texas v. u.s. 491 - turtle talk circuit judge, filed opinion concur-ring in part and concurring in...

491TEXAS v. U.S.Cite as 497 F.3d 491 (5th Cir. 2007)

ment for Cedyco, and REVERSE andRENDER judgment in favor of Petro-Quest that Cedyco take nothing.

,

State of TEXAS, Plaintiff–Appellant,

v.

UNITED STATES of America; UnitedStates Department of the Interior;Dirk Kempthorne, in his Official Ca-pacity as Secretary of the Departmentof the Interior, Defendants–Appellees,

Kickapoo Traditional Tribe of Texas,Intervenor–Defendant–Appellee.

No. 05–50754.

United States Court of Appeals,Fifth Circuit.

Aug. 17, 2007.

Background: State challenged validity ofInterior Department rules for Class IIIgaming procedures. The United StatesDistrict Court for the Western District ofTexas, 362 F.Supp.2d 765, Lee Yeakel, J.,granted partial summary judgment for De-partment, ruling that, while state hadstanding to assert its claims, those claimswere unripe, and that Secretary of Interiorhad implied authority under Indian Gam-ing Regulatory Act (IGRA) to promulgatechallenged rules. State appealed.

Holdings: The Court of Appeals, Edith H.Jones, Chief Judge, held that:

(1) state had standing to bring challenge;

(2) state’s claims were ripe; and

(3) challenged rules, which bypassed cer-tain prerequisites of IGRA, did not

reasonably effectuate Act and were notentitled to Chevron deference.

Reversed and remanded.

King, Circuit Judge, filed opinion concur-ring in part and concurring in the judg-ment.

Dennis, Circuit Judge, filed dissentingopinion.

1. Indians O212

As sovereigns, Indian tribes are sub-ordinate only to federal government; how-ever, state laws may be applied to tribalIndians on their reservations if Congresshas expressly so provided.

2. Federal Courts O776

Court of Appeals reviews de novo ju-risdictional issues such as ripeness andstanding, as well as questions of statutoryinterpretation.

3. Federal Courts O850.1

Court of Appeals reviews districtcourt’s factual findings, including those onwhich district court based its legal conclu-sions, for clear error.

4. Federal Civil Procedure O103.2, 103.3

To meet constitutional standing re-quirements: (1) plaintiff must have suf-fered injury in fact, defined as invasion oflegally protected interest that is concreteand particularized and actual or imminent,not conjectural or hypothetical; (2) theremust be causal connection between injuryand conduct complained of, such that inju-ry is fairly traceable to challenged actionof defendant; and (3) it must be likely, notmerely speculative, that injury will be re-dressed by favorable decision. U.S.C.A.Const. Art. 3, § 2, cl. 1.

5. Federal Civil Procedure O103.2

Party invoking federal jurisdictionbears burden of establishing that Article

492 497 FEDERAL REPORTER, 3d SERIES

III standing requirements are met.U.S.C.A. Const. Art. 3, § 2, cl. 1.

6. Indians O342State had standing to challenge validi-

ty of Interior Department rules for ClassIII gaming procedures, contrary to Indiantribe’s contention that state had sufferedno injury from mere existence of thoserules, since Secretary of Interior had notyet approved tribe’s proposed gaming pro-cedures; state suffered actual injury frombeing compelled to participate in adminis-trative process involving mediation andsecretarial approval of gaming procedureswithout finding of state’s bad faith, i.e.process that omitted Indian Gaming Regu-latory Act’s (IGRA) procedural safeguardsand allegedly exceeded Secretary’s regula-tory authority. U.S.C.A. Const. Art. 3,§ 2, cl. 1; Indian Gaming Regulatory Act,§ 2 et seq., 25 U.S.C.A. § 2701 et seq.; 25C.F.R. § 291.1 et seq.

7. Federal Courts O12.1Determination of ripeness requires

evaluation and balancing of: (1) fitness ofissues for judicial decision, and (2) hard-ship to parties of withholding court consid-eration. U.S.C.A. Const. Art. 3, § 2, cl. 1.

8. Administrative Law and ProcedureO704

Challenge to administrative regula-tions meets fitness-for-review ripeness cri-terion if: (1) questions presented are pure-ly legal ones; (2) challenged regulationsconstitute final agency action; and (3) fur-ther factual development would not signifi-cantly advance court’s ability to deal withlegal issues presented. U.S.C.A. Const.Art. 3, § 2, cl. 1.

9. Indians O342State’s challenge to Interior Depart-

ment rules, establishing alternate proce-dures for authorizing Class III gaming onIndian lands in event of state’s assertion of

immunity against tribe’s suit seeking bad-faith determination, was ripe even thoughSecretary of Interior had not yet approvedtribe’s gaming proposal; challenged ruleswere final ones, resolution of issue wouldgive Secretary and Congress guidance intohow Indian Gaming Regulatory Act’s(IGRA) provisions could be administered,and state would suffer hardship, absentcourt’s consideration, from being forced toparticipate in allegedly invalid process.U.S.C.A. Const. Art. 3, § 2, cl. 1; U.S.C.A.Const.Amend. 11; Indian Gaming Regula-tory Act, § 2 et seq., 25 U.S.C.A. § 2701 etseq.; 25 C.F.R. § 291.1 et seq.

10. Statutes O219(1, 2)Under Chevron doctrine, court assess-

es validity of challenged administrativeregulations by determining whether: (1)statute is ambiguous or silent concerningscope of secretarial authority, and (2) reg-ulations reasonably flow from statute whenviewed in context of overall legislativeframework and policies that animated Con-gress’s design.

11. Statutes O219(1, 2)Chevron deference comes into play

only as consequence of statutory ambigui-ty, and then only if reviewing court findsimplicit delegation of authority to agency.

12. Indians O337(3)Department of Interior’s rules, pro-

mulgated in response to Supreme Courtruling that states could assert sovereignimmunity against Indian tribes’ suits forviolation of Indian Gaming Regulatory Act(IGRA) obligation to negotiate gamingcompacts in good faith, and establishingalternate procedures for authorizing ClassIII gaming on Indian lands, did not rea-sonably effectuate IGRA and were not en-titled to Chevron deference; rules’ alter-nate scheme improperly bypassed IGRA’sprerequisites of court determination of badfaith and court-directed mediation.


U.S.C.A. Const.Amend. 11; Indian GamingRegulatory Act, § 11(d)(7), 25 U.S.C.A.§ 2710(d)(7); 25 C.F.R. § 291.1 et seq.

13. Indians O337(3)

Indian Gaming Regulatory Act’s(IGRA) failure to address dismissal, onsovereign immunity grounds, of Indiantribe’s suit against state for violation ofIGRA obligation to negotiate gaming com-pacts in good faith, created statutory gapthat Secretary of Interior was implicitlyauthorized to fill via rulemaking. (PerKing, Circuit Judge, for a majority of thecourt.) U.S.C.A. Const.Amend. 11; IndianGaming Regulatory Act, § 11(d)(7), 25U.S.C.A. § 2710(d)(7).

West Codenotes

Held Invalid25 C.F.R. §§ 291.1, 291.2, 291.3, 291.4,

291.5, 291.6, 291.7, 291.8, 291.9, 291.10,291.11, 291.12, 291.12, 291.13, 291.14,291.15.

Recognized as Unconstitutional25 U.S.C.A. § 2710(d)(7)

William T. Deane, Asst. Atty. Gen. (ar-gued), General Litigation Div., Austin, TX,for Plaintiff–Appellant.

Bridget Garcia, U.S. Dept. of the Interi-or, Washington, DC, for U.S., U.S. Dept.of Interior and Dirk Kempthorne.

Lane Madison McFadden (argued), U.S.Dept. of Justice, Environment & NaturalResources Div., Washington, DC, JohnFrancis Paniszczyn, San Antonio, TX, forU.S.

Edmund Clay Goodman (argued),Hobbs, Straus, Dean & Walker, Portland,OR, Jennifer Hughes, Hobbs, Straus,

Dean & Walker, Washington, DC, for Kic-kapoo Traditional Tribe of Texas.

Appeal from the United States DistrictCourt for the Western District of Texas.

Before JONES, Chief Judge, and KINGand DENNIS, Circuit Judges.

EDITH H. JONES, Chief Judge:

This is high-stakes litigation involving achallenge to procedures adopted by theSecretary of the Interior Department(‘‘Secretary’’) to circumvent the conse-quences of the Supreme Court’s EleventhAmendment decision in Seminole Tribe ofFlorida v. Florida, 517 U.S. 44, 116 S.Ct.1114, 134 L.Ed.2d 252 (1996). An initialquestion is whether Texas’s challenge tothe existence of the Secretarial Proceduresis ripe now, before the Secretary has madea substantive determination on a tribe’sClass III gaming license. We hold thatthe case is ripe, the State has standing,and the Secretary lacked authority to pro-mulgate the regulations. The districtcourt’s judgment is REVERSED and RE-MANDED.

