Franks Landing Indian Cmty. v. National Indian Gaming Comm'r.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK’S LANDING INDIAN No. 17-35368

COMMUNITY, a federally-

recognized self-governing D.C. No.

dependent Indian community, 3:15-cv-05828-BHS

Plaintiff-Appellant,

v. OPINION

NATIONAL INDIAN GAMING

COMMISSION; UNITED STATES

DEPARTMENT OF THE

INTERIOR; JONODEV

CHAUDHURI, in his official

capacity as Chairman of the

National Indian Gaming

Commission; TARA KATUK

MACLEAN SWEENEY, in her

official capacity as Assistant

Secretary of the Interior

Indian Affairs, United States

Department of the Interior;

DAVID BERNHARDT, in his

official capacity as Acting

Secretary of the Interior,

Defendants-Appellees.

2 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted October 11, 2018

Seattle, Washington

Filed March 12, 2019

Before: N. Randy Smith and Morgan Christen, Circuit

Judges, and Robert E. Payne,* District Judge.

Opinion by Judge Christen

SUMMARY**

Tribal Matters

The panel affirmed the district court’s summary judgment

entered in favor of the U.S. Department of the Interior, its

Secretary, and Assistant Secretary of Indian Affairs, in an

action challenging the Department of the Interior’s

determination that Frank’s Landing Indian Community is

ineligible for gaming for purposes of the Indian Gaming

Regulatory Act (“IGRA”).

*

The Honorable Robert E. Payne, United States District Judge for the

Eastern District of Virginia, 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.

FRANKS LANDING INDIAN COMTY. V. 3

NAT’L INDIAN GAMING COMM’N

The panel held that IGRA clearly and unambiguously

required federal recognition by the Secretary of the Interior

before a tribe may qualify to participate in Indian gaming.

The panel also held that when Congress amended the Frank’s

Landing Act in 1994, it did not separately authorize the non-

federally recognized Frank’s Landing Indian Community to

engage in Class II gaming. The panel held that the

Department of the Interior correctly concluded that the

Community was not eligible to engage in IGRA gaming.

COUNSEL

Scott David Crowell (argued), Crowell Law Office-Tribal

Advocacy Group, Sedona, Arizona; Bryan T. Newland,

Fletcher Law PLLC, East Lansing, Michigan; Alan S.

Middleton, Law Offices of Alan S. Middleton PLLC, Lake

Forest Park, Washington; for Plaintiff-Appellant.

Kevin W. McArdle (argued), Mary Gabrielle Sprague, and

Devon Lehman McCune, Environment and Natural Resources

Division; Eric Grant, Deputy Assistant Attorney General;

Jeffrey H. Wood, Acting Assistant Attorney General; United

States Department of Justice, Washington, D.C.; Samuel E.

Ennis, Office of the Solicitor, Department of the Interior,

Washington, D.C.; for Defendants-Appellees.

4 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

OPINION

CHRISTEN, Circuit Judge:

Frank’s Landing Indian Community (Community)

appeals the district court’s order granting summary judgment

in favor of appellees Department of the Interior, its Secretary,

and the Assistant Secretary–Indian Affairs. The Community,

which is not a federally recognized tribe, challenges Interior’s

determination that it is ineligible for gaming for purposes of

the Indian Gaming Regulatory Act, (IGRA), 25 U.S.C.

§§ 2701–2721. The Community argues that its unique status,

recognized and defined in the Frank’s Landing Act1 and the

1994 amendments to that Act,2 renders it eligible to engage in

class II gaming.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm the district court’s judgment. Reviewing Interior’s

decision under the Administrative Procedure Act (APA), we

conclude the agency’s determination was correct. First, we

hold that IGRA clearly and unambiguously requires federal

recognition by the Secretary of the Department of the Interior

before a tribe may qualify to participate in Indian gaming.

Second, we hold that the Frank’s Landing Act does not

authorize the Community to engage in class II gaming.

1

Pub. L. No. 100-153, § 10, 101 Stat. 886, 889.

2

Pub. L. No. 103-435, § 8, 108 Stat. 4566, 4569–70.

