HON. BENJAMIN H. SETTLE - Turtle Talk · 2017-03-16 · Mot. Summary Judgment Case No.:...

Mot. Summary Judgment Case No.: 3:15-cv-05828-BHS

Scott D. Crowell Crowell Law Offices-Tribal Advocacy Group

1487 W. State Route 89A, Suite 8 Sedona, AZ 86336

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HON. BENJAMIN H. SETTLE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

FRANKS LANDING INDIAN COMMUNITY, a federally recognized self-governing dependent Indian community,

Plaintiff,

v.

NATIONAL INDIAN GAMING COMMISSION; UNITED STATES DEPARTMENT OF THE INTERIOR; JONODEV CHAUDHURI, in his official capacity as Chairman of the National Indian Gaming Commission; LAWRENCE S. ROBERTS, in his official capacity as Assistant Secretary of the Interior – Indian Affairs, United States Department of the Interior; and SALLY JEWELL, in her official capacity as the Secretary of the Interior.

Defendants.

Case No.: 3:15-cv-05828-BHS

FRANK’S LANDING INDIAN COMMUNITY MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: JANUARY 25, 2017 (SET BY SCHEDULING ORDER) ORAL ARGUMENT REQUESTED

Case 3:15-cv-05828-BHS Document 33 Filed 11/04/16 of 34




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TABLE OF CONTENTS

TABLE OF CONTENTS.................................................................................................................i

TABLE OF AUTHORITIES..........................................................................................................iii

I. PRELIMINARY STATEMENT ............................................................................................. 1

II STATEMENT OF MATERIAL FACTS ................................................................................ 2

III. LEGAL STANDARD ............................................................................................................. 5

IV. LEGAL ARGUMENT ............................................................................................................ 6

A. The Community is an "Indian tribe" for purposes of IGRA ................................................ 7

B. The Community meets the three-prong definition of "Indian tribe" set forth in IGRA ....... 9

1. The Community is an organized group or community of Indians under 25 U.S.C. §

2703(5).............................................................................................................................10

2. The Community is vested with powers of self-government. ...................................... 13

C. Congress contemplated that the Community could engage in gaming acativities in the

1994 Frank's Landing Act ............................................................................................................. 15





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D. Defendant Kevin Washburn acted arbitrarily, capriciously, and not in accordance with the

law by substituting a definition of "Indian tribe" different from the definition supplied by

Congress in IGRA..........................................................................................................................18

CONCLUSION ............................................................................................................................. 23





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TABLE OF AUTHORITIES

CASES

Arrington v. Daniels,

526 F.3d 1106 (9th Cir. 2008) ........................................................................................... 6, 18

Association of Data Processing Organizations v. Camp.,

397 U.S. 150 (1970) .................................................................................................................... 5

Board of Education of Westside Community Schools 66 v. Mergens,

496 U.S. 226 (1990) .................................................................................................................. 18

Califano v. Sanders,

430 U.S. 99 (1977) ...................................................................................................................... 6

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) .............................................................................................................. 6, 18

City of Roseville v. Norton,

219 F. Supp. 2d 130 (D.D.C. 2002) .......................................................................................... 11

Doe v. Mann,

415 F.3d 1038 (9th Cir. 2005) .................................................................................................... 8





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Exxon Mobil Corp. v. Allapattah Services, Inc.,

545 U.S. 546 (2005) .................................................................................................................... 8

Islam v. United States Dept. of Homeland Security,

136 F. Supp. 3d 1088 (N.D. Cal. 2015) ...................................................................................... 6

Joint Tribal Council of the Passamaquoddy Tribe v. Morton,

388 F.Supp. 649 (D. Me. 1975) ................................................................................................ 22

Lamie v. United States Trustee,

540 U.S. 526 (2004) .................................................................................................................... 7

Macarthur v. San Juan County,

391 F. Supp. 2d 895 (D. Utah, 2005) ........................................................................................ 14

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ...................................................................................................................... 6

National Credit Union Admin. v. First Nat. Bank & Trust Co.,

522 U.S. 479 (1998) .................................................................................................................... 5

Native Village of Venetie v. Alaska,

155 F.3d 1150 (9th Cir. 1998) .................................................................................................... 8

Nisqually Indian Tribe v. Gregoire,

623 F.3d 923 (9th Cir. 2010) aff'd Nisqually Indian Tribe v. Gregoire, 649 F. Supp. 2d 1203





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(W.D. Wash. 2009) .................................................................................................. 1, 14, 10, 15

Northwest Environmental Defense Center v. Bonneville Power Administration,

477 F.3d 668 (9th Cir. 2007) ...................................................................................................... 6

Protect Our Communities Foundation v. Jewell,

825 F.3d 571 (9th Cir. 2016) ...................................................................................................... 6

Rhode Island v. Narragansett Indian Tribe,

19 F.3d 685 (1st Cir. 1994) ....................................................................................................... 15

Russello v. United States,

464 U.S. 16 (1983) .................................................................................................................... 18

San Luis & Delta Mendota Water Authority v. Dept. of the Interior,

2015 WL 893365 (E.D. Cal. 2015) ............................................................................................. 6

Sierra Club v. McLerran,

2015 WL 1188522 (W.D. Wash. 2015) ..................................................................................... 6

Singh v. Clinton,

618 F.3d 1085 (9th Cir. 2010) .................................................................................................... 6

Swoger v. Rare Coin Wholesalers,

803 F.3d 1045 (9th Cir. 2015) .................................................................................................... 5





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United States v. Clintwood Elkhorn Mining Co.,

553 U.S. 1 (2008) ...................................................................................................................... 13

United States v. Cook,

594 F.3d 883 (D.C. Cir. 2010) .................................................................................................... 8

United States v. Wheeler,

435 U.S. 313 (1978). ................................................................................................................. 14

STATUTES

25 C.F.R. 292.2..............................................................................................................................23

5 U.S.C. § 706(2) ("APA") .................................................................................................... passim

25 U.S.C. § 450f(a)(2) .................................................................................................................. 13

25 U.S.C. § 465 ............................................................................................................................. 12

25 U.S.C. § 479a(2) ........................................................................................................................ 4

25 U.S.C. § 479a-1 .......................................................................................................................... 4

25 U.C.S. § 479a ........................................................................................................... 9, 20, 21, 22

25 U.S.C. § 1301(2). ..................................................................................................................... 14





