dissenting:
I.
The State of Texas permits certain types of gaming equivalent to Class III gaming as defined by the IGRA. But Texas adamantly refuses to negotiate with the Kickapoo Traditional Tribe towards a Class III gaming compact under the IGRA and has blocked the tribe from seeking a remedy in federal court by invoking its right to Eleventh Amendment sovereign immunity from suit. Therefore, the Tribe pursued its only alternate remedy of asking the Secretary of the Interior to issue Class III gaming procedures under the Secretarial Gaming Procedures, 25 C.F.R. §§ 291.1-291.15. The Secretary requested comment from the State of Texas pursuant to 25 *513C.F.R. § 291.7, but the state declined to comment. The Secretary has not yet taken final action on the Tribe’s proposal.
The State of Texas brought this action against the Secretary, the Department of the Interior and the United States challenging the authority of the Secretary to promulgate the Secretarial Gaming Procedures regulations and seeking to permanently enjoin the application of 25 C.F.R. § 291.1, et seq., in respect to the state of Texas. The Kickapoo Traditional Tribe intervened. The district court ruled that Texas’s claims were not ripe, but expressed its opinion that the regulations were validly promulgated and should be upheld. Texas v. United States, 362 F.Supp.2d 765 (W.D.Tex.2004). Texas appealed. The defendants-appellees and the intervenor contend that Texas’s suit should be dismissed because it lacks standing, its claim is not ripe, and the Secretarial Gaming Procedures regulations are valid. I pretermit the serious standing and ripeness issues but dissent from the merits of Chief Judge Jones’ opinion, portions of Judge King’s opinion, and the judgment for the following reasons.
II.
The principles governing our review of the Secretary’s interpretation and implementation of the pertinent statutes are well established. Administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Congressional delegation to an administrative agency of authority generally to make rules carrying the force of law may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice-and-comment rule-making, or by some other indication of a comparable congressional intent. Mead, 533 U.S. at 227, 121 S.Ct. 2164.
When Congress has explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation, and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. Id. Considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer. Id. “The power of an administrative agency to administer a congressionally created and' funded program necessarily requires the formulation ofpolicy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231-32, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974).
When circumstances imply that Congress would expect an agency to be able to speak with the force of law, even though Congress may not have expressly delegated authority or responsibility to implement a particular provision, a reviewing court has no business rejecting an agency’s exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency’s chosen resolution seems unwise, and instead is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue, and the agency’s interpretation is reasonable. Id. at 229, 94 S.Ct. 1055.
*514III.
The regulations challenged here, pertaining to the Secretarial Gaming Procedures, deserve Chevron deference because Congress explicitly authorized the Secretary to promulgate regulations to carry into effect any statute relating to Indian affairs or arising out of Indian relations, see 25 U.S.C. §§ la, 2 & 9; and implicitly authorized the Secretary to promulgate the regulations at issue here to fill the gap in the IGRA created by Congress’s unintentional failure to provide for the unforeseen ineffectiveness of a federal court suit as the tribal remedy in cases in which a state refused to bargain in good faith and invoked its Eleventh Amendment sovereign immunity; the regulations are reasonably designed and appropriate for carrying into effect the IGRA after the ineffectiveness of its remedial provision was revealed by Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); and the regulations are binding in the courts because they are not procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statutes.
Beginning in 1832 and 1834, Congress explicitly authorized the President through the Secretary of the Interior to “prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs,” 25 U.S.C. § 9; and to authorize the Commissioner of Indian affairs to, “under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian, affairs and of all matters arising out of Indian relations.” 25 U.S.C. § 2.1 Acting pursuant to these broad powers, the Secretary has, following formal notice-and-comment rule-making procedures, promulgated procedures governing numerous programs and activities related to Indian affairs and relations.
Prior to the enactment of the IGRA, states generally were precluded from any regulation of gaming on Indian reservations. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). The IGRA, by offering states an opportunity to participate with Indian tribes in establishing gaming through a tribal-state compact, “extend[ed] to the States a power withheld from them by the Constitution.” Seminole, 517 U.S. at 58, 116 S.Ct. 1114. Consequently, it is clear that before the enactment of the IGRA, the Secretary could have adopted, under 25 U.S.C. §§ la, 2, & 9, regulations approving and governing gambling on Indian reservations to the extent it was not prohibited by general state laws.