FRANKS LANDING INDIAN COMTY. V. 5

NAT’L INDIAN GAMING COMM’N

BACKGROUND

A. Statutory Background

Adopted in 1987, the Frank’s Landing Act originally

provided as follows:

The Frank’s Landing Indian Community in

the State of Washington is hereby recognized

as eligible for the special programs and

services provided by the United States to

Indians because of their status as Indians and

is recognized as eligible to contract, and to

receive grants, under the Indian Self-

Determination and Education Assistance Act

for such services, but the proviso in section

4(c) of such Act (25 U.S.C. 450b(c)) shall not

apply with respect to grants awarded to, and

contracts entered into with, such Community.

Pub. L. No. 100-153, § 10, 101 Stat. 889.

In 1988, Congress enacted IGRA to provide “a statutory

basis for the operation and regulation” of Indian gaming.

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48 (1996).

IGRA created the National Indian Gaming Commission

(Gaming Commission), the federal agency that regulates three

classes of gaming on Indian lands. See 25 U.S.C.

§§ 2703(6)–(8), 2704, 2710. To conduct class II gaming, an

“Indian tribe” must adopt a “tribal ordinance” concerning the

regulation of class II gaming, and submit the ordinance to the

Chair of the Gaming Commission for approval. 25 U.S.C.

§ 2710(b). IGRA defines “Indian tribe” as follows:

6 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

[A]ny 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.

Id. § 2703(5).

In 1994, Congress amended the Frank’s Landing Act so

that it now provides:

(a) Subject to subsection (b), the Frank’s

Landing Indian Community in the State of

Washington is hereby recognized—

(1) as eligible for the special programs

and services provided by the United States

to Indians because of their status as

Indians and is recognized as eligible to

contract, and to receive grants, under the

Indian Self-Determination and Education

Assistance Act for such services, but the

proviso in section 4(c) of such Act

(25 U.S.C. 450b(c)) shall not apply with

respect to grants awarded to, and contracts

entered into with, such Community; and

FRANKS LANDING INDIAN COMTY. V. 7

NAT’L INDIAN GAMING COMM’N

(2) as a self-governing dependent Indian

community that is not subject to the

jurisdiction of any federally recognized

tribe.

(b)(1) Nothing in this section may be

construed to alter or affect the jurisdiction of

the State of Washington under section 1162 of

title 18, United States Code.

(2) Nothing in this section may be

construed to constitute the recognition by

the United States that the Frank’s Landing

Indian Community is a federally

recognized Indian tribe.

(3) Notwithstanding any other provision

of law, the Frank’s Landing Indian

Community shall not engage in any class

III gaming activity (as defined in section

3(8) of the Indian Gaming Regulatory Act

of 1988 (25 U.S.C. 2703(8))).

Pub. L. No. 103-435, 108 Stat. 4566, 4569–70 (emphasis

added).

When Congress enacted the Frank’s Landing Act in 1987,

it had not yet enacted IGRA and thus it could not have

considered the Community’s tribal status or gaming rights for

purposes of IGRA. By the time the Frank’s Landing Act was

amended in 1994, IGRA was well established, as was the

process for identifying which groups qualify as federally

recognized tribes.

8 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

B. Federal Recognition

To provide context for our decision that the Community

is ineligible to participate in Indian gaming, we explain what

it means to be a federally recognized tribe.3 “Federal

recognition” of an Indian tribe is a legal term of art meaning

that the federal government acknowledges as a matter of law

that a particular Indian group has tribal status. See H.R. Rep.

No. 103-781, at 2 (1994), as reprinted in 1994 U.S.C.C.A.N.

3768; Felix Cohen, Cohen’s Handbook of Federal Indian

Law § 3.02[3], at 134 (Nell Jessup Newton ed., 2012)

(hereinafter Cohen’s Handbook). Federal recognition

establishes a government-to-government relationship between

the United States and the recognized tribe as a “domestic

dependent nation,” and requires the Secretary to provide “a

panoply of benefits and services” to the tribe and its

members. See Cohen’s Handbook, § 3.02[3], at 134 (internal

quotation marks omitted).

