Petition for Writ of Certiorari — Sault Ste. Marie Tribe of Chippewa Indians, Petitioner v. Doug Burgum, Secretary of the Interior, et al.

Supreme Court briefNov 25, 2024

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APPENDICES

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the District of

Columbia Circuit, dated February 4, 2022 ............. 1a

APPENDIX B: Memorandum Opinion of the

United States District Court for the District

of Columbia, dated March 5, 2020 .......................... 33a

APPENDIX C: Order of the United States

District Court for the District of Columbia,

dated March 5, 2020 ................................................. 93a

APPENDIX D: Judgment of the United States

Court of Appeals for the District of

Columbia Circuit, dated June 28, 2024 .................. 95a

APPENDIX E: Memorandum Opinion of the

United States District Court for the District

of Columbia, dated March 6, 2023 ........................ 109a

APPENDIX F: Order of the United States

District Court for the District of Columbia,

dated March 6, 2023 ............................................... 143a

APPENDIX G: Decision of the United States

Department of the Interior, dated July 24,

2017 ........................................................................... 145a

APPENDIX H: Decision of the United States

Department of the Interior, dated January

19, 2017 ..................................................................... 153a

APPENDIX I: Order of the United States

Court of Appeals for the District of

Columbia Circuit denying petition for

rehearing en banc, dated May 27, 2022 ............... 165a

APPENDIX J: Michigan Indian Land Claims

Settlement Act, Pub. L. No. 105-143, § 108,

111 Stat. 2652, 2660 (1997) ..................................... 167a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 20-5123

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

SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS,

Appellee,

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.

Appeals from the United States District Court

for the District of Columbia

(No. 1:18-cv-02035)

Argued March 30, 2021

Decided February 4, 2022

OPINION

* *

Before: HENDERSON and RAO, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion of 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 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.

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 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

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

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”).

with Fund interest, those lands “shall be held in trust by

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

This dispute arises out of Interior’s refusal to take

into trust a parcel of land acquired by the Tribe.

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 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

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 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).

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 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 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).

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)

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(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 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 tribalstate 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

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.

The Secretary of the Interior is also charged generally “with

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

11a

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 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.

§ 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).

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.

12a

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 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.

13a

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.

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

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,

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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 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.

however, eliminates the Secretary’s “sovereign interest in the execution of federal law.” Jicarilla, 564 U.S. at 165.

15a

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.

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

16a

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 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.

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.

17a

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 to a qualitative improvement, not

a quantitative increase. See 5 OXFORD ENGLISH DICTIONARY 261 (2d ed. 1989) (defining “enhance” in the

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

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.

18a

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 authority for tribes to purchase land.10 The

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).

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

19a

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 “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

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. 101503, § 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[.]”).

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).

20a

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 otherwise, to existing tribal lands. Instead, it has merely acquired a separate parcel of land.

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.

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.”).

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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 purposes, but we reject

22a

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.

23a

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

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).

24a

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

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

25a

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 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.

26a

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 § 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)

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.

27a

requires the Secretary to transfer the judgment funds3

to the 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.

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 congressionallyestablished 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.

28a

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 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.

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.

29a

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.

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.

30a

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. 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.

31a

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 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.

33a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 1:18-cv-02035 (TNM)

SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS,

Plaintiff,

DEBRA A. HAALAND, in her official capacity as

United States Secretary of the Interior, et al.,

Defendants,

and

SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, et al.,

Defendant-Intervenors.

Filed March 5, 2020

MEMORANDUM OPINION

“[T]he central, organizing question of Federal

Courts doctrine involves allocations of authority: Who

ought to have authority to give conclusive determinations of which kinds of questions?” Richard H. Fallon,

Jr., Reflections on the Hart & Wechsler Paradigm, 47

Vand. L. Rev. 953, 962 (1994). This case is about who decides whether an Indian tribe acquired land for a permissible purpose—the Federal Government or tribal leaders. Finding that Congress vested tribal leaders with

that decision here, the Court sets aside the Government’s

refusal to take land into trust for the Sault Ste. Marie

Tribe of Chippewa Indians (“Sault” or the “Tribe”).

34a

The Tribe contends that this refusal was contrary to

law and arbitrary and capricious under the Administrative Procedure Act (“APA”). For relief, the Tribe seeks

vacatur of the decision and either an order compelling

the Department to take the land into trust or an order

directing the Department to issue a new decision on an

expedited basis. The Tribe moves for summary judgment. The Department and Intervenors—three commercial casinos (“Casinos”), the Nottawaseppi Huron

Band of the Potawatomi (“NHBP”), and the Saginaw

Chippewa Indian Tribe of Michigan (“Saginaw Tribe”)—

cross-move for summary judgment.

The Court agrees with Sault on the merits. The Department overstepped its authority when it denied

Sault’s request to take land into trust because it believed

the Tribe did not acquire the land for a proper purpose.

Congress gave the Department no role in policing

Sault’s land acquisitions. And in any event, the land acquisition here was for a proper purpose under the relevant statute. The Court declines, however, to order the

Department to take any land into trust or to issue a new

decision on an expedited basis. The upshot is that the

Court will grant in part and deny in part each motion for

summary judgment, vacate the Department’s decision,

and remand to the agency for further proceedings.

Sault is a federally recognized tribe with more than

40,000 enrolled members. A.R. 3113.1 It has a well-documented history. See Sault Ste. Marie Tribe of Chippewa Indians v. United States, 576 F. Supp. 2d 838, 840–

Some pages of the administrative record, as they appear in

the Joint Appendix, have multiple “AR” page numbers in their bottom right-hand corner. For consistency, the Court will use the page

number with the largest font size.

35a

41 (W.D. Mich. 2008). The Tribe descends from a group

of Chippewa bands that occupied a large area in the Upper Great Lakes region. Id. In the nineteenth century,

these ancestors ceded much of their land to the Federal

Government. See Treaty of March 28, 1836 (7 Stat. 491).

Alexis de Tocqueville starkly described the process

by which the Federal Government obtained Indian lands

in Democracy in America. Government envoys would

gather the tribe members together, coax them with

promises of riches in lands undisturbed by European encroachment, and bribe them with trinkets like glass

necklaces and tinsel bracelets. Alexis de Tocqueville,

Democracy in America 403 (Simon & Brown ed. 2013)

(1835-1840). He continues:

If, when they have beheld all these riches, they

still hesitate, it is insinuated that they have not

the means of refusing their required consent,

and that the government itself will not long have

the power of protecting them in their rights.

What are they to do? Half convinced, and half

compelled, they go to inhabit new deserts,

where the importunate whites will not let them

remain ten years in tranquility. In this manner

do the Americans obtain, at a very low price,

whole provinces, which the richest sovereigns of

Europe could not purchase.

Id.

Over a century later, Congress established the Indian Claims Commission to settle tribal land claims

against the United States. See Act of Aug. 13, 1946, Pub.

L. No. 79-726, 60 Stat. 1049, 1050. The Commission

found that the 1836 treaty was “unconscionable.” 26 Ind.

Cl. Comm. 550, 553 (Dec. 29, 1971) (Docket Nos. 18-E and

58). The United States had paid the Chippewa bands

36a

$1.8 million for land worth $12.1 million. Id. As a remedy, the Commission awarded Sault and other tribes

more than $10 million in damages. Id. at 561.

The question remained how to distribute these judgment funds among the beneficiary tribes. The answer

came in the Michigan Indian Land Claims Settlement

Act (“MILCSA”). See Pub. L. No. 105-143, 111 Stat.

2652 (1997). MILCSA is central to this case. Its express

purpose is “to provide for the fair and equitable division

of the judgment funds” among the beneficiary tribes

“and to provide the opportunity for the tribes to develop

plans for the use or distribution of their share of the

funds.” Id. § 102(b). The beneficiary tribes include Sault

and the Bay Mills Indian Community, but not the intervenor tribes. Id. § 104.

Section 108 of MILCSA describes the plan for Sault.

Id. § 105(a)(3). It directs the Secretary of the Interior to

transfer the Tribe’s share into a trust called the “SelfSufficiency Fund.” Id. § 108(a)(1)(A), (e)(1). The Tribe’s

board of directors is the “trustee” of this Fund and “shall

administer the Fund in accordance with the provisions

of” section 108. Id. § 108(a)(2). The “principal” of the

Fund

shall be used exclusively for investments or expenditures which the board of directors determines … (A) are reasonably related to … economic development … development of tribal resources … (B) are otherwise financially beneficial to the tribe and its members … or (C) will

consolidate or enhance tribal landholdings.

Id. § 108(b)(1). The “interest and other investment income” of the Fund, meanwhile,

37a

shall be distributed … (1) as an addition to the

principal of the Fund … (2) as a dividend to

tribal members … (3) as a per capita payment to

some group or category of tribal members designated by the board of directors … (4) for educational, social welfare, health, cultural, or charitable purposes which benefit the members of

the [Tribe] … or (5) for consolidation or enhancement of tribal lands.

Id. § 108(c).

As we will see, the meaning of § 108(c)(5)—specifically, the phrase “enhancement of tribal lands”—is one

of the main issues here. Section 108 also provides that

“[n]otwithstanding any other provision of law,” the Secretary’s “approval … for any payment or distribution

from the principal or income of the [Fund] shall not be

required and [he] shall have no trust responsibility for

the investment, administration, or expenditure of the

principal or income.” Id. § 108(e)(2). Finally, MILCSA

directs that “[a]ny lands acquired using amounts from

interest or other income of the [Fund] shall be held in

trust by the Secretary for the benefit of the tribe.” Id.

§ 108(f). The meaning of § 108(f) is the other main issue

here.

While section 108 of MILCSA takes center stage, it

helps to understand section 107, which establishes the

plan for Bay Mills. Id. § 105(a)(2). Section 107 bears similarities to section 108 but is different in some critical respects. It provides that 20 percent of the tribe’s share

goes into the “Land Trust.” Id. § 107(a)(1). The tribe’s

Executive Council is the “trustee” of the Land Trust and

“shall administer the [Trust] in accordance with” section

107. Id. § 107(a)(2). “The principal of the [Trust] shall

not be expended for any purpose.” Id. § 107(a)(4). The

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Trust’s “earnings,” meanwhile, “shall be used exclusively for improvements on tribal land or the consolidation and enhancement of tribal landholdings through

purchase or exchange.” Id. § 107(a)(3) (emphasis added).

“Any lands acquired with funds” from the Trust “shall

be held as Indian lands are held.” Id. And, as with section 108, “[n]otwithstanding any other provision of law,

the approval of the Secretary of any payment from the

[Trust] shall not be required.” Id. § 107(a)(6).

II.

Sault describes itself as “economically distressed”

and “severely land-starved.” Compl. ¶¶ 18–19, ECF No.

1. Its current trust lands are all in Michigan’s Upper

Peninsula. A.R. 2154. These lands—consisting of 2,200

acres—serve the 15,000 members who live in that region. Id. Despite having no trust lands in Michigan’s

Lower Peninsula, about 14,000 of the Tribe’s members

live there. Id. According to the Tribe, federal policy in

the twentieth century encouraged residents of the rural

Upper Peninsula to relocate to urban areas in the Lower

Peninsula. Id. at 2162–63. Once this failed “Voluntary

Relocation Program” ended in 1975, many members

could not afford to move back to the Upper Peninsula.

Id. at 2163.

By 2012, the Tribe’s situation was “increasingly tenuous.” Compl. ¶ 33. It did not have enough land to serve

its members in either the Upper or Lower Peninsula. Id.

And its revenue from casinos in the “remote areas” of

the Upper Peninsula had declined by 24.5 percent in the

past decade. Id. ¶ 34. This was because of “competition

from the Michigan State Lottery and new casinos in the

Lower Peninsula.” Id.

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To remedy these problems, the Tribe’s board approved a plan to open a casino in the Lower Peninsula.