Congress’s enactment of the IGRA in 1988 did not in any way diminish the broad powers of the President or the Secretary to “prescribe such regulations as he may think fit for carrying into effect ... any act relating to Indian affairs ... or [management of] matters arising out of Indian relations.” See 25 U.S.C. §§ 2 & 9. When the Supreme Court subsequently held in Seminole that Congress is not authorized by the Indian commerce clause to abrogate a state’s Eleventh Amendment sovereign immunity, this unforeseen event disclosed the ineffectiveness of the remedy Congress had granted tribes in the IGRA to sue recalcitrant states in federal court. The immediate result was that states could, as *515Texas has done, refuse to bargain and invoke sovereign • immunity against a tribe’s federal court remedy. This revealed that after Seminole the tribes had no remedy to enforce the IGRA, a gap in the statute that Congress had not anticipated and had unintentionally failed to provide for. Under these circumstances, it became the Secretary’s clear duty to use his broad rule-making powers under 25 U.S.C. §§ la, 2 and 9 to provide alternate remedies and procedures necessary to carry the IGRA into effect. Nothing in the IGRA or its legislative history indicates an intention to prevent the Secretary from retaining and putting his broad rulemaking powers to this use.
The purpose of the IGRA is not simply to establish a neutral bargaining forum; IGRA’s purpose is to affirmatively help Indian tribes enter and conduct the business of gaming, where gaming is not prohibited by state laws of general application, as a means of “promoting tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702(1). The IGRA federal court action remedy was “designed to ensure the formation of a Tribal-State compact.” Seminole, 517 U.S. at 49-50, 116 S.Ct. 1114. Because this remedy has been shown to be inoperative by Seminole, the Secretary’s Gaming Procedures are consistent with the purpose and provisions of the IGRA and are the most reasonable regulations that could be administratively prescribed to carry the IGRA into effect.
IV.
With respect, there is no valid basis for Chief Judge Jones’s assertion that a judicial interpretation of a statute cannot lead to an ambiguity, gap or unprovided for case susceptible to the Chevron step-two analysis. To the contrary, there is no other way for a court to identify a statutory ambiguity or gap than through the process of judicial interpretation.
The argument that a court decision “creates” a gap is based on a theory inconsistent with the common-law tradition of the federal courts. The prevailing view is that the judicial power vested in the federal courts allows them to declare what the law already is, rather than to create new law as the Chief Judge’s argument presupposes that the Court did' in Seminole. See American Trucking Associations, Inc. v. Smith, 496 U.S. 167, 201, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (Scalia, J., concurring in judgment); Linkletter v. Walker, 381 U.S. 618, 622-23, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Under the prevailing Supreme,Court view, the ambiguity or gap in the IGRA was created by the Congress when it unintentionally chose and enacted a constitutionally ineffectual tribal remedy, and not by the Court in the Seminole decision. The Supreme Court’s principles governing retroactive application of its decisions reflect this view: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993).2 Under prevailing Supreme Court theory, the Seminole decision is and always was the law. The Supreme Court does not create law, it discovers it — and the Supreme Court did not create the gap *516in this case, but merely declared its existence. Congress itself created the gap or ambiguity by mistakenly overestimating its powers and passing a statute that could not be constitutionally applied as Congress intended.
The claim that a Chevron gap does not exist when a judicial decision has demonstrated an ambiguity in the statute has been emphatically rejected by other courts. In AT. Massey Coal Co. v. Holland, 472 F.3d 148, 168 (4th Cir.2006), the Fourth Circuit discussed a case in which a gap was “created when the Supreme Court found a portion of [a] provision unconstitutional.” It held that “[ojnce that gap was created, the agency was left with an open policy space, which was the quintessence of legislative-type action to which Chevron deference was due.” Id. In another case, Pittston Co. v. United States, 368 F.3d 385, 403-04 (4th Cir.2004), the Fourth Circuit considered a gap disclosed by a judicial decision holding a portion of the Coal Act to be unconstitutional:
In drafting the Coal Act, Congress did not contemplate that some members of the “signatory operators” group could not constitutionally be required to contribute to the Combined Fund. The situation faced by the Commissioner was thus the kind of “case unprovided for” that allows her to engage in gap-filling. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 169, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003).
Id. The Sixth Circuit agreed that a gap for Chevron purposes was created when a portion of the Coal Act proved to be unintentionally ineffective. Sidney Coal Co. v. Soc. Sec. Admin., 427 F.3d 336, 346 (6th Cir.2005) (holding that a gap existed because “the Coal Act contains no language as to how the SSA should have handled the precise question raised by the Eastern Enterprises holding”).
Chief Judge Jones’s attempt to distinguish these cases is unpersuasive and circular. She contends that because Congress must be able to foresee each gap and each agency rule chosen to fill it, the Secretary’s remedial scheme here to fill the gap exceeds the scope of the authority delegated by Congress; so that, the gap created by judicial decision recognized in Pittston and AT. Massey could not have existed in the first place. This is a tortured logic that conflates two fundamentally distinct questions: was there a gap or ambiguity, and if so, did the Secretary exceed its authority in attempting to fill it?
