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The Koi Nation of Northern California v. United States Department of Interior

United States District Court, District of Columbia

January 16, 2019

THE KOI NATION OF NORTHERN CALIFORNIA, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE.

         The federal government's treatment of the plaintiff, the Koi Nation of Northern California (“Koi Nation”), a landless federally recognized Indian tribe, has been marked by decades of mistreatment, including terminating and selling the tribe's reservation in 1956 and denying the tribe the special programs and services provided only to those tribes with federally recognized status. Finally, in 2000, after persistent efforts by the Koi Nation, the defendant, the United States Department of the Interior (“DOI”), acknowledged the “egregious” administrative mistake and reaffirmed the Koi Nation's status as a federally recognized tribe, without requiring the tribe to undergo a formal regulatory process to obtain the same result. In a stark example of the government giving with one hand and taking away with the other, DOI's correction of its own long-standing error is now being used by DOI as the basis to deny the Koi Nation's eligibility for an exception to a statutory prohibition on gaming on Indian land, set out in the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701 et seq., the law that “prescribes the conditions under which Indian tribes may engage in commercial gaming on their reservations, ” City of Roseville v. Norton, 348 F.3d 1020, 1021 (D.C. Cir. 2003).

         The Koi Nation initiated this lawsuit to challenge DOI's decision, on January 19, 2017, to deny the tribe's eligibility for the IGRA exception, known as the “restored lands exception, ” 25 U.S.C. § 2719(b)(1)(B)(iii), as violative of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., IGRA, and the Indian Reorganization Act (“IRA”), 25 U.S.C. §§ 5101 et seq. See Compl. ¶¶ 10, 82-124, ECF No. 1. Pending before the Court are the parties' cross-motions for summary judgment. See Pl.'s Mot. Summ. J. (“Pl.'s Mot.”), ECF No. 14; Defs.' Cross-Mot. Summ. J. (“Defs.' Cross-Mot.”), ECF No. 15. For the reasons explained below, the Koi Nation's motion is granted, and the defendants' motion is denied.

         I. BACKGROUND

         The Koi Nation, known until a name change in 2012 as the “Lower Lake Rancheria, ” is a landless, federally recognized Indian tribe headquartered in Santa Rosa, California. Administrative Record (“AR”) at 1, 3, 4 (Decision Letter (Jan. 19, 2017) (“DOI 2017 Decision”) at 1, 3, 4); AR at 326 n.1 (Letter from Koi Nation to DOI's Assistant Secretary of Indian Affairs (Apr. 28, 2014) (“Koi 2014 Request Letter”) at 1 n.1).[1] Starting in approximately 1956, the United States improperly ignored and mistakenly treated as terminated the Koi Nation's status as a federally recognized tribe. AR at 3-4 (DOI 2017 Decision at 3-4). The Koi Nation has been without a land base or reservation since that time. AR at 3 (DOI 2017 Decision at 3).

         After decades of improperly denying the Koi Nation's status as a federally recognized tribe, DOI “sought to correct its error, ” AR at 4 (DOI 2017 Decision at 4), and, on December 29, 2000, DOI's Assistant Secretary of Indian Affairs reaffirmed the tribe's status as a federally recognized tribe, id.; see also AR at 291 (Letter from DOI's Assistant Secretary of Indian Affairs Kevin Gover to Daniel Beltran, Chairman, Lower Lake Rancheria (Dec. 29, 2000) (“DOI 2000 Recognition Letter”)); AR at 293 (Memorandum from DOI's Assistant Secretary of Indian Affairs Kevin Gover to Bureau of Indian Affairs (“BIA”) Regional Directors of Pacific and Alaska Regions (Dec. 29, 2000) (“DOI 2000 Recognition Memo”) at 4). After reaffirmation in 2000 of the tribe's status, however, the tribe has not generated the revenues necessary to acquire lands in California. See Pl.'s Mem. Supp. Mot. Summ. J. (“Pl.'s Mem.”) at 5, ECF No. 14-1; see also, e.g., AR at 500-01 (Letter from Koi Nation to DOI's Secretary (Mar. 29, 2006) (“Koi Mar. 29, 2006 Request Letter”) at 1-2). As a result, for almost fifteen years, the Koi Nation has sought to improve the economic viability of the tribe by conducting gaming activities under IGRA and, as a first step in this process, requesting from DOI on at least three occasions, in 2006, 2009 and 2014, a determination that the tribe qualifies for the restored lands exception, under which certain gaming is permitted on lands taken into trust as part of “the restoration of lands for an Indian tribe that is restored to Federal recognition.” 25 U.S.C. § 2719(b)(1)(B)(iii); see also AR at 500-01 (Koi Mar. 29, 2006 Request Letter at 1-2); AR at 492 (Koi Nation's 2009 Request to DOI for Restored Tribe Determination (Oct. 7, 2009) (“Koi 2009 Request”) at 1); AR at 326 (Koi 2014 Request Letter at 1).

