Narragansett Indian Tribe v. National Indian Gaming Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 2, 1998 Decided October 27, 1998

No. 97-5290

Narragansett Indian Tribe,

Appellant

v.

National Indian Gaming Commission and

Tadd Johnson, in his official capacity as Chairman of the

National Indian Gaming Commission,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 97cv00334)

Charles A. Hobbs argued the cause for appellant. With
him on the briefs was Joseph H. Webster.

Marta Hoilman, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were

Lois J. Schiffer, Assistant Attorney General, David C. Shilton
and Edward J. Passarelli, Attorneys.

Patrick J. Kennedy, appearing pro se, was on the brief for
amicus curiae Patrick J. Kennedy, United States Congress-
man, House of Representatives.

William J. Rodgers and Joseph S. Larisa, Jr., were on the
brief for amicus curiae Lincoln C. Almond, Governor of
Rhode Island. Thomas A. Thompson entered an appearance.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion of the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Relying on the equal protection
guarantees of the Fifth Amendment, the Narragansett Indian
Tribe of Rhode Island challenges the constitutionality of
legislation, known as the Chafee Amendment, that prohibits
the National Indian Gaming Commission from authorizing
gambling on Narragansett lands. We agree with the district
court that far from illegitimately singling out the Narragan-
setts for discriminatory treatment, the Chafee Amendment
represents a rational interpretation of an earlier agreement
among the Tribe, the State of Rhode Island, and the federal
government that state law, including state gambling law,
would govern tribal lands.

I

The Narragansetts, aboriginal inhabitants of what is now
Rhode Island, enjoyed cordial early relations with English
settlers on Roger Williams's Providence Plantation. See Wil-
liam G. McLoughlin, Rhode Island 4-5, 9-10 (1978). During
the latter part of the 17th century, the Tribe was drawn into
bloody warfare with Puritan colonists seeking to gain political
authority over much of Rhode Island by securing claims to
Indian land. Id. at 40-44. Surviving members of the Tribe
banded together with other Indians in the early 1700s to form
a Narragansett Indian community in present-day Charles-
town. Id. at 44-45.

Although for most of the next century the Narragansetts
resisted Rhode Island's efforts to extinguish their tribal

identity and confer State citizenship, in 1880 the Tribe agreed
to abolish tribal authority and to sell (for $5,000) all but two
acres of its reservation. See id. at 221. Concluding almost
immediately that they had made a mistake, the Narragan-
setts began a century-long effort to recover their tribal lands,
an effort that culminated in the mid-1970s when the Tribe
settled litigation it had brought against the State and private
landowners in which it claimed that the 1880 land sale violat-
ed the Indian Nonintercourse Act, see Act of June 30, 1834,
ch. 161, s 12, 4 Stat. 730 (prohibiting land conveyances from
Indian tribes to non-Indians unless "made by treaty or con-
vention entered into pursuant to the constitution"). The
settlement, contained in a Joint Memorandum of Understand-
ing ("JMOU"), provided for the transfer of 1,800 acres of land
to a corporation formed to hold the land in trust for the
benefit of "the descendants of the 1880 Rhode Island Narra-
gansett Roll," in exchange for extinguishment of the Narra-
gansetts' land title claims. JMOU WW 2, 3, 6, 8. The JMOU
also provided that "the laws of the State of Rhode Island shall
be in full force and effect" on Narragansett settlement lands,
with the exception of hunting and fishing regulation and local
property taxation. JMOU WW 9, 11, 13. Congress then imple-
mented the JMOU by enacting the Rhode Island Indian
Claims Settlement Act. Pub. L. No. 95-395, 92 Stat. 813
(1978) (codified at 25 U.S.C. ss 1701-16 (1994)). As the
parties to the JMOU had agreed, the Settlement Act specifi-
cally stated that Narragansett settlement lands are "subject
to the civil and criminal laws and jurisdiction of the State of
Rhode Island." 25 U.S.C. s 1708(a). With the enactment of
this statute, the Narragansetts joined a growing number of
Indian tribes that have reclaimed tribal lands after legislative
settlements of aboriginal land claims.