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25 U.S.C. § 1708(b) ...................................................................................................................... 17

25 U.S.C. § 2502(a) ...................................................................................................................... 13

25 U.S.C. § 2703(5)(A) ................................................................................................................. 11

25 U.S.C. §§ 2703(8) .............................................................................................................. 15, 17

25 U.S.C. § 2703(5) ............................................................................................................... passim

25 U.S.C. § 2710(b)(1) ............................................................................................................. 9, 22

Alaska Native Claims Settlement Act, (85 Stat. 688) [43 U.S.C. 1601 et seq.] ........................... 21

Catawba Settlement Act, P.L. 103-116, 25 U.S.C. § 941l(a) ....................................................... 17

Indian Civil Rights Act, Pub. L. No. 114-38 ................................................................................ 13

Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et. seq. (“IGRA”) ...................... passim

Indian Self-Determination and Education Assistance Act of 1974, Pub. L. No. 93-638, 25 U.S.C.

§ 450b(e) .................................................................................................................... 8, 13, 21 22

Pub. L. No. 96-277 (June 17, 1980) .......................................................................................... 3, 12

The 1987 Act, Pub. L. No. 100-153 § 10 (Nov. 5, 1987) ....................................................... 1, 2, 8





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The 1994 Frank's Landing Act, Pub. L. No. 103-435, 108 Stat. 4566

(November 2, 1994) ............................................................................................................... passim

The Federally Recognized Indian Tribe List Act, 25 U.S.C. § 479a, Public Law 103-454 .. passim

The Indian Child Welfare Act, 25 U.S.C. § 1903(8). ................................................................... 20

The Indian Reorganization Act, 25 U.S.C. § 479 ......................................................................... 20

The Native American Housing and Self-Determination Act, 25 U.S.C. § (13)(A) ................ 20, 22

The Tribally-Controlled School Grants Program under 25 U.S.C. § et. seq ........................... 3, 12

OTHER AUTHORITIES

81 Federal Register 71278, 71306 (Oct. 14, 2016) ....................................................................... 23

RULES

Fed. R. Civ. P. 25(d) ....................................................................................................................... 2

Fed. R. Civ. P. 56(a) ....................................................................................................................... 5

CONSTITUTIONAL PROVISIONS

140 Cong. Rec. H 11,137 .............................................................................................................. 17

U.S. Const. art. I § 1...................................................................................................................... 19





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Plaintiff Frank’s Landing Indian Community (the “Community”) is a federally-

recognized, self-governing dependent Indian community, and submits this Memorandum of Law

in support of its Motion for Summary Judgment. The undisputed material facts, and arguments

of law, are set forth below.

I. PRELIMINARY STATEMENT

The Community has existed as a self-governing Indian community since time

immemorial. For decades, the Community has been located on lands acquired and administered

by the Secretary of the Interior (the “Secretary”) near the mouth of the Nisqually River in

western Washington. The Community’s right to self-government has been recognized by the

United States Congress, see Pub. L. No. 100-153, and Pub. L. No. 103-435, and has been

vindicated in this Court. See Nisqually Indian Tribe v. Gregoire, 649 F. Supp. 2d 1203 (W.D.

Wash. 2009), aff’d, Nisqually Indian Tribe v. Gregoire, 623 F.3d 923 (9th Cir. 2010). The

Secretary, through the Bureau of Indian Affairs (the “BIA”), has provided special programs and

services to the Community and its members for decades because of their status as Indians.

Those indisputable facts qualify the Community as an “Indian tribe,” for the limited

purposes of the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et. seq. (“IGRA”),

which defines an “Indian tribe” to mean:

any Indian tribe, band, nation, or other organized group or community of Indians which - (A) is recognized as eligible by the Secretary for the special programs and services provided by the United States to Indians because of their status, and (B) is recognized as possessing powers of self-government.

25 U.S.C. § 2703(5).

In 2014, the Community’s governing body adopted an ordinance establishing regulations





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for the conduct of Class II gaming on its Indian lands (“Gaming Ordinance”). It submitted that

Gaming Ordinance to the National Indian Gaming Commission (the “NIGC”) for approval

pursuant to IGRA. Despite the fact that the Community has been recognized as a self-governing

dependent Indian community by two acts of Congress, and despite the fact that the Secretary has

been providing special services to the Community and its members, Defendant Kevin Washburn1

determined that the Community did not constitute an “Indian tribe” for the limited purpose of

IGRA. Instead, Defendant Kevin Washburn substituted a different definition of that term from a

different statute than IGRA.

The Chairman of the NIGC relied upon Defendant Washburn’s determination, and

refused to approve the Community’s Gaming Ordinance.

The Community is once again seeking to vindicate its rights and powers as a federally-

recognized, self-governing Indian community.

II. STATEMENT OF MATERIAL FACTS

The material facts in this case are not in dispute. In 1987, Congress enacted a public law

recognizing the Community “as eligible for the special programs and services provided by the

United States Indians because of their status as Indians….” Pub. L. No. 100-153, § 10 (Nov. 5,

1987)(the “1987 Act”). Seven years later, in 1994, Congress again enacted a public law

recognizing the Community as a self-governing dependent Indian community, and further

characterizing its powers:

(a) Subject to subsection (b), the Frank's Landing Indian Community in the State

1 Lawrence S. Roberts is now the Acting Assistant Secretary – Indian Affairs, and is formally substituted for Kevin K. Washburn under Fed. R. Civ. P. 25(d). For factual reference, the Community continues to refer to “Defendant Kevin Washburn” as he was serving as the Assistant Secretary-Indian Affairs during the relevant time period at issue.





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of Washington is hereby recognized; (1) as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and is recognized as eligible to contract, and to receive grants, under the Indian Self-Determination and Education Assistance Act for such services, but the proviso in section 4(c) of such Act (25 U.S.C. 450b(c)) shall not apply with respect to grants awarded to, and contracts entered into with, such Community; and (2) as a self-governing dependent Indian community that is not subject to the jurisdiction of any federally recognized tribe. (b)(1) Nothing in this section may be construed to alter or affect the jurisdiction of the State of Washington under section 1162 of title 18, United States Code. (2) Nothing in this section may be construed to constitute the recognition by the United States that the Frank's Landing Indian Community is a federally recognized Indian tribe. (3) Notwithstanding any other provision of law, the Frank’s Landing Indian Community shall not engage in any class III gaming activity (as defined in section 3(8) of the Indian gaming regulatory Act of 1988).

