[00:00:00] Speaker 00: case number 16 at 5327 and L. Stand up for California at L. Appellants, Peking Yuen, Rancheria of the Choo Chansey Indians, a federally protected Indian tribe, versus United States Department of the Interior at L. Mr. Sherlock for Appellants, stand up for California at L. Mr. Robinson, Appellant Peking Yuen, Rancheria of the Choo Chansey Indians. [00:00:25] Speaker 00: Mr. Toss for the Appellees and Mr. Waxman for the Intervener. [00:01:10] Speaker 06: Yeah, they could do it swiftly, please. [00:01:27] Speaker 06: Okay. [00:01:28] Speaker 05: May it please the court? [00:01:29] Speaker 05: Good morning. [00:01:30] Speaker 05: Sean Sherlock for the Stand Up for California Appellants. [00:01:34] Speaker 05: I would like to focus my argument this morning on three issues, all three having to do with the issue of whether or not this applicant tribe was under federal jurisdiction in 1934. [00:01:47] Speaker 05: As the Court is probably aware, the Secretary in this case concluded that this applicant tribe was under federal jurisdiction in 1934, but solely on the basis that there was an election held under Section 18 of the Indian Reorganization Act for this tribe. [00:02:09] Speaker 05: And we have argued and pointed out that the Section 18 election standing alone cannot be evidence of a tribe being under federal jurisdiction in 1934, because it's not even evidence of the existence of a tribe. [00:02:24] Speaker 05: The District Court, of course, disagreed with us, and it cited to Section 19 of the Act and Section 19's definition of tribe as including the Indians residing on one reservation. [00:02:40] Speaker 05: And based on that definition, the District Court concluded that the six Indians who were given ballots to vote in the Section 18 election at the North Fork Rancheria in 1935 [00:02:53] Speaker 05: were, per se, a tribe. [00:02:57] Speaker 05: And we submit that that conclusion, that interpretation of the statute, while it may be convenient for this tribe in this particular case, that it could lead to absurd results and create bad precedent. [00:03:11] Speaker 03: And primarily, we owe some deference to the agency and its interpretation of that statute, don't we? [00:03:18] Speaker 05: Well, I don't think so, because the agency actually didn't make that interpretation in this case. [00:03:24] Speaker 05: The agency, in the record of decision, does not conclude that the Indians residing on one reservation are a tribe. [00:03:34] Speaker 05: And even here on this appeal, the agency has not advanced that argument, despite the district court's reliance on that argument. [00:03:42] Speaker 05: And we have pointed out that the language of Section 18, the plain language of Section 18, makes it clear that a Section 18 election is not for tribes. [00:03:52] Speaker 05: It is an election for adult Indians at reservations. [00:03:56] Speaker 05: And it specifically omits any mention of tribes. [00:04:01] Speaker 05: And there are two main points that I'd like to make this morning on this issue. [00:04:06] Speaker 05: First is when we look at the solicitor's memos from 1934, it is clear that the government at that time in 1934 understood the Section 19 definition of tribe as including the Indians residing on one reservation. [00:04:22] Speaker 05: to mean that all of the Indians residing on one reservation could organize as a tribe if they chose to do so. [00:04:32] Speaker 05: And this is entirely consistent, of course, with congressional policy of tribal choice and autonomy. [00:04:39] Speaker 05: Whether a tribe chooses to exist or to organize as a tribe is purely a matter of tribal choice and autonomy. [00:04:51] Speaker 05: and the only way to harmonize the definition of tribe in Section 19 with that congressional policy. [00:04:57] Speaker 03: Excuse me, but Section 18, the district court relied on, says defines a tribe as any tribe, et cetera, et cetera, or the Indians residing on a reservation. [00:05:11] Speaker 05: Yes. [00:05:12] Speaker 05: The definition is any Indian tribe, organized band, Pueblo, or the Indians residing on one reservation. [00:05:20] Speaker 03: Or the Indians residing on one reservation. [00:05:23] Speaker 03: So I don't understand why the district court wasn't correct. [00:05:26] Speaker 03: I still don't get that. [00:05:27] Speaker 05: Well, because the district court used that definition to interpret the statute to mean that, per se, the Indians residing on one reservation must be a tribe. [00:05:38] Speaker 05: Isn't that what it says? [00:05:42] Speaker 05: It does say that. [00:05:44] Speaker 06: They used the definition to interpret the statute. [00:05:47] Speaker 06: The definition is the statute. [00:05:50] Speaker 06: But in order to reconcile that with the purpose of the act and to discern congressional intent, which is ultimately... I thought we had some very strong language from the Supreme Court that we are supposed to look at the text and look at policy and other matters only if the text is at least somewhat ambiguous. [00:06:11] Speaker 06: This doesn't seem ambiguous at all, unless you can tell me why it's ambiguous. [00:06:17] Speaker 06: The term tribe, whenever used in this act, shall be construed to refer to dot dot dot the Indians residing on one reservation. [00:06:28] Speaker 06: That was Judge Tatel's point. [00:06:32] Speaker 06: What's ambiguous about that? [00:06:33] Speaker 05: Well, there are multiple different categories there. [00:06:37] Speaker 05: And it may very well be that the tribe, a tribe could [00:06:44] Speaker 05: We know from the historical record, occupying more than one reservation. [00:06:48] Speaker 05: Tribes could – there were multiple tribes occupying a single reservation at the time. [00:06:55] Speaker 05: We have this historical evidence in the way of, for example, the Quinault reservation. [00:07:00] Speaker 05: So does that mean Congress was just wrong? [00:07:02] Speaker 05: Well, no, I think that the intent that Congress had, as indicated in the solicitors' memos at the time the act was passed, and again, to try to reconcile this with congressional policy, the policy of the IRA to preserve tribal choice and autonomy. [00:07:25] Speaker 03: Do you have another argument on this point? [00:07:27] Speaker 05: No, only that. [00:07:29] Speaker 05: There's no evidence in the record, of course, that the seven or six Indians at the North Fork Rancheria in 1934 had chosen in any way to organize or identify themselves as a tribe, per se. [00:07:43] Speaker 06: Is there any evidence that those Indians were on more than one reservation? [00:07:49] Speaker 06: No, there is not. [00:07:50] Speaker 06: So I thought maybe you're going to make the argument, well, one [00:07:56] Speaker 06: reading