         The Koi Nation finally received a response to the tribe's multiple requests for a determination on January 19, 2017, when DOI issued the decision challenged in this lawsuit, concluding that the tribe is not eligible to game on lands under IGRA's restored lands exception, in reliance on DOI's implementing regulation, codified at 25 C.F.R. § 292.10. AR at 1-2 (DOI 2017 Decision at 1-2). The Koi Nation now challenges the validity of DOI's 2017 Decision, id., and the subsection of the regulation, 25 C.F.R. § 292.10(b), on which that agency decision relies.

         The Koi Nation's claims involve a complex statutory and administrative framework, as well as a lengthy history of interactions between DOI and the tribe. This context is summarized below.

         A. STATUTORY AND REGULATORY FRAMEWORK

         The parties' dispute over DOI's 2017 Decision implicates several statutes, including IGRA, the IRA, and the Federally Recognized Indian Tribe List Act of 1994 (“List Act”), and various implementing regulations, all of which are reviewed below.

         1. The Indian Gaming Regulatory Act (IGRA)

         IGRA, 25 U.S.C. §§ 2701 et seq., was enacted in 1988 “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments, ” id. § 2702(1), and, at the same time, “to shield [Indian tribes] from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players, ” id. § 2702(2). To these ends, IGRA established the National Indian Gaming Commission (“NIGC”), with certain enumerated powers and responsibilities. Id. §§ 2704-2706.

         IGRA provides that Indian tribes may conduct “Class II” and “Class III” gaming activities only on eligible “Indian lands.” Id. §§ 2710(b)(1), (d)(1). Section 20(a) of IGRA, id. § 2719(a), specifically makes ineligible for such activities “Indian land taken into trust by the Secretary after IGRA's effective date, October 17, 1988, unless the land borders an existing reservation or is within the last recognized reservation of a tribe that was landless at the time IGRA was enacted (unless the tribe is in Oklahoma, in which case lands bordering its former reservation are exempted as well), ” City of Roseville, 348 F.3d at 1024 (summarizing 25 U.S.C. § 2719(a)).

         This gaming prohibition in § 20(a) is subject to two categories of exceptions in § 20(b) (“Section 20 exceptions”). “The first, § 20(b)(1)(A), allows the Secretary of the Interior to override § 20(a) and permit gaming on a newly acquired parcel when, ‘after consultation with the Indian tribe and appropriate State and local officials' the Secretary ‘determines that a gaming establishment . . . would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State . . . concurs . . . .” Id. (quoting 25 U.S.C. § 2719(b)(1)(A)). Alternatively, “[t]he second, § 20(b)(1)(B), exempts lands taken into trust as part of the ‘settlement of a land claim,' ‘the initial reservation of an Indian tribe acknowledged by the Secretary, '” id. (quoting 25 U.S.C. §§ 2719(b)(1)(B)(i), (b)(1)(B)(ii)), or, as relevant here, “the ‘restoration of lands for an Indian tribe that is restored to federal recognition, '” id. (quoting 25 U.S.C. § 2719(b)(1)(B)(iii)). This final exception, known as the “restored lands” exception, see 25 C.F.R. § 292.7, “helps ensure ‘that tribes lacking reservations when [the statute] was enacted are not disadvantaged relative to more established ones, '” Butte Cty. v. Chaudhuri (“Chaudhuri”), 887 F.3d 501, 503 (D.C. Cir. 2018) (quoting City of Roseville, 348 F.3d at 1030).

