7(c). Fourth, and at issue here, “[t]he newly

acquired lands [must] meet the criteria of ‘restored lands’ in § 292.11.” Id. § 292.7(d). This

requirement concerns the tribe’s relationship to the land itself.

If a tribe has been restored pursuant to an act of Congress that also specifies the land that

will accompany the restoration, that land automatically qualifies as “restored lands.”

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Id. § 292.11(a)(1). However, if no land is set aside by legislation or if the tribe is restored other

than through an act of Congress, additional requirements must be met for the land to qualify as

“restored lands.” See id. § 292.11(a)(2). First, the tribe must demonstrate that the land is “located

within the State . . . where the tribe is now located” and that it has a “modern connection[]” to the

land. Id. § 292.12(a). 2 Second, the “tribe must demonstrate a significant historical connection to

the land.” Id. § 292.12(b). This is defined in the regulation to mean that “the land is located within

the boundaries of the tribe’s last reservation under a ratified or unratified treaty, or a tribe can

demonstrate by historical documentation the existence of the tribe’s villages, burial grounds,

occupancy or subsistence use in the vicinity of the land.” 25 C.F.R. § 292.2. And finally, the

“tribe must demonstrate a temporal connection between the date of the acquisition of the land” and

the date when the tribe was federally restored. Id. § 292.12(c).

III. Indian Reorganization Act

In 1934, Congress enacted the IRA with the “overriding purpose . . . to establish machinery

whereby Indian tribes would be able to assume a greater degree of self-government, both

politically and economically.” Morton v. Mancari, 417 U.S. 535, 542 (1974). Section 5 of the

2 “[T]he tribe must demonstrate one or more of the following modern connections to the
land:
(1) The land is within reasonable commuting distance of the tribe’s existing
reservation;

(2) If the tribe has no reservation, the land is near where a significant number
of tribal members reside;

(3) The land is within a 25–mile radius of the tribe’s headquarters or other tribal
governmental facilities that have existed at that location for at least 2 years
at the time of the application for land-into-trust; or

(4) Other factors demonstrate the tribe’s current connection to the land.”

25 C.F.R. § 292.12(a)(1)–(4).
5
IRA authorizes the Secretary of the Interior to “acquire . . . any interest in lands . . . including trust

or otherwise restricted allotments . . . for the purpose of providing land for Indians.”

25 U.S.C. § 5108. Lands taken into trust for an Indian tribe under that provision may be designated

as part of the tribe’s reservation. Id. § 5110.

In addition to authorizing the Secretary to acquire lands in trust, the IRA granted federally

recognized tribes certain privileges and immunities. Of note here, it prohibits the federal

government from “promulgat[ing] any regulation or mak[ing] any decision or determination . . .

with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the

privileges and immunities available to the Indian tribe relative to other federally recognized tribes

by virtue of their status as Indian tribes.” Id. § 5123(g).

FACTUAL BACKGROUND

As the lengthy administrative record in this case reflects, the documented history of the

Scotts Valley Band of Pomo Indians stretches back to at least the 1800s. Scotts Valley is the

modern day successor of the Mo-al-kai (also known as “Moalkai,” “Yimaba,” and “Yimabak”)

and Ca-la-na-po (also known as the “Kulanapo” and “Hoolanapo”) bands of Pomo Indians. J.A.

of Portions of the Admin. R. [Dkt. # 60-1] (“Admin. R.”) 3 at AR0000002, AR0006687; see ILO

at 4, Admin. R. at AR0011600. 4 Each of these bands was a signatory to the August 20, 1851

Treaty of Camp Lu-pi-yu-ma with the United States, in which the tribes agreed to cede aboriginal

3 All citations to the February 7, 2019 ILO, which was submitted to the Court as part of the
administrative record, will contain a citation to the internal page number of the ILO, as well as a
citation to the administrative record. All other documents contained within the administrative
record will only be cited to where they appear in the administrative record.

4 The Band also asserts it is the modern day successor of the Habenepo Band of Pomo
Indians (also known as the “Ha-bi-na-po”). See Admin. R. at AR0000002, AR0000019. Interior
disputed this connection in the ILO, saying that “the evidence is insufficient to establish such a
finding,” but “whether or not the connection exists is not dispositive in this restored lands
determination.” ILO at 5 n.27, Admin. R. at AR0011601.
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lands in exchange for the establishment of a reservation by the United States. Admin. R. at

AR0000002, AR0004468. The Senate never ratified that treaty, though, and no land was otherwise

reserved for the tribe. Admin. R. at AR0000002, AR0004468.

In 1911, the United States acquired a parcel of land for Scotts Valley known as the Sugar

Bowl Rancheria. Admin. R. at AR0000002–03; ILO at 6, Admin. R. at AR0011602. Scotts Valley

continued to hold that land until 1958, when Congress enacted the California Rancheria

Termination Act, Pub. L. No. 85–671, 72 Stat. 619 (1958), which terminated both the federal trust

relationship with the tribe as well as the reservation status of the Sugar Bowl Rancheria. See ILO

at 3, Admin. R. at AR0011599; Admin. R. at AR0010735. In 1986, Scotts Valley and other

California Indian tribes filed a class action lawsuit against the United States, alleging that the

Government had unlawfully terminated their trust status twenty-eight years before. See ILO at 3,

Admin. R. at AR0011599; Scotts Valley Band of Pomo Indians of Sugar Bowl Rancheria v. United

States, 921 F.2d 924 (9th Cir. 1990). As part of the settlement of that litigation, the United States

reinstated Scotts Valley’s status as a federally recognized tribe, which became effective on

September 5, 1991. See Admin. R. at AR0000011; ILO at 3, Admin. R. at AR0011599; see also

Notice of Reinstatement to Former Status for the Guidiville Band of Pomo Indians, the Scotts

Valley Band of Pomo Indians and Lytton Indian Community of CA, 57 Fed. Reg. 5214

(Feb. 12, 1992) (“Notice of Reinstatement”). But that act was not accompanied by the

identification of any land for the tribe. See Notice of Reinstatement.

In 2005, before Part 292 had been promulgated, Scotts Valley submitted a request to

Interior to acquire lands in trust for gaming. Admin. R. at AR0006387. The agency concluded

that the tribe did not establish a “significant historical connection” to the land it sought to acquire

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at that time – the Richmond Parcels – and the tribe did not challenge the decision. Admin. R. at

AR0006403.

Approximately ten years later, the Band initiated steps to acquire another parcel. See

Admin. R. at AR0000001. It requested, pursuant to 25 C.F.R. § 151.9, that the Department acquire

128.32 acres of land in the City of Vallejo, in Solano County, California, referred to as the Vallejo

Parcel, into trust on its behalf. 5 See ILO at 1, Admin. R. at AR0011597; see also Admin. R. at

AR0004414, AR0006684. In connection with that effort, on January 28, 2016, Scotts Valley

submitted a request for an Indian Lands Opinion, or “restored lands” determination. Admin. R. at

AR0000001. Therefore, the then-Principal Deputy Assistant Secretary, John Tahsuda, undertook

to determine whether the Parcel, if taken into trust, would qualify as “restored lands” for purposes

of the exception to the general prohibition on gaming on lands acquired after 1988. ILO at 1,

Admin. R. at AR0011597.

The tribe’s request was supported with several attachments, including a legal analysis,

expert reports about the anthropological and historical ties the tribe had to the land, and a

declaration from the tribe’s Secretary, Patricia Franklin. Admin. R. at AR0000004. The tribe

supplemented its ILO request in December 2017, Admin. R. at AR0010720–81, and on

May 3, 2018. Admin. R. at AR0004411–12.

On February 7, 2019, Tahsuda issued a decision on behalf of the agency: “I regret to inform

you that the Department has determined that the Parcel does not qualify as restored lands within

5 See Scotts Valley Band of Pomo Indians Fee-to-Trust Application (Aug. 2016), Admin. R.
at AR0006681–719 (“The Scotts Valley Band of Pomo Indians . . . is requesting that the Secretary
of the Interior accept trust title to a 128-acre parcel of land in the City of Vallejo for the benefit of
the Tribe.”); see Letter from Gabriel Ray, Chairman, to Amy Dutschke, Reg’l Dir., Pac. Reg’l
Off., Bureau of Indian Affs., U.S. Dep’t of the Interior (Aug. 11, 2016), Admin. R. at AR0004461
(letter to which fee-to-trust application was attached); see also Admin. R. at AR0010720–81
(December 2017 supplement to fee-to-trust application).
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the meaning of applicable law.” ILO at 2, Admin. R. at AR0011598. The decision was based on

a determination that “the [Scotts Valley] Band . . . failed to provide sufficient evidence of a

‘significant historical connection’ to the [Vallejo] Parcel, as required to qualify this particular

property for the restored lands exception.” ILO at 2, Admin. R. at AR0011598. Although Scotts

Valley “met the [first] requirement of the two-part restored lands exception analysis,” because it

was a restored tribe, and also “demonstrated the required modern and temporal connections to the

Parcel,” ILO at 3, Admin. R. at AR0011599, the agency concluded that the Band had not shown

evidence of a “significant historical connection” as required by Part 292 because: (1) “[t]he

Vallejo Parcel is not located within the boundaries of the Band’s last reservation under a ratified

or unratified treaty,” ILO at 5, Admin. R. at AR0011601; (2) “[t]he Vallejo Parcel is not proximate

to the boundaries of the Band’s last reservation under a ratified or unratified treaty,” which could

help establish the necessary connection to the Parcel, ILO at 6, Admin. R. at AR0011602; and (3)

“[t]he Band has not demonstrated the existence of the Band’s villages, burial grounds, occupancy

or subsistence use in the vicinity of the Parcel,” ILO at 7, Admin. R. at AR0011603.

With respect to the third method of establishing a historical connection – the “Band’s

villages, burial grounds, occupancy or subsistence use in the vicinity of the Parcel” – first, the ILO

rejected Scotts Valley’s contention that its ancestors’ cession of land pursuant to the 1851 Treaty

was sufficient to establish a significant historical connection to the Vallejo Parcel “per se” since

the ceded land (dubbed “Area 296”) encompassed the Parcel. ILO at 7–10, Admin. R. at

AR0011603–06. Although Interior acknowledged that the Vallejo Parcel’s location within

Area 296 created a “favorable inference” for the tribe, it took the position that the Band “must still

demonstrate additional historical connection.” ILO at 10, Admin. R. at AR0011606. Second,

Interior decided that the Vallejo Parcel’s designation as a pick-up site for supplies delivered by

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federal officials in 1851 to 1853 was insufficient to demonstrate occupancy or subsistence use in

the vicinity of the Parcel. ILO at 10, Admin. R. at AR0011606. It noted that the arrangement

lasted for only three years and that the location had been designated as the pick-up spot because it

was “convenient for federal officials who were reluctant to deliver provisions to the Clear Lake

bands in the mountainous territory where they lived.” ILO at 11–12, Admin. R. at AR0011607–

08. Third, Interior reviewed Scotts Valley’s submissions about an individual identified as Chief

Augustine who worked in the North Bay region during the mid-1800s, to whom many in the tribe

trace their ancestry. ILO at 12, Admin. R. at AR0011608. Although the tribe maintained that

Chief Augustine’s activities were representative of its other ancestors and showed occupancy and

subsistence use in the vicinity of the Vallejo Parcel, Interior concluded that “it would be erroneous

to attribute the connections made by a specific tribal member like Augustine, or a handful of

members, to the entire Band, or to its predecessors.” ILO at 16, Admin. R. at AR0011612. It also

found that “even assuming that Augustine’s living and labor patterns are representative of those of

the Band’s ancestors, such patterns do not constitute occupancy or subsistence use.” ILO at 17,

Admin. R. at AR0011613.

For all of those reasons, Interior declined to take the Vallejo Parcel in trust for gaming

purposes, finding that the Parcel did “not meet the regulatory requirements necessary to qualify

for the restored lands exception under IGRA.” ILO at 19, Admin. R. at AR0011615.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and evidence show that “there is

no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). However, in cases involving review of f i n a l agency

action under the APA, Rule 56 does not apply due to “the limited role of a court in reviewing the

10
administrative record.” Select Specialty Hosp.-Akron, LLC v. Sebelius, 820 F. Supp. 2d 13, 21

(D.D.C. 2011). Under the APA, the agency’s role is to resolve factual issues and arrive at a

decision that is supported by the administrative record, and the court’s role is to “determine

whether or not as a matter of law the evidence in the administrative record permitted the

agency to make the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th

Cir. 1985), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); see

also Richards v. INS, 554 F.2d 1173, 1177, 1177 n.28 (D.C. Cir. 1977).

Further, a court must “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion, o r otherwise not in

accordance with law,” 5 U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C), or

“without observance of procedure required by law,” id. § 706(2)(D). However, the scope of

review under the APA is narrow. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The agency’s decision is generally presumed to be

valid, see Citizens to Preserve Overton Park, 401 U.S. at 415, and the court must not “substitute

its judgment for that of the agency.” State Farm, 463 U.S. at 43. A court must be satisfied,

though, that the agency has examined the relevant data and articulated a satisfactory explanation

for its action, “including a rational connection between the facts found and the choice made.”

Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citations and internal quotation marks

omitted).

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 ANALYSIS

I. The Department did not act outside of its statutory authority by requiring tribes to
demonstrate a “significant historical connection” for purposes of the restored lands
exception.

A. The Chevron framework.

Ordinarily, a court reviewing an agency’s interpretation of a statute must employ the two-

step analysis outlined in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

842–43 (1984). Step one involves determining whether Congress has spoken directly to the

precise question at issue. Id. at 842. The D.C. Circuit has explained:

Under the first step of Chevron, the reviewing court “must first exhaust the
traditional tools of statutory construction to determine whether Congress has
spoken to the precise question at issue.” The traditional tools include
examination of the statute’s text, legislative history, and structure, as well as
its purpose.

Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997) (internal citations omitted), quoting

Nat. Res. Def. Council v. Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995).