I. BACKGROUND

[1] In the 1980s, various Indian tribesbegan to seek authority for legalized gam-bling as a way to earn revenue. As sover-eigns, Indian tribes are subordinate onlyto the federal government. California v.Cabazon Band of Mission Indians, 480U.S. 202, 207, 107 S.Ct. 1083, 1087, 94L.Ed.2d 244 (1987). State laws, however,‘‘may be applied to tribal Indians on theirreservations if Congress has expressly soprovided.’’ Id. In Cabazon, the SupremeCourt held that because Congress had notso expressly provided, California could notenforce certain anti-gambling laws againstan Indian tribe there. Id. at 214, 221–22,107 S.Ct. at 1091, 1094–95.


In response to Cabazon, Congress en-acted the Indian Gaming Regulatory Act(‘‘IGRA’’), 25 U.S.C. § 2701 et seq., to givestates a subordinate but significant role inregulating tribal gaming. IGRA separatesgaming into classes of escalating stakes.Class I gaming—social games played forminimal value—is within the exclusive ju-risdiction of the tribes. 25 U.S.C.§§ 2703(6), 2710(a)(1). Class II gaming—bingo and related activities—is subject tooversight by the National Indian GamingCommission. 25 U.S.C. §§ 2703(7),2706(b), 2710(a), (b) & (c). All other formsof gaming, including high-stakes gamessuch as slot machines, casino games, lot-teries, and dog racing, are Class III. 25U.S.C. § 2703(8).

Class III gaming, if authorized by thetribe, must be ‘‘conducted in conformancewith a Tribal–State compact entered intoby the Indian Tribe and the State.’’ 25U.S.C. § 2710(d)(1). In IGRA, Congressmeticulously detailed two separate tracksleading to the institution of a Class IIItribal gaming business. On the first track,the tribe and the state may negotiate avoluntary compact governing the conductof gaming activities, which takes effect es-sentially upon approval by the Secretary.§ 2710(d)(3)(B).

The second track begins when no com-pact has been reached one hundred eightydays after the tribe requests negotiations.IGRA then allows a tribe to file suitagainst the state in federal court and seeka determination whether the state negoti-ated in good faith. § 2710(d)(7). If thecourt finds the state negotiated in goodfaith, the tribe’s proposal fails. On a find-ing of lack of good faith, however, thecourt may order negotiation, then media-tion. If the state ultimately rejects acourt-appointed mediator’s proposal, theSecretary ‘‘shall prescribe, in consultationwith the Indian tribe, procedures TTT un-

der which class III gaming may be con-ducted.’’ § 2710(d)(7)(B).

The Supreme Court held this secondtrack of the congressional scheme flawedunder the Eleventh Amendment, becauseCongress has no authority to abrogate astate’s sovereign immunity from suit underthe Indian Commerce Clause of Article Iof the Constitution. See Seminole Tribe,517 U.S. at 47, 116 S.Ct. at 1119. Follow-ing Seminole Tribe, a state may waiveimmunity from suit, or the United Statesmay sue the state to obtain the statutorygood-faith determination, but a state can-not be forced to submit to the tribe’s suit.Seminole Tribe made the second track to-ward Class III gaming far more difficult topursue.

To work around the decision, the Secre-tary promulgated notice-and-comment reg-ulations in 1999. See Class III GamingProcedures, 25 C.F.R. pt. 291 (‘‘SecretarialProcedures’’ or ‘‘Procedures’’). The Secre-tarial Procedures only apply if the stateasserts its sovereign immunity and refusesto consent to a tribe’s statutory good-faithsuit. 25 C.F.R. §§ 291.1(b), 291.3. Insuch event, an eligible tribe may submit aClass III gaming proposal to the Secre-tary, who then affords the state sixty daysto comment and submit an alternative pro-posal. 25 C.F.R. § 291.7. At that point,the Secretarial Procedures prescribe twotracks depending on whether the statechooses to submit an alternative compactproposal.

If the state does not submit an alterna-tive proposal, the Secretary reviews thetribe’s proposal and either approves it oroffers the opportunity for a conferencebetween the state and the tribe to address‘‘unresolved issues and areas of disagree-ments in the proposal.’’ 25 C.F.R. § 291.8.The Secretary must then make a ‘‘finaldecision either setting forth the Secre-tary’s proposed Class III gaming proce-


dures for the Indian tribe, or disapprovingthe proposal.’’ Id.

If the state submits an alternative plan,the Secretary appoints a mediator who,following the same procedures as IGRAprescribes, will resolve differences be-tween the two proposals. 25 C.F.R.§§ 291.9, 291.10. While, under the Proce-dures, the Secretary may reject the media-tor’s proposal, he ‘‘must prescribe appro-priate procedures within 60 days underwhich Class III gaming may take place.’’25 C.F.R. § 291.11 (emphasis added).

The difference between IGRA and theSecretarial Procedures is that IGRA com-pels appointment of a mediator by thecourt only after a judicial finding that thestate failed to negotiate in good faith, butunder the Secretarial Procedures, thegaming proposal goes forward without anyjudicial bad-faith determination if the staterefuses to waive sovereign immunity. TheSecretarial Procedures, in sum, offer twoalternatives for a state that insists upon itssovereign immunity: refuse to negotiate,participate (or not) in an informal confer-ence, and take a chance that the Secretarywill not accept the tribe’s Class III gamingproposal, 25 C.F.R. § 291.8; or submit its‘‘last best proposal’’ to a mediator, with thecertainty that Class III gaming must beapproved on the mediator’s or the Secre-tary’s terms. 25 C.F.R. § 291.11.

In 1995, the Kickapoo Traditional Tribeof Texas (the ‘‘Kickapoo’’) petitioned theState to enter into a compact facilitatingClass III gaming on its land. Texas re-jected the Kickapoos’ offer. The tribe’sfederal lawsuit against Texas was eventu-ally dismissed under Seminole Tribe. In2004, the Kickapoo submitted a proposal tothe Secretary, who followed the SecretarialProcedures and invited Texas to comment.Texas responded with this lawsuit askingthe court to declare the Secretarial Proce-dures unauthorized and unconstitutional.

II. STANDARDS OF REVIEW

[2, 3] This court reviews a districtcourt’s legal conclusions, including the de-cision whether to grant a summary judg-ment motion, de novo. Garcia v. Luma-Corp, Inc., 429 F.3d 549, 553 (5th Cir.2005). Jurisdictional issues such as ripe-ness and standing, as well as questions ofstatutory interpretation, are also legalquestions for which review is de novo. SeeBonds v. Tandy, 457 F.3d 409, 411 (5thCir.2006) (standing); Groome Res. Ltd.,L.L.C., v. Parish of Jefferson, 234 F.3d192, 198–99 (5th Cir.2000) (ripeness); In reReed, 405 F.3d 338, 340 (5th Cir.2005)(statutory interpretation). A districtcourt’s factual findings, including those onwhich the court based its legal conclusions,are reviewed for clear error. See Riverav. Wyeth–Ayerst Labs., 283 F.3d 315, 319(5th Cir.2002).

III. DISCUSSION

The district court determined in athoughtful opinion that Texas had standingto sue, but that the State’s claims were notripe for adjudication. See Order on Defen-dants’ Motion to Dismiss, Kickapoo Tradi-tional Tribe of Texas v. State of Texas,Cause No. P–95–CA–66 (W.D.Tex. Apr. 2,1996). The court thus dismissed. Never-theless, it also opined that the Secretaryhad implied authority under IGRA and hisgeneral statutory responsibility for Indiantribes to promulgate the Procedures. Tex-as v. United States, 362 F.Supp.2d. 765,769–70 (W.D.Tex.2004). The State appeal-ed. Responding to the parties’ contentionsin this court, we conclude that Texas hasstanding to sue, that its case is ripe, andthat the Secretarial Procedures are unau-thorized by statute.

A. Justiciability

Appellees first contend that Texas hasno standing to seek invalidation of the


Secretarial Regulations because Texas hassuffered no injury from the mere existenceof the Secretarial Procedures and, in anyevent, Texas brought any injury on itselfby raising a sovereign immunity defense tothe Kickapoo Tribe’s enforcement suit.Relatedly, Appellees argue that Texas’sclaims are not ripe because any injury thatTexas could suffer from the Procedureswould only manifest if the Secretary wereto prescribe gaming procedures for thetribe at some point in the future. Wedisagree with each contention.

The standing and ripeness doctrinesflow largely from Article III of the Consti-tution, which limits the federal judicialpower to the resolution of cases and con-troversies. Valley Forge Christian Coll. v.Ams. United for Separation of Churchand State, Inc., 454 U.S. 464, 471, 102S.Ct. 752, 757–58, 70 L.Ed.2d 700 (1982)(discussing the underpinnings of standingdoctrine). In general terms, standing isconcerned with whether a proper party isbringing suit, while ripeness is concernedwith whether the suit is being brought atthe proper time. See Elend v. Basham,471 F.3d 1199, 1205 (11th Cir.2006). How-ever, the doctrines often overlap in prac-tice, particularly in an examination ofwhether a plaintiff has suffered a concreteinjury, see id. at 1205, and our injury-in-fact analysis draws on precedent for bothdoctrines.