Pub. L. No. 103-435, 108 Stat. 4566 (November 2, 1994)(the “1994 Frank’s Landing

Act”)(emphasis added).

The Secretary has provided funds and services to the Community for several decades.

For example, the BIA has provided funding to the Community for the construction, operation,

and maintenance of the Wa-He-Lute School since the late 1970s. See DOI AR 0187 (William

Frank, Jr. v. Commissioner of Internal Revenue, Petitioners’ Summary of Factual History:

Frank’s Landing, Docket Nos. 12682-81; 28694-28697-82 (U.S. Tax Court)). The Secretary has

held land in trust for the Community for “an Indian school and community center for educational

or cultural purposes,” since at least 1980, pursuant to a Congressional mandate. See DOI AR

0179 (citing Pub. L. No. 96-277 (June 17, 1980)). In 2012, the BIA awarded $3.8 million in

grant funds to the Community’s Wa-He-Lute Indian School pursuant to the Tribally-Controlled

School Grants Program under 25 U.S.C. § 2501 et seq. See DOI AR 0062-63. As of September

2015, the BIA continued to list the Community’s Wa-He-Lute Indian School on its website as a





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school “operated by [a] tribe or tribal government via a contract or grant.” DOI AR 0212-13.

On November 19, 2014, the Community’s governing body adopted the Gaming

Ordinance. See DOI AR 0001-0015. The Community submitted the Gaming Ordinance to the

NIGC Chairman for review and approval on December 8, 2014, pursuant to IGRA. See DOI AR

0134.

By email dated December 11, 2014, the NIGC’s General Legal Counsel requested “a

legal opinion and/or determination” on the question of whether the Community qualified as an

“Indian tribe” under IGRA. DOI AR 0064. On March 6, 2015, Defendant Kevin Washburn

issued a memorandum determining that the Community did not qualify as an “Indian tribe” for

purposes of IGRA. DOI AR 0080 (the “March 6th Decision”). Defendant Kevin Washburn

explained, “[t]he NIGC is entitled to rely on [Pub. L. 103-454]2 as a definitive means of

determining whether an entity is a federally-recognized Indian tribe [for purposes of IGRA].” Id.

He added, “[the 1994 Tribal List Act] also provides a simple ‘bright line’ rule that preserves

government resources around such matters.” Id.

On September 18, 2015, the Community filed a request with Defendant Kevin Washburn

seeking reconsideration of his March 6th Decision. See DOI AR 0092. The Community

supplemented its request on September 25, 2015. DOI AR 0215. On October 28, 2015, the

Office of the Assistant Secretary issued an email to the Community’s legal counsel indicating

that Defendant Kevin Washburn “considers this matter closed[.]” DOI AR 0265. Shortly 2 Public Law 103-454 is known as the “Federally Recognized Indian Tribe List Act of 1994,” (the “1994 Tribal List Act”) and requires the Secretary to publish an annual list of “all Indian tribes which the Secretary recognizes as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C. § 479a-1. The 1994 Tribal List Act contains its own definition of the term “Indian tribe”: “The term ‘Indian tribe’ means any Indian or Alaska Native tribe, band, pueblo, village or community that the Secretary acknowledges to exist as an Indian tribe.” 25 U.S.C. § 479a(2).





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thereafter, on November 13, 2015, the Community initiated this lawsuit to challenge the

Defendants’ determination.

On August 15, 2016, this Court granted the Motion to Dismiss the NIGC as a party

defendant because the NIGC is duty bound to accept the Secretary’s determination regarding

whether an entity is an eligible ”Indian tribe” under IGRA. Doc. 29. On September 2, 2016, the

Court denied the Nisqually Indian Tribe’s Motion to Intervene. Doc. 30. The Community and

the remaining federal defendants subsequently agreed to a briefing schedule approved by the

Court for the submission of cross-motions for summary judgment, and agreed that the

Community would file its motion in the first instance. The remaining federal defendants will file

their cross-motion for summary judgment together with their opposition to the Community’s

motion.

III. LEGAL STANDARD

A reviewing court must grant a motion for summary judgment when the moving party

“shows that there is no genuine dispute as to material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). The reviewing court “must view the evidence in the

light most favorable to the non-movant and draw all reasonable inferences in the non-movant's

favor.” Swoger v. Rare Coin Wholesalers, 803 F.3d 1045, 1047 (9th Cir. 2015).

The Community is entitled to relief under the Administrative Procedures Act. (“APA”). 5

U.S.C. § 706(2). The Community clearly has standing under the APA as the interests it seeks to

protect are in the zone of interests to be protected by both statutes in question, the 1994 Frank’s

Landing Act and IGRA. National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S.

479, 480 (1998); Association of Data Processing Organizations v. Camp., 397 U.S. 150, 152-153

(1970). The APA gives the federal courts the equitable power to set aside agency actions that are





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arbitrary, capricious, not supported by substantial evidence, or contrary to law. Protect Our

Communities Foundation v. Jewell, 825 F .3d 571 (9th Cir. 2016); Northwest Environmental

Defense Center v. Bonneville Power Administration, 477 F.3d 668, 680-81 (9th Cir. 2007); Singh

v. Clinton, 618 F.3d 1085 (9th Cir. 2010); Islam v. United States Dept. of Homeland Security,

136 F. Supp. 3d 1088 (N.D. Cal. 2015); Sierra Club v. McLerran, 2015 WL 1188522 at *12

(W.D. Wash. 2015); San Luis & Delta Mendota Water Authority v. Dept. of the Interior, 2015

WL 893365 (E.D. Cal. 2015). An agency acts arbitrarily if it “relied on factors which Congress

has not intended it to consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence before the agency, or is

so implausible that it could not be ascribed to a difference in view or the product of agency

expertise.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43, (1983).

The APA mandates that an agency take the steps necessary to provide an explanation that

will enable the court to evaluate the agency’s rationale at the time of the decision. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), overruled on other grounds,

Califano v. Sanders, 430 U.S. 99, 105 (1977). The agency must show that it had a reasonable

basis for its decision; that is, it must show that “the agency considered the relevant factors

and articulated a rational connection between the facts found and the choices made.”

