County of Amador v. United States Department of the Interior

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COUNTY OF AMADOR, California, No. 15-17253

Plaintiff-Appellant,

D.C. No.

v. 2:12-cv-01710-

TLN-CKD

UNITED STATES DEPARTMENT OF

THE INTERIOR; RYAN K. ZINKE,

Secretary of the United States OPINION

Department of Interior; KEVIN K.

WASHBURN, Acting Assistant

Secretary of Indian Affairs, United

States Department of Interior,

Defendants-Appellees,

IONE BAND OF MIWOK INDIANS,

Intervenor-Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted July 14, 2017

San Francisco, California

Filed October 6, 2017

2 COUNTY OF AMADOR V. USDOI

Before: Susan P. Graber and Michelle T. Friedland, Circuit

Judges, and Jeremy D. Fogel,* District Judge.

Opinion by Judge Graber

SUMMARY**

Tribal Issues

The panel affirmed the district court’s summary judgment

in favor of the U.S. Department of the Interior and the Ione

Band of Miwok Indians in a case involving a proposed casino

in Amador County, California, and the County’s challenge to

a Department of the Interior 2012 record of decision in which

the agency announced its intention to take land into trust –

the Plymouth Parcels – for the benefit of the Ione Band, and

to allow the Ione Band to build a casino complex on the land.

In Carcieri v. Salazar, 555 U.S. 379, 395 (2009), the U.S.

Supreme Court ruled that a tribe must have been “under

Federal jurisdiction” at the time the Indian Reorganization

Act (“IRA”) was enacted in 1934 in order to qualify to have

lands taken into trust for its benefit.

The panel held that a tribe qualifies to have land taken

into trust for its benefit under 25 U.S.C. § 5108 of the IRA if

*

The Honorable Jeremy D. Fogel, United States District Judge for the

Northern District of California, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

COUNTY OF AMADOR V. USDOI 3

it was “under Federal jurisdiction” as of June 18, 1934, and

is “recognized” at the time the decision was made to take land

into trust. The panel also held that the Department of the

Interior did not err in determining that the Ione Band was

“under Federal jurisdiction” at the time that the IRA became

law in 1934.

Finally, the panel held that Department of the Interior did

not err in allowing the Ione Band to conduct gaming

operations on the Plymouth Parcels under the “restored tribe”

exception of the Indian Gaming Regulatory Act. The panel

held that the agency’s decision to grandfather in the Ione

Band under 25 C.F.R. § 292.26(b) was permissible.

COUNSEL

Christopher E. Skinnell (argued) and James R. Parrinello,

Nielsen Merksamer Parrinello Gross & Leoni LLP, San

Rafael, California; Cathy A. Christian, Nielsen Merksamer

Parrinello Gross & Leoni LLP, Sacramento, California; for

Plaintiff-Appellant.

John L. Smeltzer (argued), Katherine J. Barton, and Judith

Rabinowitz, Attorneys; John C. Cruden, Assistant Attorney

General; Environment and Natural Resources Division,

United States Department of Justice, Washington, D.C.;

Matthew Kelly, Office of the Solicitor, United States

Department of the Interior, Washington, D.C.; for

Defendants-Appellees.

Jerome L. Levine (argued) and Timothy Q. Evans, Holland &

Knight LLP, Los Angeles, California, for Intervenor-

Defendant-Appellee.

4 COUNTY OF AMADOR V. USDOI

OPINION

GRABER, Circuit Judge:

This case involves a dispute over a proposed casino in

Amador County, California. Plaintiff, the County of Amador

(“County”), challenges a 2012 record of decision (“ROD”)

issued by the United States Department of the Interior

(“Interior”) in which the agency announced its intention to

take land into trust for the benefit of the Ione Band of Miwok

Indians (“Ione Band” or “Band”). The ROD also allowed the

Ione Band to build a casino complex and conduct gaming on

the land once it is taken into trust. Reviewing Interior’s

decision under the Administrative Procedure Act (“APA”),

we conclude that the agency did not err. Accordingly, we

affirm the district court’s award of summary judgment to

Interior and the Ione Band.

FACTUAL AND PROCEDURAL HISTORY

Amador County is located roughly 45 miles southeast of

Sacramento in the foothills of the Sierra Nevada Mountains.

The county is rural, with a population density well below the

state average, and it contains just five incorporated cities.

The Ione Band’s origins lie in the amalgamation of

several “tribelets” indigenous to Amador County and the

surrounding area. The tribelets, which included the Northern

Sierra Miwok and the Wapumne, were independent, self-

governing groups that maintained their own territories but

regularly interacted with one another. The political and

geographic lines separating the tribelets began to erode in the

18th and early 19th centuries, as Spanish and Mexican

missionary efforts and the arrival of white settlers in the area

COUNTY OF AMADOR V. USDOI 5

decimated the Native American population and displaced

many villages. The discovery of gold in the area in 1848 and

the subsequent inpouring of miners and prospectors

accelerated the process of amalgamation. For instance, the

Foothill Nisenan living in the American River drainage were

displaced by miners and were forced to move south, where

they joined with Plains Miwok and Northern Sierra Miwok.

Conflicts arose between the miners and settlers who

flooded into California beginning in 1848, on the one hand,

and the Native Americans already in the vicinity, on the

other. The federal government tried to ameliorate the

situation by convincing Native Americans to give up their

lands and move to “safer” areas. In 1851, federal agents

negotiated 18 treaties with Native Americans that required

such resettlement. One of those treaties—Treaty J—was

signed by members of some of the tribelets that would

eventually blend together to form the Ione Band. Treaty J set

aside land for those tribelets in what is now Amador County.

The land, which included the site of the proposed casino, was

to be “set apart forever for the sole use and occupancy of the

tribes whose representatives signed the treaty.” Neither

Treaty J nor any of the other treaties ever went into effect,

however. The California legislature, which opposed the

assignment of the lands to Native Americans, successfully

lobbied against the treaties and, in 1852, the United States

Senate voted not to ratify the treaties. Larisa K. Miller, The

Secret Treaties With California’s Indians, Prologue

Magazine, Fall/Winter 2013.

Throughout the latter half of the 19th century, Native

Americans in the Amador County area continued to be

displaced by white settlers. By 1900, most Native Americans

lived either in remote settlements or on the edges of towns.

6 COUNTY OF AMADOR V. USDOI

They were largely destitute and often lacked permanent

homes. Congress felt that California was largely responsible

for this state of affairs and would have to play a primary role

in addressing the problem of the “landless Indians,” but its

position changed in 1905 when the 18 unratified treaties from

the 1850s were brought to light. Id. The treaties had been

printed “in confidence” in 1852 and could not be accessed by

the public from the Senate archives, so they had been largely

forgotten. Id. at 43. Two activists convinced Senator

Thomas Bard of California to have the treaties printed. After

he did, Congress was forced to acknowledge the role that it

had played in creating the problem of landless Indians in

California. Id. Capitalizing on the change in sentiment

among his colleagues, Senator Bard proposed an amendment

to the Indian Appropriations Act of 1905 that authorized the

Secretary of the Interior (“Secretary”) to “investigate . . .

existing conditions of the California Indians and to report to

Congress . . . some plan to improve the same.” Pub. L. No.

58-212, 33 Stat. 1048, 1058 (1905).