Contrary to the suggestion of Chief Judge Jones, the language of Chevron does not require that Congress must be able to envision a future gap or ambiguity and the particular provision that the agency may choose to fill it or clarify it before it can come within the scope of the agency’s implicitly authorized rulemaking. “[I]t can still be apparent from the agency’s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law, even one about which Congress did not actually have an intent as to a particular result.” Mead, 533 U.S. at 229, 121 S.Ct. 2164 (quotations omitted) (emphasis added). Congress may “create” a gap by explicitly delegating a question of interpretation to an agency; Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778; by implicitly doing so; id. at 844, 104 S.Ct. 2778; or by simply remaining silent “with respect to the specific issue;” id. at 843, 104 S.Ct. 2778. It is inherent in the policymaking process that some unforeseen event, or “case unprovided for,” could render a portion of a statute ambiguous or meaningless. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 169, 123 S.Ct. *517748, 154 L.Ed.2d 653 (2003). The Ninth Circuit best described the situation that confronted the Secretary and now confronts us:
We are left, then, with a tribe that believes it has followed IGRA faithfully and has no legal recourse against a state that allegedly hasn’t bargained in good faith. Congress did not intentionally create this situation and would not have countenanced it had it known then what we know now.
United States v. Spokane Tribe of Indians, 139 F.3d 1297, 1302 (9th Cir.1998). There is no support for the suggestion that Congress cannot, through its unintentional silence, create a gap or an ambiguity concerning how to enforce the IGRA after a portion of it, the sole tribal remedy originally chosen, has been invalidated.
V.
Chief Judge Jones further errs in contending that there has been no explicit or implicit congressional delegation of authority to the Secretary of the Interior to promulgate gap-filling regulations under the IGRA. Contrary to her assertions, the Secretary does not hang his hat on a mere failure of Congress to expressly withhold a delegation of agency authority. Rather, the Secretary of the Interior is the agency Congress would have expected to fill any such gap, given the powers granted to it under the IGRA and its general authority statutes. Chief Judge Jones focuses narrowly on the particular IGRA provision at issue here, relying conclusively on the fact that the IGRA itself does not contain an express delegation of agency authority to provide an alternate tribal remedy. The Supreme Court, by contrast, has instructed us to broaden our inquiry outside of the particular ■ provision we are reviewing to include all statutes and circumstances pertaining to the agency’s powers:
Congress, that is, may not have expressly delegated authority or responsibility to implement a particular provision or fill a particular gap. Yet it can still be apparent from the agency’s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law, even one about which “Congress did not actually have an intent” as to a particular result. When circumstances implying such an expectation exist, a reviewing court has no business rejecting an agency’s exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency’s chosen resolution seems unwise, but is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation is reasonable ....
Mead, 533 U.S. at 229, 121 S.Ct. 2164 (internal citations omitted). Instead of inquiring into whether Congress would have expected the Secretary of the Interior to address any ambiguities in the IGRA, Chief Judge Jones focuses on whether the particular IGRA statutory provision at issue included a delegation of authority to the Secretary — an analysis that is both contrary to the Supreme Court’s admonition in Mead and that would impose an impractical burden on Congress of including express delegations of an agency’s authority to administer every provision of every statute under its aegis.
Chief Judge Jones’s analysis of the general authority statutes and the IGRA itself is similarly unpersuasive. Her opinion rejects the significance of 25 U.S.C. §§ 2 & 9, the general authority statutes for the Department of the Interior, based on a misplaced reliance on the Supreme Court’s *518decision in Organized Village of Kake v. Egan. 369 U.S. 60, 82 S.Ct. 562 (1962). Kake is a weak authority for her position for several reasons. Even if it made the sweeping holdings Chief Judge Jones attributes to it, the case was decided in 1963 and did not conduct the modern analysis required by more recent cases such as Chevron and Mead. A greater difficulty for Chief Judge Jones is that while it does indeed include language to the effect that these sections do not grant the Interior “a general power to make rules governing Indian conduct,” that language was not the holding of the court in that case. That language was, instead, a quotation from an Interior Department Handbook, and was not expressly adopted by the Court. The Court’s actual legal holding with respect to the scope of the general authority statutes was confined to a single sentence: “We agree that they do not support the fish-trap regulations.” Kake, 369 U.S. at 63, 82 S.Ct. 562. Most significantly, in Kake the Court was analyzing a situation in which other Congressional legislation, the White Act, had expressly narrowed the authority of the Secretary of the Interior under 25 U.S.C. §§ 2 and 9 in the specific area in which he attempted to act. Id. at 62-63, 82 S.Ct. 562. It was also plain that, unlike in this case, there was no underlying statute being enforced and the Secretary was not attempting to “implement specific laws” — a power the Handbook referenced by the Supreme Court in Kake concluded was granted to Interior under the general authority statutes. Id.