Id. ¶ 35. The Tribe has been candid from the outset that

its endgame here is to open a casino, if allowed under the

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

§ 2701 et seq. A.R. 3112 n.1. Tribes can build casinos only

on “Indian lands,” 25 U.S.C. § 2710(d)(1), which include

lands that the Government holds in trust for their benefit, id. § 2703(4)(B). As a first step toward a casino, then,

the Tribe needed the Government to take land in the

Lower Peninsula into trust. A simple property purchase

by the Tribe would not suffice. The Tribe thus turned

its attention to MILCSA, which requires the Secretary

of the Interior to take into trust “[a]ny lands acquired

using amounts from interest or other income of the SelfSufficiency Fund.” Pub. L. No. 105-143, § 108(f).

With an eye on MILCSA, the Tribe took steps to acquire a 71-acre plot of land in the Lower Peninsula—the

“Sibley Parcel”—and asked the Secretary to take this

parcel into trust. A.R. 3110, 3114.2 It informed the Department that it would use income from the Self-Sufficiency Fund to purchase the parcel. Id. at 3114.3 It also

assured the Department that the purchase was a proper

expenditure of Fund income. Id. at 3115.

Recall that § 108(c) of MILCSA specifies five purposes for which Fund income “shall be distributed.”

Pub. L. No. 105-143, § 108(c). In the Tribe’s judgment,

The Tribe also submitted a trust application for a 2.69-acre

plot called the “Lansing Parcel.” A.R. 2979, 2983. Sault’s claims for

the Lansing Parcel are now moot. See Order, ECF No. 71.

When it submitted its trust application, the Tribe had a binding right to acquire the Sibley Parcel, and it has since acquired it.

A.R. 3114, 3166.

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its use of Fund income to acquire the parcel was “for consolidation or enhancement of tribal lands,” id. § 108(c)(5),

and “for educational, social welfare, health, cultural, or

charitable purposes,” id. § 108(c)(4). A.R. 3116–19.

But—crucially—the Tribe claimed that its board had exclusive authority to decide that a distribution of Fund

income was for one of these purposes, and thus the Secretary had no authority to conclude otherwise. Id. at

3115–16. The Secretary’s only role under § 108(f) was to

verify that the Tribe had purchased the land using Fund

income. See id.

Still, the Tribe covered its bases. It advanced two

reasons why the purchase was an “enhancement of tribal

lands” under § 108(c)(5). The lead contention was that

“enhance” means “augment,” and acquisition of the parcel augmented its total landholdings “by increasing the

total land [it] possessed.” Id. at 3117. The Tribe

acknowledged, however, that the Department had once

given a different meaning to the term “enhancement” in

section 107 of MILCSA. Id. The Department opined in

2010 that “enhancement” encompasses only those land

purchases that increase the value of existing tribal landholdings. See Letter from Hilary C. Tompkins, Solicitor,

U.S. Dep’t of the Interior, to Michael Gross, Associate

General Counsel, Bay Mills Indian Cmty. 4, 6 (Dec. 21,

2010) (“Bay Mills Opinion”) (A.R. 457, 459).

The Tribe’s alternative argument, then, was that the

acquisition would increase the value of its existing landholdings. A.R. 3118. How so? It all came back to the

casino it hoped to build. See id. A financial officer for

Sault claimed the Tribe would use gaming revenue to

“improve the value of [its] existing land holdings” by

making improvements to existing casinos in the Upper

Peninsula and funding more tribal services. Id. at 2215.

The Director of the Tribal Housing Authority,

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meanwhile, asserted that “increased gaming revenue”

was “the most viable means of increasing housing services availability.” Id. at 2228. And the Tribe had passed

resolutions requiring that it use some of the new gaming

revenues to fund tribal services. Id. at 3094, 3150.

Along these lines, the Tribe also urged that its acquisition of the Sibley Parcel was “for educational, social

welfare, health, cultural, or charitable purposes” under

§ 108(c)(4). Id. at 3119. It reasoned that extra gaming

revenue would enable it to provide additional “social services” for its members in the Lower Peninsula. Id.

More, the acquisition would generate a “land base” and

employment opportunities for those members. Id.

Sault submitted its trust application to the Department in June 2014. A.R. 3110. Over the next two and a

half years, the Department periodically asked for more

information and the Tribe duly supplemented the record. Id. at 812, 833–37, 2242–43, 2229–30. The back-and

forth centered on two issues: (1) the source of the funds

the Tribe used to acquire the parcel and (2) how the purchase would “enhance” tribal lands. See id. The Department also entertained opposition briefs from the State of

Michigan, the NHBP, and the Saginaw Tribe. Id. at 180–

217, 1482–83.

The Department eventually sent Sault an interim

decision in January 2017. Id. at 969–74 (“January Letter”). In its view, the Tribe had to prove both that it

acquired the land with Fund income and that the land

acquisition complied with § 108(c). Id. at 971. And as

matters stood, the Tribe’s acquisition did not comply

with § 108(c). Id. at 971 n.25, 974. It rejected the Tribe’s

argument that the acquisition “enhanced” tribal land by

increasing the Tribe’s total landholdings. Id. at 972. The

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Department reaffirmed its position from the Bay Mills

Opinion that an “enhancement” encompasses only those

land acquisitions that increase the value of existing landholdings. Id. at 972–73. In its judgment, the Tribe’s evidence on that point was wanting. Id. at 973. The Department also dismissed the Tribe’s contention that the

land acquisition was “for educational, social welfare,

health, cultural, or charitable purposes.” Id. at 972 n.25.4

The January Letter did not deny the Tribe’s application outright. Instead, the Department gave the Tribe

another opportunity to present evidence that the land

acquisition was an “enhancement of tribal lands.” Id. at

974. The Tribe responded by asking for either a clarification of what additional evidence the Department required or a final decision denying the application. Id. at

1889. It never submitted additional evidence, id. at 1930

& n.4, and the Department issued a final decision denying the application in July 2017, id. at 1930–33 (“July Letter”).

The July Letter reiterated the Department’s earlier

conclusions and elaborated on the “enhancement” issue.

Id. at 1931. The Tribe had “not offered real estate appraisals or assessments … suggesting that the value of

one tract of land would increase as a result of the acquisition of another.” Id. at 1932. More, the Tribe had

merely offered the “attenuated reasoning” that the acquisition might lead to greater gaming revenues, which

it might then use to increase the value of existing land.

Id. at 1933. Even if the Department could accept this

reasoning, the Tribe had “not offered any evidence of its

The Tribe had also urged that the acquisition was a “consolidation … of tribal lands.” A.R. 3117 n.3. The Department rejected

this argument, id. at 972 n.25, and the Tribe does not pursue it here,

see Compl. ¶¶ 75–81.

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plans to use the gaming revenue to benefit its existing

lands or its members.” Id. Earlier in the letter, the Department noted that the Tribe’s “conclusory statements” were “not evidence.” Id. at 1932 n.16.

In neither the January Letter nor the July Letter

did the Department address whether the Tribe had acquired the parcel using Fund income. There was no need

to do so, in the Department’s view, because the Tribe

had failed to show compliance with § 108(c). Id. at 974,

1932 n.15.

Next, the Tribe filed this suit. It sought vacatur of

the July Letter and an order compelling the Secretary

to take the Sibley Parcel into trust. Compl. ¶ 101(a), (e).

In the alternative, the Tribe sought vacatur and an order

directing the Secretary to resolve, within 90 days,

whether the Tribe acquired the parcel using Fund income. Id. ¶¶ 100, 101(a), (e).

Shortly after the Department answered the Tribe’s

Complaint, the Casinos, the NHBP, and the Saginaw

Tribe all moved to intervene as Defendants. The Court

granted these motions. See Order at 1,5 ECF No. 36. A

flurry of cross-motions ensued. Sault moved for summary judgment. The Department and all Intervenors

cross-moved for summary judgment. These five motions

are ripe, and the Court held a consolidated hearing on

them all.

III.

Summary judgment is normally appropriate only “if

the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment

For documents not in the administrative record, all page citations are to the page numbers that the CM/ECF system generates.

44a

as a matter of law.” Fed. R. Civ. P. 56(a). But this standard does not apply when a court is reviewing a decision

by an administrative agency. Sierra Club v. Mainella,

459 F. Supp. 2d 76, 89 (D.D.C. 2006). Instead, the Court

reviews the agency’s decision under the APA. See id. at

89–90.

When a party challenges agency action under the

APA, “the district judge sits as an appellate tribunal”

and the “entire case on review is a question of law.” Am.

Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.

Cir. 2001) (cleaned up). The Court must “hold unlawful

and set aside” a decision that is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A).

IV.

The Complaint lists three counts. Between Counts

I and II, Sault raises four arguments for vacatur of the

Department’s decision. First, the Secretary had no authority to decide whether the Tribe’s use of Fund income

to acquire the Sibley Parcel complied with § 108(c) of

MILCSA. Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”) at 26–33,

ECF No. 43. Section 108(f), in the Tribe’s view, requires

the Secretary to take land into trust on one—and only

one—condition: that the Tribe acquired the land using

Fund income, rather than some other source of funds.

Id. at 31–32. Second, even if the Secretary had authority

to verify compliance with § 108(c), its interpretation of

“enhancement of tribal lands” was not permissible. Id.

at 33–48. Third, in any event, the Tribe produced evidence that satisfied the Department’s interpretation of

“enhancement,” and the Department acted arbitrarily

and capriciously in ignoring that evidence. Id. at 48–51.

Fourth, the Department wrongly concluded that the

land acquisition was not “for educational, social welfare,

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health, cultural, or charitable

§ 108(c)(4). Id. at 52–53.

purposes”

under

The Court agrees with the Tribe’s first two arguments. The Secretary has no authority to verify compliance with § 108(c) before taking land into trust under

§ 108(f). In any event, the Department applied an impermissible interpretation of “enhancement of tribal lands.”

Either ground alone warrants vacatur of the Department’s decision. See 5 U.S.C. § 706(2)(A). The parties

briefed and argued these issues in the most depth. The

Court therefore need not, and does not, address the merits of the Tribe’s remaining arguments.

The Department’s decision was contrary to law because it misconstrued its authority under § 108(f) of

MILCSA. The Department believed it had authority to

verify (1) that the Tribe acquired the land using Fund

income and (2) that the Tribe’s use of Fund income to

acquire the land was proper under the parameters of

§ 108(c). See A.R. 971. The Tribe insists the Department

had authority to verify only the first—that it acquired

the land using Fund income. Pl.’s Mot. at 31–32.

The text of § 108(f) bears out the Tribe’s interpretation. “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.” Pub. L. No. 105-143, § 108(f). By its plain language, this provision imposes a mandatory duty on the

Secretary to take land into trust on just one condition:

that the Tribe acquired the land “using amounts from interest or other income” of the Fund. One condition

means just one matter for the Secretary to scrutinize.

Congress thus gave the Secretary no authority to

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scrutinize anything else, including whether Sault spent

the income for a proper purpose under § 108(c).

The Department’s contrary reading upends the remainder of section 108, which entrusts spending decisions to the Tribe. The Tribe’s board of directors is the

“trustee” of the Fund. Id. § 108(a)(2). A trustee typically decides how to manage the trust property, here,

the Fund principal and income. See Restatement (Third)

of Trusts § 70 (2007). Congress specified that the Tribe’s

board “shall administer the Fund in accordance with the

provisions” of section 108. Pub. L. No. 105-143,

§ 108(a)(2). These “provisions” include § 108(c), which

lists the purposes for which Fund income “shall be distributed.” Thus, the purposes in § 108(c) are spending

instructions for the Tribe, not the Secretary. So far, so

clear.

But lest there was any doubt about the Secretary’s

role (or lack thereof):

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 SelfSufficiency Fund.

Id. § 108(e)(2) (emphasis added). In stark terms, this

provision strips the Secretary of any say over how the

Tribe spends Fund income under § 108(c). Section 108(f),

of course, counts as “any other provision of law” that

§ 108(e)(2) overrides. Yet the Department believes

§ 108(f) gives it authority to reject a land-to-trust application if it concludes that the land acquisition was an improper use of income under § 108(c). True, rejecting a

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trust application under § 108(f) is different from prohibiting the Tribe from spending the income in the first

place. But this is a distinction without a difference. Either way, the Secretary is purporting to negate the

board’s use of Fund income.

