Sault Ste. Marie Tribe of Chippewa Indians v. Debra Haaland

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 30, 2021 Decided February 4, 2022

No. 20-5123

SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS,

APPELLEE

v.

DEBRA A. HAALAND, IN HER OFFICIAL CAPACITY AS

SECRETARY OF THE INTERIOR AND UNITED STATES

DEPARTMENT OF THE INTERIOR,

APPELLANTS

SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, ET AL.,

APPELLEES

Consolidated with 20-5125, 20-5127, 20-5128

Appeals from the United States District Court

for the District of Columbia

(No. 1:18-cv-02035)

Erika B. Kranz, Attorney, U.S. Department of Justice,

argued the cause for federal appellants. With her on the briefs

were Jonathan D. Brightbill, Principal Deputy Assistant

2

Attorney General, Eric Grant, Deputy Assistant Attorney

General, and John Smeltzer, Attorney.

Pratik A. Shah argued the cause for non-federal appellants.

With him on the briefs were William A. Szotkowski, Leah K.

Jurss, and Merrill C. Godfrey.

Michael A. Carvin, William D. Coglianese, Ian Heath

Gershengorn, and Zachary C. Schauf were on the briefs for

appellants MGM Grand Detroit, LLC, et al.

Danielle Spinelli argued the cause for appellees. With her

on the brief were Kelly P. Dunbar and Kevin M. Lamb.

Samuel F. Daughety was on the brief for amici curiae

Professors Alexander T. Skibine, Richard B. Collins, and

Robert J. Miller in support of appellees.

Before: HENDERSON and RAO, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge HENDERSON.

RAO, Circuit Judge: This case involves a dispute about

whether land acquired by the Sault Ste. Marie Tribe of

Chippewa Indians (“Tribe”) must be taken into trust by the

Department of the Interior. The Tribe purchased the Sibley

Parcel with interest from its Self-Sufficiency Fund and sought

to have the land taken into trust with a view to establishing

gaming operations. The Tribe claimed the Parcel was acquired

for the “enhancement of tribal lands,” one of the permitted uses

of Fund interest specified in Section 108(c) of the Michigan

Indian Land Claims Settlement Act (“Michigan Act”). Interior

3

concluded, however, that the mere acquisition of additional

land was not an “enhancement” under the Michigan Act.

Interior declined to take the Parcel into trust because the Tribe

failed to demonstrate how the Parcel would improve or

enhance tribal lands, particularly because the land was located

in Michigan’s Lower Peninsula far from the Tribe’s existing

lands in the Upper Peninsula.

The Tribe sued Interior. The district court granted

summary judgment to the Tribe, holding that the Michigan Act

imposed a mandatory duty on Interior to take the Parcel into

trust, and therefore Interior lacked the authority to verify

whether the Tribe’s acquisition was a proper use of Fund

interest under the Act. Sault Ste. Marie Tribe of Chippewa

Indians v. Bernhardt, 442 F. Supp. 3d 53, 63 (D.D.C. 2020).

The court further held that, even if Interior had such authority,

it was unlawfully exercised because the acquisition of land

“that increases the Tribe’s total landholdings” was an

“enhancement” of tribal lands. Id. at 73.

Under the plain meaning of the Michigan Act, we hold that

before assuming a trust obligation, Interior has the authority to

verify that the Tribe properly acquired the land with Fund

interest, consistent with the limited uses for such interest in

Section 108(c). Furthermore, in exercising that authority,

Interior correctly determined that “enhancement of tribal

lands” does not include an acquisition that merely increases the

Tribe’s landholdings. Rather, to enhance tribal lands, an

acquisition must improve the quality or value of the Tribe’s

existing lands. We therefore reverse and remand for

proceedings consistent with this opinion.

4

I.

A.

With more than 40,000 members, the Sault Ste. Marie

Tribe of Chippewa Indians is the largest Indian tribe east of the

Mississippi River. The Tribe descends from a group of

Chippewa bands that historically occupied lands in the Upper

Peninsula of Michigan. The Tribe, however, ceded much of its

ancestral lands to the federal government through an 1836

treaty. See Treaty with the Ottawa and Chippewa, 7 Stat. 491

(Mar. 28, 1836).

More than a century later, Congress created the Indian

Claims Commission and authorized it to hear, among other

things, claims that treaties between Indian tribes and the United

States were based on unconscionable consideration. Act of

Aug. 13, 1946, ch. 959, § 2, 60 Stat. 1049, 1050. The Tribe

brought such a claim, along with two other tribes party to the

1836 Treaty. The Commission held that the Treaty was

unconscionable and ordered the United States to pay these

tribes more than $10 million. Bay Mills Indian Cmty. v. United

States, 26 Ind. Cl. Comm. 538, 542, 560 (1971) (finding the

government paid only fifteen percent of the land’s fair value

under the Treaty). The United States did not distribute the

judgment funds for several decades, in part because the three

tribes could not reach an agreement on how to divide the

money.

In 1997, the tribes and the federal government negotiated

a compromise that resulted in the Michigan Act, Pub. L. No.

105-143, 111 Stat. 2652 (1997).1 The Act provided for the

1

Following the Civil War, the government moved away from

negotiating treaties with Indian tribes and instead enacted statutes to

govern federal relations with tribes. See COHEN’S HANDBOOK OF

5

distribution of the judgment funds among the tribes with

separate sections of the statute governing each tribe’s use of its

judgment funds. Michigan Act § 104.

Section 108 of the Michigan Act requires the Sault Ste.

Marie Tribe to establish a “Self-Sufficiency Fund” to hold its

share of the judgment. Id. § 108(a)(1). The Tribe’s Board of

Directors is named the trustee of the Fund and makes

expenditure and distribution decisions, and “the Secretary [has]

no trust responsibility for the investment, administration, or

expenditure” of the Fund. Id. § 108(a)(2), (e)(2).

The Act also delineates distinct uses for Fund principal and

interest. Id. § 108(b)–(c). As relevant here, Fund interest may

be expended for only five uses: “an addition to the principal”;

“a dividend to tribal members”; “a per capita payment to some

group or category of tribal members”; “educational, social

welfare, health, cultural, or charitable purposes which benefit

the [Tribe’s] members”; or “consolidation or enhancement of

tribal lands.” Id. § 108(c). If the Tribe acquires lands with Fund

interest, those lands “shall be held in trust by the Secretary for

the benefit of the tribe.” Id. § 108(f).