of the exact words here is that if they're residing on more than one reservation, they're not a tribe, but you don't have any evidence to suggest that's the circumstance in this case. [00:08:06] Speaker 05: No, the evidence in this case, and that brings me to another point, but the evidence in this case indicates that the Rancheria was purchased for [00:08:15] Speaker 05: the Indians in the vicinity or in the geographical term, and that these Indians had varying tribal affiliations in the past. [00:08:25] Speaker 05: And not that there was – not that this applicant tribe existed at that time. [00:08:32] Speaker 05: And so the evidence here overall is far from clear. [00:08:40] Speaker 05: as to whether or not there was a tribe in existence at that time, and certainly far from clear whether it was this applicant tribe. [00:08:49] Speaker 05: And nevertheless, the district court endeavored to interpret that evidence and relied on certain historical documents to reach the conclusion that this tribe was under federal jurisdiction at that time. [00:09:04] Speaker 05: As we've said, considering that the secretary is the one who possesses expertise in matters of tribal recognition and history, it was error for the district court to interpret the historical record, the historical documents, when the secretary specifically chose not to interpret that historical information and instead to rely solely on the conduct of the Section 18 election. [00:09:31] Speaker 06: Can I ask you, if [00:09:37] Speaker 06: The reading were the one that Judge Taylor and I are suggesting, of course. [00:09:41] Speaker 06: We haven't made that decision. [00:09:43] Speaker 06: But if that were the reading, under those circumstances, then would the fact that there was an election be sufficient to say that they're under jurisdiction? [00:09:53] Speaker 05: It would be sufficient, I believe, to say that a tribe was under jurisdiction. [00:09:59] Speaker 05: If the Court reaches a conclusion that the Section 18 election is evidence of a tribe, which again we dispute, then yes, the Section 18 election, I would concede, would be evidence of that tribe being under jurisdiction. [00:10:11] Speaker 06: Even though the election itself takes place in 1935. [00:10:14] Speaker 05: I think that's fair. [00:10:16] Speaker 05: We're not making an argument over that. [00:10:17] Speaker 06: And that, I take it, is because of the now word in the statute. [00:10:24] Speaker 05: Yes, the now being at the time the law was enacted and the Section 18 election being an action taken in furtherance of the enactment of the law, yes. [00:10:34] Speaker 03: And the requirement that it be within one year. [00:10:37] Speaker 05: Yes, yes. [00:10:39] Speaker 05: Even if the Court does determine that the Section 18 election was evidence of a tribe, we still have the problem of, was it this applicant tribe? [00:10:50] Speaker 05: There is still a gap in the record there. [00:10:52] Speaker 05: And the District Court erred there again in essentially relying entirely on the Tilley-Hardwick decision, or I should say the Tilley-Hardwick stipulated judgment, which was entered in 1983 [00:11:05] Speaker 03: Oh, wait, wait. [00:11:05] Speaker 03: Let me take you back. [00:11:06] Speaker 03: In 1958, the government ended its trust relationship with the North Fork Tribe, right? [00:11:13] Speaker 05: No, that is not correct. [00:11:14] Speaker 05: Oh, it's not? [00:11:16] Speaker 05: In 1958, Congress passed the Rancheria Termination Act. [00:11:20] Speaker 05: But that act does not terminate the government's relation with tribes. [00:11:24] Speaker 05: It terminates the government's relation with rancherias and [00:11:29] Speaker 05: with the individual Indians who were distributees of the Rancheria land. [00:11:35] Speaker 05: That can be found in sections 10 and 11 of the Rancheria Act, but it did not terminate relationships with tribes. [00:11:44] Speaker 05: And so what we have in the record with this Tilly Hardwick stipulation, or stipulated judgment, is it's got two components to it. [00:11:55] Speaker 03: In one component... Excuse me, but it does, under that, it does recognize the North Fork tribe, right? [00:12:00] Speaker 05: The Tilley, yes, there are two components of the Tilley-Hardwick judgment. [00:12:06] Speaker 05: One says that the plaintiffs, the named plaintiffs, which includes the North Fork tribe, shall be restored to the same status that they possessed prior to the termination. [00:12:20] Speaker 05: That still begs the question, well, what was that status? [00:12:23] Speaker 05: And we know from the government's federal register notice [00:12:28] Speaker 05: that there was no notice of a termination of a North Fork tribe. [00:12:33] Speaker 05: There was simply the notice that the rancheria was going to be distributed to its sole occupant, Mrs. Susan Johnson, and I believe also her two adult sons. [00:12:45] Speaker 05: But there was no mention of a tribe. [00:12:46] Speaker 05: In fact, it expressly states that these people, Ms. [00:12:51] Speaker 05: Johnson and her two sons, were not members of any tribe. [00:12:55] Speaker 05: And so it still begs the question, well, what was the North Fork Rancheria's status prior to the termination? [00:13:02] Speaker 05: The second part of the Tilly Hardwick judgment, that's the part that says, and these plaintiffs shall be recognized as tribal entities and listed on the secretary's list of tribal entities. [00:13:17] Speaker 05: That is a provision by which this applicant tribe gained recognition. [00:13:22] Speaker 03: With the same status that they previously had, right? [00:13:25] Speaker 03: That's what it says. [00:13:36] Speaker 05: I'm referring to Section 4 of the stipulation. [00:13:39] Speaker 05: And the second portion that I'm referring to says, said tribes, bands, communities, and groups shall be included on the Bureau of Indian Affairs Federal Registered List of Recognized Tribal Entities pursuant to 25 CFR Section 83.6. [00:13:54] Speaker 03: Is an Indian entity with the same status as it possessed prior [00:14:01] Speaker 05: Yes, that is the first portion of paragraph four that I was referring to. [00:14:08] Speaker 03: So in that, the first portion says the secretary means – Doesn't that say what the Interior Department – doesn't that say what the secretary says it says, that it restored that is a North Fork threat? [00:14:21] Speaker 05: I don't believe the first part of that sentence. [00:14:26] Speaker 05: actually is the portion by which North Fork Rancheria gained recognition. [00:14:32] Speaker 05: All that section says is, whoever was terminated under the Rancheria Act shall be restored to that same status. [00:14:41] Speaker 05: But it's the second part of the