         2. Relevant IGRA Implementing Regulations, 25 C.F.R. Part 292

         In 2008, DOI promulgated regulations, at 25 C.F.R. § 292, to “implement section 2719 of IGRA by articulating standards that the Department will follow in interpreting the various exceptions” to IGRA's general prohibition on gaming on after-acquired lands. Final Rule, Gaming on Trust Lands Acquired After October 17, 1988, 73 Fed. Reg. 29354, 29354 (May 20, 2008) (“Section 20 Final Rule”); see also 25 C.F.R. § 292.1 (“This part contains procedures that the Department of the Interior will use to determine whether [IGRA's Section 20] exceptions apply.”). The Part 292 regulations included implementation of IGRA's restored lands exception. See 25 C.F.R. §§ 292.7-292.12 (providing DOI's procedures for implementing the restored lands exception).

         Qualification for the restored lands exception involves a multi-part analysis, focusing on whether a tribe is one that is “restored to Federal recognition, ” and whether newly acquired lands on which that tribe seeks to conduct gaming are “restored” lands. See 25 C.F.R. § 292.7. Under 25 C.F.R. § 292.7, a tribe must meet four conditions to qualify for the restored lands exception: (1) “[t]he tribe at one time was federally recognized, as evidenced by its meeting the criteria in § 292.8, ” id. § 292.7(a); (2) “[t]he tribe at some later time lost its government-to-government relationship by one of the means specified in § 292.9, ” id. § 292.7(b); (3) “[a]t a time after the tribe lost its government-to-government relationship, the tribe was restored to Federal recognition by one of the means specified in § 292.10, ” id. § 292.7(c); and (4) “[t]he newly acquired lands meet the criteria of ‘restored lands' in § 292.11, ” id. § 292.7(d). The defendants do not address or otherwise dispute that the Koi Nation meets the first and second conditions, and the fourth condition is not yet met because the tribe remains landless.[2] Thus, the only disputed regulatory condition at issue here is whether the Koi Nation “was restored to Federal recognition” through one of three means specified in 25 C.F.R. § 292.10. Id. § 292.7(c).

         The three methods for an Indian tribe to be restored to federally recognized status to qualify for the restored lands exception in IGRA's § 20(b), are set out in 25 C.F.R. § 292.10, which provides in full:

For a tribe to qualify as having been restored to Federal recognition for purposes of §292.7, the tribe must show at least one of the following:
(a) Congressional enactment of legislation recognizing, acknowledging, affirming, reaffirming, or restoring the government-to-government relationship between the United States and the tribe (required for tribes terminated by Congressional action);
(b) Recognition through the administrative Federal Acknowledgment Process under §83.8 of this chapter; or
(c) A Federal court determination in which the United States is a party or court-approved settlement agreement entered into by the United States.

Id. § 292.10. These three methods of tribal recognition reflected the same methods expressly identified in “Congressional Findings” for the List Act, enacted almost fifteen years earlier. See 25 U.S.C. § 5130 notes (Congressional Findings ¶ 3) (providing that “Indian tribes presently may be recognized by Act of Congress; by the administrative procedures set forth in part 83 of the Code of Federal Regulations denominated ‘Procedures for Establishing that an American Indian Group Exists as an Indian Tribe;' or by a decision of a United States court”). The Koi Nation challenges only the scope of the regulation's subsection (b) here.