B.

This dispute arises out of Interior’s refusal to take into trust

a parcel of land acquired by the Tribe.

FEDERAL INDIAN LAW § 1.03[9], at 69 (Nell Jessup Newton ed.,

2012) [hereinafter COHEN’S HANDBOOK]. Statutes like the Michigan

Act, which address only particular tribes, are special provisions not

codified in the United States Code. See generally 25 U.S.C. ch. 19

codification note (explaining that provisions “relating to settlement

of the land claims of certain Indian tribes [were] omitted from the

Code as being of special and not general application”).

6

Using Fund interest, the Tribe purchased 71 acres, known

as the “Sibley Parcel,” in the Lower Peninsula of Michigan. In

its application to have Interior take the Parcel into trust, the

Tribe acknowledged that it purchased the Parcel in anticipation

of conducting gaming activities on the land. The Tribe

contended that the Michigan Act gave Interior no authority to

determine whether land acquired with Fund interest was for a

use allowed by the Michigan Act, leaving that evaluation solely

with the Tribe’s Board. Because the Board had made the

determination that the acquisition would “consolidat[e] or

enhance[] … tribal lands” and used Fund interest, the Tribe

maintained Interior had a mandatory duty to take the parcel into

trust under Section 108(f). The Tribe also argued that the

purchase constituted an “enhancement” of tribal lands because

it “increas[ed] the total land possessed by the Tribe.”

After some back and forth, Interior issued an interim

decision concluding that before taking the land into trust it was

required to verify both that the purchase of the Sibley Parcel

complied with the Michigan Act’s requirements for the use of

Fund interest and that the Tribe had in fact used interest for the

purchase. Relying on an earlier decision concerning the Bay

Mills Indian Community, Interior maintained that

“enhancement” means only acquisitions that “make greater, as

in cost, value, attractiveness, etc.; heighten; intensify; [or]

augment” existing tribal lands.2 The Tribe had failed to provide

2

Section 107 of the Michigan Act, which governs the judgment

funds of the Bay Mills Indian Community, provides that Bay Mills

may use interest generated from its share for “the consolidation and

enhancement of tribal landholdings.” Michigan Act § 107(a)(3).

After Bay Mills acquired a parcel far away from its existing lands,

Interior interpreted “enhancement” to mean an acquisition that “must

somehow enhance (i.e., make greater the value or attractiveness)

some other tribal landholding already in existence.” Although a

district court disagreed with Interior’s interpretation, the Sixth

7

sufficient evidence that the Sibley Parcel on the Lower

Peninsula would constitute an “enhancement” of the Tribe’s

existing lands in the Upper Peninsula. Interior gave the Tribe

an opportunity to submit further evidence by keeping its

application open, but the Tribe did not do so. Interior issued a

final decision denying the Tribe’s application to take the land

into trust, reiterating that the Tribe had failed to establish that

the acquisition of this parcel would increase the value of

existing tribal lands.

The Tribe filed a claim under the Administrative

Procedure Act in the District Court for the District of

Columbia, arguing that Interior’s decision was contrary to law

or arbitrary and capricious. Three casinos and two tribes

intervened as defendants.

The district court granted summary judgment to the Tribe.

Sault Ste. Marie, 442 F. Supp. 3d at 58. It first held that Interior

had no authority to determine whether the Tribe’s acquisition

of the parcel complied with the uses of Fund interest set forth

in Section 108(c) because Section 108(f) creates a mandatory

duty for Interior to take into trust any land purchased with Fund

interest. As an additional and independent ground, the court

held that the Tribe’s acquisition of the Sibley Parcel was an

“enhancement of tribal lands” within the meaning of Section

108(c). The court rejected Interior’s interpretation of

“enhancement” as an acquisition that only increases the value

of existing tribal lands. The court determined that

“enhancement” unambiguously includes any acquisition that

increases the total amount of tribal lands, even if a parcel does

Circuit vacated that decision because Bay Mills had sovereign

immunity from the claims lodged in that case. See Michigan v. Bay

Mills Indian Cmty., 695 F.3d 406, 414–16 (6th Cir. 2012), aff’d, 572

U.S. 782 (2014).

8

not increase the quality or value of existing tribal lands. The

court, however, declined to issue an order compelling Interior

to take the Sibley Parcel into trust. Instead, the court vacated

Interior’s decision and remanded to the agency for further

proceedings. Interior appealed.

We review the grant of summary judgment de novo “and

therefore, in effect, review directly the decision of the agency.”

Purepac Pharm. Co. v. Thompson, 354 F.3d 877, 883 (D.C.

Cir. 2004) (cleaned up). The Tribe challenges Interior’s

interpretation of the Michigan Act. Therefore, “we first

consider ‘whether Congress has directly spoken to the precise

question at issue’” by looking to the statutory text. Baystate

Franklin Med. Ctr. v. Azar, 950 F.3d 84, 92 (D.C. Cir. 2020)

(quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984)). If the statute unambiguously

resolves the question, that is the end of our inquiry. Id. The

plain meaning of the Michigan Act resolves both of the

questions on appeal.

II.

The threshold question is whether Interior has the

authority to verify that land purchased with Fund interest was

for one of the uses listed in Section 108(c) before taking the

land into trust. Interior’s obligation to take the land into trust is

established by Section 108(f), which provides in full: “Any

lands acquired using amounts from interest or other income of

the Self-Sufficiency Fund shall be held in trust by the Secretary

for the benefit of the tribe.” Michigan Act § 108(f). As the

parties agree, this provision imposes a mandatory duty on the

Secretary to take into trust land acquired using Fund interest.

The Tribe asserts that the only condition the Secretary may

consider is whether Fund interest was in fact used to acquire

the lands. Interior maintains, however, that its trust obligation

9

also imposes a duty to determine whether the Tribe properly

acquired the land using Fund interest, that is, for one of the uses

specified by Section 108(c). We agree with Interior’s

interpretation. Interior’s authority to take land into trust under

Section 108(f) necessarily includes the authority to determine

whether the lands have been lawfully acquired under Section

108(c), which specifies the exclusive uses for which the interest

or income of the Self-Sufficiency Fund may be spent.

