Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2323

LAC COURTE OREILLES BAND OF LAKE SUPERIOR

CHIPPEWA INDIANS OF WISCONSIN, RED CLIFF

BAND OF LAKE SUPERIOR CHIPPEWA INDIANS OF

WISCONSIN, and SAKAOGON CHIPPEWA COMMUNITY,

MOLE LAKE BAND OF LAKE SUPERIOR

CHIPPEWA INDIANS,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA, UNITED STATES

DEPARTMENT OF THE INTERIOR, GALE A. NORTON,

Secretary of the Department of the Interior, et al.,

Defendants-Appellees,

JAMES E. DOYLE, Governor of the State of

Wisconsin and STATE OF WISCONSIN,

Intervening Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 02 C 553—Barbara B. Crabb, Chief Judge.

____________

ARGUED JANUARY 16, 2004—DECIDED APRIL 29, 2004

____________

2 No. 03-2323

Before FLAUM, Chief Judge, and RIPPLE and ROVNER,

Circuit Judges.

FLAUM, Chief Judge. The Plaintiff Tribes appeal the

district court’s opinion and order declaring the guberna-

torial concurrence provision of the Indian Gaming

Regulatory Act (“IGRA”) constitutional and not in violation

of the federal government’s trust obligation to Indians. For

the reasons set forth in the following opinion, we affirm the

judgment of the district court.

I. Background

Plaintiffs are three federally-recognized Indian Tribes

with reservations in sparsely populated areas of northern

Wisconsin (“the Tribes”). While each of the Tribes operates

a casino on reservation land, these casinos do not generate

income comparable to casinos operated by tribes who have

reservations near Wisconsin’s urban centers or destination

resorts. Seeking to advance their tribal and economic de-

velopment, the Tribes joined together for the purpose of

establishing a jointly owned and operated off-reservation

gaming facility in a lucrative location.

The Tribes found a struggling pari-mutuel greyhound

racing facility in Hudson, Wisconsin that they wished to

acquire and convert into a casino gaming facility. Hudson

was attractive to the Tribes because they believed its

proximity to the metropolitan areas of Minneapolis and

St. Paul and easy accessibility to Interstate Highway 94

would ensure a broad customer base. In October 1992 the

Tribes formally submitted their application under the

Indian Gaming Regulatory Act (“IGRA”) 25 U.S.C. §§ 2701

et seq. to the Department of the Interior seeking to have the

Hudson property taken into trust for their benefit for the

purpose of operating a casino gaming facility.

The Secretary of the Interior has broad discretion to

acquire lands in trust for the benefit of Indian tribes pur-

No. 03-2323 3

suant to Indian Reorganization Act of 1934, 25 U.S.C. § 465.

However, this authority is limited by IGRA, which prohibits

certain types of gaming on lands acquired in trust by the

Secretary of the Interior after October 17, 1988 (“after-

acquired lands”). 25 U.S.C. § 2719(a). The Tribes hoped that

their application would be favorably received pursuant to 25

U.S.C. § 2719(b)(1)(A), an exception to IGRA’s general ban

on gaming on after-acquired lands. That exception provides

that the general prohibition on gaming shall not apply

where:

the Secretary, after consultation with the Indian tribe

and appropriate State and local officials, including offi-

cials of other nearby Indian tribes, determines that a

gaming establishment on newly acquired lands would

be in the best interest of the Indian tribe and its mem-

bers, and would not be detrimental to the surrounding

community, but only if the Governor of the State in

which the gaming activity is to be conducted concurs in

the Secretary’s determination.

25 U.S.C. § 2719(b)(1)(A).

The Department of the Interior initially denied the Tribes’

application, but later vacated the rejection following a

lawsuit and settlement. In February 2001, the Department

of the Interior issued findings that the proposal was in the

best interests of the Tribes and would not be detrimental to

the surrounding community. The Department of the

Interior sent the matter to then- Governor of Wisconsin

Scott McCallum for his concurrence. In May 2001, Governor

McCallum issued a letter declining to concur in the Secre-

tary’s findings, citing Wisconsin’s general disapproval of off-

reservation gaming and public policy of permitting only

“limited exceptions to the general prohibition against

gambling.” Governor McCallum opined that the public

interest would not be served by the addition of another

major casino gaming facility to the seventeen casino gaming

4 No. 03-2323

facilities already operating in Wisconsin. In June 2001, the

Department of the Interior issued a final decision denying

the Tribes’ application on the grounds that, absent the

Governor’s concurrence, the exception provided in 25 U.S.C.

§ 2719(b)(1)(A) did not apply and 25 U.S.C. § 2719(a)

precluded the acquisition of the land for the purposes of

gaming.

The Tribes initiated this litigation in the United States

District Court for the District of Columbia in May 2001

seeking a declaration that the gubernatorial concurrence

provision of § 2719(b)(1)(A) was unconstitutional. The State

of Wisconsin and Governor McCallum moved to intervene

in July 2001. The Tribes moved for judgment on the

pleadings in December 2001. The case was eventually

transferred to the United States District Court for the

Western District of Wisconsin in October 2002. The Tribes

renewed their motion for judgment on the pleadings in

November 2002, and both defendants filed cross-motions for

judgment on the pleadings.1 The Tribes filed an opposition

to the defendants’ motions in addition to a “conditional

motion” to file a second amended complaint. The conditional

motion requested that the Tribes be permitted to add a

claim that Governor McCallum had relied on improper

factors in refusing to concur, in the event that the court

upheld the constitutionality of the gubernatorial concur-

rence provision of § 2719(b)(1)(A).

In April 2003, the district court granted the defendants’

motions for judgment on the pleadings, finding that the

gubernatorial concurrence provision is not an unconstitu-

tional delegation of power, nor does it violate the separation

of powers doctrine, the Appointments Clause, Art. II, § 2, or

the Tenth Amendment. Further, the district court found

1

James E. Doyle, the current Governor of Wisconsin, was sub-

stituted for Governor McCallum as the intervening defendant.

No. 03-2323 5

that the Tribes’ claim that the gubernatorial concurrence

requirement represented a breach of trust was barred by

sovereign immunity and was without support in law.

Finally, the district court denied the Tribes’ conditional

motion to amend, stating that it was untimely and futile.

The district court subsequently denied the Tribes’ Rule 59

motion to vacate the judgment and the Tribes now appeal.

We uphold the judgment of the district court because we

conclude that § 2719(b)(1)(A) does not violate separation of

powers principles, the nondelegation doctrine, the Appoint-

ments Clause, principles of federalism, or the federal

government’s trust obligations to Indians.