Chief Judge Jones’s reliance on United States v. Eberhardt, 789 F.2d 1354 (9th Cir.1986), similarly distorts the actual holding of the case. Her opinion omits that court’s holding that “the general trust statutes in Title 25 do furnish Interior with broad authority to supervise and manage Indian affairs and property commensurate with the trust obligations of the United States.” Id. at 1360. In distinguishing Kake and concluding that the general authority statutes were broad in scope, the Eberhardt court added that “Congress must be assumed to have given Interior reasonable power to discharge its broad responsibilities for the management of Indian affairs effectively.” Id. at 1361.
Chief Judge Jones’s opinion further avoids referencing other cases that have also come to the conclusion that the Secretary of the Interior has comprehensive powers under the general authority statutes to effectuate other Indian-related legislation. The D.C. Circuit, from which her opinion eagerly borrows in other sections, emphatically disagrees with a cramped view of the general authority statutes such as hers. That court described the powers of the Secretary of the Interior under the general authority statutes as follows:
In charging the Secretary with broad responsibility for the welfare of Indian tribes, Congress must be assumed to have given him reasonable powers to discharge it effectively. Courts have taken this approach with respect to various aspects of Indian life, recognizing that “[this] statute furnishes broad authority for the supervision and management of Indian affairs and property commensurate with the obligation of the United States.”
In our opinion the very general language of the statutes makes it quite plain that the authority conferred upon the Commissioner of Indian Affairs was intended to be sufficiently comprehensive to enable him, agreeably to the laws of Congress and to the supervision of the President and the Secretary of the Interior, to manage all Indian affairs, and all matters arising out of Indian relations, with a just regard, not merely to the rights and welfare of the public, but also to the rights and welfare of the *519Indians, and to the duty of care and protection owing to them by reason of their state of dependency and tutelage.
Udall v. Littell, 366 F.2d 668, 672-73 (D.C.Cir.1966) (internal citations and footnotes omitted). Other circuits have agreed that the Secretary’s powers to promulgate regulations to effectuate all Indian-related statutes are broad in scope. See Armstrong v. United States, 306 F.2d 520, 522 (10th Cir.1962) (“This statute furnishes broad authority for the supervision and management of Indian affairs and property commensurate with the obligation of the United States.”).
Inexplicably, the Chief Judge’s opinion fails to acknowledge that, subsequent to Kake, the Supreme Court in Morton v. Ruiz, in articulating the keystone to the Chevron doctrine, simultaneously recognized that Congress intended for the Secretary of the Interior to play a major policy-making, rule-making, and gap-filling role in effectuating its Indian-related statutes. The Court plainly rejected an impracticably constrained view of the Secretary’s powers in stating:
The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. In the area of Indian affairs, the Executive has long been empowered to promulgate rules and policies, and the power has been given explicitly to the Secretary and his delegates at the BIA.
415 U.S. at 231-32, 94 S.Ct. 1055 (footnotes citing and quoting 25 U.S.C. §§ 2 & 9 as authority omitted).
Pursuant to its general authority under 25 U.S.C. §§ 2 & 9, recognized so clearly by Morton v. Ruiz and later built upon in Chevron, the Secretary of the Interior has successfully promulgated regulations governing activities across the spectrum of Indian affairs. See 25 C.F.R. § 23.1 (regulating child and family service programs under the Indian Child Welfare Act); 25 C.F.R. § 89.30 (approval of legal contracts with certain tribes); 25 C.F.R. § 166.1 (imposing grazing restrictions on tribal lands); 25 C.F.R. § 241.1 (regulating fishing on certain reservations); 25 C.F.R. § 150.1 (regulating the recording, certification, and use of title documents on tribal lands); 25 C.F.R. § 61.1 (regulating the management of rolls and membership lists of Indian tribes); 25 C.F.R. § 83.1 (establishing procedures for determining whether a group constitutes an Indian tribe).