Indeed, the Department and the Casinos—who

strongly reject this reading of § 108(e)(2)—concede that

the agency has no oversight role when the Tribe spends

income for purposes other than land acquisition. See

Mot. Hr’g Tr. at 31–32, 48–49. For example, if the Tribe

chooses to distribute income “as an addition to the principal of the Fund,” Pub. L. No. 105-143, § 108(c)(1), the

Department cannot police whether this “addition” occurred. Matters are different, they insist, when the

Tribe asks the Secretary to take land into trust. See Casinos’ Mot. for Summ. J. (“Casinos’ Mot.”) at 17, ECF No.

45; Mot. Hr’g Tr. at 31–32, 48–49. When that happens,

suddenly the Department can scrutinize the Tribe’s use

of income. If Congress had written the statute this way,

that might have been sensible. Taking land into trust,

after all, is no small matter.

But that is not the statute Congress wrote. Indeed,

one might expect extra clarity if Congress intended the

Department’s role in reviewing expenditures to differ so

dramatically as between land acquisitions and otherwise. This distinction, however, is not at all apparent

from § 108(f) or § 108(e)(2). If anything, the categorical

language of § 108(e)(2) forecloses any distinction.

On the meaning of § 108(e), the Court finds some

guidance in Sac & Fox Nation of Missouri v. Norton, 240

F.3d 1250 (10th Cir. 2001). That case dealt with a law

like MILCSA that Congress enacted for the benefit of

the Wyandotte Tribe of Oklahoma. See Pub. L. No. 98602, 98 Stat. 3149 (1984). The law allocated funds to the

48a

Wyandottes and provided that “$100,000 of such funds

shall be used for the purchase of real property which

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

such Tribe.” Id. § 105(b)(1).

The Wyandottes used these funds to purchase a

tract of land. Sac & Fox, 240 F.3d at 1256. The question

arose whether the Department had a mandatory duty to

take this land into trust. Id. at 1261. The Department

concluded that it did, but other tribes argued against a

mandatory duty, citing the Indian Reorganization Act,

which gives the Secretary general discretionary authority to acquire land in trust. Id. The court affirmed the

Secretary’s interpretation under the first step of Chevron, U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984).6 See

240 F.3d at 1262.

Insofar as § 105(b)(1) by itself was ambiguous, the

Tenth Circuit found a different subsection “resolve[d]

any potential ambiguities.” Id. That other subsection

mirrors § 108(e)(2) of MILCSA: “[N]othwithstanding

any other provision of law, the approval of the Secretary

for any payment or distribution by the Wyandotte Tribe

… of any funds described in subsection (b) … shall not

be required[.]” Pub. L. 98-602, § 105(c)(1). According to

Sac & Fox, this provision “clearly indicates that the Secretary shall have no discretion in deciding whether to

take into trust a parcel of land purchased by the Wyandotte Tribe with Pub. L. 98-602 funds.” 240 F.3d at 1262.

Under the Chevron two-step framework, a court first considers “whether Congress has directly spoken to the precise question

at issue.” Chevron, 467 U.S. at 842. If the statute is unambiguous,

that ends the analysis. See id. at 842–43. If the statute is “silent or

ambiguous,” the court goes on to step two and must uphold an

agency’s interpretation if it “is based on a permissible construction

of the statute.” Id. at 843.

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Sac & Fox thus undercuts the argument that

§ 108(e)(2) does not bear on the Secretary’s authority under § 108(f). See, e.g., Dep’t Mot. for Summ. J. (“Dep’t

Mot.”) at 21, ECF No. 53-1 (“[Sault’s] reliance on § 108(e)

… is … unconvincing because this provision concerns the

scope of Interior’s trust duties regarding the Fund and

not land acquisition.”). The Secretary’s lack of say over

how the Wyandottes distributed funds reinforced the

Secretary’s mandatory duty to take into trust lands that

the tribe had acquired with those funds. Sac & Fox, 240

F.3d at 1262.

To be sure, Sac & Fox was addressing a different

question than the one here. All agree, unlike in Sac &

Fox, that the Secretary’s trust duty under § 108(f) is

mandatory. See, e.g., Dep’t Mot. at 11. The dispute is

about what conditions trigger this mandatory duty. But

similar logic applies. Under § 108(e)(2), the Secretary

lacks a say over how Sault uses its income. This reinforces what is already apparent from § 108(f): the Secretary must take into trust land that the Tribe purchases

with income, even if the Department thinks this use of

income violated § 108(c).7

The Casinos insist that under the Tribe’s reading of

§ 108(e)(2), this provision would also strip the Department of any

authority to second-guess whether the Tribe in fact used Fund income to acquire the land. Casinos’ Reply at 7, ECF No. 60. Yet the

Tribe concedes that the Department can question it on this point.

See Pl.’s Mot. at 31–32. The Casinos’ proposed analogy fails. The

mandatory duty under § 108(f) applies only to “lands acquired using

amounts from interest or other income.” This provision says nothing about the purposes for which Sault acquired the land. Verifying

whether the Tribe used income to acquire land does not give the

Department a say over how the Tribe spends income, so § 108(e)(2)

does not override the Department’s authority to verify the sole precondition in § 108(f).

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Sac & Fox is instructive for another reason. The

court characterized the Indian Reorganization Act of

1934 as granting the Secretary “broad discretion … to

decide whether to acquire land in trust on behalf of Indian tribes.” 240 F.3d at 1261. Against this background

of discretion, Congress imposed a mandatory trust duty

in § 108(f). Yet allowing the Department to police compliance with § 108(c) would give it much discretion, particularly if the Court were to agree that the purposes in

§ 108(c) are susceptible to different interpretations. See

Dep’t Mot. at 27. The Department’s interpretation thus

transforms the mandatory duty in § 108(f) into something that looks much more like a discretionary power.

This interpretation “inadequately accounts” for Congress’s decision to use mandatory language in § 108(f).

See Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 174 (2012).

In sum, section 108 creates a scheme with two basic

parts. The first part is all about the Fund and the Tribe’s

role in administering the Fund. This part mentions the

Secretary only twice. See Pub. L. No. 105-143, §

108(a)(1)(A), (e). It directs the Secretary to transfer

Sault’s share of judgment funds into the Self-Sufficiency

Fund, id. § 108(a)(1)(A), (e)(1), and then divests the Secretary of any authority over how the Tribe administers

the Fund, id. § 108(e)(2). Section 108(c), meanwhile, concerns (1) Fund income and (2) the purposes for which the

Tribe can distribute this income.

If the Tribe uses income to acquire land, the Secretary’s trust duty under § 108(f) comes into play. This is

the second basic part of section 108, and it concerns the

Secretary’s role. In defining this role, Congress mentioned only one of the two components in § 108(c): use of

Fund income. It did not mention anything about the purposes for which Sault used the income. The Secretary’s

51a

role thus has nothing to do with this second component

of § 108(c).

Yet the Department and Intervenors insist that

§ 108(f) gives the Secretary a role in policing the Tribe’s

compliance with this second component of § 108(c). Notably, few of their objections focus on the actual language of § 108(f). And those that attempt to do so end

up relying on words that are absent from this provision.

The Department insists, for example, that since the

mandate in § 108(f) “applies only to lands acquired pursuant to § 108(c), which in turn limits the purposes for

which Fund income can be used,” the Secretary must

necessarily verify “that the use of Fund income satisfies

a purpose in § 108(c)(1)–(5).” Dep’t Mot. at 21–22 (emphasis added). In a similar vein, the Casinos urge that

“just as the Secretary may concededly deny trust status

if an acquisition was not funded with interest, he may,

for the same reason, deny trust status because the acquisition was not funded through a statutorily permissible

use of interest.” Casinos’ Mot. at 13.

There is simply no textual hook in § 108(f) for the

authority that the Department claims. MILCSA does

not define the Secretary’s trust duty in terms of land

“permissibly” acquired or land “acquired pursuant to

§ 108(c).” Congress knows how to define the Secretary’s

role in these terms when it wishes. Consider the wording of a different land-into-trust statute. See Gila Bend

Indian Reservation Lands Replacement Act (“Gila

Act”), Pub. L. No. 99-503, 100 Stat. 1798 (1986). The Gila

Act authorizes a tribe “to acquire by purchase private

lands in an amount not to exceed, in the aggregate,

[9,880] acres.” Id. § 6(c). And the Secretary, “at the request of the Tribe, shall hold in trust for the benefit of

the Tribe any land which the Tribe acquires pursuant to

subsection (c) which meets the requirements of this

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subsection.” Id. § 6(d) (emphasis added). The “requirements” of subsection (d) (“this subsection”) include that

the land “constitutes not more than three separate areas

consisting of contiguous tracts.” Id.

Section 6(d) contains two sorts of clauses that Congress conspicuously did not include in § 108(f) of

MILCSA: (1) “which the Tribe acquires pursuant to subsection (c)” and (2) “which meets the requirements of

this subsection.” If § 108(f) had directed the Secretary

to take into trust “land acquired pursuant to § 108(c),”

the Department would have a stronger argument for authority to verify compliance with § 108(c). After all, if

the Tribe did not acquire the land for any of the purposes

in § 108(c), it did not acquire the land “pursuant to” that

subsection.8 And the Department’s argument would be

even stronger if Congress had instructed the Secretary

to take into trust “land whose acquisition meets the requirements of § 108(c).”9

In other words, Congress knows how to define the

Secretary’s trust duty in terms of a land acquisition that

meets certain requirements—including the requirements of a separate subsection. But Congress did not

say anything in § 108(f)—the subsection that defines the

Just consider how the phrase “pursuant to” functions in the

Gila Act. Section 6(c) authorizes the Tribe to purchase private lands

in an amount not to exceed 9,880 acres. So the purchase of acre

number 9,881 would not be “land which the Tribe acquires pursuant

to subsection (c).” Pub. L. No. 99-503, § 6(d).

Again, consider how the phrase “which meets the requirements of this subsection” functions in the Gila Act. “Land meets the

requirements of this subsection only if it constitutes not more than

three separate areas consisting of contiguous tracts[.]” Pub. L. No.

99-503, § 6(d). So if the Tribe acquired land consisting of four separate areas, the land would not meet subsection (d).

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Secretary’s role—about land acquisitions that meet the

requirements of § 108(c). That is powerful evidence

against the Department’s interpretation. See Russello

v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”

(cleaned up)); Azar v. Allina Health Servs., 139 S. Ct.

1804, 1813 (2019) (applying Russello’s principle in a comparison of two different statutes).

But, one Intervenor presses, if the Department has

no role in policing compliance with § 108(c), the requirements in that subsection would be “wholly meaningless.”

Casinos’ Mot. at 13. “There would have been no reason

for Congress to allow the use of [income] only for certain

purposes, if it intended to make trust status available for

land purchased for any purpose.” Id. To show the apparent absurdity of Sault’s interpretation, the Casinos

posit a hypothetical in which the Tribe shamelessly admits that it did not purchase land for any of the purposes

in § 108(c), but still demands that the Department take

the land into trust. Id. at 18.

Statutory requirements are not “wholly meaningless” simply because a federal agency has no power to

enforce them. For one, “an agency literally has no power

to act … unless and until Congress confers power upon

it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374

(1986). So just because a statute imposes requirements,

a federal agency does not automatically get to enforce

those requirements. For example, the Civil Service Reform Act of 1978 imposed requirements on an Office of

Special Counsel relating to investigations of alleged reprisals against whistleblowing. Wren v. Merit Sys. Prot.

Bd., 681 F.2d 867, 871–72 (D.C. Cir. 1982). But at the

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same time, the Merit Systems Protection Board had “no

… authority to enforce these statutory requirements.”

Id. at 872. Congress has enacted other schemes that rely

on self-policing. See Contemporary Media, Inc. v. FCC,

214 F.3d 187, 193 (D.C. Cir. 2000) (“The FCC relies heavily on the honesty and probity of its licensees in a regulatory system that is largely self-policing.”). Indeed, the

Casinos admit the Department has no authority to police

compliance with the first three subparagraphs of

§ 108(c), yet they do not claim that these subparagraphs

are “wholly meaningless.” See Mot. Hr’g Tr. at 48–49.