sentence following the word and by which the tribes, bands, communities, et cetera, and this applicant tribe in particular, gained federal recognition. [00:14:55] Speaker 06: The Federal Register list of recognized tribal entities, is that the same thing as tribes or not? [00:15:03] Speaker 06: The current list, I believe so. [00:15:05] Speaker 06: What about in the year of the Hardwick stipulation? [00:15:12] Speaker 06: What confused me a little bit, as it said, that the tribes, bands, communities, groups of the ranchery is listed in paragraph one, which included North Park. [00:15:22] Speaker 06: shall be included on the Federal Register list of recognized tribal entities. [00:15:29] Speaker 05: Yes. [00:15:29] Speaker 05: Well, it uses a term in the paragraph, tribes, bands, communities, or groups. [00:15:36] Speaker 05: So it's not necessarily acknowledging that all of these entities listed in paragraph one were tribes. [00:15:43] Speaker 05: They could have been communities. [00:15:45] Speaker 05: They could have been groups. [00:15:46] Speaker 06: What happened when they were listed? [00:15:47] Speaker 06: How were they listed? [00:15:49] Speaker 06: How was North Fork listed? [00:15:52] Speaker 05: When North Fork, I don't know or I'm afraid I can't really answer how they were listed. [00:15:58] Speaker 05: You mean in 1984 pursuant to the stipulation? [00:16:02] Speaker 05: Yeah. [00:16:04] Speaker 05: I don't recall what the listing is, whether it just says North Fork or North Fork Ranchery of Mono Indians. [00:16:08] Speaker 05: I believe currently, for what that's worth, it lists them as North Fork Ranchery of Mono Indians. [00:16:14] Speaker 05: As a tribe. [00:16:16] Speaker 05: Yes, certainly. [00:16:17] Speaker 05: Certainly coming out of this Tilly Hardwick stipulation, there was a tribe. [00:16:24] Speaker 06: I have one more question for you. [00:16:28] Speaker 06: Some of the, of your opposing counsel also refer to the land appropriation in 1913, that act which was for the benefit of some of these Indians. [00:16:45] Speaker 06: I appreciate your argument that that's not the grounds for the decision, although it's listed as the next paragraph. [00:16:52] Speaker 06: What if it were the grounds for the decision? [00:16:55] Speaker 05: Well, again, I don't think it would be a valid ground for the decision, because the 1913 Act merely appropriated money for the Secretary to acquire land for California Indians generally, and not for – certainly not for this applicant tribe specifically. [00:17:14] Speaker 05: There's no question about it that Congress wanted to acquire these rancherias to provide land, because at the time, the state of California Indians was, well, not very good, to put it mildly. [00:17:30] Speaker 06: Okay, further questions? [00:17:31] Speaker 03: No, I'm done. [00:17:32] Speaker 03: Thank you. [00:17:32] Speaker 05: Thank you. [00:17:38] Speaker 06: Mr. Robbins? [00:17:44] Speaker 01: May it please the court, Michael Robinson on behalf of the Pequen Rancheria of the Tshansi Indians. [00:17:50] Speaker 01: In my comments, I would like to focus on primarily one issue, and that is the gaming eligibility determination for the Madera site. [00:17:59] Speaker 01: And from our perspective, there's one line in the secretary's opposition brief that sums up the problem and the issue here. [00:18:09] Speaker 01: And that's when the secretary says, we don't know. [00:18:13] Speaker 01: whether or not the outcome of the secretary's decision would be different if he fully contemplated the impacts on the Juchansi tribe. [00:18:24] Speaker 01: And it's obviously our position that the Indian Gaming Regulatory Act requires them to do just that. [00:18:30] Speaker 01: Authorized reservation gaming exception under IGRA is the most extreme. [00:18:34] Speaker 01: It's potentially the most impactful. [00:18:36] Speaker 01: Definitely has the most potential impact on other gaming tribes that are gaming on their reservations. [00:18:42] Speaker 01: That's why there is the requirement to analyze the detriment. [00:18:49] Speaker 03: But the statute says surrounding community, and the regulation defines surrounding community as 25 miles, and your client's more than 25 miles away. [00:18:58] Speaker 01: That's correct, Your Honor. [00:19:00] Speaker 01: It does define the surrounding community that way. [00:19:02] Speaker 01: But it does include an exception to that. [00:19:05] Speaker 01: And it includes an exception for tribes or local communities that can show that they'll suffer significant impacts by the gaming facility. [00:19:13] Speaker 03: But the Secretary here has concluded that you haven't shown that. [00:19:19] Speaker 01: Well, no, the Secretary concluded that we did show it. [00:19:22] Speaker 01: The Secretary, in his record of decision, admitted that under the facts, and because of the impacts, and because of the proximity of Pecune was from the proposed site, that he felt compelled to consult with Pecune and to consider the impacts. [00:19:39] Speaker 03: And he considered it, and he considered the benefit was – outweighed that. [00:19:44] Speaker 03: Right? [00:19:45] Speaker 03: That was his conclusion. [00:19:46] Speaker 01: Well, he did conclude that. [00:19:49] Speaker 01: The problem is that conclusion isn't based on any evidence in the record. [00:19:56] Speaker 01: He concluded that by saying, I believe that the benefits outweigh it, and therefore the benefits outweigh it. [00:20:01] Speaker 01: Well, he found specifically with regard to the Pecun tribe that it would suffer at least a 19% loss of revenues. [00:20:08] Speaker 01: And then he said, I'm discounting those impacts. [00:20:11] Speaker 01: I'm discounting the comments. [00:20:13] Speaker 01: by Pecune because of their distance from the proposed site. [00:20:19] Speaker 01: Well, that distance is – when you take that approach to it, what you're doing is you're requiring a tribe to show the hypothetical impacts if they were closer. [00:20:30] Speaker 01: As we argue in our papers, the impacts that he recognized Pecune will suffer – Pecune will suffer. [00:20:39] Speaker 01: When the department was explaining the basis for its rule and the 25 mile radius, what they made clear was that 25 mile radius rule was intended to be flexible because what they recognized was the determination of all the detrimental impacts. [00:20:57] Speaker 01: was the more important inquiry. [00:20:59] Speaker 01: It was more important than the 25 miles. [00:21:02] Speaker 01: And when you're talking about other tribes that are gaining on the reservation or remote areas. [00:21:08] Speaker 03: You're arguing a subject that we look at in about as deferential a way as a court can. [00:21:15] Speaker 03: We're looking