The court is required to utilize these methods to determine whether Congress has

“unambiguously foreclosed the agency’s statutory interpretation.” Catawba County v. EPA,

571 F.3d 20, 35 (D.C. Cir. 2009).

Congress may have done so in one of two ways: either by prescribing a precise
course of conduct other than the one chosen by the agency, or by granting the
agency a range of interpretive discretion that the agency has clearly exceeded.
. . . And if the agency has either violated Congress’s precise instructions or
exceeded the statute’s clear boundaries then, as Chevron puts it, “that is the
end of the matter” – the agency’s interpretation is unlawful.

Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 659–60 (D.C. Cir. 2011), citing Chevron,

467 U.S. at 842; see Chevron, 467 U.S. at 842–43 (“If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress.”).

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 The burden is on the plaintiff challenging an agency interpretation to “do more than offer a

reasonable or, even the best, interpretation” of the statute; the plaintiff must instead show “that the

statute unambiguously forecloses the [agency’s] interpretation.” Vill. of Barrington, 636 F.3d at 661

(emphasis in original). In other words, if a court determines “that statutory ambiguity has left the

agency with a range of possibilities and that the agency’s interpretation falls within that range, then

the agency will have survived Chevron step one.” Id. at 660 (emphasis in original).

If the statute is silent or ambiguous on the question, Chevron instructs the court to go on to

a second step and determine “whether the agency’s answer is based on a permissible construction

of the statute.” Chevron, 467 U.S. at 843. Once a reviewing court reaches the second step, it must

accord “considerable weight” to an executive agency’s construction of a statutory scheme it has

been “entrusted to administer.” Id. at 844. Indeed, “under Chevron, courts are bound to uphold

an agency interpretation as long as it is reasonable—regardless [of] whether there may be other

reasonable or, even more reasonable, views.” Serono Lab’ys, Inc. v. Shalala, 158 F.3d 1313, 1321

(D.C. Cir. 1998). “In making this assessment, [the court] look[s] to what the agency said at the

time of the rulemaking—not to its lawyers’ post-hoc rationalizations.” Council for Urological

Ints. v. Burwell, 790 F.3d 212, 222 (D.C. Cir. 2015). The Supreme Court explained:

If Congress has explicitly left a gap for the agency to fill, there is an express
delegation of authority to the agency to elucidate a specific provision of the
statute by regulation. Such legislative regulations are given controlling
weight unless they are arbitrary, capricious or manifestly contrary to the
statute. Sometimes the legislative delegation to an agency on a particular
question is implicit rather than explicit. In such a case, a court may not
substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.

Chevron, 467 U.S. at 843–44. In either event, then, the fundamental inquiry at the first level of

the Chevron analysis is to ascertain whether Congress has authorized the agency to make rules to

fill in a gap.

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 B. The Indian canon of construction.

As plaintiff points out, though, Chevron is not the beginning and end of the analysis in this

case. See Pl.’s Mot. at 23–24. The Supreme Court has also instructed that “the standard principles

of statutory construction do not have their usual force in cases involving Indian law[;] . . . 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). This canon of

construction is “rooted in the unique trust relationship between the United States and the Indians.”

Id., quoting Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985). The Court later

reiterated the point:

When we are faced with these two possible constructions, our choice
between them must be dictated by a principle deeply rooted in this Court’s
Indian jurisprudence: “[S]tatutes are to be construed liberally in favor of
the Indians, with ambiguous provisions interpreted to their benefit.”

County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251,

269 (1992), quoting Blackfeet Tribe, 471 U.S. at 766.

The D.C. Circuit’s guidance on how the Indian canon should bear on the level of deference

to be accorded to an agency’s determination has evolved over time. In Moscogee (Creek) Nation

v. Hodel (Creek), 851 F.2d 1439 (D.C. Cir. 1988), the Creek Nation challenged a decision by the

BIA denying its request for funds to establish a Tribal court and law enforcement program pursuant

to the Oklahoma Indian Welfare Act (“OIWA”), 25 U.S.C. § 501 et seq. The government argued

that its ruling was supported by sound principles of statutory construction since the OIWA did not

expressly repeal provisions in prior legislation abolishing the Tribal courts. Creek, 851 F.2d at

1442. The Court of Appeals rejected that argument, explaining:

“[Interior] fails to appreciate, however, that the standard principles of
statutory construction do not have their usual force in cases involving Indian
law.” . . . If there is any ambiguity as to the inconsistency and/or the repeal

14
 of the Curtis Act, the OIWA must be construed in favor of the Indians, i.e.,
as repealing the Curtis Act and permitting the establishment of Tribal
Courts. The result, then, is that if the OIWA can reasonably be construed
as the Tribe would have it construed, it must be construed that way.

Id. at 1444–45, quoting Blackfeet Tribe, 471 U.S. at 766 (emphasis in original); see also Creek,

851 F.2d at 1445 n.8 (“It is for this reason that, while we have given careful consideration to

Interior’s interpretation of the OIWA, we do not defer to it.”).

In 2001, the Circuit elaborated on the reasons behind the canon:

This departure from the Chevron norm arises from the fact that the rule of
liberally construing statutes to the benefit of the Indians arises not from the
ordinary exegesis, but “from principles of equitable obligations and
normative rules of behavior,” applicable to the trust relationship between
the United States and the Native American people.

Cobell v. Norton (Cobell VI), 240 F.3d 1081, 1101 (D.C. Cir. 2001), quoting Albuquerque Indian

Rights v. Lujan, 930 F.2d 49, 59 (D.C. Cir. 1991).

In City of Roseville, the agency did not rely on deference on appeal, and the Court did not

specifically address whether the canon would take precedence over Chevron. 348 F.3d. at 1020.

But the Court did reiterate that if there were any doubt as to how the IGRA provision at issue

should be interpreted, the Indian canon of statutory construction would resolve it. Id. at 1032. The

Circuit declared that the canon’s “applicability to ambiguous statutes purporting to benefit Indians

is settled,” and it again characterized the canon in mandatory terms:

IGRA is designed to promote the economic viability of Indian Tribes, and
[the Auburn Indian Restoration Act] focuses on ensuring the same for the
Auburn Tribe. In this context, the Indian canon requires the court to resolve
any doubt in favor of the tribe.

15
Id. 6

The Court of Appeals used somewhat different language with respect to the Indian canon

in Cobell v. Salazar (Cobell XXII), 573 F.3d 808 (D.C. Cir 2009), one of the many opinions

generated during the course of the thirteen years of litigation over the agency’s handling of Indian

trust accounts. The particular factual context of the litigation had implications for the legal rubric

to be applied; as the Court had noted earlier in Cobell v. Kempthorne (Cobell XVII), 455 F.3d 301,

303–04 (D.C. Cir. 2006), because “both the APA and the common law of trust apply in this case[,]

the specific question to be addressed would determine which body of law becomes most

prominent” in any given situation. The issue in Cobell XXII was how the agency was to go about

conducting the long-overdue accounting that had previously been ordered as equitable relief, and

the opinion dealt primarily with the interplay between legal principles and common law trust

principles governing trusteeships. However, the Court did provide some guidance on the Indian

canon issue as well:

We recognize, as did the district court, that the courts face two mandates of
deference in construing the relevant statutes at issue in this case. First, there
is the familiar Chevron deference upon which the district court relied in
reviewing Interior’s methodology. However, as the court
observed, Chevron deference can be “‘trumped by the requirement that
statutes are to be construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.’” [Cobell v. Kempthorne, 532 F.
Supp 2d. 37, 89] (quoting Cobell XVIII, 455 F.3d at 304, and collecting
other citations). Nonetheless, Chevron deference does not disappear from
the process of reviewing an agency’s interpretation of those statutes it is
trusted to administer for the benefit of the Indians, although that deference
applies with muted effect. Granted, the Indians’ benefit remains paramount.
But where Congress has entrusted to the agency the duty of applying, and

6 The Court noted that its discussion of the standard to be applied was limited to the narrow
question before it – the treatment of land that had been restored by statute under the restored lands
exception. “To the extent that the Secretary’s interpretation of the ‘restoration of lands’ provision
may include nuances regarding its application to Indian lands not acquired pursuant to a restoration
act, the court has no occasion to reach the issue of deference to her interpretation in such
circumstances.” City of Roseville, 348 F.3d at 1025.
16
 therefore interpreting, a statutory duty owed to the Indians, we cannot
ignore the responsibility of the agency for careful stewardship of limited
government resources. Applying even a muted Chevron deference leads us
to a different conclusion than that reached by the district court.

Cobell XXII, 573 F.3d at 812.

To the extent the Circuit backed away from the notion that the Indian canon could “trump”

Chevron deference, it did so in the sui generis context of the Cobell litigation. Since the

expenditure of government resources has not been raised by the government as a factor to be

considered in the interpretation of the restored lands provision under the IGRA, it is not entirely

clear whether the Circuit would be of the view that Chevron deference plays a role in all cases

involving Indian affairs – including this one – but “with muted effect,” or that the canon would

outweigh Chevron deference here because a statute passed for the benefit of Indian tribes is under

scrutiny. In either event, it is clear, at least, that the Court must both construe the statute “liberally

in favor of the Indians,” Cobell VI, 240 F.3d at 1101, and give the agency’s view “careful

consideration.” Creek, 851 F.2d at 1445 n.8; see also Confederated Tribes of Grand Ronde Cmty.

of Or. v. Jewell, 830 F.3d 552, 558 (2016), quoting Cal. Valley Miwok Tribe v. United States,

515 F.3d 1262, 1266 n.7 (D.C. Cir. 2008) (“When it comes to an agency’s interpretation of a statute

Congress has authorized it to implement, we employ the familiar Chevron analysis. . . . We do so

while mindful of the ‘governing canon of construction requir[ing] that statutes are to be construed

liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’”).

The agency takes the position, though, that Chevron alone provides the governing standard,

and that the Court “must” defer to the agency’s interpretation. See Defs.’ Mot. at 11, citing

Rancheria v. Jewell, 776 F.3d 706, 712 (9th Cir. 2015) and Citizens Exposing Truth about Casinos

v. Kempthorne (CETAC), 492 F.3d 460, 465 (D.C. Cir. 2007). But this Court is not bound by out-

of-circuit authority, particularly when it is contrary to the binding precedent here. See Rancheria

17
v. Jewell, 776 F.3d at 713 (explaining that Tribe’s argument that the court must apply the Indian

canon of construction instead of the government’s interpretation was “foreclosed by precedent in

this Circuit. This court has repeatedly ‘declined to apply [the Indian law canon of construction] in

light of competing deference given to an agency charged with the statute’s interpretation.’”)

(brackets in original) (internal citations omitted).

Moreover, CETAC did not purport to mark a change in the law in the D.C. Circuit, and it

does not stand for the proposition that Chevron deference necessarily controls. In CETAC, a non-

profit group opposed to gambling challenged Interior’s decision to take land into trust for the

Nottawaseppi Huron Band of Potawatomi Indians. In that circumstance, the Court found the

agency’s interpretation of the statute to be permissible under Chevron, but it also took note of the

requirement under the Indian canon to resolve any doubt in favor of the Band. CETAC, 492 F.3d

at 471 (“[B]ecause 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.”).

Since the decision under review in CETAC did not conflict with the interests of an Indian tribe, the

decision did not establish a precedent for how to proceed in the instant case. Similarly, while

defendants point to Oregon v. Norton, 271 F. Supp. 2d 1270 (D. Or. 2003), in that case, the court

merely applied the canon alongside Chevron deference since the plaintiffs were third parties

challenging the agency’s determination in favor of a tribe that a parcel qualified for gaming under

the restored lands exception. See id. at 1275 (after laying out the Chevron two-part analysis, the

18
court observed, “[i]n reviewing an agency’s interpretation of a statute governing Indian tribes, the

court must also consider canons of construction relevant to Indian law”). 7

For those reasons, then, the Court is legally bound to apply the Indian canon of construction

to the task before it.

C. Chevron Step One: The statute is ambiguous and does not foreclose the agency’s
interpretation. 8

1. The text of the provision.

Scotts Valley argues that the agency exceeded its statutory authority under the IGRA when

it promulgated regulations requiring that a tribe show a “significant historical connection” to a

7 In California Valley Miwok Tribe v. United States, 515 F.3d 1262 (D.C. Cir. 2008), the
Court of Appeals accorded Chevron deference, but also in a unique, distinguishable situation. The
case involved an effort by “a small cluster of people” within the Tribe to organize a tribal
government; it adopted a constitution “without so much as consulting its membership,” and the
Secretary refused to approve it “because it was not ratified by anything close to a majority of the
tribe.” Id. at 1263. The Court upheld the agency’s ruling for a host of reasons, but it also observed:

We recognize that we typically do not apply full Chevron deference to an
agency interpretation of an ambiguous statutory provision governing Indian
affairs. . . . Here, however, the Secretary’s proposed interpretation does not
run against any Indian tribe; it runs only against one of the contestants in a
heated tribal leadership dispute . . . . Therefore, adherence to Chevron is
consistent with the customary Indian-law canon of construction.

Id. at 1255 n.7; see Koi Nation of Northern California v. Dep’t of Interior, 361 F. Supp. 3d 14,
49–50 (D.D.C. 2019), citing Cal. Valley Miwok Tribe, 515 F.3d at 1266 n.7 (commenting that
CETAC and Oregon v. Norton “stand for the proposition that the Indian canon of construction is
not substituted for Chevron deference when the Secretary’s proposed interpretation does not run
against any Indian tribe . . . [and] actually advances the trust relationship between the United States
and the Native American people.”) (brackets in original) (internal quotation marks omitted).