Under Sault’s interpretation, § 108(c) has meaning

because it constrains how the Tribe chooses to spend

Fund income. Section 108(a)(2) provides that the Tribe’s

board “shall administer the Fund in accordance with the

provisions of this section.” So MILCSA envisions that

the Tribe will adhere to the restrictions in § 108(c).

Whether these restrictions are legally enforceable is

separate from whether they have meaning. See Wren,

681 F.2d at 872 (“[I]f the [Office of Special Counsel] fails

to perform its statutory duties, as here, relief—if it lies

at all—must be sought in a separate action in the district

court to compel the OSC to perform its statutory duties.”

(emphasis added)); see also Nielsen v. Preap, 139 S. Ct.

954, 983 (2019) (Breyer, J., dissenting) (describing the

plurality’s reliance on cases “holding certain statutory

deadlines unenforceable,” and citing these cases). The

Court thus need not resolve whether and how § 108(c) is

legally enforceable against the Tribe’s board.10 The

When pressed on enforcement mechanisms, Sault posited

that tribal members likely would have a claim against the directors

if, for example, they gave all the Fund income to themselves. Mot.

Hr’g Tr. at 11–12. As Sault pointed out, the statute contains a provision that could allow tribal members to spot any self-dealing. Under this provision, the Fund’s “books and records” are subject to an

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Tribe ignores a “thou shalt” directive from Congress at

its peril. The Department is not the only floorman on the

job.

This understanding of § 108(c) as self-policing dovetails with principles of tribal sovereignty. Indian tribes

are “domestic dependent nations that exercise inherent

sovereign authority.” Michigan v. Bay Mills Indian

Cmty., 572 U.S. 782, 788 (2014) (cleaned up). A tribe’s

inherent sovereign authority encompasses “extensive

powers over [its] property.” Cohen’s Handbook of Federal Indian Law § 4.01[2][c] (2019). And “courts will not

lightly assume that Congress in fact intends to undermine Indian self-government.” Bay Mills, 572 U.S. at

790. A scheme that gives the Department no role in policing how tribal property “shall be distributed” accords

with tribal self-government.

The Casinos’ appeal to absurdity also falls short.

They face “a high bar.” Stovic v. R.R. Ret. Bd., 826 F.3d

500, 505 (D.C. Cir. 2016). “The Supreme Court has

equated an absurdity with an outcome so bizarre, illogical, or glaringly unjust that Congress could not plausibly

have intended that outcome.” Id. (cleaned up). The Casinos fail to clear this bar. MILCSA was a special provision for the benefit of select tribes, including Sault. The

Tribe claims, and no party disputes, that this legislation

represents “a negotiated compromise between sovereigns to remedy decades of failure by the federal

annual audit and any tribal member can inspect the audit report.

Pub. L. No. 105-143, § 108(d)(2). The Department, for its part, questioned the ability of tribal members to enforce § 108(c), noting that

MILCSA contains no waiver of sovereign immunity. Mot. Hr’g Tr.

at 33. Sovereign immunity, though, would not to apply to individual

tribal members or officials. See Michigan v. Bay Mills Indian

Cmty., 572 U.S. 782, 796 (2014).

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government to compensate tribes for the nineteenthcentury taking of their lands.” Pl.’s Reply at 49, ECF

No. 56.

The Indian Claims Commission had rendered judgments “in favor of the Sault [Tribe]” and other tribes.

Pub. L. No. 105-143, § 102(a)(1). The Department had

been holding on to the judgment funds “pending a division … among the beneficiaries in a manner acceptable

to the tribes … and pending development of plans for the

use and distribution of the respective tribes’ share.” Id.

§ 102(a)(2). That “division” and “development of plans”

came in MILCSA. See id. § 102(b) (“It is the purpose of

this title to provide for the fair and equitable division of

the judgment funds among the beneficiaries and to provide the opportunity for the tribes to develop plans for

the use and distribution of their share of the funds.”).

MILCSA, then, is a restitution scheme, not a regulatory scheme, and one that Sault helped negotiate for

itself. See Pl.’s Reply at 41, 49; Mot. Hr’g Tr. at 12–13.

It returns to the Tribe its rightful funds. It provides no

set of rules for the Tribe to follow and for the Secretary

to enforce against the Tribe. Given all this, Sault’s understanding of the statute is far from absurd. It is reasonable that the statute would leave it to the Tribe—and

not the Department—to determine whether expenditures of its own funds fall within certain parameters. It

is also sensible that the Tribe would negotiate an arrangement that assumes good faith on its part. This explains the absolute phrasing of § 108(f)—the scheme

trusts that any land the Tribe acquires using Fund income will be land that the Tribe acquires within the

bounds of § 108(c).

The objections continue. The Department and the

NHBP lean heavily on a slight textual distinction

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between § 108(b) and § 108(c). Subsection (b) states that

Fund principal “shall be used exclusively for investments or expenditures which the board of directors determines … will consolidate or enhance tribal landholdings … .” Pub. L. No. 105-143, § 108(b) (emphasis added).

Subsection (c), by contrast, directs that Fund income

“shall be distributed … for consolidation or enhancement

of tribal lands … .” Id. § 108(c). It does not use the

phrase “which the board of directors determines.” The

Department and Intervenors say this omission belies

Sault’s claim that its board has exclusive authority to determine compliance with § 108(c). Dep’t Mot. at 21;

NHBP’s Mot. for Summ. J. (“NHBP’s Mot.”) at 16–17,

ECF No. 49.

The problem with this argument is three-fold. First,

whatever § 108(c) says, § 108(a)(2) entrusts spending decisions to the Tribe, as discussed above. The Tribe’s

“board of directors” is the “trustee” of the Fund and

“shall administer the Fund in accordance with the provisions” of section 108. Pub. L. No. 105-143, § 108(a)(2).

These “provisions” include § 108(b) and § 108(c), which

explain how Fund principal “shall be used” and how

Fund income “shall be distributed.” So just through

§ 108(a)(2), the instructions in § 108(c) about how income

“shall be distributed” are instructions for the Tribe. And

recall that the Department concedes that it has no authority to oversee distributions of income for the purposes in the first three subparagraphs of § 108(c). Mot.

Hr’g Tr. at 31–32.

Second, § 108(c) does not mention the Secretary either. Indeed, as discussed, § 108(e) clarifies that the Secretary has no say over the Tribe’s spending decisions. So

even if the Tribe has non-exclusive authority to determine compliance with § 108(c), it is not the Secretary

that shares this authority. Who might? Consider again

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the example of a tribal member suing the directors over

an expenditure (assuming sovereign immunity would

not bar suit, see supra note 10). If the member challenged an expenditure of principal, perhaps a court

would defer to the board’s determination that the expenditure falls within the parameters of § 108(b). But if

the member challenged a use of income, a court might

sensibly not defer to the board’s assertion of compliance

with § 108(c), given the slight textual contrast with

§ 108(b).

Third, the focus on § 108(b) versus § 108(c) deflects

from the provision at issue, § 108(f). Section 108(f) calls

for a single inquiry by the Secretary, whether the Tribe

acquired the lands “using amounts from interest or other

income” of the Fund. It does not invoke § 108(c) by saying, for example, “land acquired under § 108(c)” or “land

acquired pursuant to § 108(c).” If it did, the distinction

between § 108(b) and § 108(c) might be relevant.

The Tribe, presumably, would still contend that the

Department cannot substitute its judgment, citing the

provisions in MILCSA that entrust spending decisions

to its board. But the Department could claim—with

some force—that the lack of “which the board of directors determines” in § 108(c) means it does not have to

take the Tribe’s word that expenditures to acquire land

were “under § 108(c)” or “pursuant to § 108(c).”

The Department next contends that the Court

should read § 108(f) “in conjunction with Interior’s general authority statutes,” which give the Secretary of the

Interior “responsibility over matters pertaining to Indian tribes.” Dep’t Mot. at 22. It cites three of these

“general authority statutes.” Id. One charges the Secretary “with the supervision of public business relating

to … Indians.” 43 U.S.C. § 1457(10). Another entrusts

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the “management of all Indian affairs” to the Commissioner of Indian Affairs, who works “under the direction

of the Secretary.” 25 U.S.C. § 2. And the third authorizes the President to “prescribe such regulations as he

may think fit for carrying into effect the various provisions of any act relating to Indian affairs.” 25 U.S.C. § 9.

The Department’s reliance on these statutes proves

too much. They do not give the Secretary power to do

whatever he wants in matters of Indian affairs. This

would contradict the many statutes, including MILCSA

itself, that impose mandatory duties on the Secretary,

see Pub. L. No. 105-143, § 108(e)(1), and prohibit him

from taking certain actions, see id. § 108(e)(2). Here, the

“[n]otwithstanding any other provision of law” clause in

§ 108(e)(2) explicitly overrides any authority the Secretary otherwise might have—including from generally

applicable statutes—when it comes to policing how this

Tribe spends its Fund income.

Even setting aside § 108(e)(2), the general authority

statutes are exactly that—general. They merely prompt

the question of what “management” of Indian affairs entails. Statutes like MILCSA fill in the details. So, under

MILCSA, part of the Secretary’s management role is to

take into trust any lands the Tribe acquires using Fund

income. Id. § 108(f). The question is what specific authority the Secretary has under § 108(f). It is circular to

go back to the general statutes to determine the extent

of this authority.

Apparently recognizing that its focus should be

more granular, the Department insists that MILCSA is

one of many “mandatory acquisition statutes” that require it to make “eligibility determinations” before taking land into trust. Dep’t Reply at 9–10, ECF No. 62. It

points to a section of the Indian Land Consolidation Act,

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see 25 U.S.C. § 2216(c), as an example. Dep’t Reply at 9.

A look at that statute, however, reveals a telling contrast with MILCSA, much like the contrast between

MILCSA and the Gila Act, see supra:

[A] … tribal government … in possession of an

interest in trust or restricted lands, at least a

portion of which is in trust or restricted status

on November 7, 2000, and located within a reservation, may request that the interest be taken

into trust by the Secretary. Upon such a request, the Secretary shall forthwith take such

interest into trust.

25 U.S.C. § 2216(c). This structure noticeably differs

from § 108(f). Before taking an interest into trust, the

Secretary must verify that the tribe has made “such a

request.” And, under the first sentence, the tribe has

not made “such a request” if, for instance, the interest is

located outside a reservation. So the Secretary likely

must verify, before exercising his mandatory trust duty,

that the interest is “located within a reservation.”

Section 108(f) of MILCSA would be comparable if it

said something like this: “If the Tribe acquires land in

conformity with § 108(c), it may request that the Secretary take the land into trust, and the Secretary, upon

such a request, shall take the land into trust.” Under

this language, if the Tribe did not acquire land in conformity with § 108(c), an application to take that land

into trust would not be “such a request,” likely leaving

the Secretary free to deny the application. But, of

course, § 108(f) says nothing of the sort.

Consider also the Fallon Paiute Shoshone Indian

Tribes Water Rights Settlement Act (“Fallon Act”), another statute that the Department cites. Dep’t Mot. at

10; see Pub. L. No. 101-618, 104 Stat. 3289 (1990). It

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provides that the Fallon tribes may use income from a

settlement fund for “[a]cquisition of lands, water rights

or related property interests located outside the Reservation from willing sellers, and improvement of such

lands.” Pub. L. No. 101-618, § 102(C)(1)(e). And it instructs that “[t]itle to all lands, water rights and related

property interests acquired under section 102(C)(1)(e)

within the counties of Churchill and Lyon in the State of

Nevada, shall be held in trust by the United States.” Id.

§ 103(A) (emphasis added).

The difference between this language and § 108(f) of

MILCSA is stark. If § 108(f) said “lands acquired under

§ 108(c)” instead of “land acquired using amounts from

interest or other income,” the Department’s claim of authority would be stronger. If the Tribe acquired land

outside the parameters of § 108(c), it likely did not acquire it “under § 108(c).”

In short, the Department’s citations to other “mandatory acquisition statutes” show simply that Congress

phrases them in different ways. The differences between MILCSA and the Gila Act, the Indian Land Consolidation Act, and the Fallon Act are instructive, and

they support Sault’s interpretation of § 108(f).