The Secretary tasked C.E. Kelsey with conducting the

investigation into the condition of Native Americans in

California. In Kelsey’s 1906 report to the Commissioner of

Indian Affairs, he recommended that Native Americans in

Northern California who were “landless through past acts [or]

omissions of the National Government . . . receive land in lieu

of any claims they may have against the Government, moral

or otherwise; that the land . . . be of good quality with proper

water supply, and . . . be located in the neighborhoods in

which the Indians wish to live.” Indian Tribes of California:

Hearings Before a Subcomm. of the H. Comm. on Indian

Affairs, 66th Cong. 131, at 23–24 (1920) (Report of the

Special Agent for California Indians to the Commissioner of

Indian Affairs, Mar. 21, 1906). The Commissioner, in turn,

COUNTY OF AMADOR V. USDOI 7

recommended to Congress that it appropriate money to carry

out Kelsey’s plan. Congress responded by appropriating

$100,000 in 1906 for the purchase of land in California for

“Indians . . . now residing on reservations which do not

contain land suitable for cultivation, and for Indians who are

not now upon reservations.” Pub. L. No. 59-258, 34 Stat.

325, 333 (1906). Congress continued to appropriate money

for that purpose almost every year until the passage of the

Indian Reorganization Act in 1934 made such annual

appropriations unnecessary. William Wood, The Trajectory

of Indian Country in California: Rancherías, Villages,

Pueblos, Missions, Ranchos, Reservations, Colonies, and

Rancherias, 44 Tulsa L. Rev. 317, 357–58 (2008).

Kelsey also prepared a census of non-reservation Indians

living in California. That census served as a guide for John

Terrell, a Special Agent with Interior’s Bureau of Indian

Affairs who traveled to California in 1915. Terrell was to

assess which groups of Indians were in need of land and was

to negotiate purchases of land for their benefit. Terrell visited

the Native Americans living near Ione and counted some 101

members of the Ione Band, including Charlie Maximo, the

recently elected Chief of the Band. In a May 1915 letter to

the Commissioner of Indian Affairs, Terrell wrote that, “[o]f

all the Indians I have visited,” the members of the Ione Band

“have stronger claims to their ancient Village than any

others.” After visiting the Band, Terrell almost immediately

set about trying to buy some of the land on which the Band

resided, for use as a permanent home for the Band.

In August 1915, Terrell reached an agreement for the

purchase of 40 acres at a total price of $2,000. But the

purchase stalled because of problems with the title to the

property. For years, various officials with Interior tried to

8 COUNTY OF AMADOR V. USDOI

close the deal, but with no success. In a July 1923 letter, one

Interior official wrote that the agency “ha[d] tried very hard

for five years to get this sale through because . . . [the Ione

Band], if dispossessed, would be placed in such shape as to

call forth untold criticism by all people knowing the

circumstances of their occupation of this land as homesites

for years.” A different Interior official wrote, in a January

1924 letter, that the deal was “all but closed.” More than five

years later, though, the transaction still had not been

consummated. As one official wrote to a member of the

Band in a May 1930 letter, “[w]e have for more than eight

years been negotiating with owners of the [land] for the

purpose of purchasing same, but because of our inability to

get a clear title to the land, the deal has not been closed.”

In 1934, Congress enacted the Indian Reorganization Act

(“IRA”).

The IRA was designed to improve the

economic status of Indians by ending the

alienation of tribal land and facilitating tribes’

acquisition of additional acreage and

repurchase of former tribal domains. Native

people were encouraged to organize or

reorganize with tribal structures similar to

modern business corporations. A federal

financial credit system was created to help

tribes reach their economic objective.

Educational and technical training

opportunities were offered, as were

employment opportunities through federal

Indian programs.

COUNTY OF AMADOR V. USDOI 9

Cohen’s Handbook of Federal Indian Law § 1.05, at 81 (Nell

Jessup Newton ed., 2012) [hereinafter Cohen’s Handbook].

Relevant to this case, the IRA gave the Secretary of the

Interior the power to take land into trust for a tribe’s use.

In 1972, the California Rural Indian Land Project, acting

on behalf of the Band, asked the federal government to accept

title to the same 40-acre tract that the government had tried to

buy years earlier and to hold the land in trust for the Band. In

October of that year, Robert Bruce, the Commissioner of

Indian Affairs, agreed to do so. In his letter to the Band,

Bruce wrote:

Federal recognition was evidently extended to

the Ione Band of Indians at the time that the

Ione land purchase was contemplated. As

stated earlier, they . . . are eligible for the

purchase of land under [the IRA].

The federal government did not take the land into trust at

that time, however, because several officials within Interior

questioned Commissioner Bruce’s conclusion that the Ione

Band was eligible to have land taken into trust for its benefit

under the IRA. In 1973, for instance, the Deputy Assistant

Secretary of the Interior wrote a letter stating that “[t]he

former contemplated purchase of land for [the Ione Band] by

the United States may indicate that they are a recognizable

group entitled to benefits of the [IRA]. We have no

correspondence, however, from the group requesting

recognition or a desire to establish a reservation. . . . If the

Band desires and merits Federal recognition, action should be

taken to assist them to perfect an organization under the

provisions of the [IRA].”

10 COUNTY OF AMADOR V. USDOI

In 1978, Interior promulgated what are known as the “Part

83” regulations, 25 C.F.R. pt. 831 “The purpose of [the Part

83 regulations] [wa]s to establish a departmental procedure

and policy for acknowledging that certain American Indian

tribes exist. Such acknowledgment of tribal existence . . . is

a prerequisite to the protection, services, and benefits from

the Federal Government available to Indian tribes,” including

the benefits of the IRA. Procedures for Establishing That an

American Indian Group Exists as an Indian Tribe, 43 Fed.

Reg. 39,361-01, 39,362 (Aug. 24, 1978). “Prior to 1978,

Federal acknowledgment was accomplished both by

Congressional action and by various forms of administrative

decision. . . . The [Part 83] regulations established the first

detailed, systematic process for review of petitions from

groups seeking Federal acknowledgment.” Procedures for

Establishing That an American Indian Group Exists as an

Indian Tribe, 59 Fed. Reg. 9280-01, 9280 (Feb. 25, 1994).

Following the promulgation of the Part 83 regulations,

Interior began to take the position that the Band had not yet

been recognized by the federal government and that it had to

proceed through the Part 83 regulations if it wished to be

recognized. When the Band sued the federal government in

1990, for instance, the government took the position that the

Band was not a recognized tribe.

But in 1994, the federal government changed its mind

about the Band’s “recognized” status. In a March 1994 letter

to the Chief of the Band, Assistant Secretary of Indian Affairs

1

The regulations were initially designated as 25 C.F.R. part 54, but

they were later redesignated without textual change as 25 C.F.R. part 83.

Procedures for Establishing That an American Indian Group Exists as an

Indian Tribe, 59 Fed. Reg. 9280-01, 9280 (Feb. 25, 1994).

COUNTY OF AMADOR V. USDOI 11

Ada Deer “reaffirm[ed] the portion of Commissioner Bruce’s

[1972] letter” that stated that “Federal recognition was

evidently extended to the Ione Band of Indians at the time

that the Ione land purchase was contemplated.” Assistant

Secretary Deer further ordered that the Ione Band be included

on the official list of “Indian Entities Recognized and Eligible

to Receive Services from the United States Bureau of Indian

Affairs,” which was published in the Federal Register. The

Band was included on the list beginning in 1995.

Meanwhile, Congress passed the Indian Gaming

Regulatory Act (“IGRA”) in 1988. Section 20 of IGRA

limits “gaming . . . on lands acquired by the Secretary in trust

for the benefit of an Indian tribe after the date of enactment

of” the statute, allowing gaming in just a few circumstances.