8 See Sault Ste. Marie Tribe of Chippewa Indians v. Haaland, 25 F.4th 12, 21 n.7 (D.C.
Cir. 2022) (“Because we find no ambiguity in the Michigan Act, we reach neither Interior’s claim
for Chevron deference nor the Tribe’s argument that the Indian canon requires an interpretation in
its favor.”); see also Koi Nation, 361 F. Supp. 3d at 42 (“Regardless of whether Chevron deference
or the Indian canon of construction applies, the law is well-settled that under Chevron, a court
must first determine whether Congress has directly addressed the precise question at issue, before
assessing whether the agency’s interpretation of a statute was reasonable.”) (internal quotation
marks omitted).
19
parcel for the land to be considered “restored lands.” Pl.’s Mot. at 20. Defendants maintain that

“the Court must defer to the Interior’s reasonable interpretation of IGRA,” and that as a threshold

matter, “IGRA’s reference to ‘restoration of lands’ . . . is ambiguous,” and therefore “subject to

interpretation by Interior through regulation.” Defs.’ Mot. at 11–12.

As explained above, there is an exception to the prohibition on gaming on Indian land if

the land was taken into trust as part of the “restoration of lands” for an Indian tribe.

25 U.S.C. § 2719(b)(1)(B)(iii). However, as the parties agree, “[t]he IGRA does not define a

‘restoration of lands.’” City of Roseville, 348 F.3d at 1024; see Grand Traverse Band of Ottawa

& Chippewa Indians v. U.S. Att’y for W. Dist. of Mich. (Grand Traverse II), 198 F. Supp. 2d 920,

928 (W.D. Mich. 2002), aff’d sub nom. Grand Traverse Band of Ottawa & Chippewa Indians v.

U.S. Atty. for W. Div. of Mich. (Grand Traverse Appeal), 369 F.3d 960 (6th Cir. 2004) (“Neither

‘restored’ nor ‘restoration’ is defined under § 2719(b)(1)(B)(iii).”); Confederated Tribes of Coos,

Lower Umpqua & Siuslaw Indians v. Babbitt,

116 F. Supp. 2d 155, 161 (D.D.C. 2000) (“‘Restoration’ is not defined in the statute.”); Babbitt,

116 F. Supp. 2d at 162 (“The varying [interpretive] possibilities highlight the ambiguity of

section 2719(b)(1)(B)(iii).”); see also Pl.’s Mot. at 17 (“IGRA does not define restored tribe or

restored lands.”).

The parties disagree, though, as to whether “restoration of lands” has a plain meaning that

allows for no further interpretation. The Band insists that it does: “[t]he ordinary meaning of the

operative word ‘restore’ or ‘restoration’ is to put back into a former or proper position as a tribe

with a land base.” Pl.’s Mot. at 21. It observes that “[o]n its face, this term does not require that

the restored tribe once owned the land in question . . . or mandate any particular quality of historical

relationship between the restored tribe and restored land.” Pl.’s Mot. at 21. While the statute may

20
not preclude the Band’s interpretation, defendants contend that the statutory language does not

have “only one meaning that can be applied.” Defs.’ Mot. at 13 (emphasis in original).

As plaintiff acknowledges, see Pl.’s Mot. at 21, other courts have concluded that the

restored lands exception is ambiguous. See County of Amador v. U.S. Dep’t of the Interior, 136 F.

Supp. 3d 1193, 1222 (E.D. Cal. 2015) (“[T]he restored lands exception,

25 U.S.C. § 2719(b)(1)(B)(iii), is not further explained in that statute and it is ambiguous.”), aff’d,

872 F.3d 1012 (9th Cir. 2017); Redding Rancheria v. Salazar, 881 F. Supp. 2d 1104, 1116 (N.D.

Cal. 2012), aff’d in part, rev’d in part sub nom. Rancheria v. Jewell, 776 F.3d at 712 (affirming

that Secretary reasonably implemented the restored lands exception); Oregon v. Norton, 271 F.

Supp. 2d at 1277 (“No statutory provision defines the terms ‘restore’ or ‘restoration of lands’ and

no provision expressly limits the Secretary’s authority to interpret these terms. Thus, I find the

statutory language ambiguous[.]”) (internal citation omitted).

Although the D.C. Circuit has not addressed the precise question presented in this case, in

City of Roseville, it did consider the meaning of the term “restoration of lands” in the context of

whether it would be proper to interpret the statute to require that restored land fall within the

boundaries of the original reservation. 348 F.3d at 1025. In that case, neighboring municipalities

were challenging a decision by the agency to permit gaming under the IGRA on land taken into

trust for the Auburn Indian Tribe to create a new reservation pursuant to the Auburn Indian

Restoration Act. Id. at 1021–22. The Court of Appeals reviewed the relative strengths and

deficiencies of each of the definitions proffered by the parties and ultimately concluded that

“neither side can prevail by quoting the dictionary.” Id. at 1027. Therefore, the Court said, it

would turn “to context, for the court is to consider not only the bare meaning of the word but also

its placement and purpose in the statutory scheme.” Id. (internal quotation marks omitted). Thus,

21
the limited authority available in this circuit suggests that the answer is not likely to be found in

plain meaning alone.

Even when courts have found that the terms “restore” and “restoration” as used in

section 2719 are unambiguous and should be construed in accordance with their plain meanings,

they have also acknowledged that the terms may be read in “numerous ways.” Grand Traverse II,

198 F. Supp. 2d at 935; 9 see also Wyandotte Nation v. Nat’l Indian Gaming Comm’n, 437 F. Supp.

2d 1193, 1214 (D. Kan. 2006) (noting that “several courts have had occasion to address the

‘restoration of lands’ exception, and have concluded that the term ‘restoration’ has a plain meaning

that may be applied,” but adding, “courts have held that the term may be interpreted in a variety

of ways”). This observation seems inconsistent with the characterization of the language as

“unambiguous,” and after considering all of these precedents, the Court cannot find, for purposes

of the first step of the Chevron analysis, that Congress has “unambiguously foreclosed the agency’s

statutory interpretation.” Catawba County, 571 F.3d at 35.

2. The structure and purpose of the provision.

The determination that the question cannot be resolved on the face of the statute alone is

consistent with the structure, legislative history, and purpose of the IGRA. Plaintiff asserts that

“the restored lands exception was intended to ensure that tribes lacking reservations in 1988

‘[were] not disadvantaged relative to more established ones,’” and was “intended to compensate

restored tribes not only for what they lost but also for opportunities those tribes lost in the interim

while terminated.” Pl.’s Mot. at 21, quoting Koi Nation, 361 F. Supp. 3d at 22. But defendants

maintain – again relying upon non-binding authority from another circuit – that the IGRA seeks to

9 On appeal, the Sixth Circuit only considered “whether the Band is a tribe ‘restored to
federal recognition.’” Grand Traverse Appeal, 369 F.3d at 966.
22
balance competing concerns to “promote parity between established tribes, which had substantial

land holdings at the time of IGRA’s passage, and restored tribes, which did not,” and that to

accomplish this goal, “the Secretary needs to ensure that tribes do not take advantage of the

exception to expand gaming operations unduly and to the detriment of other tribes’ gaming

operations.” Defs.’ Mot. at 14, quoting Rancheria v. Jewell, 776 F.3d at 711.

In City of Roseville, the D.C. Circuit considered not only the language, but also the structure

and purpose of the statute in addressing the narrow question before it: whether land restored to a

tribe by statute qualified as “lands taken into trust as part of . . . the restoration of lands” for

purposes of section 20(b)(1)(B)(iii), even if the property was not located on the tribe’s former

reservation. 348 F.3d at 1024.

The general purpose of IGRA is “promoting tribal economic development”
and “self-sufficiency.” A reading allowing the [tribe] to participate in that
economic base furthers this purpose of IGRA while a reading that confines
“restoration of lands” to the old reservation . . . (most of which is now in
the hands of homeowners, many non-Indian, and hence unavailable for
development) would likely deny the Tribe this opportunity.

....

[T]he exceptions in IGRA § 20(b)(1)(B) [25 U.S.C. § 2719(B)(i)(B)] serve
purposes of their own, ensuring that tribes lacking reservations when IGRA
was enacted are not disadvantaged relative to more established ones. The
Cities’ position, that reading the “restoration of lands” exception to refer
only to lands identical or comparable to lands held at the time of termination
prevents “new” tribes from acquiring more rights than “old” ones, would
frustrate this purpose. A tribe’s pre-termination reservation is, as here, not
always available. Given the passage of years between termination and
restoration of federal recognition of tribes, it is likely that earlier reservation
land could not easily be reestablished as a reservation for a restored tribe. .
. . If the “restoration of lands” exception applied only to such lands, the
“equalization” purpose of the exception would mean very little in practice.

....

[I]t would be anomalous for Congress to confine restored tribes to whatever
of their pre-termination reservation is available while simultaneously
allowing acknowledged tribes to conduct gaming anywhere on their initial

23
 reservation. A far more sensible reading is that the “restoration of lands” is
to a restored tribe what the “initial reservation” is to an acknowledged tribe:
the lands the Secretary takes into trust to re-establish the tribe’s economic
viability.

Id. at 1030–31. After reaching this determination, though, the Court was quick to point out the

limits of its ruling: “the court has no occasion to decide whether land obtained by a tribe other

than through the tribe’s restoration act is the ‘restoration of lands’ for IGRA purposes.” Id. at 1026.

In sum, the Circuit was comfortable announcing that restored (past tense) under another statute

means restored for purposes of the IGRA, and the policy considerations that supported its reading

of the text will bear on the reasonableness of the agency’s interpretation in this case as well. But

one cannot conclude based solely on the language of the statute, even when viewed in the context

of its structure and purpose, that Congress left no room for discussion and no gap for the Secretary

to fill with respect to the question of whether a particular parcel a tribe might ask the government

to take into trust to restore to it in the future would qualify.

D. Chevron Step Two: The agency’s interpretation of the statute is reasonable.

Under the traditional application of Chevron step two, a court is to defer to the agency’s

interpretation of the statute as long as it is reasonable, Serono Lab’ys, 158 F.3d at 1321, that is, as

long as it is “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. Here,

though, since the IGRA is a statute that is both ambiguous and intended for the benefit of Indian

tribes, the Indian canon of construction must also be part of the analysis. See Koi Nation, 361 F.

Supp 3d. at 49, citing Ho-Chunk, Inc. v. Sessions, 894 F.3d 365, 369 n.4 (D.C. Cir. 2018).

Plaintiff argues that the regulatory requirement of a “significant” historical connection

imposes an “additional regulatory requirement,” which “does not appear in IGRA and substantially

increases the evidentiary burden on restored tribes.” Pl.’s Mot. at 22. Defendants submit that the

use of the adjective “significant” in Part 292 was simply meant to ensure that tribes had true

24
historic ties to the land they sought to qualify as restored lands under the IGRA. See Defs.’ Mot.

at 14–15.

In undertaking a pure Chevron analysis, a reviewing court would accord “considerable

weight” to an executive agency’s construction of a statutory scheme it has been “entrusted to

administer,” Chevron, 467 U.S. at 844, and as part of that exercise, a court must “look to what the

agency said at the time of the rulemaking—not to its lawyers’ post-hoc rationalizations” when

assessing the reasonableness of its interpretation. Council for Urological Ints., 790 F.3d at 222.

But plaintiff points to nothing in the Notice of Proposed Rulemaking, see Notice of Proposed

Rulemaking, Gaming on Trust Lands Acquired After October 17, 1988, 71 Fed. Reg. 58769

(Oct. 5, 2006) (“Notice of Proposed Rulemaking”), or the Final Rule that reflects an intention to

change or tighten the requirements for securing agency approval under the restored lands

exception.

Instead, the Notice of Proposed Rulemaking states simply that the agency was going to

publish a new rule supplementing the one previously proposed to establish procedures for seeking

a Secretarial Determination under section 2918(b)(1)(A) of the IGRA because it had “determined

that the rule should address not only the exception contained in [section 2719(b)(1)(A)] of IGRA

. . . , but also the other exceptions contained in [section 2719], in order to explain to the public

how the Department interprets these exceptions.” 71 Fed. Reg. 58770 (emphasis added). The

Notice proposed that section 292.11 (“What are ‘restored lands?’”) would read:

For lands to qualify as “restored lands” for purposes of § 292.7, it must be
demonstrated that . . . [i]f there is no restoration legislation, or if the
restoration legislation does not provide geographic parameters . . . , the tribe
has a modern connection and a significant historical connection to the land
and there is a temporal connection between the date of the acquisition of the
land and the date of the Tribe’s restoration[.]

71 Fed. Reg. 58774.

25
 The preamble that accompanied Part 292 when it was promulgated as a Final Rule explains

the thinking behind the requirement that a tribe show a “significant historical connection” to a

parcel for the land to be considered “restored lands” under the IGRA:

[T]he word [“significant”] reinforces the notion that the connection must be
something more than “any” connection. The definition does not include a
temporal requirement because such inquiry is highly dependant [sic] of the
facts and circumstances of each tribe’s historical connection to the land.

73 Fed. Reg. 29366. 10 While it does not appear that any commenters objected to the inclusion of

the word “significant” as being inconsistent with the IGRA, the agency rejected a number of

commenters’ suggestions that would have made it harder to establish a historical connection. For

example, “[o]ne comment suggested that the significant historical connection requirement should

be uninterrupted connection. Another comment suggested that the requirement should show

historically exclusive use.” 73 Fed. Reg. 29360. Interior did not adopt these suggestions because

“they would create too large a barrier to tribes in acquiring lands and they are beyond the scope of

the regulations and inconsistent with IGRA.” Id.

Defendants point to case law predating the enactment of Part 292 in 2008 to show that

Interior previously found it necessary to consider historical connections “in analyzing what

[would] constitute[] ‘restored lands’ within the meaning of IGRA,” and that the use of the word

“significant” in Part 292 did not impose a new requirement or alter the process that had already

been in place. Defs.’ Mot. at 14–15.