Two additional objections run far afield of MILCSA,

let alone § 108(f). The Casinos argue that “background

principles of trust” support the Department’s claim of

authority. Casinos’ Mot. at 15. Specifically, as a future

trustee of the Tribe’s land, the Secretary “is bound by

basic fiduciary obligations—including, axiomatically, the

foundational duty to ensure that the trust is administered in compliance with the law.” Id. at 16. The Casinos

cite no statutory authority for this obligation. See id. at

15–16; Casinos’ Reply at 8–9, ECF No. 60. That is a

problem for them, because the Government’s fiduciary

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obligations to tribes are “defined and governed by statutes rather than the common law.” United States v.

Jicarilla Apache Nation, 564 U.S. 162, 174 (2011). The

Casinos have no response to the Tribe’s citation to

Jicarilla. See Casinos’ Reply at 8–9.

Even if the Department does have a general “background” obligation to administer the trust in compliance

with the law, that just raises what “compliance with the

law” entails. 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).

Most creatively, the NHBP protests that under

Sault’s interpretation, § 108(f) would violate the Appointments Clause of the Constitution, art. II, § 2, cl. 2.

NHBP’s Mot. at 18–19. How so? Because § 108(f) would

be “an unconstitutional congressional delegation to the

Sault Tribe’s board of directors of the function of taking

land into trust.” Id. at 18. This argument—which the

NHBP did not pursue in its reply brief, see NHBP’s Reply at 6–9, ECF No. 63—is unconvincing. To start, it relies on the incorrect premise that the Tribe has “the

function of taking land into trust.” All agree that § 108(f)

delegates to the Secretary the duty to take land into

trust. The Tribe gets the ball rolling when it acquires

land under § 108(c), but the trust duty still lies with the

Secretary. And all agree that § 108(f) requires the Secretary to verify that the Tribe in fact used Fund income.

The Secretary must therefore take a step in between the

Tribe’s acquisition of land and the final act of taking the

land into trust. The Tribe thus does not have “the function of taking land into trust.”

The NHBP also fails to cite any clear authority supporting its constitutional argument. The best it can

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muster is an out-of-circuit decision opining that a statute

allowing “a state governor to have land taken in trust by

the Federal Government” would “no doubt run afoul of

the Appointments Clause.” Confederated Tribes of

Siletz Indians of Or. v. United States, 110 F.3d 688, 698

(9th Cir. 1997).

But there is authority going the other way. The Department of Justice’s Office of Legal Counsel, relying on

Supreme Court precedent, has long held that the Appointments Clause “simply is not implicated when significant authority is devolved upon non-federal actors.”

The Constitutional Separation of Powers Between the

President and Congress, 20 O.L.C. 124, 145 (1996) (citing

United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1868)).

Perhaps that is why the Department did not discuss the

Appointments Clause either in its final agency decision

or here. And whatever the implications of the Appointments Clause for state actors, the Supreme Court has

upheld delegations of federal authority to Indian tribes.

See United States v. Mazurie, 419 U.S. 544, 546 (1975).

As a last resort, the Department pleads for deference under Chevron. See Dep’t Mot. at 23. The Tribe

suggests that the Chevron framework does not apply to

§ 108(f). See Pl.’s Reply at 25. Why? Because Congress

gave the Department a largely “ministerial” role in

§ 108(f). See Mot. Hr’g Tr. at 26–28. But that is the conclusion the Tribe wants the Court to reach on the meaning of § 108(f), so it is somewhat circular to cite this as

why the Chevron framework does not apply at all. For

their part, the Department and the Casinos invoke decisions that applied the Chevron framework to other landinto-trust statutes. See, e.g., Confederated Tribes of

Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552, 558–

59 (D.C. Cir. 2016).

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Even if the Chevron framework applies to § 108(f),

the Department does not get deference here. A court

does not defer to an agency’s interpretation of a statute

if that interpretation contradicts the unambiguous

terms of the statute. See Chevron, 467 U.S. at 842–43.

And, for all the reasons given, § 108(f) is unambiguous—

it grants the Department no authority to verify the

Tribe’s compliance with § 108(c).11 More, § 108(f) is not

“ambiguous” or “silent” under Chevron just because it

does not affirmatively disavow the Department’s authority on this score. See Ry. Labor Execs.’ Ass’n v.

Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994)

(“To suggest … that Chevron step two is implicated any

time a statute does not expressly negate the existence of

a claimed administrative power (i.e. when the statute is

not written in ‘thou shalt not’ terms), is … flatly unfaithful to the principles of administrative law[.]”).12

More, even if § 108(f) is “ambiguous” or “silent” on

whether the Department has authority to police the

Tribe’s compliance with § 108(c), the Department likely

would still lose. When Congress enacts a statute for the

benefit of a tribe, the Indian canon of construction

These reasons include the Court’s responses to the objections based on IGRA and Sault’s gaming compact with Michigan.

See infra Section IV.C.

The Casinos suggest that the Tribe “waived” its “no-deference” argument “by failing to raise it in its Opening Brief.” Casinos’

Reply at 9 n.1. They are right that the Tribe’s opening brief omitted

any mention of Chevron on the § 108(f) issue. See Pl.’s Mot. at 26–

33. But the Tribe’s argument was—and remains—that § 108(f) is

unambiguous. See id. at 27–29. This is the same as saying that the

Tribe wins under Chevron’s first step. See Chevron, 467 U.S. at

842–43. The Tribe had no need to address the entire Chevron framework until the Department claimed Chevron deference in its opening brief, which came after the Tribe’s opening brief.

65a

trumps Chevron deference and requires that courts defer to the tribe’s reasonable interpretation of any ambiguity. See Muscogee (Creek) Nation v. Hodel, 851 F.2d

1439, 1445 & n.8 (D.C. Cir. 1988); infra Section IV.B. At

a minimum, the Tribe’s interpretation of § 108(f) is reasonable.

As we will see, the Indian canon permits an alternative holding for the proper interpretation of “enhancement of tribal lands” in § 108(c)(5). See infra Section

IV.B. Having invoked the Indian canon for § 108(c)(5),

the Tribe surprisingly failed to invoke it for § 108(f). See

Pl.’s Mot. at 26–33; Pl.’s Reply at 16–32. But the Court

sees no reason why the canon would not likewise permit

an alternative holding for the § 108(f) issue: insofar as

this provision is ambiguous, the Court should defer to

the Tribe’s reasonable interpretation of it. And under

Sault’s reasonable interpretation, the Department had

no authority to deny the trust application on the ground

that the Tribe did not acquire the Sibley Parcel for any

purpose that appears in § 108(c).

In any event, the Tribe did acquire the Sibley Parcel

for a purpose that appears in § 108(c): the “enhancement

of tribal lands,” Pub. L. No. 105-143, § 108(c)(5). The Department’s contrary conclusion rested on an erroneous

interpretation of this phrase. This is a separate and independently adequate reason for vacating the Department’s decision.

All agree that “enhancement of tribal lands” encompasses land acquisitions. The dispute is about what

types of land acquisitions count. The Department says

the phrase encompasses only those land acquisitions that

“make greater” the value of the Tribe’s existing landholdings. See Dep’t Mot. at 25–27. The Tribe contends

66a

that the phrase reaches further, covering any land acquisitions “that increase the Tribe’s total land base.” Pl.’s

Mot. at 33.

The Tribe is correct: “enhancement of tribal lands”

unambiguously includes any land acquisition that increases the Tribe’s total landholdings. The Department

erred by concluding that this phrase encompasses only

land acquisitions that increase the value of existing landholdings.

MILCSA does not define “enhancement,” so the

Court looks to the word’s ordinary meaning. Mohamad

v. Palestinian Auth., 566 U.S. 449, 454 (2012). The parties point to several dictionaries that define “enhance” in

virtually identical ways. See Pl.’s Mot. at 33–34. Two are

representative. The Department relies on a dictionary

that defines “enhance” as “to make greater, as in cost,

value, attractiveness, etc.; heighten; intensify; augment.” Dep’t Mot. at 27 (quoting Webster’s New Twentieth Century Unabridged Dictionary (2d ed. 1979)).

This is the definition the Department used in its Bay

Mills Opinion, A.R. 457, and then adopted in its final decision here, id. at 1931. Sault, meanwhile, defines “enhance” as “[t]o make greater, as in value, beauty, or reputation; augment.” American Heritage Dictionary 611

(3d ed. 1996). Other dictionaries agree. See, e.g., Webster’s Second New International Dictionary 849 (2d ed.

1950) (“To advance, augment, or elevate[;] To make

greater, as in value or desirability.”).

The import of these definitions is clear: “enhancement” means some sort of increase or augmentation; one

example is an increase in value. The definitions are nonexhaustive—they leave open the possibility of other

types of increases. The question, then, is whether an

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increase in the size, number, or amount of something

counts—in other words, a quantitative increase.

The answer is yes. Consider criminal sentencing, an

area where courts often encounter variations on the

word “enhance.” In this context, Congress has used the

phrase “enhanced punishment,” 18 U.S.C. § 924(c)(1)(A),

(c)(5), and the Supreme Court has referred to an “enhanced sentence,” Apprendi v. New Jersey, 530 U.S. 466,

475 (2000). The word “enhancement” pervades the U.S.

Sentencing Guidelines. In this context, everyone understands that an “enhancement” means a quantifiable increase in a criminal sentence.

The ordinary meaning of “enhancement,” then, is an

increase in size, amount, value, beauty, and any number

of other quantitative and qualitative attributes. Plug

this meaning into “enhancement of tribal lands.” The result is a phrase that encompasses both “an increase in

the value of tribal lands” and “an increase in the amount

of tribal lands.” A land acquisition that increases the

amount of the Tribe’s total landholdings accomplishes

the latter, so it is an “enhancement of tribal lands.”13

Context reinforces this conclusion. The whole point

of MILCSA was to distribute judgment funds that the

The only other court to address the meaning of “enhancement” in MILCSA reached the same conclusion. In analyzing the

meaning of “enhancement” in § 107(a)(3), the court reasoned: “Obviously, the purchase of the Vanderbilt Tract is an enhancement of

tribal landholdings, as the additional land augmented, or made

greater, the total land possessed by Bay Mills.” Michigan v. Bay

Mills Indian Cmty., No. 1:10-cv-1273, 2011 WL 13186010, at *5

(W.D. Mich. Mar. 29, 2011). This was dictum, however, since the

court ultimately determined that the purchase of the Vanderbilt

Tract was not a “consolidation,” and § 107(a)(3) requires both “consolidation and enhancement. See id. at *5–6. So the Court notes this

case but does not lean heavily on it.

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Indian Claims Commission had awarded to Sault and

other tribes. See Pub. L. No. 105-143, § 102. Why had

the Commission awarded Sault these funds? Because

the Government took the land of Sault’s ancestors for an

unconscionably low sum. 26 Ind. Cl. Comm. 550, 553, 561

(Dec. 29, 1971) (Docket Nos. 18-E and 58). MILCSA was

compensation for a land grab. It makes sense, then, that

Sault may use this compensation to expand its landholdings.

More still, the other term in § 108(c)(5)—“consolidation”—is about bringing together divided tracts, not expanding landholdings. The Department’s implementing

regulations for the Indian Reorganization Act permit

the Secretary to take into trust land that is “within a

tribal consolidation area.” 25 C.F.R. § 151.3(a)(1); see

Sac & Fox, 240 F.3d at 1261. One purpose of the Act was

to remedy the failed policy of allotment, when the Federal Government carved reservation land into individually owned parcels. See Cobell v. Kempthorne, 532 F.

Supp. 2d 37, 40–41 (D.D.C. 2008), vacated on other

grounds, 573 F.3d 808 (D.C. Cir. 2009). When Congress

enacted MILCSA, Sault’s “existing tribal land base” was

in the Upper Peninsula. NHBP’s Mot. at 21. Yet Congress understood that Sault had members in the Lower

Peninsula as well. See Pub. L. No. 105-143, § 102(a)(3)–

(4). So it makes sense that Congress would have given

the Tribe flexibility to buy new land in the Lower Peninsula, not just unite existing parcels in the Upper Peninsula.