at the agency's interpretation of its own regulation, and it's a question of whether evidence supported that. [00:21:24] Speaker 03: You have sort of a double problem here. [00:21:27] Speaker 03: So looking at it that way, that is from the way we look at it, what's your strong – you're not arguing they violated their own regulation. [00:21:36] Speaker 03: You're arguing basically there wasn't sufficient evidence to support the ultimate judgment the Secretary made, right? [00:21:41] Speaker 01: Well, we're arguing that they violated the intent of IGRA. [00:21:44] Speaker 01: We're arguing – And how did they do that? [00:21:46] Speaker 03: Pardon me? [00:21:47] Speaker 03: So are you arguing the regulation is invalid, that the 25-mile rule is invalid? [00:21:53] Speaker 01: We're not arguing that the 25-mile rule is invalid. [00:21:55] Speaker 01: We're arguing that the 25-mile rule, by its own definition, is flexible. [00:22:01] Speaker 03: That's my point. [00:22:03] Speaker 03: The Secretary has interpreted it differently than you have. [00:22:08] Speaker 01: In the 25-mile rule, there is a specific provision that allows for other communities to participate in the consultation process. [00:22:16] Speaker 03: And it did that. [00:22:17] Speaker 03: The Secretary did that. [00:22:19] Speaker 01: And he did do that. [00:22:20] Speaker 01: But then he didn't tell us what weight he was giving those comments, if any. [00:22:24] Speaker 03: He didn't tell us if those... He said less weight than if you had been within the 25 miles. [00:22:30] Speaker 03: He – that's exactly what he said, and the problem for us is that – Isn't that sort of a logical conclusion from the way the – I mean, you could certainly interpret the regulation the way you have. [00:22:40] Speaker 03: That is, once the Secretary looks beyond 25 miles, he has to give it equal weight to everything else. [00:22:45] Speaker 03: But the Secretary didn't interpret it that way. [00:22:49] Speaker 01: Well, I don't see how you can. [00:22:51] Speaker 01: That defeats the entire purpose of the consultation process. [00:22:54] Speaker 01: Because the consultation. [00:22:55] Speaker 03: Well, I just, it didn't reject. [00:22:56] Speaker 03: That would have happened if they had refused to consider the impact on your client. [00:23:01] Speaker 03: But it didn't. [00:23:02] Speaker 01: It's standardless, though, Your Honor. [00:23:04] Speaker 01: He didn't tell us what standard he was using. [00:23:06] Speaker 01: He didn't give us any information about how he was considering the weight of the human, or if he gave it any weight whatsoever. [00:23:12] Speaker 01: What he did say in his record of decision is that if it is shown [00:23:15] Speaker 01: that a tribe with on-reservation gaining will suffer detrimental impacts from an off-reservation proposal, the off-reservation proposal will not be approved. [00:23:25] Speaker 01: He found, specifically, that the Kuhn would suffer, that your cancer tribe would suffer detrimental impacts of a minimum of a 19% loss in revenues. [00:23:34] Speaker 01: He found that they were going to suffer significant impacts to include them in the consultation process. [00:23:40] Speaker 07: But he said they were counterbalancing, they said they were counterbalancing positive effects. [00:23:48] Speaker 07: If they had found no counter-balancing positive effects, you would have won. [00:23:54] Speaker 07: So he has given us, they have given us a standard. [00:23:57] Speaker 07: It's not going to be as precise as you would like because it's impossible. [00:24:03] Speaker 07: They said there was significant counter-balancing [00:24:06] Speaker 07: positive effects. [00:24:07] Speaker 07: You don't like what they're weighing, but nonetheless, the question is, is there something wrong with what they weighed against what you're pointing to? [00:24:16] Speaker 07: They considered the negative effects that you pointed to, and they said, [00:24:19] Speaker 07: They're countervailing positive effects. [00:24:21] Speaker 07: And we're weighing those. [00:24:22] Speaker 07: And in our mind, they're sufficiently happy. [00:24:25] Speaker 07: And that's that. [00:24:26] Speaker 01: They did that, Your Honor, exactly. [00:24:29] Speaker 01: But they did it with giving lesser weight. [00:24:31] Speaker 01: We don't know what weight. [00:24:33] Speaker 01: And there's nothing in the regulations. [00:24:35] Speaker 01: There's nothing in the Indian Game and Regulatory Act that says that the Secretary can grant or take. [00:24:42] Speaker 03: Is there anything in the act or the regulation that prohibits the Secretary from doing what it did? [00:24:46] Speaker 01: the intention of IGRA. [00:24:48] Speaker 03: No, but what? [00:24:49] Speaker 03: What in the statute? [00:24:50] Speaker 01: Pardon me? [00:24:51] Speaker 03: The statute says nearby community, right? [00:24:56] Speaker 01: IGRA expresses... Doesn't it say that? [00:24:59] Speaker 01: Yes, it does. [00:25:00] Speaker 03: The surrounding community. [00:25:01] Speaker 03: Sorry, it says surrounding community, right? [00:25:03] Speaker 03: It does say surrounding community. [00:25:05] Speaker 03: So Congress has adopted this standard, surrounding community, and the agencies defined it. [00:25:11] Speaker 03: And I just – so I go back to my question. [00:25:14] Speaker 03: What in the statute prohibits the Secretary from doing what it did here? [00:25:17] Speaker 03: I think when you're dealing with another Indian – Because that's the argument – you have to be able to come up with an answer to that to win. [00:25:24] Speaker 01: Could you repeat the question for me again? [00:25:26] Speaker 01: I apologize. [00:25:27] Speaker 03: Yeah, the question is what in the statute or the regulation prohibits the Secretary from doing what it did. [00:25:31] Speaker 01: Well, I think to get to that, we have to look at the intent of Igrinus' intention to protect all tribes. [00:25:38] Speaker 01: But no, it says surrounding community. [00:25:40] Speaker 01: It does say surrounding community. [00:25:41] Speaker 01: That has to have some meaning. [00:25:43] Speaker 01: And so do the exceptions. [00:25:45] Speaker 01: the exceptions that allow a tribe to become part of the surrounding community. [00:25:49] Speaker 06: Can I ask you about that? [00:25:50] Speaker 06: So this is where I hate being such a stickler here on the text. [00:25:54] Speaker 06: But since I did it in the last case, I'll do it in this case. [00:25:58] Speaker 06: So the text of the statute says surrounding community, as Judge Tatel said. [00:26:04] Speaker 06: The regulation says surrounding community is 25 miles, and you're not in it. [00:26:08] Speaker 06: So if that were the end, you would be