In 1988, Congress enacted the Indian Gaming Regulatory
Act, Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25
U.S.C. ss 2701-21) ("IGRA"), precipitating the explosion of
Indian reservation gambling and the Narragansett Tribe's
journey to this court. Dividing gambling activities into three
classes, IGRA makes Class II gaming, which includes bingo,
subject to regulation by the National Indian Gaming Commis-

sion, appellee in this case. 25 U.S.C. s 2710(b). Although
the Act permits federally recognized tribes to apply for
Commission approval of gaming proposals, an early version of
IGRA contained a provision specifically excluding the Narra-
gansetts. Offered by Senators Chafee and Pell of Rhode
Island to ensure that IGRA conformed to the Settlement
Act's state law proviso, the Narragansett exclusion provided
that "[n]othing in this Act may be construed as permitting
gaming activities, except to the extent permitted under the
laws of the State of Rhode Island, on lands acquired by the
Narragansett Indian Tribe under the Rhode Island Indian
Claims Settlement Act." S. 555, 100th Cong. s 23, 134 Cong.
Rec. 24,022 (1988). After Congressman Udall, chairman of
the House Interior Committee, announced that he would
oppose the bill if it contained the Narragansett exclusion, see
Narragansett Indian Tribe: Oversight Hearing Before the
House Comm. on Resources, 105th Cong. 65 (1997) (state-
ment of Frank Ducheneaux, attorney), Senators Chafee and
Pell moved to delete the section, engaging in the following
colloquy with Senator Inouye, chairman of the Senate Com-
mittee on Indian Affairs:

Mr. PELL. ... In the interests of clarity, I have
asked that language specifically citing the protections of
the Rhode Island Claims Settlement Act (Public Law
95-395) be stricken from S. 555. I understand that these
protections clearly will remain in effect.

Mr. INOUYE. I thank my colleague, ... and assure
him that the protections of the Rhode Island Indian
Claims Settlement Act (P.L. 95-395), will remain in effect
and that the Narragansett Indian Tribe clearly will re-
main subject to the civil, criminal, and regulatory laws of
the State of Rhode Island.

Mr. CHAFEE. ... The chairman's statement makes
it clear that any high stakes gaming, including bingo, in
Rhode Island will remain subject to the civil, criminal,
and regulatory laws of our State.

134 Cong. Rec. 24,023 (1988).

Following the passage of IGRA minus the Narragansett
exclusion, the Tribe initiated steps to operate a gambling

establishment on tribal lands. Seeking to stop the Tribe, the
State sued, alleging that nothing in IGRA supplanted the
understanding of the parties, as reflected in the JMOU and
Settlement Act, that state law, including state gambling regu-
lations, governed Narragansett settlement lands. The First
Circuit ruled for the Tribe. See Rhode Island v. Narragan-
sett Indian Tribe, 19 F.3d 685 (1st Cir. 1994). It held that
although the Tribe's lands remained subject to the State's
general jurisdiction under the Settlement Act, IGRA had
implicitly repealed the Settlement Act's grant of state juris-
diction with respect to gambling regulation. Id. at 703-05.
The court discounted the Senators' colloquy, finding it at odds
with the statute's language, which contained no exception for
the Narragansetts. Id. at 699. In dissent, Judge Coffin
disagreed with the majority's interpretation of IGRA, con-
cluding: "If, of course, the Congress were to feel that an
injustice had been done to [Rhode Island], it could provide a
remedy through supplemental legislation." Id. at 708 (Coffin,
J., dissenting).

Armed with its First Circuit victory, the Tribe sought
approval from the National Indian Gaming Commission to
open a bingo hall. Congress, responding to Judge Coffin's
suggestion, amended the Settlement Act to make clear that
IGRA had not preempted its grant of state jurisdiction.
Sponsored by Senator Chafee, the two-line amendment pro-
vides: "For purposes of the Indian Gaming Regulatory Act
(25 U.S.C. s 2701 et seq.), settlement lands shall not be
treated as Indian lands." Pub. L. No. 104-208, 110 Stat.
3009-227 (1996) (codified at 25 U.S.C.A. s 1708(b) (West
Supp. 1998)). Senator Chafee explained, "It is our deter-
mined view that a deal is a deal." Narragansett Indian
Tribe: Oversight Hearing Before the House Comm. on Re-
sources, 105th Cong. 14 (1997) (statement of Sen. Chafee)
("Chafee Testimony").