Pub. L. No. 100-497, § 20, 102 Stat. 2467, 2485–86 (1988),

codified at 25 U.S.C. § 2719(a). One such circumstance

exists when “lands are taken into trust as part of . . . the

restoration of lands for an Indian tribe that is restored to

Federal recognition.” Id. § 2719(b)(1)(B)(iii).2 That

exception is called the “restored tribe” or “restored lands of

a restored tribe” exception.

In September 2004, the Band submitted a request to the

National Indian Gaming Commission (“Gaming

2

“Indian tribe” is defined in IGRA as “any Indian tribe, band, nation,

or other organized group or community of Indians which (A) is recognized

as eligible by the Secretary for the special programs and services provided

by the United States to Indians because of their status as Indians, and

(B) is recognized as possessing powers of self-government.” 25 U.S.C.

§ 2703(5).

12 COUNTY OF AMADOR V. USDOI

Commission”)3 for an Indian lands determination—a ruling

as to the eligibility of land to be used for gaming—regarding

some land known as the Plymouth Parcels. While that

request was pending, the Band submitted a “fee-to-trust”

application to Interior, asking that the Secretary accept trust

title to the Plymouth Parcels. Under then-applicable Interior

practice, a fee-to-trust application seeking to use the newly

acquired lands for gaming under the “restored tribe”

exception of IGRA required “[a] legal opinion from the

Office of the Solicitor concluding that the proposed [land]

acquisition” came within the exception, and the Indian lands

determination would constitute such a legal opinion.

Pursuant to a memorandum of agreement between the

Gaming Commission and Interior, the Associate Solicitor in

Interior’s Division of Indian Affairs prepared an Indian lands

determination in September 2006 (“2006 Determination”).

The Associate Solicitor concluded that “Assistant Secretary

Deer’s [1994] . . . reaffirmation of Commissioner Bruce’s

[1972] position amounts to a restoration of the Band’s status

as a recognized Band. Under the unique history of its

relationship with the United States, the Band should be

considered a restored tribe within the meaning of IGRA.”

The Associate Deputy Secretary for Indian Affairs concurred

in that determination and notified the Band of his concurrence

later in September 2006.4 After receiving the 2006

3

The Gaming Commission “is a federal regulatory agency, created by

IGRA, that oversees the business of Indian gaming in order to ensure its

lasting integrity.” Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d

712, 716 n.6 (9th Cir. 2003).

4

The County notes that, “[i]n January 2009, Department Solicitor

David Bernhardt sent a memorandum to George Skibine, Acting Deputy

Assistant Secretary for Policy and Economic Development, withdrawing

the [2006 Determination].” Bernhardt told Skibine that he was

COUNTY OF AMADOR V. USDOI 13

Determination, the Band continued to pursue its fee-to-trust

application.

Over the next few years, Interior engaged in an internal

dispute about the correctness of the 2006 Determination.

While that was occurring, the Supreme Court decided

Carcieri v. Salazar, 555 U.S. 379 (2009), a case that

concerned the meaning of the phrase “recognized Indian tribe

now under Federal jurisdiction” in the IRA. The Court ruled

that a tribe must have been “under Federal jurisdiction” at the

time the IRA was enacted (1934) in order to qualify to have

lands taken into trust for its benefit. Id. at 395.

In May 2012, Interior issued the relevant ROD, in which

it announced its intention to take the Plymouth Parcels into

trust for the Band and approved the Band’s plan to build a

gaming complex on the Plymouth Parcels. The agency

concluded, in relevant part, that (1) the Ione Band was under

federal jurisdiction in 1934 and was thus eligible to have land

taken into trust under the statute, and that (2) the Plymouth

Parcels could be used for gaming under the “restored tribe”

“withdraw[ing] and . . . reversing that opinion” and that the opinion “no

longer represents the legal position of the Office of the Solicitor. The

opinion of the Solicitor’s Office is that the Band is not a restored tribe

within the meaning of IGRA.” That is true but, as Interior points out, the

“County does not challenge the 2006 Determination based on the

purported 2009 withdrawal.” That silence probably results from the fact

that, “in 2011, Solicitor Hilary Tompkins reaffirmed the 2006

Determination[] after concluding that neither Bernhardt’s circulation of his

draft legal opinion nor his issuance of a memorandum regarding it to the

Acting Deputy Assistant Secretary had the effect of withdrawing or

reversing it.”

14 COUNTY OF AMADOR V. USDOI

exception of IGRA. The ROD was signed by Donald

Laverdure, the Acting Assistant Secretary of Indian Affairs.5

In June 2012, the County sued Interior6 in district court

under the APA, challenging both the agency’s decision to

take the Plymouth Parcels into trust and its conclusion that

the land could be used for gaming under the “restored tribe”

exception of IGRA. The Ione Band intervened in each case,

on the side of Interior. In 2015, the district court granted

summary judgment to Interior and the Band and denied the

County’s motion for summary judgment. The County timely

appeals.

STANDARD AND SCOPE OF REVIEW

We review de novo the district court’s summary judgment

rulings, “thus reviewing directly the agency’s action under

the [APA’s] arbitrary and capricious standard.” Alaska

Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir.

2015) (internal quotation marks omitted). “In general, a court

5

Laverdure was serving as the Principal Deputy Assistant Secretary

of Indian Affairs before Assistant Secretary Larry Echo Hawk’s

resignation. Laverdure was thus “the first assistant to the office” of the

Assistant Secretary of Indian Affairs. Schaghticoke Tribal Nation v.

Kempthorne, 587 F.3d 132, 135 (2d Cir. 2009) (per curiam). Accordingly,

Laverdure assumed the duties of the Assistant Secretary automatically

upon Echo Hawk’s resignation. Hooks v. Kitsap Tenant Support Servs.,

Inc., 816 F.3d 550, 557 (9th Cir. 2016). Those duties included taking land

into trust under the IRA, a duty that had been delegated to the Assistant

Secretary. Accordingly, Laverdure was empowered to take the Plymouth

Parcels into trust.

6

The County named Interior, the Secretary of the Interior, and the

Acting Assistant Secretary of Indian Affairs as defendants. We refer to

them collectively as “Interior.”

COUNTY OF AMADOR V. USDOI 15

reviewing agency action under the APA must limit its review

to the administrative record.” San Luis & Delta-Mendota

Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir. 2014).

DISCUSSION

Interior’s decision to take the Plymouth Parcels into trust

for the Ione Band rested on two key determinations, each of

which the County challenges. First, Interior determined that

the Ione Band qualifies to have land taken into trust for its

benefit under the IRA because the Band is now “recognized”

and was “under Federal jurisdiction” in 1934 when the IRA

took effect. Second, Interior determined that the Ione Band

may conduct gaming on the Plymouth Parcels under the

“restored lands of a restored tribe” provision of IGRA. We

address those issues in turn.

A. “Recognized Indian Tribe Now Under Federal

Jurisdiction”

The IRA provides that the Secretary of the Interior may

take land into trust “for the purpose of providing land for

Indians.” 25 U.S.C. § 5108. The statute defines “Indian” to

include “all persons of Indian descent who are members of

any recognized Indian tribe now under Federal jurisdiction.”

Id. § 5129. In Carcieri, the Court held that the “temporal

restrictions that apply to [the] definition of ‘Indian’” in

§ 5129 limit the set of tribes that can have land taken into

trust for their benefit under § 5108. 555 U.S. at 393. The

Court also held that “the term ‘now under Federal

jurisdiction’ . . . unambiguously refers to those tribes that

were under the federal jurisdiction of the United States when

the IRA was enacted in 1934.” Id. at 395. Accordingly, the

Secretary may take land into trust for the Ione Band only if it

16 COUNTY OF AMADOR V. USDOI

was “under Federal jurisdiction” at the time that the IRA was

passed.7

Carcieri left several questions unanswered, two of which

the parties dispute. First, need a tribe have been “recognized”

in 1934, as well as “under Federal jurisdiction” in 1934, in

order to benefit from the IRA, or can recognition occur at any

time? We will call this the “timing-of-recognition issue.”