When a statute establishes a trust obligation of the United

States to an Indian tribe, the government acts “not as a private

trustee but pursuant to its sovereign interest in the execution of

federal law.” United States v. Jicarilla Apache Nation, 564

U.S. 162, 165 (2011). The government’s sovereign obligations

under the Constitution require the Secretary to ensure the

faithful execution of the laws. U.S. CONST. art. II, § 3

(President’s obligation to “take Care that the Laws be faithfully

executed”). When taking lands into trust, the Secretary must

ensure the government’s trust obligation is established in

accordance with law.

The Michigan Act limits the Tribe’s use of Fund interest,

and these limitations circumscribe the land that must be taken

into trust by the government. The Act restricts the expenditure

of Fund interest to five uses: “an addition to the principal”; “a

dividend to tribal members”; “a per capita payment to some

group or category of tribal members”; “educational, social

welfare, health, cultural, or charitable purposes which benefit

the [Tribe’s] members”; or “consolidation or enhancement of

tribal lands.” Michigan Act § 108(c). As the Tribe

acknowledges, Section 108(c) lists permissible uses for Fund

interest, which necessarily excludes other uses. Therefore, land

acquired for a use not listed in Section 108(c) would not be

properly acquired with Fund interest such that the Secretary

must take it into trust under Section 108(f).

10

The limited uses for Fund interest contrast with the more

expansive uses for Fund principal. The principal may be

expended when the “[B]oard … determines” it is “reasonably

related to” such general uses as “economic development

beneficial to the [T]ribe” or the “development of tribal

resources.” Id. § 108(b)(1)(A). The principal also may be used

for expenditures that “are otherwise financially beneficial to

the [T]ribe and its members.” Id. § 108(b)(1)(B). The

appropriate expenditures of Fund principal are delineated in

terms that arguably leave substantial discretion to the

determinations of the Board about whether the expenditure is

for a particular use. By contrast, the use of Fund interest in

Section 108(c) makes no mention of the Board’s

determinations, but instead lists five specific uses for which

Fund interest “shall be distributed,” reinforcing that the Tribe

may expend Fund interest exclusively for those uses.

Although both Fund principal and interest and may be used

for the “consolidation or enhancement of tribal lands,” only

lands acquired using Fund interest must be taken into trust.

Compare Id. § 108(f) (lands acquired with interest “shall be

held in trust”), with id. § 108(b)(4) (lands acquired with

principal “shall be held as Indian lands are held”). The Act

constrains the Tribe’s use of Fund interest to certain uses. To

respect the statutory limits on its trust obligation, Interior must

have the authority to verify that the land was legitimately

acquired with Fund interest for the limited uses detailed in

Section 108(c). Cf. Heckman v. United States, 224 U.S. 413,

437 (1912) (explaining with respect to limits on the right of

alienation of tribal property that “the maintenance of the

limitations which Congress has prescribed as a part of its plan

of distribution is distinctly an interest of the United States”).

The government’s obligation to ensure a lawful trusteeship

is particularly salient because the decision to take tribal land

11

into trust implicates an elaborate patchwork of statutory and

regulatory provisions. For instance, the Tribe sought to have

the Sibley Parcel held in trust so that it might build a casino and

develop gaming “if lawfully permitted under [the Indian

Gaming Regulatory Act (“IGRA”)] and under the Tribe’s

tribal-state gaming compact with the State of Michigan.”3 As

the Tribe recognizes, the government’s trust decision

implicates whether the Tribe can conduct gaming under IGRA.

This highlights Interior’s interrelated responsibilities for

enforcing laws regarding tribal affairs.4 Ensuring compliance

with the Michigan Act and the limits it places on land taken

into trust allows Interior to manage its legal obligations

comprehensively and to avoid unnecessary conflicts.

We recognize that the Michigan Act confers broad

independence on the Tribe to administer the Fund in

accordance with statutory requirements, and that the Tribe’s

expenditures are not subject to the approval of the Secretary.

Michigan Act § 108(e)(2). The Secretary’s decision, however,

does not void the Tribe’s purchase of the lands; it simply means

3

Land taken into trust under the Michigan Act might qualify for an

exception to IGRA’s prohibition on casinos on lands a tribe acquired

after its enactment. Compare 25 U.S.C. § 2719(a) (prohibiting

gaming on lands acquired after October 17, 1988), with id.

§ 2719(b)(1)(B)(i) (creating an exception for “lands [that] are taken

into trust as part of … a settlement of a land claim”). We express no

opinion on whether land acquired under the Michigan Act would

trigger IGRA’s exception.

4

The Secretary of the Interior is also charged generally “with the

supervision of public business relating to … Indians.” 43 U.S.C.

§ 1457; see also 25 U.S.C. § 2 (tasking “[t]he Commissioner of

Indian Affairs … under the direction of the Secretary of the Interior”

with “the management of all Indian affairs and of all matters arising

out of Indian relations”) (emphasis added).

12

the land will not be taken into trust.5 The Tribe’s independence

with respect to Fund expenditures does not eliminate the

federal government’s separate and independent trust

obligations. See Jicarilla, 564 U.S. at 181 (“While one purpose

of the Indian trust relationship is to benefit the tribes, the

Government has its own independent interest in the

implementation of federal Indian policy.”). When undertaking

a trust obligation on behalf of the federal government, the

Secretary may confirm that the lands were properly acquired

using Fund interest or income.

The common law of trusts reinforces that Section 108(f)

does not require Interior to take land into trust that the Tribe

acquired contrary to law. Because Section 108(f) imposes a

trust responsibility on the government, background principles

drawn from the common law of trusts may inform our

interpretation. See id. at 177 (explaining we may “look[] to

common-law principles to inform our interpretation of

statutes” governing the government’s trust relationship with an

Indian tribe); United States v. White Mountain Apache Tribe,

537 U.S. 465, 475 (2003) (looking to the common law to

determine the United States’ duties as trustee).

A bedrock principle of trusts is that “[a]n intended trust or

trust provision is invalid if … it is contrary to public policy.”

RESTATEMENT (THIRD) OF TRUSTS § 29(c). If an invalid trust is

5

While this decision may have substantial consequences for how the

Tribe is able to use and develop the land for gaming purposes (a

question on which we take no position), Interior’s decision to decline

the trust relationship does not override the Tribe’s independent

decision to acquire the land using Fund interest. Contrary to the

suggestion of our dissenting colleague, Interior’s verification that

land was acquired for a statutory use before taking such land into

trust does not “condition” the Tribe’s use of Fund interest. See

Dissenting Op. at 3–5.