II. Analysis

The Tribes challenge the constitutionality of the guberna-

torial concurrence provision of the Indian Gaming Regula-

tions Act (“IGRA”), 25 U.S.C. § 2719(b)(1)(A) on multiple

grounds. The constitutionality of a federal statute is an

issue of law subject to de novo review. United States v.

Hausmann, 345 F.3d 952, 958 (7th Cir. 2003). When “it

is fairly possible[,]” this Court is “to interpret the statute in

a manner that renders it constitutionally valid.”

Communications Workers of Am. v. Beck, 487 U.S. 735, 762

(1988).

Following the Supreme Court’s decision in California v.

Cabazon Band of Mission Indians, 480 U.S. 202 (1987),

which held that Congress had not yet expressly granted the

States jurisdiction to enforce state civil gaming regulations

on Indian reservation land, Congress passed IGRA for the

purpose of creating a federal regulatory scheme for the

operation of gaming on Indian lands. 25 U.S.C. § 2702.

IGRA states that the operation of gaming by Indian tribes

is to serve “as a means of promoting tribal economic devel-

opment, self-sufficiency, and strong tribal governments.” 25

U.S.C. § 2702(1). IGRA recognizes that the States have an

6 No. 03-2323

interest in the regulation of gaming on Indian lands within

their borders and allows state regulation of Indian gaming

in two ways: (1) state criminal laws that prohibit gaming

are enforceable on tribal lands, see 25 U.S.C. § 2701(5), and

(2) Indian tribes who choose to engage in Class III gaming

may do so only pursuant to a Tribal-State compact, see 25

U.S.C. § 2710(d)(1).2

At issue in this litigation is § 2719(b)(1)(A), which allows

the Secretary of the Interior to deviate from IGRA’s general

prohibition of gaming on after-acquired lands if certain

prerequisites are met. Under § 2719(b)(1)(A), the Secretary

of the Interior may take land not contiguous to the reserva-

tion of the applicant Indian tribe into trust for the purpose

of operating a gaming establishment if the Secretary finds

that two factual predicates exist, namely, whether (1) “a

gaming establishment on newly acquired lands would be in

the best interest of the Indian tribe and its members,” and

(2) “would not be detrimental to the surrounding commu-

nity,” and if the “Governor of the State in which the gaming

activity would be conducted” concurs in the Secretary’s

favorable determination. 25 U.S.C. § 2719(b)(1)(A).

A.

The Tribes assert that the gubernatorial concurrence pro-

vision of § 2719(b)(1)(a) violates the separation of powers

2

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) held

that 25 U.S.C. § 2710(d)(7), which purported to authorize an

Indian tribe to bring suit in federal court to compel a State to

negotiate in good faith toward the formulation of a Tribal-State

compact, violated the Eleventh Amendment. The Supreme Court

held that the Indian Commerce Clause does not grant Congress

the power to abrogate the States’ sovereign immunity from suit.

Id. at 48.

No. 03-2323 7

doctrine because it prevents the Executive Branch from

executing the laws. In their view, § 2719(b)(1)(A) unconsti-

tutionally diverts to the Governors of the 50 States the final

decisional authority delegated by IGRA to the Secretary of

the Interior. The Tribes submit that § 2719(b)(1)(A) re-

quires a governor to review the Secretary of the Interior’s

analysis of the two factual predicates and empowers the

governor to “veto” the Secretary of the Interior’s conclusion

by withholding concurrence. The Tribes cite INS v. Chadha,

462 U.S. 919 (1983) for the proposition that Congress

cannot confer upon itself or an actor external to the federal

Executive Branch the power to veto the President’s execu-

tion of federal law.

At issue in Chadha was Section 244(c)(2) of the

Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2),

which authorized either House of Congress, by resolution,

to veto the Attorney General’s decision to suspend the

deportation of a particular alien. The Supreme Court noted

that the one-house veto served an “essentially legisla-

tive . . . purpose and effect,” id. at 952, and was therefore

subject to the procedural requirements for enacting legi-

slation set forth in the Constitution: bicameral passage,

U.S. Const. art. I, § 1, and presentment to the President,

U.S. Const. art. 1, § 7, cl. 2. Chadha, 462 U.S. at 954-55.

The Supreme Court concluded that none of the “four

provisions in the Constitution, explicit and unambiguous,

by which one House may act alone with the unreviewable

force of law, not subject to the President’s veto” applied

to § 244(c)(2), and therefore concluded that the House of

Representatives lacked authority under the Constitution to

veto the Attorney General’s decision to suspend the pe-

titioner’s deportation. Id. at 956-57. Finally, the Chadha

Court noted that to maintain the separation of powers, “the

carefully defined limits on the power of each Branch must

not be eroded.” Id. at 958.

8 No. 03-2323

Unlike the one-House veto provision at issue in Chadha,

the gubernatorial concurrence provision does not prevent

the Executive Branch from accomplishing its delegated

function under IGRA. Section 2719(b)(1)(A) assigns the

Secretary of the Interior two responsibilities: (1) to evaluate

whether gaming on the proposed trust land would be in the

best interest of the applicant tribe and not detrimental to

the surrounding community; if so, then (2) to ascertain

whether the Governor of the State where the proposed trust

land is located concurs with his or her favorable determina-

tion. A governor’s concurrence is no less a precondition to

the Executive Branch’s authority to waive IGRA’s general

prohibition of gaming on after-acquired lands than are the

factual circumstances that give rise to Secretary of the

Interior’s conclusion that gaming on the proposed trust land

would be in the Indian tribe’s best interests and would not

be detrimental to the surrounding community. Unless and

until the appropriate governor issues a concurrence, the

Secretary of the Interior has no authority under

§ 2719(b)(1)(A) to take land into trust for the benefit of an

Indian tribe for the purpose of the operation of a gaming

establishment.

The power delegated to the Attorney General in

Chadha had no similar contingency predicate to the

Attorney General’s statutory authority to execute the law.

The one-House veto wrested final decision-making power

away from the Executive Branch over an issue that had

been legislatively entrusted to the Attorney General and

thereby directly impeded the Attorney General from ac-

complishing the function delegated: to determine whether

to suspend, and to suspend, the deportation of a particular

alien. In contrast, after the two preconditions to the

Secretary of the Interior’s authority are met—i.e., the two

factual predicates exist and the governor issues a concur-

rence—the Secretary of the Interior’s decision to execute

§ 2719(b)(1)(A) by taking the proposed land into trust is not

subject to review.

