Club One Casino, Inc. v. David Bernhardt

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLUB ONE CASINO, INC., DBA Club No. 18-16696

One Casino; GLCR, INC., DBA The

Deuce Lounge and Casino, D.C. No.

Plaintiffs-Appellants, 1:16-cv-01908-

AWI-EPG

v.

DAVID BERNHARDT; MIKE BLACK,

Acting Assistant Secretary of the OPINION

Interior - Indian Affairs; U.S.

DEPARTMENT OF THE INTERIOR,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted February 11, 2020

San Francisco, California

Filed May 27, 2020

Before: R. Guy Cole, Jr., * Ronald M. Gould, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia

*

The Honorable R. Guy Cole, Jr., Chief Judge of the United States

Court of Appeals for the Sixth Circuit, sitting by designation.

2 CLUB ONE CASINO V. BERNHARDT

SUMMARY **

Tribal Gaming

The panel affirmed the district court’s summary

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

its Secretary in an action brought by plaintiff cardrooms,

challenging the Secretary’s approval of a Nevada-style

casino project on off-reservation land in the County of

Madera, California by the North Fork Rancheria of Mono

Indians, a federally recognized tribe.

Section 3719 of Indian Gaming Regulatory Act

(“IGRA”) prohibits gaming on any lands acquired by the

Secretary in trust for the benefits of Indian Tribes after

October 17, 1988, unless one of several exceptions applies.

As relevant here, Class III games include casino-style

games, slot machines, and lotteries, and can only be

conducted pursuant to tribal-state compacts approved by the

Secretary. Section 5108 of the Indian Reorganization Act of

1934 (“IRA”) authorized the Secretary to acquire interests or

rights for the purpose of providing land for Indians. In July

2016, in accordance with IGRA, the Secretary prescribed

certain procedures that permitted gaming on the Madera

Parcel (the “Secretarial Procedures”).

The panel rejected plaintiffs’ contention that the

Secretarial Procedures were issued in violation of IGRA.

The panel held that as a matter of law, the federal

government confers tribal jurisdiction over lands it acquires

in trust for the benefit of tribes. The panel further held that

**

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

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

CLUB ONE CASINO V. BERNHARDT 3

the Tribe’s jurisdiction over the Madera Parcel operated as a

matter of law and the Tribe clearly exercised governmental

power when it entered into agreements with local

governments and enacted ordinances concerning the

property. Finally, the panel rejected plaintiffs’ claim that the

Tribe’s acquisition of any jurisdiction over the Madera

Parcel required the State’s consent or cession. Specifically,

the panel held that the Enclave Clause of the U.S.

Constitution did not apply because the Secretary’s

acquisition of land in trust for the benefit of a tribe did not

result in the creation of a federal enclave or violate the

Clause. The panel also held that 40 U.S.C. § 3112 did not

apply where the jurisdiction at issue here – which was

created by operation of law – was not granted by the State to

the federal government, or taken by the federal government

from the State.

The panel rejected plaintiffs’ contention that to the extent

IRA created tribal jurisdiction upon the Secretary’s

acquisition of land in trust for the benefit of the Tribe, it

violated the Tenth Amendment. The panel held that the IRA

did not offend the Tenth Amendment because Congress has

plenary authority to regulate Indian affairs.

The panel held that plaintiffs waived two arguments

raised for the first time on appeal.

The panel concluded that the Secretary’s actions were

not arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.

4 CLUB ONE CASINO V. BERNHARDT

COUNSEL

Robert D. Links (argued), Adam G. Slote, and Marglyn E.

Paseka, Slote Links & Boreman LLP, San Francisco,

California; Robert A. Olson and Timothy T. Coates, Greines

Martin Stein & Richland LLP, Los Angeles, California; for

Plaintiffs-Appellants.

Tamara Rountree (argued), John David Gunter II, Steven

Miskinis, and Joann Kintz, Attorneys; Eric Grant, Deputy

Assistant Attorney General; Jeffrey Bossert Clark, Assistant

Attorney General; Environment and Natural Resources

Division, United States Department of Justice, Washington,

D.C.; for Defendants-Appellees.