Second, what does it mean for a tribe to have been “under

Federal jurisdiction” in 1934?8

7

Section 5129 contains two additional definitions of “Indian,” but

they are not relevant to this case.

8

There is a third question left open by Carcieri: Are the “now under

Federal jurisdiction” and “recognized” requirements even distinct, or do

they comprise a single requirement? The Court in Carcieri did not

explicitly hold that the two requirements are distinct but, as Justice Souter

noted in his opinion, “[n]othing in the majority opinion forecloses the

possibility that the two concepts, recognition and jurisdiction, may be

given separate content.” Carcieri, 555 U.S. at 400 (Souter, J., concurring

in part and dissenting in part). We think that the better reading of the

statute is that “recognition” and being “under Federal jurisdiction” are

distinct requirements, for two reasons. First, statutes should be construed

so as to “give effect, if possible, to every clause and word.” Roberts v.

Sea-Land Servs., Inc., 566 U.S. 93, 111 (2012) (quoting Duncan v.

Walker, 533 U.S. 167, 174 (2001)). Second, the phrase “now under

Federal jurisdiction” was added to the statute during the drafting process.

To Grant to Indians Living Under Federal Tutelage the Freedom to

Organize for Purposes of Local Self-Government and Economic

Enterprise: Hearings Before the Comm. on Indian Affairs on S. 2755 and

3645, 73d Cong. 264 (1934). If “under Federal jurisdiction” meant the

same thing as “recognized,” then the only effect of the addition would

have been to fix the recognition time at “now”—that is, 1934. But that

goal could have been accomplished simply by adding the word “now” in

front of “recognized.” The fact that an entirely new phrase was added

suggests that the change was intended to do more than fix the time of

recognition at 1934 and that the added new phrase, “under Federal

COUNTY OF AMADOR V. USDOI 17

1. The Timing-of-Recognition Issue

The parties’ first dispute is over the timing-of-recognition

issue.9 The County argues that the phrase “now under

Federal jurisdiction” modifies the entire phrase “recognized

Indian tribe,” so that a tribe must have been recognized in

1934 in order to benefit from the statute.10 Interior and the

Band, on the other hand, argue that “recognized” and “now

under Federal jurisdiction” separately modify “Indian tribe,”

so that recognition can occur at any time before land is taken

into trust.

Both arguments are plausible because, as one of our sister

circuits has held, the IRA is ambiguous with respect to the

timing-of-recognition issue. Grand Ronde, 830 F.3d at 560.

That is, even after applying the usual tools of statutory

jurisdiction,” was understood to mean something different than

“recognized.” Cf. Zachary v. Cal. Bank & Tr., 811 F.3d 1191, 1198–99

(9th Cir. 2016) (rejecting a statutory construction that reflected a policy

choice that Congress could have made “in a far more straightforward

manner”).

9

The County does not dispute that the Band is presently recognized.

10

We reject the County’s argument that the Supreme Court already

resolved the timing-of-recognition issue in Carcieri. As the D.C. Circuit

has observed, Carcieri’s “holding reaches only the temporal limits of the

Federal-jurisdiction prong” of § 5129. Confederated Tribes of Grand

Ronde Cmty. of Or. v. Jewell (Grand Ronde), 830 F.3d 552, 559–60 (D.C.

Cir. 2016), cert. denied, 137 S. Ct. 1433 (2017). And to the extent that the

Court said anything about the timing-of-recognition issue in United States

v. John, 437 U.S. 634 (1978), its statements were unreasoned dicta that are

entitled to little weight. See United States v. Montero-Camargo, 208 F.3d

1122, 1132 n.17 (9th Cir. 2000) (en banc) (“We do not treat considered

dicta from the Supreme Court lightly.” (emphasis added)).

18 COUNTY OF AMADOR V. USDOI

construction, the statute does not yield a clear answer as to

Congress’ intent on the timing-of-recognition issue. The

statute reasonably can be read to limit its benefits to tribes

that were recognized in 1934, or it reasonably can be read to

extend benefits to later-recognized tribes, provided that those

tribes were “under Federal jurisdiction” in 1934.11

Interior is the agency that Congress designated to

administer the IRA. Grand Ronde, 830 F.3d at 559; United

States v. Eberhardt, 789 F.2d 1354, 1359–60 (9th Cir. 1986).

Interior argues that its resolution of the timing-of-recognition

issue is entitled to deference under Chevron.12 But we need

not decide whether Chevron deference (or any other level of

deference) is appropriate, because we reach the same

conclusion as Interior when we review the timing-of-

recognition issue de novo. The phrase “recognized Indian

tribe now under Federal jurisdiction,” when read most

naturally, includes all tribes that are currently—that is, at the

moment of the relevant decision—“recognized” and that were

“under Federal jurisdiction” at the time the IRA was passed.

11

Of course, those two interpretations of the statute need not be

equally plausible or reasonable to give rise to “ambiguity” within the

meaning of Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). See Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs., 545 U.S. 967, 980 (2005) (“If a statute is ambiguous,

and if the implementing agency’s construction is reasonable, Chevron

requires a federal court to accept the agency’s construction of the statute,

even if the agency’s reading differs from what the court believes is the

best statutory interpretation.”).

12

As Interior points out, the D.C. Circuit and several district courts

have deferred to the agency under Chevron on the timing-of-recognition

issue. See, e.g., Grand Ronde, 830 F.3d at 559–63.

COUNTY OF AMADOR V. USDOI 19

In addition to exploring the text of the statute itself, we

examine the relevant statutory context. When construing a

statutory provision, we must “bear[] in mind the fundamental

canon of statutory construction that the words of a statute

must be read in their context and with a view to their place in

the overall statutory scheme.” Util. Air Regulatory Grp. v.

EPA 134 S. Ct. 2427, 2441 (2014) (internal quotation marks

omitted). “The meaning . . . of certain words or phrases may

only become evident when placed in context.” FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).

Unfortunately, though, contextual clues are of little value in

understanding the phrase at issue.

Section 5129 provides “three discrete definitions” of

“Indian”: “[1] members of any recognized Indian tribe now

under Federal jurisdiction, and [2] all persons who are

descendants of such members who were, on June 1, 1934,

residing within the present boundaries of any Indian

reservation, and . . . [3] all other persons of one-half or more

Indian blood.” Carcieri, 555 U.S. at 391–92 (alterations in

original) (quoting 25 U.S.C. § 5129). As the D.C. Circuit

recognized in Grande Ronde, the second and third definitions

of “Indian” in § 5129 do not shed much light on the meaning

of the first definition. See 830 F.3d at 561 (“Appellants do

not believe a descendant of a tribe recognized in 2002 could

have lived on a reservation in 1934. That assumption is

incorrect, for . . . recognition that occurs after 1934 simply

means, in retrospect, that any descendant of a Cowlitz Tribal

member who was living on an Indian reservation in 1934 then

met the IRA’s second definition.”).

Nor does the remainder of the IRA illuminate the timing-

of-recognition issue. As noted, § 5129 is a definitional

section, so the remainder of the statute simply uses the terms

20 COUNTY OF AMADOR V. USDOI

defined in § 5129 and is coherent whether or not those terms

include later-recognized tribes.