Arrington v. Daniels, 526 F.3d 1106, 1112 (9th Cir. 2008) .

IV. LEGAL ARGUMENT

This case does not involve complex questions of fact or law. To the contrary, it requires

a relatively simple determination: does the Community qualify as an “Indian tribe” under

IGRA’s three-prong definition of that term? A review of the undisputed facts in this case, as





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well as IGRA’s plain language, leads to the inescapable conclusion that the Community

constitutes an “Indian tribe” under the limited scope of IGRA. Thus, it was arbitrary and

capricious for Defendant Kevin Washburn to rely on a completely separate statutory definition of

“Indian tribe” to reach the opposite conclusion.

A. The Community is an “Indian tribe” for purposes of IGRA.

The best method to divine Congress’ intent in enacting a statute is to read the plain

language of the statute itself. See Lamie v. United States Trustee, 540 U.S. 526, 534 (2004)(“The

starting point in discerning congressional intent is the existing statutory text…”). Where the

language of a statute is clear, it is “the sole function of the courts…to enforce it according to its

terms,” provided that it does not lead to an absurd outcome. Id.

Congress supplied a clear definition of the term “Indian tribe” when it enacted IGRA in

1988:

(5) The term “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians which— (A) is recognized as eligible by the Secretary for the special programs and services provided by the United States to Indians because of their status as Indians, and (B) is recognized as possessing powers of self-government.

25 U.S.C. § 2703(5). This definition is virtually identical to the language that Congress used six

years later, when it reaffirmed the Community’s legal status under the 1994 Frank’s Landing

Act:

[The Community is recognized] (1) as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and is recognized as eligible to contract, and to receive grants, under the Indian Self-Determination and Education Assistance Act for such services, but the proviso in section 4(c) of such Act (25 U.S.C. 450b(c)) shall not apply with respect to grants awarded to, and contracts entered into with, such Community; and





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(2) as a self-governing dependent Indian community that is not subject to the jurisdiction of any federally recognized tribe.

Pub. L. No. 103-435, 108 Stat. 4566 (November 2, 1994)(emphasis added).

By virtue of the plain language contained in both IGRA’s definition of “Indian tribe,” and

in the 1994 Frank’s Landing Act, the Community very clearly qualifies as an “Indian tribe” for

purposes of IGRA. By 1994, Congress had been using very similar language to recognize

groups as “Indian tribes” for special-purpose statutes for more than two decades. See Indian

Self-Determination and Education Assistance Act of 1974, Pub. L. No. 93-638, 25 U.S.C. §

450b(e);3 Pub. L. No. 100-153, § 10 (“The Frank’s Landing Indian Community…is hereby

recognized as eligible for the special programs and services provided by the United States

Indians because of their status as Indians…”); and 25 U.S.C. § 2703(5). Congress’ consistent

and long-term use of this language is evidence of its clear understanding of the import of the

language it adopted in reaffirming the Community through the 1994 Frank’s Landing Act. See

Doe v. Mann, 415 F.3d 1038, 1046 (9th Cir. 2005)(“…Congress is presumed to be

knowledgeable about existing law pertinent to any new legislation”)(quoting Native Village of

Venetie v. Alaska, 155 F.3d 1150 (9th Cir. 1998)). Therefore, this Court’s application of the

plain language of IGRA’s definition of “Indian tribe” to the Community would hardly constitute

an absurd outcome that would preclude such a statutory interpretation. See Exxon Mobil Corp. v.

Allapattah Services, Inc., 545 U.S. 546, 565 (2005)(explaining that statutory language “may

seem odd” without being “absurd”); and, United States v. Cook, 594 F.3d 883, 891 (D.C. Cir.

3 Defining “Indian tribe” to mean “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”





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2010)(explaining that the canon against producing absurd results “imposes a high threshold: A

statutory outcome is absurd if it defies rationality by render[ing] a statute nonsensical or

superfluous…”).

In an earlier order in the present litigation, this Court dismissed the NIGC as a party-

defendant because the Secretary, and not the NIGC, is vested by IGRA with the authority to

make the determination whether an entity is an eligible Indian tribe under IGRA. This Court

signaled its preliminary understanding that the plain language of both IGRA and the 1994

Frank’s Landing Act should apply here:

Without further explanation, the Secretary appears to be acting not in accordance with law. If Congress passes laws stating that the Community is qualified to receive benefits, is self-governing, and precluded from Class III gaming, then it would seem that the Community qualifies under the IGRA to at least be considered for Class II gaming.” Moreover, the List Act appears to be irrelevant to any qualification under the IGRA because the IGRA includes both “Indian tribe” and “community of Indians” (25 U.S.C. § 2710(b)(1)) whereas the List Act defines “Indian tribe” to include a “community that the [Secretary] acknowledges to exist as an Indian tribe” (25 U.C.S. § 479a). In other words, the IGRA does not explicitly state that a community of Indians must be a federally recognized Indian tribe. The Court, however, recognizes that the Secretary took no part in the instant motion and may have a legitimate reason for her response to the Chairman. Thus, this issue must be addressed at a later date.

Doc. 29 at n.3 (Order Granting Defendants’ Motion to Dismiss).

Notwithstanding the foregoing, even a closer examination of IGRA’s definition of

“Indian tribe” reveals that the Community satisfies each of the criteria set forth in that definition.

B. The Community meets the three-prong definition of “Indian tribe” set forth in IGRA.

Congress established a three-prong test to determine whether an entity constitutes an

“Indian tribe” for purposes of IGRA: 1) Is the entity an Indian tribe, band, nation, or other

organized group or community of Indians?; 2) Is the entity recognized as eligible by the





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Secretary for the Federal Government’s Indian programs and services provided to Indians

because of their Indian status?; and 3) Is the entity recognized as possessing powers of self-

government? If an entity can answer each question in the affirmative, it qualifies as an “Indian

tribe” for purposes of IGRA.

The Community satisfies each requirement of IGRA’s definition of the term “Indian

tribe,” because: 1) it is an organized community of Indians; 2) it has been recognized by both

Congress and the Secretary as eligible to receive the Federal Government’s services provided to

Indians by virtue of their Indian status; and 3) it possesses powers of self-government. Congress

has expressly recognized the Community as a self-governing dependent Indian community that is

eligible for the special programs and services provided by the United States to Indians because of

their Indian status. While Congress has placed some restrictions on the Community’s powers, it

has also acknowledged that the Community possesses powers of self-government, as this Court

acknowledged in Gregoire:

Although the Community’s sovereignty is limited and does not include the broad range of powers possessed by federally recognized tribes, Congress has vested in the Community’s governing bodies the power to contract for the purpose of sustaining the Community’s self-government and its school”).