13

created, “[a] trustee has a duty not to comply with a provision

of the trust that the trustee knows or should know is invalid

because the provision is unlawful or contrary to public policy.”

Id. § 72; see also Fifth Third Bancorp v. Dudenhoeffer, 573

U.S. 409, 428 (2014) (“[T]he duty of prudence, under [a

statute] as under the common law of trusts, does not require a

fiduciary to break the law.”).

These principles support Interior’s interpretation of the

Michigan Act to allow the government to ensure it takes land

into trust only when consistent with the public policy

established by the Michigan Act. Nothing in the Act obliges the

government to assume a trusteeship that would further a

violation of the law. When taking land into trust for the Tribe,

Interior may consider whether the Tribe spent Fund interest for

one of the exclusive uses under Section 108(c) in order to

ensure that the government’s trust relationship is secured on

lawful foundations.

The Tribe raises several arguments in support of its

position that the only condition the Secretary may consider is

whether Fund interest was in fact used to acquire the lands.

According to the Tribe, Section 108(f) requires Interior to take

any lands acquired with Fund interest into trust without regard

to whether the Tribe’s acquisition of those lands comports with

one of the exclusive uses enumerated in Section 108(c).

First, the Tribe maintains that because Section 108(f)

specifies one and only one condition for taking land into trust—

that it be acquired with Fund interest—the Secretary lacks the

authority to verify if the land was acquired for a use enumerated

in Section 108(c). The Tribe attempts to rely on a negative

implication, but such an implication should be drawn only

“when circumstances support a sensible inference” that a term

was deliberately excluded. NLRB v. SW Gen., Inc., 137 S. Ct.

14

929, 940 (2017) (cleaned up). No such inference can be drawn

here because acquiring land with Fund interest is not naturally

associated with the government’s obligation to act lawfully

when assuming trust responsibilities. Moreover, the fact that

Section 108(f) does not explicitly state that the land must be

lawfully or permissibly acquired with Fund interest does not

undermine the fundamental principle that the government must

follow the law. Cf. Staples v. United States, 511 U.S. 600, 605–

06 (1994) (explaining that statutory silence does not undermine

a “firmly embedded” legal principle). A reminder to act

lawfully need not be written into every statutory provision.6

The Tribe focuses myopically on Section 108(f), but Interior

must comply with all relevant laws, including the other

requirements of the Michigan Act.

Second, the Tribe emphasizes that “[a]ny lands acquired

using [Fund] interest … shall be held in trust” and argues that

“any” conveys an expansive meaning. Michigan Act § 108(f)

(emphasis added). We agree. But the expansiveness depends

on what the word “any” modifies, which here is “lands

acquired using [Fund] interest.” Cf. Ali v. Fed. Bureau of

Prisons, 552 U.S. 214, 220 (2008) (looking to what the word

“any” modifies when considering a statute’s meaning). The use

of “any” in this context prohibits Interior from imposing

additional limitations on what land may be taken into trust;

however, it does not eliminate the requirement that Fund

interest be spent only for one of the exclusive uses in Section

108(c). Nor does the term “[a]ny lands acquired” require

6

The dissent would effectively read a limitation into Section 108(f),

precluding the Secretary from ensuring the trust obligation is

established consistent with the Michigan Act. Nothing in the Act,

however, eliminates the Secretary’s “sovereign interest in the

execution of federal law.” Jicarilla, 564 U.S. at 165.

15

Interior to defer to the Tribe when implementing the

government’s trust obligations.

Finally, the Tribe maintains that the Act negates Interior’s

authority to review its acquisition of land because “the

approval of the Secretary for any payment or distribution from

the principal or income of the Self-Sufficiency Fund shall not

be required and the Secretary shall have no trust responsibility

for the investment, administration, or expenditure of the

principal or income of the Self-Sufficiency Fund.” Michigan

Act § 108(e)(2). Relatedly, the Tribe suggests that principles of

tribal sovereignty counsel reading the Michigan Act as leaving

the authority to determine whether a purchase complies with

Section 108(c) to the Tribe.

We agree that Section 108(e) protects the Tribe’s

autonomy to decide how to spend Fund principal and interest

consistent with the terms of the Act; however, no encroachment

on that autonomy occurred here. The Tribe’s Board decided to

use Fund interest to purchase the Sibley Parcel, and it did so

without Interior’s approval or interference. Interior does not

claim the authority to superintend the Tribe’s expenditures, but

Interior has an independent sovereign obligation to evaluate

whether the lands were legitimately acquired using Fund

interest before taking them into trust. By fulfilling the trust

responsibilities under Section 108(f), the Secretary does not

run afoul of either 108(e)(2), which prohibits the government’s

interference with the Tribe’s spending decisions, or the Tribe’s

sovereignty. Nor does Interior’s authority to verify that the

Tribe’s acquisition of land was for a statutory use of Fund

interest transform the mandatory duty to hold lands in trust into

a discretionary one. Interior has no discretion to refuse to hold

lands acquired with Fund interest in trust so long as that

acquisition comported with statutory requirements.

16

The Michigan Act imposes distinct responsibilities on the

Tribe and on Interior. The Tribe maintains the authority to

spend Fund interest for statutory uses, including for the

acquisition of land, and the government may not oversee those

decisions. If the Tribe acquires land with Fund interest,

however, Interior must determine whether its mandatory trust

obligation under Section 108(f) has been triggered. As part of

the determination to hold lands in trust, Interior may evaluate

whether the land was acquired for one of the exclusive uses of

Fund interest in Section 108(c).7

III.

Interior may assess whether the Tribe acquired land with

Fund interest and for a permissible use; however, Interior’s

decision must comport with the Administrative Procedure Act.

The Tribe applied to Interior to have it take the Sibley Parcel

into trust. Interior refused on the ground that the purchase was

not a “consolidation or enhancement of tribal lands.” The Tribe

argues that Interior’s decision was based on an erroneous

reading of the Michigan Act and thus is contrary to law. We

hold that Interior’s interpretation is consistent with the Act. The

mere acquisition of additional land, without any demonstration

that the acquisition improves the quality or value of existing

tribal lands, does not constitute an “enhancement of tribal

lands” within the plain meaning of Section 108(c).

The Tribe may spend Fund interest “for consolidation or

enhancement of tribal lands.” Michigan Act § 108(c)(5).

Because these terms are not defined in the Michigan Act, we

give them “their ordinary, contemporary, common meaning,”

Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (cleaned

7

Because we find no ambiguity in the Michigan Act, we reach

neither Interior’s claim for Chevron deference nor the Tribe’s

argument that the Indian canon requires an interpretation in its favor.