We next examine the purpose and history of the IRA. See

Abramski v. United States, 134 S. Ct. 2259, 2267 (2014)

(“[W]e must (as usual) interpret the relevant words [in a

statute] not in a vacuum, but with reference to the statutory

. . . history[] and purpose.” (internal quotation marks

omitted)). “Examination of purpose is a staple of statutory

interpretation that makes up the daily fare of every appellate

court in the country . . . .” McCreary County v. ACLU of Ky.,

545 U.S. 844, 861 (2005) (citation omitted). And

understanding the historical context in which a statute was

passed can help to elucidate the statute’s purpose and the

meaning of statutory terms and phrases. See, e.g., Whitman

v. Am. Trucking Ass’ns, 531 U.S. 457, 471 (2001) (“The text

of [the provision], interpreted in its statutory and historical

context and with appreciation for its importance to the

[statute] as a whole, unambiguously bars cost considerations

. . . , and thus ends the matter for us . . . .”).

The IRA represented the culmination of a “marked

change in attitude toward Indian policy” that began in the

mid-1920s. Cohen’s Handbook § 1.05, at 79. The “prior

policy of allotment[13] sought ‘to extinguish tribal

sovereignty, erase reservation boundaries, and force the

assimilation of Indians into the society at large.’” Grand

Ronde, 830 F.3d at 556 (quoting County of Yakima v.

13

Under the allotment policy, Native Americans “surrendered their

undivided interest in the tribally owned common or trust estate for a

personally assigned divided interest, generally held in trust for a limited

number of years, but ‘allotted’ to them individually.” Cohen’s Handbook

§ 1.04, at 72.

COUNTY OF AMADOR V. USDOI 21

Confederated Tribes & Bands of Yakima Indian Nation,

502 U.S. 251, 254 (1992)). The new policy, by contrast,

reflected “more tolerance and respect for traditional aspects

of Indian culture,” Cohen’s Handbook § 1.05, at 79, and

rested “on the assumption . . . that the tribes not only would

be in existence for an indefinite period, but that they should

be,” William C. Canby, Jr., American Indian Law in a

Nutshell 25 (6th ed. 2014). As the “crowning achievement”

of the new policy, Cohen’s Handbook § 1.05, at 81, the IRA

was intended “to establish machinery whereby Indian tribes

would be able to assume a greater degree of self-government,

both politically and economically,” Morton v. Mancari,

417 U.S. 535, 542 (1974). To a large extent, the IRA was

intended to undo the damage wrought by prior policies—“to

rehabilitate the Indian’s economic life and to give him a

chance to develop the initiative destroyed by a century of

oppression and paternalism.” Mescalero Apache Tribe v.

Jones, 411 U.S. 145, 152 (1973) (quoting H.R. Rep. No. 73-

1804, at 6 (1934)).

In 1934, when Congress enacted the IRA, there was no

comprehensive list of recognized tribes, nor was there a

“formal policy or process for determining tribal status.”

William Wood, Indians, Tribes, and (Federal) Jurisdiction,

65 U. Kan. L. Rev. 415, 429–30 (2016); accord Cohen’s

Handbook § 3.02[7][a], at 153 (noting “the history of

inconsistent, vague, and contradictory policies surrounding

the recognition of tribes”). It seems unlikely that Congress

meant for the statute’s applicability to a particular tribe to

turn on whether that tribe happened to have been recognized

by a government that lacked a regular process for such

recognition. It seems more likely that Congress intended the

statute to benefit all tribes, whenever recognized, provided

22 COUNTY OF AMADOR V. USDOI

that those tribes were “under Federal jurisdiction” as of the

date when the IRA was enacted.

Next, we consider the drafting history of the statute. As

we have already noted, an earlier draft of the statute extended

benefits to “all persons of Indian descent who are members of

any recognized Indian tribe.” The best reading of that version

of the statute would have been that “recognition” could occur

at any time. The phrase “now under Federal jurisdiction” was

a free-standing addition. Its apparent purpose was simply to

exclude those tribes that were not at that time under federal

jurisdiction.

Finally, we consider Interior’s history of administering

the IRA. We “give an agency’s . . . practices considerable

weight where they involve the contemporaneous construction

of a statute and where they have been in long use.” Davis v.

United States, 495 U.S. 472, 484 (1990); see also United

States v. 103 Elec. Gambling Devices, 223 F.3d 1091, 1097

(9th Cir. 2000) (stating that an agency’s “practice has peculiar

weight when it involves a contemporaneous construction of

a statute by the men charged with the responsibility of setting

its machinery in motion, of making the parts work as

efficiently and smoothly while they are yet untried and new.”

(quoting Norwegian Nitrogen Prods. Co. v. United States,

288 U.S. 294, 315 (1933))). A court should hesitate before

construing a statute in a way that renders years of consistent

agency practice unlawful. See, e.g., Baur v. Mathews,

578 F.2d 228, 233 (9th Cir. 1978) (“The administrative

agency clothed with responsibility for implementing

congressional pronouncements is generally well acquainted

with the policy of the statute it administers. This is

particularly true when the agency has long been involved in

the . . . administration of a given statute or its predecessors.”).

COUNTY OF AMADOR V. USDOI 23

Pre-Carcieri “administrative practice . . . treated all

federally recognized tribes as entitled to have land taken into

trust under the IRA, so long as those tribes were recognized

as of the time the land was placed in trust.” Cohen’s

Handbook § 3.02[6][d], at 149. Even in the early years of the

administration of the statute, Interior’s practice allowed for

post-1934 recognition. In 1937, for instance, Interior

recognized the Mole Lake Indians of Wisconsin as a tribe that

was entitled to the IRA’s benefits. 1 Dep’t of Interior,

Opinions of the Solicitor Relating to Indian Affairs,

1917–1974, at 725 (Feb. 8, 1937); see also Carcieri, 555 U.S.

at 399 (Breyer, J., concurring) (“[T]he Department in the

1930’s thought that an anthropological study showed that the

Mole Lake Tribe no longer existed. But the Department later

decided that the study was wrong, and it then recognized the

Tribe.”). Furthermore, none of the Solicitor’s Opinions

issued in the mid-to-late 1930s concerning whether a tribe

qualified for the benefits of the IRA “contain[ed] any

suggestion that it [was] improper to determine the status of a

tribe after 1934.” Memorandum from Assoc. Solicitor to the

Assistant Sec’y of Indian Affairs 7 (Oct. 1, 1980) (Request

for Reconsideration of Decision Not to Take Land in Trust

for the Stillaguamish Tribe). In short, Interior’s longstanding,

consistent practice of allowing tribes recognized after the

passage of the IRA to benefit from the statute supports its

reading of the statute.

Given the IRA’s text, structure, purpose, historical

context, and drafting history—and Interior’s administration

of the statute over the years—the better reading of § 5129 is

that recognition can occur at any time. We therefore hold that

a tribe qualifies to have land taken into trust for its benefit

under § 5108 if it (1) was “under Federal jurisdiction” as of

24 COUNTY OF AMADOR V. USDOI

June 18, 1934, and (2) is “recognized” at the time the

decision is made to take land into trust.

2. The Meaning of “Under Federal Jurisdiction”

The County next challenges Interior’s determination that

the Ione Band was “under Federal jurisdiction” at the time

that the IRA became law. The County’s first argument in

support of that challenge is that Interior’s interpretation of the

phrase “under Federal jurisdiction” is incorrect.

In the ROD, Interior applied the following two-part test

to determine whether the Band was “under Federal

jurisdiction” in 1934:

[W]e construe the phrase “under federal

jurisdiction” as entailing a two-part inquiry.