649 F. Supp. 2d at 1210.

1. The Community is an organized group or community of Indians under 25 U.S.C. § 2703(5).

Congress explicitly recognized the Community as a community of Indians when it

approved the 1994 Frank’s Landing Act. That Act expressly states that the Community is

recognized, “as a self-governing dependent Indian community that is not subject to the





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jurisdiction of any federally recognized tribe.” Id. (emphasis added). By any measure, it is clear

that Congress has recognized the Community as a “community of Indians.”

The Community is recognized as eligible for the special programs and services provided by the United States to Indians by virtue of their status as Indians.

Once again, the plain language of the 1994 Frank’s Landing Act makes it clear that the

Community meets the second prong of IGRA’s definition of “Indian tribe,” because it is

recognized as eligible for services provided by the Federal Government to Indians because of

their Indian status:

[The Community is hereby recognized]…(1) as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and is recognized as eligible to contract, and to receive grants, under the Indian Self-Determination and Education Assistance Act for such services, but the proviso in section 4(c) of such Act (25 U.S.C. 450b(c)) shall not apply with respect to grants awarded to, and contracts entered into with, such Community;

Pub. L. No. 103-435, 108 Stat. 4566. This section of the 1994 Frank’s Landing Act incorporates,

nearly verbatim, the language adopted by Congress when it enacted IGRA six years earlier:

[An Indian tribe is an entity] recognized as eligible by the Secretary for the special programs and services provided by the United States to Indians because of their status as Indians[.]

25 U.S.C. § 2703(5)(A).4 4 The only distinction between the 1994 Frank’s Landing Act’s reaffirmation of the Community’s status, and IGRA’s definition of “Indian tribe,” is IGRA’s added proviso that such an entity must be recognized by the Secretary of the Interior as eligible for Indian programs and services. This distinction does not affect the Community’s argument here for three reasons. First, the 1994 Frank’s Landing Act affirmed that the Community is eligible for federal Indian programs and services (including self-determination contracts) provided by “the United States” – which includes, but is not limited to, the Department of the Interior. Pub. L. No. 103-435, 108 Stat. 4566. Second, the Secretary of the Interior has no authority to refuse to recognize the Community as eligible for those services in the face of Congress’s exercise of its plenary authority to require federal agencies to extend such recognition. See City of Roseville v. Norton, 219 F. Supp. 2d 130, 151 (D.D.C. 2002)(stating that “Congress holds exclusive and plenary authority over relations with Indian tribes” pursuant to the United States Constitution). Finally, even if the Secretary had such authority, the Secretary has already extended recognition to the Community by the virtue of providing services directly to the Community.





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Congress’ recognition of the Community as eligible for Indian programs and services is

bolstered by the fact that the Secretary has been providing those services to the Community for at

least several decades. For example, the Secretary has provided funds to the Community for the

construction, operation and maintenance of its Wa-He-Lute School since the late 1970s. See DOI

AR 0187 (William Frank, Jr. v. Commissioner of Internal Revenue, Petitioners’ Summary of

Factual History: Frank’s Landing, Docket Nos. 12682-81; 28694-28697-82 (U.S. Tax Court)).

The Secretary has held land in trust for the Community for “an Indian school and community

center for educational or cultural purposes,” since at least 1980, pursuant to a Congressional

mandate. See DOI AR 0179 (citing Pub. L. No. 96-277 (June 17, 1980)). In 2012, the BIA

awarded $3.8 million in grant funds to the Community’s Wa-He-Lute Indian School pursuant to

the Tribally-Controlled School Grants Program under 25 U.S.C. § 2501 et seq.5 See DOI AR

0062-63. And, as of September 2015, the BIA continued to list the Community’s Wa-He-Lute

Indian School on its website as a school “operated by [a] tribe or tribal government via a contract

or grant.” DOI AR 0212-13.

The Secretary’s trust management of the Community’s land for educational, community,

and cultural purposes is typical of services provided by the United States to Indians because of

their status as Indians. See e.g., 25 U.S.C. § 465 (“The Secretary of the Interior is authorized, in

his discretion, to acquire…any interest in lands…for the purpose of providing land for

Indians”)(emphasis added). The provision of grant funding to the Community’s Wa-He-Lute

School under the Tribally-Controlled School Grants Program is yet another service that the

5 The Wa-He-Lute Indian School is an instrumentality of the Community. See DOI AR 0098, 0195-198.





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Secretary provides to the Community by virtue of its Indian status or character. See 25 U.S.C. §

2502(a)(establishing the criteria for eligibility for Tribally-Controlled School Grants).

The very act of providing those services to the Community constitutes the Secretary’s

recognition that the Community is eligible for services provided to Indians because of their

Indian status.6

2. The Community is vested with powers of self-government.

Congress has expressly recognized the Community as a “self-governing” Indian

community. By virtue of the words selected by Congress, it stands to reason that the Community

possesses powers of self-government. See United States v. Clintwood Elkhorn Mining Co., 553

U.S. 1, 11 (2008)(“[t]he strong presumption that the plain language of the statute expresses

congressional intent is rebutted only in rare and exceptional circumstances”)(citations omitted).

In the context of Indian tribes and communities, there is no precise definition of the term

“powers of self-government.” Nevertheless, several legal authorities are instructive. In the

Indian Civil Rights Act, Pub. L. No. 114-38, Congress defined the term “powers of self-

government” to mean:

all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and…the inherent power of Indian

6 The Community has also received funding from the BIA pursuant to the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638. See DOI AR 0200 (Internal BIA Memorandum recommending approval of a contract for the Community’s school). That Act defines “Indian tribe” in language that mirrors the definition of “Indian tribe” set forth in IGRA nearly verbatim. See 25 U.S.C. § 450b(e). Nothing in that act requires the Secretary to make a formal determination that an entity is eligible to enter into self-determination contracts prior to executing such agreements. See e.g, 25 U.S.C. § 450f(a)(2)(“the Secretary shall, within ninety days after receipt of the [tribal request] approve the proposal and award the contract unless the Secretary provides written notification to the applicant that [the contract should not be awarded]”).