done, right? [00:26:12] Speaker 06: Correct. [00:26:12] Speaker 06: Then it does not go on and say, we're making an exception to the meaning of surrounding community, which is the way you're reading the regulation. [00:26:20] Speaker 06: It just says that a local government or Indian tribe beyond the 25-mile radius can petition for consultation. [00:26:27] Speaker 06: It doesn't say that makes them a part of the surrounding community. [00:26:31] Speaker 06: It just says they can petition for consultation. [00:26:34] Speaker 06: included among the others who are consulted are the governor, who as far as I know is not within 25 miles and is not part of the surrounding community, state officials who are also not part of the surrounding community. [00:26:49] Speaker 06: So they get to consult, but they don't get to be considered part of the surrounding community. [00:26:56] Speaker 06: Why do you keep referring to this as an exception to the definition of surrounding community, rather than, as it says, to an exception that allows consultation for people who are not in the surrounding community? [00:27:15] Speaker 01: When you look at the explanation and the purpose that the Secretary attached to that 25-mile radius rule, [00:27:23] Speaker 01: The reason I'm saying it's an exception to the surrounding communities is because what they said in specifics with regard to the 25 mile radius rule is that it was intended to be flexible. [00:27:35] Speaker 01: The surrounding community definition was intended to be flexible so that they could determine all of the detrimental impacts. [00:27:42] Speaker 03: Which they did. [00:27:43] Speaker 01: Pardon me? [00:27:44] Speaker 03: It's exactly what the Secretary did. [00:27:47] Speaker 01: I'm sorry? [00:27:48] Speaker 03: It's exactly what the Secretary did. [00:27:53] Speaker 03: It took account of all the impacts and balanced them against each other. [00:27:59] Speaker 03: It's very hard without giving us something in the statute of the regulation they're violating to find a basis for us upsetting that judgment. [00:28:10] Speaker 01: I appreciate that. [00:28:12] Speaker 03: I haven't heard it from you yet. [00:28:14] Speaker 03: I didn't see it in your briefs. [00:28:18] Speaker 01: Well, I think how we tried to explain it in the brief was that when you're dealing with another, again, when you're dealing with another Indian tribe, and I apologize for coming back to this, but I think it's of critical importance. [00:28:28] Speaker 01: When you're dealing with another Indian tribe in the local area, those impacts are even more important. [00:28:34] Speaker 01: The Pecune tribe, it's the Chachancee tribe, its only economic engine is that casino that it has. [00:28:40] Speaker 01: It's all it has. [00:28:41] Speaker 01: The secretary owes responsibility to them as well as to North Fork and all the other tribes. [00:28:46] Speaker 01: And so when they've shown the significant impacts that would include them in the consultation, it's more important, because of the secretary's duty to all the tribes, it's more important at that point for the secretary to take a hard look at the impacts, consider them at full weight, [00:29:03] Speaker 01: and then make a decision on whether or not it will approve the off-reservation gaming project. [00:29:07] Speaker 03: That's certainly one view of the way it could be, Ron. [00:29:10] Speaker 03: It's just not the one the Secretary operates. [00:29:13] Speaker 03: That's all. [00:29:14] Speaker 06: Any further questions from the bench? [00:29:17] Speaker 06: No. [00:29:17] Speaker 06: Thank you. [00:29:22] Speaker 06: We'll hear from Mr. Toth. [00:29:28] Speaker 02: Morning, Honors. [00:29:28] Speaker 02: Brian Toth from the Department of Justice, representing the Federal Appellees. [00:29:32] Speaker 02: I'd like to start with the Indian Reorganization Act. [00:29:35] Speaker 02: I'd first like to dispute this characterization of the record decision as relying exclusively on the Section 18 election as evidence that the tribe was under federal jurisdiction in 1935. [00:29:47] Speaker 02: If you look at the sentence of the raw itself, it says, it refers to the fact that an election was conducted at the tribe's reservation. [00:29:56] Speaker 02: This is on page, the Joint Appendix 4095. [00:29:59] Speaker 02: And then in the next paragraph, as the Chief Judge mentioned, talks about the purchase of that reservation, also known as the Rancheria. [00:30:07] Speaker 02: And as the District Court found, that Rancheria was purchased not for a group of disaggregated Indians, but for the use of the North Fork Band of landless Indians. [00:30:20] Speaker 06: That's by relying on the Terrell letters? [00:30:22] Speaker 02: That's right. [00:30:22] Speaker 02: The Terrell letters are best evidence of that. [00:30:24] Speaker 02: It's also quoted in the application package to the Bureau of Indian Affairs, J527 and J4032 and 534. [00:30:33] Speaker 06: How do you get to this Part D, which is about the need of the individual Indian or tribe for additional land, and Part C, which is the termination that they're under the jurisdiction? [00:30:47] Speaker 02: So I think you have to understand this in context of reviewing the whole record. [00:30:51] Speaker 02: In the Confederated Tribes of Grand Ronde case, the court reviewed this question under an arbitrary and capricious or reasonable standard of the APA, and specifically referenced the whole record. [00:31:03] Speaker 02: And so you have in the record evidence of the purchase order, the quoting of the purchase order. [00:31:10] Speaker 06: You mean, do you think that we held there that, regardless of the rule of the Chenery case, [00:31:16] Speaker 06: we should look over the entire record and find anything that would support the agency, even if the agency did not rely on it? [00:31:23] Speaker 02: Well, I think the agency did indirectly rely on it here by referring to the tribe's reservation in that key sentence on 4095. [00:31:31] Speaker 02: But even if you, you know, even consistent with general APA practice, so long as the agency's path of reasoning can reasonably be discerned, that satisfies the state formula. [00:31:43] Speaker 06: Just trying to see whether I can discern that path here. [00:31:45] Speaker 02: No, I understand. [00:31:46] Speaker 02: I mean, it would be nice. [00:31:48] Speaker 02: Ideally, we would have a deed from 1913 and thereabouts. [00:31:52] Speaker 02: I don't know. [00:31:52] Speaker 06: Ideally, it wouldn't be section D. Ideally, this would be part of section C. I understand. [00:31:59] Speaker 06: Then I would understand that it's part of your rationality agency. [00:32:03] Speaker 02: No, I understand. [00:32:04] Speaker 02: You slid into that argument like