The first part examines whether there is a

sufficient showing in the tribe’s history, at or

before 1934, that it was under federal

jurisdiction, i.e., whether the United States

had, in 1934 or at some point in the tribe’s

history prior to 1934, taken an action or series

of actions—through a course of dealings or

other relevant acts for or on behalf of the tribe

or in some instances tribal members—that are

sufficient to establish or that generally reflect

Federal obligations, duties, responsibility for

or authority over the tribe by the Federal

Government. Some Federal actions may in

and of themselves demonstrate that a tribe

was under Federal jurisdiction or a variety of

actions when viewed in concert may achieve

the same result.

COUNTY OF AMADOR V. USDOI 25

....

Once having identified that the tribe was

under Federal jurisdiction at or before 1934,

the second part ascertains whether the tribe’s

jurisdictional status remained intact in

1934. . . . [T]he longer the period of time

prior to 1934 in which the tribe’s

jurisdictional status is shown, and the smaller

the gap between the date of the last evidence

of being under Federal jurisdiction and 1934,

the greater likelihood that the tribe retained its

jurisdictional status in 1934.

Interior and the Band argue that this interpretation of “under

Federal jurisdiction” is entitled to Chevron deference.

The County disagrees with Interior and the Band both

about the meaning of “under Federal jurisdiction” and about

the level of deference owed to the agency. According to the

County, “in 1934[,] federal jurisdiction over Indians

unambiguously went hand-in-hand with federally-supervised

land reserved for those Indians, at least where there was no

valid treaty in effect.” Because the meaning of the phrase is

clear, argues the County, Interior’s contrary interpretation is

not owed Chevron deference.

We need not decide whether Chevron deference is owed

to the agency because, once again, we reach the same

conclusion as the agency even without it. Even if we do not

owe Chevron deference to Interior’s interpretation of “under

Federal jurisdiction,” that interpretation “certainly may

influence” our analysis. United States v. Mead Corp.,

533 U.S. 218, 227 (2001). The proper amount of such

26 COUNTY OF AMADOR V. USDOI

influence “has been understood to vary with circumstances,”

id. at 228; it depends on “a variety of factors, such as the

thoroughness and validity of the agency’s reasoning, the

consistency of the agency’s interpretation, [and] the formality

of the agency’s action,” Tualatin Valley Builders Supply, Inc.

v. United States, 522 F.3d 937, 942 (9th Cir. 2008). We also

consider the agency’s “relative expertness.” Mead Corp.,

533 U.S. at 228. Ultimately, the amount of deference—so-

called Skidmore14 deference—that we give to an agency’s

interpretation of a statute ranges “from great respect . . . to

near indifference” depending on how those factors play out.

Id. (citation omitted).

Here, those factors counsel in favor of giving Interior’s

interpretation “great respect.” Interior’s reasoning is

thorough and careful,15 and it includes an analysis of the

IRA’s historical context, legislative history, and purpose.

Employing its institutional expertise gleaned from years of

administering the IRA, the agency situates the statute in the

larger context of the history of Indian law and, in doing so,

arrives at an interpretation of “under Federal jurisdiction” that

fits with the rest of the statute and makes sense in historical

context. Interior adopted its interpretation in a Solicitor’s

Opinion after issuing the Ione Band ROD, thus evincing its

intent to be bound by the interpretation. For those reasons,

14

Skidmore v. Swift & Co., 323 U.S. 134 (1944).

15

Interior first announced its interpretation of “under Federal

jurisdiction” in its record of decision for the fee-to-trust application of the

Cowlitz Tribe in 2010. The agency then applied the interpretation to the

Ione Band in the 2012 ROD. Accordingly, in deciding how much

deference should be given to Interior’s interpretation of “under Federal

jurisdiction,” we consider both records of decision.

COUNTY OF AMADOR V. USDOI 27

we give Interior’s interpretation of the phrase “under Federal

jurisdiction” great respect.

The phrase “under Federal jurisdiction,” considered on its

own, does not have an obvious meaning. “Jurisdiction, it has

been observed, is a word of many, too many, meanings.” N.

Cal. River Watch v. Wilcox, 633 F.3d 766, 774 (9th Cir.

2011) (quoting Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 90 (1998)). One possible meaning of “under

Federal jurisdiction” is offered by the County: A tribe was

“under Federal jurisdiction” in 1934 only if it lived on “a

reservation set aside on its behalf (at least absent a specific

treaty or legislation).” Under that interpretation, the IRA’s

benefits would be limited to tribes that, as of 1934, already

had very consequential dealings with the federal government.

Another possible meaning that has been suggested is that all

tribes that were actually tribes in 1934—that is, all tribes that

“continue[d] to exist as . . . distinct Indian communit[ies],

such that the [federal government’s plenary] Indian affairs

jurisdiction attache[d] to them”—were “under Federal

jurisdiction” in 1934. Wood, 65 U. Kan. L. Rev. at 422.

Under that interpretation, the IRA’s benefits would extend to

all recognized tribes.

Each of those proposed interpretations has substantial

flaws. The trouble with the County’s interpretation is that it

would effectively render the word “recognized” surplusage.

A tribe that lived on a reservation in 1934 was almost

certainly “recognized” within any meaning of that term. See

generally Cohen’s Handbook §§ 1.03, 3.02. And a tribe that

had entered into a formal arrangement with the federal

government of the type cited by the County would almost

certainly count as “recognized.” See id. If Congress had

truly understood “now under Federal jurisdiction” to mean

28 COUNTY OF AMADOR V. USDOI

what the County claims that it means, it could have removed

“recognized” from the statute with almost no effect.16 As for

the other interpretation, it gives too little meaning to the

phrase “under Federal jurisdiction,” because it would

encompass nearly every tribe.

The shortcomings of those two interpretations suggest

that “under Federal jurisdiction” must mean something more

than mere continued existence, but something less than a

relationship with the federal government that had already

resulted in the setting aside of a reservation or the signing of

a formal treaty. In other words, “under Federal jurisdiction”

should be read to limit the set of “recognized Indian tribes”

to those tribes that already had some sort of significant

relationship with the federal government as of 1934, even if

those tribes were not yet “recognized.” Such an interpretation

ensures that “under Federal jurisdiction” and “recognized”

retain independent meaning. See United States v. 144,774

pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th Cir.

2005) (“It is an accepted canon of statutory interpretation that

we must interpret [a] statutory phrase as a whole, giving

effect to each word and not interpreting the provision so as to

make other provisions meaningless or superfluous.”).

Interior’s interpretation of “under Federal jurisdiction,”

which involves an inquiry into “whether the United States

had . . . taken an action or series of actions . . . sufficient to

establish or that generally reflect[ed] Federal obligations,

duties, responsibility for or authority over the tribe by the

16

The only effect of retaining the term “recognized” in that situation

would be to exclude from the scope of the IRA those tribes that were

“under Federal jurisdiction” as of 1934, but which lost federal recognition

after that time.

COUNTY OF AMADOR V. USDOI 29

Federal Government,” fits the bill. Interior’s interpretation

also recognizes that there may be gaps in the history of a

tribe’s relationship with the United States, but that those gaps

do not necessarily mean that a tribe was not “under Federal

jurisdiction” at the time that the IRA became law. The

interpretation is thus consistent with the observation in

United States v. John, 437 U.S. 634, 652–53 (1978), that “the

fact that federal supervision over [a tribe] has not been

continuous” does not “destroy[] the federal power to deal

with” that tribe.