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tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.

25 U.S.C. § 1301(2). The United States Supreme Court has explained that powers of self-

government include the power to determine membership, regulate domestic relations among

tribal members, and prescribe rules for the inheritance of property. See United States v. Wheeler,

435 U.S. 313, n.18 (1978). Another federal court has described powers of self-government as

including the ability to deliver a broad range of services, including education, land use planning,

and natural resource management. See Macarthur v. San Juan County, 391 F. Supp. 2d 895,

937-38 (D. Utah, 2005).

Both this Court and the United States Court of Appeals for the Ninth Circuit have already

affirmed that the Community possesses and exercises powers of self-government in Nisqually

Indian Tribe v. Gregoire, 649 F. Supp. 2d 1203 (W.D. Wash. 2009), aff’d, Nisqually Indian

Tribe v. Gregoire, 623 F.3d 923 (9th Cir. 2010).

That case involved the Squaxin Island Tribe’s operation of a smoke shop on an individual

allotment within the Community through a contract with the Community. The Nisqually Indian

Tribe challenged the Community’s authority to enter into intergovernmental agreements with the

Squaxin Island Tribe and the State of Washington. This Court explained:

A necessary and inherent power of a self-governing entity is the power to contract with those individuals or entities with whom the self-governing entity finds it necessary to contract, in order to fulfill its obligations to govern and to administer programs for the benefit of the governed.

Gregoire, 649 F. Supp. 2d at 1209. It also added, “Congress clearly intended…for the

Community to be given limited sovereign powers, as a dependent Indian Community, in order to

sustain its governmental programs[.]” Id. at 1210.





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The Community has exercised a multitude of powers of self-government. For example, it

has executed intergovernmental agreements with other sovereign entities, and it has provided its

members with educational services through the Wa-He-Lute Indian School. The United States

has recognized the Community’s exercise of these powers through the provision of funding and

services. Moreover, this Court affirmed the Community’s exercise of its powers of self-

government in Gregoire.

As the Court of Appeals for the First Circuit has explained, any concrete manifestation of

a tribal entity’s exercise of governmental authority is sufficient for an entity to qualify for

gaming under IGRA. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 703 (1st Cir.

1994)7.

C. Congress contemplated that the Community could engage in gaming activities in the 1994 Frank’s Landing Act. The Community’s status as an “Indian tribe” for purposes of IGRA is consistent with

Congress’ intent in adopting the 1994 Frank’s Landing Act. In fact, by virtue of the language

adopted by Congress in that Act, it is clear that Congress contemplated that the Community

could engage in class II gaming under IGRA.8 The 1994 Frank’s Landing Act states, in part:

(3) Notwithstanding any other provision of law, the Frank’s Landing Indian Community shall not engage in any class III gaming activity (as defined in section 3(8) of the Indian gaming regulatory Act of 1988).

7 In the wake of the Narragansett opinion, Congress enacted legislation expressly excluding the tribe from offering any form of gaming under IGRA, discussed in greater detail, below.

8 IGRA divides gaming activities into three different classes, each of which is subject to different regulatory regimes. See 25 U.S.C. §§ 2703(5) – (8). “Class I” gaming is essentially comprised of traditional cultural forms of gambling activities. “Class II” gaming is comprised of bingo and card games permitted under state law. And, “class III” gaming is comprised of all other forms of gambling (i.e. “Las Vegas-style” casino gambling). See Id.





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Pub. L. 103-435, 108 Stat. 4566 (November 2, 1994)(emphasis added).

The 1994 Frank’s Landing Act was adopted at the urging of the Community, with

support from the Governor of the State of Washington and members of Washington’s

congressional delegation. The Nisqually Indian Tribe opposed the 1994 Frank’s Landing Act,

and mounted a concerted campaign to prevent its passage.

On November 28, 1994, Karl Funke, a consultant for the Nisqually Indian Tribe, issued a

letter (the “Consultant Letter”) to Dorian Sanchez, then-Chairman of the Nisqually Indian Tribe,

in which he described efforts to defeat the 1994 Frank’s Landing Act. See DOI AR 0150-0154

(Letter from Karl Funke to Dorian Sanchez (November 28, 1994)). The Consultant Letter

highlighted the Nisqually Indian Tribe’s concerns at the time that the 1994 Frank’s Landing Act

could potentially be interpreted to allow the Community to conduct Class II gaming on its lands:

Certainly most knowledgeable people were well aware that the provision could be read to confer federal tribal status to Frank’s Landing otherwise why would there have been any need to prohibit Frank’s Landing from engaging in Class III gaming. Only federally recognized tribes can engaged in Class II or III gaming (sic). Id. The Consultant Letter also describes a strategy by the Nisqually Indian Tribe to insert a

colloquy into the Congressional Record to undermine the Community’s ability to conduct class

II gaming on its lands. The Nisqually Indian Tribe’s efforts were rebuffed by the primary

sponsors of the 1994 Frank’s Landing Act, although a member of the House of Representatives

inserted a colloquy in the Congressional Record stating that the Community was prohibited from

engaging in class II or class III gaming activities. Id.

The Nisqually Indian Tribe’s need to insert its manufactured colloquy into the record is

apparent from the legislative history of the 1994 Frank’s Landing Act. On October 6, 1994, Rep.





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Richardson proposed an amendment (the “Richardson Amendment”) to bar the Community from

all forms of gaming under IGRA: “Notwithstanding any other provision of law, the [Community]

shall not engage in any gaming activity [under IGRA].” DOI AR 0159-0160 (citing 140 Cong.

Rec. H 11,137) (emphasis added). The Richardson Amendment was not adopted, and the 1994

Frank’s Landing Act did not include the language categorically prohibiting the Community from

conducting all forms of gaming under IGRA.

Instead, Congress approved the 1994 Frank’s Landing Act with a much narrower

prohibition on class III gaming by the Community:

Notwithstanding any other provision of law, the Frank’s Landing Indian Community shall not engage in any class III gaming activity (as defined in section 3(8) of the Indian gaming regulatory Act of 1988).

P.L. 103-435, 108 Stat. 4566 (emphasis added).

Congress is well aware of its power to categorically prohibit or limit IGRA’s application.