Chief Judge Jones is further incorrect in suggesting that there is no “statutory antecedent” to support the Secretary’s regulations at issue here under the general authority statutes. The short answer to Chief Judge Jones’s suggested complaint, of course, is that there is an obvious “statutory antecedent” here — the IGRA itself, which clearly evinces Congress’s intent to empower the Secretary to authorize Indians to conduct gaming businesses on tribal reservations where not prohibited by general state laws and after giving states a full and fair opportunity to bargain in good faith over the specific terms of the individual tribal gaming regulations. It turns out, however, that her argument in this respect is simply another version of her argument against implicit agency authority, diametrically contrary to Chevron and Mead, to the effect that each separate Indian-related statute must explicitly authorize the Secretary to carry it into effect, i.e., that the general authority statutes alone do not really do what they purport to — empower the Secretary to prescribe regulations to effectuate subsequent Indian-related statutes. The cases upon which the Chief Judge relies, again, however, do not see her argument through. In the *520final analysis, they stand only for the simple proposition that in order for the Secretary to use his general authority under 25 U.S.C. §§ 2 and 9 to prescribe regulations to carry a subsequent statute into effect, there must first be a statute or a treaty to effectuate. See N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 745-46 (10th Cir.1987) (holding that 25 U.S.C. § 9 could not be applied unless it was to carry “into effect the various provisions of any act relating to Indian affairs,” but that a treaty could in effect substitute for an act or statute); United States v. Michigan, 623 F.2d 448, 450 (6th Cir.1980) (holding only that the requirement is not a difficult one to meet and that a treaty can substitute for an “act relating to Indian affairs”). The Chief Judge’s opinion plays a linguistic game, using the phrase “statutory antecedent” to suggest that there must be some specific provision in every Indian-related statute granting the authority to invoke sections 2 and 9 — when, in fact, the courts have only logically required that some sort of statute or law related to Indian affairs be extant before the Secretary can prescribe regulations to carry it into effect. In other words, when Congress enacts a statute pertaining to Indian affairs and relations, but not before, it becomes the duty of the President and the Secretary to exercise their powers under 25 U.S.C. § 2 & 9 to promulgate rules necessary to give it effect. Ruiz, 415 U.S. at 231, 94 S.Ct. 1055.
Chief Judge Jones’s further assertion that “the fact that IGRA clearly limited the Secretary’s intervention into Class III gaming compacts constitutes the best evidence of congressional intent to limit the Secretary’s role” ignores the reality of the situation here: that Congress enacted the statute without foreknowledge of the Supreme Court’s decision in Seminole. That Congress did not contemplate a need for the Secretary to prescribe an alternate tribal remedy to fill a gap is merely a function of Congress’s failure to foresee the gap it was leaving, i.e., Congress did not foresee that it lacked power under the Indian commerce clause to abrogate state sovereign immunity and that, therefore, its own statutorily prescribed tribal remedy of a federal court suit would prove to be ineffectual. Congress’s lack of foreknowledge that the IGRA would prove to be devoid of any constitutionally effective tribal remedy does not suggest in the slightest that Congress anticipated or intended that the Secretary would default in his duty to prescribe an alternate remedial procedure to carry the IGRA into effect.
As with the general authority statutes, the role of the Interior under the specific delegations of authority under the IGRA is far broader than what Chief Judge Jones’s opinion, focused as it is on a narrow section of the law, admits. The IGRA authorizes the Secretary to approve or disapprove Tribal-State compacts according to whether a compact complies with or violates the IGRA, federal law or “the trust obligations of the United States to Indians.” 25 U.S.C. § 2710(d)(8)(B). Further, the IGRA specifically provides that “[i]f the State does not consent ... to a proposed ' compact submitted by a mediator ..., the mediator shall notify the Secretary and the Secretary shall prescribe, in consultation with the Indian tribe, procedures ... which are consistent' with ... the relevant provisions of the laws of the State....” 25 U.S.C. § 2710(d)(7)(B)(vii) (emphasis added). Thus, the IGRA contemplates that the Secretary of the Interi- or, and not the federal or state courts or a mediator, shall perform the task of interpreting state and federal laws and treaties to assure that a proposal or compact for Indian gaming complies with them. Additionally, the Secretary is given powers to review and approve or disapprove any plans by tribes to distribute revenue from *521gaming to members of a tribe, and to evaluate such plans for whether they comply with the IGRA’s goal of tribal economic development. See 25 U.S.C. § 2710(b)(3)(B).
Moreover, a number of regulatory powers are delegated to the Secretary of the Interior through the National Indian Gaming Commission (“NIGC”), a three-member body within the Department of the Interior. Tamiami Partners v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1048 (11th Cir.1995); Seneca-Cayuga Tribe v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1023 (10th Cir.2003). Two of the three members of the NIGC are appointed directly by the Secretary of the Interior. Tamiami, 63 F.3d at 1048. Congress plainly intends the Department of the Interior to have broad authority over gaming in enacting the IGRA, delegating to the NIGC the power to close an Indian gaming facility permanently, to adopt regulations governing fines, to issue subpoenas, to inspect the books and records of a Class II gaming facility, and to hold hearings. Id. The NIGC is required to “monitor class II gaming continuously, inspect class II gaming premises, promulgate regulations necessary to implement IGRA, and conduct background investigations of, among others, management contractors.” Id. While the NIGC is technically a distinct entity within the Department of the Interior, the Secretary retains majority control over the board by appointing two of its members. It is plain that the nominal separation of the two does not change the clear intent of Congress to locate rulemaking and administrative authority under the IGRA with the Secretary of the Interior. Indeed, after the Tenth Circuit attempted to restrict the powers of the Interior by holding that the IGRA delegated determinations of what constituted a reservation to the NIGC, Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250 (10th Cir.2001), Congress immediately corrected the court and clarified that the Secretary of the Interior holds this power. City of Roseville v. Norton, 348 F.3d 1020, 1029-30 (D.C.Cir.2003); Department of the Interi- or and Related Agencies Appropriations Act, 2002, Pub.L. No. 107-63, § 134 (2001).