we wouldn't have noticed. [00:32:09] Speaker 07: I was trying not to laugh. [00:32:10] Speaker 02: I'm sorry. [00:32:11] Speaker 02: The band, you know, it's important because band is a term that's defined in the statute as an Indian tribe. [00:32:18] Speaker 02: And I think it's not disputed. [00:32:20] Speaker 02: You heard from my friend for stand-up that today, and as of the Hardwick stipulation, this tribe that is before the court as an intervener in North Fork is fully recognized as a federal Indian tribe. [00:32:32] Speaker 02: And we also have, by virtue of it being [00:32:35] Speaker 02: called a band, a North Fork band of landless Indians, for which this Torell... Go back to the question. [00:32:40] Speaker 07: Do you think we can legitimately rely on the rationale of the land purchase? [00:32:45] Speaker 07: given the decision that's before us, that's what the chief judge essentially asked. [00:32:51] Speaker 07: We're all looking at it, and it doesn't look like it's really connected to the justification. [00:32:55] Speaker 07: And you tried to slide by it. [00:32:57] Speaker 07: I guess I would have maybe done it the same way. [00:33:00] Speaker 07: But it doesn't appear the way you were suggesting. [00:33:03] Speaker 07: It's not powerfully a part of the secretary's rationale. [00:33:06] Speaker 02: It's not powerfully part of it, granted. [00:33:08] Speaker 02: It's implied by the tribes, the reference to the tribes reservation. [00:33:12] Speaker 07: Do we have to rely on that? [00:33:13] Speaker 02: No, I don't think so. [00:33:15] Speaker 02: I think you can rely solely on the election. [00:33:18] Speaker 02: On the election, exactly. [00:33:19] Speaker 02: And that's, Judge Taito, you said, is that, you asked, is that determination due deference? [00:33:23] Speaker 02: It is. [00:33:25] Speaker 02: Grant Ron found that rationale in the solicitor, which was formalized. [00:33:29] Speaker 02: It was in the record a decision in that case, which came before this case. [00:33:33] Speaker 02: It talks about an extensive analysis of under-federal jurisdiction, and there's a footnote in that that says if there was an election called for under Section 18, it doesn't matter the result, that that itself is an assertion of federal jurisdiction by the Secretary, contemporaneous with the statute. [00:33:50] Speaker 06: Let's say that we didn't think we could rely only on the election. [00:33:56] Speaker 06: Are you saying that if we were to remand it to the agency to tell us whether they [00:34:03] Speaker 02: also rest whether it also rested on the appropriations it would just come back to us and say rested on the appropriations also because i mean i i do not the agency decision-maker i think that's very likely i think the remand would be uh... waste time be futile in that regard uh... and i think there's sufficient evidence in the record as a whole to support uh... the secretary's conclusion [00:34:28] Speaker 02: uh... and traditionally this inquiry has focused on the assertion of federal authority and and there's really no dispute that uh... federal authority was asserted over the uh... the group that was present on the reservation in thirty five the question that stand-up raises is whether this was the same trial uh... that's before the court today but there's there's no uh... judicial decision that I'm aware of that they cite that [00:34:54] Speaker 02: authorizes the court to make that type of inquiry into how the tribe's membership has fluctuated over time and to basically trace the lineage of the membership by virtue of the fact that the tribe is on the list today. [00:35:08] Speaker 02: The LIST Act of 1994 says that that is a valid recognition that cannot be terminated except by Congress. [00:35:17] Speaker 02: And we have the Hardwick stipulation referencing not just individual Indians but the band of the Rancheria that was fully recognized as having been unlawfully terminated a person to the Rancheria Act. [00:35:31] Speaker 02: So really there's a continuity there through the Hardwick stipulation that really defeats my friend's argument on the other side. [00:35:40] Speaker 03: Other questions? [00:35:40] Speaker 06: No. [00:35:41] Speaker 06: Thank you. [00:35:41] Speaker 06: Thanks. [00:35:43] Speaker 06: Mr. Waxman. [00:35:53] Speaker 04: Chief Judge, and may it please the Court, I just want to state for the record that I am most willing to be run over by your honor for these purposes. [00:36:02] Speaker 04: You don't know what you're asking for. [00:36:05] Speaker 04: Let me make a few points with respect to the Section 18 argument, or as I will say, the IRA argument. [00:36:13] Speaker 04: That is the under-federal-jurisdiction argument, and then one point with respect to the detrimental effects, determination with respect to PEU. [00:36:23] Speaker 04: First of all, on the question of whether the Section 18 election alone [00:36:29] Speaker 04: establishes that a tribe was under federal jurisdiction. [00:36:33] Speaker 04: The Secretary of the Interior has, without exception, consistently taken that position and explained that position in the 2014 solicitor's memo. [00:36:46] Speaker 04: The first three times that the department took that position, four of them before the decision in this case, [00:36:54] Speaker 04: the record cites one of them, a 2011 decision involving the Shawano County. [00:37:02] Speaker 04: But there also were, and I'll just give you the cites, there was a 24 I.B.I.A. [00:37:07] Speaker 04: 33 at 42. [00:37:11] Speaker 04: That's for the Auburn Band, for the Cowlitz Band, which was the band that was at issue in your Confederated Tribes. [00:37:19] Speaker 04: The Secretary said that [00:37:21] Speaker 04: on page 95, note 98. [00:37:26] Speaker 04: And for the Enterprise Rancheria, that was a – the Secretary also said it in his record of determination at page 44 a couple of weeks before this one. [00:37:38] Speaker 04: So – and that is a – that is a correct and accurate statement for the construction of, under federal jurisdiction, for the reasons stated at page 20 of the Secretary's – of the Solicitor's 2014 memorandum. [00:37:55] Speaker 04: If it weren't enough, the question, as I think the court's questions identify, is was there nonetheless, did the secretary nonetheless determine that this was an election of members of a tribe, members of a band? [00:38:14] Speaker 04: And Mr. Toth pointed to the secretary's determination on page 4095 [00:38:21] Speaker 04: that the election was held by the adult Indians residing at the tribe's reservation. [00:38:29] Speaker 04: Now, I understand the court's questions about, well, is that really a finding that the reservation had been purchased for the benefit of the band. [00:38:39] Speaker 