In fact, Congress enacted such a categorical limitation a year earlier when it approved the

Catawba Settlement Act. See P.L. 103-116, 25 U.S.C. § 941l(a)(“The Indian Gaming Regulatory

Act (25 U.S.C. 2701 et. seq.) shall not apply to the Tribe”). Congress similarly barred the

Narragansett Tribe from conducting gaming on its settlement lands under IGRA. See 25 U.S.C.

§ 1708(b)(“For purposes of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et. seq.),

settlement lands shall not be treated as Indian lands”).

When faced with the choice between barring the Community from all forms of gaming

under IGRA, and barring the Community only from conducting class III gaming, Congress

adopted the narrower prohibition. Congress gave the term “class III gaming” a precise legal

definition when it adopted IGRA in 1988. See 25 U.S.C. § 2703(8). The Defendants are duty-

bound to respect Congress’ deliberate choice to use that term in the 1994 Frank’s Landing Act’s





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limitations on the Community’s authority. See Board of Education of Westside Community

Schools 66 v. Mergens, 496 U.S. 226, 242 (1990)(explaining that Congress’ decision to adopt

one legal term over another demonstrates its intent adopt one standard over another); and

Russello v. United States, 464 U.S. 16, 23-24 (1983) (“Where Congress includes limiting

language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that

the limitation was not intended.”). Reading a broader gaming prohibition into the 1994 Frank’s

Landing Act conflicts with Congress’ deliberate choice of terms.

The Defendants’ own legal counsel appears to have agreed with the Community’s

interpretation of Congress’ adoption of the narrower prohibition against only class III gaming.

In an internal memorandum from the Department of the Interior’s Office of the Solicitor to

Defendant Kevin Washburn, the Office of the Solicitor advised:

[We] recognize that there could be an argument that Frank’s Landing is a tribal organization that uniquely falls within the definition of “tribe” only for purposes of Class I and Class II gaming under IGRA.

DOI AR 0078 (Memorandum from Scott Keep, Senior Counsel to Kevin Washburn, Assistant

Secretary – Indian Affairs (March 3, 2015)).

D. Defendant Kevin Washburn acted arbitrarily, capriciously, and not in accordance with the law by substituting a definition of “Indian tribe” different from the definition supplied by Congress in IGRA.

As set forth above, the APA mandates that an agency take the steps necessary to provide

an explanation that will enable the court to evaluate the agency’s rationale at the time of the

decision articulating a rational connection between the facts found and the choices made.

Overton Park, 401 U.S. at 410; Arrington, 526 F.3d at 1112. Further, this Court provided an

indicative ruling that the explanation proffered by the Defendants is “not in accordance with

the law” (Doc. 29 at n.3) (Order Granting Defendants’ Motion to Dismiss). Because the





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indicative ruling was in the context of the NIGC’s Motion to Dismiss, which part of these

proceedings did not include the remaining Defendants including the Secretary, the Court awaits

the Secretary’s response to this Motion for Summary Judgment to demonstrate why its indicative

ruling is wrong. As discussed below, the Defendants’ proffered explanation is arbitrary,

capricious, an abuse of discretion and not in accordance with the law. Accordingly, this Court

should vacate the Defendants’ determination that the Community does not qualify as an Indian

tribe, and direct the Defendants to make a determination that the Community is eligible under

IGRA to govern Class II gaming on its Indian lands.

The March 6th Decision suggests that the 1994 Tribal List Act supplies a uniform

definition of the term “Indian tribe,” that is dispositive of an entity’s tribal status for purposes of

federal law – including IGRA. That Decision states that the Community’s absence from the list

of federally-recognized Indian tribes published pursuant to the 1994 Tribal List Act (the “Annual

List”) is conclusive evidence that the Community is not an “Indian tribe” under IGRA. See DOI

AR 0080 (the March 6th Decision)(“The NIGC is entitled to rely on this [list] as a definitive

means of determining whether an entity is a federally-recognized Indian tribe”).

The Defendants’ reliance on the Annual List is an effort to create a uniform definition of

the term “Indian tribe” where Congress itself has chosen to supply different definitions to

achieve different objectives in different statutes. See Id. (“The list…provides a simple ‘bright

line’ rule that preserves government resources around such matters.”) If Congress wished to

establish a bright line definition of the term “Indian tribe” for all federal purposes – including

IGRA – it would have done so. It has not. It is the province of Congress, not the Defendants, to

establish a statutory definition of “Indian tribe.” See U.S. Const. art. I § 1 (“All legislative

powers shall be vested in a Congress of the United States, which shall consist of a Senate and





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House of Representatives”). The Defendants’ decision unlawfully usurps Congress’ authority to

legislate.

The idea that the term “Indian tribe” can mean different things for purposes of different

federal statutes is not unusual. While a wholesale reliance on the 1994 Tribal List Act for a

uniform definition of “Indian tribe” would be expedient from an administrative standpoint, it

would undermine Congress’ deliberate choice to ascribe different meanings to that term in

different statutes. Congress has adopted varying definitions of the term “Indian tribe” to achieve

different statutory objectives. Examples of those definitions include:

• The Indian Child Welfare Act, which defines an “Indian tribe” as, “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of title 43[.]” 25 U.S.C. § 1903(8).

• The Indian Reorganization Act, which defines “tribe” as, “any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” 25 U.S.C. § 479.

• The Indian Self-Determination and Education Assistance Act, which defines an “Indian tribe” as, “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians[.]” 25 U.S.C. § 450b(e)(internal citations omitted).

• The Native American Housing Assistance and Self-Determination Act, which defines the term “Indian tribe” to include, “a tribe that is a federally recognized tribe or a State recognized tribe.” 25 U.S.C. § 4103(13)(A)(emphasis added).

• The Federally Recognized Indian Tribe List Act, which defines the term “Indian tribe” to mean, “any Indian or Alaska Native tribe, band, nation, pueblo, village or community that the Secretary of the Interior acknowledges to exist as an Indian tribe.” 25 U.S.C. § 479a.

And, of course, IGRA contains its own definition of “Indian tribe” that varies from the examples





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listed above.

The 1994 Tribal List Act defines the term “Indian tribe” as “any Indian or Alaska Native

tribe, band, nation, pueblo, village or community that the Secretary of the Interior acknowledges

to exist as an Indian tribe.” 25 U.S.C. § 479a (emphasis added). As explained above, IGRA

utilizes a completely different definition, which consists of three elements:

1. The entity must be an Indian tribe, band, nation or other organized group or community of Indians;

2. The entity must be recognized by the Secretary as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; and

3. The entity must be recognized as possessing powers of self-government.

See 25 U.S.C. § 2703(5)(emphasis added).