         In addition to these three methods to be “restored to Federal recognition” under § 292.10, a separate regulation, codified at § 292.26, exempts from the Part 292 regulations, which were promulgated in 2008, any earlier final agency decisions or opinions regarding the applicability of IGRA's Section 20 exceptions. See 25 C.F.R. § 292.26(a) (stating that the Part 292 regulations “do not alter final agency decisions made pursuant to [Section 20 of IGRA] before” the Part 292 regulations were enacted”); id. § 292.26(b) (stating that the Part 292 regulations “shall not apply” when, before these regulations became effective, DOI or the NIGC “issued a written opinion regarding the applicability of [Section 20] for land to be used for a particular gaming establishment, provided that the Department or the NIGC retains full discretion to qualify, withdraw or modify such opinions”). In other words, § 292.26 provides a “grandfather clause” for such earlier decisions or opinions and protects tribes, for which federally recognized status has been gained prior to 2008 by means other than the three methods outlined in § 292.10, from having to re-litigate their eligibility for Section 20 exceptions.

         3. Process for Federal Acknowledgment of Indian Tribes, 25 C.F.R. Part 83

         Until 1978, the federal government's recognition of Indian tribes “proceeded in an ad hoc manner . . . with [BIA] . . . reviewing petitions for federal recognition on a case-by-case basis.” Mackinac Tribe v. Jewell, 829 F.3d 754, 756 (D.C. Cir. 2016). An “increase” in the number of groups requesting tribal recognition in the 1970s “necessitat[ed]” a “uniform approach.” Final Rule, Procedures for Establishing That an American Indian Group Exists as an Indian Tribe, 43 Fed. Reg. 39361, 39361 (Aug. 24, 1978). To this end, DOI promulgated the Procedures for Federal Acknowledgment of Indian Tribes, now codified at 25 C.F.R. § 83, which provided a “Process for Federal Acknowledgment, ” including “procedures through which Indian groups could seek formal recognition.” Mackinac Tribe, 829 F.3d at 756.[3] A positive determination under Part 83 “will result in Federal recognition status and the petitioner's addition to the Department's list of federally recognized Indian tribes.” 25 C.F.R. § 83.2. Once on that list, the tribe is “eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” List Act, 25 U.S.C. § 5131(a); see also Id. § 5130 notes (Congressional Findings ¶ 3).

         As the D.C. Circuit has summarized, “[a] group seeking recognition under Part 83 must submit a petition to Interior documenting certain criteria, including whether it has been identified as an American Indian entity on a ‘substantially continuous basis' since 1900; whether it comprises a ‘distinct community;' whether it has historically maintained ‘political influence or authority over its members;' and whether its membership ‘consists of individuals who descend from a historical Indian tribe.'” Mackinac Tribe, 829 F.3d at 756 (quoting 25 C.F.R. § 83.11(a)- (c), (e)). A tribe, for which federal recognition has been terminated that seeks to regain federally recognized status administratively, must follow the Part 83 Federal acknowledgment process to obtain recognition, id. at 757, but is entitled to “separate fast tracking provisions, ” with relaxed requirements for obtaining federal recognition, Burt Lake Band of Ottawa & Chippewa Indians v. Norton, 217 F.Supp.2d 76, 79 (D.D.C. 2002); see also 25 C.F.R. § 83.12 (previously codified at 25 C.F.R. § 83.8).

         For eligibility under IGRA's restored lands exception, as implemented in 25 C.F.R. § 292.10(b), a previously terminated tribe may seek recognition administratively, using the Federal acknowledgment process provided under 25 C.F.R. § 83, to satisfy the third condition, under id. § 292.7, that the tribe “was restored to Federal recognition by one of the means specified in § 292.10.”

         4. Federally Recognized Indian Tribe List Act of 1994 (List Act)

         The List Act requires the Secretary to publish annually in the Federal Register a list of federally recognized Indian tribes. See 25 U.S.C. §§ 5130, 5131.[4] As noted, a congressional finding accompanying the List Act describes three avenues for inclusion on the list of federally recognized tribes, id. § 5130 notes (Congressional Findings ¶ 3), which methods of federal recognition are the same three routes included in the regulatory definition for “restored to Federal recognition, ” in 25 C.F.R. § 292.10.

