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Case number 23-5076, Salt St.

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Mary Tribe of Chippewa Indians, Appellant, versus Deborah A. Haland, Secretary, United States Department of the Interior, et al.

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Mr. Dunbar, for the Appellant, Ms.

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Mishra, for the Federal Appellees, Dasha, for the Intervener Appellees.

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Morning, Mr. Dunbar.

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Morning, Your Honor.

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May it please the court.

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The issue today is whether the Sioux Tribe's purchase of land using interest from a self-sufficiency fund created under the Michigan Settlement Act satisfies the conditions of Section 108C4 of the statute.

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The plain meaning of the text as well as the administrative record before the Department of the Interior make clear that the answer to that question is yes.

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Section 108C4 turns on the tribe's purpose in using fund interest, and the record before Interior shows the tribe's objective and or goal, that is its purpose in purchasing the land, was to help advance the social welfare and other needs of the tribe.

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This property, which is called the Sibley Parcel, and which is located in Michigan's lower peninsula, would provide a land base for the provision of direct social services to thousands of nearby tribal members,

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And through planned Indian gaming on the property, the purchase would create tribal jobs and establish a predictable, durable, and significant revenue stream to pay for vitally needed tribal service.

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All of this, it's important to note, is perfectly in keeping with Congress's design of the Indian Gaming Regulatory Act, through which Congress established Indian gaming as a calibrated means of funding tribal services and advancing tribal welfare.

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In the order below, Interior didn't deny that those were the tribe's purposes in pursuing the project.

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It simply claimed that the tribe's purpose was, quote, too attenuated.

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But Interior's no attenuation position adds words of limitation to the enacted text that simply aren't there.

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And even if there were doubt about whether Section 108C4 contains an unstated directness or immediacy requirement,

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Indian Canon would foreclose that reading of the statute.

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With the court's permission, I'd like to focus on those two points today.

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Can I ask you a question?

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Is an implication of your position in this case that the tribe could purchase land anywhere it wants, decide to build a casino on it, and the Interior Department would be required to take that into to trust and allow you to build that casino?

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Your honor, yes.

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But let me answer it.

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I'll answer yes, but explain.

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I think there is an open question that's certainly not presented here about whether the tribe could purchase land outside of Michigan.

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This is, after all, a Michigan tribe.

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It was a treaty involving 13.8 million acres of land seeded in the Upper Peninsula and the Lower Peninsula of Michigan.

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They're all Michigan tribes affected by MILCSA.

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I think there'd be a question, again, that's not presented here.

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about whether land purchases outside of Michigan would be contemplated by the statute.

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But you are correct.

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Doesn't that circumvent, I guess, I don't know, I'm not an expert on IGRA, but it seems that there are a lot of restrictions and limits and things that have to happen before gaming can happen.

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And doesn't your interpretation circumvent all that as well as the compact that says you're supposed to negotiate a revenue sharing plan with other tribes?

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We don't think so at all your honor and I'm glad you've gone to the to the policy consequences because I do think that over that the history of this case it's clear that interior is really.

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starting with its fear about the policy consequences of the interpretation and then turning to the text of the statute.

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So I want to address those policy consequences head on and I think there are three real answers to that and I'll preview them and then can talk about them more in depth if to your honor's choice.

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The first is that in enacting

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the Michigan Indian Land Claim Settlement Act in 1997, Congress would have understood that there are a variety of practical and legal restraints on having land taken into trust, as well as gaming on those properties.

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And again, I'm happy to talk about those in more detail.

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Second, I think it's also certainly the case that enacting a land claim settlement statute

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some nine years after Congress had enacted IGRA, which contained an exception that allowed gaming on after acquired lands for land acquired as a part of the settlement of a land claim that Congress would have understood in 1997 that there could be potential interaction between the Gaming Act and the Michigan Indian Land Claim Settlement Act.

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And if Congress wanted to restrict gaming on land acquired as a part of the Settlement Act, it could have.

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And third,

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I think ultimately, whatever you think of those responses, the policy consequences, the fear that essentially the tribe bargained for too good of a settlement deal with Interior, which I have to say is a bit historically ironic, but even accepting that proposition, the answer would be Congress.

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The ball remains in Congress's court, so to speak, to restrict the tribe from some of the far-flung hypotheticals that are thrown around in the brief, endless land acquisitions, endless Indian

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Or isn't the response to that that we can interpret the statute in a way that avoids all this?

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Because I guess the provision that requires the government to take the land into trust carefully limits the spending of that money.

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And so if we interpret the statute that way, it avoids all of these issues that you just discussed.

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I think, Your Honor, that is correct.

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The other side would certainly like you to interpret the statute in a way that avoids those policy consequences.

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But the point is, we don't think there's a textual foothold for doing so.

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The text that's at issue here, Section 108C4, I think has three distinctive features.

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First, it is clear that the inquiry is the tribe's purpose in using fund interest.

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Purpose, as we've explained in multiple dictionaries, and I don't think is contested, means an objective goal or end.

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But at various points, it seems the tribe is arguing that it's really the tribe's subjective purpose.

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They are planning to build a for-profit casino and allocate a very small percentage of those proceeds to charitable purposes.

