litigation that merely "aims to enhance the [organization]'s success in
its central missions" is sufficiently germane. Hotel & Restaurant
Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1503-04 (D.C. Cir.
The Court of Appeals has drawn on a number of different sources to
determine organizational purposes, including not only articles of
incorporation, Hazardous Waste Treatment Council v. EPA, 861 F.2d 277,
285-86 (D.C. Cir. 1988), but also affidavits by organization founders,
Committee for Effective Cellular Rules v. FCC, 53 F.3d 1309, 1315 (D.C.
Cir. 1995), and the parties' briefs and complaint, Albuquerque Indian
Rights v. Lujan, 930 F.2d 49, 53-54 (D.C. Cir. 1991). I conclude that
TOMAC's description of its purpose in its verified complaint is an
accurate statement of its interests and the interests of its members as
local residents concerned about a wide variety of casino impacts on
quality of life and business. In seeking to compel more detailed
environmental analyses and ultimately to block the Bureau's action in
taking land into trust, TOMAC's litigation goals are designed to enhance
its central missions and satisfy the requirement of germaneness.*fn7
B. Nondelegation Claim
Defendants are entitled to summary judgment on TOMAC's nondelegation
claim. As long as "intelligible principles" can be discerned from
statutory text, legislative history, and historic context, Congress may
delegate its legislative powers to administrative agencies under broad
standards. Mistretta v. United States, 488 U.S. 361, 372-73 (1989);
National Ass'n of Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367,
376 n. 12 (1982). The Supreme Court has struck down statutes on
nondelegation grounds only twice in the last sixty-five years, Whitman
v. American Trucking Ass'ns, 531 U.S. 457, 474 (2001), and this is
unlikely to be the third. Plaintiff's reliance on an Eighth Circuit case
concerning the taking of land in trust under the Indian Reorganization
Act is not persuasive. South Dakota v. Department of Interior, 69 F.3d 878
(8th Cir. 1995), vacated and remanded, 519 U.S. 919 (1996). Even if the
South Dakota case were controlling in this Circuit, it concerns a
different statute and its reasoning actually supports the conclusion that
the delegation made in this case is permissible.
TOMAC's arguments that the Secretary has been given unconstitutionally
broad powers hinge upon a single sentence of the Pokagon restoration
The Band's tribal land shall consist of all real
property, including the land upon which the Tribal Hall
is situated, now or on and after September 21, held by,
or in trust for, the Band. The Secretary shall acquire
real property for the Band. Any such real property
shall be taken by the Secretary in the name of the
United States in trust for the benefit of the Band and
shall become part of the Band's reservation.
25 U.S.C. § 1300j-5 (emphasis added). TOMAC views this sentence in
isolation, without taking into account the rest of the statute and its
legislative history. The restoration act provides generally that the
Indian Reorganization Act and other Indian laws shall apply to the
Pokagon "[e]xcept as otherwise provided in this subchapter."
25 U.S.C. § 1300j-1. Although the IRA has land acquisition provisions
of its own, the Pokagon act provides the much more specific directive in
§ 1300j-5, affirms the Band's jurisdiction on trust lands "to the
full extent allowed by law," id. § 1300j-7, and defines a larger
ten-county service area in southwestern Michigan and northern Indiana,
id. § 1300j-6.
The legislative history emphasizes that Band members continue to form a
distinct community within their ancestral homelands in the St. Joseph
River valley, particularly in the Silver Creek Township where they
already own the Tribal Hall and other property. S. Rep. No. 103-266, at
1, 5 (1994); H. Rep. No. 103-620, at 1, 6 (1994). It also notes that the
Office of Indian Affairs had begun searching for a reservation site in
the 1930's, but then did not permit the Pokagon to complete the
organization process, in part because funding ran out. S. Rep. No.
103-266, at 3-4; H. Rep. No. 103-620, at 4-5. The purpose of the new
legislation, the Senate explained, was to "strongly affirm that the
trust responsibility [of] the United States is not predicated on the
availability of appropriated funds. Further, the possession of a tribal
land base is not the foundation for determining tribal status." S. Rep.
No. 103-266, at 6.
The words of the statute and their legislative history demonstrate that
Congress intended the Secretary to help establish a reservation land base
in a specific geographic area by taking Pokagon-owned lands in trust and
purchasing additional property if funds were available. S. Rep. No.
103-266, at 8-9 (letter noting that annual Bureau appropriations for land
purchases for all tribes averaged only $1.1 million); H. Rep. No.
103-620, at 9-10 (same); cf. Sault Ste. Marie Tribe of Lake Superior
Chippewa Indians v. United States, 78 F. Supp.2d 699, 704-05 (W.D.Mich.
1999) (holding that the Secretary's mandate to acquire land in trust for
another tribe was not "unlimited as to duration and amount" where the
tribe had to supply funding and find willing sellers), remanded on other
grounds, 9 Fed. Appx. 457 (6th Cir. 2001). Even the Eighth Circuit's
South Dakota decision recognized acquiring land for new reservations as a
legitimate and specific purpose. South Dakota, 69 F.3d at 882-83 & n. 3
(objecting to § 5 of the Indian Reorganization Act because it did not
limit land acquisitions to such purposes); see also United States v.