17

up), as informed by the context of the “overall statutory

scheme,” Sturgeon v. Frost, 577 U.S. 424, 438 (2016) (cleaned

up).

“Enhancement” typically refers to a qualitative

improvement, meaning “[t]o raise in degree, heighten, intensify

(qualities, states, powers, etc.).” 5 OXFORD ENGLISH

DICTIONARY 261 (2d ed. 1989); see also BRYAN A. GARNER,

GARNER’s MODERN AMERICAN USAGE 300 (2d ed. 2003)

(explaining that “enhance … should refer to a quality or

condition”); Enhanced, BALLENTINE’S LAW DICTIONARY (3d

ed. 1969) (defining “enhanced” as “[i]ncreased, especially in

value”). Put simply, to enhance is “to make better.” BRYAN A.

GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 317 (3d ed.

2011). To be sure, “enhance” is sometimes defined as

“augmenting,” which typically refers to a quantitative increase.

See Enhancement, BLACK’S LAW DICTIONARY (7th ed. 1999)

(defining “enhancement” as “[t]he act of augmenting”); see

also Augment, 1 OXFORD ENGLISH DICTIONARY 784 (2d ed.

1989) (“[t]o make greater in size, number, amount, degree,

etc.”). But the most common definition is qualitative. This

indicates, as a starting point, that to constitute an “enhancement

of tribal lands,” a purchase would have to make the tribal lands

better and not just add to them.

The text and context of Section 108(c) confirm that the

Michigan Act uses “enhancement” in the ordinary way—

referring to qualitative improvements. The object of

enhancement here is “tribal lands.” The parties agree that

“tribal lands” refers, in some manner, to the Tribe’s real

property.8 In the context of real property, “enhancement” refers

8

The parties disagree about the precise definition of “tribal lands.”

The Tribe maintains it refers generally to “the Tribe’s total

landholdings.” The intervenors suggest that “tribal lands” is a term

of art that refers to lands subject to tribal jurisdiction. We need not

18

to a qualitative improvement, not a quantitative increase. See 5

OXFORD ENGLISH DICTIONARY 261 (2d ed. 1989) (defining

“enhance” in the context of property as “[i]n more recent use,

(of property, etc.) to increase in value or price”).

In other statutes involving Indian lands, Congress has used

“enhancement” to refer to qualitative improvements. For

example, the National Indian Forest Resources Management

Act addresses “the development, maintenance, and

enhancement of Indian forest land in a perpetually productive

state.” Pub. L. No. 101-630, § 305(b), 104 Stat. 4532, 4535–36

(1990) (codified at 25 U.S.C. § 3104(b)(1)). Consistent with

development and maintenance, “enhancement” also refers to

qualitative improvements. And keeping “land in a perpetually

productive state” would not naturally include acquiring

additional land. Moreover, in statutes addressing real property,

Congress frequently lists the “acquisition” and “enhancement”

of property as separate terms, further bolstering the

understanding that the acquisition of land alone is not

equivalent to an enhancement.9 In these varied contexts, all

involving land, the plain meaning of enhancement is qualitative

and distinct from the mere acquisition of additional land.

Furthermore, in statutes addressing tribal land specifically,

Congress commonly uses “acquire” when granting general

determine the precise scope of “tribal lands” as used in the Michigan

Act, however, as the different definitions advanced by the parties all

refer to real property held by a tribe.

9

See, e.g., 16 U.S.C. § 1456-1(f)(4)(C) (referring to “[c]osts

associated with land acquisition, land management planning,

remediation, restoration, and enhancement”) (emphases added); 10

U.S.C. § 2601(e) (providing that the Secretary of a military branch

may accept some gifts “consisting of the provision, acquisition,

enhancement, or construction of real or personal property”)

(emphases added).

19

authority for tribes to purchase land.10 The Michigan Act does

not provide the Tribe with general authority to use Fund

interest to acquire land. Rather the Act specifies that interest

may be used for the “consolidation or enhancement of tribal

lands.” Michigan Act § 108(c)(5). Reading “enhancement” to

include any acquisition or increase in landholdings would

eliminate the more specific use of Fund interest for the

“consolidation or enhancement of tribal lands.”

Finally, the term “consolidation” has a specialized

meaning in the context of tribal lands that precludes

interpreting “enhancement” to include mere acquisitions of

land. To consolidate tribal lands means to join two parcels

under tribal ownership or perhaps to combine the fractionated

ownership interests in a parcel of tribal land.11 The Tribe

concedes that consolidation refers to the acquisition of land or

land interests for these purposes. If we interpreted

“enhancement” to include any land acquisition, it would

swallow the more particular type of land acquisition for

10

See, e.g., Pueblo de San Ildefonso Claims Settlement Act of 2005,

Pub. L. No. 109-286, § 6(b)(2), 120 Stat. 1218, 1221 (providing that

the Pueblo may use settlement funds “to acquire the federally

administered Settlement Area Land” or “at the option of the Pueblo,

to acquire other land”); Fallon Paiute Shoshone Indian Tribes Water

Rights Settlement Act of 1990, Pub. L. No. 101-618, § 103(F)(1),

104 Stat. 3289, 3291 (“The Tribes are authorized to acquire by

purchase … [certain] lands or water rights, or interests therein[.]”);

Seneca Nation Settlement Act of 1990, Pub. L. No. 101-503, § 8(c),

104 Stat. 1292, 1297 (“Land within its aboriginal area in the State or

situated within or near proximity to former reservation land may be

acquired by the Seneca Nation[.]”).

11

See COHEN’S HANDBOOK § 1.07, at 106. Consolidation seeks to

remedy the highly fractionated ownership of tribal lands, which

resulted from the government’s failed allotment policy. Babbitt v.

Youpee, 519 U.S. 234, 237–38 (1997).