         These same congressional findings further state that “Congress has expressly repudiated the policy of terminating recognized Indian tribes, ” 25 U.S.C. § 5130 notes (Congressional Findings ¶ 5), and task the Secretary “with the responsibility of keeping a list of all federally recognized tribes, ” id. (Congressional Findings ¶ 6), which list “should be accurate, regularly updated, and regularly published, ” id. (Congressional Findings ¶ 7). Congress stressed the need for accuracy in the Federal Register list of federally recognized tribes “since it is used by the various departments and agencies of the United States to determine the eligibility of certain groups to receive services from the United States.” Id.; see also id. (Congressional Findings ¶ 8) (finding that the list “should reflect all of the federally recognized Indian tribes in the United States which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians”).

         The Secretary's list failed to include the Koi Nation as a federally recognized tribe until 2000, with issuance by DOI's Assistant Secretary of Indian Affairs of the DOI 2000 Recognition Memo. AR at 4 (DOI 2017 Decision at 4).

         5. The Indian Reorganization Act (IRA)

         The IRA, enacted in 1934, “marked a shift away ‘from assimilation policies and toward more tolerance and respect for traditional aspects of Indian culture, '” United States v. Jicarilla Apache Nation, 564 U.S. 162, 180 n.8 (2011) (citation omitted), and a return to “principles of tribal self-determination and self-governance” for Indian tribes, Cty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 255 (1992). To further these goals, Congress authorized DOI to purchase land to take into trust for tribes, 25 U.S.C. § 5108, and for tribes to reorganize, id. § 5123, and even form corporate entities in certain circumstances, id. § 5124.

         The IRA was amended in 1994, the same year as enactment of the List Act. In recognition of the sovereignty of federally recognized tribes, the IRA amendments expressly granted federally recognized tribes privileges and immunities, including from application of certain administrative regulations and decisions. See Act to Make Certain Technical Corrections, Pub. L. No. 103-263, § 5(b), 108 Stat. 707, 709 (1994) (now codified at 25 U.S.C. § 5123(f)- (g)).[5] As relevant here, the Koi Nation invokes the provision, set out in 25 U.S.C. § 5123(f), that prohibits the issuance of any federal administrative regulations, decisions, or determinations after May 31, 1994 “with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes.”

         B. FACTUAL BACKGROUND

         The Koi Nation is a federally recognized Indian tribe with origins tracing back to the Village of Koi, located on an island in Clear Lake, California. AR at 1-2, 4 (DOI 2017 Decision at 1-2, 4). On January 25, 1916, the United States, acting through BIA, purchased an approximately 141-acre tract of land in Lake County, California, which became the Koi Nation's Rancheria. AR at 2 (DOI 2017 Decision at 2). Subsequently, on June 5, 1935, BIA “certified a list of twenty Rancheria residents eligible to vote in elections conducted pursuant to the Indian Reorganization Act.” Id. Despite this federal recognition of the tribe, over the next sixty-five years, the federal government sold off the Koi Nation's land and treated the tribe as if it no longer existed, as described in more detail below.

         1. The Sale of the Koi Nation's Rancheria

         In 1951, the Lake County, California Board of Supervisors “contacted . . . BIA about the possibility of acquiring the Rancheria for use as a municipal airport.” Id. BIA advised the Board of Supervisors that any purchase of the Rancheria, in whole or in part, required Congress's approval. Id. Thereafter, on March 29, 1956, Congress enacted legislation to authorize the transfer of the Rancheria to Lake County, with certain amendments enacted on July 20, 1956. AR at 2-3 (DOI 2017 Decision at 2-3). These acts, which together are known as the “Lower Lake Act, ” authorized the Secretary to “complete the sale of the Rancheria to Lake County” and, ever since, the Koi Nation “has been without a land base.” AR at 3 (DOI 2017 Decision at 3).

         Two years later, in 1958, Congress passed the Rancheria Act, authorizing “the Secretary to begin the process of terminating the government-to-government relationship between the United States and several named tribes, and of selling those tribes' lands and distributing the proceeds of those sales to the tribes' members.” Id. DOI immediately began publishing notices of termination in the Federal Register, and many terminated tribes filed lawsuits against the United States challenging DOI's compliance with the Rancheria Act. Id. Many of those cases were resolved through court-approved settlements. Id.