No. 03-2323 9

We agree with the Ninth Circuit that § 2719(b)(1)(A) is an

example of contingent legislation, wherein Congress

restricted the authority to execute federal legislation con-

tingent upon the approval of an actor external to the federal

Executive Branch. Confederated Tribes of Siletz Indians of

Oregon v. United States, 110 F.3d 688, 694-95 (9th Cir.

1997). As the Supreme Court established in Currin v.

Wallace, 306 U.S. 1, 15 (1939), Congress may place “a

restriction upon its own regulation by withholding its

operation” unless a specified percentage of those affected by

the regulation agree to submit to it. In Currin, the Supreme

Court upheld a federal statute that authorized the Secre-

tary of Agriculture to designate markets for the sale of

tobacco, but only if two-thirds of affected tobacco growers

favored the designation. See also United States v. Rock

Royal Co-op, 307 U.S. 533, 577-78 (1939) (upholding

provision conditioning Secretary of Agriculture’s power to

issue marketing orders contingent upon vote of producers);

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 407

(1928). Moreover, Congress may condition the operation of

federal law on the approval of a state official. See Parker v.

Richard, 250 U.S. 235 (1919) (upholding provision that

conditioned the conveyance of certain Indian lands upon the

approval of a state court). As in Currin, where the Secretary

of Agriculture’s authority was conditioned on a favorable

vote of the affected farmers, the Secretary of the Interior’s

authority to act is conditioned on the concurrence of the

relevant governor. This condition does not impermissibly

interfere with the Executive Branch’s execution of federal

law, so much as its occurrence is a prerequisite to the

Executive Branch’s authority to act pursuant to § 2719

(b)(1)(A).

The Tribes contend that the contingent legislation ra-

tionale is an inappropriate analogy to § 2719(b)(1)(A)

because that Section empowers governors to impose the

force of law on Indian Tribes, who they characterize as

10 No. 03-2323

“unwilling third parties,” whereas contingent legislation

typically empowers the decision-maker to submit only itself

to regulation. We agree with the Tribes that the statutes

upheld in Currin and Rock Royal conditioned the power of

the federal Executive on the approval of those subject to the

proposed regulation, but we also conclude that the guberna-

torial concurrence provision conditions the Secretary of the

Interior’s power on the approval of the appropriate party.

According to the Tribes, § 2719(b)(1)(A) regulates Indian

tribes with reservations encompassed by the state where

the proposed trust land is located. We disagree. The object

of regulation under § 2719(b)(1)(A) is land that the

Secretary of the Interior has taken into trust for Indians for

the purpose of operating a gaming establishment. Before

the land is taken into trust, it is within the jurisdiction of

a state and is not yet subject to federal regulation under

IGRA. Therefore, while the Secretary of the Interior

investigates whether gaming on the proposed trust land

“would be in the best interest of the Indian tribe” and

“would not be detrimental to the surrounding community,”

the proper spokesperson for the land in question is neces-

sarily a representative of the state where the land is

located. It is only after the Secretary of the Interior de-

termines that the proposed trust land meets the factual

requirements of § 2719(b)(1)(A), the governor issues a con-

currence, and the Secretary executes the federal law by

taking the land into trust, that the Tribe enjoying that trust

land becomes its appropriate representative. Thus, condi-

tioning the Secretary of the Interior’s power on the assent

of the relevant governor is not unlike the contingent

legislation in Currin, in that the proper spokesperson of the

object of regulation—the land—is empowered to invite, or

refuse, federal regulation.

We find that the remaining separation of powers issues

illustrated by the one-House veto in Chadha are not

No. 03-2323 11

present here. The gubernatorial concurrence provision does

not aggrandize the power of the Legislative Branch at the

expense of the Executive Branch. The Secretary of the

Interior would have no authority to permit gaming on after-

acquired trust lands absent the power delegated by Con-

gress in IGRA. Congress may, consistent with the doctrine

of separation of powers, condition that delegation on the

approval of an actor external to the Executive Branch. See

Currin, 306 U.S. at 1. Congress has not wrongfully en-

hanced its power by the use of the contingent legislation

mechanism; whether the governor concurs and thereby

triggers the Secretary of the Interior’s power under

§ 2719(b)(1)(A) is a circumstance outside of Congress’s

influence or control. See Morrison v. Olson, 487 U.S. 654,

694 (1988) (holding that the independent counsel provisions

of the Ethics in Community Government Act do not violate

separation of powers principles by impermissibly interfering

with the functioning of the Executive Branch, when

“Congress retained for itself no powers of control or supervi-

sion over an independent counsel”).

Finally, the Tribes argue that § 2719(b)(1)(A) violates the

separation of powers doctrine because it transfers control

over the execution of federal law from the Executive Branch

to the Governors of the 50 States, citing Printz v. United

States, 521 U.S. 898 (1997). In Printz, at issue were certain

interim provisions of the Brady Handgun Violence Preven-

tion Act (“Brady Act”), 18 U.S.C. § 922, which obliged state

law enforcement officers to conduct background checks of

prospective handgun purchasers until a national system

became operative. Id. at 903. The Supreme Court held that

the interim provisions unconstitutionally transferred the

responsibility of the President to “take Care that the Laws

be faithfully executed,” U.S. Const. Art. II, § 3, to the law

enforcement officers of the 50 States, “who are left to

implement the program without meaningful Presidential

control.” Id. at 922. The Printz Court noted that, by accom-

12 No. 03-2323

plishing the execution of the law through state officers,

Congress had denigrated the President’s power by circum-

venting the Executive Branch and had weakened the

accountability and vigor of that Branch. Id.

Unlike the Brady Act’s requirement that state officers

temporarily execute federal law by performing background

checks, the gubernatorial concurrence provision does not

require or even permit any governor to execute federal law.

The execution of § 2719(b)(1)(A) occurs when the Secretary

of the Interior takes land into trust for the benefit of

Indians for the purpose of operating a gaming establish-

ment. IGRA does not empower any governor to perform that

function. For example, even if a governor believed that

taking land into trust for an Indian tribe for the purpose of

gaming “would be in the best interest of the Indian tribe”

and “would not be detrimental to the surrounding commu-

nity,” if the Secretary of the Interior disagreed, the gover-

nor would be unable to execute § 2719(b)(1)(A) by taking the

land into federal trust.

As only the Secretary of the Interior may execute the

§ 2719(b)(1)(A) exception to IGRA’s general prohibition of

gaming on after-acquired land, the Executive Branch re-

tains control over IGRA’s execution, and therefore there is

no Printz separation of powers problem. In conclusion, we

hold that the contested provision of IGRA does not violate

the separation of powers doctrine by interfering with the

Executive Branch’s execution of federal law.