A group of Indians may achieve federal recognition in

three ways: (1) by Congressional act; (2) by Secretarial

acknowledgment4 ; or (3) by a decision of a United States

court. See Federally Recognized Indian Tribe List Act of

1994, Pub. L. No. 103-454; United States v. Zepeda, 792 F.3d

1103, 1114 (9th Cir. 2015). As required by the Federally

3

The term “federal recognition” is relevant to understanding the

significance of: (1) IGRA’s requirement that an Indian tribe must be

“recognized as eligible by the Secretary” for special programs and

services; and (2) the Frank’s Landing Act’s provision that the Community

is not a federally recognized Indian tribe.

4

“The terms ‘recognize’ and ‘acknowledge’ are often used

interchangeably.” Cohen’s Handbook, § 3.02[3], at 134 n.21.

FRANKS LANDING INDIAN COMTY. V. 9

NAT’L INDIAN GAMING COMM’N

Recognized Indian Tribe List Act of 1994 (List Act),

25 U.S.C. § 5131, the Secretary of the Interior publishes an

annual list of all federally recognized tribes that have

obtained recognition through any one of these three means.

See Zepeda, 792 F.3d 1103 at 1114. The Community has

never petitioned the Secretary for inclusion on the annual list,

and it concedes that it has not been federally recognized

under any of these three pathways.

C. The Community’s Efforts to Engage in Class II

Gaming

The Community submitted a class II gaming ordinance to

the Gaming Commission for review and approval in

December of 2014. In March of 2015, the Assistant

Secretary–Indian Affairs, acting on behalf of Interior, issued

a memorandum to the Chair of the Gaming Commission

concluding that the Community did not qualify as an Indian

tribe for purposes of IGRA because it is not federally

recognized and does not appear on the annual list of

recognized tribes the Secretary publishes pursuant to the List

Act. The Assistant Secretary opined that the Gaming

Commission could rely on this annual list to determine

whether an entity is a federally recognized Indian tribe

because the list is intended to be exhaustive, because it offers

transparency surrounding which groups of Indians are eligible

for gaming pursuant to IGRA, and because it provides a

“bright line” rule that preserves government resources. The

Solicitor of the Department of the Interior also concluded that

the Community was not an Indian tribe for purposes of

IGRA.

10 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

Relying on Interior’s determination, the Chair of the

Gaming Commission concluded that the Commission was

without authority to review the Community’s gaming

ordinance. The Community’s requests for reconsideration

were denied, and the Community filed suit in district court.

The district court dismissed the claims against the Gaming

Commission and its Chair for failure to state a claim.

Thereafter, the court granted summary judgment in favor of

the remaining defendants. The district court reasoned that

IGRA and the Frank’s Landing Act, read together, are

ambiguous regarding whether Congress intended to authorize

the Community to engage in class II gaming, but it

concluded, pursuant to Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843–44

(1984), that defendants reasonably interpreted these statutes.

This appeal of the summary judgment order followed.

STANDARD OF REVIEW

“We review de novo the district court’s summary

judgment ruling[ ], ‘thus reviewing directly the agency’s

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

Cty. of Amador v. United States Dep’t of the Interior,

872 F.3d 1012, 1020 (9th Cir. 2017) (quoting Alaska

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

2015)), cert. denied, 139 S. Ct. 64 (2018).

DISCUSSION

Interior determined that the Community is not entitled to

conduct Indian gaming for purposes of IGRA because it is not

federally recognized and does not appear on the annual list of

recognized tribes the Secretary publishes pursuant to the List

FRANKS LANDING INDIAN COMTY. V. 11

NAT’L INDIAN GAMING COMM’N

Act. Accordingly, the dispositive questions in this case are

narrow: (1) whether an Indian group must be recognized by

the Secretary in order to qualify as an “Indian tribe” for

purposes of IGRA; and, if so, (2) whether the Frank’s

Landing Act nevertheless authorizes the Community to

engage in class II gaming pursuant to IGRA. To resolve

these questions, we start with the definition of “Indian tribe”

in IGRA, § 2703(5). Because the Frank’s Landing Act

granted the Community some form of special status before

Congress adopted IGRA, we also consider the Frank’s

Landing Act, both as originally adopted and as amended in

1994.