OPINION

MURGUIA, Circuit Judge:

This action is one in a series of actions 1 concerning the

proposed construction and operation of a Nevada-style

casino on off-reservation land in the County of Madera,

California (the “Madera Parcel”) by the North Fork

Rancheria of Mono Indians (the “North Fork” or “Tribe”), a

federally recognized tribe. Plaintiffs-Appellants, Club One

Casino and the Deuce Lounge, are cardrooms licensed by the

State of California (the “State”). Plaintiffs contend that the

approval of the casino project by the United States Secretary

of the Interior (the “Secretary”) and the United States

1

See Picayune Rancheria of Chukchansi Indians v. United States

Dep’t of Interior, No. 1:16-CV-0950-AWI-EPG, 2017 WL 3581735,

at *3–5 (E.D. Cal. Aug. 18, 2017) (reviewing actions related to the

proposed casino).

CLUB ONE CASINO V. BERNHARDT 5

Department of the Interior (collectively, Defendants-

Appellees) is unlawful, and they brought a host of

procedural, statutory, and constitutional challenges. The

district court granted summary judgment against Plaintiffs

on all claims. We affirm.

I

The North Fork Rancheria of Mono Indians of California

are the modern descendants of the Mono Indians, who have

used and occupied lands in and near California’s San

Joaquin Valley for several centuries. The Tribe has

approximately 1,750 citizens, is headquartered in North

Fork, Madera County, California, and has been federally

recognized since 1915.

In March 2005, the North Fork applied to the Department

of the Interior to have a 305-acre plot of land in Madera

County taken into trust by the United States pursuant to

section 5108 of the Indian Reorganization Act (“IRA”),

25 U.S.C. §§ 5101–5144. The Tribe proposes to construct a

casino resort on the property.

In September 2011, the Secretary made a determination

pursuant to section 2719 of the Indian Gaming Regulatory

Act (“IGRA”), id. §§ 2701–2721, finding that gaming on the

land would be in the best interest of the North Fork and not

detrimental to the surrounding community (the “Secretarial

Determination”). In August 2012, the Governor of the State

of California (the “Governor”) informed the Secretary that

he concurred in the Secretarial Determination and negotiated

a compact with the North Fork to govern gaming at the

Madera Parcel. In February 2013, the Madera Parcel was

acquired in trust by the Secretary for the benefit of the North

Fork. In June 2013, the California Legislature passed

Assembly Bill 277, which ratified the compact, and the

6 CLUB ONE CASINO V. BERNHARDT

Governor signed the legislation into law the following

month. Enough signatures, however, were gathered to place

a veto referendum (“Proposition 48”) on the November 2014

ballot, which proposed voiding the California Legislature’s

ratification of the compact. Proposition 48 passed with

sixty-one percent of the vote—meaning that Assembly Bill

277, which had ratified the compact between the Tribe and

the State, was vetoed by the voters.

After this defeat at the polls, the North Fork requested

that the State negotiate a new tribal-state compact to govern

gaming at the Madera Parcel. The State refused, citing

Proposition 48’s passage. In March 2015, the Tribe brought

an action under IGRA, alleging that the State failed to

negotiate in good faith. N. Fork Rancheria of Mono Indians

of Cal. v. California, No. 1:15-CV-00419-AWI-SAB, 2015

WL 11438206, at *1 (E.D. Cal. Nov. 13, 2015). The district

court agreed, finding that the State’s refusal to negotiate a

compact post-referendum violated IGRA, and ordered the

State and the North Fork to conclude a compact within sixty

days. Id. at *8, *12. When the parties failed to do so, the

court selected a mediator and directed the parties to submit

their last best offers. The parties complied with the order

and the mediator selected the North Fork’s proposed

compact as “the compact that best comported with IGRA,

Federal law, and the orders of this Court.” The mediator

thereafter submitted the compact to the State for its consent.

The State did not consent to the selected compact within the

statutorily required time period and the mediator’s proposed

compact was submitted to the Secretary pursuant to

section 2710(d)(7)(B)(vii) of IGRA.

In July 2016, in accordance with IGRA, the Secretary

prescribed certain procedures that permitted gaming on the

Madera Parcel (the “Secretarial Procedures”). The

CLUB ONE CASINO V. BERNHARDT 7

Secretarial Procedures do not include express findings as to

whether the North Fork had jurisdiction or exercised

governmental power over the Madera Parcel or whether the

Madera Parcel was Indian land.