In view of all of the foregoing, it is “apparent from the agency’s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law” with respect to any gaps or ambiguities in the IGRA. Mead, 533 U.S. at 229, 121 S.Ct. 2164. Chief Judge Jones’s contention to the contrary is based on a narrow reading of a particular statutory provision, exactly the kind of analysis forbidden by the Supreme Court. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (holding that “a reviewing court should not confine itself to examining a particular statutory provision in isolation”).
VI.
Chief Judge Jones also incorrectly maintains that, under step two of the Chevron analysis, the Secretarial Procedures regulations do not reasonably effectuate Congressional intent with respect to the IGRA. Contrary to the suggestion of Chief Judge Jones’s opinion, the Secretary’s regulations are not only consistent with the intentions of Congress but are necessary to achieve the intended “finely-tuned balance” that Seminole revealed Congress had unintentionally failed to provide.
The IGRA was enacted with more than the interests of the states in mind. It was enacted “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-sufficien*522cy, and strong tribal governments.’ ” TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 865 (D.C.Cir.2006) (quoting 25 U.S.C. § 2702(1)). It was also designed to ensure that a tribe was the primary beneficiary of any gaming operations. Citizens Exposing Truth about Casinos v. Kempthorne, 492 F.3d 460, No. 06-5354, 2007 WL 1892080, at *1 (D.C.Cir. Jul. 3, 2007). “IGRA was designed primarily to establish a legal basis for Indian gaming as part of fostering tribal economic self-sufficiency, not to respond to community concerns about casinos .... ” Id. at *10; San Manuel Indian Bingo and Casino v. N.L.R.B., 475 F.3d 1306, 1308 (D.C.Cir.2007) (holding that the purpose of the IGRA was to ensure economic development and self-sufficiency of Indian tribes through gaming).
While Congress did, as Chief Judge Jones asserts, intend that the mechanism to introduce gaming would be a tribal-state compact, it did not intend to allow, as the Seminole-blunted statute does, a situation in which states could refuse to negotiate and thus veto a tribal-state compact. Under the IGRA as passed by Congress, a state that failed to act in good faith, as Texas indisputably has here, could be sued in federal court. 25 U.S.C. § 2710(d)(7). That state would have the burden of proving that it negotiated in good faith. Id. at 2710(7)(B)(ii). If the state failed to meet its burden of proof, it would have been ordered to negotiate a compact within 60 days. Id. at 2710(7)(B)(iii). If the state continued to refuse to compact, it would have been forced into mediation. Id. at 2710(7)(B)(iv). If the state ultimately refused to consent to the results of the mediation, the Secretary of the Interior was empowered to bypass the state and create its own procedures authorizing gambling by the tribe, consistent with the compact proposed during mediation. Id. at 2710(7)(B)(vii).
It was thus not just the existence of a compact that was crucial to the balance between states and tribes under the IGRA. “It is quite clear from the structure of the statute that the tribe’s right to sue the state is a key part of a carefully-crafted scheme balancing the interests of the tribes and the states. It therefore seems highly unlikely that Congress would have passed one part without the other, leaving the tribes essentially powerless.” Spokane Tribe, 139 F.3d at 1300. The right to sue to essentially force a compact gave tribes a crucial piece of leverage against the states — preventing a state from taking the approach of Texas in this case, which has been to utterly refuse to negotiate. Prior to the promulgation of the Secretarial Procedures regulations, states had under Seminole’s constitutional interpretation a veto over the tribal-state compact process. See Matthew L.M. Fletcher, Bringing Balance to Indian Gaming, 44 Harv. J. On Legis. 39, 75 (2007) (describing the stalemate resulting from the elimination of Congress’s intended remedy for tribes faced with a state refusing to negotiate). “Congress did not intentionally create this situation and would not have countenanced it had it known then what we know now.” Spokane Tribe, 139 F.3d at 1302.