1. Standing

[4, 5] ‘‘The ‘gist of the question ofstanding’ is whether the party seeking re-lief has ‘alleged such a personal stake inthe outcome of the controversy as to as-sure that concrete adverseness which

sharpens the presentation of issues uponwhich the court so largely depends forillumination of difficult TTT questions.’ ’’Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct.1942, 1952, 20 L.Ed.2d 947 (1968) (quotingBaker v. Carr, 369 U.S. 186, 204, 82 S.Ct.691, 703, 7 L.Ed.2d 663 (1962)). To meetthe constitutional standing requirements,(1) the plaintiff must have suffered an‘‘injury in fact,’’ defined as an invasion of alegally protected interest that is (a) con-crete and particularized and (b) actual orimminent, not conjectural or hypothetical;(2) there must be a causal connection be-tween the injury and the conduct com-plained of, such that the injury is fairlytraceable to the challenged action of thedefendant; and (3) it must be likely, notmerely speculative, that the injury will beredressed by a favorable decision. Lujanv. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351(1992). Texas, as the party invoking fed-eral jurisdiction, bears the burden of es-tablishing that the standing requirementsare met. See id. at 561, 112 S.Ct. at 2136.

[6] Texas alleges two ways in whichthe Secretarial Procedures have caused itto suffer an injury in fact, contending firstthat the existence of the Secretarial Proce-dures has reduced the state’s bargainingpower relative to that of the Kickapoo,1

and second that the Secretarial Proceduressubject Texas to a process for approval ofClass III gaming that omits IGRA’s proce-dural safeguards and thus exceeds theSecretary’s regulatory authority. The lat-ter argument, in other words, is that Texashas suffered the injury of being compelledto participate in an invalid administrative

1. While the Supreme Court has held that thedenial of a ‘‘statutory bargaining chip’’ can‘‘inflict[ ] a sufficient likelihood of economicinjury to establish standing,’’ Clinton v. City ofNew York, 524 U.S. 417, 432, 118 S.Ct. 2091,2101, 141 L.Ed.2d 393 (1998), it is unclear

whether a reduction in bargaining power un-accompanied by economic injury or otherconcrete injury can constitute an injury infact. We do not reach this issue becauseTexas’s other alleged injury in fact is suffi-cient to support standing.


process, and we agree that standing existson this basis.

At the outset of IGRA’s enforcementprocess, the statute provides for tribe-initi-ated court review of a state’s good faith.Once a tribe makes a prima facie showing,the state has the opportunity to prove itsgood faith to the court and forestall theremainder of the enforcement process,which includes court-ordered mediationand possible secretarial approval of gam-ing procedures. Texas interprets this as astatutory promise that states will bespared mediation and secretarial action un-less a court has determined that the statenegotiated in bad faith.

Contrary to Appellees’ suggestion thatTexas faces nothing more than the possi-bility that the Secretary might somedayapprove of gaming procedures for Kicka-poo land, Texas is presently being subject-ed to an administrative process involvingmediation and secretarial approval of gam-ing procedures even though no court hasfound that Texas negotiated in bad faith.Because Texas challenges the Secretary’sauthority to undertake this process, Texashas alleged a sufficient injury for standingpurposes. Cf. Thomas v. Union CarbideAgric. Prods. Co., 473 U.S. 568, 580, 105S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985)(holding that a challenge to a statutorysystem of arbitration was ripe because the

plaintiffs’ ‘‘injury [was] not a function ofwhether the [arbitration] tribunal awardsreasonable compensation but of the tribu-nal’s authority to adjudicate the dispute’’);Middle S. Energy Inc. v. Ark. Pub. Serv.Comm’n, 772 F.2d 404, 410 (8th Cir.1985)(challenge to a state agency’s ongoing pro-ceedings was ripe because the plaintiff‘‘challenge[d] not the state’s ultimate sub-stantive decision but its authority to evenconduct the contemplated proceeding’’).The alleged injury is not hypothetical be-cause the Secretarial Procedures have al-ready been applied to Texas: The Kicka-poo Tribe submitted a Class III gamingapplication to the Department of the Inte-rior, the Secretary notified Texas and thetribe that the application met the relevanteligibility requirements, and the Secretaryinvited Texas to comment on the proposaland submit an alternative proposal.2 Tex-as’s only alternative to participating in thisallegedly invalid process is to forfeit itssole opportunity to comment upon Kicka-poo gaming regulations, a forced choicethat is itself sufficient to support standing.See Union Carbide, 473 U.S. at 582, 105S.Ct. at 3333 (recognizing ‘‘the injury ofbeing forced to choose between relinquish-ing [the benefit of an unlawful adjudicatoryprocess] TTT or engaging in an unconstitu-tional adjudication’’). As the SupremeCourt observed in Lujan,

2. In accordance with the Secretarial Proce-dures, the Department of the Interior in-formed the Kickapoo that their proposal wascompleted on December 11, 2003. See 25C.F.R. § 291.6(b). On May 24, 2007, theSecretary issued a preliminary ‘‘scope-of-gaming decision’’ in response to the tribe’sproposal. According to the Secretary,

[t]he Tribe should be authorized to engagein the following gaming activities underClass III procedures pursuant to 25 U.S.C.§ 2710(d)(7)(B)(vii)(I), subject to the re-quirements discussed in [the scope-of-gam-ing decision]: (1) traditional casino-stylegames; (2) any lottery game including

keno, numbers and lotto; and (3) off-trackpari-mutuel betting and pari-mutuel bettingthrough simulcasting on any gaming activi-ty occurring off Tribal lands. The Tribe isnot authorized to operate gaming ma-chines.

This recent, preliminary scope-of-gaming de-cision illustrates the concrete impact of thechoice that the Secretarial Procedures hadforced Texas to make, as Texas’s decision toforgo this allegedly invalid process has left itunable to influence important decisions suchas the type of gaming activities that the Secre-tary will allow on Kickapoo land.


[w]hen the suit is one challenging thelegality of government action or inactionTTT [and] the plaintiff is himself an ob-ject of the action (or forgone action) atissue TTT, there is ordinarily little ques-tion that the action or inaction hascaused him injury, and that a judgmentpreventing or requiring the action willredress it.

504 U.S. at 561–62, 112 S.Ct. at 2137. Weare satisfied that Texas has alleged aninjury in this case.

The causation and redressability re-quirements for standing are satisfied aswell. The injury that Texas claims is di-rectly traceable to the Secretary’s apply-ing the Secretarial Procedures to Texas,and a judicial invalidation of the Secretari-al Procedures would give Texas direct re-lief from being effectively forced to partici-pate in this process. Although the UnitedStates argues that Texas brought the inju-ry on itself by invoking a sovereign immu-nity defense, it provides no support for theproposition that an injury cannot be fairlytraceable to a defendant if the plaintiff’sacts motivated the defendant to undertakeits injurious acts. The State did not causethe Secretary of the Interior to promul-gate the Secretarial Procedures, nor did itcause the Secretary to apply the process toTexas. The State’s sovereign immunitydefense is a prerequisite to secretarial ac-tion only because the Secretarial Proce-dures so provide.

[7] Accordingly, Texas has standing tochallenge the validity of the SecretarialProcedures.

2. Ripeness

[The] basic rationale [of the ripenessdoctrine] is to prevent the courts,

through avoidance of premature adjudi-cation, from entangling themselves inabstract disagreements over administra-tive policies, and also to protect theagencies from judicial interference untilan administrative decision has been for-malized and its effects felt in a concreteway by the challenging parties.

Abbott Labs. v. Gardner, 387 U.S. 136,148–49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681(1967), overruled on other grounds, Califa-no v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51L.Ed.2d 192 (1977). To determine if acase is ripe for adjudication, a court mustevaluate (1) the fitness of the issues forjudicial decision, and (2) the hardship tothe parties of withholding court consider-ation. See id. at 149, 87 S.Ct. 1507. Thefitness and hardship prongs must be bal-anced, Am. Forest & Paper Ass’n v. EPA,137 F.3d 291, 296 (5th Cir.1998), and ‘‘[a]case is generally ripe if any remainingquestions are purely legal ones.’’ NewOrleans Pub. Serv., Inc. v. Council of theCity of New Orleans, 833 F.2d 583, 587(5th Cir.1987). Yet ‘‘even where an issuepresents purely legal questions, the plain-tiff must show some hardship in order toestablish ripeness.’’3 Cent. & Sw. Servs. v.EPA, 220 F.3d 683, 690 (5th Cir.2000).