Roberts, 185 F.3d 1125, 1136-37 (10th Cir. 1999) (upholding IRA §
5); City of Sault Ste. Marie v. Andrus, 458 F. Supp. 465, 473 (D.D.C.
1978) (same). Thus, because the Pokagon restoration act establishes the
Secretary's duty to place land in trust within the geographic and policy
limits set by Congress, it does not violate the nondelegation doctrine.
Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (delegations must
"clearly delineate the general policy, the public agency which is to
apply it, and the boundaries of the delegated authority" (internal
quotations and citations omitted)).
C. IGRA Claims
Defendants are also entitled to summary judgment on the plaintiff's
claims that taking the land in trust is unlawful because gaming on the
site would be unlawful. Specifically, TOMAC has asserted (in Count One)
that the Secretary violated the APA by taking land in trust for an
illegal purpose (gambling without a valid gaming compact) and (in Count
Four) that she violated the APA by failing to comply with certain
procedures mandated under IGRA.
As to the first of these APA/IGRA claims, however, a gaming compact is
not required for bingo and other class II gambling.
25 U.S.C. § 2710(b)(1). And even
for slot machines and other Class
III gaming, there is no requirement that a compact be secured before a
tribe may obtain a casino site. Id. § 2710(d)(1); Kansas v. United
States, 249 F.3d 1213, 1223-24 (10th Cir. 2001); Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Engler, 173 F. Supp.2d 725, 727
(W.D.Mich. 2001). In fact, a tribe gains authority to compel a state to
negotiate concerning Class III gaming only after it has obtained "Indian
lands" suitable for a casino site. Engler, 173 F. Supp.2d at 727.
As for the alleged failure to comply with IGRA procedures (Count
Four), 25 U.S.C. § 2179 generally prohibits gaming on trust lands
acquired by the Secretary after October 17, 1988, unless certain
exceptions apply. The defendants assert that the Pokagon casino fits
within an exception for "the restoration of lands for an Indian tribe
that is restored to Federal recognition."
25 U.S.C. § 2179(b)(1)(B)(iii). Plaintiff argues that the Pokagon do
not meet the technical definition of "restored tribe," and that gaming
would be illegal on trust lands unless they comply with a different
exception requiring the Secretary and the Governor of Michigan to
conclude that gaming would be in the best interest of the Pokagon and
would not be detrimental to the surrounding community. Id. §
TOMAC's argument is that "restored to Federal recognition" has a
special meaning within Indian law, reserved exclusively for tribes whose
federal recognition was terminated by congressional action. It emphasizes
that the Pokagon restoration act states that "[f]ederal recognition of
the Pokagon Band of Potawatomi Indians is hereby affirmed,"
25 U.S.C. § 1300j-1 (emphasis added), not reaffirmed. These points
are not convincing. Congress often uses "restore" and "restoration"
interchangeably with "reaffirm" and "recognize" in confirming the status
of tribes whose previous dealings with the United States government was
terminated by administrative action. Sault Ste. Marie Tribe of Lake
Superior Chippewa Indians v. United States, 78 F. Supp.2d 699, 705-07
(W.D.Mich. 1999), remanded on other grounds, 9 Fed. Appx. 457 (6th Cir.
2001); Grand Traverse Band of Ottawa & Chippewa Indians v. United States
Attorney, 46 F. Supp.2d 689, 696-99 (W.D.Mich. 1999); see also
Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt,
116 F. Supp.2d 155, 163-64 (D.D.C. 2000) (concerning definition of
In this case, the title of the Pokagon legislation is "An Act to
restore Federal services to the Pokagon Band of Potawatomi Indians,"
Pub.L. No. 103-323, 108 Stat. 2152 (1994) (emphasis added), and both the
Senate and House committee reports state that the act is designed to
"reaffirm the federal relationship between the United States and the
Pokagon Band." H.R. Rep. No. 103-620, at 1 (1994) (emphasis added); see
also S. Rep. No. 103-266, at 1 ("to reaffirm and clarify the federal
relationship of the Pokagon Band" (emphasis added)). The statutory
findings and legislative history repeatedly emphasize that the U.S.
Government has dealt continuously with the recognized leaders of the Band
since 1795, and that it has concluded numerous treaties with the Pokagon
or their political predecessors, despite the fact that the Department of
Interior prevented the Pokagon from organizing pursuant to the Indian
Reorganization Act of 1934. 25 U.S.C. § 1300j; S. Rep. No. 103-266
at 1-4; H.R. Rep. No. 103-620 at 1-5. The Senate report provides a
particularly strong statement of legislative intent:
The Committee concludes that the Band was not
terminated through an act of the Congress, but rather
the Pokagon Band was unfairly terminated as a result
of both faulty and inconsistent administrative decisions
contrary to the intent of the Congress, federal Indian
law and the trust responsibility of the United States.
In recommending the legislative reaffirmation and
clarification of the federal relationship of the
Pokagon Band, the Committee strongly affirms that the
trust responsibility [of] the United States is not
predicated on the availability of appropriated funds.
Further, the possession of a tribal land base is not
the foundation for determining tribal status.
Documentation submitted to and testimony presented
before the Committee has confirmed that the Pokagon
Band has been continuously recognized as a viable
tribal political entity. The Band's claim of rights
and status as a treaty-based tribe, and the need to
restore and clarify that status, has been clearly
S. Rep. No. 103-266 at 6 (emphasis added).