In Grand Traverse II, a 2002 case that Interior took into consideration when it formulated

Part 292, see 73 Fed. Reg. 29365, the court analyzed whether land was subject to the IGRA’s

10 In discussing the purpose of the restored lands exception writ large, the preamble notes that
“the purpose of the exception is to assist restored tribes in economic development.” 73 Fed.
Reg. 29365; see also City of Roseville, 348 F.3d at 1030 (“The general purpose of IGRA is
‘promoting tribal economic development’ and ‘self-sufficiency.’”).
26
restored lands exception based on whether it was “located in an area of historical and cultural

significance to the [Grand Traverse Band of Ottawa and Chippewa Indians] that was previously

ceded to the United States.” 198 F. Supp. 2d at 937. It observed that “land that could be considered

part of such restoration might appropriately be limited by the factual circumstances of the

acquisition, the location of the acquisition, or the temporal relationship of the acquisition to the

tribal restoration.” Id. at 935. It considered the Band’s evidence, which the state involved in the

case did not contest, that:

 The land was “at the heart of the region that comprised the core of the
Band’s aboriginal territory and was historically important to the economy
and culture of the Band.”

 The land “ha[d] been occupied by indigenous peoples for thousands of
years,” with “[t]he Band itself [] occup[ying] the region continuously from
at least 100 years before treaty times until the present.”

 “The site [was] at the heart of a region providing a range of important
natural resources for food, shelter, tools, and medicine.”

 “The region also was traversed by a network of trails extending along the
shore of Grand Traverse Bay and connecting to major routes . . . that in turn
connected with trails spreading across the continent.”

 “In the late nineteenth century, Band members continued to reside on the
east shore of Grand Traverse Bay and sought title to land in order to remain
in the region.”

 “[I]n the twentieth century, Band members continued to live on the east
shore and maintained an economic, spiritual and cultural connection to the
area,” which “provide[d] services and economic development to its
members located on the east shore.”

Id. at 926. The court found that the evidence “clearly established that the parcel was of historic,

economic and cultural significance to the Band.” Id. at 936. 11 This finding, along with the fact

11 The “State experts [] opined that other locations also were of historical significance and
arguably were more important to the Band.” Grand Traverse II, 198 F. Supp. 2d at 936. Even if
this was true, the court noted it would “not undermine the evidence of historical significance.” Id.
27
that “at the time of its acquisition, the parcel was intended to be part of a restoration of tribal

lands,” and “[a]s a matter of timing, the acquisition of the Turtle Creek site was part of the first

systematic effort to restore tribal lands,” led the court to conclude that the land at issue “was

acquired as part of a restoration of lands to a restored tribe” under section 2719(b)(1)(B)(iii). Id.

at 937.

Another case that Interior took into consideration when it formulated Part 292 was

Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt. See 73 Fed.

Reg. 29365. In that case, the court found that “the Assistant Secretary did not consider all matters

which might entitle the plaintiff to an exception pursuant to section 2719(b)(1)(B)(iii),” and

therefore remanded the decision “so the agency [could] make its full determination in light of this

opinion.” Babbitt, 116 F. Supp. 2d at 164. Notably, the agency had not considered materials that

“contained information regarding the Confederated Tribes’ historic and cultural connection to the

Hatch Tract,” and therefore, the court “suggest[ed] that the materials should be considered in light

of today’s opinion.” Id. at 165.

The IGRA was also applied by the agency without the benefit of an interpretive regulation

in the Bear River Band of Rohnerville Rancheria Indian Lands Opinion. See Letter from National

Indian Gaming Commission (“NIGC”) Acting Gen. Couns. to NIGC Chairman Deer

(Aug. 5, 2002) (on file at

https://www.nigc.gov/images/uploads/indianlands/2002.08.05%20Bear%20River%20Band%20I

LO.pdf ) [hereinafter Rohnerville ILO]. There, Interior concluded that the land in question fell

within the restored lands exception after considering: (1) the factual circumstances of the

acquisition, id. at 10–11; (2) the location of the parcel at issue, which was off-reservation but

28
contained within an area to which the tribe had a historical nexus, 12 id. at 11–13; and (3) “facts

surrounding the timing of the acquisition,” id. at 14. Based on this evidence, Interior concluded

that the tribe showed “a historical and cultural nexus between the Tribe and the land.” Id. at 14.

These examples illustrate the manner in which Interior evaluated a tribe’s historical

connection to the land in question before Part 292 was promulgated. And in 2018, in Butte County

v. Chaudhuri, the D.C. Circuit found – in an opinion that is binding on this Court – that Interior’s

analysis of a “sufficient historical connection” for purposes of the restored lands exception

remained the same under the old Grand Traverse test and after Part 292 came into play:

After we vacated the Secretary’s decision, the Secretary reassessed whether
the parcel qualified as “restored lands,” this time applying both the Grand
Traverse Band [II] test and the test established by the regulation [Part 292].
The Secretary concluded that, under either test, the parcel constitutes
‘restored lands.’ On appeal, the County argues only that the Tribe lacks a
sufficient historical connection to the Chico parcel. Because that
consideration is common to both tests, we have no occasion to consider
whether one or the other test should control in the circumstances of this
case.

887 F.3d at 508 (emphasis added).

12 The tribe submitted a report that included a narrative description and map showing the
Tribe’s historic use of the area in which the parcel was located.

[W]ithin a one (1) mile radius of the parcel are: a mythic pond that is the
setting of an old tribal story; two (2) aboriginal villages, Howotkil and
Wasala, that were major Wiyot settlements in 1850; and two major trails,
Laloeka and Woxlok, that ran from the Eel River towards the north. Within
a three (3) mile radius of the parcel are: five (5) aboriginal villages,
Tokwherok, Sweanawochkro, Miplok, Wochwochkor, and Hokonwoyok;
and a town founded in 1870 after European contact, Indianola. Between
three (3) and four (4) miles from the parcel is Table Bluff, the site of a
mythic flood in a Wiyot story telling of the re-population of the world.
Within a six (6) mile radius of the parcel are: the first Wiyot town
established after European contact; [and] eleven aboriginal villages.

Rohnerville ILO at 12 (internal citations omitted).
29
 After examining the materials in the Federal Register and the Department’s restored lands

decisions prior to 2008, the Court finds that Part 292 was intended to codify and explain Interior’s

existing practice of requiring tribes to have a significant historical connection to a parcel for the

land to be considered “restored lands” under the IGRA. The agency did not set out to make the

provision more stringent; no commenter objected at the time that the language would have that

effect, and the case law reflects the absence of a change. Therefore, for purposes of the second

step of the Chevron analysis, the Court finds that Part 292 is a permissible interpretation of the

IGRA.

E. The rule of statutory construction relating to Indian affairs does not require
invalidation of the regulation.

Plaintiff argues that even if the “IGRA [were] deemed ambiguous with regard to the

restored lands exception, the court is not obliged to defer to the agency’s interpretation under

Chevron” because “the deference normally extended to reasonable agency interpretation of

ambiguous statutes may be trumped by a special rule applicable to the construction of statutes

regulating Indian affairs, i.e., that statutes enacted for the benefit of Indians must be liberally

construed in favor of Indians, with ambiguous provisions interpreted to the Indians’ benefit.” Pl.’s

Mot. at 23–24. “Because the agency’s interpretation here conflicts with the best interests of a

restored Tribe [Scotts Valley] that Congress intended to benefit, the gloss that the agency imposed

on the statute by requiring that the historical connection be a ‘significant’ one violates IGRA,

construed in accordance with this long-standing canon of statutory construction.” Pl.’s Mot. at 24.

Defendants and the amicus in the case argue that the canon does not apply in this situation

because the outcome sought by plaintiff would benefit one tribe, Scotts Valley, but at the expense

of others, such as the Yocha Dehe Wintun Nation. See Defs.’ Mot. at 20; Mot. to Intervene

[Dkt. # 17] at 1 (asserting that the land sought by Scotts Valley is “the ancestral territory and core

30
gaming market of Yocha Dehe”); Br. of the Yocha Dehe Wintun Nation as Amicus Curiae in Supp.

of the Fed. Defs. [Dkt. # 56] (“Amicus Br.”) at 13–14 (“Scotts Valley’s interests are diametrically

opposed to those of Yocha Dehe and other federally recognized tribes. . . . Therefore, the canon

does not apply.”). The Court does not find this to be a persuasive reason for declining to give any

consideration to the well-established canon.

First of all, the fact that another tribe would be disadvantaged by a decision to take the

parcel into trust for the Band has not yet been established. See Yocha Dehe Wintun Nation v. U.S.

Dep’t of the Interior, 3 F.4th 427, 431–32 (D.C. Cir. 2021) (affirming denial of Yocha Dehe’s

motion for leave to intervene, in part because “neither Yocha Dehe nor its property is the direct

subject of the Indian Lands Opinion [and] that opinion is too many steps removed from Yocha

Dehe’s claimed threat of future harm from Scotts Valley’s casino project for that harm to be

imminent”); Mem. Op. & Order [Dkt. # 33] at 9 (“Yocha Dehe has failed to show that these

potential future harms, which are not yet actual, can be characterized as imminent, or certainly

impending.”) (internal quotation marks omitted). We do not yet know the precise location or size

of any casino that would be approved even if the land were to be taken into trust for the Band. See

Koi Nation, 361 F. Supp. 3d at 50 (rejecting the claim that the canon would not apply on the

grounds that “[t]he purported detrimental impact of one additional tribe potentially being able to

game on ‘restored lands,’ if any are acquired, on other tribes is highly speculative and falls far

short of showing any impact at all, let alone one that is detrimental to Indian tribes generally”).

More importantly, the government cannot point to any authority in this circuit that

recognizes such an exception to the well-settled rule. See Sault Ste. Marie Tribe of Chippewa

Indians v. Bernhardt, 442 F. Supp 3d. 53, 80 (D.D.C. 2020) (noting that there is no circuit authority

establishing the supposed exception, and finding that even if such an exception existed, it would

31
not apply in that case), rev’d on other grounds, 25 F.4th 12 (D.C. Cir. 2022). In Eastern Band of

Cherokee Indians v. U.S. Dep’t of the Interior, 534 F Supp. 3d 86 (D.D.C. 2021), the district court

was faced with a situation that is distinguishable from the one at hand: other tribes – including

one with its own casinos, id. at 91 – were challenging the Department’s decision to take land into

trust for the Catawba tribe, thereby enabling it to construct a casino on the parcel. Id. But

notwithstanding the obvious impact of the agency’s decision and its interpretation of the law on

the competing tribes, the court cited the Indian canon to give the defendant – and thus the tribe

that had been awarded the land – the benefit of any ambiguity in the statute involved. See id. at

100–01 (“This is not due to Chevron . . . but instead because of the principle that, in light of the

trust relationship between the United States and Indians, ‘statutes are to be construed liberally in

favor of the Indians, with ambiguous provisions interpreted to their benefit.’”), citing Blackfeet

Tribe, 471 U.S. at 766. The court also considered the plaintiffs’ argument, based on Ninth Circuit

precedent, that the canon did not apply where “all tribal interests are not aligned.” Eastern Band

of Cherokee Indians, 534 F. Supp. 3d at 101, quoting Rancheria v. Jewell, 776 F.3d at 713. It

agreed with the court in Sault Ste. Marie, 442 F. Supp. 3d at 80, that the law was “unsettled,” but

it observed that the only cases in which the exception had been invoked involved laws, such as the

IGRA, that were generally applicable to all tribes, as opposed to the statute before it, which

contained a specific provision that only benefited one tribe. Id. Ultimately, the court did not reach

the issue since it also concluded that even if the exception existed as a general matter, it did not

apply to the dispute before it. Id.

The government directs the Court to Confederated Tribes of Grand Ronde Cmty. of Or. v.

Jewell, 75 F. Supp. 3d 387 (D.D.C. 2014). In that case, once again, a competing tribal casino and

nearby local governmental bodies were challenging an agency decision to take land into trust for

32
another tribe. The district court stated, “the Indian canon of construction does not apply for the

benefit of one tribe if its application would adversely affect the interests of another tribe,” but it

only cited Ninth Circuit precedent for that proposition. Id. at 396, citing Confederated Tribes of

Chehalis Indian Reservation v. Washington, 96 F.3d 334, 340 (9th Cir. 1996). 13 It is notable,

though, that when the Court of Appeals issued its opinion affirming the judgment in Grand Ronde,

it simply declared itself to be “mindful” of the Indian canon and said nothing about the potential

exception. 830 F.3d at 558.

In sum, there is no binding circuit authority on the matter, the government has pointed to

no case in which a district court applied the exception when it was the tribe whose request for an

ILO was denied that was adverse to the government, and the few district court cases that do

acknowledge the exception predicate those comments on Ninth Circuit authority. This Court does

not find the Ninth Circuit’s pronouncements on exceptions to the canon to be instructive,

particularly since that court does not recognize the canon’s applicability “in light of competing

deference given to an agency charged with the statute’s administration” in the first place. See

Rancheria v. Jewell, 776 F.3d at 713. And here, the dispute involves the government’s application

of its interpretation of a statutory provision to exclude a tribe completely from the benefits

conferred by the IGRA. Under all of these circumstances, the Court will not set aside a settled

principle of statutory construction based on out-of-circuit authority or dicta in non-binding district

court opinions, and it will include the Indian canon as a factor in its analysis.

13 In Connecticut v. U.S. Dep’t of Interior, 344 F. Supp. 3d 279, 314 (D.D.C. 2018), the court
quoted the statement in the district court’s opinion in Grand Ronde, but it found it unnecessary to
go further since the statutory provision at issue was not ambiguous, and therefore the canon would
not come into play. See also Amicus Br. at 13. It also noted, though, that it was not clear that the
provision in question would benefit tribes generally. Connecticut, 344 F. Supp. 3d at 314.
33
 That being said, though, given the findings above that Part 292 did not narrow or

contravene the IGRA in a way that changed the test to be applied, raised the bar to be overcome,

frustrated its purposes, or favored the federal government over all tribes, the Indian canon does not

mandate invalidating the long-standing regulation. Even without the qualifier “significant” in the

challenged regulation, Interior would have been required to assess whether Scotts Valley had

sufficient historic ties to the Vallejo Parcel to support its request under the IGRA. See Defs.’ Mot

at 19 (“[T]he Tribe makes no attempt to argue that, in the absence of the significant historical

connection requirement, the Vallejo Parcel would have qualified as restored lands either under the

Grand Traverse factors or under some other interpretation of IGRA itself.”). Therefore, it is the

agency’s application of that test in this instance that must be subjected to scrutiny, and the

regulation itself will stand.