         2. The Koi Nation's Treatment as a Terminated Tribe

         Neither the Lower Lake Act nor the Rancheria Act addressed or authorized termination of the Koi Nation's status as a federally recognized Indian tribe. See Id. (“[T]he Tribe was not among those named in the Rancheria Act, and . . . nothing in the Lower Lake Act effectuated - or even suggested - a termination of the Tribe.”). The United States, however, treated the Koi Nation “as if it had been terminated from approximately the time of the Lower Lake Act's enactment” in 1956. AR at 2-3 (DOI 2017 Decision at 2-3).

         Indeed, BIA repeatedly referred to the Koi Nation's status as a tribe whose federal recognition had been terminated. For example, in a February 1, 1975 publication, BIA's Division of Law Enforcement Services listed the Koi Nation, then known as the Lower Lake Rancheria, as “terminated” pursuant to the Lower Lake Act. See AR at 89-90, 93-94 (Indian Law Enforcement History, BIA Division of Law Enforcement Services (Feb. 1, 1975) (“BIA 1975 Law Enforcement Manual”) at 1-2, 60-61) (listing “Lower Lake” as a tribe terminated in 1956 under the Lower Lake Act); see also AR at 3 & n.22 (DOI 2017 Decision at 3 & n.22). Similarly, on October 21, 1980, a BIA official sought approval from the Acting Director of BIA's Sacramento Area Office to place the Koi Nation on the Federal Register list of federally recognized tribes and added that such approval should “include [the] date restored.” AR at 377 (Memorandum from BIA Sacramento Area Office (Oct. 31, 1980) (“BIA 1980 Memo”)); AR at 396 (NIGC Decision and Order (Oct. 7, 2008) (“NIGC 2008 Decision”) at 3). BIA, however, declined to include the Koi Nation on the Federal Register list of federally recognized tribes. See AR at 377-79 (BIA 1980 Memo).[6] Additionally, BIA, on November 20, 1995, denied the Koi Nation's application for tribal government grant funding because the Koi Nation did “not appear in the February 16, 1995 Federal Register List of Indian entities recognized and eligible to receive services from” BIA. AR at 95 (Letter from DOI to Dino Beltran, Chairman, Koi Nation of the Lower Lake Rancheria (Nov. 20, 1995) (“DOI 1995 Letter”)); see also AR at 3 (DOI 2017 Decision at 3). Likewise, the United States Department of Housing and Urban Development, on December 18, 1995, declined to provide services to the Koi Nation because it was “not recognized as an Indian tribe.” See AR at 398 (NIGC 2008 Decision at 5). The United States' treatment of the Koi Nation as a terminated tribe for nearly five decades meant that the tribe could not establish a reservation or ask for lands to be acquired in trust by the time Congress enacted IGRA in 1988. See AR at 3 (DOI 2017 Decision at 3).

         3. The Koi Nation's Reaffirmation as a Federally Recognized Tribe

         The Advisory Council on California Indian Policy, on behalf of the Koi Nation, wrote to the Assistant Secretary of Indian Affairs, on June 21, 1995, to “confirm the federally recognized status” of the Koi Nation. AR at 313 (Letter from Advisory Council on California Indian Policy to DOI's Assistant Secretary of Indian Affairs, Ada Deer (June 21, 1995) (“California Council 1995 Letter”) at 1). In this letter, the Advisory Council explained that the Koi Nation qualified for administrative recognition, under 25 C.F.R. § 83's Federal acknowledgment process for tribes with previous federal recognition. AR at 313-19 (California Council 1995 Letter at 1-7); see also AR at 4 (DOI 2017 Decision at 4).