04: Mr. Sherlock says there's no evidence in the record that this ban or these Indians for whom this land was purchased in 1916 was in fact a ban. [00:38:52] Speaker 04: And I want to make sure that in evaluating that, the court has in front of it what I believe are the very substantial [00:39:00] Speaker 04: findings and evidence made – findings made by and evidence before the Secretary. [00:39:06] Speaker 04: The IGRA rod, which the Secretary issued a year before, finds on page 3932 [00:39:16] Speaker 04: that the rancheria lands were purchased, quote, for the North Fork Band of Indians. [00:39:25] Speaker 04: And that was supported by the very deed [00:39:31] Speaker 04: of trust, the very deed of purchase, which is referenced both in the BIA's decisional package in the record at page, Joint Appendix, page 527, and in the tribes. [00:39:46] Speaker 06: Could you say again the page of the IGRA rod that you're repeating? [00:39:50] Speaker 04: The IGRA rod is on [00:39:52] Speaker 04: Page 3932, the BIA decisional package, what the BIA sent to the Secretary before he issued the IGRA rod and then the IRA rod, says that in night quote, and I'm quoting on page 527, but the discussion continues all the way to page 530, [00:40:14] Speaker 04: In 1916, the federal government purchased an 80-acre parcel of land in the town of North Fork, Madera County, California, for the, quote, use of the North Fork band of landless Indians. [00:40:30] Speaker 04: That was, and the citation is to a document which was also appended as Exhibit B to the tribes [00:40:41] Speaker 04: application, and the reference there is on JA 4120, the actual document that it's referring to is available to the court at ECF 33-1, and it is the actual purchase order for this 80-acre parcel. [00:41:02] Speaker 04: And it specifically says, and I quote, [00:41:05] Speaker 04: This is for the purchase of, and it gives the meets and bounds, quote, for the use of the North Fork Band of Landless Indians. [00:41:16] Speaker 04: And then, of course, the Terrell Report not only says at page [00:41:23] Speaker 04: 4020, that the purchase is for the more than 200 Indians properly belonging to the North Fork and vicinity band. [00:41:35] Speaker 04: On page 4019, it recites that Mr. Terrell is actually providing a census of those Indians. [00:41:45] Speaker 04: to the tribe. [00:41:46] Speaker 04: Now, with respect to this tracing argument, the tribe's application, I'm 99% sure, included the tribe's constitution. [00:41:57] Speaker 04: The tribe's constitution requires that to be a member of the tribe, you have to demonstrate this descendancy from a North Fork band member listed in the government census. [00:42:15] Speaker 04: Chief Judge Garland, you made the point about Chenery, and we think that Chenery is implicated because it's, we think, overwhelmingly clear, both from the Secretary's determination in the IGRA rod and for all the other reasons that I've stated, which was the evidence in front of the Secretary, that when he said in the IRA rod, [00:42:40] Speaker 04: that not just that an election was held, but an election was held at the tribe's reservation. [00:42:46] Speaker 04: He understood, as he had previously said, that this was a reservation for the North Fork Band of Indians. [00:42:55] Speaker 04: But even if that weren't so clear, I think [00:43:00] Speaker 04: I point to this court's decision in association of bituminous contractors versus Abfel, which I believe, Mr. Chief Judge and Judge Tabor, you were on the panel, where the court explains that the secretary's implicit reasoning may be spelled out in subsequent briefing where it is consistent with longstanding interior policy that reflects fair and considered judgment. [00:43:26] Speaker 04: And Judge Garland, as you also said in the Axo Nobel Salt case from 2000. [00:43:33] Speaker 04: One of my favorites. [00:43:36] Speaker 04: I knew you would hold it here, so let me just quote the relevant language for the benefit of your college. [00:43:41] Speaker 04: A court may defer to an agency's litigation position where it appeared simply to articulate an explanation of longstanding agency practice. [00:43:52] Speaker 04: And not to show favorites here, Judge Tatel, in your case, the Association of Civilian Technicians. [00:44:00] Speaker 03: Yeah, that's a really good one. [00:44:04] Speaker 04: I'm struggling to find a... We have about 20 cases with the same name. [00:44:08] Speaker 04: Unfortunately, I couldn't find... But go ahead and quote it. [00:44:11] Speaker 04: I want to hear the quote. [00:44:13] Speaker 04: In the briefing, quote, it is undisputed that the United States, quote, policy and practice is longstanding. [00:44:22] Speaker 04: And under the circumstances, the court considers counsel's explanation of the statutory basis for the denial of the full relief [00:44:30] Speaker 04: sought by the guardsmen to represent the United States' fair and considered judgment. [00:44:36] Speaker 04: In the short space of time between the close of... Can I just ask you one more question? [00:44:41] Speaker 06: You said when he referred to the tribes' reservation in the IRA rod, he was referring to his previous statements. [00:44:49] Speaker 06: Are you talking about the IGRA rod? [00:44:51] Speaker 04: The IGRA. [00:44:52] Speaker 04: In the Ira Rod, the court said – the secretary said this was under federal jurisdiction because all the Indians residing at the tribe's reservation. [00:45:04] Speaker 06: Right. [00:45:04] Speaker 06: And you said that was an implicit reference to something he had decided before? [00:45:08] Speaker 04: Oh, yes, in the Igmer Rod, which was – And was the Igmer Rod dated before? [00:45:12] Speaker 04: That's all I – Yes, it was the year before. [00:45:13] Speaker 04: So typically, the way that – I believe uniformly the secretary doesn't take land into trust. [00:45:20] Speaker 04: until there is an IGRA determination that it would be eligible for gaming. [00:45:26] Speaker 04: And that, just to be very clear, that determination by the secretary in the rod was supported not only by the Turrell report, which was cited there, but also by all of the findings and recited documents in the BIA decisional package that the secretary had in front of them. [00:45:51] Speaker 04: Finally, with respect to [00:45:56] Speaker 04: The Picayune's point, whether or not this tribe was within the surrounding area, and we certainly agree that it plainly was not, and the secretary expressly in this case found that it was not a nearby tribe, it is not the case [00:46:23] Speaker 04: as Mr. Robinson said, that there's simply – the Secretary simply made a determination without any analysis. [00:46:30] Speaker 04: The record contains both the relevant pages in the