II. Part 292 does not contradict the IRA.

Plaintiff’s other statutory argument is that even if the Court finds that the restored lands

exception is ambiguous and the Secretary’s interpretation of the statute in Part 292 is entitled to

some deference, “the ‘significant historical connection’ limitation imposed upon IGRA by the

regulation violates another provision of law[,] [s]pecifically the IRA.” Pl.’s Mot. at 24. The IRA

prohibits the federal government from adopting any regulation “that classifies, enhances, or

diminishes the privileges and immunities available to other federally recognized tribes,”

25 U.S.C. § 5123(g), and according to plaintiff, Interior treated Scotts Valley “differently than

restored tribes whose ILO requests were decided before adoption of the Part 292 regulation with

regard to the historical connection requirement.” Pl’s Mot. at 25.

Plaintiff points to a previous agency decision involving the Pokagon Tribe in which,

according to plaintiff, the agency found that the land sought was “part of a restoration simply on

the basis that the lands at issue were within the twenty-county area ceded by the tribe to the United
34
States.” Pl.’s Mot. at 25, quoting Grand Traverse II, 198 F. Supp. 2d at 935. It points to Interior’s

justification for denying Scotts Valley’s application to game on the Vallejo Parcel under the

restored lands exception:

Furthermore, there are fundamental differences between the legal analysis
in the Pokagon Band Opinion and the one required here. First, the Pokagon
Band Opinion predated the implementation of 25 C.F.R. Part 292 by more
than ten years, and it did not discuss the modern, temporal, and significant
historical connections described in § 292.12 that are central to the Scotts
Valley Band determination. Even if the Pokagon Band Opinion established
a standard whereby lands ceded by treaty qualify, per se, as restored lands—
which it does not—the Department did not incorporate that standard into
the criteria deemed necessary for lands to qualify as restored when it
promulgated Part 292, which the Band must now satisfy.

ILO at 9, Admin. R. at AR0011605 (footnotes omitted); see Pl.’s Mot. at 26.

Defendants, on the other hand, contend that Part 292 does not violate the IRA because

“Scotts Valley is not similarly situated to Pokagon Band.” Defs.’ Mot. at 45. At bottom, they

argue, “there was no per se rule applied to the Pokagon Band,” and there “are important factual

distinctions between the Vallejo Parcel from the Pokagon’s restored lands[,] factual distinctions

that have nothing to do with the requirements of Part 292.” Defs.’ Mot. at 44.

The Court has already discussed the Grand Traverse II opinion above. In that case, the

Grand Traverse II court analyzed whether land was subject to the IGRA’s restored lands exception

based on whether it was “located in an area of historical and cultural significance to the Band that

was previously ceded to the United States,” 198 F. Supp. 2d at 937, and it concluded that the

evidence “clearly established that the parcel was of historic, economic and cultural significance to

the Band.” Id. at 936. The court approved the agency’s consideration of multiple historic,

economic, and cultural connections when determining whether the parcel qualified as “restored

lands” under section 2719(b)(1)(B)(iii), and the same process was ultimately codified in Part 292.

35
 Part 292 was intended to memorialize – not alter – Interior’s practice of requiring tribes to

have a significant historical connection to a parcel for the land to be considered “restored lands”

under the IGRA. Therefore, the Court finds that in 2008, when the agency adopted the regulation

that it applied eleven years later in the Scotts Valley ILO, it did not classify, enhance, or diminish

the privileges and immunities available to other federally recognized tribes in violation of the IRA.

III. The agency’s application of Part 292 to the Band’s request for an ILO may satisfy
Chevron, but it is inconsistent with the policy underlying the IGRA, and the Indian
canon of construction requires that any doubts be resolved in favor of the Band.

A. The agency supplied reasons for its decision and applied the factors in the
regulation to the facts before it.

Having determined that the regulation itself passes muster and is a reasonable interpretation

of the IGRA, the next step in the Court’s analysis is to ensure that the ILO is not otherwise arbitrary

and capricious. As the D.C. Circuit has explained, agency action will be upheld if the agency “has

considered the relevant factors and articulated a ‘rational connection between the facts found and

the choice made.’” Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C.

Cir. 2007), quoting Allied Loc. & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 68 (D.C. Cir. 2000).

In the ordinary APA context, this review is “[h]ighly deferential” and “presumes the validity of

agency action.” Id., citing AT&T Corp. v. FCC, 349 F.3d 692, 698 (D.C. Cir. 2003). 14

This is not to say, however, that courts are expected to rubber stamp agency decisions. Nat.

Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000). Courts need not defer to

“conclusory or unsupported suppositions.” United Techs. Corp., Pratt & Whitney Div. v. U.S.

Dep’t of Def., 601 F.3d 557, 562 (D.C. Cir. 2010), quoting McDonnell Douglas Corp. v. U.S. Dep’t

14 Even if the government were to take the position that it was owed limited deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944), see, e.g., City of Roseville, 348 F.3d at 1025, any
decision that passes muster under Chevron necessarily withstands any deference accorded under
Skidmore. See United States v. Mead Corp., 533 U.S. 218, 234–35 (2001).
36
of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004). The Court’s job is “to evaluate the

rationality of [the agency’s] decision.” Mississippi v. EPA, 744 F.3d 1334, 1348 (D.C. Cir. 2013).

It must be satisfied that the agency has examined the relevant data and articulated a satisfactory

explanation for its action, “including a ‘rational connection between the facts found and the choice

made.’” Alpharma, Inc., 460 F.3d at 6, quoting State Farm, 463 U.S. at 43. The Court may not

accept post hoc rationalizations for agency action. State Farm, 463 U.S. at 50, citing Burlington

Truck Lines v. United States, 371 U.S. 156, 168 (1962). Thus, when an agency “has failed to

provide a reasoned explanation, or where the record belies the agency’s conclusion, [the court]

must undo its action.’” City of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999),

quoting Bellsouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999) (internal quotation marks

omitted).

Plaintiff argues that, even if the Department did not act outside of its statutory authority by

requiring tribes to demonstrate a “significant historical connection,” the ILO is arbitrary and

capricious and should be remanded for reconsideration because the opinion: (1) “failed to comply

with the governing regulation”; (2) “failed to take relevant considerations and data into account”;

and (3) “failed to consider the Tribe’s evidence in toto.” Pl.’s Mot. at 27.

A tribe seeking to establish a connection to newly acquired lands for purposes of

section 292.11 must have “been restored to Federal recognition,” 25 C.F.R. § 292.7(a)–(c), 15 and

it must also meet the criteria set out in section 292.12, including that it “demonstrate a significant

15 The ILO acknowledges that Scotts Valley met the requirement of the first part of the two-
part restored lands exception: the tribe “qualified as a restored Tribe for the purposes of the
restored lands exception.” ILO at 3, Admin. R. at AR0011599. It cites to Interior’s publication
of the notice of the Band’s Federal recognition status. ILO at 3, Admin. R. at AR0011599; see
Notice of Reinstatement.
37
historical connection to the land.” 25 C.F.R. § 292.12(b). 16 Pursuant to section 292.2,

“[s]ignificant historical connection means the land is located within the boundaries of the tribe’s

last reservation . . . , or a tribe may demonstrate by historical documentation the existence of the

tribe’s villages, burial grounds, occupancy or subsistence use in the vicinity of the land.”

25 C.F.R. § 292.2.

The ILO sets out the agency’s reasoning as to why the tribe failed to make this connection

to the Vallejo Parcel in a nineteen-page document. It starts by summarizing its decision in

Section I (“Decision”), and then Section II (“Legal Framework”) lays out the applicable legal

framework, which is not disputed. ILO at 1–4, Admin. R. at AR0011597–600. Section III

(“Application of Restored Lands Criteria to the Vallejo Parcel”) contains the agency’s analysis as

to whether the Vallejo Parcel qualifies as “restored lands” within the meaning of the IGRA. ILO

at 4–19, Admin. R. at AR0011600–15. Finally, the ILO concludes with Section IV

(“Conclusion”), a two-paragraph summary of the decision. ILO at 19, Admin. R. at AR0011615.

At the outset in Section III(a), the ILO explained that because Scotts Valley established “a

line of political succession and significant genealogical descent” from two tribes, the Ca-la-na-po

and Mo-al-kai, it would also be necessary to account for any evidence of those tribes’ historical

connections to the Vallejo Parcel. ILO at 4–5, Admin. R. at AR0011600–01.

In Section III(b), the agency considered whether Scotts Valley could demonstrate a

significant historical connection to the Vallejo Parcel based on evidence that “the land is located

within the boundaries of the tribe’s land reservation.” 25 C.F.R. § 292.2. It found that “[b]ecause

the Vallejo Parcel is not located within the boundaries of the Band’s last reservation (or the

16 The ILO notes that Scotts Valley had “demonstrated the required modern and temporal
connections to the Parcel,” which is also mandated by 25 C.F.R. § 292.12. ILO at 3, Admin. R. at
AR0011599.
38
reservation promised to its ancestors),” the Band could not establish the necessary historical

connection in that way. ILO at 5, Admin. R. at AR0011601; ILO at 6, Admin. R. at AR0011602

(“The Vallejo Parcel is located . . . outside of the boundaries of the reservation under the 1851

Treaty” and “is similarly far from the rancheria that the United States acquired for the Band in

1911[.]”). Plaintiff does not appear to dispute this finding.

Section III(c) of the ILO acknowledges that although the Vallejo Parcel is not within the

boundaries of the Band’s last reservation, “a parcel’s proximity to a tribe’s historic reservation or

rancheria is evidence that the tribe has a significant historical connection to that parcel.” ILO at 6–

7, Admin. R. at AR0011602–03 (internal brackets omitted) (ILO citing favorable restored lands

determination for Wilton Rancheria where land at issue was “less than six miles from the tribe’s

historic rancheria,” and determination for Mechoopda Indian Tribe of the Chico Rancheria where

“land at issue was only ten miles from the tribe’s former Rancheria”). But that did not suffice in

the agency’s view either. “[T]he Parcel is located approximately 90 driving miles (75 straight-line

miles) southeast of the former Scotts Valley Rancheria, near the present-day city of Lakeport. As

such, the distance between the Vallejo Parcel and the Band’s historic Rancheria, standing alone,

does not evince a significant historical connection.” ILO at 7, Admin. R. at AR0011603.

Scotts Valley argues that the ILO improperly relied upon the distance of the Parcel from

the Tribe’s former rancheria. “The significant historical connection requirement contains no

geographic proximity limitation, either in the requirement or in the definition,” so, “if lands are

historically significant and located within the same state as the tribe, the distance of restored lands

from the tribe’s aboriginal territory or reservation is irrelevant.” Pl.’s Mot. at 31.

Plaintiff cites an excerpt from the Final Rule in which the BIA responded to a commenter’s

suggestion that “the tribes should be required to analyze sites that are close to aboriginal

39
homelands.” 73 Fed. Reg. 29361; see Pl.’s Mot. at 31. The agency wrote, “[t]his recommendation

was not adopted. Newly acquired lands with significant historical and cultural connections may

or may not include those that are close to aboriginal homelands.” 73 Fed. Reg. 29361. According

to plaintiff, this means “the Department rejected a geographic limitation on the significant-

historical-connection requirement when it promulgated the regulation,” and therefore, the distance

of restored lands from the tribe’s aboriginal territory or reservation should not factor into Interior’s

analysis. Pl.’s Mot. at 31. But while it is true that this statement recognizes that distance may not

be determinative – qualifying parcels “may or may not” be close to aboriginal parcels – it was

simply recognizing that distance alone would not preclude a tribe from establishing a significant

historical connection to a parcel. See Defs.’ Mot. at 28. It did not rule out distance as a fact to be

considered. And here, the ILO did not reject the parcel on that basis, but it observed that distance

between the tribe’s former rancheria and the Vallejo Parcel was not sufficiently close to advance

Scotts Valley’s case without more. See ILO at 7, Admin. R. at AR0011603 (“[T]he distance . . .

standing alone, does not evince a significant historical connection.”); see also Defs.’ Mot. at 29. 17

Next, in Section III(d), the ILO considered whether Scotts Valley could demonstrate a

significant historical connection to the Vallejo Parcel by showing through “historical

documentation the existence of the tribe’s villages, burial grounds, occupancy or subsistence use

17 At bottom, plaintiff and the government are saying the same thing. Plaintiff asserts that
the distance of acquired lands from the tribe’s aboriginal territory or reservation is irrelevant “if
lands are historically significant and located within the same state as the tribe.” Pl.’s Mot. at 31
(emphasis added). The Final Rule said, “[n]ewly acquired lands with significant historical and
cultural connections may or may not include those that are close to aboriginal homelands.” 73 Fed.
Reg. 29361 (emphasis added). So these statements, which are consistent with the requirement in
Part 292 that a tribe seeking to establish a connection to newly acquired lands “located within the
States where the tribe is now located” must “demonstrate a significant historical connection to the
land,” 25 C.F.R. § 292.12(a)–(b), do not answer the question of whether that connection has been
shown.
40
in the vicinity of the land.” 25 C.F.R. § 292.2; see id. § 292.12(b). Because “[t]he Band [did] not

assert that the Parcel [was] in the vicinity of the Band’s villages or burial grounds,” 18 the question

became only whether the tribe could show “occupancy or subsistence use in the vicinity of the

land,” or whether the tribe could show occupancy or subsistence use by the Ca-la-na-po or Mo-al-

kai tribes. ILO at 7, Admin R. at AR0011603.

Section III(d)(i) reviews Scotts Valley’s contention that the fact that the land is located

within the area that its ancestors ceded to the United States pursuant to the unratified 1851 Treaty

was enough to establish a significant historical connection to the Vallejo Parcel. ILO at 7, Admin.