B.

We now turn to the Tribes’ argument that Congress vio-

lated a related branch of the separation of powers jurispru-

dence: the nondelegation doctrine. In the Tribes’ view, if

§ 2719(b)(1)(A) does not require a governor to decide

whether to concur based on his or her analysis of the two

factual predicates that bind the Secretary of the Interior’s

No. 03-2323 13

determination, but instead directs each governor to select

any standard on which to base the decision, then Congress

has abdicated its duty to guide the execution of the law. See

Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472 (2001)

(quoting J.W. Hampton, Jr., & Co. v. United States, 276

U.S. 394, 409 (1928)) (stating that Congress must “lay down

by legislative act an intelligible principle to which the

person or body authorized to [act] is directed to conform”).

According to the Tribes, Congress failed to adequately

constrain the discretion of the Governors, and

§ 2719(b)(1)(A) therefore requires the Governors to estab-

lish Congressional policy, in violation of U.S. Const. Art. 1,

§ 1.

The Supreme Court has explained that the nondelegation

doctrine generally prohibits Congress from delegating its

legislative power to another Branch of the federal govern-

ment. Mistretta v. United States, 488 U.S. 361, 372 (1989).

We conclude that the nondelegation doctrine is

not implicated by the provision at issue because

§ 2719(b)(1)(A) does not delegate any legislative power to

the Governors of the 50 States. When Congress enacts con-

tingent legislation, it does not “abdicate, or . . . transfer to

others, the essential legislative functions with which it

is vested by the Constitution, U.S.C.A. Art. 1, sec. 1.”

Currin, 306 U.S. at 15. There is no “delegation of legislative

authority” to the actor whose assent is a precondition to the

execution of the law. Id. (“So far as growers of tobacco are

concerned, the required referendum does not involve any

delegation of legislative authority. Congress has merely

placed a restriction upon its own regulation by withholding

its operation . . . unless two-thirds of the growers voting

favor it.”) (citations omitted).

Congress exercised its legislative authority by enacting

IGRA’s general prohibition of gaming on after-acquired

land, creating an exception to that rule in § 2719(b)(1)(A),

and dictating the prerequisites for the application of that

14 No. 03-2323

exception. A governor does not enact federal policy by issu-

ing a concurrence, but instead merely waives one legisla-

tively enacted restriction on gaming. Nor does a governor

impact federal policy by declining to concur; in that event,

IGRA’s policy of prohibiting gaming on after-acquired lands

remains in force. See Kentucky Div., Horsemen’s Benevolent

Ass’n, Inc. v. Turfway Park Racing Ass’n, Inc., 20 F.3d 1406,

1416 (6th Cir. 1994) (stating that federal legislation

conditioning the legality of off-track betting on the consent

of the host racing association does not allow the association

to “make the law . . . rather, the veto is merely a condition

established by Congress upon the application of Congress’

general prohibition of interstate off-track betting”).

During oral argument, it became evident that the Tribes’

concern is not so much the unconstrained discretion that

Congress permitted the Governors of the 50 States to

exercise under § 2719(b)(1)(A), but that Congress had dele-

gated any power to the Governors at all. The Tribes con-

ceded that they would not have objected on nondelegation

grounds had Congress conditioned the Secretary’s power

to take land into trust not upon the concurrence of a

governor, but rather upon the majority vote of the Indian

tribes with reservations encompassed by the state where

the proposed trust land is located. In the Tribes’ view, the

Governor of Wisconsin is an improper delegatee because his

administration oversees the Wisconsin State Lottery, which

they maintain is in competition with the casinos subject to

regulation under IGRA. The Tribes rely on Carter v. Carter

Coal Co., 298 U.S. 238, 311 (1936) for the proposition that

Congress may not delegate to a private party the power to

regulate an industry when the delegatee has “interests

[that] may be and often are adverse to the interests of

others in the same business.”

At issue in Carter were certain provisions of the

Bituminous Coal Conservation Act of 1935. Under that Act,

the largest producers of coal were delegated the power to es-

No. 03-2323 15

tablish the maximum hour and minimum wage terms that

controlled the entire coal industry. Carter, 298 U.S. at 284.

In striking down the provision, the Supreme Court was

troubled that the statute did not empower “an official or

an official body, presumptively disinterested,” but instead

empowered “private persons whose interests may be and

often are adverse to the interests of others in the same

business.” Id. at 311. The Supreme Court concluded that

the Act denied the smaller coal producers their “rights

safeguarded by the due process clause of the Fifth

Amendment,” and therefore invalidated the provision at

issue. Id. at 311-12.

We conclude that the gubernatorial concurrence provision

does not raise the concerns presented in Carter.

The Governors of the 50 States are politically accountable

to their constituencies and will therefore be motivated to

maximize the public good, contrary to the chief coal pro-

ducers in Carter, whose relationship with minor coal pro-

ducers was “conflicting and even antagonistic,” and whose

motivations were self-serving. See Carter, 298 U.S. at

311. Even if a particular governor might enjoy ultimate

authority over a state lottery or gaming system, that role

will surely be eclipsed by the governor’s responsibility to

regulate the broader state economy.

In conclusion, we find that § 2719(b)(1)(A) does not violate

the nondelegation doctrine because it does not entrust to

the Governors of the 50 States any legislative power, nor

does it violate the principles of Carter by wrongfully

authorizing a self-interested leader of private industry to

regulate its competitors.

C.

We now address the Tribes’ argument that the guber-

natorial concurrence provision violates the Appointments

Clause. That Clause states that:

16 No. 03-2323

[The President] . . . shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint . . .

Officers of the United States, whose Appointments are

not herein otherwise provided for, and which shall be

established by Law: but the Congress may by Law vest

the Appointment of such inferior Officers, as they think

proper, in the President alone, in the Courts of Law, or

in the Heads of Departments.

U.S. Const. Art II. § 2, cl. 2. Any person “exercising signi-

ficant authority pursuant to the laws of the United States

is an ‘Officer of the United States’ and must, therefore, be

appointed in a manner prescribed by § 2, cl. 2 of that

Article.” Buckley v. Valeo, 424 U.S. 1, 126 (1976).

The Tribes contend that a governor is required by

§ 2719(b)(1)(A) to execute “final decisional discretion on

whether and how federal power is exercised,” and that this

function is sufficiently significant under Buckley as to merit

the title of “Officer of the United States.” Thus, they claim,

the gubernatorial concurrence provision violates the

Appointments Clause because no governor has been nom-

inated by the President with the advice and consent of the

Senate, as is required by Article II, § 2, cl. 2 of all Officers

of the United States.