Plaintiffs, the cardrooms, sued the Secretary and the

Department of the Interior in the district court in December

2016. They challenged the Secretary’s issuance of the

Secretarial Procedures under the Administrative Procedure

Act, claiming: (1) the Secretarial Procedures were issued in

violation of IGRA, as the Tribe purportedly never acquired

jurisdiction or exercised governmental power over the

Madera Parcel; and (2) assuming the Tribe acquired

jurisdiction and exercised governmental power, IRA violates

the Tenth Amendment to the Constitution by reducing the

State’s jurisdiction over land within its territory without its

agreement.

On cross-motions for summary judgment, the district

court denied Plaintiffs’ motion and granted Defendants’

motion. In accordance with case law from other circuits, the

district court held that: (1) the Tribe had jurisdiction over

the Madera Parcel for purposes of IGRA by virtue of the land

being acquired in trust for the Tribe and neither consent nor

cession by the State was required; (2) Plaintiffs’ Tenth

Amendment challenge was not properly before the court, as

Plaintiffs had only challenged the issuance of the Secretarial

Procedures, not the Secretary’s acquisition of the Madera

Parcel in trust for the benefit of the Tribe; and

(3) alternatively, Plaintiffs lacked standing to bring the

Tenth Amendment challenge. Plaintiffs timely appealed.

II

We review the district court’s grant of summary

judgment de novo to determine whether the Secretary’s

8 CLUB ONE CASINO V. BERNHARDT

actions were “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A); Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d

544, 554 (9th Cir. 2016). We have described the arbitrary

and capricious standard as deferential and narrow,

establishing a “high threshold” for setting aside agency

action. River Runners for Wilderness v. Martin, 593 F.3d

1064, 1067, 1070 (9th Cir. 2010) (per curiam). We also

review purely legal questions de novo. Wagner v. Nat’l

Transp. Safety Bd., 86 F.3d 928, 930 (9th Cir. 1996).

III

Before proceeding to our analysis, we pause to set out

the applicable statutory landscape. Gaming in Indian

country is a multi-billion-dollar industry conducted pursuant

to the Indian Gaming Regulatory Act of 1988. IGRA

“accommodate[s] the interests of tribes in pursuing gaming

but also set[s] forth a federal regulatory regime, and g[ives]

a powerful role to states by providing for significant state

involvement in the decision to permit casino-style gaming.”

Cohen’s Handbook of Federal Indian Law § 12.01, at 876

(2012) (“Federal Indian Law”).

Gaming is permitted only on Indian lands, which are

defined as “all lands within the limits of any Indian

reservation,” 25 U.S.C. § 2703(4)(A), and “any lands title to

which is either held in trust by the United States for the

benefit of any Indian tribe or individual or held by any Indian

tribe or individual subject to restriction by the United States

against alienation and over which an Indian tribe exercises

governmental power,” id. § 2703(4)(B). Thus, a tribe may

engage in gaming activities either: (1) on a reservation; or

(2) off a reservation on tribal or individual trust land, or land

not held in trust but subject to a restriction on alienation, but

CLUB ONE CASINO V. BERNHARDT 9

only if a tribe exercises governmental power over this trust

or restricted land. Id. § 2703(4).

Importantly, section 2719 of IGRA prohibits gaming on

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

Indian tribes after October 17, 1988, unless one of several

exceptions applies. An exception pertinent to this appeal

permits gaming if the Secretary makes a two-part

determination: (1) finding that gaming on land acquired in

trust after 1988 “would be in the best interest of the Indian

tribe and its members”; and (2) that such gaming “would not

be detrimental to the surrounding community, but only if the

Governor of the State in which the gaming activity is to be

conducted concurs in the Secretary’s determination.” Id.

§ 2719(b)(1)(A).

Additionally, IGRA divides gaming into three classes.

As relevant here, Class III 2 games include casino-style

games, slot machines, and lotteries. See id. § 2703(8).

Generally, Class III games can only be conducted pursuant

to tribal-state compacts approved by the Secretary. Id.

§ 2710(d)(1)(C), (3)(B). If a state generally permits such

gaming, IGRA authorizes a tribe to bring an action in federal

court 3 against a state that refuses to enter into negotiations at

2

Class I games include social and traditional games for prizes of

minimal value. Federal Indian Law § 12.02, at 881–82. Class I gaming

is within the sole jurisdiction of tribes. Id. Class II games include bingo,

bingo-like games, and certain non-banking (meaning, players compete

against each other and not the “house”) card games. Id. Class II gaming

is jointly regulated by tribes and the National Indian Gaming

Commission, excluding a role for states. Id.