IGRA determination are on 3957 and 3958. [00:46:47] Speaker 04: The secretary also, the secretary's decision had incorporated and referenced the final environmental impact statement. [00:46:55] Speaker 04: And at pages 680 to 684 and 712, the final environmental impact statement made a very detailed analysis, which the secretary adopted, finding that a 19%, which was conservative, a 19% loss in revenues would [00:47:17] Speaker 04: A was A in the context in which the North Fork Rancheria would bring about a $90 million increase in gaming at Indian casinos in the General Madera-Fresno area, and that [00:47:34] Speaker 04: in this market, in a market of this sort, that even if there were a drop of 19%, it would not affect the Picayune tribe's ability to operate profitably. [00:47:47] Speaker 06: And therefore, that... Something can be detrimental by reducing your profits, can't it? [00:47:55] Speaker 04: Well, not as the secretary has determined it. [00:47:58] Speaker 04: The final environmental impact statement found that the detriment would be, quote, less than significant. [00:48:09] Speaker 04: And the secretary made clear, both in the secretary's regulations and in the preamble to the Section 292 regulations, [00:48:19] Speaker 04: The issue in the case is not whether the secretary would not find detriment or cognizable detriment just from competitive harm between casinos or business operations. [00:48:33] Speaker 04: The very sentence of the regulation that Picayune keeps talking about how a non-nearby tribe can petition sets out the secretary's articulated standard for what detriment to [00:48:48] Speaker 04: an Indian tribe is and it says the standard is and I'm quoting from the definition of surrounding community that [00:49:04] Speaker 04: The governmental functions, infrastructure, or services will be directly, immediately, and significantly impacted by the proposed gambling establishment. [00:49:18] Speaker 04: That is a site to 25 CFR Section 292.2. [00:49:24] Speaker 04: And the Secretary found, quite to the contrary, that even the competitive [00:49:30] Speaker 04: impact on the Picayune tribe was not considered a detrimental impact because the Picayune would still be able to operate profitably and that there was no basis for a finding that the tribe's governmental functions and services would be impaired. [00:49:55] Speaker 06: Okay, back to Mr. Sherlock. [00:49:59] Speaker 06: I'm not sure who ran over whom in the last discussion, but somebody did, so we're going to let you have some extra time, too. [00:50:06] Speaker 06: Thank you, Your Honor. [00:50:07] Speaker 06: Two minutes, please. [00:50:08] Speaker 05: Thank you. [00:50:09] Speaker 05: Very quickly, with regard to the IGRA rod, the rod that was done a year earlier, when the Court reads the Secretary's analysis of the historical information in that record of decision, you will see that the Secretary referred not to [00:50:24] Speaker 05: a tribe in relation to the actions prior to 1934, rather to predecessors of the tribe and ancestors of the tribe. [00:50:33] Speaker 05: But there is no indication from that discussion of the existence of a tribe per se. [00:50:40] Speaker 05: With regard to Mr. Waxman's reference to... You say what page you're referring to? [00:50:44] Speaker 05: That is – I'm afraid I don't have a page citation handy, but it is the discussion Mr. Waxman was referring to in the agrarod of the history of the tribe, and that discussion arose in the historical context of the tribe's historical connection to the land, which of course is a different inquiry than federal jurisdiction. [00:51:04] Speaker 05: He mentioned a couple of points in the record where it refers to the North Fork Band of Landless Indians. [00:51:12] Speaker 05: I would merely point out there that the definition of Indian in, or I'm sorry, of tribe in section 19 refers to organized band, not merely a band. [00:51:24] Speaker 05: So if there was a reference in the documents to a band, it wasn't necessarily to an organized band. [00:51:32] Speaker 05: And there are many, many more references in the record to the North Fork Indians or Indians in the vicinity of North Fork in geographical terms. [00:51:41] Speaker 05: And what we're saying is this really called for the Secretary's expertise and analysis here. [00:51:48] Speaker 05: on the issue of federal jurisdiction and whether there was a tribe, and that really wasn't done. [00:51:53] Speaker 05: Finally, Mr. Waxman made reference to page JA 527 from our record here. [00:52:03] Speaker 05: That is an excerpt from the draft record of decision on the IRA decision, the trust decision, and that analysis that he read from was scrapped in the final record of decision, primarily because in that draft record of decision, the secretary was relying on the fact that he thought there was a section 16 election that had been held at the North Fork Rancheria, and it turned out if the court will see in the record at [00:52:33] Speaker 05: JA 4031, 4032, that Council for the North Fork brought to the Secretary's decision or attention that no, it wasn't a Section 16 election, which, of course, is an election for a tribe to organize. [00:52:47] Speaker 05: It was actually a Section 18 election. [00:52:49] Speaker 05: At that point, the Secretary revised the record of decision throughout the discussion that Mr. Waxman was referring to and concluded solely on the basis of the Section 18 election that the tribe is under federal jurisdiction. [00:53:03] Speaker 06: Okay, thank you. [00:53:05] Speaker 06: Did you have more? [00:53:12] Speaker 06: So proportionally, we'll give you one minute, which is even more than your... [00:53:17] Speaker 01: Thank you. [00:53:18] Speaker 06: Percentage. [00:53:19] Speaker 01: I would just primarily like to point out that the section of the 25 CFR 292.2 that Mr. Waxman pointed the court to that spells out the standard for determining detriment. [00:53:31] Speaker 01: That is the standard for determining whether or not a tribe or nearby or local community will be consulted. [00:53:38] Speaker 01: That's not the standard of whether or not there will be detriment. [00:53:41] Speaker 01: It's whether or not they will be consulted. [00:53:43] Speaker 01: And in making the determination that he had to consult the Pecune tribe, he made the determination that there would be detrimental impact. [00:53:51] Speaker 01: And what we're saying at this point is once he made that determination, he had an obligation under the regs and under IGRA to fully explore and fully count the impacts on Pecune. [00:54:03] Speaker 06: Okay, thank you. [00:54:04] Speaker 06: We'll take the matter under submission. [00:54:06] Speaker 06: Take a brief break while we have a big change of chairs.