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Fort Sill Apache Tribe v. National Indian Gaming Commission

United States District Court, District of Columbia

November 28, 2018

FORT SILL APACHE TRIBE, Plaintiff,
v.
NATIONAL INDIAN GAMING COMMISSION, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE

         This opinion will bore all but the litigating parties because it must recall so much of the procedural history of the case. In sum, the present question is whether the December 9, 2016 letter from the Solicitor of the Department of the Interior to the General Counsel of the National Indian Gaming Commission remains privileged and confidential, which bars the Fort Sill Apache Tribe, whose lands are the subject matter of the letter, from reviewing or appreciably contesting it.

         The government asserts that the December 9, 2016 letter (Solicitor's Letter) is a predecisional and deliberative document, but its very terms-provided ex parte to the Court- demonstrate that it was a final and considered direction to the National Indian Gaming Commission (NIGC) from the top legal officer at the Department of the Interior (Interior or DOI). The government further argues that the Solicitor's Letter is protected by the attorney work product doctrine, the attorney-client privilege, and is a confidential settlement communication. Only the attorney-client privilege warrants discussion.

         As detailed below, the Solicitor's Letter was the outcome of an extensive negotiation process among the Chairman of NIGC; the United States of America; DOI; Secretary S.M. Jewell, now Secretary Ryan Zinke, of DOI; the DOI Assistant Secretary-Indian Affairs; the DOI Solicitor; the Department of Justice (DOJ); and the Fort Sill Apache Tribe (the Tribe). It is now more than four years since the Tribe first sued to obtain government action after years of delay. To have DOJ and DOI choose to assert the attorney-client privilege for the Solicitor's Letter, even though they usually waive that privilege for Indian lands opinions, is extraordinarily frustrating for the Tribe.

         Nonetheless, the government is entitled to assert the privilege. Having done so here, its privilege protects the Solicitor's Letter from publication. Other than the Solicitor's Letter, however, the Court will grant the Tribe's request to complete the record with materials indirectly considered by NIGC.

         I. FACTS

         The Fort Still Apache Tribe in New Mexico are descendants of the Apache led by the American Indian warrior Geronimo. It has a storied history that should shame the United States: once defeated, the Tribe was forced from its aboriginal lands in New Mexico to imprisonment in Florida under horrible conditions, then to imprisonment in Alabama under horrible conditions, and then to imprisonment in Fort Sill, Oklahoma. These and other details may be critical to a final decision in this matter. For now, it is sufficient to note that the Fort Sill Apache Tribe was listed in 1979 on the first published list of tribes officially recognized by the United States Government.

         The Fort Sill Apache have long desired to operate a casino at Akela Flats, New Mexico, which is part of its proclaimed reservation in that State. When it opened a gaming facility at Akela Flats in April 2009, the Chairman of NIGC issued a Notice of Violation (NOV) asserting that the Tribe had violated the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701, 2719, because the lands were ineligible for gaming. Pending an expedited appeal to the full Commission, the Tribe shuttered the casino. When, after five years the Commission had not yet issued any decision, the Tribe sued in 2014 for unreasonable delay in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. By opinion issued on May 12, 2015, this Court refused to dismiss the lawsuit, see Fort Sill Apache Tribe v. NIGC, 103 F.Supp.3d 113 (D.D.C. 2015) (Ft. Sill I), and three days later the Commission finally decided that the lands at Akela Flats were ineligible for gaming. Ex. 1, First Am. Compl., Decision and Order (2015 Decision) [Dkt. 30-1]. The Tribe amended its Complaint to allege that the NIGC 2015 Decision was arbitrary and capricious and in violation of law. See First Am. Compl. [Dkt. 30]; see also Second Am. Compl. [Dkt. 80].

         The parties then turned their attention to settlement efforts. The Court belabors this history because it illustrates the constant delays:

• 10/13/15 Joint Motion to Stay (30 days) for settlement discussions among the Chair, NIGC; United States; Department of Interior (DOI); S.M. Jewell, Secretary, DOI; Kevin Washburn, DOI Assistant Secretary, Indian Affairs; Board of Indian Affairs; DOI Solicitor's Office; Department of Justice (DOJ) and the Tribe [Dkt. 42];
• 11/16/14 Jt. Motion to Continue Stay (30 days) [Dkt. 43];
• 12/16/15 Jt. Motion to Continue Stay (90 days) [Dkt. 44];
• 2/01/16 Jt. Status Report and Motion to Continue Stay (47 days) [Dkt. 45];
• 3/17/16 Jt. Motion Nunc Pro Tunc to Continue Stay (91 days) [Dkt. 46];
• 6/1/16 Jt. Motion to Continue Stay (76 days) [Dkt. 47];
• 7/6/16 Jt. Motion to Stay (35 days) [Dkt. 48];
• 8/15/16 Court-ordered Status Conference;
• 9/16/16 Telephone conference ...

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