Following enactment of the Chafee Amendment, the Com-
mission disapproved the Tribe's proposal. The Tribe then
sued the Commission in the United States District Court for
the District of Columbia. Arguing that the Chafee Amend-
ment violates both equal protection guarantees and separa-

tion of powers and that it amounts to a bill of attainder, the
Tribe sought declaratory and injunctive relief requiring the
Commission to complete its regulatory review of the Tribe's
bingo hall proposal. The district court rejected all of the
Tribe's arguments and granted summary judgment to the
Commission, holding with respect to the Tribe's equal protec-
tion claim that "[t]he Court cannot say that the congressional
choice does not reasonably support Congress' decision to
amend the Settlement Act to remedy IGRA's unintended
preemption of state jurisdiction over the Settlement Lands."
Narragansett Indian Tribe v. National Indian Gaming
Comm'n, No. 97-334, slip op. at 18 (D.D.C. Aug. 19, 1997).

Asserting only its equal protection challenge, the Tribe now
appeals. Congressman Patrick Kennedy filed an amicus brief
supporting the Tribe's equal protection claim and reiterating
its separation of powers and bill of attainder arguments.
Because we ordinarily do not entertain arguments not raised
by parties, see Michel v. Anderson, 14 F.3d 623, 625 (D.C.
Cir. 1994), we consider only the Tribe's equal protection
challenge. We review the district court's grant of summary
judgment de novo. See Tao v. Freeh, 27 F.3d 635, 638 (D.C.
Cir. 1994).

II

We begin, as we must, with our jurisdiction. Section 1711
of the Settlement Act provides:

Notwithstanding any other provision of law, any action
to contest the constitutionality of this subchapter shall be
barred unless the complaint is filed within one hundred
and eighty days of September 30, 1978. Exclusive juris-
diction over any such action is hereby vested in the
United States District Court for the District of Rhode
Island.

25 U.S.C. s 1711. The Chafee Amendment became section
1708(b) of "this subchapter."

Not until the Commission filed its brief in this court did
either party acknowledge section 1711's existence. In a

footnote the Commission took the position that the Narragan-
setts' case was not time-barred because the Tribe filed it
within 180 days of the Amendment's enactment. As to
whether the Tribe should have filed its case in Rhode Island,
the Commission was silent. After we asked the parties to
address the jurisdictional implications of section 1711, the
Tribe submitted a supplemental brief arguing that section
1711's restrictions applied only to challenges to the Settle-
ment Act as originally enacted in 1978. Although the Com-
mission advised us at oral argument that it agreed, we have
an independent responsibility to assess the jurisdictional issue
ourselves. See Houston Business Journal, Inc. v. Office of
the Comptroller of the Currency, 86 F.3d 1208, 1211 (D.C. Cir.
1996).

Section 1711 lends itself to two possible interpretations.
Applying normal rules of statutory construction that construe
a later amendment as if it were part of the original act, see 1A
Sutherland's Statutory Construction s 22.35 (4th ed. 1985),
we could interpret section 1711's first sentence (as the Com-
mission suggested in its brief) to create a 180-day statute of
limitations running from the date of enactment of any amend-
ments. Viewed this way, the Tribe's suit was timely, but
because it amounted to "any such action" within the meaning
of section 1711's second sentence, the Tribe should have filed
it in Rhode Island. The Narragansetts (now supported by
the Commission) suggest an alternative interpretation: Be-
cause section 1711 requires the filing of constitutional chal-
lenges within 180 days of September 30, 1978, it could not
possibly apply to challenges to amendments added years
later. So interpreted, section 1711 would have no applicabili-
ty to the Narragansetts' suit.