         In October and, again, in November 1999, BIA representatives met with the Koi Nation regarding an initiative by DOI's Assistant Secretary of Indian Affairs “to pursue the legislative restoration of a number of tribes presently viewed as terminated.” AR at 82 (Memorandum from Superintendent, BIA's Central California Agency, to BIA's Regional Director, Pacific Region (Sept. 14, 2000) (“BIA 2000 Recommendation Memo”)); AR at 291 (DOI 2000 Recognition Letter). In BIA's view, these meetings resulted in an “understanding” among the attendees that if additional research “suggest[ed]” the Koi Nation “should not be presently considered as terminated, administrative reaffirmation of the Tribe's federal recognition would be sought.” AR at 83 (BIA 2000 Recommendation Memo). Just under a year later, on September 14, 2000, BIA's Central California Agency analyzed the Koi Nation's history, questioned the Koi Nation's treatment as a terminated tribe since “the effect of the Lower Lake Act was not to terminate” the Koi Nation, and recommended reaffirmation of the tribe's recognized status, which had been improperly ignored. See AR at 82-88 (BIA 2000 Recommendation Memo).

         On December 29, 2000, DOI's Assistant Secretary of Indian Affairs, Kevin Gover, issued a letter to the Koi Nation, which “follow[ed] up” on the Fall 1999 meetings. See AR at 291 (DOI 2000 Recognition Letter). After acknowledging “the long-standing and unfortunate omission” of the Koi Nation “from recognition and services” by BIA following the Lower Lake Act and Rancheria Act, DOI's Assistant Secretary of Indian Affairs “reaffirm[ed] the Federal recognition” of the Koi Nation and directed that the Koi Nation be included on the Secretary's list of federally recognized tribes. Id.

         On the same day, DOI's Assistant Secretary of Indian Affairs also issued an internal memorandum discussing reaffirmation of the federally recognized status of the Koi Nation and two other Indian tribes. AR at 293 (DOI 2000 Recognition Memo at 4). This memorandum explained that the three tribes were not “required to go through the Federal acknowledgment process outlined in” 25 C.F.R. § 83 “because their government-to-government relationship continued.” Id. Specifically, the memorandum pointed out that the “acknowledgment regulation does not apply to Indian tribes whose government-to-government relationship was never severed.” Id. Rather, the Part 83 regulation “provides a process for tribes to seek recognition when the tribe has yet to establish such a government-to-government relationship, when a previously existing government-to-government relationship has lapsed, or when the government-to-government relationship was terminated through an administrative process.” Id. In the Koi Nation's case, the tribe was “never administratively terminated nor were [its] relations with the United States broken.” Id. DOI has characterized this agency finding, in December 2000, that the Part 83 Federal acknowledgment process is not available or applicable to the Koi Nation, as an “implicit waiver” of the Part 83 regulations as to this tribe. See Defs.' Opp'n at 23 (stating “Interior does not dispute that it impliedly waived the Part 83 regulations for Plaintiff in 2000 for the purposes of putting Koi on the list of federally recognized tribes, ” and asserting the Part 83 regulations therefore “did not apply” to the Koi Nation); Defs.' Reply at 13-14 (conceding that “Interior waived the Part 83 regulations for Plaintiff” and agency's view that the Part 83 process is not available to the Koi Nation); accord Muwekma, 708 F.3d at 216 (explaining DOI “exercised its broad authority” to reaffirm the Koi Nation, quoting 25 C.F.R. § 1.2, which “authoriz[es] exception to Part 83 process ‘in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians'”).

         The memorandum conceded that, even though the Koi Nation's “tribal status [has] been continuously maintained by the tribal members, ” AR at 295 (DOI 2000 Recognition Memo at 6), “for reasons not clearly understood, [the Tribe was] simply ignored as the BIA went through fundamental organization and philosophical changes, ” and “an administrative error by the [BIA] occurred in the initial failure to place the tribe[] on the Federal Register List of entities recognized and eligible to receive services from the [BIA], ” AR at 293 (DOI 2000 Recognition Memo at 4). Having identified the “egregious oversight” and “unfortunate part of the Bureau's legacy, ” the memorandum concluded that the error “must be corrected” and the tribe's “rightful existence must now be reaffirmed.” Id. Thus, the “Department's 2000 reaffirmation decision was intended to rectify a past wrong, without litigation or utilizing the Part 83 acknowledgement process.” AR at 6 (DOI 2017 Decision at 6).