At issue in Buckley were certain provisions of the Federal

Election Campaign Act which vested the members of the

Federal Election Commission (“commissioners”) with broad

authority, including “recordkeeping, disclosure and investi-

gative functions”; “extensive rulemaking and adjudicative

powers”; and the power to “institute a civil action” for the

purposes of enforcing the Act. Buckley, 424 U.S. at 110. The

Supreme Court held that, because the commissioners

enjoyed “primary responsibility for conducting civil litiga-

tion . . . for vindicating public rights,” their “authority . . .

cannot possibly be regarded as merely in aid of the legi-

slative function of Congress,” but rather extended to typ-

ically executive functions of administering and enforcing

No. 03-2323 17

the law. Id. at 139-40. Therefore, because the Act specified

a procedure for appointing the commissioners different from

that required by Article II, § 2, cl. 2, the Supreme Court

held that the provisions of the Act that conferred authority

to the commissioners to execute federal law were in viola-

tion of the Constitution. Id. at 140.

Unlike the members of the Federal Election Commission

in Buckley, the Governors of the 50 States do not enjoy

power under § 2719(b)(1)(A) to enforce or administer federal

law. The power to execute § 2719(b)(1)(A) is entrusted

exclusively to the Secretary of the Interior, as only he or she

may lift IGRA’s general prohibition of gaming on after-

acquired land. A governor’s role under § 2719(b)(1)(A) is

limited to satisfying one precondition to the Secretary of the

Interior’s authority under § 2719(b)(1)(A) to permit gaming

on after-acquired trust land.

Nor is the governor’s role under § 2719(b)(1)(A) significant

enough to merit the title of an Officer of the United States.

An Officer of the United States enjoys more than a merely

“temporary, episodic” opportunity to act pursuant to federal

law, and instead enjoys a somewhat regular opportunity to

issue enforceable decisions. See Freytag v. Comm’r of

Internal Revenue, 501 U.S. 868, 877, 881 (1991) (differenti-

ating between special masters whose duties are “temporary”

and “episodic” in nature and subject to review, and special

trial judges who enjoy regular opportunities to issue final

decisions of federal law, holding that only the latter served

as Officers of the United States subject to the Appointments

Clause). Not only is a governor unable to issue the Secre-

tary of the Interior’s final decision regarding an Indian

tribe’s application under § 2719(b)(1)(A), a governor’s

opportunity to participate in the administration of IGRA

will arise irregularly, if it materializes at all. Moreover, the

influence of any one governor is temporary and limited to

the particular application under review.

18 No. 03-2323

The Tribes argue vociferously that the Governor of

Wisconsin is not permitted by any Wisconsin state law to

communicate with the federal government regarding pro-

posals to acquire Wisconsin land in trust for the benefit of

Indians. Rather, only federal law authorizes the Governor

of Wisconsin to respond to the Secretary of the Interior’s

request for concurrence; in their view, this necessarily

imbues the Governor with the role of an Officer of the

United States. Notwithstanding the absence of a specific

Wisconsin state law authorizing the Governor of Wisconsin

to respond to the Secretary of the Interior’s request for

concurrence, we conclude that the Governor of Wisconsin’s

role under § 2719(b)(1)(A) is not one that requires appoint-

ment in conformity with Article II, § 2, cl. 2.

The text of the relevant portion of the Appointments

Clause limits its applicability to Appointments “. . . not

herein otherwise provided for, and which shall be estab-

lished by Law . . .” U.S. Const. Art. II, § 2, cl. 2. In deter-

mining whether a particular position is “established by

Law,” the Supreme Court has considered whether the

position’s “duties, salary, and means of appointment” are

stipulated by federal law. See Freytag, 501 U.S. at 881-82.

Here, even though federal law requests that the office of the

Governor of Wisconsin respond to the Secretary of the

Interior’s request for concurrence, it is the citizens of

Wisconsin, and not Congress, who elect the Governor,

pursuant to procedures mandated by the Constitution of the

State of Wisconsin. We conclude that the requirements

of the Appointments Clause are not triggered by the

gubernatorial concurrence provision because that provision

neither specifies the “duties, salary, and means of appoint-

ment” of any governor, nor does it empower any governor to

execute federal law.

Further, we note that the separation of powers concerns

underlying the Appointments Clause are not suggested by

the gubernatorial concurrence provision. See Freytag, 501

No. 03-2323 19

U.S. at 878 (“The roots of the separation-of-powers concept

embedded in the Appointments Clause are structural and

political.”). In § 2719(b)(1)(A), Congress did not select

the administrator of federal gaming policy in derogation of

the President’s power to appoint subordinates to aid in the

execution of federal law. Rather, Congress directed the

Secretary of the Interior, a Presidential appointee, to con-

sult with the chosen representative of the citizens of the

States before executing the law. Therefore, we agree with

the Ninth Circuit that the governor’s concurrence provision

does not violate the Appointments Clause. Confederated

Tribes, 110 F.3d at 698.

D.

The Tribes seek to persuade this Court that the guberna-

torial concurrence provision compels state governors to

administer federal law in violation of principles of feder-

alism as interpreted in New York v. United States, 505 U.S.

144 (1992) and in Printz v. United States, 521 U.S. 898

(1997). In New York v. United States, at issue were provi-

sions of the Low-Level Radioactive Waste Policy Amend-

ments Act which required each state to either enact legisla-

tion providing for the disposal of locally generated radioac-

tive waste or to take title to and possession of that waste.

New York v. United States, 505 U.S. at 153-54. The Su-

preme Court invalidated the provisions at issue, holding

that the Tenth Amendment prohibited the federal govern-

ment from compelling “the States to enact or administer a

federal regulatory program.” Id. at 188. In Printz, the

Supreme Court applied the rule of New York to the Brady

Act, a federal statute which required state law enforcement

officers to conduct background checks of prospective

handgun purchasers. The Printz Court held that Congress

may no more “command the State’s officers . . . to adminis-

20 No. 03-2323

ter or enforce a federal regulatory program,” than it may

command State legislatures to do so. Printz, 521 U.S. at

935.

The Tribes contend that the Secretary of the Interior’s

request for a governor’s concurrence pursuant to

§ 2719(b)(1)(A) is no less offensive to state sovereignty than

were the statutes at issue in New York v. United States and

Printz. In their view, § 2719(b)(1)(A) mandates that state

governors participate in the federal regulation of property

held in federal trust for the benefit of Indians. We disagree.