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That is the purpose of why they're acquiring the land.

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I mean, don't we have to look at some kind of objective purpose?

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I think I don't disagree with that, Jadral.

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I mean, we didn't mean to suggest... A subjective purpose would be arguably inconsistent with our first decision in this case.

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Well, I want to think about that and then circle back to that.

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But I do want to just make clear, probably to resolve the need to do so, that we're not saying it's only the tribes say so that counts.

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But certainly, the tribe's purpose, stated purpose, its stated plans in acquiring the land, ought to be a part of the analysis.

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And here, whether you think about it subjectively or objectively, I think there's layers of evidence that establish

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that the tribe's purpose in pursuing the Sibley project was not to open a for-profit casino.

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That was not the tribe's end.

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It has no intrinsic desire to engage in gaming for the sake of gaming, and no one has suggested otherwise.

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And so the evidence of the tribe's purpose in this case, Your Honor, which I think goes beyond just the tribes say so, are the initial tribal resolutions approving the land purchase, which, as Your Honor noted, did dedicate symbolically

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certain commitments, earmarked commitments in 2012 for social service and other welfare purposes.

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It's, you know, the other side attempts to use that against us by suggesting that somehow we were only going to use a sliver of gaming revenue for social welfare purposes, but that I think badly misunderstands the context here.

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The tribes board of directors in 2012 reasonably understood, like any legislative body,

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that it would be difficult to predict out five to six years what gaming revenues might look like, what social service needs might be of the tribe.

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And so it was reluctant to make specific earmarked commitments in 2012 of gaming revenues that might not be realized.

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I mean, we're now obviously, unfortunately, 12 years past the time when the tribe actually purchased the land.

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But in addition to the tribal resolution, the tribe trust submission

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The Sibley partial submission at JA 473, JA 479, and JA 480 made clear that the tribe's purpose in acquiring the land was to potentially operate gaming facilities, which would be used to fund social welfare and other services, which again is precisely what Congress intended when it enacted IGRA.

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What about the fact that this statute that's before us, not IGRA,

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carefully delineates between the use of fund principle and fund income.

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And the only lands that can be taken into trust are those purchased with fund income for one of the designated purposes.

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For fund principle, the tribe has much more leeway, arguably, under the statute.

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There are fewer constraints.

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There's a lot of discretion left to the tribal board.

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I think that's correct in a sense.

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The one thing I would add is that I think it's significant that 108C, which governs the distribution of income, would allow the tribe to pay this money out in direct per capita or dividend payments to tribal members, essentially private, more equivalent of private wealth generation.

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The 108C-4, which again is the statutory provision net issue here,

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says that the tribe can spend money for educational, social welfare, and other purposes.

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And in our view, a project like the Sibley Project, even if it could also be characterized as economic development, when the tribe has chosen a means that Congress has created through the gaming act to pursue social welfare means, that that fits within section 108C4.

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And just as a matter of plain meaning, I think our position is absolutely correct.

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To borrow a few just examples,

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Someone investing money in a 529 savings plan, I don't think there would be any doubt that's for educational purposes.

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Someone taking money and investing that in a 401k, I don't think there would be any doubt that's for retirement purposes.

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Similarly, when the tribe expended here fund interest in order to invest in Indian gaming and land purchases that were carefully designed to advance tribal social welfare goals,

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This is similarly an expenditure for a social welfare purpose designed for social welfare goals when you earmark 5%.

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I'm not sure how well, your honor, I think that's where Indian gaming, you know, is like primarily designed for social welfare where social welfare is just 5% of revenues.

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Your honor, it's certainly the case that an ordinary casino, it's hard to see how that's a social welfare purpose.

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But in Indian gaming, I know how counterintuitive it may seem.

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It's precisely the case.

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The Supreme Court and the Cabezon ban mission decision recognized that tribal casinos are often the only way that a tribe, many tribes which don't have natural resources to exploit have an inability to tax on the reservation because the Supreme Court has allowed states to tax, which means any

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Indian tribal tax effectively becomes a double tax that many tribes had no way to generate revenue other than gaming.

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Congress, when it enacted the Indian Gaming Regulatory Act, recognized that reality, but it didn't create Indian gaming as sort of a private profit free for all.

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It carefully limited and ensured that revenue generated from Indian gaming would be used to advance tribal purposes, including funding vital social services, which again is precisely what

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our client through a variety of means explained to Interior throughout this long trust process.

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It's important to note that Interior, again, didn't reject our position on the ground that it didn't believe that it was the tribe's purpose.

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It simply said that purpose was too attenuated.

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And I think that no attenuation reading, if I may, it doesn't work for three reasons.

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Can I just ask a technical question for

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when you apply to have Interior take the land in trust, is that a one-time application at the time of purchase?

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Or in other words, because it didn't appear that you ever sought below or with us a remand in order to kind of make a more fulsome explanation or anything of that sort.

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Is that ship sailed or is there any possibility of you augmenting your presentation?

[00:13:41] Speaker 00:
There is, Your Honor, and I don't think that ship is sailed.

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Obviously, you know, Interior spent two sentences in a footnote addressing our Section 108C4 theory in the order below.

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And again, all it said was that was too attenuated.

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Obviously, a lot has been said.