3

As a result of the Supreme Court’s ruling in Seminole Tribe of Fla.

v. Florida, 517 U.S. 44 (1996), states may assert Eleventh Amendment

immunity from tribal lawsuits alleging failure to negotiate in good

10 CLUB ONE CASINO V. BERNHARDT

all or has refused to negotiate a Class III tribal-state compact

in good faith. Id. § 2710(d)(7)(A)(i), (B)(i). If there is a

finding by a district court that the state failed to negotiate in

good faith, IGRA requires the district court to order the tribe

and the state to negotiate a compact within sixty days. Id.

§ 2710(d)(7)(B)(iii). If a compact fails to materialize within

sixty days, the district court shall appoint a mediator who

will require the tribe and the state to submit their best and

final proposal for a compact. Id. § 2710(d)(7)(B)(iv). The

mediator then selects the compact that best comports with

policies embodied in IGRA and other applicable federal

laws. Id. If the state still refuses to agree to be bound by the

chosen compact, IGRA requires the mediator to refer the

matter to the Secretary, who must then issue gaming

procedures consistent with the compact selected by the

mediator, other relevant provisions of IGRA, and the laws of

the state. Id. § 2710(d)(7)(B)(vii).

In addition to IGRA, this appeal implicates the Indian

Reorganization Act of 1934. IRA authorizes the Secretary

“in his discretion” to acquire “any interest in lands, water

rights, or surface rights to lands, within or without existing

reservations,” through purchase, gift, or exchange “for the

purpose of providing land for Indians.” Id. § 5108 (formerly

§ 465). IRA reflected a major shift in federal policy from

one favoring diminishment of tribal lands to one protecting

tribal lands and supporting tribal self-government and

economic development. See Mescalero Apache Tribe v.

Jones, 411 U.S. 145, 152 (1973).

faith—meaning, tribes are prohibited from bringing lawsuits in federal

court against a state without the consent of the state. California has

waived its immunity and has thereby consented to such suits. See Cal.

Gov’t Code § 98005.

CLUB ONE CASINO V. BERNHARDT 11

In sum, in order for a tribe to engage in any gaming on

off-reservation land acquired after October 17, 1988, the

following must take place: (1) land—which is either held in

trust by the United States for the benefit of any Indian tribe

or individual or held by any Indian tribe or individual subject

to restriction by the United States against alienation,

25 U.S.C. § 2703(4)(B)—must be acquired; (2) the

Secretary must make a determination finding that gaming

would be in the best interest of the Indian tribe and its

members, and would not be detrimental to the surrounding

community, id. § 2719(b)(1)(A); and (3) the governor of the

state must concur in the determination, id.

In order for a tribe to engage in Class III gaming,

however, the Secretary must also either approve a tribal-

state compact, id. § 2710(d)(1)(C), or prescribe secretarial

procedures, if the state failed to negotiate in good faith, id.

§ 2710(d)(7)(B)(vii). As explained above, if a state refuses

to negotiate a tribal-state compact in good faith or to enter

into negotiations at all, IGRA authorizes the Secretary to

permit gaming by issuing gaming procedures consistent with

a compact selected by a mediator, other relevant provisions

of IGRA, and the laws of the state.

IV

On appeal, Plaintiffs re-assert the arguments they

presented to the district court. Plaintiffs contend that:

(1) the Secretarial Procedures were issued in violation of

IGRA, as the Tribe purportedly never acquired jurisdiction

or exercised governmental power over the Madera Parcel;

and (2) assuming the Tribe acquired jurisdiction and

exercised governmental power, IRA violates the Tenth

Amendment by reducing the State’s jurisdiction over land

within its territory without its agreement. Plaintiffs also,

however, introduce two additional arguments, which they

12 CLUB ONE CASINO V. BERNHARDT

present for the first time on appeal: (1) that the Secretarial

Determination finding that gaming at the Madera Parcel

would be in the best interest of the North Fork and not

detrimental to the surrounding community did not reflect

sufficiently robust consultation, as required by law; and

(2) that the Governor lacked authority to concur in the

Secretarial Determination. We address the first two

arguments below, and we conclude that the latter two have

been waived.