“We interpret [each] federal statute by ascertaining the

intent of Congress and by giving effect to its legislative will.”

Artichoke Joe’s California Grand Casino v. Norton, 353 F.3d

712, 720 (9th Cir. 2003) (internal quotation marks omitted).

To resolve this appeal, “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 [interpretive questions] de novo.” Cty. of Amador,

872 F.3d at 1021–22.

We hold that Congress intended federal recognition by the

Secretary to be a prerequisite for inclusion in IGRA’s

definition of Indian tribe, and that when it amended the

Frank’s Landing Act in 1994, Congress did not separately

authorize the non-federally recognized Community to engage

in class II gaming.

12 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

A. Congress Made Federal Recognition a Prerequisite

for Indian Gaming.

IGRA states that an “Indian tribe . . . recognized as

eligible by the Secretary for the special programs and

services” may engage in class II gaming. 25 U.S.C.

§ 2703(5)(A); see id. § 2710(b)(1). Our court has never

squarely addressed the meaning of IGRA’s Secretarial

recognition requirement, though we have suggested that only

federally recognized tribes may engage in Indian gaming.

See Artichoke Joe’s, 353 F.3d at 734 (stating that “only

federally recognized tribes are covered” by IGRA, not

individual Indians); see also Timbisha Shoshone Tribe v. U.S.

Dep’t of Interior, 824 F.3d 807, 809 (9th Cir. 2016)

(observing that “only federally recognized tribes may operate

gambling facilities under the federal [IGRA].”)

IGRA’s definition of “Indian tribe” includes

“communit[ies] of Indians” that are “recognized as

possessing powers of self-government.” 25 U.S.C.

§ 2703(5)(B). Interior does not challenge the Community’s

assertion that it is a self-governing community of Indians, but

the parties part ways over how to interpret IGRA’s

requirement that an Indian tribe must be “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[.]” Id. § 2703(5)(A).

Interior points to IGRA’s requirement that a tribe be

recognized as eligible by the Secretary, and argues that no

such recognition has been made for the Community. The

Community isolates IGRA’s phrase “special programs and

services provided by the United States to Indians because of

FRANKS LANDING INDIAN COMTY. V. 13

NAT’L INDIAN GAMING COMM’N

their status as Indians,” and contends that it unambiguously

includes the Community, because the Frank’s Landing Act

provides that it is eligible to participate in “special programs

and services” specifically targeted to Indians. The

Community argues that the phrase “recognized as eligible by

the Secretary” is irrelevant to the task of determining whether

the Community may engage in class II gaming because

Congress has plenary power to legislate concerning Indian

tribes, and the Secretary must accede to what the Community

argues is a congressional directive in the Frank’s Landing

Act—that the Community is eligible for “special programs

and services.” The Community urges us to conclude that it is

therefore eligible to participate in class II gaming.

We agree with the Community that the phrase “special

programs and services provided by the United States to

Indians because of their status as Indians” refers to eligibility

to participate in federal programs specifically targeted to

Indians. See Hoopa Valley Indian Tribe v. Ryan, 415 F.3d

986, 990–91 (9th Cir. 2005) (describing programs and

services provided to Indians “because of their status as

Indians” as “specifically targeted to Indians” (internal

quotation marks omitted)); Navajo Nation v. Dep’t of Health

& Human Servs., 325 F.3d 1133, 1138 (9th Cir. 2003) (en

banc) (same). However, IGRA’s additional phrase

“recognized as eligible by the Secretary” is a key qualifier.

On its face, this phrase means that the Secretary must

recognize an Indian tribe as eligible for special programs and

services. And, as we explain infra, the significance of

Secretarial recognition in the context of federal Indian law

means that a tribe is federally recognized and that it appears

on the Secretary’s annual list. See generally F.A.A. v.

Cooper, 566 U.S. 284, 291–92 (2012) (observing the

14 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

“cardinal rule of statutory construction” that when “Congress

employs a term of art, it presumably knows and adopts the

cluster of ideas that were attached to each borrowed word in

the body of learning from which it was taken.” (internal

quotation marks omitted)); Dolan v. U.S.P.S., 546 U.S. 481,

486 (2006) (“Interpretation of a word or phrase depends upon

reading the whole statutory text, considering the purpose and

context of the statute, and consulting any precedents or

authorities that inform the analysis.”).