Neither the States nor their Governors are required to aid

the federal administration of § 2719(b)(1)(A) in any way.

Upon receiving the Secretary of the Interior’s request for

concurrence, a governor may, consistent with IGRA,

willfully ignore it. In that instance, the governor’s inaction

could not fairly be characterized as the “administ[ration] or

enforce[ment] [of] a federal regulatory program” under

Printz. See Printz, 521 U.S. at 935. In neither New York v.

United States nor Printz were state officials permitted to

disregard a federal directive; to the contrary, compliance

with the Low-Level Radioactive Waste Policy Amendments

Act and the Brady Handgun Violence Protection Act

required officers of the States to implement the costly and

time-consuming programs that Congress had devised.

The Tribes counter that it is immaterial to the federalism

analysis that a governor’s role under § 2719(b)(1)(A)

is purely voluntary, because even in choosing inaction, a

governor will have a “dispositive” impact on IGRA’s reg-

ulatory scheme. Indeed, if the Secretary of the Interior

receives no response from a governor whose concurrence he

or she had solicited, the Secretary must deny the applica-

tion pending under § 2719(b)(1)(A). A governor is thus

inescapably ensnared in the execution of federal law, the

Tribes argue, and despite a governor’s decision to ignore the

Secretary of the Interior’s inquiry, the result is in violation

of principles of federalism under New York v. United States

and Printz.

No. 03-2323 21

Despite the impact of gubernatorial inaction under

§ 2719(b)(1)(A), we conclude that the governor’s role under

that Section does not violate principles of federalism.

Printz and New York v. United States are concerned with

the denigration of state sovereignty that results when

Congress forces the States to implement federal policy

against their will. Section 2719(b)(1)(A), however, preserves

state sovereignty by merely encouraging the States to

decide whether to endorse federal policy and by reserving

the ultimate execution of that policy to the federal govern-

ment. That Section neither imposes on the States nor

depends on them for the implementation of federal law.

Contrary to the view of the Tribes, Printz and New York v.

United States do not prohibit the federal government from

seeking the voluntary input of the States in the federal

government’s execution of federal law.

Nor does the gubernatorial concurrence provision obstruct

the political accountability of the dual sovereigns. Because

the provision does not require a governor to respond, each

governor is solely responsible for the decision to grant,

decline, or deny consideration of the request for concur-

rence. The inability to shift blame to Congress for the

decision ensures that a governor will remain attuned to

political pressure from his or her constituents. See New

York v. United States, 505 U.S. at 168 (“Where Congress

encourages state regulation rather than compelling it, state

governments remain responsive to the local electorate’s

preferences; state officials remain accountable to the

people.”). It is only when Congress mandates that state

officials devote attention to a particular matter that the

local electorate is rendered politically mute. In that in-

stance, as in New York v. United States, no amount of

lobbying will resonate with local lawmakers because the

state’s agenda is no longer within their control.

In addition, the procedure under § 2719(b)(1)(A) is trans-

parent, enabling citizens and tribal members of an affected

22 No. 03-2323

State to ascertain which sovereign to criticize or laud after

a decision has been rendered. For example, if the Secretary

of the Interior refrains from soliciting the concurrence of

the relevant governor, an applicant tribe will conclude that

the Secretary of the Interior found § 2719(b)(1)(A)’s factual

predicates wanting. See Sokaogon Chippewa Cmty. v.

Babbitt, 214 F.3d 941 (7th Cir. 2000). Yet, if the Secretary

of the Interior issues a favorable finding, but ultimately

denies the application, the constituents will gather that the

governor likely declined to issue a concurrence, as is

demonstrated by the present litigation. Finally, if the

Secretary of the Interior takes land into trust pursuant to

§ 2719(b)(1)(A), tribal members and the citizens of the state

where the trust land is located can hold both sovereigns

accountable.

Lastly, the Tribes argue that the gubernatorial concur-

rence provision violates principles of federalism because

it impermissibly interferes with the functioning of state

government by rearranging its structure. The Tribes submit

that the gubernatorial concurrence provision requires the

Governor of Wisconsin to enact Wisconsin’s public policy

regarding gaming on after-acquired trust land, a function

which they characterize as legislative. This role violates the

Wisconsin Constitution, they argue, because Article IV, § 1

of the Wisconsin Constitution reserves the legislative power

to Wisconsin’s “senate and assembly.” The Tribes believe

that when the Secretary of the Interior seeks the concur-

rence of the Governor of Wisconsin, he or she requires the

Governor to legislate Wisconsin’s gaming policy in violation

of the Wisconsin Constitution.

The Tribes erroneously assume that § 2719(b)(1)(A) vests

the Governor of Wisconsin with authority to act outside

of the strictures of the gaming policy that Wisconsin

has already established through legislation and amend-

ments to the Wisconsin Constitution. In fact, the Wisconsin

Constitution and various Wisconsin statutes have already

No. 03-2323 23

implemented a fairly complex gaming policy. The Wisconsin

Constitution, which originally prohibited the establishment

of a lottery, was amended in 1987 to authorize a lottery

operated by the State. See Wis. Const. Art. VI § 24(6)(A).

The lottery is limited in the types of games it may offer. See

Wis. Stat. § 565.01(6)(m); Wis. Const. Art. IV § 24(6)(c).

Other than the state-operated lottery, the Wisconsin

Constitution permits gaming only in the following circum-

stances: bingo and raffle games operated by “religious,

charitable, service, fraternal or veterans’ organizations,”

and pari-mutuel wagering and on-track betting. Wis. Const.

Art. IV §§ 24(3-5). Notably, casino gambling is not permit-

ted under Wisconsin law.

The establishment of a state lottery signals Wisconsin’s

broader public policy of tolerating gaming on Indian lands.

See California v. Cabazon Band of Mission Indians, 480

U.S. 202 (1987). In Cabazon, the Supreme Court held that

a state has no authority to enforce its gaming laws on

Indian lands if it permits any gaming activity under state

law. Id. at 211. Further, because IGRA permits gaming on

Indian lands only if they are “located in a State that per-

mits such gaming for any purpose by any person, organiza-

tion or entity,” 25 U.S.C. § 2710(d)(1)(b), the lottery’s

continued existence demonstrates Wisconsin’s amenability

to Indian gaming. Although Wisconsin has not been willing

to sacrifice its lucrative lottery and to criminalize all gam-

bling in order to obtain authority under Cabazon and

§ 2710(d)(1)(b) to prohibit gambling on Indian lands,

Wisconsin once sought (albeit unsuccessfully) to limit

Indian gaming to the “identical types of games” authorized

for the Wisconsin State Lottery. See Lac du Flambeau Band

of Lake Superior Chippewa Indians v. Wisconsin, 770

F.Supp 480, 487 (W.D. Wis. 1991) appeal dismissed for

want of jurisdiction, 957 F.2d 515 (7th Cir. 1992).