A

Plaintiffs contend that the Secretarial Procedures, which

permit gaming on the Madera Parcel, were issued in

violation of IGRA because the Tribe purportedly lacked

jurisdiction and did not exercise governmental power over

the Madera Parcel. In support of this argument Plaintiffs

appear to claim that: (1) tribal jurisdiction was not

automatically obtained by the Tribe when the United States

acquired the Madera Parcel in trust for the benefit of the

Tribe; (2) the Secretary was required, but failed, to consider

whether the Tribe possessed jurisdiction and whether the

Tribe exercised governmental power over the Madera

Parcel; and (3) the Tribe’s acquisition of any jurisdiction

over the Madera Parcel requires the State’s consent or

cession—neither of which was granted. None of these

arguments has merit.

1

As noted above, IRA authorizes the Secretary “in his

discretion” to acquire “any interest in lands, water rights, or

surface rights to lands, within or without existing Indian

reservations,” through purchase, gift, or exchange “for the

purpose of providing land for Indians.” Id. § 5108. And

while there is no Ninth Circuit precedent precisely on point,

CLUB ONE CASINO V. BERNHARDT 13

other circuits have logically concluded that, as a matter of

law, the federal government confers tribal jurisdiction over

lands it acquires in trust for the benefit of tribes. We agree.

In Upstate Citizens for Equality, Inc. v. United States, for

example, the Second Circuit concluded that “[l]and held by

the federal government in trust for Indians under [section

5108 of IRA] ‘is generally not subject to (1) state or local

taxation; (2) local zoning and regulatory requirements; or,

(3) state criminal and civil jurisdiction [over Indians], unless

the tribe consents to such jurisdiction.’” 841 F.3d 556, 561

(2d Cir. 2016) (alteration in original) (quoting Conn. ex rel.

Blumenthal v. United States Dep’t of Interior, 228 F.3d 82,

85–86 (2d Cir. 2000)). The court further noted that the

federal government may, “by acquiring land for a tribe,

divest a state of important aspects of its jurisdiction, even if

a state previously exercised wholesale jurisdiction over the

land and even if ‘federal supervision over [a tribe] has not

been continuous.’” Id. at 568 (alteration in original)

(quoting United States v. John, 437 U.S. 634, 653 (1978)).

Accordingly, “[w]hen the federal government takes land into

trust for an Indian tribe, the state that previously exercised

jurisdiction over the land cedes some of its authority to the

federal and tribal governments.” Id. at 569 (emphasis

added). 4

Similarly, in Yankton Sioux Tribe v. Podhradsky, the

Eighth Circuit concluded that “land held in trust under [IRA]

4

Notably and importantly, federal and Indian authority do not

entirely displace state authority over land taken into trust. Upstate

Citizens for Equality, 841 F.3d at 572. For example, under Public Law

280, 18 U.S.C. § 1162(a), California retains “broad criminal jurisdiction

over offenses committed by or against Indians within all Indian country

within the State.” California v. Cabazon Band of Mission Indians,

480 U.S. 202, 207 (1987), superseded on other grounds by statute.

14 CLUB ONE CASINO V. BERNHARDT

is effectively removed from state jurisdiction,” for “when

Congress enacted [IRA] ‘it doubtless intended and

understood that the Indians for whom the land was acquired

would be able to use the land free from state or local

regulation or interference as well as free from taxation.’”

606 F.3d 994, 1011 (8th Cir. 2010) (quoting Chase v.

McMasters, 573 F.2d 1011, 1018 (8th Cir. 1978)).

As a general matter, too, off-reservation trust land like

the Madera Parcel is “Indian country” with all the

jurisdictional consequences that attach to that status. 5

Federal law defines “Indian country,” in part, as “all

dependent Indian communities within the borders of the

United States whether within the original or subsequently

acquired territory thereof, and whether within or without the

limits of a state.” 18 U.S.C. § 1151(b). Off-reservation trust

land set aside for Indian use is Indian country under

subsection (b) of the Indian country statute. Off-reservation

trust land is, by definition, land set aside for Indian use and

subject to federal control. Federal control over trust land is

evident and made clear in regulations such as 25 C.F.R.

§ 1.4(a), which precludes state or local regulation of

property “belonging to any Indian or Indian tribe, band, or

community that is held in trust by the United States[.]”

