United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge
a case that has become unduly complicated. It began when the
Fort Sill Apache Indian Tribe (the Tribe), a federally
recognized Indian Tribe, sued the National Indian Gaming
Commission (NIGC) and Jonodev Chaudhuri, in his official
capacity as Acting Chairman of the NIGC, regarding the status
of the Tribe's land in Akela Flats, New Mexico. The
underlying issue is the Tribe's desire to operate a
casino and the 2015 Decision and Order of NIGC that the Tribe
is not eligible to do so.
some initial skirmishing, the parties asked to stay the case
while they tried to reach a settlement. Months passed without
apparent progress and the Court set a status conference to
determine whether settlement was possible or if the
litigation should proceed. At that status conference on
August 15, 2016, the parties explained a structure upon which
they had agreed, that might possibly, or possibly not,
resolve the lands dispute. To that end, the parties proposed
an order the Court might enter to ensure a more timely
effectuation of the settlement structure. The parties before
the Court agreed that the Department of Interior would submit
a letter to NIGC outlining its opinion on the status of the
lands at Akela Flats, and NIGC would subsequently decide to
reconsider, or not, its decision that the Tribe was
ineligible to conduct gaming in New Mexico. The outcome of
that proposal and this Court's Order was a letter issued
by NIGC in January 2017 (2017 Decision), signed by three
Commissioners, in which NIGC stated it would not reconsider
and affirmed its 2015 Decision and Order (2015 Decision).
parties returned to this litigation and the Tribe filed a
Second Amended Complaint that complains of both the 2017
Decision and 2015 Decision, and added Defendants Department
of the Interior (Interior) and other associated individuals
(collectively, Defendants). Pending before the Court are
Defendants' Motions for Reconsideration and Partial
Dismissal of Plaintiff's Second Amended Complaint.
Defendants insist that the 2017 Decision was not, and could
not be considered, final agency action subject to challenge
before a court.
parties are well aware of the facts of the case; however,
because the parties' motions concern legal issues not
previously considered by the Court, it recites the facts in
Fort Sill Apache Indian Tribe is a federally recognized
Indian tribe. Second Am. Compl. (SAC) [Dkt. 80] ¶ 23.
Originating in what is now New Mexico, the predecessors of
the Fort Sill Apache were forcibly relocated in the 19th
century to Florida, Alabama, and then Oklahoma by the United
States Army following the conclusion of the war against the
Apache leader Geronimo and his people. Id. ¶ 45
(“In 1886, after tribal leader Geronimo and his last
warriors surrendered, the United States imprisoned the entire
Chiricahua and Warm Springs Apache population (including
women, children, and non-combatants) and forcibly expatriated
them . . . . Conditions in the prison camps were brutal: four
years after Geronimo's surrender, a quarter of the
[Apache] were dead.”). After 27 years of incarceration
at Fort Sill in Lawton, Oklahoma, the Apache prisoners of war
were given the choice in the early 20th century to become
members of the separate Mescalero Apache Tribe in New Mexico
or to be released to live without tribal affiliation in
Oklahoma. Id. ¶ 47. Those Apache who chose to
remain in Oklahoma were resettled onto the existing Kiowa,
Comanche and Apache Reservation (KCA Reservation).
Id. These Oklahoma Apache and their descendants now
comprise the Fort Sill Apache Indian Tribe. In the 1970s, the
Fort Sill Apache Indian Tribe successfully undertook the
then-existing Bureau of Indian Affairs (BIA) process to
become federally recognized and eligible for BIA-administered
programs. Id. ¶¶ 48-51.
late 1990s, the Tribe sought to open a gaming facility on
land within the boundaries of the KCA Reservation.
Id. ¶¶ 57-58. The Comanche Nation, a
separate tribal entity which also held lands on the KCA
Reservation, opposed that plan and sued the United States to
stop it. Id. ¶¶ 60-61; see Comanche
Nation, Okla. v. United States (Comanche Nation), Case
No. CIV-05-328-F (W.D. Ok. Mar. 9, 2007). The Fort Sill
Apache Indian Tribe intervened in the lawsuit. SAC ¶ 61.
United States, the Comanche Nation, and the Fort Sill Apache
Indian Tribe ultimately negotiated a three-way settlement
agreement effective as of March 8, 2007 (Comanche Nation
Settlement Agreement). Id. ¶¶ 62-63.
Pursuant to the Comanche Nation Settlement Agreement, the
Fort Sill Apache Indian Tribe agreed to relinquish its lands
on the KCA Reservation and move to a thirty-acre location in
Akela Flats, New Mexico, an area within the Tribe's
ancestral homeland. Id. ¶ 63. For its part, the
government agreed to “withdraw its March 29, 1996
memorandum opinion allowing the Tribe to acquire a land base
on the former KCA Reservation in Oklahoma and to enter into
certain agreements that would assist the Tribe in
establishing equivalent rights in New Mexico.”
Id. (emphasis added).