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A lot of ink has been spilled since.

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If what Interior is now saying is that it simply had doubts about whether the tribe actually intends to use gaming revenue profits to fund social welfare or other purposes, I do think there is all types.

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I mean, we think there's all types of evidence already in the administrative record that satisfies that.

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But we'd also certainly welcome the opportunity to explain that to interior with supplemental materials.

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But to be clear, Your Honor, I do think.

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You didn't request that relief in the district court.

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You just said, let's go straight to senior federal.

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That's correct, Your Honor.

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I would think of this remand question as a remedy question, and we certainly, in all events, there are some remaining issues that Interior never addressed that would need to be decided before the land is taken into trust.

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So we had always contemplated that there would need to be a remand to the department, and I certainly think it would be within either this Court's

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or the district court's equitable discretion as a remedy in administrative procedure act case to do so.

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But I do really want to, I'd be remiss if I didn't explain that I do think there are no attenuation theory as a matter of statutory interpretation, just has no foothold in the statute.

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If Congress wanted to say that the tribe could use fund interest only to directly or immediately fund a social service like benefit, which I gather

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is essentially the upshot of the other side's position.

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Congress had multiple ways to do so clearly.

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I'm sorry, Judge Rao.

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Mr. Number, I mean, it seems that the tribe's application focused heavily on economic development as its rationale and only somewhat relied on 108C4.

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And so perhaps Interior didn't give a fulsome explanation of why it rejected that.

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But I think that's in part because of the way tribe

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justified its application in the first instance.

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Your honor, it is true that the primary, we made alternative arguments.

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The tribe made alternative arguments in its trust submission.

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Your primary argument was closed, you know, was rejected.

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And so now understandably relying on 108C4, but that, you know, to sort of nitpick at what Interior did in light of what was before it seems

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But your honor, I do think in probably take over time, but take all of my remaining time to list all of the places in the three and a half year long administrative process before interior where the tribe did make clear that the purpose of this project is to pursue and be able to fund badly needed social services that came not just in the initial trust emission.

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It came in the form of follow up statements by the tribes chairperson.

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At the time Aaron payment, and this is at J a 536 he told interior that these projects are vital to generate critically needed funds to support the delivery of service to our very large membership explained at J a 637 and 638 that the tribe because of declining gaming revenues in the upper peninsula.

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was losing the ability to fund social services such as childcare, elderly, elder assistance of various types.

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And that without a sustained new revenue source, which again, Congress designed Indian gaming under the gaming act to provide, the tribe would be unable to fund vitally needed tribal services.

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We also submitted in a supplemental submission in 2015, an affidavit from the tribe CFO.

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This is at JA 603 to 616.

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that explained this point concretely and pointed out that without a new revenue source, the tribe would face cuts in those coming years of one to $2 million in social service programs that were provided throughout Michigan.

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And that again, a primary purpose of the Sibley project, the land acquisition, was not only to be able to generate the funds necessary to pay for those, but also to directly be able to provide social services to the tribe's members in the lower peninsula.

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As the record reflects, there are approximately 4,500 tribal members who live near the Sibley parcel, which is outside of Detroit.

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The tribe currently has no trust base to be able to provide direct social services to those members of any type, to the extent they wanted to avail themselves of those services, they would need to travel to the upper peninsula of Michigan.

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Again, that was made clear time and again in the record.

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So I do think, Judge Wilkins, to your question, if Interior,

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thinks there's more that it needs in terms of an explanation of the tribe's purpose, we'd certainly be happy to provide that.

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But I think the record already leaves no doubt that was the purpose.

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Interior didn't doubt that was our purpose.

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It simply fixated on a no attenuation theory or a theory that this was too speculative or indirect that we don't think has a foothold in the statute.

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And even if there were some type of proximate cause like unstated limitation in the statute,

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I do think it's important to emphasize that Indian gaming is not a Rube Goldberg-like mechanism for pursuing tribal welfare.

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It is, again, precisely the mechanism that Congress created, recognizing that tribes might not have any other available means of advancing the well-being of their tribe and tribal members and paying for social services.

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If you bought this land to build a school or something that clearly falls, undisputedly falls within the criteria, and it was taken into trust, and then you sought to build a casino on it, would you have to go through IGRA, like the whole process?

[00:19:52] Speaker 00:
It's an interesting question, Your Honor.

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I think at that point, I don't think we would, which again, I think the tribe, the land, once it's taken into trust by Interior would become Indian lands.

[00:20:04] Speaker 00:
I suppose a question would be whether it's taken, whether we could game on it would then depend on whether the land was taken into trust as a part of the settlement of a land claim exception.

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In your hypothetical, assuming that we, the tribe had used fund interest to do so, I think it would qualify.

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But I think your hypothetical points to the fact that the tribe here was not attempting to engage in gamesmanship or pretext.

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From the outset, it was clear that it was purchasing this land and that it intended to use the land not only to provide direct social services to downstate members, but to build a casino on the property if it were able to do so.

[00:20:41] Speaker 05:
My question is just, is this an end run around IGRA?

[00:20:44] Speaker 00:
I don't think so, Your Honor.