Chief Judge Jones’s opinion gives lip-service to the deference accorded under Chevron at step two to the Secretary’s Procedures regulations, noting correctly that we may not disturb the agency’s decision “unless it appears from the statute or legislative history that the accommodation is not one that Congress would have sanctioned.” Chevron, 467 U.S. at 845, 104 S.Ct. 2778. We do not ask whether the Procedures regulations are ideal, or whether there is some way they can be improved. Mead, 533 U.S. at 229, 121 S.Ct. 2164 (holding that “a reviewing court has no business rejecting an agency’s exer*523cise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency’s chosen resolution seems unwise”). We do not ask whether Congress would have modified them in some minor way. We ask only whether they were reasonable and whether Congress would have sanctioned them. Chevron, 467 U.S. at 845, 104 S.Ct. 2778. To focus on the minutiae, as Chief Judge Jones’s opinion does, distracts from the general intentions of Congress in passing the IGRA: Congress intended to allow Indian gaming to proceed, for the purpose of economically benefitting Indian tribes, after a negotiating process that would give states a right to negotiate towards the ultimate outcome. In the case of a state that attempted to halt or veto this process without good faith, Congress intended that tribes would ultimately be able to force gaming even over the objections of the state. The Secretary’s regulations at issue here may not be perfect, but by allowing tribes an alternate process to propose gaming procedures in cases where a state refuses to negotiate and refuses to be sued in federal court, they closely approximate what Congress likely would have intended, while the status quo after Seminole undis-putedly subverts the national legislative aims in respect to Indian affairs and relations.
Even on its discussion of the details, Chief Judge Jones’s opinion is misguided. It first argues that the Procedures are unreasonable because they eliminate the requirement that a federal court determine whether the state has negotiated in good faith. But this criticism based on the idea that the Secretary’s regulations deny the State of Texas access to an impartial federal court fact-finder rings hollow given that the Secretary’s alternate remedy regulations are triggered only if the state has asserted its Eleventh Amendment right not to be sued in federal court by an Indian tribe under the original statutory procedures enacted by Congress. 25 C.F.R. § 291.8. Under the Secretary’s alternate remedy regulations, a state that prefers that a federal court resolve its dispute with the tribe may simply choose that option, waiving its objection to federal jurisdiction and proceeding exactly as Congress originally intended. The State of Texas, after categorically refusing to negotiate with the Kickapoo and after asserting its sovereign immunity in federal court when the Kickapoo attempted to invoke the original statutory procedures, now resorts to a federal court complaining that it is crucial that a federal court serve as an independent body to determine whether its absolute refusal to negotiate constituted “negotiations in good faith.” The Procedures do not deny a state its right to a judicial determination as to whether it acted in good faith, because the state may choose to submit to a federal court’s jurisdiction by allowing a tribe to sue it there; just as it has in the present case by bringing this suit in federal court. That Texas is well aware that a fair and impartial federal court would be unlikely to find that its utter refusal to negotiate amounted to good-faith bargaining does not obviate its undisputed right to litigate that matter in federal court.
Moreover, Congress contemplated the “good faith” determination as an affirmative defense, with the burden on the state to prove that it negotiated in good faith. 25 U.S.C. § 2710(d)(7)(B)(ii). The Secretary’s alternate tribal remedy regulations require that the tribe has negotiated with a state for a six-month period prior to invoking the Secretarial Gaming Procedures. 25 C.F.R. § 291.3(b). A state must also have asserted its sovereign immunity defense against a suit by the tribe. Id. at 291.3(d). The Procedures give the state a 60-day comment period, and invite *524it to submit an alternate gaming proposal. Id. at 291.7(b). They invite the state to participate in an informal conference with the tribe. Id. at 291.8(b). Only after mediation may the Secretary attempt to actually impose- a proposal over the state’s objection. Id. at 291.11. It seems unlikely that a state, negotiating in good faith, would fully proceed through this process without coming to some agreement with the tribe. A good faith ■ determination might improve these procedures from a policymaking perspective, but that question is not one for this court under Chevron. We ask only whether the Secretary’s regulations are reasonable and whether Congress would have sanctioned them— and it seems unlikely, given the Congressional goal of allowing and promoting lawful Indian gaming businesses, that Congress would not sanction these regulations closely tracking and complementing the original statute, rendered ineffective by Seminole, with an alternate remedy that is absolutely essential to its having the Congressional effect intended.
Chief Judge Jones’s second contention is that the Secretarial Gaming Procedures regulations create a biased mediation process by allowing the Secretary of the Interior, rather than a court, to appoint a mediator who has “no official, financial, or personal conflict of interest with respect to the issues in controversy.” 25 C.F.R. § 291.9(a). Chief Judge Jones’s suggestion that the Interior is placed in the role of an “objective arbiter” is incorrect — instead, the person appointed as a mediator is the fair and impartial decider. Unfounded speculation that the Secretary might not perform his plain duty under the statutes and his own department’s regulations to select a neutral mediator fails to justify a conclusion that the regulations are unreasonable — especially given that for Chief Judge Jones’s fears to materialize, not only must the Secretary violate his duty, but the neutral mediator must as well.