The administrative process by which the Secretary

federally recognizes an Indian tribe was set out in Interior’s

Part 83 regulations in 1978, long before the adoption of

IGRA. See 43 Fed. Reg. 39,361 (Sept. 5, 1978). The Part 83

regulations established a “procedure and policy for

acknowledging that certain American Indian tribes exist.

Such acknowledgment of tribal existence by the Department

[of the Interior] is a prerequisite to the protection, services,

and benefits from the Federal Government available to Indian

tribes.” 43 Fed. Reg. at 39,362. The Part 83 regulations

required the Secretary to publish “a list of all Indian tribes

which are recognized and receiving services from the Bureau

of Indian Affairs.” Id. Inclusion on the Secretary’s list

signifies that a tribe has been federally recognized and is

eligible to receive services from the Bureau. Id.

We assume Congress is knowledgeable about existing law

pertinent to the legislation it enacts, see South Dakota v.

Yankton Sioux Tribe, 522 U.S. 329, 351 (1998), and the

Part 83 regulations were longstanding by the time Congress

enacted IGRA in 1988. Thus, we have no doubt about what

Congress intended when it used the phrase “recognized as

eligible by the Secretary” in IGRA; this phrase is

FRANKS LANDING INDIAN COMTY. V. 15

NAT’L INDIAN GAMING COMM’N

synonymous with federal recognition. See Pit River Home &

Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1094–96

(9th Cir. 1994) (concluding a tribe was not “recognized by

the Secretary” because the tribe was not federally recognized

in any statute or treaty, and was not listed pursuant to Part 83

regulations). Use of “recognized as eligible by the Secretary”

in IGRA’s definition of “Indian tribe” reflects Congressional

intent to require formal Secretarial recognition as a

prerequisite for gaming.5

Our conclusion that IGRA only applies to tribes

recognized on the Secretary’s annual list is consistent with

5

The Community argues that Native Village of Noatak v. Hoffman

supports its position. 896 F.2d 1157, 1160 (9th Cir. 1990), rev’d on other

grounds by Blatchford v. Native Village of Noatak and Circle Village,

501 U.S. 775 (1991). There, in a different context, we said that “[i]f

Congress has recognized the tribe, a fortiori the tribe is entitled to

recognition and is in fact recognized by the Secretary of the Interior.” Id.

But the issue in Noatak was whether two Native Villages were entitled to

bring suit in federal court pursuant to 28 U.S.C. § 1362; i.e., whether the

villages were “Indian tribe[s] or band[s] with [] governing bod[ies] duly

recognized by the Secretary of the Interior” Id. One of the villages had

a governing body approved by the Secretary pursuant to 25 U.S.C. § 476,

id., and when the Native Villages filed their complaint in 1985, they were

already included on the Secretary’s annual List. See 48 Fed. Reg.

56,865–66 (Dec. 23, 1983). In contrast, the question here is whether the

Community qualified as a tribe for purposes of IGRA. IGRA

unambiguously requires recognition by the Secretary, and the Community

concedes that it is not a federally recognized tribe. Further, Congress

declared the Community eligible for “special programs and services”

before IGRA was enacted, so it could not have intended the original

Frank’s Landing Act to bestow IGRA’s benefits upon the Community.

Congress did not take the opportunity to expand the Community’s ability

to participate in IGRA gaming when it amended the Frank’s Landing Act

in 1994.

16 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

the observations of other federal courts,6 and we know of no

court that has ruled otherwise. It is unsurprising that the

particular interpretive question we address here has not been

examined in our earlier caselaw; IGRA’s plain language

provides that an Indian tribe is one that is “recognized as

eligible by the Secretary” for “special programs and

services,” and this type of recognition is typically determined

by simply confirming whether an Indian group appears on the

Secretary’s annual list. In this case, the Community’s

status—as set forth in the Frank’s Landing Act—is unique.

We do not know of any other group with a comparable status,

and neither does the Community.