[8] A challenge to administrative regu-lations is fit for review if (1) the questionspresented are ‘‘purely legal one[s],’’ (2) thechallenged regulations constitute ‘‘finalagency action,’’ and (3) further factual de-velopment would not ‘‘significantly advance[the court’s] ability to deal with the legalissues presented.’’ Nat’l Park HospitalityAss’n v. Dep’t of Interior, 538 U.S. 803,812, 123 S.Ct. 2026, 2032, 155 L.Ed.2d 1017

3. Texas relies on a case from another circuitfor the proposition that hardship is an issueonly if a case is not fit for review. See Fla.Power & Light v. EPA, 145 F.3d 1414, 1421(D.C.Cir.1998) (‘‘When a challenged decision

is not ‘fit’ for review, the petitioner mustshow ‘hardship’ in order to overcome a claimof lack of ripeness.’’). We need not explorethis contention here.


(2003) (internal quotation marks and cita-tions omitted); Abbott Labs., 387 U.S. at149–54, 87 S.Ct. 1515–18. An additionalconsideration is ‘‘whether resolution of theissues will foster effective administrationof the statute.’’ Merchs. Fast MotorLines, Inc. v. ICC, 5 F.3d 911, 920 (5thCir.1993); Abbott Labs., 387 U.S. at 154,87 S.Ct. at 1518.

[9] Appellees do not dispute that theissues involved in this case are purely le-gal, but their arguments with regard tothe remaining fitness principles are allbased on the mistaken belief that Texas’salleged injury is the speculative harm thatcould result if the Secretary were ultimate-ly to approve gaming procedures for Kic-kapoo land. As discussed in the standinginquiry, this is incorrect, as Texas claimspresent injury from submission to an inval-id agency process, regardless whether theSecretary ultimately allows gaming on Kic-kapoo land.

With this distinction in mind, Texas’sclaims are fit for adjudication. The chal-lenged Secretarial Procedures are a ‘‘finalagency action,’’ as they are final rules thatwere promulgated through a formal, no-tice-and-comment rulemaking process af-ter announcement in the Federal Register.See Abbott Labs., 387 U.S. at 150–51, 87S.Ct. at 1516–17. Additional fact-findingwould not aid our inquiry into the purelylegal question of their validity. And reso-lution of this issue now will give both theSecretary and Congress significant guid-ance into how IGRA’s provisions may beadministered in the particular situation ad-dressed in this case. Appellees submit norelevant arguments as to why this issue isnot presently fit for judicial resolution.

We also agree with Texas that it wouldsuffer hardship if we were to withholdconsideration of its claims. The SupremeCourt has found hardship to inhere in legalharms, such as the harmful creation of

legal rights or obligations; practical harmson the interests advanced by the partyseeking relief; and the harm of being‘‘force[d] TTT to modify [one’s] behavior inorder to avoid future adverse conse-quences.’’ Oh. Forestry Ass’n v. SierraClub, 523 U.S. 726, 734, 118 S.Ct. 1665,1671, 140 L.Ed.2d 921 (1998). Texas facesthis third type of harm. If Texas cannotchallenge the Procedures in this lawsuit,the State is forced to choose one of twoundesirable options: participate in an al-legedly invalid process that eliminates aprocedural safeguard promised by Con-gress, or eschew the process with the hopeof invalidating it in the future, which risksthe approval of gaming procedures inwhich the state had no input. See AbbottLabs., 387 U.S. at 152, 87 S.Ct. at 1517(finding hardship where administrativeregulations forced the plaintiffs either tocomply with a challenged requirement andincur significant costs or refuse to complyand risk prosecution); cf. Union Carbide,473 U.S. at 581, 105 S.Ct. at 3333 (findinghardship where the plaintiffs ‘‘suffer[ed]the continuing uncertainty and expense ofdepending for compensation on a processwhose authority is undermined because itsconstitutionality is in question’’).

We therefore agree with Texas that itschallenge to the Secretarial Regulations isripe for adjudication.

B. Merits

On the merits, to which we now turn,Texas contends that the Procedures violatethe constitutional separation of powers andnondelegation doctrines and are contraryto and unauthorized by IGRA or any otherfederal statute. To avoid resolution of anyconstitutional issues, it is sufficient to con-sider whether the Procedures are author-ized by IGRA or the general Indian truststatutes under the Chevron test.


1. Statutory Background

To put this dispute in clearer perspec-tive, one must recall that although stateshave no constitutional authority over Indi-an reservations, Congress had consistentlyauthorized states to regulate or prohibitcertain activities on the reservations. TheSupreme Court significantly altered theassumed state-tribal relationship when, inthe 1987 Cabazon Band decision, it expan-sively interpreted a federal statute to pre-vent states from prohibiting certain tribalgambling activities.

Congress responded to Cabazon Bandby finishing work on IGRA, a gambling-enabling statute for Indian reservationsthat had been pending in the legislativeprocess for several years. It is unneces-sary to repeat our previous summary ofthe statute’s complex provisions. Suffice itto say that among those provisions is a‘‘carefully crafted and intricate remedialscheme’’4 whereby, if a tribe and state donot voluntarily enter a compact for ClassIII gaming, the principal alternative is forthe tribe to sue the state in federal courtand secure a determination that the statehad not negotiated in good faith.5 25U.S.C. § 2710(d)(7)(A)(i). What consti-tutes good-faith negotiating by the state isleft unexplained. An easy, minimal infer-ence is that a state’s insistence upon itsgeneral policy against legalized Class IIIgambling would constitute ‘‘good faith,’’but that determination, along with numer-ous other issues such as the necessary ‘‘fit’’between a state’s policy and the scope ofClass III gaming sought by a tribe, is leftto a federal court—a clearly neutral forum.Under IGRA, a federal court finding thatthe state negotiated in good faith ends thebargaining process. On a finding of lackof good faith, however, the court may or-

der negotiation, § 2710(d)(7)(B)(iii), thenmediation. § 2710(d)(7)(B)(iv). The courtappoints a mediator. If a state refuses toconsent to the mediator’s proposed com-pact (which must blend the ‘‘last best of-fers’’ of each party), the Secretary is thenauthorized to prescribe procedures thatwill bind the state. Moreover, the Secre-tary must adopt procedures ‘‘consistentwith the [mediator’s] proposed compactTTTT’’ § 2710(d)(7)(B)(vii)(I). This statu-tory balance on its face cabins the Secre-tary’s authority while implanting neutralfactfinders on the decisive questions ofgood faith and the final imposition of acompact on an unwilling or uncooperativestate.

Absent the Seminole Tribe decision, thisremedial plan is self-contained and fullysufficient. No one contends that the Sec-retary could have promulgated his alterna-tive Procedures under IGRA before Semi-nole Tribe was decided. Nonetheless, theAppellees insist that IGRA implicitly con-ferred on the Secretary the power to sub-stitute the Secretarial Procedures for thejudicial remedy foreclosed by SeminoleTribe. This court must therefore moveinto the realm of the Chevron doctrine todetermine whether the Secretarial Proce-dures faithfully interpret IGRA or, as theAppellees also assert, the general Indiantrust statutes. See Class III Gaming Pro-cedures, 64 Fed.Reg. 17,535–02, 17,536(Apr. 12, 1999) (Secretary asserts authori-ty to prescribe the Procedures based onthe statutory delegation of powers con-tained in 25 U.S.C. § 2710(d)(7)(B)(vii) ofIGRA and 25 U.S.C. §§ 2 and 9).

2. Chevron Step–One Analysis

[10] The authority of administrativeagencies is constrained by the language of

4. Seminole Tribe, 517 U.S. at 73–74, 116 S.Ct.at 1132.

5. Even after Seminole Tribe, the federal gov-ernment may sue a state on behalf of a tribeto pursue IGRA’s remedial process withoutjurisdictional impediment.


the statute they administer. See Massa-chusetts v. EPA, ––– U.S. ––––, 127 S.Ct.1438, 1462, 167 L.Ed.2d 248 (2007). Underthe Chevron doctrine, courts assess thevalidity of challenged administrative regu-lations by determining whether (1) a stat-ute is ambiguous or silent concerning thescope of secretarial authority and (2) theregulations reasonably flow from the stat-ute when viewed in context of the overalllegislative framework and the policies thatanimated Congress’s design. See Chevron,U.S.A., Inc. v. Natural Res. Def. Council,Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778,2781–82, 81 L.Ed.2d 694 (1984).

a.