Sault even got special treatment relative to other

MILCSA tribes. Congress used the disjunctive for

Sault: “consolidation or enhancement of tribal lands.”

Id. § 108(c)(5) (emphasis added). But Congress the conjunctive for the Bay Mills Community. “The earnings

generated by the Land Trust shall be used exclusively

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for improvements on tribal land or the consolidation and

enhancement of tribal landholdings through purchase or

exchange.” Id. § 107(a)(3) (emphasis added). The Court

must “give[] effect” to this linguistic distinction. Scalia

& Garner, supra, at 174.14 If the use of “or” as opposed

to “and” has any meaning, it must be easier for Sault to

show a “consolidation or enhancement” than for Bay

Mills to show a “consolidation and enhancement.”

Here, a definition of “enhancement” that incorporates both a quantitative and qualitative component

maximizes Sault’s flexibility relative to Bay Mills. Under that definition, if Bay Mills just acquires a new parcel, that is not enough—the acquisition must also “consolidate” tribal land. The parties agree that a “consolidation” encompasses, at a minimum, uniting individual

units into one mass. See Pl.’s Mot. at 40 n.8; Dep’t Reply

at 13. So Bay Mills must acquire a new parcel that unites

two or more other plots.

But there’s more. Bay Mills must also prove that it

acquired the new parcel as part of a transaction that increases the amount or value of the tribe’s landholdings.

Bay Mills accomplishes this, of course, if the entire transaction is simply the purchase of the uniting parcel. But

if the transaction also involves selling a larger tract, that

transaction would decrease, not increase, the size of its

total land base, and the tribe would need to show an increase in land value.15

The Department acknowledged in the Bay Mills Opinion that

it must presume the distinction between § 107(a)(3) and § 108(c)(5)

“was intentional” and “makes a difference.” A.R. 459.

This reasoning shows why Intervenors are wrong to suggest

that Sault’s interpretation of “enhancement” makes “consolidation”

superfluous. They contend that any consolidation of land necessarily involves acquiring new land, which increases the Tribe’s total

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Under § 108(c)(5), Sault does not have to worry

about any of these details. If it engages in a land exchange that unites separate parcels, that is a “consolidation,” and it need not worry about the quantitative or

qualitative effect on its total land base. And if it simply

purchases a new parcel, that parcel need not unite existing plots. In short, if we define “enhancement” to cover

land acquisitions that increase the Tribe’s total landholdings, Sault has maximum flexibility relative to Bay

Mills—this honors Congress’s choice to a tee.

Still, the Department and Intervenors try to show

that MILCSA commands the Department’s restrictive

interpretation of “enhancement.” Their efforts fail.

They argue that Sault’s interpretation renders the word

“enhancement” itself superfluous. Dep’t Mot. at 28–29;

Casinos’ Mot. at 19–20. The Casinos put it this way:

“Under Sault’s construction, every land acquisition

would constitute an ‘enhancement,’ because every acquisition, by definition, would increase the size of the

Tribe’s real-estate portfolio.” Casinos’ Mot. at 19–20.

The objection, then, seems to be that if Congress wanted

the Tribe to spend income for any land acquisition, it

landholdings. E.g., NHBP’s Mot. at 23. But the land exchange example illuminates how a consolidation can be part of an overall

transaction that causes a net decrease. The Casinos protest that a

land exchange “would not implicate Fund interest.” Casinos’ Mot.

at 20. Sault points out, however, that it could use Fund income “to

pay unpaid debt or taxes on the purchased land.” Pl.’s Reply at 39.

This would be a use of Fund income as part of a transaction that

consolidates tribal lands. Intervenors also complain that the land

exchange hypothetical is “hyper-specific” and “strained.” Casinos’

Reply at 9 n.2; NHBP’s Mot. at 23. But land exchanges are not uncommon in Indian affairs—the Department’s own regulations permit tribes to acquire land in trust “by exchange.” See 25 C.F.R.

§ 151.6.

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would have said that, rather than use a more elaborate

phrase like “enhancement of tribal lands.”

This objection suffers at least two defects. First, it

misunderstands Sault’s interpretation of “enhancement.” Sault is not saying that all land acquisitions qualify, just those that increase the size of the Tribe’s total

landholdings. See Pl.’s Mot. at 33, 40 n.8. That covers

most land acquisitions, but not all. For example, if the

Tribe acquired a small parcel in exchange for a larger

parcel, that would decrease the size of tribal landholdings. And if the new parcel did not unite two or more

other parcels, that would not be a consolidation either.

So it is incorrect to think that Congress could have

achieved the same meaning by saying Fund income

“shall be distributed … for land acquisitions.”

Second, even if “enhancement” covers any land acquisition, that does not make this word superfluous—it

just means Congress was inartful. So long as “enhancement of tribal lands” and “land acquisitions” have the

same meaning, it does not matter that one phrase is

clunkier than the other. Cf. Kisor v. Wilkie, 139 S. Ct.

2400, 2415 (2019) (“[A] court cannot wave the ambiguity

flag just because it found the regulation impenetrable on

first read.”).16

A possible third reason this objection fails is that “enhancement of tribal lands” could encompass more than just land acquisitions, such as improvements that increase the value of tribal land.

The Court is mindful that § 107(a)(3) uses the phrase “improvements on tribal land” while § 108(c)(5) does not, but “enhancement”

could still fairly encompass improvements not on tribal lands. For

example, the Tribe might help fund a private or governmental project adjacent to tribal land that increases the land’s value. This understanding of “enhancement” fits with the theme of Congress giving Sault maximum flexibility.

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The Casinos ultimately try to shift focus onto the

phrase “tribal lands”: “the real question is not whether

‘enhancement’ denotes qualitative or quantitative increases, but whether ‘tribal lands’ denotes tribal property at the time of or after the enhancement.” Casinos’

Reply at 10. In their view, “Congress was clearly requiring an impact on existing lands owned by the Tribe.” Casinos’ Mot. at 20. The Casinos fail to explain, though,

why this understanding of “tribal lands” commands the

Department’s restrictive definition of “enhancement.”

Just substitute Sault’s definition of enhancement into

§ 108(c)(5): “for consolidation or [increase in the amount

of or increase in the value of] [existing] tribal lands.”

There is nothing amiss about that phrasing.

Even if we think in terms of the Casinos’ word “impact”—a word that does not appear in § 108(c)(5)—an increase in the amount of tribal land does “impact” “existing lands.” It impacts them by adding to them. Think of

an enhancement of a criminal sentence. The enhancement impacts the “existing” sentencing range by adding

to it.

Doubling down, the NHBP claims that § 108(c)(5) is

about consolidating and enhancing lands in the Upper

Peninsula only. MILCSA’s focus, it insists, was on

“strengthening the Sault Tribe’s existing tribal land

base in 1997 where it was, not on further fragmenting its

trust lands for business ventures.” NHBP’s Mot. at 21.

For that reason, the NHBP urges the Court to interpret

“enhancement” as a “close correlate to consolidation,”

which would limit the places where Sault could buy land.

See id. at 22.

This objection founders for several reasons. First,

interpreting “enhancement” as a “close correlate” to

“consolidation” reduces the daylight between those

73a

terms. That would in turn reduce the daylight between

“consolidation and enhancement” in § 107(a)(3) and “consolidation or enhancement” in § 108(c)(5), which undermines the greater flexibility that Congress gave Sault.

More, the NHBP’s proposed geographic restriction

appears nowhere in § 108(c)(5). Indeed, textual evidence

cuts against any geographic restriction. Congress found

that the Chippewa Indians, the ancestors of the Sault

Tribe, used sites in “both” the Upper and Lower Peninsulas. See Pub. L. No. 105-143, § 102(a)(3)–(4). It recognized that the Chippewa had “intermarried” with the Ottawa Indians, who had land in the Lower Peninsula, “and

there were villages composed of members of both

tribes.” Id. Given these findings, Congress certainly

could have used language expansive enough to allow

Sault to buy land in the Lower Peninsula.

Finally, Congress has included geographic restrictions in other statutes governing acquisition of

lands. See, e.g., Seneca Nation Settlement Act, Pub. L.

No. 101-503, § 8(c), 104 Stat. 1292 (1990) (authorizing the

Seneca Nation to acquire land “within its aboriginal area

in the State or situated within or near proximity to former reservation land”). Congress therefore “knows how

to impose such a requirement when it wishes to do so.”

Whitfield v. United States, 543 U.S. 209, 216 (2005).

For all these reasons, “enhancement of tribal lands”

is unambiguous—it encompasses land acquisitions that

increase the Tribe’s total landholdings.17 The statute

thus forecloses the Department’s attempt to cabin “enhancement” to land acquisitions that increase the value

These reasons include the Court’s responses to the objections based on IGRA and Sault’s gaming compact with Michigan.

See infra Section IV.C.

74a

of tribal lands. Having applied an impermissible interpretation of “enhancement,” the Department’s final decision was contrary to law. This conclusion is enough to

justify vacatur.

The Department protests that at the very least, “enhancement of tribal lands” is ambiguous, and so it should

receive deference under the second step of Chevron. See

Dep’t Mot. at 25–31. This claim of house advantage suffers from two flaws. First, it misunderstands ambiguity.

Second, the Chevron framework does not apply at all—

if § 108(c)(5) is ambiguous, the Indian canon requires

that the Court defer to the Tribe’s reasonable interpretation of this provision.

The Department’s argument for ambiguity goes

something like this: if “enhancement” covers several

meanings, that creates ambiguity and the Department

reasonably chose one of the meanings to the exclusion of

the others. See id. at 27. This confuses breadth with ambiguity. They are not the same. See Penn. Dep’t of Corr.

v. Yeskey, 524 U.S. 206, 212 (1998). The Department and

Intervenors do not seriously dispute that the ordinary

meaning of “enhancement” encompasses both increases

in amount and increases in value (and increases in several other types of attributes). See Dep’t Mot. at 27; Casinos’ Mot. at 19. So if we encounter “enhancement” in a

vacuum, we must take as a starting point that the word

refers to all its meanings simultaneously. For example,

if all we see is the phrase “enhancement of food,” we

must assume, until knowing more, that this phrase refers both to an increase in the quality of food and an increase in the amount of food. Once we know more about

the surrounding context and apply the “traditional tools

of statutory construction,” Chevron, 467 U.S. at 843 n.9,

it may become apparent that the phrase refers only to

one of the options. Or the ambiguity may persist.

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So too here. The only difference is that we do know

the context that surrounds “enhancement of tribal

lands” and have considered how the “traditional tools of

statutory construction” bear on its meaning. For the

reasons discussed, the Department and Intervenors fail

to show ambiguity on whether the phrase refers to (1)

increases in land amount and increases in land value versus (2) only increases in land value.

Arizona v. Tohono O’odham Nation, 818 F.3d 549

(9th Cir. 2016), is instructive. That case dealt with the

meaning of “land claim” in IGRA, 25 U.S.C.

§ 2719(b)(1)(B)(i). See 818 F.3d at 556. Citing a dictionary definition, the court observed that the phrase “has a

broad, general meaning.” Id. at 557. A “land claim”

could be “a claim for impairment to title of land” or “a

claim for damage to land.” Id. But, the Ninth Circuit

stressed, “a word or phrase is not ambiguous just because it has a broad general meaning.” Id. The court

found that “land claim” was unambiguous—“a claim for

impairment to title of land, a claim for dispossession of

land, and a claim for damages to land would all be encompassed by it.” Id. (emphasis added) (citing Scalia &

Garner, supra, at 101 (“Without some indication to the

contrary, general words … are to be accorded their full

and fair scope.”)). The same reasoning applies here.

In any event, Chevron would not save the Department even if it could show that “enhancement of tribal

lands” is ambiguous. The Indian canon of construction

provides that “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). The Court’s choice between “two possible constructions … must be dictated

by [this] principle.” County of Yakima v. Yakima Indian Nation, 502 U.S. 251, 269 (1992). In Yakima, the

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tribe’s proposed interpretation was “eminently reasonable,” so the Supreme Court was “require[d] … to apply

that interpretation for the benefit of the Tribe.” Id.