The Tribes and the Governor of Wisconsin may not share

an opinion of the overriding goal of Wisconsin’s gaming

24 No. 03-2323

policy, but they must concede that a gaming policy exists.

When the Governor of Wisconsin considers the Secretary of

the Interior’s request for concurrence regarding an off-

reservation gaming proposal, he or she will be informed

by the public policy represented by the Wisconsin

Constitution and relevant statutes. Thus, the Governor’s

decision regarding any particular proposal is not analogous

to creating Wisconsin’s gaming policy wholesale—a leg-

islative function—but rather is typical of the executive’s

responsibility to render decisions based on existing policy.

The governor’s role is not inconsistent with the Wisconsin

Constitution, which vests “the executive power . . . in a

governor.” Wisc. Const. Art 5, § 1. Further, it is not prob-

lematic that the Governor of Wisconsin enjoys discretion

within the limitations of Wisconsin’s existing gaming policy

to render an opinion regarding any particular application

under § 2719(b)(1)(A). See Printz, 521 U.S. at 927 (“Execu-

tive action that has utterly no policymaking component is

rare, particularly at an executive level as high as a jurisdic-

tion’s chief law enforcement officer.”).

Additionally, the Governor of Wisconsin’s power to re-

spond to the Secretary of the Interior’s request for concur-

rence is not without a check in the Wisconsin Legislature.

Indeed, on two occasions, the Wisconsin Legislature has

attempted to curtail the Governor’s power to concur. See

1999 Wis. Act 9, § 7(q), and 2003 Assembly Bill 144.

Although the Legislature did not override the Governor’s

veto of either bill, the Wisconsin Constitution provides a

mechanism for the Legislature to do so. See Wis. Const. Art.

5 § 10(2)(a). Moreover, the citizens of Wisconsin could

render the gubernatorial concurrence provision a nullity by

repealing the Constitutional amendments that sanction

gaming in Wisconsin; if Wisconsin prohibited all gaming,

§ 2710(d)(1) would not permit gaming on Indian lands in

Wisconsin, and the Secretary of the Interior would have no

occasion to solicit the Governor’s concurrence.

No. 03-2323 25

In conclusion, we hold that § 2719(b)(1)(A) does not vio-

late principles of federalism by either commandeering

the Governors of the 50 States into federal service or by

interfering with the functioning of the Wisconsin state

government.

E.

We now address the Tribes’ argument that the gubernato-

rial concurrence provision is in violation of the federal

government’s trust responsibility to Indians. The Tribes

submit that the Indian Commerce Clause, U.S. Const. art.

I § 8, cl. 3, confers “plenary power to legislate in the field of

Indian affairs” to Congress, Cotton Petroleum Corp. v. New

Mexico, 490 U.S. 163, 192 (1989), but that this power is

limited by the federal government’s trust obligation to

Indians. They argue that all legislation enacted pursuant to

the Indian Commerce Clause must be “rationally tied to

furthering the federal government’s trust obligations.”

Further, they believe that the gubernatorial concurrence

provision does not meet that standard because it delegates

to non-trustees the authority to make decisions that effect

the administration of Indian affairs. We conclude that

Congress’s obligation to Indians is not so broad as to

require invalidation of the provision at issue.

First, the Tribes argue that the trust doctrine cannot be

severed from the Indian Commerce Clause. We disagree.

The Supreme Court has acknowledged the “distinctive

obligation of trust incumbent upon the Government in its

dealings with these dependent and sometimes exploited

people,” Seminole Nation v. United States, 316 U.S. 286, 296

(1942), and the “undisputed existence of a general trust

relationship between the United States and the Indian

people,” United States v. Mitchell, 463 U.S. 206, 225 (1983),

yet it has not held that this obligation arises from any

particular provision of the Constitution. Rather, the trust

26 No. 03-2323

relationship arises from the United States’ unfortunate

history of Indian policy, as is explained in the following

paternalistic terms: “[i]n the exercise of the war and treaty

powers, the United States overcame the Indians and took

possession of their lands, sometimes by force, leaving them

an uneducated, helpless and dependent people, needing

protection against the selfishness of others and their own

improvidence. Of necessity the United States assumed the

duty of furnishing that protection . . . .” Morton v. Mancari,

417 U.S. 535, 552 (1974) (quoting Board of County Comm’rs

v. Seber, 318 U.S. 705,715 (1943)). It is the common law,

and not the Constitution, that recognized the Indian tribes

as “the wards of the nation.” See United States. v. Kagama,

118 U.S. 375, 384 (1886).

Despite the trust doctrine’s lack of foundation in the

Constitution, the Tribes seek to persuade this Court that all

Indian legislation must be related rationally to furthering

the federal government’s trust obligation to Indians.

In support, the Tribes cite Delaware Tribal Bus. Comm.

v. Weeks, 430 U.S. 73 (1977) for the proposition that “leg-

islative judgment should not be disturbed ‘[a]s long as the

special treatment can be tied rationally to the fulfillment of

Congress’ unique obligation toward the Indians . . . .’ ”

Weeks, 430 U.S. at 85 (quoting Morton, 417 U.S. at 555).

In Morton, non-Indian employees of the Bureau of Indian

Affairs (“BIA”) challenged the Indian Reorganization Act on

the ground that the preference granted to qualified Indians

for employment at the BIA constituted invidious racial

discrimination in violation of the Due Process Clause of the

Fifth Amendment. Id. at 537. The purpose of the employ-

ment preference was to “give Indians a greater participation

in their own self-government; to further the Government’s

trust obligation toward Indian tribes; and to reduce the

negative effect of having non-Indians administer matters

that affect Indian tribal life.” Id. at 542-43 (internal

footnotes omitted). Similarly, in Weeks, an Act of Congress

No. 03-2323 27

was challenged on the grounds that it denied non-beneficia-

ries of Indian legislation the equal protection of the laws in

violation of the Due Process Clause of the Fifth Amend-

ment. Weeks, 430 U.S. 75. At issue in Weeks was an authori-

zation by Congress to disburse funds to certain Delaware

Indians in order to redress the United States’ breach of a

particular treaty. Id. It was challenged by a group of

Delaware Indians who were excluded from the distribution.

Id.