Under Chevron step one, the inquiry is‘‘whether Congress has directly spoken tothe precise question at issue.’’ Id. at 842,104 S.Ct. at 2781. Judicial deference isdue only ‘‘if the agency interpretation isnot in conflict with the plain language ofthe statute.’’ Nat’l R.R. Passenger Corp.v. Boston & Maine Corp., 503 U.S. 407,417, 112 S.Ct. 1394, 1401, 118 L.Ed.2d 52(1992) (citing K Mart Corp. v. Cartier,Inc., 486 U.S. 281, 292, 108 S.Ct. 1811,1818, 100 L.Ed.2d 313 (1988)). Step oneincludes challenges to an agency’s inter-pretation of a statute, as well as whetherthe statute confers agency jurisdictionover an issue. See generally FDA v.Brown & Williamson Tobacco Corp., 529U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121(2000). ‘‘Regardless of how serious theproblem an administrative agency seeks to

address, however, it may not exercise itsauthority ‘in a manner that is inconsistentwith the administrative structure that Con-gress enacted into law.’ ’’ Id. at 125, 120S.Ct. at 1297 (quoting ETSI Pipeline Pro-ject v. Missouri, 484 U.S. 495, 517, 108S.Ct. 805, 817, 98 L.Ed.2d 898 (1988)).6

As was shown above in our discussion ofthe statute, the plain language of IGRApermits limited secretarial interventiononly as a last resort, and only after thestatute’s judicial remedial procedures havebeen exhausted. See 25 U.S.C.§ 2710(d)(7)(B)(i)-(vi). Congress did notexplicitly authorize the Secretarial Proce-dures. Under Chevron step one, when, ashere, ‘‘the statute is clear and unambigu-ous, that is the end of the matter; for[this] court, as well as the agency, mustgive effect to the unambiguously expressedintent of Congress.’’ K Mart, 486 U.S. at291, 108 S.Ct. at 1817 (quoting Bd. ofGovernors of the Fed. Reserve Sys. v. Di-mension Fin. Corp., 474 U.S. 361, 368, 106S.Ct. 681, 685, 88 L.Ed.2d 691 (1986));Chevron, 467 U.S. at 842–43, 104 S.Ct. at2781–82.7

b.

[11] Chevron deference ‘‘comes intoplay, of course, only as a consequence ofstatutory ambiguity, and then only if thereviewing court finds an implicit delega-tion of authority to the agency.’’ Sea–Land Serv., Inc. v. Dep’t of Transp., 137

6. Additionally, courts ‘‘must be guided to adegree by common sense as to the manner inwhich Congress is likely to delegate a policydecision of such economic and political mag-nitude to an administrative agency.’’ FDA v.Brown, 529 U.S. at 133, 120 S.Ct. at 1301.

7. It is noteworthy that the ‘‘Indian canon’’ ofstatutory construction has no bearing on thiscase because IGRA unambiguously definesthe scope of secretarial authority and the con-ditions under which such authority may be

lawfully exercised. See Negonsott v. Samuels,507 U.S. 99, 110, 113 S.Ct. 1119, 1125–26,122 L.Ed.2d 457 (1993) (courts do not ‘‘resortto [the Indian] canon of statutory construc-tion’’ when a statute is unambiguous (citationomitted)); Cabazon Band of Mission Indiansv. Nat’l Indian Gaming Comm’n, 14 F.3d 633,637 (D.C.Cir.1994) (‘‘When the statutory lan-guage is clear, as it is here, the [Indian] canonmay not be employed.’’).


F.3d 640, 645 (D.C.Cir.1998) (citing Chev-ron, 467 U.S. at 842–44, 104 S.Ct. at 2781–83). Thus, even if there were an ambigui-ty concerning whether IGRA permits theSecretarial Procedures without exhaustionof its judicially-controlled remedy, anequally salient fact is that ‘‘[m]ere ambigu-ity in a statute is not evidence of congres-sional delegation of authority.’’ Michiganv. EPA, 268 F.3d 1075, 1082 (D.C.Cir.2001) (citing cases); Montana v. Clark,749 F.2d 740, 745 (D.C.Cir.1984) (‘‘[D]efer-ence to an agency’s interpretation consti-tutes a judicial determination that Con-gress has delegated the norm-elaborationfunction to the agency and that the inter-pretation falls within the scope of thatdelegation.’’ (emphasis in original) (citationomitted)). The Appellees’ argument at-tempts to obviate Chevron’s delegation re-quirement by contending that, despiteIGRA’s meticulous description of the pro-tracted remedial prelude to the Secre-tary’s involvement in approving Class IIIgaming without a state’s consent, thiscourt can nonetheless discover a silent, or‘‘implicit,’’ delegation of secretarial author-ity. That is, Appellees contend that eventhough Congress specifically addressedthe circumstances under which secretarialauthority can be exercised—and eventhough those circumstances are absenthere—the Secretary’s actions are justifi-able because IGRA does not explicitly ad-dress the Eleventh Amendment issue thatarose in the wake of Seminole Tribe.

Courts encountering this kind of ‘‘what-ever-it-takes’’ approach to Chevron analy-sis in the past have rejected it. See, e.g.,Platte River Whooping Crane CriticalHabitat Maint. Trust v. FERC, 962 F.2d27, 33 (D.C.Cir.1992) (appeals to a statute’s

broad purposes do not allow the discoveryof implicit delegations of authority whenCongress has explicitly delineated theboundaries of delegated authority). WhenCongress has directly addressed the ex-tent of authority delegated to an adminis-trative agency, neither the agency nor thecourts are free to assume that Congressintended the Secretary to act in situationsleft unspoken. See Nat’l R.R. PassengerCorp. v. Nat’l Ass’n of R.R. Passengers,414 U.S. 453, 458, 94 S.Ct. 690, 693, 38L.Ed.2d 646 (1974) (‘‘When a statute limitsa thing to be done in a particular mode, itincludes the negative of any other mode.’’(quoting Botany Worsted Mills v. UnitedStates, 278 U.S. 282, 289, 49 S.Ct. 129, 132,73 L.Ed. 379 (1929))).8 Accordingly, ad-ministrative agencies and the courts are‘‘bound, not only by the ultimate purposesCongress has selected but by the means ithas deemed appropriate, and prescribed,for the pursuit of those purposes.’’ MCITelecomm. Corp. v. AT&T Co., 512 U.S.218, 231 n. 4, 114 S.Ct. 2223, 2232 n. 4, 129L.Ed.2d 182 (1994) (emphasis added).

Thus, at the heart of the Appellees’ dele-gation argument is the assumption thatsince Congress did not explicitly withholdsecretarial rulemaking authority in theevent that a tribe is unable to obtain ajudicial determination of the state’s badfaith, the ensuing congressional ‘‘silence’’creates an implicit delegation under Chev-ron to promulgate Class III gaming regu-lations.

That is an inaccurate interpretation ofthe nature of the delegation inquiry underChevron ’s first step. ‘‘Agency authoritymay not be lightly presumed.’’ Michigan,268 F.3d at 1082. ‘‘Were courts to pre-sume a delegation of power absent an ex-

8. See also Pub. Serv. Comm. of State of N.Y. v.FERC, 866 F.2d 487, 491–92 (D.C.Cir.1989)(executive agencies ‘‘cannot enlarge thechoice of permissible procedures beyond

those that may fairly be implied from thesubstantive sections and the functions theredefined’’).


press withholding of such power, agencieswould enjoy virtually limitless hegemony, aresult plainly out of keeping with Chevronand quite likely with the Constitution aswell.’’ Ethyl Corp. v. EPA, 51 F.3d 1053,1060 (D.C.Cir.1995); Michigan, 268 F.3dat 1082.9 It stands to reason that whenCongress has made an explicit delegationof authority to an agency, Congress didnot intend to delegate additional authoritysub silentio. See Backcountry AgainstDumps v. EPA, 100 F.3d 147, 151(D.C.Cir.1996) (finding that explicit con-gressional delegation of authority pre-cludes an implicit delegation more expan-sive than Congress’s express terms).Courts recognize an implicit delegation ofrulemaking authority only when Congresshas not spoken directly to the extent ofsuch authority, or has ‘‘intentionally left[competing policy interests] to be resolvedby the agency charged with administrationof the statute.’’ Chevron 467 U.S. at 865–66, 104 S.Ct. at 2793.

In IGRA, Congress plainly left little re-medial authority for the Secretary to exer-cise. The judicially-managed scheme ofgood-faith litigation, followed by negotia-tion, then mediation, allows the Secretary

to step in only at the end of the process,and then only to adopt procedures basedupon the mediator’s proposed compact.The Secretary may not decide the state’sgood faith; may not require or name amediator; and may not pull out of thin airthe compact provisions that he is empow-ered to enforce. To infer from this limitedauthority that the Secretary was implicitlydelegated the ability to promulgate awholesale substitute for the judicial pro-cess amounts to logical alchemy.

c.