20

“consolidation.” We ordinarily avoid interpreting a statute in a

manner that would render a word superfluous or ineffective. If

we adopted the Tribe’s reading of “enhancement” to include

any acquisition of land that increases acreage, then

“consolidation” would do no independent work in the statute.12

The Tribe’s arguments to the contrary fail to comport with

the plain meaning of the Michigan Act. The Tribe maintains

that “enhancement” can refer to a quantitative increase by

analogizing to the term “sentence enhancement” or “enhanced

benefits.” But upon closer inspection, these examples do not

support the Tribe’s interpretation. Although enhancing a

criminal sentence increases the amount of time a person will

serve, that enhancement lengthens an existing sentence but

does not add a new sentence.13 Similarly, an enhancement of

benefits would increase existing benefits, but it would not refer

to adding a new set of unrelated benefits. The Tribe’s examples

confirm that “enhancement” must have a nexus to some

existing thing, whether real property, a criminal sentence, or

welfare benefits. In this appeal, however, the Tribe has not

explained how its acquisition connects, geographically or

12

The Tribe suggests that “consolidation” is not superfluous under

its interpretation because the Tribe might swap a larger piece of land

for a smaller one in order to consolidate lands. For such hypothetical

land swaps to inform Interior’s trust obligation, however, they would

have to involve Fund interest, which seems unlikely. Regardless,

enhancement refers to qualitative improvements in the context of

land.

13

The meaning of enhancement in the sentencing context is unusual.

Unlike the ordinary meaning of enhancement, which is to make

better, the enhancement of a sentence means “to make harsher.”

BRYAN A. GARNER, GARNER’s DICTIONARY OF LEGAL USAGE 317

(3d ed. 2011); BRYAN A. GARNER, GARNER’s MODERN AMERICAN

USAGE 300 (2d ed. 2003) (“[B]ecause enhance has long had positive

connotations, it is a mistake to use it in reference to something bad.”).

21

otherwise, to existing tribal lands. Instead, it has merely

acquired a separate parcel of land.

Finally, the Tribe cannot take refuge in the drafting history

of the Michigan Act or the broad purposes of the statute. The

Tribe contends that Interior’s suggested amendments to a

different section of the Act demonstrate that Interior

understood “consolidation and enhancement” to refer to

acquisitions. But Interior’s purported understanding does not

translate into Congress’ meaning and this bit of “drafting

history is no more legitimate or reliable an indicator of the

objective meaning of a statute than any other form of legislative

history.” Hamdan v. Rumsfeld, 548 U.S. 557, 668 (2006)

(Scalia, J., dissenting). Congress may change language in drafts

for any number of reasons, but the law is only what Congress

enacts. See U.S. CONST. art. I, § 7. The Tribe also maintains

that the purpose of the Michigan Act was to promote the

Tribe’s economic self-sufficiency, and that the Act should be

read to “effectuate its purpose.” Even if we could identify a

single purpose of the Michigan Act, no statute pursues its

purpose at all costs, because legislation invariably includes

trade-offs between different interests. Cf. Landgraf v. USI Film

Prods., 511 U.S. 244, 286 (1994) (explaining that statutes

reflect compromises and do not “pursue a single goal”). The

Michigan Act reflects a negotiated agreement between the

Tribe and the government regarding the settlement of various

land claims, similar to treaties with sovereign tribes.

Particularly in this context, we must decline to unravel a

legislative deal through resort to imputed purposes.

In sum, Interior’s interpretation comports with the plain

meaning of the Michigan Act because an “enhancement of

tribal lands” does not include an acquisition of lands with no

connection to increasing the quality or value of existing tribal

lands. We need not define “enhancement of tribal lands” for all

22

purposes, but we reject the Tribe’s argument that

“enhancement” necessarily includes any acquisition of land.

***

The Michigan Act requires the Secretary of the Interior to

take into trust land acquired with Fund interest, but the Act

does not require the Secretary to violate the law. Therefore,

before taking land into trust, Interior has the authority to

confirm that the Tribe properly acquired the land with Fund

interest for a statutorily permissible use. The Tribe may use

Fund interest for the enhancement of tribal lands, but that does

not include an acquisition of land that merely increases the

acreage of the Tribe’s lands without improving the quality or

value of existing tribal lands.

For the foregoing reasons, we reverse the district court’s

judgment and remand for proceedings consistent with this

opinion.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

This case presents a straightforward exercise of statutory

interpretation. Under the familiar Chevron doctrine, we first

assess whether the Congress’ intent in § 108(f) of the Michigan

Indian Land Claims Settlement Act (MILCSA), Pub. L. No.

105-143, 111 Stat. 2652 (1997), is clear as to the limits of the

Department of the Interior’s (Interior) Secretary’s (Secretary)

review before she takes lands into trust for the Sault Ste. Marie

Tribe of Chippewa Indians (Sault); only if there is ambiguity

does our analysis go further. Eagle Pharms., Inc. v. Azar, 952

F.3d 323, 330 (D.C. Cir. 2020); see Chevron, U.S.A., Inc. v.

Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984). Because

MILCSA unambiguously limits the Secretary’s review to

whether lands were “acquired using amounts from interest or

other income of the Self-Sufficiency Fund,” MILCSA § 108(f),

our analysis should begin and end with the statute’s plain text.

Accordingly, I would affirm the judgment of the district court. 1

We begin with the text, “the most traditional tool” of

statutory interpretation. Eagle Pharms., 952 F.3d at 330

(alteration adopted) (quoting Engine Mfrs. Ass’n v. EPA, 88

F.3d 1075, 1088 (D.C. Cir. 1996)). “Indeed, ‘the preeminent

canon of statutory interpretation requires us to presume that the

legislature says in a statute what it means and means in a statute

what it says there.’” Id. (alterations adopted) (quoting Janko v.

Gates, 741 F.3d 136, 139–40 (D.C. Cir. 2014)). “[W]e ‘cannot

ignore the text by assuming that if the statute seems odd to us

it could be the product only of oversight, imprecision, or

1

Because I would hold § 108(f) unambiguously limits the

Secretary’s review before taking lands into trust to whether such

lands were acquired using Fund income or interest, I would affirm

the district court on that basis and end our analysis there, declining

to conduct additional review of whether the Secretary applied the

correct understanding of MILCSA § 108(c)(5) when she conducted

her unauthorized review of the Sault’s land purchase for compliance

with § 108(c)(5).

2

drafting error.’” Id. at 333 (alteration adopted) (quoting Engine

Mfrs. Ass’n, 88 F.3d at 1088–89). We also look to the statute’s

structure and must interpret it as part of a cohesive regulatory

scheme, if possible, “but ‘reliance on context and structure in

statutory interpretation is a subtle business, calling for great

wariness lest what professes to be mere rendering becomes

creation and attempted interpretation of legislation becomes

legislation itself.’” Id. at 332 (alteration adopted) (quoting

King v. Burwell, 576 U.S. 473, 497–98 (2015)). Extrinsic

materials “have a role in statutory interpretation only to the

extent they shed a reliable light on the enacting Legislature’s

understanding of otherwise ambiguous terms.” Id. at 338

(quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.