[00:20:46] Speaker 00:
Again, the gaming consequences when Congress enacted the Michigan Indian Land Claims Settlement Act, it enacted that nine years after the Indian Gaming Act had been recognized, Congress surely understood that enacting a settlement statute that allowed for land application, that allowed for land to be taken into trust would implicate IGRA.

[00:21:10] Speaker 00:
So we don't think it's an end run around IGRA.

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It's simply a matter of reading together

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two statutes, the Settlement Act and the Indian Gaming Regulatory Act.

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And particularly on the circumvention point, Your Honor, Interior addressed an earlier version, excuse me, a separate provision of the Michigan Indian Land Claim Settlement Act in a Bay Mills opinion.

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That case actually resulted in a Supreme Court case.

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And in that Bay Mills opinion, and this is at JA 460 and page 10 of the opinion,

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interior noted that during the legislative process leading to milk says enactment interior asked that Congress delete language that made the land acquisition provisions in the settlement act mandatory and it also asked.

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that Congress include a specific provision that, quote, would not repeal the limitations in Section 20 of the Indian Gaming Regulatory Act.

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In other words, Interior, as the purported expert agency here, recognized that there would be gaming implications, asked affirmatively that Congress include a provision in the Settlement Act restricting gaming.

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And Congress chose not to do so, or Congress didn't do so.

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And so I think this is a circumstance where

[00:22:29] Speaker 00:
Contorting the plain text of Section 108 C4 because of fear gaming consequences just would be an unnatural way to approach statutory interpretation, given that we would assume Congress was aware of and Congress intended the interaction between the gaming act and the settlement act.

[00:22:46] Speaker 00:
If this was an unintended consequence, Congress didn't consider it.

[00:22:50] Speaker 00:
principles of statutory interpretation would still counsel in favor of fidelity to the text, and that would leave the ball in Congress's court.

[00:22:58] Speaker 00:
If somehow the Sioux tribe were able to launch a plan engaging in endless land acquisitions across the country to build casinos, Congress could easily put a stamp on those types of hypotheticals.

[00:23:08] Speaker 00:
I will say as a practical reality, Your Honor, that is highly, any additional land acquisitions are highly, highly unlikely.

[00:23:16] Speaker 00:
Land has to be acquired for the mandatory

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trust provision of the Settlement Act to be implicated has to be acquired with interest.

[00:23:24] Speaker 00:
Fund interest is a limited pot of money.

[00:23:26] Speaker 00:
It depends on the principle continuing to generate interest.

[00:23:30] Speaker 00:
There are also vast pressing needs facing this tribe, including funding all manner of social services and pursuing all other types of potential projects or economic development.

[00:23:41] Speaker 00:
So the idea that the tribe would dedicate endless

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resources to pursue casino operations or land into trust across the country is really lawyer rhetoric that's divorced from the reality of the situation.

[00:23:54] Speaker 00:
And I think this court can assume that if Congress understood the interaction between the Gaming Act and the Settlement Act, which it should have, it also could have understood that there are practical and legal constraints on far-flung land acquisitions and endless gaming.

[00:24:09] Speaker 00:
And again, if I'm wrong about that, or we're wrong about that, and this was just something Congress didn't consider, and it's not something that it intended to pursue, intended, Congress can fix it.

[00:24:21] Speaker 00:
I do think it's important to keep in mind, though, that in considering these hypotheticals, the broader context here, which is that the settlement statute settles land claims for the historic, unconscionable taking of 13.8 million acres of property,

[00:24:37] Speaker 00:
across the upper peninsula and the lower peninsula of Michigan.

[00:24:40] Speaker 00:
So the idea that Congress would have intended a land claim settlement statute to give the tribe some ability to acquire land to be able to meet the vast and pressing needs of its members is not something I think that would be unusual or unexpected or certainly not absurd, although no one I don't think has invoked the absurdity canon in this case.

[00:24:59] Speaker 02:
All right, I think you're well over time unless my colleagues have any questions.

[00:25:05] Speaker 02:
We'll give you some time on rebuttal.

[00:25:06] Speaker 00:
Thank you, John.

[00:25:19] Speaker 02:
On behalf of the secretary, we have Miss Mitch.

[00:25:26] Speaker 05:
Good morning.

[00:25:37] Speaker 06:
May it please the court, Tina Mishra for the United States Appellees.

[00:25:41] Speaker 06:
Pratik Shal will argue for tribal and other interveners in support.

[00:25:44] Speaker 06:
This court's prior decision in this case provides the ground to reject the Sioux's secondary appeal here.

[00:25:49] Speaker 06:
The Sioux sought to use fund interest under subsection C, not for what this court called its, quote, limited and exclusive, quote, uses under the Michigan Act, and which this court contrasted with the, quote, more expansive,

[00:26:01] Speaker 06:
end quote, uses for fund principle under subsection B, but instead toward what Interior correctly found to be the Sioux's too uncertain and attenuated goal to get land on which there might be a casino venture that may have gaming revenue, not withstanding other obstacles like a tribal state compact, agri-conditions, et cetera, for which the Sioux, there might be spending, but for the Sioux, committed only 5% to what the Sioux claims would qualify as health, social welfare, and the like.