Citing Seminole Tribe, Appellees fur-ther contend that a judicial decision can, expost facto, create a Chevron-type ‘‘gap’’that introduces ambiguity into the opera-tion of a statutory scheme and therebyauthorizes an administrative agency tostep in and remedy the ambiguity. Thisclaim ignores Chevron’s well-establishedrequirement that any delegation-engender-ing gap contained in a statute, whetherimplicit or explicit, must have been ‘‘leftopen by Congress,’’ not created after thefact by a court. Chevron, 467 U.S. at 866,104 S.Ct. at 2793 (emphasis added).10

9. Nor can congressional silence on an issuebe used as a panacea justifying rulemakingauthority untethered from any trace of con-gressional intent. ‘‘To suggest, as the [Secre-tary] effectively does, that Chevron step two isimplicated any time a statute does not ex-pressly negate the existence of a claimed ad-ministrative power TTT is both flatly unfaithfulto the principles of administrative law andrefuted by precedent.’’ Am. Bar Ass’n v. FTC,430 F.3d 457, 468 (D.C.Cir.2005) (quoting Ry.Labor Executives’ Ass’n v. Nat’l Mediation Bd.,29 F.3d 655, 671 (D.C.Cir.1994) (en banc)(emphasis in original)).

10. Moreover, no other circuit court to haveconsidered the propriety of the SecretarialProcedures in light of IGRA has discoveredthe statutory gap purportedly created by Sem-inole Tribe. The Eleventh Circuit has suggest-ed without any analysis that if a state assertedEleventh Amendment immunity against a

tribe’s lawsuit, the judicial good-faith deter-mination was severable and unnecessary, andthe Secretary could simply enforce againstthe state regulations governing Class III gam-ing. See Seminole Tribe of Fla. v. Florida, 11F.3d 1016, 1029 (11th Cir.1994), aff’d, 517U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252(1996). A close reading of the Eleventh Cir-cuit’s decision, however, demonstrates that itmeant to allow the Secretary to proceed un-der IGRA as if a judicial finding of lack ofgood faith had been made and a court-ap-pointed mediator failed to bring the parties toterms. See id. (citing § 2710(d)(7)(B)(vii) asthe basis for the Secretarial Procedures). No-where does the Eleventh Circuit claim that astate’s exercise of Eleventh Amendment sover-eign immunity creates a statutory gap. Like-wise, considering IGRA in the wake of theSupreme Court’s Seminole Tribe decision, theNinth Circuit reaffirmed the centrality of the


Although later enacted statutory provi-sions may be relevant to determine con-gressional intent for purposes of Chevronambiguity, see Brown & Williamson, 529U.S. at 143–44, 120 S.Ct. at 1306–07, thereis no support for the proposition that latercourt decisions affect or effect ambiguity.Chevron’s delegation inquiry gauges con-gressional intent that is independent fromsubsequent administrative or judicial con-structions of a statute. See Nat’l Cable &Telecomm. Ass’n v. Brand X InternetServs., 545 U.S. 967, 982, 125 S.Ct. 2688,2700, 162 L.Ed.2d 820 (2005) (‘‘[W]hetherCongress has delegated to an agency theauthority to interpret a statute does notdepend on the order in which the judicialand administrative constructions occur.’’);see also Bowen v. Georgetown Univ.Hosp., 488 U.S. 204, 208, 109 S.Ct. 468,471, 102 L.Ed.2d 493 (1988) (‘‘It is axio-matic that an administrative agency’s pow-er to promulgate legislative regulations islimited to the authority delegated by Con-gress.’’). Accordingly, even though courtinterpretation of IGRA produced the unex-pected result that a state may ‘‘veto’’ ClassIII gaming by exercising its EleventhAmendment sovereign immunity, that out-come has no bearing on the scope of theadministrative authority originally delegat-ed by Congress to the Secretary.

When it so desires, Congress has thepower to confer expansive interpretive au-thority on agencies to accommodate chang-ing or unpredictable circumstances. See,e.g., Massachusetts, 127 S.Ct. at 1462

(‘‘The broad language of [Clean Air Act]§ 202(a)(1) reflects an intentional effort toconfer flexibility necessary to forestall TTT

obsolescence.’’). Likewise, Congressknows well how to cabin agency authoritythrough specific definitions that pretermitflexible interpretation. See, e.g., EthylCorp., 51 F.3d at 1058 (Congress unambig-uously expressed that waiver decisionsmade under Clean Air Act § 211(f)(4) arebased exclusively on one criterion). How-ever, the fact that later-arising circum-stances cause a statute not to function asCongress intended does not expand thecongressionally-mandated, narrow scope ofthe agency’s power. For example, in eval-uating the validity of the Federal Re-serve’s interpretation of the Bank HoldingCompany Act in Dimension Financial, theSupreme Court observed that:

Congress defined with specificity certaintransactions that constitute banking sub-ject to regulation. The statute may beimperfect, but the [Federal Reserve]Board has no power to correct flaws thatit perceives in the statute it is empow-ered to administer. Its rulemakingpower is limited to adopting regulationsto carry into effect the will of Congressas expressed in the statute. If the BankHolding Company Act falls short of pro-viding safeguards desirable or necessaryto protect the public interest, that is aproblem for Congress, not that Board orthe courts, to address.

Dimension Fin. 474 U.S at 374–75, 106S.Ct. at 689.11 In strikingly similar terms,

statutory balancing of interests in IGRA’s re-medial scheme, yet did not mention the ap-parent gap Appellees claim was created bythe Supreme Court. See United States v. TheSpokane Tribe of Indians, 139 F.3d 1297,1299–1300 (9th Cir.1998).

11. Under the Chevron analysis, the question iswhether Congress could be said to have dele-gated explicit or implicit authority to theagency to deal with an issue. We focus here

on implicit delegation since IGRA indisput-ably does not address the post-Seminole Tribestate of affairs. The Dissent suggests thatCongress effects an implicit delegation of leg-islative authority each time it decides an issueand withholds power from the agency in sodoing. Following this ungainly line of rea-soning to its conclusion, the Dissent wouldhold that any time a court overturns a statutespeaking expressly to an administrative issue,


the Seminole Tribe Court rejected Flori-da’s invitation to prescribe a remedy un-supported by the language and legislativehistory of IGRA. 517 U.S. at 76, 116 S.Ct.at 1133 (‘‘Nor are we free to rewrite[IGRA’s] statutory scheme in order to ap-proximate what we think Congress mighthave wanted had it known that§ 2710(d)(7) was beyond its authority. Ifthat effort is to be made, it should be madeby Congress, not by the federal courts.’’).12

Nor does the fact that judicial interpre-tation of a statute leads to consequencesunforeseen by Congress make a statute‘‘ambiguous’’ within the meaning of Chev-ron. See, e.g., Exxon Mobil Corp. v. Alla-pattah Servs., Inc., 545 U.S. 546, 567, 125S.Ct. 2611, 2625, 162 L.Ed.2d 502 (2005)(rejecting legislative history that mighthave demonstrated Congress ‘‘did not in-tend’’ to overrule a case because the statu-tory language was unambiguous that Con-gress did in fact overrule the case); In reAbbott Labs., 51 F.3d 524, 528–29 (5thCir.1995) (applying the plain meaning of astatute even though that construction‘‘may have been a clerical error’’); see also

Thompson v. Goetzmann, 337 F.3d 489(5th Cir.2003). In Thompson, the Depart-ment of Health & Human Services soughtdeference for its interpretation of a partic-ular term, as construed in the applicableregulations and in its lawsuit for Medicarereimbursement. The court stated:

[W]e reiterate that the courts are not inthe business of amending legislation. Ifthe plain language of the MSP statuteproduces the legislatively unintended re-sult claimed by the government, the gov-ernment’s complaint should be ad-dressed to Congress, not to the courts,for such revision as Congress may deemwarranted, if any.

Id. at 493. Court decisions cannot serve todilate or contract the scope of authoritydelegated by Congress to an administra-tive agency because delegation is a matterof legislative intent, not judicial interpreta-tion. Thus, if Congress did not originallyintend to confer rulemaking authority, theSecretary cannot synthesize that authorityfrom a judicial opinion.13

the agency has been delegated de facto implic-it authority to revise the procedure as it seesfit. That result stands Congress’s exertion ofpower on it head, transforms a denial of agen-cy authority into an implicit delegation there-to, and radically undercuts the SupremeCourt’s attempt in Chevron to distinguish be-tween congressional power and agency au-thority in a principled way. In the Indiangaming context, Congress reacted to the Ca-bazon Band decision by adopting a highlycomplex scheme to balance the tribal-stateinterests inherent in Indian gaming. Con-gress could have simply authorized the Secre-tary to promulgate compacts however hechose to do so, or, it could have refrainedfrom acting entirely. It took neither route.Instead, it explicitly withheld power from theSecretary to accomplish IGRA’s balancingscheme. As Dimension Financial states, nocourt decision can restore power that waswithheld by Congress.

12. This comment was made in the context ofthe Supreme Court’s rejection of a judicially

crafted Ex Parte Young remedy—not the Sec-retarial Procedures at issue in this appeal.But Florida’s proposed Ex Parte Young reme-dy was rejected by the Supreme Court be-cause, like the Secretarial Procedures, it wascontrary to the ‘‘carefully crafted and intri-cate remedial scheme set forth in§ 2710(d)(7)’’ by Congress. Seminole Tribe,517 U.S. at 73–74, 116 S.Ct. at 1132. TheSupreme Court’s reason for rejecting the ExParte Young remedy thus applies with equalforce to the Secretarial Procedures here.Nevertheless, we acknowledge that the Courtexplicitly refused to consider the EleventhCircuit’s ‘‘substitute remedy’’ of SecretarialProcedures. Id. at 76, 116 S.Ct. at 1133; seealso 517 U.S. 1133, 116 S.Ct. 1416, 134L.Ed.2d 541 (1996) (mem.).