Section 7 of the Comanche Nation Settlement Agreement, the
parties agreed to several statements, including that the Fort
Sill Apache Indian Tribe is the successor-in-interest to the
Chiricahua and Warm Springs Apache Tribes with aboriginal
lands in Arizona and New Mexico; that the Tribe is a
federally recognized Indian tribe; and that the government
agreed to process timely an application for a reservation
proclamation. Id. ¶¶ 65-70. Years later,
on November 28, 2011, the United States issued that
proclamation. Id. ¶ 71.
the Comanche Nation Settlement Agreement and its relocation
to New Mexico, the Tribe sought to open a gaming location on
its Akela Flats territory; in late 2007, the Tribe received a
Tribal Gaming Commission license for a Class II gaming
facility. Id. ¶¶ 73-74. However, in
February 2008, NIGC issued a “Warning Notice”
that the Akela Flats casino might be operating in violation
of the Indian Gaming Regulatory Act, 25 U.S.C. § 2701
et seq. (IGRA). Id. ¶ 75.
Warning Notice was followed in May 2008 by a written opinion
(the 2008 Opinion) by NIGC's general counsel.
Id. ¶ 76. The 2008 Opinion concluded that the
Akela Flats facility could not meet the requirements of IGRA
because “the Tribe has failed to demonstrate . . . that
the Tribe was acknowledged through the Federal acknowledgment
process.” Id. ¶ 78. The 2008 Opinion
further stated that the Tribe had an inadequate presence in
New Mexico to qualify for an exception. The Tribe
challenged the 2008 Opinion before the Oklahoma district
court presiding over the Comanche Nation Settlement
Agreement, and, ultimately, NIGC withdrew the 2008 Opinion.
Id. ¶ 80.
the withdrawal of the 2008 Opinion, the Tribe resumed plans
to operate a gaming facility and opened a casino on April 9,
2009. Id. ¶ 81. A few weeks later, on April 30,
2009, NIGC's General Counsel “supplemented”
the withdrawn 2008 Opinion with additional information.
Id. ¶ 82. On July 21, 2009, NIGC issued Notice
of Violation 09-35 (NOV 09-35) that ordered the Tribe to
cease gaming activities. Id. ¶ 83. NOV 09-35
explicitly incorporated the reasoning of the (supposedly
withdrawn) 2008 Opinion and its April 30, 2009 supplement.
Id. ¶ 83.
09-35 stated that there was “no way for the Tribe to
cure the alleged violation” and ordered the Tribe to
cease gaming activities immediately or face civil fines of up
to $25, 000 per day. Id. ¶ 86. On September 11,
2009, NIGC informed the Tribe that it would stay imposition
of civil fines if the Tribe agreed to cease gaming operations
at Akela Flats during the pendency of the Tribe's appeal
of NOV 09-35. Id. ¶ 87. Soon after, the Tribe
closed the Akela Flats facility. Id. ¶ 88.
Tribe timely appealed NOV 09-35 to the full NIGC.
Id. ¶ 91. Following a period of several years
without receiving any ruling on that appeal, the Tribe filed
its original Complaint in this matter on June 14, 2014.
Id. ¶ 98; see Compl. [Dkt. 1].
5, 2015, NIGC issued its 2015 Decision on the Tribe's
administrative appeal of NOV 09-35. SAC ¶ 103. The 2015
Decision upheld NOV 09-35 and adopted much of the reasoning
of the 2008 Opinion. Id. ¶ 105. Without notice
of the 2015 Decision, this Court issued a Memorandum Opinion
dated May 15, 2015, which held that the Court had
jurisdiction to compel unreasonably-delayed agency action,
and that the Tribe could proceed on that Count. See
5/12/2015 Mem. Op. [Dkt. 19] at 9. The Court held, however,
that it did not have jurisdiction to hear the Tribe's
claim that NOV 09-35 violated the Administrative Procedure
Act, 5 U.S.C. § 500 et seq., because NOV 09-35
did not constitute final agency action. Id. at 10.
light of the issuance of NIGC's 2015 Decision and the
Court's May 2015 Memorandum Opinion, the Tribe filed a
motion to amend its original Complaint, which the Court
granted by Minute Order on July 20, 2015. The First Amended
Complaint, inter alia, dropped the claim of
unreasonable agency delay and reasserted the claim that NIGC
had acted arbitrarily and capriciously. First Am. Compl.
(FAC) [Dkt. 30] ¶¶ 1, 15-18. The Tribe also added a
separate legal claim that the United States had breached the
Comanche Nation Settlement Agreement. Id.
after the Tribe amended its Complaint, the parties entered
into an extended period of settlement discussions, which
lasted well over a year. The Tribe alleges that the
Defendants proposed the following arrangement during
settlement talks: (1) the Department of Interior would issue
a letter providing its formal position regarding the Akela
Flats' eligibility for gaming, which was indicated to be
positive; (2) with that letter, NIGC would formally
reconsider its 2015 Decision; and (3) pending completion of
this process, the Tribe would agree to a stay of the
litigation in this Court. SAC. ¶ 13. On October
14, 2015, the Court entered a minute order granting the
parties' joint motion to stay litigation.
stay was extended several times at the request of the
parties. The Court held a status conference ten months later,
on August 15, 2016, to obtain an explanation. At that
conference, the parties proposed that the Court enter an
Order to memorialize the agreement described above, with
language supplied by the parties. The next day, the
parties submitted a Joint Proposed Order which read in
[T]he Department of the Interior (“Interior”)
shall issue a letter providing Interior's position
regarding the Fort Sill Apache Tribe's gaming eligibility
under the Indian Gaming Regulatory Act and certain other
matters addressed in the National Indian Gaming
Commission's (“NIGC”) Decision and Order
dated May 5, 2015, and . . . the NIGC shall reconsider its
Decision and Order dated May 5, 2015, in consideration of ...