[00:26:29] Speaker 04:
If we assume that

[00:26:31] Speaker 04:
You know, just for the purpose of this question that they could build a casino, you know, subject to all the other regulatory and statutory requirements.

[00:26:39] Speaker 04:
And if the tribe were to designate 100% of its proceeds to social welfare, would that be within 108C4?

[00:26:48] Speaker 06:
We think that Interior's opinion would be that it's not.

[00:26:51] Speaker 06:
And that's because there's another attenuation or uncertainty juncture that is not addressed and that has been elided a little bit by the discussion thus far, which is that even if there were to be a casino, would it be able to conduct, for example, what the Sue's called, quote, casino-type gaming, which it has described as, quote,

[00:27:09] Speaker 06:
the Class III gaming that is implicated by the Tribal State Compact, for example.

[00:27:13] Speaker 06:
So we think that there are multiple junctures at which Interior's determination that it was too uncertain or attenuated could be sustained as to any of those.

[00:27:21] Speaker 06:
And so we do think that this case would need to come out in Interior's favor.

[00:27:26] Speaker 04:
I guess what I'm trying to get at is if there's some sort of economic development project that the Tribe is contemplating,

[00:27:33] Speaker 04:
And it's more of the proceeds of that economic development project are for charitable purposes.

[00:27:41] Speaker 04:
Would that fall within 108 C3, C4?

[00:27:46] Speaker 06:
So as we understand the statutory language and this court's interpretation of it in the prior appeals, we don't think that that kind of downstream use is the kind of not of fund interest, but of some generated revenue is the kind of thing that's comprehended by C3.

[00:28:02] Speaker 06:
C and C4 specifically.

[00:28:04] Speaker 06:
And the things that we would point to, for example, is, as this court described, C is about, quote, uses of fund income or interest.

[00:28:12] Speaker 06:
It's not about something downstream.

[00:28:14] Speaker 06:
Talking about it as uses, as this court did in the prior opinion, kind of crowds out this subjective intent type of approach, for example, or that type of plan that the Sioux has proffered, because it also crowds out that downstream aspect, because the idea is that it needs to be

[00:28:30] Speaker 06:
educational health, et cetera, in nature as to itself.

[00:28:34] Speaker 06:
And we think that purpose in the context of that should be understood to be used, as this court said in the prior opinion, because it's something more objective.

[00:28:42] Speaker 06:
It's not about this kind of intent or downstream use.

[00:28:45] Speaker 06:
We think that's also reinforced by the statutory language that talks about educational, et cetera, and then says which benefits separately.

[00:28:52] Speaker 06:
We think it's reinforced by the contrast with B, which talks about economic development or these broader purposes

[00:28:58] Speaker 06:
or uses, and C does not, as this court observed before.

[00:29:03] Speaker 06:
And we think that the other part of this court's opinion that reinforces is when this court talked about Interior's important role in this respect and pointed out that C, for example, does not have express mention, unlike B, of the tribe's role, for example.

[00:29:18] Speaker 06:
We think that also undercuts the subjective intent or kind of downstream approach to the statute.

[00:29:23] Speaker 06:
As we mentioned, there are these multiple different attenuation junctures or uncertainty junctures as to any of which we think that interior's determination could be sustained here.

[00:29:32] Speaker 02:
We'd also like to discuss since there's- What if the tribe says, well, job training is very important and so we're going to build a casino higher, you know,

[00:29:53] Speaker 02:
to the extent that we can exclusively try members, train them.

[00:29:58] Speaker 02:
give them you know skills so that they can get jobs in other casinos or in other hospitality related or gaming related fields and to the extent that this we don't even know if this casino is going to make any money but to the extent that it does every penny will go towards you know health care

[00:30:24] Speaker 02:
for child care or something of that nature.

[00:30:27] Speaker 02:
So they say that part of the purpose is not just to use the revenue from the casino but also to have the casino's operation itself provide both jobs but also job training.

[00:30:47] Speaker 06:
So the first point we'll make is that, of course, the record here doesn't say any of that.

[00:30:51] Speaker 06:
But as to your question, and the hypothetical specifically, one thing that we would point out is that the question of a job training center, those types of things, or hospital, et cetera, those are things that Interior said may be something that, in a context-specific, fact-intensive way, Interior might make a determination about in the future.

[00:31:10] Speaker 06:
But that is something that could be tied up with, as we discussed, these other types of attenuation.

[00:31:15] Speaker 06:
So for example, do you project that you're going to do this down the line?

[00:31:19] Speaker 06:
That doesn't necessarily mean that it is in fact going to be achieved that you're going to do this, or likely even to be achieved that you're going to do this.

[00:31:26] Speaker 02:
Where has Interior ever set forth how it judges when something is too attenuated, or what type of evidence is necessary?

[00:31:35] Speaker 06:
So as we understand it, Interior here just expressed that the suit's position was not something that could be sustained here as to our understanding.

[00:31:44] Speaker 02:
There are no regulations.

[00:31:45] Speaker 02:
There's no guideline.

[00:31:46] Speaker 02:
There's no policy document.

[00:31:48] Speaker 02:
There's no interpretive rule.

[00:31:50] Speaker 06:
So our understanding is that this court has made interpretive rulings that we think support Interior's understanding of how the statute operates here.