13. The United States’ analogy to the Coal Actcases fails to lend support to its endorsementof the unauthorized actions Interior has takenin this case. The Fourth Circuit’s decision inThe Pittston Co. v. United States, 368 F.3d 385


3. Reasonableness of SecretarialProcedures Under Chevron’s

Step Two

[12] Even were we to conclude underthe Chevron step-one analysis that Semi-nole Tribe effected a sub rosa delegationof administrative authority allowing theSecretary to ignore Congress’s explicitlimitation of his authority in§ 2710(d)(7)(B)(vii), the Secretarial Proce-dures still cannot pass muster under Chev-ron step two because they do not reason-ably effectuate Congress’s intent forIGRA. ‘‘If [the agency’s] choice repre-sents a reasonable accommodation of con-flicting policies that were committed to theagency’s care by the statute,’’ a court willnot disturb that choice ‘‘unless it appearsfrom the statute or legislative history thatthe accommodation is not one that Con-gress would have sanctioned.’’ Chevron,467 U.S. at 845, 104 S.Ct. at 2783 (quotingUnited States v. Shimer, 367 U.S. 374,382–83, 81 S.Ct. 1554, 1560–61, 6 L.Ed.2d908 (1961)); see also United States v. Riv-erside Bayview Homes, Inc., 474 U.S. 121,

131, 106 S.Ct. 455, 462, 88 L.Ed.2d 419(1985) (Chevron step two entails evaluationof agency action ‘‘in light of the language,policies and legislative history of theAct.’’). In any event, ‘‘[p]olicy consider-ations cannot override our interpretationof the text and structure of the Act.’’ Cent.Bank of Denver, N.A., v. First InterstateBank of Denver, N.A., 511 U.S. 164, 188,114 S.Ct. 1439, 1453–54, 128 L.Ed.2d 119(1994). ‘‘The judiciary is the final authori-ty on issues of statutory construction andmust reject administrative constructionswhich are contrary to clear congressionalintent.’’ Chevron, 467 U.S. at 843 n. 9, 104S.Ct. at 2782 n. 9. Thus, as with thedelegation inquiry, Chevron step two com-pels a judicial evaluation of congressionalintent. Because the Secretary’s actionsclearly violate IGRA’s intent, they are un-reasonable.

In IGRA, Congress struck a ‘‘finely-tuned balance between the interests of thestates and the tribes’’ to remedy the Caba-zon Band prohibition on state regulation of

(4th Cir.2004), stands only for the propositionthat an administrative agency’s interpretationof a statute in light of a subsequent judicialdecision may be permissible if that interpreta-tion is (1) faithful to the authority Congressoriginally delegated to the agency and (2)does not contradict the plain language of thestatute. That uncontroversial stance sharesour view that the scope of authority delegatedby Congress to an administrative agency isnot altered by subsequent developments. See,e.g., Brand X, 545 U.S. at 983, 125 S.Ct. at2700. As the Pittston court recognized, thebeneficiary reassignments undertaken by theSocial Security Commissioner in the wake ofEastern Enterprises v. Apfel, 524 U.S. 498, 118S.Ct. 2131, 141 L.Ed.2d 451 (1998), did not‘‘violate[ ] or disturb[ ] the structure of theCoal ActTTTT [The Commissioner] followedthe Coal Act’s assignment structure to theletterTTTT [T]he fact and method of applyingthe Coal Act TTT have not changed.’’ 368F.3d at 404–05; see also A.T. Massey Coal Co.v. Holland, 472 F.3d 148, 167 (4th Cir.2006)(‘‘[D]elegation must appear from the statute

itself, not from the agency’s actions’’); SidneyCoal Co. v. Soc. Sec. Admin., 427 F.3d 336,347 n. 15 (6th Cir.2005). The same cannot besaid of the Secretary’s actions. In stark con-trast to the Commissioner’s reassignments inPittston, here the Secretary did not promul-gate Class III gaming regulations that corre-spond to the structure of IGRA. Instead, theSecretary has erected an ersatz remedialscheme that exceeds the authority Congressdelegated to the Secretary under IGRA’s re-medial provisions. Pittston does not supportthe creation of a novel remedial scheme neverenvisioned by Congress and specifically con-tradictory of Congress’s expressed intent con-cerning the scope of secretarial rulemaking.The application of a preexisting remedialscheme to a narrower pool of plan partici-pants that was approved in Pittston is notremotely analogous to the wholesale inven-tion of the remedial scheme that we are con-fronted with in the Secretarial Procedures.Pittston lends no support for the unprecedent-ed ‘‘gapfilling’’ that the Secretary has under-taken in this case.


Indian gaming. United States v. SpokaneTribe of Indians, 139 F.3d 1297, 1301 (9thCir.1998); S.REP. NO. 100–446, at 2 (1988),as reprinted in 1988 U.S.C.C.A.N. 3071,3071–72 (noting Cabazon Band’s holdingthat tribes ‘‘have a right to conduct gam-ing activities on Indian lands unhinderedby State regulation’’). Congress attempt-ed to ‘‘provide a means by which tribal andState governments can realize their uniqueand individual governmental objectives’’ bygiving tribes the opportunity to negotiate aClass III gaming compact, and by givingstates the protection of an objective judi-cial intermediary in case negotiationsprove unsuccessful. S.REP. NO. 100–446, at13 (1988), as reprinted in 1988U.S.C.C.A.N. 3071, 3083.

The lynchpin of IGRA’s balancing ofinterests is the tribal-state compact.Melding the provisions for negotiation of acompact with the remedial structure ulti-mately included in IGRA took over fiveyears to accomplish legislatively.14 More-over, IGRA’s legislative history amplydemonstrates that Congress viewed thecompact as an indispensable prerequisiteto Class III gaming. See id. at 6, asreprinted in 1988 U.S.C.C.A.N. 3071, 3076(‘‘[IGRA] does not contemplate and doesnot provide for the conduct of Class IIIgaming activities on Indian lands in theabsence of a tribal-State compact’’); id.(‘‘tribes will be unable to enter into [ClassIII] gaming unless a compact is in place’’).Congress considered—and rejected—otherremedial structures that did not guaranteestates such protections. The legislatureeventually settled on IGRA’s judicial reme-

dy and the tribal-state compact require-ment as the ‘‘best mechanism to assurethat the interests of both sovereign entitiesare met with respect to the regulation ofcomplex gaming enterprises.’’ Id. at 13,as reprinted in 1988 U.S.C.C.A.N. 3071,3083.

Congressional intent on this score is pel-lucid. In order to conduct Class III gam-ing, tribes must either: (1) negotiate avoluntary compact with the state, see 25U.S.C. § 2710(d)(3)(A)-(C); (2) obtain thestate’s agreement to the mediator-selectedcompact that follows the judicial good-faithprocess, see § 2710(d)(7)(B)(iii)-(vi); or (3)obtain secretarial Class III proceduresbased on the mediator-selected compact,see § 2710(d)(7)(B)(vii)(I). Absent a trib-al-state compact, the statute forbids tribesto offer Class III gaming.

The tribal-state compact is in fact socentral to the IGRA process that it is theonly means by which the tribe can avoidincurring liability under other federal stat-utes that regulate Indian gaming. Twostatutes, both of which antedate IGRA, arerelevant to this issue. First, the JohnsonAct, 15 U.S.C. § 1175 et seq., prohibits thepossession or use of ‘‘any gambling deviceTTT within Indian country.’’ Id. § 1175(a).Second, 18 U.S.C. § 1166 punishes gam-bling in Indian country in derogation ofstate law. Congress coordinated IGRAwith these criminal provisions by providingthat the tribal-state compact is the exclu-sive means of avoiding gaming-related vio-lations.15 Apart from the limited circum-

14. The legislation to enable Indian gamingwas first introduced as H.R. 4566, 97th Cong.(1983), by Representative Morris Udall in1983. S. 555, 100th Cong. (1988), introducedby Senator Daniel Inouye, was enacted intolaw as IGRA in 1988.

15. See IGRA § 2710(d)(6) (Johnson Act doesnot apply to gaming conducted under a tribal-

state compact); see also United States v. Cook,922 F.2d 1026, 1034 (2d Cir.1991) (JohnsonAct liability waived only by a Class III gamingcompact between a state and tribe). Like-wise, 18 U.S.C. § 1166(c)(2), referencingIGRA, excepts ‘‘class III gaming conductedunder a Tribal–State compact.’’ See, e.g.,Mashantucket Pequot Tribe v. Connecticut, 913F.2d 1024, 1031 (2d Cir.1990) (tribal-state


stances in which IGRA allows Class IIIgaming to be imposed by the Secretaryfollowing exhaustion of the judicial good-faith/mediation process, Class III gamingremains illegal in Indian country without atribal-state compact.