In summary, Interior’s reading of the ambiguous phrase

“under Federal jurisdiction” is the best interpretation. Interior

did not err in adopting that interpretation for purposes of

deciding whether the Ione Band was “under Federal

jurisdiction” as of 1934.

3. Interior’s Determination

The County’s second argument in support of its challenge

to Interior’s “under Federal jurisdiction” determination

assumes that Interior’s interpretation of the statute is correct.

Even assuming that interpretation, the County argues, the

agency acted arbitrarily and capriciously in concluding that

the Ione Band was “under Federal jurisdiction” as of the

effective date of the IRA. We disagree. “[W]here the

[agency] has considered the relevant factors and articulated

a rational connection between the facts found and the choice

made, the decision is not arbitrary or capricious.” Pac. Dawn

LLC v. Pritzker, 831 F.3d 1166, 1173 (9th Cir. 2016) (citation

and internal quotation marks omitted).

In the ROD, Interior relied on “[t]he continuous efforts of

the United States beginning in 1915 to acquire land for the

30 COUNTY OF AMADOR V. USDOI

Ione Band as a permanent reservation” to conclude that the

Band had been “under Federal jurisdiction” in the years

leading up to 1934. Interior also found that the government’s

post-1934 attempts to buy land for the Ione Band showed that

the Band’s “under Federal jurisdiction” status continued

through 1934. The County argues that the government’s

failed attempts to buy land for the Band are insufficient to

establish that the Band was “under Federal jurisdiction.”

Interior did not act arbitrarily or capriciously in

concluding that the federal government’s efforts to purchase

land for the Band beginning in 1915 suffice to establish that

the Band was “under Federal jurisdiction” at some time

before 1934. The efforts failed not because of a lack of will

on the part of the federal government, but because of

problems securing valid title to the land and the stubbornness

of the government’s negotiating partners. As one Interior

official wrote to the Band in 1930, “[w]e have for more than

eight years been negotiating with owners of the [land] for the

purpose of purchasing same, but because of our inability to

get a clear title to the land, the deal has not been closed. . . .

The negotiations are still pending and we hope at some

reasonably early date to acquire the [land].” The federal

government’s continued attempts reflected “Federal

obligations, duties, responsibility for or authority over” the

Band. That the attempts were thwarted by forces outside the

government’s control is not relevant. The difference between

being “under Federal jurisdiction” and not “under Federal

jurisdiction” cannot turn on the actions of third-party

landowners.

Nor did Interior act arbitrarily or capriciously in

concluding that the Ione Band remained “under Federal

jurisdiction” when the IRA became effective. A 1941 letter

COUNTY OF AMADOR V. USDOI 31

from an Interior official in California to the Commissioner of

Indian Affairs states that efforts to purchase land for the Ione

Band resumed in 1935, but that the efforts once again failed,

this time because of “mineral rights and values.” Given that

efforts were made by the federal government on the Band’s

behalf a few years before and just one year after 1934, it was

reasonable for Interior to conclude that the Band’s

“jurisdictional status remained intact in 1934.”

Interior’s determination that the Band was “under Federal

jurisdiction” as of 1934 was therefore not arbitrary or

capricious. And the Band is now recognized. Accordingly,

the Band is a recognized Indian tribe that was “under Federal

jurisdiction” in 1934, and Interior did not err in concluding

that the Band is eligible to have land taken into trust on its

behalf under 25 U.S.C. § 5108.

B. Grandfathering Under IGRA

The County next challenges Interior’s determination that

the Plymouth Parcels qualify as “restored lands of a restored

tribe” under IGRA. See 25 U.S.C. § 2719(b)(1)(B)(iii).

Interior ruled that the Plymouth Parcels qualify under the so-

called “grandfather provision” in the IGRA’s implementing

regulations, 25 C.F.R. § 292.26(b). The County argues, in

essence, that the grandfather provision is invalid, at least as

applied to the facts of this case. In order to explain why we

disagree with the County, we must place the grandfather

provision in context.

As mentioned earlier, IGRA severely limits “gaming . . .

on lands acquired by the Secretary in trust for the benefit of

an Indian tribe after” the date of enactment of the statute.

25 U.S.C. § 2719. But gaming is allowed when the “lands are

32 COUNTY OF AMADOR V. USDOI

taken into trust as part of . . . the restoration of lands for an

Indian tribe that is restored to Federal recognition,” id.

§ 2719(b)(1)(B)(iii)—the “restored lands of a restored tribe”

or “restored tribe” exception.

IGRA does not define “restored to Federal recognition.”

But by the time the statute was passed, Interior had already

established a mechanism—the Part 83 process—by which

unrecognized Indian groups could petition for recognition.

See 25 C.F.R. pt. 83 (1988) (“The purpose of this part is to

establish a departmental procedure and policy for

acknowledging that certain American Indian tribes exist.

Such acknowledgment of tribal existence by the Department

is a prerequisite to the protection, services, and benefits from

the Federal Government available to Indian tribes.”). That

mechanism was put in place in order to “enable [Interior] to

take a uniform approach in the[] evaluation” of requests for

recognition. Procedures for Establishing That an American

Indian Group Exists as an Indian Tribe, 43 Fed. Reg. at

39,361. Previously, Interior had recognized tribes on a “case-

by-case basis at the discretion of the Secretary,” id., which

had resulted in a “history of inconsistent, vague, and

contradictory policies surrounding the recognition of tribes,”

Cohen’s Handbook § 3.02[7][a], at 153. Thus, when

Congress enacted IGRA in 1988, there existed (1) a formal

administrative recognition process and (2) some tribes that

had been re-recognized outside that process both before and

after the effective date of Part 83.

In 1994, when Assistant Secretary of Indian Affairs Ada

Deer “reaffirmed” the Band’s status as a recognized tribe and

directed that the Band be included on the list of recognized

tribes published by Interior, the Band was effectively

recognized without having to go through the Part 83 process.

COUNTY OF AMADOR V. USDOI 33

Later that year, Congress passed the Federally Recognized

Indian Tribe List Act of 1994 (“Tribe List Act”), which

required Interior to publish a definitive list of recognized

tribes annually. Pub. L. No. 103-454, § 103(3), 108 Stat.

4791 (1994), codified at 25 U.S.C. §§ 5130, 5131. The

“findings” section of the law—which was not codified in the

United States Code—includes the following statement:

“Indian tribes presently may be recognized by Act of

Congress; by the administrative procedures set forth in [P]art

83 . . .; or by a decision of a United States court[.]” 108 Stat.

4791, 4791. In 1995, the Ione Band was included on the list

of recognized tribes published by Interior. Indian Entities

Recognized and Eligible To Receive Services From The

United States Bureau of Indian Affairs, 60 Fed. Reg. 9250-

01, 9252 (Feb. 16, 1995). In 1996, the Band held tribal

government elections that resulted in Interior’s

acknowledging the Band’s tribal government.

In 2008, Interior promulgated regulations implementing

IGRA’s provisions governing gaming on lands acquired after

the statute went into effect. Gaming on Trust Lands Acquired

After October 17, 1988, 73 Fed. Reg. 29,354-01 (May 20,

2008). The regulations limit the “restored tribe” exception to

those tribes that have been restored to recognition through

(1) an act of Congress, (2) the Part 83 process, or (3) a federal

court order. 25 C.F.R. § 292.10. In other words, the restored

tribe exception, as interpreted by Interior, does not apply to

tribes—such as the Ione Band—that were administratively

restored outside the Part 83 process either before or after that

process was put into place in 1978. In the explanation of its

final rules, Interior expressed its “belie[f] that in 1988

Congress did not intend to include within the restored tribe

exception [any] pre-1979 ad hoc determination[s].” Gaming

on Trust Lands Acquired After October 17, 1988, 73 Fed.