We find neither of these interpretations linguistically satis-
fying. The Commission's original view requires that we
ignore Congress's use of the specific date, assuming that it
meant not "within one hundred and eighty days of September
30, 1978," but rather within 180 days of passage of any
subsequent amendment. The Narragansetts' interpretation
requires that we assume that the phrase "any action to
contest the constitutionality of this subchapter" means not

"any" action, but rather just any action challenging the
original Settlement Act.

Facing statutory ambiguity, we look to legislative purpose.
See Concrete Pipe & Prods., Inc. v. Construction Laborers
Pension Trust, 508 U.S. 602, 627 (1993). According to the
Settlement Act, its primary objective was "to remove all
clouds on titles resulting from ... Indian land claims within
the State of Rhode Island." 25 U.S.C. s 1701(c); see also
H.R. Rep. No. 95-1453, at 15 (1978), reprinted in 1978
U.S.S.C.A.N. 1948, 1958 ("[The Settlement Act] is intended to
resolve once and for all the claims being asserted by the
Narragansett Indians to lands in the Town of Charles-
town...."). This suggests that Congress intended to ensure
that any suits challenging the validity of the Settlement Act
were brought quickly and heard by the court most familiar
with the issues, i.e., the Rhode Island court that heard the
land claim litigation that resulted in the JMOU. Reinforcing
this interpretation, the Alaska Native Claims Settlement Act,
upon which Congress modeled the Rhode Island Settlement
Act, see id. at 8, 1978 U.S.S.C.A.N. at 1951, contains the same
language as section 1711, adding: "The purpose of this
limitation on suits is to insure that, after the expiration of a
reasonable period of time, the right, title, and interest of the
United States, the Natives, and the State of Alaska will vest
with certainty and finality...." 43 U.S.C. s 1609(a) (1994)
(emphasis added). Of course, section 1711 contains no such
explanation. But because the section uses precisely the same
jurisdictional language as the Alaska Settlement Act, and
because the Rhode Island Settlement Act has essentially the
same purpose, we think Congress intended section 1711's
time and jurisdiction limitations likewise to apply only to
constitutional suits challenging the original land settlement.

The Narragansetts' challenge to the Chafee Amendment is
not such a suit. It neither revives the old land claims nor
unsettles land titles. Instead, the suit challenges the action
of the National Indian Gaming Commission, a federal agency
located in the District of Columbia. We thus agree with the
parties that section 1711 does not apply to this suit.

III

The Narragansetts contend that the Chafee Amendment
singles out the Tribe for unfair treatment in violation of the
equal protection guarantees of the Fifth Amendment's Due
Process Clause. See Bolling v. Sharpe, 347 U.S. 497 (1954).
The Commission disagrees, arguing that the amendment sim-
ply remedies IGRA's unintentional preemption of the Settle-
ment Act's grant of state jurisdiction over tribal gaming
activities.

The parties begin with a debate over the standard of
review, although they agree that strict scrutiny does not
apply. Neither suggests that gambling amounts to a funda-
mental right. See Harper v. Virginia State Bd. of Elections,
383 U.S. 663, 670 (1966) (holding that strict scrutiny applies to
classifications that burden fundamental rights). And because
federal regulation of Indian tribes is "rooted in the unique
status of Indians as 'a separate people' with their own politi-
cal institutions," United States v. Antelope, 430 U.S. 641, 646
(1977), the Supreme Court has long distinguished Indian
classifications from suspect racial classifications, holding that
" 'the unique legal status of Indian tribes under federal law'
permits the Federal Government to enact legislation singling
out tribal Indians, legislation that might otherwise be consti-
tutionally offensive." Washington v. Confederated Bands &
Tribes of Yakima Indian Nation, 439 U.S. 463, 500-01 (1979)
(quoting Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).
For these reasons, the Commission urges us to subject the
Chafee Amendment to rational basis analysis.