In both cases, the Supreme Court established that

congressional legislation was subject to judicial review “to

determine whether it violates the equal protection com-

ponent of the Fifth Amendment.” Id. at 919 (citing Morton,

417 U.S. 535). The Morton Court cautioned, however, that

courts must consider the constitutional validity of Indian

legislation in the “historical and legal context” of the United

States’ trust obligation to Indians. Morton, 417 U.S. at 553.

The Supreme Court noted that “[l]iterally every piece of

legislation dealing with Indian tribes . . . single[s] out for

special treatment a constituency of tribal Indians,” and that

if such legislation were to be “deemed invidious racial

discrimination, . . . [that] the solemn commitment of the

Government toward the Indians would be jeopardized.” Id.

at 552. Thus, in order to preserve Congress’s ability to

legislate in furtherance of the United States’ trust obliga-

tion to Indians, the Supreme Court held that “special

treatment [that] can be tied rationally to the fulfillment of

Congress’ unique obligation toward the Indians . . . will not

be disturbed.” The Supreme Court applied the Morton

standard to the Fifth Amendment challenge in Weeks, and

again upheld the Act of Congress at issue on the basis that

it was rationally tied to fulfillment of the trust obligation to

Indians. Weeks, 430 U.S. at 85, 90.

To read Morton as requiring that all legislation enacted

pursuant to the Indian Commerce Clause be rationally

related to the United States’ trust obligation to Indians

28 No. 03-2323

would be to take the Morton rule outside of the limited

context in which it arose. Neither Morton nor Weeks holds

that all legislation enacted pursuant to the Indian

Commerce Clause be rationally related to the trust obli-

gation. Rather, they hold that courts may not invalidate

Indian legislation on the ground that the legislation offends

the Due Process Clause of the Fifth Amendment if that

legislation was enacted in furtherance of the trust obliga-

tion. See Weeks, 430 U.S. at 85, 90. In arguing that all

Indian legislation must comply with the trust doctrine, the

Tribes seek to impose a limitation on Congress’s plenary

power which has no basis in the Constitution and has not

yet been recognized by the Supreme Court.

The Supreme Court has not yet invalidated a federal

statute on the ground that it did not advance the federal

government’s trust obligation to Indian tribes. Indeed, even

after concluding that an Act of Congress failed to comport

with Congress’s fiduciary responsibility to Indians, the

Supreme Court refrained from acknowledging a cause of

action on that ground. See United States v. Sioux, 448 U.S.

371 (1980). In Sioux, the Sioux Nation challenged the

Congressional Act of February 28, 1877 (“the 1877 Act”)

which had authorized the confiscation of lands that had

been pledged by treaty to the Sioux Nation. Id. at 374.

Before evaluating the Sioux Nation’s claim, the Supreme

Court sought to answer a preliminary question: had

Congress enacted the 1877 Act in its capacity as trustee and

guardian of tribal property, or had Congress instead passed

the 1877 Act in exercise of its power of eminent domain? Id.

at 408, 416. The Sioux Court endorsed the following test for

distinguishing between the two types of Congressional

action. If Congress had “made a good faith effort to give the

Indians the full value of their lands,” then Congress had

acted in its fiduciary capacity. Id. at 416. In the event that

it had not attempted to adequately compensate the Sioux,

however, then Congress had exercised its power of eminent

No. 03-2323 29

domain and effecting a taking for which just compensation

was due under the Fifth Amendment. Id. at 408, 416.

Notably, the Supreme Court did not hold that Congress

violated the trust doctrine by failing to make a “good faith

effort” to “transmut[e]” the Sioux Nation’s property for

property of equal value, even though it acknowledged that

a trustee would ordinarily be required to do so when

dispensing of the property of her ward. See id. at 416. The

Sioux Nation prevailed in Sioux, but singularly on the

ground that 1877 Act effected a taking under the Fifth

Amendment. Id. at 423-24. Thus, Sioux establishes that, in

the context of congressional management of Indian land,

the trust doctrine imposes no restriction on Congress

beyond compliance with the constitutional restrictions

which would otherwise constrain Congress’s power.

Although Weeks states that a court should not refrain

“from scrutinizing Indian legislation to determine whether

it violates the equal protection component of the Fifth

Amendment,” Weeks, 430 U.S. at 919, the Supreme Court

has not yet held that an Act of Congress is subject to in-

validation on the ground that it violates the federal gov-

ernment’s general trust obligation to Indians. Thus, this

Court will not invalidate the gubernatorial concurrence

provision on that basis.

F.

Finally, we address the Tribes’ claim that the district

court erred in denying their conditional motion to file a

second amended complaint. In the event that the court

upheld the gubernatorial concurrence provision, the motion

requested that the Tribes be permitted to amend their

complaint to add a claim that then-Governor McCallum had

relied on improper factors when he refused to concur in the

Secretary of the Interior’s favorable determination. The

Tribes submitted the conditional motion and supporting

30 No. 03-2323

brief with their reply to the State and federal defendants’

cross-motion for judgment on the pleadings.

A “district court’s denial of a motion to amend pleadings

under Fed. R. Civ. P. 15(a) will be overturned on appeal

only if it is shown that the district court abused [its] dis-

cretion by refusing to grant the leave without any justifying

reason.” J.D. Marshall Intern., Inc. v. Redstart, Inc., 935

F.2d 815, 819 (7th Cir. 1991). In this case, the district court

denied the motion for leave to amend on the grounds that

the Tribes had unduly delayed in bringing the claim and

that allowing such an amendment would be a futility.

The Tribes concede that the facts that demonstrate

the invalidity of Governor McCallum’s withholding of con-

currence were known to them when they filed their first

amended complaint. In fact, they included those allegations

in the first amended complaint, yet they did not assert the

invalidity of the Governor’s concurrence as a theory of relief

at that time. Nor did the Tribes assert the claim in their

memorandum in support of judgment on the pleadings. The

first time that the Tribes advanced the theory that they

now wish to present was in their combined reply brief in

support of their motion for judgment on the pleadings and

brief in response to the defendants’ cross-motions for

judgment on the pleadings. The Tribes have not explained

their failure to move to amend the complaint prior to that

time.

The Tribes have not provided an adequate justification for

the delay in stating the claim that they now wish to bring,

see Kleinhans v. Lisle Savings Profit Sharing Trust, 810

F.2d 618, 625 (7th Cir. 1987), nor have they explained why

they failed to argue that claim in their brief in support of

their motion for judgment on the pleadings. We therefore

conclude that the district court did not abuse its discretion

in denying the motion for leave to amend.

No. 03-2323 31

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court in favor of the federal and State defendants in

all respects.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-29-04