Along these lines, the D.C. Circuit has held that if a statute “can reasonably be construed as the Tribe would

have it construed, it must be construed that way.” Muscogee, 851 F.2d at 1445. It was “for this reason” that the

court gave “careful consideration” to Interior’s interpretation of the statute, but “d[id] not defer to it.” Id. 1445

n.8.

The D.C. Circuit has since reaffirmed this interaction between the Indian canon and the Chevron framework. See, e.g., Cobell v. Norton (“Cobell VI”), 240 F.3d

1081, 1101 (D.C. Cir. 2001). In Cobell VI, the court held

that even if the statute at issue were ambiguous, Chevron deference would be “not applicable” because the Indian canon was the “governing canon of construction.”

Id. “Therefore, even where the ambiguous statute is one

entrusted to an agency, we give the agency’s interpretation careful consideration but we do not defer to it.” Id.

(cleaned up). So too here. Having given “careful consideration” to the Department’s interpretation of “enhancement of tribal lands,” the Court still concludes, for all the

reasons given, that Sault’s interpretation is reasonable

at a minimum.18 Thus, the Court must interpret

§ 108(c)(5) according to Sault’s interpretation, even if the

statute is ambiguous. Muscogee, 851 F.2d at 1445.

The Department and Intervenors raise two objections to this alternative holding. Neither succeeds.

First, the Department cites Cobell v. Salazar (“Cobell

XXII”), 573 F.3d 808 (D.C. Cir. 2009), which said that

These reasons include the Court’s responses to the objections based on IGRA and Sault’s gaming compact with Michigan.

See infra Section IV.C.

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“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.” Id.

at 812. This means, in the Department’s view, that “an

agency’s legal authority to interpret a statute appears to

trump any practice of construing ambiguous statutory

provisions in favor of Indians.” Dep’t Mot. at 31 (quoting

Rancheria v. Jewell, 776 F.3d 706, 713 (9th Cir. 2015)).

Whatever “muted effect” means, it is different from

saying that Chevron “trumps” the Indian canon. Indeed,

right before the “muted effect” sentence, Cobell XXII

observed 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.” 573 F.3d at 812 (cleaned

up). So the question becomes how to reconcile Cobell

XXII with earlier Indian cases declaring that “Chevron

deference is not applicable,” Cobell VI, 240 F.3d at 1101,

and that a statute “must be construed” according to a

tribe’s interpretation if that interpretation is reasonable,

Muscogee, 851 F.2d at 1445.

On this, the case law is scarce. In the eleven years

since Cobell XXII, the D.C. Circuit has not explained

what “muted Chevron deference” entails. And only one

other judge in this District has referenced this language.

See Koi Nation of N. Cal. v. U.S. Dep’t of the Interior,

361 F. Supp. 3d 14, 48–49 (D.D.C. 2019). As Chief Judge

Howell saw it, the “muted effect” sentence in Cobell v.

XXII “clarified” Muscogee’s statement that a court

“must” defer to a tribe’s reasonable interpretation while

still giving “careful consideration” to an agency’s interpretation. See id. at 48.

78a

This essentially reflects the Court’s thinking. The

most sensible way to reconcile Cobell XXII, Muscogee,

and other decisions in between is to say that “muted

Chevron deference” requires the Court to give the Department’s interpretation “careful consideration.” Cf.

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (holding that agency interpretations “not controlling upon the

courts by reason of their authority” are still “entitled to

respect” insofar as they have “power to persuade”). This

“careful consideration” of an agency’s construction may

reveal that a tribe’s interpretation is unreasonable,

overcoming the Indian canon. But the Tribe’s interpretation of § 108(c)(5) is reasonable, so the Indian canon

“trump[s]” Chevron deference here. Cobell XXII, 573

F.3d at 812.

Second, the Department and Intervenors urge that

deference to Sault is inappropriate because its interpretation of “enhancement” would harm the interests of the

NHBP and the Saginaw Tribe. See Dep’t Mot. at 30–31;

Saginaw’s Mot. for Summ. J. (“Saginaw’s Mot.”) at 9,

ECF No. 51. They rely on out-of-circuit precedent holding that the Indian canon does not apply when “all tribal

interests are not aligned.” Rancheria, 776 F.3d at 713.

They cite no D.C. Circuit cases that have adopted this

exception to the Indian canon, nor has the Court found

any. But other judges in this District have done so, citing Ninth Circuit case law. See Connecticut v. U.S. Dep’t

of the Interior, 344 F. Supp. 3d 279, 314 (D.D.C. 2018).

In any event, this exception to the Indian canon does

not apply here. All but one of the cases the Department

and Intervenors cite for this exception dealt with statutes that benefit all Indians generally, such as IGRA.

See, e.g., id. The other case involved a treaty, and the

tribe with countervailing interests was a signatory to—

and beneficiary of—the treaty. See Confederated Tribes

79a

of Chehalis Indian Reservation v. Washington, 96 F.3d

334, 338, 340 (9th Cir. 1996). Congress enacted MILCSA

for the benefit of select tribes—the NHBP and the Saginaw Tribe are not among them. See Pub. L. No. 105-143,

§§ 102, 104. Indeed, the section at issue, § 108, is for the

benefit of only one tribe—the Sault Tribe. See id.

§ 108(a)(1). The Department and Intervenors have cited

no cases applying the “not all tribal interests aligned”

exception in an analogous circumstance. That is unsurprising. It would be strange to construe a statute

against the only Tribe it seeks to benefit simply because

another Indian tribe objects.

Consider next two additional objections the Intervenors raise on both the § 108(f) issue and the § 108(c)(5)

issue. Both objections—which concern IGRA and

Sault’s 1993 gaming compact with Michigan—fall short.

All three Intervenors vigorously contend that

Sault’s interpretation of MILCSA would upset the regulatory framework in IGRA. Sault has been frank that

it hopes to build a casino on the Sibley Parcel; a casino

would count as Class III gaming under IGRA. See Bay

Mills, 572 U.S. at 785. The Intervenors point out that an

Indian tribe can conduct Class III gaming only on “Indian lands.” 25 U.S.C. § 2710(d)(1). “Indian lands” include “any lands title to which is … held in trust by the

United States for the benefit of any Indian tribe.” Id.

§ 2703(4)(B). Thus Sault’s attempt to invoke § 108(f) of

MILCSA and get the Secretary to take the Sibley Parcel

into trust.

What, though, does IGRA have to do with the

Court’s interpretation of MILCSA? Everything, the Intervenors insist. If the Court accepts Sault’s interpretation of either § 108(f) or § 108(c)(5), the Secretary would

80a

have to take virtually any land Sault acquires into trust.

E.g., Saginaw’s Mot. at 18. That would, in turn, give

Sault “alone among tribes, unfettered ability to locate an

unlimited number of casinos anywhere in the country.”

NHBP’s Mot. at 24. This is no good, the Intervenors say,

because IGRA embodies a “federal policy … against the

proliferation of off-reservation gaming.” Id. They cite

several provisions in IGRA that restrict off-reservation

gaming. Saginaw’s Mot. at 12–15.

But these very restrictions cut against the Intervenors’ parade of horribles. To start, IGRA generally prohibits gaming “on lands acquired by the Secretary in

trust for the benefit of an Indian tribe after October 17,

1988.” 25 U.S.C. § 2719(a). If the Secretary ever takes

the Sibley Parcel into trust, this will of course occur after

1988. To get around the general prohibition, Sault would

need to satisfy one of several exceptions. One of these

exceptions is for lands “taken into trust as part of … a

settlement of a land claim.” Id. § 2719(b)(1)(B)(i). Sault

believes the Sibley Parcel would satisfy this exception if

the Secretary takes it into trust under § 108(f). A.R.

452–53. But one Intervenor goes out of its way to argue

that any land Sault acquires under MILCSA would not

satisfy this exception. See NHBP’s Mot. at 26. If the

NHBP is right, MILCSA would not, as it claims earlier

in its brief, give Sault “unfettered ability to locate an unlimited number of casinos anywhere in the country.” Id.

at 24. The NHBP cannot have it both ways.

In any event, the meaning of the “settlement of a

land claim” exception is a question for another day—the

point is that Sault still has some work to do. This case is

not Sault’s last stop on its quest for a casino, as several

parties conceded at oral argument. Mot. Hr’g Tr. at 6–7

(Sault), 34 (Department), 46 (Casinos), 61 (Saginaw

Tribe).

81a

IGRA places yet more restrictions on Class III gaming. Sault’s board of directors must pass “an ordinance

or resolution” that meets many requirements and receives approval from the Chairman of the National Indian Gaming Commission. 25 U.S.C. § 2710(d)(1)(A).

Sault must also conduct its gaming activities “in conformance with a Tribal-State compact entered into by

the Indian tribe and the State.” Id. § 2710(d)(1)(C). This

proviso cripples the Casinos’ suggestion that Sault could

launch casinos in far-flung states like Florida. Mot. Hr’g

Tr. at 43. Sault does have a gaming compact with Michigan, but as we will soon see, two Intervenors believe

that Sault’s trust application violates this compact.

Again, Sault still has some obstacles to overcome before

it gets to rake in the chips.

It is also not so absurd to think that Congress intended MILCSA to expand Sault’s casino opportunities.

Consider the special treatment that Sault received relative to Bay Mills. A conspicuous difference between §

107(a)(3) and § 108(f) is that lands Bay Mills acquires

with its trust funds “shall be held as Indian lands are

held,” a more generic phrase than “shall be held in trust

by the Secretary.” It is not settled whether lands “held

as Indian lands are held” are “Indian lands” under

IGRA. The Department concluded a decade ago in its

Bay Mills Opinion that they were not, A.R. 460, but the

ensuing litigation never resolved that question, see Bay

Mills, 572 U.S. at 786–87.

By contrast, no one disputes that lands “held in

trust” are “Indian lands” under IGRA. 25 U.S.C.

§ 2703(4)(B). “Congress must be presumed to have

known of its former legislation.” St. Louis, I.M. & S. Ry.

Co. v. United States, 251 U.S. 198, 207 (1920). So, in passing MILCSA, Congress knew that it was giving Sault

the tools to acquire “Indian lands” under IGRA.

82a

Congress was also aware of the “settlement of a land

claim” exception that allows certain land acquired in

trust after 1988 to be gaming-eligible. See 25 U.S.C.

§ 2719(a), (b)(1)(B)(i). Yet it still gave Sault a land-intotrust provision in a statute called the “Michigan Indian

Land Claims Settlement Act.” To be clear, the Court

takes no view on the applicability of the exception. The

point is that it is not so “bizarre” or “illogical” that Congress intended for Sault to circumvent some of IGRA’s

limitations. Stovic, 826 F.3d at 505.

The Intervenors insist on a narrow interpretation of

§ 108(f) and § 108(c)(5) because Congress would not have

wanted to give Sault “unfettered ability” to build as

many casinos as it wants, wherever it wants. NHBP’s

Mot. at 24. But they ignore the many legal and practical

limitations on how much land Sault can acquire with

Fund income. The full phrase is “interest and other investment income.” Pub. L. No. 105-143, § 108(c). So the

amount of “Fund income” Sault can spend on casinobuilding will depend on the success of its investments.

And, of course, Sault will always have finite income.

The NHBP complains that Sault will just pour the

new casino revenues into its Fund, generating enough

income for the next casino project, and so on. See Mot.

Hr’g Tr. at 72–73. But § 108(c) spells out several other

purposes for which Sault can spend Fund income, including “as a dividend to tribal members” and “as a per capita payment to some group or category of tribal members.” Pub. L. No. 105-143, § 108(c)(2)–(3). One might

expect tribal dissent if Sault’s board ignored these other

uses of Fund income and focused only on building casinos

in far-flung lands. Political accountability within the

Tribe thus provides another check.