546, 568 (2005)).

Section 108(f) states: “Any lands acquired using amounts

from interest or other income of the Self–Sufficiency Fund

shall be held in trust by the Secretary for the benefit of the

tribe.” MILCSA, § 108(f). The district court concluded that

§ 108(f) unambiguously limits the Secretary’s review to

whether the Sault acquired the land using Self-Sufficiency

Fund (Fund) interest or income. Sault Ste. Marie Tribe of

Chippewa Indians v. Bernhardt, 442 F. Supp. 3d 53, 63–73

(D.D.C. 2020). I agree: § 108(f) is unambiguous. Under

§ 108(f)’s plain text, the Secretary “shall”—mandatorily—

hold in trust any lands “acquired using amounts from interest

or other income” of the Fund. MILCSA, § 108(f). There is no

second condition. The Secretary’s review is limited to whether

the land at issue was “acquired using amounts from interest or

other income” of the Fund. Id. The Congress has included

language suggesting additional conditions in similar statutes

but did not do so here. See, e.g., The Gila Bend Indian

Reservation Lands Replacement Act, Pub. L. No. 99-503, 100

Stat. 1798 (1986) (“The Secretary, at the request of the Tribe,

shall hold in trust for the benefit of the Tribe any land which

3

the Tribe acquires pursuant to subsection (c) which meets the

requirements of this subsection.”). Although § 108(f) does not

explicitly deprive the Secretary of authority to review the

Sault’s compliance with § 108(c), it only explicitly authorizes

the Secretary to review whether the land was purchased with

Fund income or interest and directs the Secretary to take land

so purchased into trust.

The plain meaning of § 108(f) is further supported by

§ 108(e)(2), which provides: “Notwithstanding any other

provision of law . . . the approval of the Secretary for any

payment or distribution from the principal or income of the

Self–Sufficiency Fund shall not be required and the Secretary

shall have no trust responsibility for the investment,

administration, or expenditure of the principal or income of the

Self–Sufficiency Fund.” MILCSA, § 108(e)(2). Granted,

spending Fund income or interest differs from approving a trust

application under § 108(f) but § 108(e)(2) makes clear that the

Secretary has no role in approving any payment or distribution

from the income or interest of the Fund and that the Secretary

has no trust responsibility regarding expenditures. Nothing in

these provisions authorizes the Secretary to review the Sault’s

land purchase for compliance with § 108(c) before she takes

the land into trust. Under § 108(e)(2) the Secretary has no

discretion to approve the Sault’s use of Fund income to buy

land under § 108(c). Therefore, if the Sault use Fund income

to acquire land within its understanding of § 108(c), that land

has been acquired using Fund income and the Secretary cannot

review the acquisition beyond ensuring it expended Fund

income. The land was unquestionably acquired using Fund

income and, accordingly, “shall be held in trust by the

Secretary.” MILCSA, § 108(f). Under this statutory scheme,

allowing the Secretary to review the Sault’s land purchase

would allow the Secretary to effectively—and without

authority—condition that purchase. Considered together with

4

§ 108(f)’s clear limitation of the Secretary’s review to whether

the land was acquired using Fund income or interest, I believe

the Congress did not grant the Secretary authority to

independently review the Sault’s compliance with § 108(c)

before taking the acquired land into trust. 2

The structure of the remainder of § 108 also supports this

reading. The Sault Board of Directors (Board)—its governing

body—is made the trustee of the Fund and entrusted with the

spending decisions under MILCSA § 108(a). MILCSA,

§ 108(a). Sections 108(b) and 108(c) direct the Board’s use of

Fund principal (§ 108(b)) and income and interest (§ 108(c)).

Id. §§ 108(b)–(c). Section 108(d) requires that an annual audit

of the Fund be conducted by an independent accountant, which

audit is to be made available to any Sault member; § 108(e)

requires the Secretary to transfer the judgment funds 3 to the

2

Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250,

1261–62 (10th Cir. 2001) supports this understanding of § 108(e)(2)

and § 108(f). In that case, the Secretary adopted the same position

as the beneficiary tribe (the Wyandotte Tribe of Oklahoma) that she

did not have discretion to review whether the acquisition satisfied

other more general fee-to-trust regulations. Addressing an analogous

statute with a dollar amount limitation, the Tenth Circuit found that

the “notwithstanding” language in a similar law enacted for the

benefit of a Native American tribe unambiguously manifests that the

Secretary does not have discretion to decide whether to take into trust

land purchased by the tribe, as long as the land was purchased using

the specified funds. Sac and Fox Nation, 240 F.3d at 1261–62.

3

To compensate the Sault and other tribes for land the United

States government purchased for an “unconscionably low sum,”

Sault Ste. Marie Tribe, 442 F. Supp. 3d at 74, the congressionally-

established Indian Claims Commission awarded the Sault and other

tribes more than $10 million in damages; MILCSA dictates how

these “judgment funds” are to be distributed among the beneficiary

tribes, including the Sault, id. at 58–59.

5

Fund and makes clear she has no approval power regarding

payment or distribution; § 108(f), like § 108(e), directs the

Secretary to act under specified circumstances. Id. §§ 108(d)–

(f). None of these provisions suggests that § 108(c)’s spending

instructions were intended to authorize the Secretary to review

the Sault’s use of Fund income before taking acquired land into

trust.

Granted, § 108(b), which governs the use of Fund

principal, provides that “[t]he principal of the Self–Sufficiency

Fund shall be used exclusively for investments or expenditures

which the board of directors determines” will achieve specified

purposes. Id. § 108(b)(1). And § 108(c) does not contain

similar language providing that the distribution of interest or

income is to be determined by the Board. Id. § 108(c).

Nonetheless, this difference between § 108(b) and § 108(c)

does not render the Secretary’s role under § 108(f) ambiguous.

Section 108(a) gives the Sault Board control of the Fund’s

spending and § 108(b) and § 108(c) provide the Board

guidance in spending the Fund’s principal and income and

interest. Neither § 108(b) nor § 108(c) indicates that the

Secretary is to have any say over the Sault’s use of the Fund

and § 108(e)(2) makes this unmistakably clear. Interior

conceded in district court that the Secretary does not have

authority to review any expenditures of income under

§ 108(c)(1)–(3) notwithstanding those provisions do not

include § 108(b)’s “board of directors determines” language.