R. at AR0011603; Admin. R. at AR0000016–28. The tribe argued in its request for an ILO that

land which a tribe previously ceded to the United States is land capable of
being “restored” to the tribe within the plain meaning of that term and
therefore is land to which that tribe has a “significant historical connection”
and qualifies as “restored land” (where the other requisite connections—
modern and temporal—exist) when taken into trust for that tribe.

Admin. R. at AR0000016; see Admin. R. at AR0000014–16. The tribe relied on two decisions:

Grand Traverse II and the agency’s Pokagon Band decision. In both cases, the tribes or their

predecessors had ceded land to the United States by way of treaty, and Interior later returned these

lands to the tribes under the restored lands exception. See Grand Traverse II, 198 F. Supp. 2d

at 936–37; Mem. from Solic., U.S. Dep’t of the Interior, to Sec’y (Sept. 19, 1997) (on file at

https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-36991.pdf) [hereinafter

Pokagon Band ILO].

18 See Scotts Valley’s Combined Br. in Opp. to Fed. Defs.’ Cross-Mot. for Summ. J. and
Reply Br. in Supp. of Scotts Valley’s Mot. for Summ. J. [Dkts. # 57, 58] at 10–11 n.8 (“[T]he
Tribe never claimed aboriginal title to the area in the vicinity of the Parcel. The Tribe
acknowledged that its villages were located further north, around Clear Lake, in pre-contact times,
with Patwin villages located in the south near the Parcel.”) (internal citations omitted).
41
 But as the Court has already noted, in Grand Traverse II, Interior also considered the

historic, economic, and cultural connections that the tribe had to the land to determine whether

the parcel at issue qualified as “restored lands.” 198 F. Supp. 2d at 937 (concluding that parcel

sought by Grand Traverse Band was “located in an area of historical and cultural significance to

the Band that was previously ceded to the United States”). Thus, the ILO distinguished the facts

in Grand Traverse II from those presented by Scotts Valley on that basis: for the Grand Traverse

Band, “the land at issue was located only 1.5 miles outside of the reservation,” as opposed to the

90 miles by road outside of the Scotts Valley Band’s aboriginal territory, and the Grand Traverse

tribe had “continuously resided on the land in question for uninterrupted centuries.” ILO at 8,

Admin. R. at AR0011604; see Grand Traverse II, 198 F. Supp. 2d at 925. Accordingly, “[t]he

fact that the parcel fell within the boundaries of land the Band’s predecessors had ceded via treaty

was merely one of several facts supporting that conclusion, but it was not a stand-alone

proposition . . . .” ILO at 8, Admin. R. at AR0011604.

As for the Pokagon Band opinion, Interior reasoned that “[s]ince the lands proposed for

acquisition . . . [were] part of the territory the Bands’ predecessors ceded to the U.S. in earlier

treaties, these proposed acquisitions . . . [were] properly characterized as ‘restored’ lands.”

Pokagon Bands ILO at 7–8. But the lands were also located “within the areas historically occupied

by the tribe[].” Grand Traverse II, 198 F. Supp. 2d at 935 (discussing Pokagon Band’s “essentially

identical history to the Grand Traverse Band”). Further, the parcel sought by the Pokagon Band

was within the tribe’s ten-county “service area,” an area designated by Congress when it restored

the Pokagon Band. ILO at 8–9, Admin R. at AR0011604–05; Restoration of Federal Services to

Pokagon Band of Potawatomi Indians, Pub. L. 103–323, 108 Stat. 2152 (1994) (allowing the

Pokagon Band to “exercise jurisdiction over all its members who reside within the service area in

42
matters pursuant to the Indian Child Welfare Act of 1978 . . . as if the members were residing upon

a reservation”).

Thus, the ILO correctly observed that neither opinion established that “lands ceded by

treaty and subsequently returned to a tribe qualify, per se, as restored lands for the purposes of the

restored lands exception.” ILO at 7, Admin. R. at AR0011603. The ILO did acknowledge that

the location of the Vallejo Parcel within ceded territory created a “favorable inference” for Scotts

Valley, but it concluded that “additional historical connection” was needed for the tribe to make

the necessary showing. ILO at 10, Admin. R. at AR0011606.

In Section III(d)(ii), the ILO analyzed whether the Vallejo Parcel’s designation as a pick-

site for promised supplies from federal officials demonstrated occupancy or subsistence use in the

vicinity of the Parcel by the tribe or its ancestors. ILO at 10–11, Admin. R. at AR0011606–07.

As plaintiff points out in its motion, Article 5 of the unratified 1851 Treaty “directed the delivery

of subsistence provisions, beef and flour, to the signatory tribes each year for a period of three

years ‘at or near Vallejo’ in the ceded territory and part of Rancho Suscol.” 19 Pl.’s Mot. at 3; see

ILO at 10, Admin. R. at AR0011606. But because the arrangement lasted for only three years,

and the location was designated as the pick-up spot only because it was “convenient for federal

officials who were reluctant to deliver provisions to the Clear Lake bands in the mountainous

territory where they lived,” the ILO also rejected this argument. ILO at 10–12, Admin. R. at

AR001606–08. Interior cited the Guidiville Restored Lands Determination, in which Interior was

also deciding whether to acquire a parcel of land in trust for gaming purposes, as instructive. See

Letter from Larry Echo Hawk, Assistant Sec’y – Indian Affairs, U.S. Dep’t of the Interior, to

19 ILO at 13, Admin R. at AR0011609 (Rancho Suscol is the “rancho within which the
Vallejo Parcel is located”); see ILO at 18, Admin. R. at AR0011614 (“the boundaries of Rancho
Suscol would have surrounded the Vallejo Parcel”).
43
Merlene Sanchez, Chairperson, Guidiville Band of Pomo Indians (Sept. 1, 2022) (on file at

https://www.bia.gov/sites/default/files/dup/assets/public/pdf/idc015051.pdf) [hereinafter

Guidiville Band ILO] at 1. The Guidiville tribe submitted evidence of an aboriginal trade route

between the Clear Lake region and the Pacific coast to show “use and occupancy of the Bay Area.”

Id. at 14. But Interior concluded that the Guidiville Band could not

establish its subsistence use or occupancy based on the fact that its ancestors
traveled to various locations to trade and interact with other peoples and
then returned to the Clear Lake region. Subsistence use and occupancy
requires more than a transient presence in an area.

Id. at 14. The situation as it related to Scotts Valley was “analogous,” Section III(d)(ii) reasoned,

and similarly could not establish subsistence use or occupancy. ILO at 11, Admin. R. at

AR0011607.

Section III(d)(iii) went on to discuss whether evidence of the Band’s ancestor Augustine

could demonstrate the presence of other tribal members in close vicinity to the Parcel. ILO at 12–

19, Admin R. at AR0011608–15.

Scotts Valley submitted a report to Interior showing that Augustine was part of a group of

children who were baptized at Mission San Francisco Solano, located fifteen miles from the

Vallejo Parcel. Admin. R. at AR0005300, AR0005303; Pl.’s Mot. at 35; see ILO at 13, Admin.

R. at AR0011609. These children were ethnically identified as “Chujuluya/Potriqui-Yomi” in the

1837 baptismal record; while there was no village known as Chujuluya or Potriqui-Yomi, the

report estimated that these children “represented 60% of the juvenile population of the village,”

Admin. R. at AR0005303, and that “[t]he proportion of the current Scotts Valley Indian population

that is descended from the three Band ancestors baptized at the mission in 1837 is very large,”

with 201 out of 213 Scotts Valley enrolled members descended from these individuals. Admin.

R. at AR0005304; see also Admin. R. at AR0005316, AR0004567–70. With this evidence, the

44
Band sought to confirm a “significant tribal connection” to the Vallejo Parcel. Admin. R. at

AR0005316.

The ILO considered this evidence:

The earliest reference to Augustine suggested by the Band seems to be on a
list of Indian children baptized in 1837 at Mission San Francisco Solano,
located in the city of Sonoma, 17 miles from the Parcel. This list includes
a six-year-old child named Agustin who “could have been [the Band’s
ancestor] Augustine, but this is not verified.” According to the Band,
29 other Pomo children were baptized at the mission at the time, at least
14 of whom were from the same village as Augustine, and at least two of
whom were ancestors of the present-day Band.

ILO at 13, Admin. R. at AR0011609. It continued:

[A]lthough allegedly baptized at Mission San Francisco Solano in Sonoma,
Augustine returned to Clear Lake shortly thereafter to witness Salvador
Vallejo’s takeover.
....

The record does not disclose how long Augustine or any other children
remained in residence at the mission. Nor does the record document the
extent of religious instruction or vocational training received by the Band’s
ancestors, which the Band alleges took place. Thus, insofar as the Band
seeks to establish a close connection with the Parcel based on its ancestors’
presence at the mission, the evidence is insufficient.

ILO at 17, 17 n.119, Admin. R. at AR0011613 (internal citations omitted).

While plaintiff argues that evidence relating to the presence of the tribe’s ancestors at the

Mission San Francisco Solano was “ignored,” Pl.’s Mot. at 35, this is not the case – the ILO directly

addressed the tribe’s evidence pertaining to the presence of the tribe’s ancestors at the Mission San

Francisco Solano but gave it less weight than the Band maintained it deserved, deeming it

“insufficient” to establish a close connection with the Vallejo Parcel. ILO at 17 n.119, Admin. R.

at AR0011613.

The ILO also addressed other evidence that the tribe had submitted showing Augustine’s

presence in the Clear Lake area:

45
 “Augustine had returned to the Clear Lake area by around 1840, where he
observed Salvador Vallejo take ‘formal possession’ of the valley where the
Band’s ancestors lived.” ILO at 13, Admin R. at AR0011609.

 The Vallejo family acquired Ranchos Suscol and Petaluma, and “at any one
time there may have been between 600 and 1000 Indian laborers living
there. . . . Salvador Vallejo raided Pomo Indian communities in order to
force them to work on the ranchos owned by the Vallejos and others. . . .
According to the Band’s historian, the Band’s ancestors, including
Augustine, helped tend the thousands [of] animals that roamed in Big
Valley and drove cattle to slaughter grounds on San Pablo Bay.” ILO at 13–
14, Admin. R. at AR0011609–10 (internal quotation marks omitted).

 “In 1847, Salvador Vallejo sold Rancho Lup-Yomi to new owners, who at
one point used Augustine and other Indians as forced labor to build adobe
houses in Sonoma. Augustine escaped after about a month and fled back to
Clear Lake where his wife and infant child resided.” ILO at 14, Admin. R.
at AR0011610 (internal footnotes omitted).

 “Augustine next appears in an 1850 census . . . that identifies him as a
‘Kulanapo’ chief, living at Clear Lake in an Eastern Pomo village.” ILO
at 14, Admin. R. at AR0011610.

 According to 1870 census data for Napa City Township, “at age 38,
Augustine was living in a household of 17 Indians of varying ages, a
collection of native people working out from the household. The Band also
identifies a few other possible or confirmed ancestors living in Napa in
1870. . . . Augustine and the other Indians in the household may have been
working at nearby Rancho Tulucay at the time, approximately 11 miles
north of the Vallejo Parcel.” ILO at 14–15, Admin. R. at AR0011610–11
(internal footnotes omitted).

 “Augustine’s name next appears in the 1880 census data for Lakeport
Township . . . which places him, age 50, in a household with his wife Mary,
his brother or Mary’s brother, and two younger males, ages 15 and 40. The
1880 Lakeport census lists many other households occupied by Indian
families in the area, which is approximately 90 miles by road (75 straight-
line miles) northwest of the Vallejo Parcel, including the household next to
Augustine’s . . . .” ILO at 15, Admin. R. at AR0011611.

 “By 1911, the year that the United States acquired the Scotts Valley
Rancheria for the Band, a number of Augustine descendants and relatives
were present at the rancheria and continued to reside at Lakeport through
the mid-1900s, although the Band contends that it also maintained a
connection with Napa County through 1918, as demonstrated by a
contemporaneous record indicating that several Scotts Valley people

46
 contracted the Spanish influenza there.” ILO at 15, Admin. R. at
AR0011611.

Section III(d)(iii) of the ILO identifies shortcomings with this evidence as well. First, it

points out that, although the tribe provided evidence about Augustine and other Indian laborers, it

was unable

to demonstrate that its specific predecessors (the Ca-la-na-po and Mo-al-
kai)—as opposed to Indians generally (Pomo or otherwise) in the Clear
Lake area—occupied land or engaged in subsistence use in the vicinity of
the Parcel.
....

Even if the Band were a successor-in-interest not only to the Ca-la-na-po
and Mo-al-kai, but also to the Ha-bi-na-po, the Department cannot assume
without more information that references to Clear Lake Bands and to the
Band’s predecessors are one and the same given the variety of ethnic groups
and the number of tribelets that lived around the lake and worked on North
Bay ranchos.

ILO at 16, Admin. R. at AR0011612.

Moreover, the ILO concluded that “it would be erroneous to attribute the connections made

by a specific tribal member like Augustine, or a handful of members, to the entire Band, or to its

predecessors.” ILO at 16, Admin. R. at AR0011612. It explained:

Augustine’s varied and singular experiences—his possible baptism at the
Mission San Francisco Solano in 1837, his construction of houses in
Sonoma in the late 1840s, his dwelling in Napa in 1870, among others—are
of limited evidentiary value in establishing the significant historical
connections of [the] Band in toto.

ILO at 17, Admin R. at AR0011613. While plaintiff asserts that Interior’s conclusion “directly

contradicts the evidence of Augustine and other members’ actual residence as ranch laborers in

the vicinity of the Vallejo Parcel,” Pl.’s Mot. at 35, it cannot be said that there was no “reasoned

evaluation of the relevant information.” See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 385

(1989).

The ILO goes on to say that

47
 even assuming that Augustine’s living and labor patterns are representative
of those of the Band’s ancestors, such patterns do not constitute occupancy
or subsistence use. In fact, Augustine’s back-and-forth movements between
the Clear Lake area and the North Bay region reveal an inconsistent, if not
transitory, presence at odds with the Band’s claim to occupancy and
subsistence use of the Parcel. 20
....

