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May 1, 1987

Pueblo of Santa Ana, et al., Plaintiffs,
Donald P. Hodel, Defendant

The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, Senior District Judge:

 In this proceeding, the Pueblo of Santa Ana ("Pueblo"), an Indian tribe, challenges a decision of the Secretary, Department of Interior ("Secretary") denying its proposal to construct and operate a dog racing facility on its reservation that would allow pari-mutuel wagering. The proposal was rejected on grounds it violated the Assimilative Crimes Act ("ACA" or "Act"), 18 U.S.C. § 13. That statute, incorporating state criminal laws for areas within federal jurisdiction, is discussed more fully, infra, slip op. at p. 19.

 Plaintiff Pueblo and co-plaintiff Santa Ana Non-Profit Enterprise ("Santa Ana Enterprise" or "Enterprise"), its operating arm, seek judicial review, specifically declaratory and injunctive relief, invalidating the Secretary's decision to disapprove the proposed racing facility project. Plaintiffs also challenge the Secretary's decision that, under relevant statutes, his approval is required to carry out the project. *fn1"

 Cross-motions for summary judgment have been fully briefed and ably argued. After considering the parties' legal memoranda and the materials submitted in the nature of an administrative record, the Court concludes that the Interior Secretary had authority to review the contract and otherwise to rule on the merits of the plaintiffs' proposal. Plaintiffs' application for equitable relief is denied.


 The material facts of this case are undisputed. Plaintiff, Pueblo is a federally recognized Indian tribe living on the Santa Ana Reservation in the State of New Mexico. The 552-member tribe is governed by a traditional form of tribal government, the Pueblo Council of the Santa Ana Pueblo ("Council"), composed of all male heads of households.

 On October 25, 1984, the Council enacted Ordinance No. 84-0-01, (Mat. at 30), *fn2" establishing the plaintiff Santa Ana Enterprise for the purpose of "providing for the health, education, religious affairs and welfare of the Pueblo . . . through creation of opportunities and appropriate utilization of its resources to provide funds for such purposes." Article I of the Ordinance states that the Enterprise "shall be a non-profit instrumentality of the Pueblo of Santa Ana." Article III empowers the Enterprise to buy and sell non-tribal trust land and assign, mortgage, lease or otherwise encumber any interest in tribal trust lands that are assigned or leased to it by the Pueblo. It is also empowered to make contracts, receive governmental grants, and sue or be sued in its organizational name. Finally, Article VII provides that agreements of the Enterprise are binding on that entity and its property alone, and that Pueblo and its officers shall have no liability under such agreements. The Enterprise has no shareholders and is managed by a Board of Directors selected by the Pueblo Council and removable for cause.

 On November 12, 1984, the Pueblo Council adopted Resolution No. 84-R-02, leasing approximately 100 acres of tribal trust land to the Santa Ana Enterprise and giving it full power to "control, develop, operate and manage said property." (Mat. at 43.) Earlier, on October 25, 1984, the Council enacted Ordinance No. 84-0-02 (Mat. at 111) which authorized animal racing *fn3" and pari-mutuel betting to be licensed and regulated by a five-member Santa Ana Racing Commission ("Commission"). Immediately thereafter, on October 31, 1984, the Commission issued a license to Santa Ana Enterprise authorizing it to own and operate a greyhound racetrack and conduct pari-mutuel betting within that facility. On the same date, it entered into a Management Agreement (Mat. at 47) with Wayne Strong, a Kansas businessman and greyhound racing expert. Strong was designated as Operator-Manager of the proposed facility under a 15-year contract to "design, construct, improve, develop, manage, operate, and maintain the [leased property] as a premier facility for the conduct of pari-mutuel greyhound races." Santa Ana Enterprise "dedicated" the property to the Management Agreement and promised that any business development near the property would be designed so as not to interfere with operations under the Management Agreement. Both parties agreed not to allow any encumberance on the property without the prior written consent of the other. The Commission issued a license to Strong to manage the greyhound track.

 In November 1984, the Pueblo submitted its proposal to the Secretary of Interior, including all of the previously adopted ordinances, resolutions, and agreements, and requested approval or, in the alternative, a statement that such approval was unnecessary. *fn4" Despite Pueblo's pleas for timely action on the proposal and considerable support for the project from the surrounding non-Indian communities and officials, an early decision on the project was not forthcoming. Concerns were raised within Interior about the economic viability of the project, and the humaneness of dog racing.