34 COUNTY OF AMADOR V. USDOI

Reg. at 29,363. Interior relied, in part, on the fact that the

Tribe List Act had not listed non-Part-83 administrative

determinations as a possible route to recognition. Id.

The 2008 regulations “apply to final agency action taken

after” June 19, 2008. 25 C.F.R. § 292.26(b). However, the

regulations include a “grandfather” provision:

These regulations . . . shall not apply to

applicable agency actions when, before the

effective date of these regulations, [Interior]

or the . . . Gaming Commission . . . issued a

written opinion regarding the applicability of

25 U.S.C. [§] 2719 for land to be used for a

particular gaming establishment, provided that

[Interior] or the [Gaming Commission] retains

full discretion to qualify, withdraw or modify

such opinions.

Id. The decision to include the grandfather provision

reflected Interior’s concern that some tribes “may have relied

on . . . legal opinion[s]” issued by Interior or the Gaming

Commission

to make investments into . . . property or taken

some other actions that were based on their

understanding that . . . land was eligible for

gaming. Therefore, [§] 292.26(b) states that

these regulations . . . shall not apply to

applicable agency actions taken after the

effective date of these regulations when the

Department or the [Gaming Commission] has

issued a written opinion regarding the

applicability of 25 U.S.C. [§] 2719 before the

COUNTY OF AMADOR V. USDOI 35

effective date of these regulations. In this

way, the Federal Government may be able to

follow through with its prior legal opinions

and take final agency actions consistent with

those opinions, even if these regulations now

have created a conflict.

Gaming on Trust Lands Acquired After October 17, 1988,

73 Fed. Reg. at 29,372.

It is this grandfather provision that Interior invoked in

2012 when it decided that the Band qualified as a “restored

tribe.” Specifically, Interior determined that the Indian lands

determination that the Band had received in 2006 constituted

“a written opinion regarding the applicability of 25 U.S.C.

§ 2719 for land to be used for a particular gaming

establishment,” so that the 2008 regulations did not apply to

the Band’s application. Interior then relied on and adopted

the 2006 Determination’s conclusion that the Band is a

“restored tribe” and that the Plymouth Parcels are “restored

lands.”

According to the County, the 2008 regulations (minus the

grandfather provision) carried into effect the clear intent of

Congress to exclude from the “restored lands of a restored

tribe” exception those tribes that were administratively

restored to recognition outside the Part 83 process. The

County does not dispute that the Band falls within the scope

of the grandfather provision, nor does the County challenge

Interior’s 2006 determinations—adopted and relied on in the

ROD—that the Band is a “restored tribe” and that the

Plymouth Parcels are “restored lands” under IGRA. But the

County argues that, when an agency promulgates a new rule

and the agency’s pre-rule practice was “inconsistent with

36 COUNTY OF AMADOR V. USDOI

[Congress’] intent,” the agency cannot “grandfather in”

pending applications unless certain conditions are met. The

County relies on Natural Resources Defense Council, Inc. v.

Thomas, 838 F.2d 1224, 1244 (D.C. Cir. 1988), and its test

for determining when an agency has a “duty to apply a rule

retroactively.” Interior’s decision to grandfather in the Band

does not pass muster under that framework, argues the

County, so the grandfather provision of 25 C.F.R.

§ 292.26(b), as applied by Interior to the band, is contrary to

IGRA—that is, is “not in accordance with law.” 5 U.S.C.

§ 706.

The premise of the County’s argument is flawed:

Congress did not clearly intend to exclude from the “restored

tribe” exception those tribes administratively restored to

recognition outside the Part 83 process. As Interior

recognized in its 2008 rulemaking, “[n]either the express

language of IGRA nor its legislative history defines restored

tribe.” Gaming on Trust Lands Acquired After October 17,

1988, 73 Fed. Reg. at 29,363. “Restored to Federal

recognition” certainly could mean “restored via the Part 83

process, legislation, or a court order,” as the 25 C.F.R. part

292 regulations reflect. But if Congress wanted to exclude

those tribes that were administratively re-recognized outside

the Part 83 process, it could have done so by explicitly

referring to that process, as it did in the exception

immediately preceding the restored lands exception. See

25 U.S.C. § 2719(b)(1)(B)(ii) (“Subsection (a) of this section

will not apply when . . . lands are taken into trust as part of

. . . the initial reservation of an Indian tribe acknowledged . . .

under the Federal acknowledgment process[.]” (emphasis

added)). Instead, Congress used the undefined term

“restored.” Furthermore, Congress used that undefined term

knowing that some tribes had been re-recognized outside the

COUNTY OF AMADOR V. USDOI 37

Part 83 process. See Interstate Commerce Comm’n v. Texas,

479 U.S. 450, 458 (1987) (“Presumably, in enacting [the

statute], Congress was aware of the [implementing agency’s]

consistent practice of regulating railroads as ‘rail carriers’

even when they performed Plan II intermodal service.”).

Given those indicators of congressional intent, we conclude

that Congress did not clearly intend for the “restored lands”

exception to be unavailable to those tribes administratively

re-recognized outside the Part 83 process. Rather, Congress

left a statutory ambiguity for Interior to resolve, and Interior

reasonably could have determined that a tribe could be

“restored” to Federal recognition outside the Part 83 process,

at least in certain circumstances.17

Because Congress did not clearly intend for the “restored

lands” exception to be unavailable to those tribes

administratively re-recognized outside the Part 83 process,

grandfathering in those tribes would not frustrate

congressional intent. Accordingly, even assuming that the

principles of Thomas apply, Interior’s decision to grandfather

in the Ione Band under 25 C.F.R. § 292.26(b) was

permissible. See Sierra Club v. EPA, 719 F.2d 436, 467–68

(D.C. Cir. 1983) (“The statutory interest in applying [a] new

rule despite individual reliance is, of course, the crucial

consideration in the context of requiring an agency to apply

one of its rules retroactively.”). In other words, 25 C.F.R.

17

The Tribe List Act suggests that a non-Part-83 administrative

“recognition” is not a recognition at all. See 108 Stat. 4791, 4791 (listing

methods of recognition). Even if a non-Part-83 administrative recognition

occurring after the effective date of that statute is invalid, the Band was re-

recognized before the effective date of the Tribe List Act. Furthermore,

Congress’ intention in 1994 sheds no light on what Congress meant in

1988 when IGRA was passed. Olive v. Comm’r, 792 F.3d 1146, 1150 (9th

Cir. 2015).

38 COUNTY OF AMADOR V. USDOI

§ 292.26(b), as applied by Interior in the ROD, is “in

accordance with law.”18 5 U.S.C. § 706.

In short, Interior permissibly grandfathered in the Band’s

application, and the County does not challenge Interior’s

determination that the Band falls within the scope of the

grandfather provision. We therefore hold that Interior did not

err in allowing the Band to conduct gaming operations on the

Plymouth Parcels under the “restored tribe” exception of

IGRA.

AFFIRMED.

18

To the extent that the County makes a facial challenge to the

grandfather provision, that challenge necessarily fails. See William

Jefferson & Co. v. Bd. of Assessment & Appeals No. 3 ex rel. Orange

County, 695 F.3d 960, 963 (9th Cir. 2012) (“If [the plaintiff’s] as-applied

challenge fails, then [its] facial challenge necessarily fails as well because

there is at least one set of circumstances where application of [the

challenged statute] does not violate a taxpayer’s procedural due process

rights.”).