[00:31:57] Speaker 06:
And it did so in the prior appeals.

[00:32:00] Speaker 06:
I'm not aware of specific regulations under MOCSA that

[00:32:03] Speaker 06:
make any formal interpretive ruling about this type of nature.

[00:32:07] Speaker 06:
But what I will say is that this case is one in which the review is for the reasonableness and non-arbitrariness or capriciousness of interior's ultimate conclusions, applying its understanding of the statute, which we believe is consistent with the court's prior opinion.

[00:32:21] Speaker 06:
So this court could, without getting into a lot of the intricacies, could determine here that this appeal

[00:32:27] Speaker 06:
by the suit needs to be rejected and that the interior determination was ultimately not just reasonable but correct under just the ordinary APA review without getting into every individual instance and whether it would qualify.

[00:32:40] Speaker 06:
And that's similar to what this court did in not answering every statutory question with respect to C5 on the prior appeal as well.

[00:32:46] Speaker 06:
It didn't say, here's the test for all time, but it said, you know, here are some things that we know do not qualify under C5 and that was what the Sioux had offered there.

[00:32:56] Speaker 06:
If I may, I'd like to address the record because I do believe that that's something that also relates to Your Honor's question relating to the remand question, which

[00:33:04] Speaker 06:
as I think is acknowledged, was not requested in the district court.

[00:33:08] Speaker 06:
It also was not requested at any time, as I understand in the briefing, certainly not in the opening briefs request for remedies here.

[00:33:14] Speaker 06:
But at any rate, we think that it's important that this court understand that the particular record documents that are being referenced do not actually add up to something that would make out, especially any of these alternative theories about delivery of social services.

[00:33:29] Speaker 06:
So, for example, the reference to affidavits primarily concerned, there's only really three affidavits in the record.

[00:33:37] Speaker 06:
573 to 583 in the Joint Appendix is really only about tribal enrollment figures and spreadsheets of population numbers by county and things like that.

[00:33:46] Speaker 06:
604 to 606.

[00:33:49] Speaker 06:
talked about primarily a conclusory statement about enhancing the upper peninsula land holdings.

[00:33:54] Speaker 06:
It wasn't really directed at this particular parcel in question downstate and it was so it was really more about a kind of gaming revenue theory.

[00:34:03] Speaker 06:
It wasn't directed

[00:34:04] Speaker 06:
At the alternative theory of kind of director delivery of social services or anything of that nature.

[00:34:10] Speaker 06:
In addition 618 to 619 was the only one that even really seemed to concern services and that one is we described in the brief talked about there being some Limiting limited issues of housing or expressing concern, but didn't actually express affirmative intent or a plan or anything.

[00:34:26] Speaker 06:
that would actually use the fund interest for any of those purposes, for example, directly.

[00:34:33] Speaker 06:
And so what we would say is that we don't think any of those alternative theories can be sustained here.

[00:34:38] Speaker 06:
We think that the position that Interior took

[00:34:43] Speaker 06:
is sustainable both from the many different attenuation junctures and also from this court's prior opinion and the reasons why that counsels for that reading.

[00:34:51] Speaker 06:
The other thing we'll just note with respect to the even possibility of a remand is that in addition to it not being requested, the suit here had multiple opportunities.

[00:35:00] Speaker 06:
They had multiple opportunities before interior to supply evidence.

[00:35:03] Speaker 06:
They were requested to supply additional evidence.

[00:35:06] Speaker 06:
They've already had a first appeal even before this court on the C5 question, which to their point about concern about

[00:35:12] Speaker 06:
Whether tribes can get land, etc.

[00:35:15] Speaker 06:
C5 is directly concerning land.

[00:35:17] Speaker 06:
That's not an issue on this appeal.

[00:35:19] Speaker 06:
It's not been appealed here.

[00:35:20] Speaker 06:
And so that's not really something that's really presented for this court.

[00:35:25] Speaker 06:
And so ultimately, what we would say is that there's not much reason to give yet another round for further litigation in particularly because, as we've pointed out,

[00:35:33] Speaker 06:
The attenuation juncture that gets into Class 3 gaming and the tribal state compact and all these complexities with IGRA, etc.

[00:35:40] Speaker 06:
As we've noted, there are tribal interveners here, there are others who have objected throughout, and there is likely to be a lot more that would go on with respect to whether this could even get to gaming on the parcel, for example.

[00:35:52] Speaker 06:
So I guess the one other thing I'll flag on the record is that I think there was some reference to J637 to 638.

[00:35:59] Speaker 06:
Those are also, just as we understand it, conclusory assertions of the chair, primarily about where members are and how many of them and things like that and overall revenue numbers.

[00:36:10] Speaker 06:
They really didn't make out this kind of particular alternative theory.

[00:36:14] Speaker 06:
I guess the one other thing that I would say on the record as well is that the conclusory statements not being evidence is something that hasn't really come up here, but we think that is obviously sustainable for the reasons we've stated in the brief.

[00:36:28] Speaker 06:
And so for all these reasons, we don't think that this court could decide to sustain Interior's determination at any of these many different junctures, depending on what it chooses to decide here.

[00:36:42] Speaker 06:
Uh, we don't think that this court need to, um, take on any more than it, than it chooses to.