The Tribe disagrees, arguing that ordinary rational basis
scrutiny is insufficient for Indian classifications. It points out
that Congress's plenary power over Indian tribes is tempered
by its "trust obligation" toward Indians, an obligation an-
chored in the nation's history of federal dominance and Indian
dependency. See Mancari, 417 U.S. at 552. Within the
context of this "trust relationship," the Narragansetts argue,
equal protection rational basis scrutiny takes on a more
focused, less deferential form. The Tribe relies on Delaware
Tribal Business Committee v. Weeks, where the Supreme

Court held that "[t]he standard of review ... is that the
legislative judgment should not be disturbed '[a]s long as the
special treatment can be tied rationally to the fulfillment of
Congress' unique obligation towards the Indians.' " 430 U.S.
73, 85 (1977) (quoting Mancari, 417 U.S. at 555). Applying
this more focused rational basis standard, the Narragansetts
maintain that without articulating any purpose tied to the
government's special obligation to Indians, Congress violated
the Narragansetts' rights by excluding them from IGRA,
thereby barring them from participating in federal Indian
trust programs that would promote tribal economic develop-
ment and self-sufficiency.

We think the Tribe's reliance on Weeks is misplaced. In
that case, the Court took the "unique obligation" language
from Mancari, where the government advanced its interest in
fulfilling its trust obligation as the justification for its chal-
lenged Indian employment preference policy. See Mancari,
417 U.S. at 555. Accepting this interest as legitimate, Man-
cari merely applied ordinary rational basis analysis to deter-
mine whether the employment preference rationally related
to the government's interest in fulfilling its trust obligation.
As post-Weeks decisions have made clear, ordinary rational
basis scrutiny applies to Indian classifications just as it does
to other non-suspect classifications under equal protection
analysis. See, e.g., Yakima, 439 U.S. at 501-02 (relying on
ordinary rational basis cases to uphold a state's partial asser-
tion of jurisdiction over Indian lands).

To be sure, in Littlewolf v. Lujan, 877 F.2d 1058 (D.C. Cir.
1989), this court noted Weeks's "unique obligation" formula-
tion, a reference upon which the Narragansetts rely. Al-
though Littlewolf neither explored the questionable derivation
of that language nor mentioned Yakima's later holding that
ordinary rational basis scrutiny applies, see id. at 1063-64, the
court had no reason to do so. Like Mancari, Littlewolf
involved circumstances in which Congress, in passing the
challenged legislation, claimed to be fulfilling its trust rela-
tionship; the legislation thus passed muster even under
Weeks. Moreover, a more recent Circuit precedent specifical-
ly reads Weeks as requiring only that the government articu-

late a "rational basis" or "some reasoned explanation" for
creating an Indian classification. See Cherokee Nation v.
Babbitt, 117 F.3d 1489, 1502 (D.C. Cir. 1997).

To prevail on their equal protection claim, therefore, the
Narragansetts must demonstrate that Congress's exclusion of
the Tribe from IGRA has no rational relationship to any
legitimate purpose. See City of Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. 432, 440 (1985). The record does not
support such a claim.

To begin with, the Narragansetts are not the only tribe
excluded from IGRA and subjected instead to state gaming
law. The Catawba Indians, the Passamoquoddy Tribe and
Penobscot Nation, and the Wampanoag Tribal Council of Gay
Head have also regained lands through legislative settlements
in which they accepted general state jurisdiction over tribal
lands. See 25 U.S.C. s 941b(e), m(c); id. s 1725(h); id.
s 1771g. The Catawba Indians' and the Wampanoag Tribal
Council's settlement acts specifically provide for exclusive
state control over gambling. See id. s 941l(a); id. s 1771g.

Moreover, although the deletion of the Narragansett exclu-
sion from IGRA and the explanatory colloquy among Sena-
tors Chafee, Pell, and Inouye created a certain degree of
ambiguity regarding IGRA's applicability to Narragansett
lands, Congress's belief that the Tribe had originally agreed
to state control can hardly be considered irrational. After all,
the JMOU, which the Tribe signed, specifically provides that
with the exception of laws governing hunting, fishing, and
property taxes, "all laws of the State of Rhode Island shall be
in full force and effect on the Settlement Lands." JMOU
p 13 (emphasis added). The Settlement Act likewise assured
Rhode Island that "settlement lands shall be subject to the
civil and criminal laws and jurisdiction of the State of Rhode
Island." 25 U.S.C. s 1708(a). It was thus not surprising
that when the First Circuit held that IGRA implicitly re-
pealed the Settlement Act with respect to gambling, Congress
promptly enacted the Chafee Amendment to, in the words of
its sponsor, "restore[ ] the integrity of the Rhode Island
Indian Claims Settlement Act and uph[o]ld the primacy of