         4. The Koi Nation's 2006 and 2008 Unsuccessful Requests for a “Restored Tribe” Determination

         After achieving formal recognition again in 2000, almost eight years prior to the promulgation in 2008 of the challenged regulation, 25 C.F.R. § 292.10(b), the Koi Nation requested in 2006 that the Secretary make a determination that the tribe was “restored to Federal recognition, ” under 25 U.S.C. § 2719(b)(1)(B)(iii), and therefore eligible for IGRA's restored lands exception to engage in gaming activities on lands that could be put in trust by the United States for the tribe. AR at 500-01 (Koi Mar. 29, 2006 Request Letter at 1-2). The defendants do not dispute that the Koi Nation received no response from DOI about this request. See Pl.'s Mem. at 18 (stating “[t]he record does not contain a response by DOI”); Pl.'s Reply Supp. Pl.'s Mot. Summ. J. & Opp'n Defs.' Cross-Mot. Summ. J. (“Pl.'s Opp'n”) at 6, ECF No. 18 (“Defendants have not provided any evidence in the [AR] that this 2006 request was answered in a timely manner or at all.”); Defs.' Reply at 2 (leaving uncontested that DOI never responded to the tribe's 2006 request). Apparently, the agency simply ignored this request for a determination of the tribe's eligibility under IGRA's Section 20 exceptions. Such a determination would likely have protected the tribe under the “grandfather” clause of 25 C.F.R. § 292.26, from application of the challenged regulation, id. § 292.10(b), altogether.

         While the 2006 request was pending before the Secretary, on March 17, 2008, the Koi Nation sought approval from NIGC for a gaming ordinance, AR at 394 (NIGC 2008 Decision at 1), which is a necessary approval before a tribe may open a gaming operation on land regulated under IGRA, see 25 U.S.C. §§ 2710(b)(1)(B), (d)(1)(A)(iii). The Koi Nation based the request for a gaming ordinance on the tribe being “a restored tribe within the meaning of 25 U.S.C. § 2719(b)(1)(B)(iii), ” AR at 394 (NIGC 2008 Decision at 1) (emphasis in original), “[a]s a precautionary measure against” publication of a rule that might exclude the tribe from qualifying as a restored tribe, AR at 493 (Koi 2009 Request at 2). NIGC's chairman disapproved the ordinance on June 13, 2008. AR at 414 (NIGC 2008 Decision at 21).

         The Koi Nation administratively appealed that disapproval, AR at 394 (NIGC 2008 Decision at 1), but on October 7, 2008, the full Commission affirmed the Chairman's disapproval, AR at 414 (NIGC 2008 Decision at 21). Although the Koi Nation's “case arouse[d] the Commission's sympathy, ” NIGC rejected the Koi Nation's gaming ordinance both because the tribe was landless and because DOI's December 2000 finding that the tribe was not terminated meant the tribe was not “restored within the meaning of IGRA because it was never terminated.” AR at 395, 401-02, 405-14 (NIGC 2008 Decision at 2, 8-9, 12-21).

         5. DOI's 2008 Promulgation of IGRA Part 292 Regulations

         BIA published a notice of proposed rulemaking, on October 5, 2006, “to establish procedures that an Indian tribe must follow in seeking to conduct gaming on lands acquired after October 17, 1988.” Notice of Proposed Rulemaking, 71 Fed. Reg. 58769, 58769 (Oct. 5, 2006) (“BIA NPRM”).[7] The proposed new rule was intended to “address not only the exception contained in [§ 2719(b)(1)(A) of IGRA], but also the other exceptions contained in [Section 20], in order to explain to the public how the Department interprets these exceptions.” 73 Fed. Reg. at 29354 (Section 20 Final Rule). After extensions, the comment period closed on February 1, 2007. See 71 Fed. Reg. at 58769 (BIA NPRM) (ending initial comment period on December 4, 2006); Extension of Comment Period and Correction for Proposed Rule, 71 Fed. ...


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