[00:36:48] Speaker 06:
And we would just urge this court to, uh, sustain a terrorist determination and from the district court here.

[00:36:55] Speaker 02:
Thank you.

[00:37:12] Speaker 02:
Morning to Shah.

[00:37:15] Speaker 01:
Good morning.

[00:37:16] Speaker 01:
May it please the court, Prateek Shah for interveners.

[00:37:19] Speaker 01:
The Sioux tribe seeks to upend the settlement act's carefully crafted framework to procure an unprecedented expansion of casino gaming into the ancestral homelands of other Indian tribes.

[00:37:31] Speaker 01:
Having lost on their primary argument the last time around, the Sioux now evoked a charitable purposes provision that makes no reference to gaming at all.

[00:37:41] Speaker 01:
But the Sioux cannot use the mouse hole of Section 108C4 to permit the elephant of off-reservation casino gaming.

[00:37:50] Speaker 01:
That last-ditch effort cannot be reconciled with Section 108C4's ordinary meaning or Congress's explicit choice to distinguish, as this Court itself described,

[00:38:02] Speaker 01:
the broader uses of fund principle authorized in 108B, including expenditures, quote, reasonably related to economic development beneficial to the tribe, which is what the casino is, end quote,

[00:38:17] Speaker 01:
versus the narrowly defined categories for use of fund interest specified in 108C.

[00:38:25] Speaker 01:
That distinction is critical given the dramatically different consequences flowing from use of those respective funds.

[00:38:34] Speaker 01:
Only lands purchased under the more limited 108C, not the broader 108B, trigger interiors exceptional and mandatory take into trust

[00:38:46] Speaker 01:
Judy.

[00:38:46] Speaker 04:
Mr. Shah, can you address the arguments made by Mr. Dunbar about the relationship between the statute before us here, you know, the Michigan Land Settlement Act and IGRA?

[00:38:59] Speaker 01:
Yes.

[00:38:59] Speaker 01:
Thank you, Judge Rao, for that question, because I think it's critical.

[00:39:03] Speaker 01:
I think the move that they're trying to make, as they say, well, even if that's all generally true, economic development beneficial to the tribe is 108B.

[00:39:11] Speaker 01:
Casino gaming is different because it's necessarily used for social welfare.

[00:39:17] Speaker 01:
That is not true under IGRA.

[00:39:19] Speaker 01:
IGRA provides five uses of casino gaming revenue.

[00:39:23] Speaker 01:
They only quote two in their brief.

[00:39:25] Speaker 01:
They quote the charitable purposes and the funding social services.

[00:39:29] Speaker 01:
IGRA is much broader.

[00:39:31] Speaker 01:
IGRA, and this is 25 USC 2710 B2B.

[00:39:36] Speaker 01:
It's quoted in full in our brief.

[00:39:39] Speaker 01:
That lays out what Congress has said tribes can use gaming for.

[00:39:43] Speaker 01:
Of course, anytime a tribe undergoes economic development, it's using it for the welfare of the tribe.

[00:39:50] Speaker 01:
That's what tribal governments do.

[00:39:52] Speaker 01:
That's why 108C says,

[00:39:54] Speaker 01:
for the benefit of the tribe, IGRA maps on almost coterminously with 108B, not C. Here's what IGRA says.

[00:40:07] Speaker 01:
You can use it to fund tribal government operations or programs.

[00:40:12] Speaker 01:
That's one that they quote.

[00:40:13] Speaker 01:
Two, to provide for the general welfare of the Indian tribe and its members, not social welfare, education, health,

[00:40:23] Speaker 01:
and charitable purposes, general welfare.

[00:40:26] Speaker 01:
That's like 108B, to promote general tribal economic development.

[00:40:33] Speaker 01:
That's exactly the words used in 108B, to donate to charitable organizations.

[00:40:40] Speaker 01:
That's part of C.

[00:40:41] Speaker 01:
or to help fund operations of other local government agencies.

[00:40:47] Speaker 01:
The tribe doesn't even have to keep the money.

[00:40:48] Speaker 01:
In casino, in gaming, they can donate, they can use the funds of gaming to say fund the local police department of the city in which the casino is located because of externalities.

[00:41:00] Speaker 01:
So yes, of course,

[00:41:03] Speaker 01:
Casino gaming or any economic venture entered by a tribe is for the benefit of tribal members for the general welfare.

[00:41:11] Speaker 01:
That's very different than 108 C4, which says specifically you have to using the no sitter cannon right for education, social welfare, health, cultural or charitable purposes.

[00:41:23] Speaker 01:
That's not anything that benefits tribal members.

[00:41:26] Speaker 01:
You may use it for infrastructure.

[00:41:28] Speaker 01:
You're going to build roads, water services, all of that.

[00:41:32] Speaker 01:
That's not education, social welfare, health.

[00:41:34] Speaker 01:
cultural or charitable purposes.

[00:41:36] Speaker 01:
It has a narrower meaning than 108B, which is anything that's to benefit tribal members.

[00:41:42] Speaker 01:
That's the critical move they're trying to make.

[00:41:45] Speaker 01:
Their record evidence before Interior was only 5% goes to that specific social welfare purpose.