“Generally speaking, primary jurisdiction over land that is

Indian country rests with the Federal Government and the

Indian tribe inhabiting it, and not with the States.” Native

Vill. of Venetie, 522 U.S. at 527 n.1.

5

“Although this definition by its terms relates only to federal

criminal jurisdiction, we have recognized that it also generally applies to

questions of civil jurisdiction . . . .” Alaska v. Native Vill. of Venetie

Tribal Gov’t, 522 U.S. 520, 527 (1998).

CLUB ONE CASINO V. BERNHARDT 15

As such, the federal government confers tribal

jurisdiction over lands it acquires in trust for the benefit of

tribes as a matter of law.

2

Plaintiffs’ next contention, that the Secretary was

somehow legally required to consider whether the Tribe

possessed jurisdiction and exercised governmental power

over the Madera Parcel, is equally unpersuasive. Plaintiffs

do not point to any provision of IGRA—or any other

relevant authority, for that matter—requiring the Secretary

to make either determination. We decline to read into IGRA

unnecessary requirements demanded neither by law nor

logic. As to jurisdiction specifically, requiring the Secretary

to evaluate whether the Tribe possesses jurisdiction over the

land would be illogical. As noted above, the Tribe’s

jurisdiction over the Madera Parcel operates as a matter of

law; it is not a question of fact. Upstate Citizens for

Equality, 841 F.3d at 569 (“When the federal government

takes land into trust for an Indian tribe, the state that

previously exercised jurisdiction over the land cedes some

of its authority to the federal and tribal governments.”).

As to governance, the Tribe most certainly exercises

governmental power over the Madera Parcel. IGRA

authorizes gaming on “any lands title to which is . . . held in

trust by the United States for the benefit of any Indian tribe

. . . and over which an Indian tribe exercises governmental

power.” 25 U.S.C. § 2703(4)(B) (emphasis added).

Although federal courts have not often had occasion to

consider whether a tribe “exercises governmental power”

within the meaning of IGRA, those that have considered the

question have held that exercising governmental power

requires a showing of both theoretical power to exercise

jurisdiction over the property and proof of actual exercise of

16 CLUB ONE CASINO V. BERNHARDT

that authority. For example, the First Circuit in Rhode Island

v. Narragansett Indian Tribe held that “[m]eeting this

requirement does not depend upon the Tribe’s theoretical

authority, but upon the presence of concrete manifestations

of that authority.” 19 F.3d 685, 703 (1st Cir. 1994).

In Massachusetts v. Wampanoag Tribe of Gay Head, the

First Circuit similarly concluded that a tribe which had

passed ordinances and entered into agreements with state

and local governments for the provision of law enforcement

and firefighting services exercised governmental power

sufficiently within the meaning of IGRA. 853 F.3d 618,

625–26 (1st Cir. 2017). The court underscored that “the

achievement of full-fledged self-governance” was not

necessary—only “merely movement in that direction.” Id.

at 626.

Here, the record clearly indicates that in late 2006 the

Tribe entered into “enforceable and binding” agreements

with the County of Madera and the City of Madera for the

provision of law enforcement and fire protection services at

the Madera Parcel. The Tribe also enacted a gaming

ordinance in 2009 “governing the conduct of gaming” at the

Madera Parcel. The district court also took judicial notice of

the fact that the Tribe enacted an ordinance in October 2015

approving a conservation plan for the Madera Parcel.

For these reasons, both conditions were met here. The

Tribe’s jurisdiction over the Madera Parcel operates as a

matter of law and the Tribe clearly exercised governmental

power when it entered into agreements with local

governments and enacted ordinances concerning the

property.

CLUB ONE CASINO V. BERNHARDT 17

3

Plaintiffs’ final claim in support of their argument that

the Secretarial Procedures were issued in violation of

IGRA—that the Tribe’s acquisition of any jurisdiction over

the Madera Parcel requires the State’s consent or cession—

is also unavailing. Plaintiffs point to the Constitution’s

Enclave Clause and a federal statute, 40 U.S.C. § 3112, as

the sources of those requirements. 6

The Enclave Clause does not apply here. The

Secretary’s acquisition of land in trust for the benefit of a

tribe does not result in the creation of a federal enclave or

violate the Enclave Clause. See, e.g., Upstate Citizens for

Equality, 841 F.3d at 571 (“When land is taken into trust by

the federal government for Indian tribes, the federal

government does not obtain such categorically exclusive

jurisdiction over the entrusted lands.”); City of Roseville v.