[E]ven if Augustine’s experience as [a] migrant worker extended to the
Band’s other ancestors, and even if such work constituted occupancy or
subsistence use, there is no evidence—direct or inferential—indicating that
the Band’s ancestors conducted such activity on the Parcel (as opposed to
elsewhere).

ILO at 17–18, Admin R. at AR0011613–14. Interior contrasted evidence of Augustine’s “back-

and-forth movements,” ILO at 17, Admin R. at AR0011613, with the evidence that it considered

in Grand Traverse II. The Grand Traverse Band had “occupied the region continuously from at

least 100 years before treaty times until the present,” which contributed to Interior’s decision that

the parcel the Grand Traverse Band sought was historically significant. 198 F. Supp. 2d at 925;

see id. at 936. And although the Scotts Valley ILO noted that “the definition of a ‘significant

historical connection’ does not include a temporal requirement” – and the government maintains

that no such showing was required, see Defs.’ Mot. at 26 – Interior found that “Augustine’s on-

again, off-again presence in the North Bay region over a 30- to 40-year span stands in stark contrast

to the description of, for example, the Grand Traverse Band’s continuous, centuries-old connection

20 Plaintiff also points to a report in the record that describes labor patterns of Indians from
Clear Lake. Pl.’s Mot. at 36; see Admin. R. at AR0005026. It argues that “this important evidence
. . . goes directly to the evidentiary defects in the Tahsuda letter and yet was ignored.” Pl.’s Mot.
at 36. But the ILO does not ignore this evidence. Rather, it explains that even if Augustine’s labor
movements between the Clear Lake area and the North Bay region were representative of the
tribe’s ancestors, they would still not demonstrate occupancy and subsistence use of the Vallejo
Parcel. ILO at 17, Admin. R. at AR0011613; ILO at 14, Admin. R. at AR0011610 (noting that
between 1850 and 1870, “Indians from the Clear Lake area started engaging in a pattern of migrant
labor on ranchos south of their aboriginal territory” and “mixed seasonal work on ranchos in Napa
Valley and elsewhere in the North Bay region with subsistence farming and fishing at Clear Lake”)
(internal footnotes omitted).
48
to the parcel of land at issue in Grand Traverse Band.” ILO at 17, Admin. R. at AR0011613

(internal footnotes omitted). 21

Finally, Section III(d)(iii) explained that “[i]f the Band [could not] provide direct evidence

of historic use or occupancy on the Parcel itself, then it must provide direct evidence of historic

use or occupancy close enough to the vicinity of the Parcel that one could naturally infer that the

Band also used or occupied the Parcel.” ILO at 18, Admin R. at AR0011614. 22 The Band had

asserted that its ancestors worked at various ranchos owned by the Vallejos and asked Interior to

draw an inference that its ancestors also worked at Rancho Suscol, the ranch surrounding the

Vallejo Parcel. ILO at 18, Admin. R. at AR0011614. But in the agency’s view, this was not

enough or the “direct evidence” needed; the ILO concluded that “such an inference, even if

21 Plaintiff maintains that “the Tahsuda letter overlooked another pre-regulation decision for
the Karuk Tribe,” where “the Department relied principally upon the location of the parcel in an
area ceded by the tribe in an unratified treaty (like the Tribe here), corroborated with evidence of
episodic tribal activity in the area.” Pl.’s Mot. at 30. While the Karuk Indian Lands opinion does
not describe the tribe’s connection to the lands it sought for gaming as uninterrupted, Interior’s
NIGC concluded that the lands requested by the Karuk tribe were eligible for gaming because the
tribe’s connection to the lands were “long-standing” and “significant.” Mem. from John R. Hay,
Senior Att’y, NIGC, to Tracie Stevens, Chairwoman (Apr. 3, 2012) (on file at
https://www.nigc.gov/images/uploads/indianlands/Karuk4912.pdf) at 10–11. This was based on
a report that found that the tribe’s aboriginal sub-entities maintained camp sites on the parcel at
issue, and that the tribe conducted other activity on the parcel prior to federal recordkeeping for
that area. Id. at 10.

22 During the motions hearing, Interior elaborated:

[T]he vicinity language . . . broadens the amount of things that a tribe could
bring in to show their connection with the parcel because Interior didn’t
want to limit it strictly to the parcel because that could be very difficult or
even impossible in some situations. So what Interior said is if you can show
us that you have sufficient use, occupancy in the vicinity of the parcel, we
can infer that you used the parcel for ‘in the vicinity’ is enough. As I said,
here they did not even show they were close enough in the vicinity to imply
use of the actual parcel.

Tr. of Mots. Hr’g at 47:2–11, Scotts Valley Band of Pomo Indians v. U.S. Dep’t of the Interior,
No. 19-cv-1544 (D.D.C. Feb. 25, 2022) [Dkt. # 62].
49
granted, is insufficiently broad and cannot serve as the basis to connect the Band with the Parcel

itself.” ILO at 18, Admin. R. at AR0011614.

Plaintiff argues that this conclusion demonstrates that the ILO improperly required

evidence of tribal use to reflect use of the “particular parcel itself.” Pl.’s Mot. at 28. It points to

the Butte County case, where the Secretary of the Interior concluded that the Mechoopda Tribe

had a sufficient historical connection to the Chico parcel because the “parcel sits only ‘10 miles

from the Tribe’s former Rancheria,’” and “[i]n light of that ‘close proximity,’ the Secretary

considered it appropriate to treat the Tribe’s historical connections to the Rancheria as connections

to the parcel itself.” Butte County, 887 F.3d at 508. The county in which the parcel of land was

located challenged the Secretary’s decision to take the land into trust, but it did “not dispute that

the Tribe ha[d] meaningful historical connections to the Rancheria,” or dispute whether those

connections were an “‘adequate and independent’ rationale” that would support the Secretary’s

decision. Id. Therefore, the Court did not “resolve the adequacy of [the Secretary’s] rationale.”

Id. But in addition to the proximity evidence, the Secretary also considered that “the Tribe also

had direct historical connections to the Chico parcel, not just the nearby Rancheria,” because: “its

members had been scattered across several villages located on, or ‘very close to,’ the parcel”;

members “almost certainly traversed it to reach other tribes with whom they traded and participated

in joint religious ceremonies”; “[t]he Tribe also hunted, fished, and gathered on the parcel”; and

“the Mechoopda negotiated a treaty with the federal government, which, if ratified, would have

included the Chico parcel within the Tribe’s reservation.” Id. (emphasis added). The Court found

that this rationale withstood arbitrary and capricious review. Id. at 510. So contrary to plaintiff’s

assertion, the Court did not “ma[k]e plain that the historical connection must be in the vicinity of

the parcel, not necessarily to the parcel itself.” Pl.’s Mot. at 29 (emphasis in original). And

50
although the Secretary in Butte County found that the Mechoopda tribe had a historical connection

to the parcel in part because of the parcel’s close proximity to the tribe’s former rancheria, the

Secretary also considered the tribe’s connections to the parcel itself. 887 F.3d at 508. 23

In sum, the agency provided a reasoned basis for its decision, which was based on the

record. It did not overlook or ignore materials supplied by the Band; it considered them and

supplied a rational connection between its assessment of those facts and its conclusions. See Nat’l

Ass’n of Clean Air Agencies, 489 F.3d at 1228. Interior’s findings cannot be said to be conclusory,

unexplained, or unsupported, and therefore, from a pure administrative law perspective, the

agency’s application of Part 292 to the facts presented by Scotts Valley comports with the APA,

whether the deference accorded is “muted” or robust.

But in this case, the review of agency action does not operate in a vacuum, and the equally

important evaluation of the decision through the lens of the Indian canon of construction requires

that the decision be vacated and remanded to the agency.

B. The ILO does not take the government’s role in weakening the historical
connection between the Band and its land into account, and given the fundamental
remedial nature of the restored lands exception and the Indian canon of
construction, any ambiguity or doubt when applying the regulation must be
resolved in favor of the Band.

Plaintiff contends that because the ILO “failed altogether” to consider Congress’s policy

objectives for the IGRA, the decision should be remanded for further consideration. Pl.’s Mot.

23 See also Admin. R. [Dkt. # 127-2] at AR_NEW_0005402, Butte County v. Hogen, 08-cv-
519 (submitted to district court) (“The land at issue here is located approximately 10 miles from
the Tribe’s former Rancheria. The former Rancheria site clearly is historically significant to the
Tribe and we find it to be a proximate location to the subject parcels. . . . In this case, the Stipulation
and Order restoring the Tribe to Federal recognition effectively precludes the Tribe from acquiring
any trust lands for the purpose of gaming within the boundaries of the former Rancheria, even if
those lands were available for purchase. Therefore, it is reasonable for the Tribe to seek a
restoration of lands on a parcel that is located in close proximity to its former Rancheria, rather
than within it.”).
51
at 34. And it is correct that the agency failed to grapple with the inescapable historical fact that

Scotts Valley was a tribe that had its recognition and land stripped away by the federal government

and its people scattered to the winds. Nor did it address the fact that the purpose – the only purpose

– of the IGRA exception at issue is to restore tribes in this position to some semblance of the status

they enjoyed before, with the opportunity to sustain themselves economically.

At bottom, much of the assessment in the ILO is subjective, as the agency lacks quantitative

standards to apply, notwithstanding the promulgation of Part 292. The determination here turns

upon the application of an imprecise adjective – “significant” – and this means that the agency was

operating in an arena filled with ambiguity and discretion.

And that is exactly when the canon demands that any doubt be resolved in favor of the

Tribe.

Even though this aspect of the case does not question the interpretation of a statute directly,

because it seeks review of an ILO and how it applied a regulation that construes the statute, the

Court is of the view that the canon bears on the analysis. In the CETAC case, for example, when

a non-profit organization opposed to gambling was challenging Interior’s decision, based on

reasoning set forth in an opinion letter, to take land into trust, the Court of Appeals found the

decision to be a sufficiently formal interpretation of the IGRA to be subject to Chevron deference,

but also subject to the Indian canon. 492 F.3d at 464–65, 471. And in this case, Tahsuda

announced in his “decision” that the Department had “determined” that the Parcel did not qualify

52
as restored lands “within the meaning of applicable law,” that is, the statute. ILO at 2, Admin. R.

at AR0011598. 24

24 In CETAC, the Secretary relied upon an opinion letter issued by the Associate Solicitor for
Indian Affairs when reaching his determination to take the land in trust, and it is true that the Court
found the determination to be sufficiently formal to be due Chevron deference based in part on the
fact that the decision and the letter upon which it was based had been published in the Federal
Register. See 492 F.3d at 467 (“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 [F]ederal [R]egister is not in itself sufficient to constitute an agency’s
intent that its pronouncement have the force of law . . . 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.”) (internal citation omitted).

Here, though, the Tahsuda letter can also be characterized as “a deliberating agency’s self-
binding choice,” as he repeatedly refers to his determination about the applicability of the statutory
“restored lands” exception as the “decision.” See, e.g., ILO at 1, 2, Admin. R. at AR0011597,
AR0011598. And if there were any lingering doubts as to the finality of the ruling, the Assistant
Secretary for Indian Affairs nailed the door shut when she denied the Band’s request for
reconsideration:

The Department’s regulations concerning administrative finality are clear:
“[d]ecisions made by the Assistant Secretary – Indian Affairs [AS-IA] . . .
shall be final for the Department and effective immediately unless the AS-
IA provides otherwise in the decision.” 25 C.F.R. § 2.6(c). Here, no
language in the Decision qualifies it as anything other than a final
determination, or otherwise subject to further review within the
Department. Rather, the Decision is a final agency decision “subject to
judicial review under 5 U.S.C. 704.” 25 C.F.R. § 2.6(a).

Letter from Tara Sweeney, Assistant Sec’y – Indian Affs., U.S. Dep’t of the Interior, to Shawn
Davis, Chairman, Scotts Valley Band of Pomo Indians (Apr. 26, 2019), Ex. K to Decl. of Arlinda
F. Locklear in Supp. of Mot. to Complete the Admin. Rec. [Dkt. # 28-2] (“April 26, 2019 Letter”)
at 1 (brackets in original); see Fed. Defs.’ Opp. to Pl.’s Mot. to Complete the Admin. Rec.
[Dkt. # 30] at 4–5, quoting April 26, 2019 Letter at 1. Therefore, the observation in a footnote in
Butte County v. Hogen, 613 F.3d 190, 195 n.3 (D.C. Cir. 2010), that ILOs are “advisory” and not
binding on the persons vested with the authority to make final agency decisions is not applicable
here; the ILO was the agency’s final decision. The Department has declared repeatedly in this
litigation that its application of the statute in the decision comports with, and is therefore due the
respect called for by, the APA, see, e.g., Defs.’ Mot. at 32 (“Interior applied the appropriate
statutory and regulatory requirements and did not violate the APA.”), and this is the precise
circumstance when courts are required to consider the canon as well.
53
 It is not clear from the ILO how the Band could ever attain a different result given how

completely it was dispersed or what harm would flow to the United States from doing what is in

its power to do to make up for the disadvantages the tribe now faces through no fault of its

own. Given the clear law in this circuit that directs district courts to favor the tribes, the Court

concludes that it is incumbent upon it to deny the government’s motion on these grounds and to

grant the plaintiff’s.

There is no question that “Congress enacted IGRA, 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.’” Taxpayers of Michigan Against

Casinos v. Norton, 433 F.3d 852, 865 (D.C. Cir. 2006), quoting 25 U.S.C. § 2701(1). The Circuit

repeated that statement in CETAC, 492 F.3d at 462, 468, and added that this “primary purpose . .

. 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.” Id. at 468; see also Koi Nation, 361 F. Supp. 3d at 50.

The notion that the exceptions were included in the statute to serve a remedial purpose is

something the D.C. Circuit has underscored repeatedly. In City of Roseville, the Court was focused

on another aspect of the restored lands exception, but it spoke generally about the purposes of the

exception and its remedial function:

Had the Auburn Tribe never been terminated, it would have had
opportunities for development in the intervening years, including the
possible acquisition of new land prior to the effective date of IGRA. A
“restoration of lands” compensates the Tribe not only for what it lost by the
act of termination, but also for opportunities lost in the interim.