[00:41:53] Speaker 01:
The other 95%

[00:41:54] Speaker 01:
general welfare for the tribe.

[00:41:57] Speaker 01:
There's nothing in the record that commits them to using it to not building roads, bridges, not giving it to the police department to stop crime coming from the casino.

[00:42:10] Speaker 01:
any of those things.

[00:42:11] Speaker 01:
That's well outside of 108C4.

[00:42:14] Speaker 01:
That's 108B territory, which is why Congress designed this special scheme.

[00:42:20] Speaker 01:
Anyone who knows anything about Indian law knows Congress and the tribes aren't going to negotiate

[00:42:27] Speaker 01:
the act like this and pass an act like this that is silent on gaming and then mean to back it in and allow them to open a casino near other tribes reservations that's in comprehensible.

[00:42:42] Speaker 01:
that anyone had that in mind.

[00:42:44] Speaker 01:
And that's why 108C4 is, of course, silent about gaming.

[00:42:49] Speaker 01:
It doesn't make any sense to suggest that you could use that narrow provision to allow, again, probably the most provocative issue in all of Indian law.

[00:43:00] Speaker 02:
Thank you.

[00:43:01] Speaker 01:
Thank you, Your Honors.

[00:43:04] Speaker 02:
Mr. Dunbar, you are out of time, but we'll give you two minutes on rebuttal.

[00:43:12] Speaker 00:
Thank you, your honor.

[00:43:13] Speaker 00:
Three quick points.

[00:43:13] Speaker 00:
First, I think DOI's interior's position here really shows that they've gone all in on a really unexplained no attenuation theory.

[00:43:23] Speaker 00:
All of the obstacles to gaming that they've identified, the potential need for Indian gaming determination, the compact, there's not a word of an actual explanation by interior in the trust denial order on any of this.

[00:43:35] Speaker 00:
If this show the whole theory that we might never be able to game and there are too many obstacles is simply unexplained and to judge Wilkins question that alone would be a basis for a remand to the agency.

[00:43:47] Speaker 00:
We of course think the no attenuation theory has no foothold in the statute.

[00:43:51] Speaker 00:
When we speak of someone taking an action for a purpose, there is no guarantee of success requirement built into that.

[00:43:58] Speaker 00:
To take the example from our brief, if someone spends money for educational purposes or law school education purposes to take the LSAT, that money is still for those purposes, even if that student realistically assesses his or her chances at 1% of actually gaining law school admission.

[00:44:14] Speaker 00:
The money is spent for the same point.

[00:44:16] Speaker 00:
But if Interior is essentially going to claim to this court that they denied the trust submission

[00:44:21] Speaker 00:
because they fear there were simply too many attenuated steps in that the tribe might have difficulty gaming or the gaming compact.

[00:44:28] Speaker 00:
None of those issues are brief.

[00:44:30] Speaker 00:
None of those issues were addressed before Interior.

[00:44:32] Speaker 00:
That would be a basis for a remand.

[00:44:34] Speaker 00:
Second, on the question of the delta between the permissible uses of gaming revenue under the Gaming Act and what is allowed under Section 108C4, I just have to remind the court that the statutory inquiry is the tribe's purpose.

[00:44:51] Speaker 00:
So my friend is correct that one of the ways that gaming revenue can be spent is to help offset the costs to local communities, non-tribal communities that might be related to the operation of the casino, such as roads, police, the idea that this tribe, the Sioux tribe engaged in this particular project with the purpose of somehow funneling money to local non-Indian tribal communities.

[00:45:14] Speaker 00:
And that was the reason it undertook that project simply makes

[00:45:17] Speaker 00:
you know, makes no sense in this context.

[00:45:19] Speaker 00:
So even if we concede that there is some delta between IGRA's permissible uses of gaming revenue and what's specified in section 108C4, but there is simply no evidence, much less is there ever been a suggestion that the tribe's purpose in undertaking this project is because it wanted to fund money to that delta.

[00:45:41] Speaker 00:
Finally, on the silence about gaming point,

[00:45:44] Speaker 00:
I think I've addressed this in my principal argument, but I would simply say that Section 108C4 is silent about all means to achieve Section 108C4 purposes.

[00:45:55] Speaker 00:
In other words, it's not a surprise that Section 108C4 doesn't say to achieve these purposes, the tribe can do X, Y, and Z, or can't do X, Y, and Z. Congress understandably left choices about how to advance the tribe's purposes, whether it's casino gaming, whether it's some other social service measure,

[00:46:14] Speaker 00:
to the tribe and to the tribe's democratically elected board of directors.

[00:46:18] Speaker 00:
So again, the absence of a specific provision for gaming has things exactly backwards when you look at the statutory text, which again, focuses on the tribe's intent, its object or its goal.

[00:46:30] Speaker 00:
And at the end of the day, we believe there is simply no basis in the record for saying that the tribe's purpose in pursuing the Sibley project was for any purpose other than advancing the tribal

[00:46:40] Speaker 00:
the needs of the tribe and its members, including social welfare, economic, educational.

[00:46:44] Speaker 00:
Thank you, Your Honor.

[00:46:46] Speaker 02:
We'll take the matter under advisement.