83a

One final point on the IGRA objection—taking land

into trust is not significant only for its gaming benefits,

as one Intervenor concedes. Mot. Hr’g Tr. at 65. According to the Bureau of Indian Affairs, “many federal

programs and services are available only on reservations

or trust lands.”19 For example, “trust acquisitions provide tribes the ability to enhance housing opportunities

for their citizens.”20 Congress thus had other reasons to

give Sault generous treatment through § 108(f) and

§ 108(c)(5). And it could have reasonably expected that

the legal and practical limitations on Sault’s gaming

would keep that pursuit in check. For all these reasons,

the Intervenors have failed to show that Sault’s interpretation of § 108(f) and § 108(c)(5) makes “nonsense” of

IGRA, let alone violates anything in that statute. Id. at

55–56.

The Intervenors also claim that Sault’s trust application violated its 1993 gaming compact with Michigan

(the “Compact”). Section 9 of the Compact states:

An application to take land in trust for gaming

purposes pursuant to § 20 of IGRA (25 U.S.C.

§ 2719) shall not be submitted to the Secretary

of the Interior in the absence of a prior written

agreement between the Tribe and the State’s

other federally recognized Indian Tribes that

provides for each of the other Tribes to share in

the revenue of the off-reservation gaming facility that is the subject of the § 20 application.

A.R. 3224. The Intervenors believe that Sault has violated Section 9 because it failed to secure revenue19

U.S. Dep’t of the Interior, Bureau of Indian Affairs, Fee to

Trust, bia.gov/bia/ots/fee-to-trust (last visited Feb. 20, 2020).

Id.

84a

sharing agreements with the NHBP and the Saginaw

Tribe before submitting its trust application to the Secretary. NHBP’s Mot. at 25; Saginaw’s Mot. at 17. On

this basis, they conclude that Sault’s trust application is

invalid. NHBP’s Mot. at 25; Saginaw’s Mot. at 16–17.

Whatever the merits of this argument, it is irrelevant to this case. The Court “may uphold agency action

only on the grounds that the agency invoked when it

took the action.” Michigan v. EPA, 135 S. Ct. 2699, 2710

(2015). The Department’s basis for denying Sault’s trust

application was the Tribe’s failure to meet the requirements of MILCSA; its decision did not mention the Compact. See A.R. 969–74, 1930–33. Intervenors are just offering an alternative reason to uphold the Department’s

denial—that Sault’s application was invalid under the

Compact because it did not first secure revenue-sharing

agreements. This has nothing to do with an interpretation of MILCSA. Section 108 does not say anything

about requiring Sault to comply with its gaming compacts or to secure revenue-sharing agreements.

This litigation is simply not the appropriate time to

decide the meaning of the Compact. That time may well

come. As Sault points out, the State of Michigan—not a

party to this action—sought to enjoin Sault from submitting its trust application in the first place, based on the

Tribe’s alleged failure to secure revenue-sharing agreements. See Michigan v. Sault Ste. Marie Tribe of Chippewa Indians, 737 F.3d 1075, 1076 (6th Cir. 2013). The

district court there lacked jurisdiction because it was a

suit to enjoin a trust submission under MILCSA, not a

class III gaming activity, and so the Tribe had sovereign

immunity. See id. The Sixth Circuit emphasized, however, that its decision did “not affect the legal viability of

a later suit to enjoin, as a violation of … § 9 of the Compact … class III gaming on the land taken into trust.”

85a

Id. at 1080. Sault thus concedes that the State of Michigan, at least, can “renew[] its previous claim that the

Tribe breached § 9 [of the Compact].” Pl.’s Reply at 58.21

On these issues of statutory interpretation, the objections of the Department and Intervenors exhibit a recurring theme: Congress could not have possibly intended the meaning that Sault assigns to § 108(f) and

§ 108(c)(5). This argument does not wash. The Court

“has no roving license … to disregard clear language

simply on the view that … Congress ‘must have intended’ something [different].” Bay Mills, 572 U.S. at

794. If the Department and Intervenors find this law to

be “a ass—a idiot,” that is a matter to address to Congress, not the courts. See A.M. v. Holmes, 830 F.3d 1123,

1170 (10th Cir. 2016) (Gorsuch, J., dissenting) (“Often

enough the law can be ‘a ass—a idiot’—and there is little

we judges can do about it, for it is (and should be) emphatically our job to apply, not rewrite, the law enacted

by the people’s representatives.” (citation omitted)).

Since the Department’s decision was “not in accordance with law,” the Court will vacate it. 5 U.S.C.

§ 706(2)(A). The normal remedy accompanying vacatur

is a remand to the agency for further proceedings. See

N. Air Cargo v. U.S. Postal Serv., 674 F.3d 852, 861 (D.C.

Cir. 2012). But Sault asks for more. See Compl. ¶¶ 92–

100 (Count III). It asks the Court to order the Secretary

to take the Sibley Parcel into trust. Pl.’s Mot. at 53. Failing that, Sault wants an order requiring the Secretary to

The NHBP and the Saginaw Tribe may be able to bring this

claim as well. See 25 U.S.C. § 2710(d)(7)(A)(ii).

86a

decide within 90 days of remand whether the Tribe did

in fact acquire the Sibley Parcel with Fund income. In

support of these requests, Sault invokes the mandamus

statute, 28 U.S.C. § 1361, and the APA’s directive that

“[t]he reviewing court shall … compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C.

§ 706(1).

To begin, Sault’s request for a writ of mandamus under § 1361 is, at a minimum, redundant. See Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th

Cir. 1997) (“The availability of a remedy under the APA

technically precludes Mt. Emmons’ alternative request

for a writ of mandamus … although the mandatory injunction is essentially in the nature of mandamus relief[.]” (citation omitted)). Sault concedes as much. It

asserts that “‘[b]oth mandamus and injunctive relief [under § 706(1)] are available’ to remedy an agency’s ‘dereliction in discharging a mandatory duty.’” Pl.’s Mot. at

54 n.9 (second alteration in original) (quoting Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v.

Brown, 656 F.2d 564, 567 (10th Cir. 1981)). More, it

views the “substantive requirements” for mandamus relief and relief under § 706(1) as “the same.” Id. (citing

Carpet, 656 F.2d at 567). It cites a D.C. Circuit decision

that apparently supports this proposition. See Potomac

Elec. Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C. Cir.

1983) (“The power grounded in 5 U.S.C. § 706(1) to compel agency action can also be effectuated through the use

of a writ of mandamus.”).

Ultimately, Sault claims that it needs to establish

two elements to get its desired relief: that the agency

(1) had a clear duty to act and (2) unreasonably delayed

in discharging that duty. Pl.’s Mot. at 54 (citing In re

Am. Rivers & Idaho Rivers United, 372 F.3d 413, 418

(D.C. Cir. 2004) (addressing what a party needs to show

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when it seeks a writ of mandamus for unreasonable delay under 5 U.S.C. § 706(1))). The Court follows this lead

but concludes that Sault has not shown both elements.

It is thus not entitled to the extraordinary relief it seeks.

On the first element, Sault contends that the Secretary has a clear duty under § 108(f) to take the Sibley

Parcel into trust. Id. On its (correct) view of § 108(f),

the Secretary has a mandatory duty to take the parcel

into trust contingent on whether the Tribe in fact acquired the parcel with Fund income. Id. The Secretary

thus has a clear duty to take the parcel into trust if—and

only if—the Tribe acquired the parcel with Fund income.

But this income issue remains unresolved. So as matters

stand, the Secretary does not have a clear duty to take

the parcel into trust.

Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir.

1987), is not to the contrary. The court there opined that

“[e]xamples of such clear duties to act include provisions

that require an agency to take specific action when certain preconditions have been met.” Id. at 793. Sault posits that § 108(f) is precisely this sort of provision. Pl.’s

Mot. at 54–55. The key words, though, are “when certain

preconditions have been met.” Indeed, Sierra Club itself merely cited a decision holding “that statutory preconditions had been satisfied so as to compel specific

agency action.” 828 F.2d at 793 n.70 (emphasis added)

(citing EDF, Inc. v. Ruckelshaus, 439 F.2d 584, 593–95

(D.C. Cir. 1971)).

Undeterred, Sault insists the income issue is a simple matter that the Court should resolve in the first instance. See Pl.’s Reply at 67–68. After rightly charging

the Secretary with usurping the Tribe’s role under

§ 108(c), Sault now invites this Court to usurp the Secretary’s role under § 108(f). This the Court will not do.

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In EDF, the agency itself had made the findings that

triggered its statutory duty. See 439 F.2d at 594–95. In

a later case that distinguished itself from EDF, the

agency had made, but then recanted, the findings that

triggered its duty. See PCHRG v. FDA, 740 F.2d 21, 33

(D.C. Cir. 1984). In that circumstance, the court’s only

basis for ordering the agency to act would have been a

“substantive judgment that the early position was correct and the later position erroneous.” Id. The court demurred, as “[s]uch a judgment would require [it] to evaluate the scientific evidence before the agency and conclude that this evidence mandated a finding that aspirin

products are misbranded.” Id. This was “precisely the

genre of question the resolution of which Congress has

entrusted to the agency in the first instance.” Id.

This case is like PCHRG, not EDF. The lack of any

finding on the income issue is analogous to a situation in

which an agency makes a finding but then recants it.

And this issue requires a factual inquiry that would benefit from the agency’s expertise. After all, Sault’s evidence consists of specialized documents such as audits,

financial statements, and deeds. Pl.’s Mot. at 55; see A.R.

2139–47, 3098, 3163, 3165–85. According to one Intervenor, this evidence establishes the opposite of what Sault

claims. See NHBP’s Mot. at 27. Sault fails to offer a persuasive reason why the Court should take the unusual

step of resolving this factual issue in the first instance.

See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985) (“The factfinding capacity of the district court is

… typically unnecessary to judicial review of agency decisionmaking.”).

What’s the upshot of all this? The Court will not order the Department to take the Sibley Parcel into trust.

If the Department does have a clear duty to act, the duty

is to determine whether Sault acquired the Sibley Parcel

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with Fund income. This implicates the Tribe’s alternative request for extraordinary relief—an order instructing the Department to resolve the income issue within

90 days. The Court will not grant this relief either,

though, because the Department has not unreasonably

delayed a finding on the income issue.

With claims of unreasonable delay, “[e]ach case must

be analyzed according to its own unique circumstances”

and “[e]ach case will present its own slightly different

set of factors to consider.” Air Line Pilots Ass’n, Int’l v.

CAB, 750 F.2d 81, 86 (D.C. Cir. 1984). Thus, no “ironclad” test exists, but the D.C. Circuit often finds guidance in six factors:

(1) the time agencies take to make decisions must be

governed by a rule of reason;

(2) where Congress has provided a timetable or

other indication of the speed with which it expects

the agency to proceed in the enabling statute, that

statutory scheme may supply content for this rule of

reason;

(3) delays that might be reasonable in the sphere of

economic regulation are less tolerable when human

health and welfare are at stake;

(4) the court should consider the effect of expediting

delayed action on agency activities of a higher or

competing priority;

(5) the court should also take into account the nature

and extent of the interests prejudiced by delay; and

(6) the court need not find any impropriety lurking

behind agency lassitude in order to hold that agency

action is unreasonably delayed.

90a

TRAC v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (cleaned

up).

Sault submitted its trust application in June 2014,

and the Department issued its final decision in July 2017.

A.R. 1930, 3110. The agency thus took about three years

to issue a decision that did not address the income issue.

But MILCSA does not provide a “timetable or other indication of the speed with which it expects the agency to

proceed.” TRAC, 750 F.2d at 80. More, the Court must

consider the three years in context. The Department

never resolved the income issue in that timespan because it thought this unnecessary. See A.R. 974, 1932

n.15. On its reading of the statute, Sault’s failure to show

compliance with § 108(c) was enough to deny the trust

application.

The Court is mindful that the Department’s reading

of MILCSA contradicts its unambiguous meaning. See

supra Section IV. That makes the agency’s reading “unreasonable” in a certain sense. See Entergy Corp. v.

Riverkeeper, Inc., 556 U.S. 208, 218 n.4 (2009) (“[I]f Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said

would be unreasonable.”). But this is not dispositive.

None of the six factors from TRAC suggests that delay

is automatically unreasonable under § 706(1) if it results

from the agency’s mistaken interpretation of a statute.

This text is long and has been trimmed here. Open the source document for the complete record.

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