Sault Ste. Marie Tribe, 442 F. Supp. 3d at 64, 69. The inclusion

or exclusion of that language alone cannot be read to mean that

the Secretary has the power to review the Sault’s decision or

override § 108(f)’s plain text. If § 108(c)(1)–(3) guide the

6

Sault’s expenditures without the Secretary’s oversight, so too

does the rest of § 108(c). 4

My colleagues are convinced that general trust principles

provide a background against which § 108(f) operates and

therefore, even if the statute does not explicitly allow for the

Secretary’s review, taking land into trust is an exercise of

sovereign governmental authority and the Sault’s reading of

§ 108(f) would force the Secretary to take land into trust even

if that land was acquired contrary to law. Because there is no

“evidence that Congress meant something other than what it

literally said” in § 108(f), I cannot join my colleagues and

depart from the text’s plain meaning. Eagle Pharms., 952 F.3d

at 332–33 (internal quotations omitted). MILCSA

unambiguously gives the Sault the ability to use the Self-

Sufficiency Fund’s income and interest as it sees fit, consistent

with its understanding of § 108(c). MILCSA does not

authorize the Secretary to assess independently the Sault’s use

of Fund income or interest under § 108(c). As the district court

correctly explained, notwithstanding the Secretary has a

general trust obligation to administer the trust in compliance

with the law, “MILCSA gives the Tribe, but not the Secretary,

authority to determine compliance with § 108(c)—that is the

law. Thus, the Secretary violates no fiduciary obligation by

following the letter of § 108(f).” Sault Ste. Marie Tribe, 442

F. Supp. 3d at 71 (emphasis omitted). For these reasons, I

would conclude § 108(f) is unambiguous and affirm the district

court’s decision on that basis.

4

It may be possible for a tribal director to be sued for injunctive

relief even if the Sault itself is insulated by sovereign immunity so

that tribal members themselves would potentially oversee the Sault’s

expenditures under § 108(c). See Sault Ste. Marie Tribe, 442 F.

Supp. 3d at 68 n.10.

7

Even if consideration of general trust principles supported

the conclusion that § 108(f) is ambiguous regarding the

Secretary’s ability to review the Sault’s compliance with

§ 108(c) before taking land into trust—because it does not

unambiguously allow the Secretary to do so—we would then

move to the next step of Chevron. In a traditional statutory

interpretation case, we would defer to the agency’s reasonable

interpretation of the statute. Eagle Pharms., 952 F.3d at 330.

Here, we must also address the intersection between Chevron

and the Indian Canon, which generally provides that in a case

involving Indian law, “statutes are to be construed liberally in

favor of the Indians, with ambiguous provisions interpreted to

their benefit.” Montana v. Blackfeet Tribe of Indians, 471 U.S.

759, 766 (1985). In Cobell v. Salazar we explained that:

Chevron deference can be trumped by the

requirement that statutes are to be construed

liberally in favor of the Indians, with ambiguous

provisions interpreted to their benefit.

Nonetheless, Chevron deference does not

disappear from the process of reviewing an

agency’s interpretation of those statutes it is

trusted to administer for the benefit of the

Indians, although that deference applies with

muted effect. Granted, the Indians’ benefit

remains paramount. But where Congress has

entrusted to the agency the duty of applying,

and therefore interpreting, a statutory duty owed

to the Indians, we cannot ignore the

responsibility of the agency for careful

stewardship of limited government resources.

573 F.3d 808, 812 (D.C. Cir. 2009) (internal citations and

quotations omitted). Cobell suggests that Chevron’s “muted

effect” supersedes the Indian Canon only in limited contexts.

8

Cobell featured one such context. In Cobell, the agency was

responsible for “careful stewardship of limited government

resources”; we rejected an interpretation that would have

prevented Interior from exercising discretion as to the

methodology or scope of an accounting of funds of a trust with

a “unique nature,” id. at 812–13—that is, made up mainly of

“the proceeds of various transactions in land allotted to

individual Indians,” id. at 809 (internal quotations omitted).

This case is distinguishable from Cobell and does not

support Chevron’s application over the Indian Canon, even

with “muted effect.” Cobell involved a trust that required

Interior to conduct an accounting “for the daily and annual

balance of all funds held in trust by the United States for the

benefit of . . . an individual Indian.” Id. (internal quotations

omitted). We allowed Interior some deference to craft how to

“provide the trust beneficiaries the best accounting possible, in

a reasonable time, with the money that Congress is willing to

appropriate.” Id. at 813. On the other hand, here the

Secretary’s duty is relatively straightforward, especially so

when we focus on § 108(f): the Secretary must take land into

trust for the Sault after it purchases such land using income or

interest from the Fund. Further, unlike Cobell—which

involved management of “limited government resources”—the

Secretary’s taking of land into trust for the Sault does not

require management of similarly limited government

resources. Accordingly, the Indian Canon should favor the

Sault’s reasonable interpretation, without deference to the

Secretary’s proposed interpretation, even if that interpretation

is also reasonable.

Interior also asserts that the Indian Canon does not apply

because there are tribes on both sides of the dispute over

interpretation. The Indian Canon is rooted in the general trust

relationship between the United States Government and

9

Indians. Blackfeet Tribe, 471 U.S. at 766. It makes sense that

the Indian Canon defers to the specific tribal beneficiary of a

statute (or a signatory to a treaty) versus a third-party tribe. As

the district court aptly put it, “[i]t would be strange to construe

a statute against the only Tribe it seeks to benefit simply

because another Indian tribe objects.” Sault Ste. Marie Tribe,

442 F. Supp. 3d at 80. Had another beneficiary tribe intervened

and argued that the Sault’s interpretation of § 108 harmed its

MILCSA-protected interest, it would make sense not to defer

to either tribe’s interpretation. Under Interior’s approach, even

if the Sault were joined by all other beneficiary tribes under

MILCSA, and they agreed on the meaning of an ambiguous

MILCSA provision, a third-party tribe’s objection to that

interpretation would nullify the Indian Canon’s applicability.

Therefore, even if § 108(f) is ambiguous, the Sault’s

interpretation of § 108(f) is both permissible and reasonable

and we should follow that interpretation under the Indian

Canon.

Accordingly, I respectfully dissent.