The definitions utilized by these two statutes are very distinct. The first two elements of

IGRA’s definition of “Indian tribe” track closely with the definition Congress adopted in the

Indian Self-Determination and Education Assistance Act, Pub.L. No. 93-638, where:

1. The entity must be any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.]; and

2. The entity must be recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.





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See 25 U.S.C. § 450b(e). It is entirely possible for an entity, such as an Alaska Native Regional

Corporation, to be eligible for federal funding under Pub .L. No. 93-638 even where it is not

eligible to appear on the Annual List published pursuant to the 1994 Tribal List Act.9

It is a settled legal principle that an entity may constitute an “Indian tribe” for special

purpose statutes, even where it does not constitute a “federally recognized Indian tribe” for all

purposes. See e.g., 25 U.S.C. § 4103(13)(A) (“The term ‘Indian tribe’ means a tribe that is a

federally recognized tribe or a State recognized tribe”); See also Joint Tribal Council of the

Passamaquoddy Tribe v. Morton, 388 F.Supp. 649, 660 (D. Me. 1975)(holding that the

Nonintercourse Act applied to the Passamaquoddy Tribe, notwithstanding the fact that it was not

a federally-recognized Indian tribe), aff’d, 528 F.2d 370 (1st Cir. 1975).

This Court has already acknowledged that Congress has adopted different definitions of

the term “Indian tribe” in different statutes, stating in an earlier order in this case:

Moreover, the List Act appears to be irrelevant to any qualification under IGRA because the IGRA includes both “Indian tribe” and “community of Indians” (25 U.S.C. § 2710(b)(1)) whereas the 1994 List Act defines “Indian tribe” to include a “community that the [Secretary] acknowledges to exist as an Indian tribe” (25 U.S.C. § 479a). In other words, the IGRA does not explicitly state that a community of Indians must be a federally recognized Indian tribe.

Doc 29. at n.3 (Order Granting Defendants’ Motion to Dismiss). This Court added, “the

Secretary appears to be acting not in accordance with law.” Id.

When it comes to other tribal groups, the Defendants appear to have reversed course

regarding the application of the 1994 List Act to IGRA. In publishing a recent rule that

9 The Community does not suggest that an Alaska Native Regional Corporation would constitute an “Indian

tribe” under IGRA. A tribal entity must demonstrate that it possesses powers of self-government in order to qualify as an “Indian tribe” under IGRA.





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establishes a process for the recognition of a Native Hawaiian government, the Defendants

explained that, “the Native Hawaiian Governing Entity would not be within the definition of

‘Indian tribe’ appearing in IGRA, which is limited to those tribes that are ‘recognized as

eligible by the Secretary for the special programs and services provided by the United States to

Indians because of their status as Indians.’ 25 U.S.C. 2703(5); 25 C.F.R. 292.2.” 81 Federal

Register 71278, 71306 (Oct. 14, 2016) (emphasis added). The Defendants’ reliance on IGRA’s

definition of “Indian tribe” in the context of a Native Hawaiian government stands in stark

contrast with the March 6th Decision, where the Defendants declared that the 1994 List Act

provides “a definitive means of determining whether an entity is a federally-recognized Indian

tribe” for purposes of IGRA. DOI AR 0080.

The Community is not asserting that it is entitled to placement on the Annual List

published pursuant to the 1994 List Act. Instead, the Community is merely seeking approval of

its Gaming Ordinance and confirmation that it qualifies as an “Indian tribe” under IGRA’s

definition of that term. Given the express limitations contained in the 1994 Frank’s Landing Act,

approval of the Gaming Ordinance would not lead to the Community’s placement on the Annual

List.

The Defendants’ reliance on the 1994 List Act definition of “Indian tribe” in the

consideration of the Community’s Gaming Ordinance is wholly inappropriate, usurps Congress’

legislative authority, and runs afoul of Congress’ intent in enacting IGRA.

CONCLUSION

The undisputed facts in this case, combined with the plain language of IGRA and the

1994 Frank’s Landing Act, clearly establish that the Community is an “Indian tribe,” for the

limited purposes of IGRA. Moreover, those facts, combined with the plain language of IGRA,





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establish that the Defendants acted arbitrarily, capriciously, and not in accordance with the law

by attempting to substitute IGRA’s definition of “Indian tribe” with another statutory definition

of their choosing.

For those reasons set forth herein, the Community respectfully requests that this Court

grant its Motion for Summary Judgment and such other relief as it deems necessary.

Dated: November 4, 2016 Respectfully submitted,

s/ Scott Crowell SCOTT CROWELL (WSBA No. 18868) CROWELL LAW OFFICE-TRIBAL ADVOCACY GROUP 1487 W. State Route 89A, Suite 8 Sedona, AZ 86336 Telephone: (425) 802-5369 Fax: (509) 235-5017 Email: [email protected]

FLETCHER LAW, PLLC BRYAN T. NEWLAND (MSBA No. P70992) (Pro Hac Vice) 909 Abbott Road Suite F East Lansing, MI 48823 (517) 862-5570 [email protected]

LAW OFFICES OF ALAN S. MIDDLETON, PLLC. Alan S. Middleton (WSBA No. 18118) 18550 43rd Ave. NE Lake Forest Park, WA 98155 Tel: (206) 533-0490 Email: [email protected]

Attorneys for Plaintiff





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CERTIFICATE OF SERVICE

I hereby certify that, on November 4, 2016, I filed the foregoing FRANK’S LANDING

INDIAN COMMUNITY MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court

using the CM/ECF system, which will send notification of such filing to the parties of record in

this matter.

DATED: November 4, 2016

s/ Scott Crowell SCOTT CROWELL (WSBA No. 18868) CROWELL LAW OFFICE-TRIBAL ADVOCACY GROUP 1487 W. State Route 89A, Suite 8 Sedona, AZ 86336 Telephone: (425) 802-5369 Fax: (509) 235-5017 Email: [email protected]


HON. BENJAMIN H. SETTLE - Turtle Talk · 2017-03-16 · Mot. Summary Judgment Case No.:...

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