Having reviewed the applicable statutory text and

considering the sequence in which the related legislation was

enacted, we conclude that Congress clearly and

unambiguously intended federal recognition by the Secretary

to be a prerequisite for inclusion in IGRA’s definition of

6

See Wisconsin v. Ho-Chunk Nation, 784 F.3d 1076, 1079 (7th Cir.

2015) (“IGRA divides all Indian gaming (that is, gambling run by

federally recognized tribes) into three classes.”); Narragansett Indian

Tribe v. Nat’l Indian Gaming Comm’n, 158 F.3d 1335, 1337 (D.C. Cir.

1998) (noting that IGRA “permits federally recognized tribes to apply for

Commission approval of gaming proposals.”); Passamaquoddy Tribe v.

Maine, 75 F.3d 784, 792 n.4 (1st Cir. 1996) (observing that “[IGRA] has

no application to tribes that do not seek and attain formal federal

recognition.”); Carruthers v. Flaum, 365 F. Supp. 2d 448, 451, 466–67

(S.D.N.Y. 2005) (concluding that because the Unkechaug are not federally

recognized, IGRA provides no exception to New York’s general

prohibition on gambling); First Am. Casino Corp. v. E. Pequot Nation,

175 F. Supp. 2d 205, 208 (D. Conn. 2000) (“Unless and until defendant

obtains federal acknowledgment, its activities are not regulated by

IGRA.”).

FRANKS LANDING INDIAN COMTY. V. 17

NAT’L INDIAN GAMING COMM’N

“Indian tribe.” IGRA does not authorize the non-federally

recognized Community to engage in class II gaming.

B. The Frank’s Landing Act Does Not Authorize the

Community to Engage in Indian Gaming.

Despite IGRA’s requirement that an Indian tribe must be

recognized by the Secretary, the Community argues that the

Frank’s Landing Act separately granted it permission to

engage in class II gaming. Specifically, the Community

argues that because Congress defined “Indian tribe” in IGRA

with the “precise language” used in the Frank’s Landing Act,

Congress intended to authorize the Community to engage in

class II gaming.

Both the 1987 Frank’s Landing Act and the 1994

amended Act provide that the Community is:

recognized as eligible for the special

programs and services provided by the United

States to Indians because of their status as

Indians and is recognized as eligible to

contract, and to receive grants, under the

Indian Self-Determination and Education

Assistance Act for such services. . . .

Pub. L. No. 100-153, 101 Stat. 886, 889; § 10, Pub. L. No.

103-435, 108 Stat. 4566, 4569. Plainly, this language

indicates that Congress intended the Community to be

eligible for special programs and services by virtue of their

status as Indians, and Congress made clear that it intended the

Community would contract for, and receive grants pursuant

to, the Indian Self-Determination and Education Assistance

18 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

Act. See Indian Self-Determination and Education Assistance

Act, 25 U.S.C. § 5321(a)(1)(E) (providing that upon request,

the Secretary shall enter into self-determination contracts that

include programs “for the benefit of Indians because of their

status as Indians[.]”). But neither the 1987 Frank’s Landing

Act nor the 1994 amendments contain IGRA’s qualifying

phrase signaling federal recognition, “recognized as eligible

by the Secretary[,]” 25 U.S.C. § 2703(5) (emphasis added).

Further, Congress underscored that the 1994 amendments

were not intended to federally recognize the Community by

specifying that “[n]othing in this section may be construed to

constitute the recognition by the United States that the

[Community] is a federally recognized Indian tribe.” Pub. L.

No. 103-435, § 8, 108 Stat. 4569.

The Community argues that we should infer that Congress

intended to allow it to engage in class I or II gaming because

the amended Act only expressly prohibits the Community

from engaging in class III gaming. To support this argument,

the Community invokes the rule that a statute should be

construed so that no clause, sentence, or word is rendered

superfluous, and argues that there would have been no need

to expressly prohibit it from engaging in class III gaming if

lack of federal recognition rendered it ineligible to participate

in all IGRA gaming. Interior responds that Congress would

not choose such an indirect route to convey an easily

expressed message, and that there is no indication that this

class III provision means anything other than what it

says—that notwithstanding any other provision of law, i.e.,

notwithstanding federal recognition at some future time, the

Community is prohibited from engaging in class III gaming.