State jurisdiction over the Tribe's settlement lands." Chafee
Testimony at 14. Reflecting precisely the same understand-
ing of the Settlement Act, Senator Pell said, "As one who
worked in [sic] the Settlement Act, I know that the intent of
this law was to preserve the full jurisdiction of the State of
Rhode Island. That's why 10 years later we entered into a
colloquy to assure that the Indian Gaming Regulatory Act
would not supersede the Settlement Act." Indian Gaming
Regulatory Act: Oversight Hearing Before the Senate Comm.
on Indian Affairs, 103d Cong. 8-9 (1994) (statement of Sen.
Pell). The Governor of Rhode Island (the State had also
signed the JMOU) expressed the same understanding of the
Settlement Act: "[The Pell/Inouye/Chafee] colloquy was in-
tended by all parties to make clear the fact that nothing in
the Indian Gaming Regulatory Act was going to preempt
what had already been established 10 years earlier in 1978, by
the Rhode Island Indian Claims Settlement Act." Id. at 32-
33 (statement of Gov. Sundlun). As the Tribe concedes,
excluding from IGRA those tribes that have specifically
agreed to state gambling regulation is an "appropriate" gov-
ernmental purpose. See Reply Br. at 11.

The Narragansetts offer an alternative argument to sup-
port their claim that Congress acted irrationally when it
added the Chafee Amendment to the Settlement Act. Point-
ing out that both the JMOU and the Settlement Act predate
the Tribe's 1983 federal recognition and its conveyance of
tribal lands to the Bureau of Indian Affairs in trust, the
Narragansetts claim that Congress could not legitimately
have viewed either the JMOU or Settlement Act as reflecting
tribal agreement to state control after federal recognition.
Federal recognition and federal land trusteeship ordinarily
have the effect of making tribal land "Indian country" subject
to federal law, not state law. See F. Cohen, Handbook of
Federal Indian Law 35-36, 348-49 (1982). Because the
JMOU and the Settlement Act are silent as to the effect of
federal recognition and trusteeship on the grant of state
jurisdiction, and because neither mentions state jurisdiction
over Indian gaming, the Tribe urges us to apply what it
characterizes as the "Indian canon of construction" and inter-

pret this silence "liberally ..., [with] doubtful expressions
being resolved in favor of the Indians." Bryan v. Itasca
County, 426 U.S. 373, 392 (1976) (internal quotation omitted).

Although intriguing, the Tribe's argument is ultimately
unavailing. Even if the Tribe were correct that the JMOU
and Settlement Act implicitly contemplated that state juris-
diction would end whenever it obtained federal recognition,
Congress could rationally have reached the opposite conclu-
sion. The grants of state jurisdiction contained in the JMOU
and Settlement Act are unconditional, saying nothing about
eventual federal recognition. The Chafee Amendment thus
represents a rational exercise of congressional authority to
enforce the terms of the original agreement by which the
Narragansetts regained tribal lands. In any event, the First
Circuit has already rejected the Tribe's argument that federal
recognition altered the original jurisdictional grant to Rhode
Island. See Narragansett Indian Tribe, 19 F.3d at 695
(observing that "at every salient moment, the parties in
interest took pains to reaffirm section 1708['s grant of state
jurisdiction]"). Having lost in the First Circuit, the Narra-
gansetts may not relitigate the issue here. See SEC v.
Bilzerian, 29 F.3d 689, 693 (D.C. Cir. 1994) ("The doctrine of
collateral estoppel prohibits relitigation of an issue of fact or
law that has been decided in an earlier litigation.").

We affirm the district court's grant of summary judgment
for the Commission.

So ordered.