Norton, 219 F. Supp. 2d 130, 151 (D.D.C. 2002) (“[I]t is

clear that land taken into trust for Indians does not create an

exclusive federal enclave. Consequently, the Enclaves [sic]

Clause is not implicated[.]”). “State jurisdiction is . . . only

6

In general, Congress may acquire jurisdiction from a state through

two methods: consent and cession. The first method, consent, arises

from the Constitution’s Enclave Clause. Case law construing the clause

instructs that state consent is needed only when the federal government

takes “exclusive” jurisdiction over land within a state. See, e.g., Paul v.

United States, 371 U.S. 245, 263 (1963). “Exclusive” jurisdiction for

Enclave Clause purposes is equivalent to the sweeping power that

Congress exerts over the District of Columbia, the first subject of the

clause. Id. The second method, cession, relates to 40 U.S.C. § 3112.

Under this federal statute, the federal government can acquire

jurisdiction from a state by filing a notice accepting the state’s

jurisdiction with the state’s governor or in such manner as may be

prescribed by the laws of the state where the lands are situated. 40 U.S.C.

§ 3112(b).

18 CLUB ONE CASINO V. BERNHARDT

reduced, and not eliminated, when the federal government

takes land into trust for a tribe. Because federal and Indian

authority do not wholly displace state authority over land

taken into trust pursuant to § 5 of the IRA, the Enclave

Clause poses no barrier to the entrustment that occurred

here.” Upstate Citizens for Equality, 841 F.3d at 572.

Section 3112 also does not apply. By its own terms, the

statute sets forth requirements for the federal government’s

acceptance of jurisdiction over land. See, e.g., 40 U.S.C.

§ 3112(b) (“[The federal government] shall indicate

acceptance of jurisdiction . . . by filing a notice of acceptance

with the Governor of the State[.]”) Here, the federal

government is not accepting jurisdiction “from the State.” In

other words, the jurisdiction at issue here—which was

created by operation of law, as noted above—was not

granted by the State to the federal government, or taken by

the federal government from the State. See, e.g., Kleppe v.

New Mexico, 426 U.S. 529, 541–43 (1976) (noting the

distinction between Congress’ constitutional powers and its

derivative legislative powers acquired from a state, and

noting that where Congress acts pursuant to a non-derivative

constitutional power, federal legislation preempts

conflicting state law). The federal government’s power

under IRA to acquire the Madera Parcel in trust for the

benefit of the Tribe is derived from Congress’ broad general

power, pursuant to the Indian Commerce Clause, to legislate

with respect to Indian tribes—power which has been

consistently described as “plenary and exclusive” power

over Indian affairs. United States v. Lara, 541 U.S. 193, 200

(2004); see also Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163, 192 (1989) (“[T]he central function of the

Indian Commerce Clause is to provide Congress with

plenary power to legislate in the field of Indian affairs[.]”).

Therefore, when Congress so acts, the federal legislation

CLUB ONE CASINO V. BERNHARDT 19

necessarily overrides conflicting state laws under the

Supremacy Clause. See Kleppe, 426 U.S. at 543.

Thus, Plaintiffs’ claim that the Tribe’s acquisition of any

jurisdiction over the Madera Parcel requires the State’s

consent or cession fails.

B

Plaintiffs also contend that to the extent IRA creates

tribal jurisdiction upon the Secretary’s acquisition of land in

trust for the benefit of the Tribe, it violates the Tenth

Amendment. 7 Plaintiffs assert that “tak[ing] sovereignty

from a State without that State’s consent or permission”

violates the Tenth Amendment, as “[t]erritorial jurisdiction

is a fundamental component of State sovereignty.”

The authority to regulate Indian affairs is among the

enumerated powers of the federal government. U.S. Const.

art. I, § 8, cl. 3; Cotton Petroleum Corp., 490 U.S. at 192;

Morton v. Mancari, 417 U.S. 535, 551 (1974) (noting that

Congress has plenary power “to deal with the special

problems of Indians,” including the power to legislate on

their behalf). “With the adoption of the Constitution, Indian

relations became the exclusive province of federal law.”