FRANKS LANDING INDIAN COMTY. V. 19

NAT’L INDIAN GAMING COMM’N

Like the district court, we read the amended Act’s

prohibition of class III gaming as an express limitation on the

Community’s class III gaming rights if it is ever federally

recognized. The words Congress used make this clear.

Subsections (b)(1) and (b)(2) provide that “[n]othing in this

section may be construed to” alter or affect the criminal

jurisdiction of Washington under Public Law 2807 or to

constitute federal recognition of the Community. Congress

employed language with a much broader sweep when it

drafted subsection (b)(3). That subsection states

“[n]otwithstanding any other provision of law” the

Community shall not engage in class III gaming. The

Supreme Court recently observed that “[t]he ordinary

meaning of ‘notwithstanding’ is ‘in spite of,’ or ‘without

prevention or obstruction from or by.’” N.L.R.B. v. SW Gen.,

Inc., — U.S. —, 137 S. Ct. 929, 939 (2017) (quoting

Webster’s Third New International Dictionary 1545 (1986);

Black’s Law Dictionary 1091 (7th ed. 1999)). The Court

explained that the word “notwithstanding” demonstrates

“which provision prevails in the event of a clash,” id.

(quoting A. Scalia & B. Garner, Reading Law: The

Interpretation of Legal Texts 126–27 (2012)), and that a

“notwithstanding” clause “confirms rather than constrains

breadth.” Id. at 940.

Accordingly, we read “notwithstanding” in

subsection (b)(3) as a signal that the amended Act’s broad

prohibition on class III gaming shall prevail in the event of a

conflict with “any other provision of law.” In contrast, the

preface to subsections (b)(1) and (b)(2)—“[n]othing in this

section”—constrains the reach of the amended Act with

7

18 U.S.C. § 1162.

20 FRANKS LANDING INDIAN COMTY. V.

NAT’L INDIAN GAMING COMM’N

respect to Public Law 280 and federal recognition. This

variation in language reflects a deliberate choice, see S.E.C.

v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (“the use of

different words or terms within a statute demonstrates that

Congress intended to convey a different meaning for those

words.”).

The historical context of the Frank’s Landing Act also

confirms that the Community is not authorized to engage in

gaming. On the same day Congress amended the Frank’s

Landing Act, November 2, 1994, see 108 Stat. 4566, 4569, it

codified Interior’s longstanding Part 83 practice of publishing

a list of recognized tribes, see 108 Stat. 4791. As explained,

the List Act directed the Secretary to annually publish “a list

of all Indian tribes which the Secretary recognizes to be

eligible for the special programs and services provided by the

United States to Indians because of their status as Indians.”

25 U.S.C. § 5131. Assuming, as we must, that Congress was

knowledgeable about Interior’s longstanding Part 83

regulations, IGRA’s requirement that tribes be recognized by

the Secretary, and the List Act’s codification of the

Secretary’s annual list, it is conspicuous that Congress did not

take the opportunity when it amended the Frank’s Landing

Act to specifically authorize the Community to engage in

class II gaming. Indeed, Congress did just the opposite by

unequivocally stating that the Frank’s Landing Act

amendments were not intended to confer federal recognition.

See Pub. Law No. 103-435, 108 Stat. 4566, 4569.

In light of the express statement in the Frank’s Landing

Act that the Community is not a federally recognized tribe,

the amended Act’s broad limitation on class III gaming

rights, and the context in which the Act was amended, we

FRANKS LANDING INDIAN COMTY. V. 21

NAT’L INDIAN GAMING COMM’N

conclude it is not susceptible to more than one reasonable

interpretation. The Frank’s Landing Act does not separately

authorize the Community to engage in Indian gaming.

CONCLUSION

Congress clearly and unambiguously intended federal

recognition by the Secretary to be a prerequisite for

participation in IGRA gaming. Congress did not separately

authorize the non-federally recognized Community to engage

in class II gaming by amending the Frank’s Landing Act.

Therefore, Interior correctly concluded that the Community

was not eligible to engage in IGRA gaming and we affirm the

district court’s order granting summary judgment in favor of

the appellees.

AFFIRMED.