' Chief Judge Jones’s third contention, that the Secretary is enabled to simply disregard 'the mediator’s proposal, exaggerates the Secretary’s powers under the Procedures. The Secretary may not establish his own procedures unless he does not approve the mediator’s proposal. The Secretary may not disapprove the mediator’s proposal unless it violates federal or state law, violates the trust obligations to the tribe, or does not comply with the technical requirements of a proposal. 25 C.F.R. § 291.11. In the event that the Secretary disapproves, he may prescribe his own procedures — but only if they “comport with the mediator’s selected proposal as much as possible.... ” Id. at 291.11(c). This differs only slightly from the statutory requirement that the procedures be. “consistent with the proposed compact selected by the mediator.... ” 25 U.S.C. § 2710(d)(7)(B)(vii). Moreover, it is unclear which of the two is the more restrictive on the Secretary — and the regulations certainly do npt grant “unbridled power to prescribe Class III regulations.”
Chief Judge Jones’s final argument combines her previous three into a grand peti-tio principii. That is, she begs the question by contending that Congress would not have expected the Secretary to fill the unforeseen gap it left in the IGRA’s tribal remedy unless he included the requirements that made it unintentionally unenforceable in the first place — a federal court’s determination of a state’s failure to bargain in good faith, the participation of á federal court-appointed mediator, and gaming procedures consistent with a federal court-appointed mediator’s proposed compact. Yet we are not inquiring into whether Congress “intended” or could foresee the result reached by the Secretary in filling Congress’s own unforeseen *525and unintended gap. We instead ask whether the result is a reasonable one that Congress would sanction by the agency it had empowered to make rules and policies to effectuate its acts regarding Indian affairs and relations for purposes of complementing or filling the gap in the statute. Chevron, 467 U.S. at 845, 104 S.Ct. 2778. Congress intended for recalcitrant states to be subjected to suit by Indian tribes in federal court — but that intended tribal remedy was frustrated by the unforeseen constitutional interpretation in Seminole. I conclude that, if Congress had known that it lacked power to abrogate state sovereignty under the Indian commerce clause, it obviously would have adopted at least some alternate form of remedy — and that it would likely have enacted something similar to the Secretarial Gaming Procedures regulations, as a reasonable and necessary alternate tribal remedy. Otherwise, if this reasonable and practicable proposition cannot be laid, we are faced with a preposterous alternative conclusion, viz., that Congress would have declined to adopt the IGRA in any form or would have included a veto power for hostile states in a statute designed “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.”3 25 U.S.C. § 270(1).
VII.
In sum, this reviewing court has no business rejecting the Secretary’s exercise of his generally conferred authority to fill a particular statutory gap simply because it deems the Secretary’s chosen resolution to be unwise, but instead is obliged to accept the Secretary’s position because Congress has not spoken to the point or gap at issue here and the Secretary’s interpretation is reasonable. Further, the circumstances here imply that Congress would expect the Secretary to be able to speak with the force of law, even though Congress may not have expressly delegated authority or responsibility to implement a particular provision; the power of an administrative *526agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making pf rules to fill any gap left, implicitly or explicitly, by Congress. The Secretary therefore acted within his authority to promulgate regulations filling an unanticipated statutory gap under the explicit authority of 25 U.S.C. §§ 2 and 9 and the implicit authority of the IGRA, and his ensuing regulations are owed Chevron deference and are binding in the courts because they are not procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statutes. Accordingly, I DISSENT.
. See Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); see also 25 U.S.C. § la.
. For a full discussion of the history of the common law retroactivity principle and the Supreme Court’s recent return to the traditional view that it discovers law, rather than makes it, see Hulin v. Fibreboard Corp., 178 F.3d 316, 329-33 (5th Cir.1999).
. Chevron is not the only potential source of deference owed to the regulations. The Indian canon of construction provides that because of the trust relationship between the federal government and the tribes, statutes “are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 269, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992) (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985)). The precise relationship between this canon of construction and the Chevron doctrine has not been resolved. Several circuits, however, have held that when the two principles of deference are in conflict, the Indian canon trumps the Chevron doctrine, requiring deference to the interpretation that is most favorable to the Indian tribes. See Scott C. Hall, The Indian Law Canons of Construction v. The Chevron Doctrine: Congressional Intent and the Unambiguous Answer to the Ambiguous Problem, 37 Conn. L.Rev 495 (2004); Cobell v. Norton, 240 F.3d 1081, 1101 (D.C.Cir.2001) (holding that the Indian canon prevailed over the Chevron doctrine when the two were in conflict).
There is no need to ponder the precise relationship of the two principles in this case, however, because they are not in conflict but concurrently call for judicial deference toward the Secretary's gaming procedures regulations that are necessary to carry the IGRA into full effect. Thus, at a minimum, the Indian canon adds substantially to the level of deference owed to the Secretary’s Procedures regulations in this case. Chief Judge Jones makes unwarranted assumptions about the intent of Congress that are not consistent with the obvious gap it unintentionally left in the IGRA along with the requirement that we generously construe any regulation by the Secretary to fill it in favor of the IGRA's effectuation, and with IGRA’s furtherance of tribal economic development and self-sufficiency in light of Congress’s unique trust relationship with the Indians.