348 F.3d at 1029; see also id. at 1030 (“[T]he exceptions in IGRA § 20(b)(1)(B) serve purposes

of their own, ensuring that tribes lacking reservations when IGRA was enacted are not

disadvantaged relative to more established ones.”), 1032 (recognizing “the role that IGRA’s
54
exceptions in § 20(b)(1)(B) play in the statutory scheme, namely to confer a benefit onto tribes

that were landless when IGRA was enacted”). This was reiterated in 2018 in the Butte County

decision, which stated that the restored lands exception “helps ensure ‘that tribes lacking

reservations when [the statute] was enacted are not disadvantaged relative to more established

ones.’” 887 F.3d at 503, quoting City of Roseville, 348 F.3d at 1030.

This review of the purpose of the statute in the eyes of the Court of Appeals strengthens

the Court’s view that it will not forgo applying the canon because of the possibility that a favorable

ruling for the Band could result in economic competition for another tribe. The point of this

exception, according to the Circuit, was to provide some recompense – to place a tribe on an equal

footing with other tribes that had not been rendered as unable to maintain a connection to their

own land or that had been restored earlier. See CETAC, 492 F.3d at 468. Depriving the Band –

which was not restored to federal recognition until 1991, three years after the IGRA was passed –

of the benefit of the canon of construction at the behest of a better-positioned tribe would frustrate

that policy and the purposes behind the canon itself.

Moreover, there is ample material in the ILO to support a finding in the Band’s favor if all

inferences are resolved to its benefit. The agency cited facts that weighed in the Band’s favor, but

then chose to devalue them.

First and foremost, this land was part of the territory that the Band’s ancestors ceded to the

United States in 1851. ILO at 7, Admin. R. at AR0011603. According to the Tahsuda letter, this

creates an inference of a significant historical connection. ILO at 10, Admin. R. at AR0011606.

But then the agency sets it aside and says, “well . . . what else have you got?” Even if the agency

was correct when it concluded that neither of the two previous opinions plaintiff cited required the

agency to find the necessary connection on this evidence alone, see ILO at 7, Admin. R. at

55
AR0011603, it is certainly a “significant” circumstance under any ordinary understanding of the

meaning of the word, and Interior’s parsimonious interpretation falls short of construing the law

liberally and interpreting any ambiguous provision to the tribe’s benefit, especially when one

considers all of the things the Band could have done with its land in the years that went by before

the United States acquired the Sugar Bowl Rancheria for the Band in 1911, or after 1958, when

the government stripped the Band of that reservation and the recognition it had to litigate to restore.

Also, the agency declined to attribute Augustine’s connections to the land to the Band as a

whole, and it did so, in part, by characterizing the evidence as if it related to just one man, when

even the information it described clearly indicated the presence of others in the region. For

example, the ILO states:

The earliest reference to Augustine suggested by the Band seems to be
on a list of Indian children baptized in 1837 at Mission San Francisco
Solano, located in the city of Sonoma, 17 miles from the Parcel. . . .
According to the Band, 29 other Pomo children were baptized at the
mission at the time, at least 14 of whom were from the same village as
Augustine, and at least two of whom were ancestors of the present-day
Band.

ILO at 13, Admin. R. at AR0011609. But this is later characterized by the agency as one of

Augustine’s “singular experiences,” ILO at 17, Admin R. at AR0011613, as was the evidence that

other “possible or confirmed Band ancestors [were] living in Napa in 1870” and may have been

working at a rancho approximately 11 miles north of the Vallejo Parcel. ILO at 14–15, Admin. R.

at AR0011610–11.

The Court recognizes that it is not its role to scour through the ILO and substitute its

judgment for that of the agency. See State Farm, 463 U.S. at 43. The point of these examples is

to illustrate that while one can read the opinion with only a Chevron hat on and nod along, a

different outcome is required if one gives the Band the benefit of every inference and interprets

the restored lands exception and the regulation adopted to clarify – but not narrow – it in a manner
56
that resolves any doubt in the Band’s favor. Therefore, the Court will grant plaintiff’s motion for

summary judgment on this issue and find the ILO to be arbitrary and capricious.

IV. The agency’s decision was not procedurally deficient.

Plaintiff also challenges the ILO on the grounds that then-Principal Deputy John Tahsuda

lacked the delegated authority to issue the opinion. Pl.’s Mot. at 11–15.

The IRA authorizes the Secretary of the Interior to acquire land into trust for the benefit of

Indian tribes. See 25 U.S.C. § 5108. The IGRA accords the Secretary the discretion to determine

when exceptions apply to the prohibition of gaming on these lands. See

25 U.S.C. § 2719(b)(1)(A); see also Pl.’s Mot. at 11; Defs.’ Mot. at 37. Interior’s Departmental

Manual (“DM”) gives the Secretary “broad power to delegate authority,” DM, Part 200, Chapter 1,

Section 1.2, https://www.doi.gov/sites/doi.gov/files/elips/documents/200-dm-1.pdf; and in turn,

“the Assistant Secretary – Indian Affairs is authorized to exercise all of the authority of the

Secretary.” DM, Part 209, Chapter 8, Section 8.1,

https://www.doi.gov/sites/doi.gov/files/elips/documents/209-dm-8.pdf. 25

Pursuant to Part 109 of the DM:

The Assistant Secretary – Indian Affairs discharges the duties of the
Secretary with the authority and direct responsibility to strengthen the
government-to-government relationship with Indian tribes; advocate
policies that support Indian Self-Determination; protect and preserve Indian
trust assets; and administer a wide array of laws, regulations, and functions
relating to Indian tribes, Alaska Natives, individual Indian tribal members,
and Indian affairs that are vested in the Secretary by the President and the
Congress of the United States.

25 Portions of the Departmental Manual, including this provision, have been provided to the
Court. See, e.g., DM, Ex. 9 to Defs.’ Mot. [Dkt. # 48-9]. Because all portions of the Manual can
be accessed at https://www.doi.gov/elips/browse, the Court will cite to the version available
online.
57
DM, Part 109, Chapter 8, Section 8.1,

https://www.doi.gov/sites/doi.gov/files/elips/documents/109-dm-8.pdf [hereinafter 109 DM 8].

The Assistant Secretary – Indian Affairs may also redelegate authority, including “general

administrative authority and those program authorities specifically related to the functions and

responsibilities assigned to the Assistant Secretary – Indian Affairs in 109 DM 8.” DM, Part 209,

Chapter 8, Section 8.3, https://www.doi.gov/sites/doi.gov/files/elips/documents/209-dm-8.pdf.

But any “[r]edelegations of authorities made by Assistant Secretaries” must be “issued in the form

of Departmental Manual releases only, and published in the appropriate Parts of the 200 Series of

the Departmental Manual.” DM, Part 200, Chapter 3, Section 3.4,

https://www.doi.gov/sites/doi.gov/files/elips/documents/200-dm-3.pdf. “No other form of

redelegation is authorized.” DM, Part 209, Chapter 8, Section 8.3,

https://www.doi.gov/sites/doi.gov/files/elips/documents/209-dm-8.pdf.

Part 110 of the Departmental Manual details how the Office of the Assistant Secretary –

Indian Affairs is to be organized. The role of the Assistant Secretary for Indian Affairs is set out:

The Assistant Secretary – Indian Affairs discharges the duties assigned by
the Secretary and provides direction and leadership over the Office of the
Assistant Secretary – Indian Affairs (ASIA), the Bureau of Indian Affairs
(BIA), and the Bureau of Indian Education (BIE). The Assistant Secretary
– Indian Affairs carries out the duties of the office with the assistance of a
Principal Deputy Assistant Secretary and Deputy Assistant Secretaries who
report to the Principal Deputy Assistant Secretary.

DM, Part 110, Chapter 8, Section 8.1,

https://www.doi.gov/sites/doi.gov/files/elips/documents/110-dm-8_0.pdf. The Principal Deputy

Assistant Secretary’s (“PDAS”) role is also detailed:

The [PDAS] serves as the first assistant and principal advisor to the
Assistant Secretary – Indian Affairs in developing and interpreting program
policies affecting Indian Affairs (IA) and discharges the duties assigned by
the Assistant Secretary – Indian Affairs. The PDAS manages, directs, and
coordinates functions to strengthen the government-to-government
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 relationship with Indian tribes and Alaska Native villages in support of the
Federal policy of Indian Self-Determination; is responsible for new and
revised regulations to address new statutory requirements; development and
management of the IA dispute resolution program . . . ; and regulation of
Indian gaming.

DM, Part 110, Chapter 8, Section 8.2,

https://www.doi.gov/sites/doi.gov/files/elips/documents/110-dm-8_0.pdf [hereinafter

110 DM 8.2].

The same section of the Departmental Manual that authorizes the Assistant Secretary –

Indian Affairs to exercise all of the authority of the Secretary also specifically provides for a role

to be played by the PDAS. This official “is delegated all program and administrative authorities

of the Assistant Secretary – Indian Affairs necessary to fulfill the responsibilities identified in

110 DM 8.2,” DM, Part 209, Chapter 8, Section 8.4,

https://www.doi.gov/sites/doi.gov/files/elips/documents/209-dm-8.pdf, which includes, as set

forth above, “regulation of Indian gaming.” DM, Part 110, Chapter 8, Section 8.2,

https://www.doi.gov/sites/doi.gov/files/elips/documents/110-dm-8_0.pdf. Indeed, the Office of

Indian Gaming reports to the PDAS. Id.

The tribe argues that Tahsuda lacked the delegated authority to render the ILO because

there was neither a “specific redelegation of authority held by AS-IA [(“Assistant Secretary –

Indian Affairs”)] to make decisions on ILOs,” nor “a general redelegation of all authority held by

the AS-IA to the PDAS, comparable to that from the Secretary to the AS-IA.” Pl.’s Mot. at 13.

This does not invalidate the opinion in the Court’s view. The Manual clearly accords the Principal

Deputy Assistant Secretary “all program and administrative authorities” of the Assistant Secretary

necessary to fulfill the responsibilities in Part 110, subject only to the limitations set out in 200

DM 1, which do not bear on the issue at hand. DM, Part 209, Chapter 8, Section 8.4,

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https://www.doi.gov/sites/doi.gov/files/elips/documents/209-dm-8.pdf. 26 The PDAS is

authorized to exercise program and administrative authority over the regulation of Indian gaming.

Since a tribe that seeks to game on newly acquired lands must submit a request for an opinion to

the Office of Indian Gaming, 25 C.F.R. § 292.3, and the Office of Indian Gaming reports directly

to the PDAS, the Manual and the structure of the agency support the conclusion that the PDAS

can consider and issue Indian Lands Opinions to determine whether a tribe may game on certain

lands. In sum, the Principal Deputy’s authority over the “regulation of Indian gaming” was

delegated from the Assistant Secretary, and in turn, from the Secretary, who has the statutory

authority to regulate gaming on Indian lands. See 25 U.S.C. § 2719. 27

Therefore, the Court finds that the then-Principal Deputy Assistant Secretary – Indian

Affairs had the delegated authority to issue the ILO that plaintiff challenges in this case.

26 The limitations in “200 DM 1” restrict “any officer or employee of the Department [from]
exercis[ing] authority which the Secretary by the terms of the legislation, Executive order or other
source of authority may not redelegate.” DM, Part 200, Chapter 1, Section 1.2,
https://www.doi.gov/sites/doi.gov/files/elips/documents/200-dm-1.pdf. There are other “general
limitations” set out in this section of the Manual, such as “authority to issue documents in the Code
of Federal Regulations initiated by the Department of the Interior,” “conducting official
correspondence with the president,” and “perform[ing] legal work related to the function
designated.” Id. at Section 1.6. None of these limitations appear to be applicable.

27 The tribe also argues that Interior’s 2008 guidance clarifies that it is primarily the Office
of Indian Gaming that must make restored lands recommendations to the Assistant Secretary –
Indian Affairs. Pl.’s Mot. at 16–18. Even if this guidance is current – which defendants maintain
it is not – the guidance does not suggest that the PDAS may not play a role in the ILO process, and
there is no evidence in the record to support plaintiff’s contention that OIG was “exclude[ed]”
from the decision-making process. See Mem. from Carl J. Artman, Assistant Sec’y – Indian Affs.,
to Assoc. Solic., Div. of Indian Affs. and Dir., Off. of Indian Gaming (May 22, 2008), Ex. 1 to
Pl.’s Mot. [Dkt. # 48-4].
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 CONCLUSION

The Court finds that the Department of the Interior did not act outside of its statutory

authority under the Indian Gaming Regulatory Act or the Indian Reorganization Act when it

promulgated Part 292, a regulation requiring tribes to demonstrate a “significant historical

connection” for purposes of the restored lands exception. But it concludes that the agency’s

application of its regulation to the Band under the particular factual circumstances of this case was

inconsistent with the canon of Indian construction and clear policy behind the IGRA and the

restored lands exception, and therefore, the February 7, 2019 ILO cannot withstand arbitrary and

capricious review. Plaintiff’s motion for summary judgment will therefore be GRANTED with

respect to the question of whether the ILO was arbitrary and capricious when considered in

accordance with the Indian canon of statutory construction, and DENIED with respect to whether

Part 292 violates the IGRA or the IRA, and whether the agency’s decision is a result of a flawed

decision-making process. Defendants’ cross-motion for summary judgment will be GRANTED

with respect to the questions of whether the agency exceeded its statutory authority in issuing Part

292, whether it was lawful for the then-Principal Deputy Tahsuda to issue the ILO, and whether

the agency otherwise followed appropriate procedures, but it will be DENIED with respect to

whether the ILO was arbitrary and capricious.

Therefore, the Court will remand the ILO to the agency for further proceedings consistent

with this opinion.

A separate order will issue.

AMY BERMAN JACKSON
United States District Judge
DATE: September 30, 2022

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