Cty. of Oneida v. Oneida Indian Nation of New York,

470 U.S. 226, 234 (1985); see also United States v. Forty-

Three Gallons of Whiskey, 93 U.S. 188, 194 (1876)

(“Congress now has the exclusive and absolute power to

regulate commerce with the Indian tribes[.]”).

7

Plaintiffs have standing to bring this claim pursuant to Bond v.

United States, 564 U.S. 211, 220–21 (2011).

20 CLUB ONE CASINO V. BERNHARDT

The Tenth Amendment to the Constitution reserves to

the states those powers not expressly delegated to the federal

government. The powers delegated to the federal

government and those reserved to the states by the Tenth

Amendment are mutually exclusive. “If a power is delegated

to Congress in the Constitution, the Tenth Amendment

expressly disclaims any reservation of that power to the

States[.]” New York v. United States, 505 U.S. 144, 156

(1992).

Because Congress has plenary authority to regulate

Indian affairs, contrary to Plaintiffs’ argument, IRA does not

offend the Tenth Amendment. See, e.g., Carcieri v.

Kempthorne, 497 F.3d 15, 39–40 (1st Cir. 2007) (en banc)

(emphasizing that powers expressly delegated to Congress

do not implicate the Tenth Amendment), rev’d on other

grounds sub nom. Carcieri v. Salazar, 555 U.S. 379 (2009);

see also Gila River Indian Cmty. v. United States, 729 F.3d

1139, 1154 (9th Cir. 2013), as amended (July 9, 2013)

(holding that a federal statute “was well within congressional

power under the Indian Commerce Clause and is not

trumped by the Tenth Amendment”).

C

Plaintiffs also raise two arguments for the first time on

appeal. First, Plaintiffs claim the Secretarial Determination

that gaming would be in the best interest of the Tribe and

would not be detrimental to the surrounding community did

not reflect sufficiently robust consultation with “appropriate

State and local officials” pursuant to section 2719(b)(1)(A)

of IGRA because some local authorities opposed the Tribe’s

request for gaming on off-reservation lands. Second,

Plaintiffs claim that the Governor’s 2012 concurrence in the

Secretarial Determination was unauthorized as a matter of

CLUB ONE CASINO V. BERNHARDT 21

state law 8 and, alternatively, was revoked before the

issuance of the Secretarial Procedures. Neither of these

arguments were presented to the district court.

“Absent exceptional circumstances, we generally will

not consider arguments raised for the first time on appeal,

although we have discretion to do so.” El Paso City v. Am.

W. Airlines, Inc. (In re Am. W. Airlines, Inc.), 217 F.3d 1161,

1165 (9th Cir. 2000). Plaintiffs have failed to address any of

the exceptions to the general rule that an argument raised for

the first time on appeal is waived. See United States v.

Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990) (discussing the

limited circumstances where the Court may consider an issue

raised for the first time on appeal, which include when there

are “exceptional circumstances” why the issue was not

raised in the trial court, when the new issue arose while the

appeal was pending because of a change in the law, and

when the issue presented is purely one of law and the

opposing party will not suffer prejudice as a result of the

failure to raise the issue in the trial court).

Accordingly, Plaintiffs have waived these arguments.

8

The California Supreme Court has granted review of two related

cases involving the following legal question: “May the Governor concur

in a decision by the Secretary of the Interior to take off-reservation land

in trust for purposes of tribal gaming without legislative authorization or

ratification, or does such an action violate the separation of powers

provisions of the state Constitution?” United Auburn Indian Cmty. of

the Auburn Rancheria v. Brown, No. S238544 (review granted Jan. 25,

2017); Stand Up for California! v. State, No. S239630 (review granted

Mar. 22, 2017) (briefing deferred pending decision in United Auburn).

22 CLUB ONE CASINO V. BERNHARDT

V

In summary, the Tribe’s jurisdiction over the Madera

Parcel operates as a matter of law and the Tribe clearly

exercised governmental power when it entered into

agreements with local governments and enacted ordinances

concerning the property. Because neither the Enclave

Clause nor 40 U.S.C. § 3112 are implicated here, neither the

State’s consent nor cession is required for the Tribe to

acquire any jurisdiction over the Madera Parcel. Finally,

IRA does not offend the Tenth Amendment because

Congress has plenary authority to regulate Indian affairs. As

such, we conclude that the Secretary’s actions were not

“arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A); Alaska

Oil & Gas, 815 F.3d at 554.

AFFIRMED.