 Most importantly, the legality of the project became an issue because the Attorney General of New Mexico asserted that pari-mutuel dog racing was illegal under New Mexico law and should therefore be considered a criminal activity on the Pueblo reservation under the federal Assimilative Crimes Act. The ensuing controversy led the Area Office of the Bureau of Indian Affairs to shift responsibility for consideration of the project to the Departmental level. Accordingly, on April 11, 1985, the Pueblo's proposal was transferred to the Bureau of Indian Affairs in Washington, D.C., where the controversy continued with Pueblo's counsel, urging Secretarial approval. Other interested parties also contacted Interior Department officials and members of Congress to express their views.

 Faced with prospects of further delay, and emboldened by a recently announced Supreme Court decision that Indian tax ordinances do not require Department of Interior approval, Kerr-McGee v. Navajo Tribe, 471 U.S. 195, 85 L. Ed. 2d 200, 105 S. Ct. 1900 (1985), the Pueblo argued to the Secretary that approval of the dog racing project was not necessary after all. On May 29, 1985, the Pueblo Council enacted a second Resolution, No. 85-R-21, which substituted a tribal land assignment for the lease of tribal lands previously accomplished by the November 12, 1984 Resolution, supra slip op. at page 3. Then, on June 3, 1985, the Pueblo withdrew its request for Interior Department approval.

 Notwithstanding this withdrawal, on August 6, 1985, the Secretary addressed a letter to the Governor of the Pueblo and the New Mexico Attorney General (Mat. at 442) in which he opined that pari-mutuel betting on dog racing within the Pueblo reservation would violate the Assimilative Crimes Act. This opinion was based on the Secretary's evaluation of the competing legal arguments of the Pueblo and the Attorney General and on a policy, announced in the letter, of deference to a state's construction of its own laws. *fn5" While declining to specifically threaten federal prosecution, the Secretary also stated that he was advising the Department of Justice of his view on the legality of the proposal. Finally, the letter outlined the Secretary's position that his approval was required of both the Pueblo's lease (or assignment) of land and the Management Agreement with Wayne Strong. *fn6"

 Following these developments plaintiffs filed this lawsuit. The parties' cross motions for summary judgment present two issues. The first, whether Secretarial approval is required of the transactions and contracts underlying the Pueblo's animal racing proposal. If such approval is required, second, whether the Secretary's determination to withhold approval was correct. A threshold question of the second issue is whether the Secretary's August 6 letter invoking the Assimilative Crimes Act, constitutes an administrative decision ripe for judicial review.


 I. The Requirement of Secretarial Approval

 In his August 6, 1985 letter, the Secretary contended that approval of the dog-racing project was required under a number of statutory provisions. With very little discussion, he asserted authority to review the assignment of tribal lands to the Santa Ana Enterprise under 25 U.S.C. §§ 177 and 415. (Mat. at 448.) Those sections provide in pertinent part:

§ 177 Purchases or grants of lands from Indians
No purchase, grant, lease, or other conveyance of lands . . . from any Indian nation or tribe of Indians, shall be . . . [valid] . . . unless . . . made by treaty or convention entered into pursuant to the Constitution.
§ 415 Leases of restricted lands
Any restricted Indian lands, whether tribally or individually owned, may be leased by the Indian owners with the approval of the Secretary of the Interior for . . . educational, recreational, or business purposes . . . .

 Plaintiffs maintain that the sections are inapplicable since they are intended to protect against transfers of Indian lands to non-Indians. They argue that as long as the intra-tribal transfer does not have the effect of conveying an interest in the land to non-Indians, Secretarial approval is not required. Since the assignment of lands to Santa Ana Enterprise does not convey an interest to non-Indians, no approval of Council Resolution No. 85-R-21 is needed.

 The Secretary does not really dispute this position; instead, he stresses his obligation to approve the management contract between Santa Ana Enterprise and Wayne Strong under 25 U.S.C. § 81. In his August 6 letter, he expressed at some length the view that the section might be applicable. (See Mat. at 448-51.) In this proceeding, he reasserts that position much more definitively and forcibly. Section 81 provides in relevant part:

§ 81 Contracts with Indian Tribes or Indians
No agreement shall be made by any person with any tribe of Indians . . . for the payment or delivery of any money . . . or for the granting or procuring any privilege to him, or any other person in consideration of services for ...

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