The role the Secretary plays and thepower he wields under the Proceduresbear no resemblance to the secretarialpower expressly delegated by Congressunder IGRA. First, IGRA interposes, be-fore any secretarial involvement, the re-quirement that an impartial factfinder de-termine whether the state has negotiatedin good faith. See § 2710(d)(7)(B)(iii).Under the Secretarial Procedures, howev-er, it matters not that a state undertookgood-faith negotiations with the tribe: TheSecretary may prescribe Class III gamingirrespective of a state’s good faith. See 25C.F.R. § 291.7–.8. This result contra-venes the plain language of IGRA.

Second, under IGRA, if mediation is or-dered, it is undertaken by a neutral, judi-cially-appointed mediator who objectivelyweighs the proposals submitted by thestate and tribe. See § 2710(d)(7)(B)(iv).Under the Procedures, however, the Sec-retary selects the mediator. 25 C.F.R.§ 291.9. In light of the Secretary’s statu-tory trust obligation to protect the inter-ests of Indian tribes, this aspect of theProcedures is stacked against the objectiveinterest-balancing Congress intended andcreates the strong impression of a biasedmediation process. See, e.g., Kickapoo

Tribe of Indians of Kickapoo Reservationin Kan. v. Babbitt, 43 F.3d 1491, 1499(D.C.Cir.1995) (noting that ‘‘the Secretarywas not in a position to champion theState’s position in view of his trust obli-gations to the tribe.’’ (citing Heckman v.United States, 224 U.S. 413, 444–45, 32S.Ct. 424, 433–34, 56 L.Ed. 820 (1912))).Common sense dictates that the Secretarycannot play the role of tribal trustee andobjective arbiter of both parties’ interestssimultaneously. Congress did not intendthis incoherent result.

Third, whereas under IGRA’s remedialscheme the court-appointed mediator es-sentially defines the regulations that theSecretary may promulgate, the Proceduresenable the Secretary to disregard not onlythe mediator’s proposal, but also the pro-posals of the state and tribe.16 IGRA’sremedial process makes clear that Con-gress did not intend to delegate to theSecretary unbridled power to prescribeClass III regulations.

Fourth, the Secretarial Procedures con-template Class III gaming in the absenceof a tribal-state compact—directly in dero-gation of Congress’s repeated and emphat-ic insistence. See, e.g., S.REP. NO. 100–446,at 6 (1988), as reprinted in 1988U.S.C.C.A.N. 3071, 3076 (‘‘[IGRA] does notcontemplate and does not provide for theconduct of class III gaming activities onIndian lands in the absence of a tribal-State compact.’’).17 The only exception to

compact required for waiver of 18 U.S.C.§ 1166 liability).

16. Compare § 2710(d)(7)(B)(vii) (‘‘the media-tor shall notify the Secretary and the Secre-tary shall prescribe TTT procedures (I) whichare consistent with the proposed compact se-lected by the mediator under clause (iv)’’)with 25 C.F.R. § 291.11(c) (‘‘If the Secretaryrejects the mediator’s proposal TTT he/shemust prescribe appropriate procedures within60 days under which Class III gaming may

take place that comport with the mediator’sselected proposal as much as possible, theprovisions of IGRA, and the relevant provi-sions of the laws of the State.’’).

17. Department of the Interior and RelatedAgencies Appropriations Act, Pub.L. No. 105–83, 111 Stat. 1543, 1570 (1998) (‘‘SENSE OFTHE SENATE CONCERNING INDIAN GAM-ING. It is the sense of the Senate that theUnited States Department of Justice shouldvigorously enforce the provisions of the Indi-


the compact requirement Congress envi-sioned was the promulgation of proceduresafter a bad-faith determination and in con-cert with the proposal selected by a court-appointed mediator. Yet in spite of thissingle statutory exception—the product ofIGRA’s complex and balanced remedialscheme—Appellees maintain it is equallyreasonable to assume that Congress in-tended a waiver of liability under theJohnson Act and 18 U.S.C. § 1166 evenwithout a judicial determination of badfaith; without the participation of a court-appointed mediator; and without the re-quirement that the regulations ultimatelypromulgated be ‘‘consistent with the pro-posed compact selected by the [court-ap-pointed] mediator.’’§ 2710(d)(7)(b)(vii)(I).18

For all these reasons, the Secretary’sClass III Procedures are not a reasonableinterpretation of IGRA, especially whenviewed against ‘‘their place in the overallstatutory scheme.’’ Brown & Williamson,529 U.S. at 133, 120 S.Ct. at 1301. TheSecretary, of course, is not authorized topromulgate regulations in violation of fed-eral law, see Sohappy v. Hodel, 911 F.2d1312, 1320 (9th Cir.1990), yet the Secretar-ial Procedures stand in direct violation ofIGRA, the Johnson Act, and 18 U.S.C.

§ 1166 insofar as they may authorize ClassIII gaming without a compact. Because‘‘the Executive Branch is not permitted toadminister the Act in a manner that isinconsistent with the administrative struc-ture that Congress enacted into law,’’ andbecause doing so constitutes an unreason-able interpretation of Congress’s intent,the Secretarial Procedures cannot passmuster under Chevron step two. ETSIPipeline Project, 484 U.S. at 517, 108 S.Ct.at 817.

4. General Authority Statutes

An alternative contention raised by Ap-pellees is that secretarial authority to pro-mulgate the Procedures derives from thegeneral Indian trust statutes when read inconcert with § 2710(d)(7)(B)(vii). See 25U.S.C. §§ 2, 9; 64 Fed.Reg. 17,535–02,17,536 (Apr. 12, 1999). To be sure, courtsmay consider ‘‘generally conferred author-ity’’ in the statutory scheme to determinethe propriety of administrative agency ac-tion. United States v. Mead Corp., 533U.S. 218, 229, 121 S.Ct. 2164, 2172, 150L.Ed.2d 292 (2001). But sections 2 and 9do not grant Interior ‘‘a general power tomake rules governing Indian conduct.’’Organized Vill. of Kake v. Egan, 369 U.S.

an Gaming Regulatory Act requiring an ap-proved Tribal–State gaming compact prior tothe initiation of class III gaming on Indianlands.’’)

18. Commentators have noted the problemswith the Procedures. See Rebecca S. Lind-ner–Cornelius, Note, The Secretary of the Inte-rior as Referee: The States, The Indian Na-tions, and How Gambling Led to the Illegalityof the Secretary of the Interior’s Regulations in25 C.F.R. § 291, 84 MARQUETTE L. REV. 685,695 (2001) (arguing that the regulations areunconstitutional and noting that ‘‘when astate claims it has negotiated in good faith tono avail, the only recourse it is left with is abiased factfinder who can do what it wantswithout any state input’’); Nicholas S. Gol-din, Note, Casting a New Light on Tribal Casi-

no Gaming: Why Congress Should Curtail theScope of High Stakes Indian Gaming, 84 COR-

NELL L. REV. 798, 843–44 (1999) (arguing thatthe Procedures are ‘‘troubling’’ because theSecretary ‘‘assumes a massive unilateral pow-er that Congress did not intend to delegate’’and because the Procedures ‘‘make a travestyof the concept of federalism and in its placesubstitute a system in which Washingtonclaims it knows best what state laws mean’’);Joe Laxague, Note, Indian Gaming and Trib-al–State Negotiations: Who Should Decide theIssue of Bad Faith?, 25 J. LEGIS. 77, 91 (1999)(arguing that the Procedures ‘‘do both partiesa disservice and badly skew the balance ofinterests intended by Congress when it wrotethe IGRA’’).


60, 63, 82 S.Ct. 562, 564, 7 L.Ed.2d 573(1962). Instead, the authority Congressthere delegated to the Secretary only al-lows prescription of regulations that im-plement ‘‘specific laws,’’ id., and that areconsistent with other relevant federal leg-islation. See Morton v. Ruiz, 415 U.S.199, 232, 94 S.Ct. 1055, 1073, 39 L.Ed.2d270 (1974); N. Arapahoe Tribe v. Hodel,808 F.2d 741, 748 (10th Cir.1987) (citingCitizens to Preserve Overton Park, Inc. v.Volpe, 401 U.S. 402, 91 S.Ct. 814, 28L.Ed.2d 136 (1971)). Thus, in Village ofKake, the Secretary issued fishing regula-tions ostensibly permitted under theWhite Act and the Alaska Statehood Act.However, the regulations, which allowedthe Kake community to operate four fishtraps, violated Alaska’s anti-fish-trap andconservation law. Because Interior couldpoint to no affirmative statutory grant ofauthority that allowed the Secretary toissue regulations in derogation of statelaw, the Supreme Court held that the Sec-retary had exceeded the authority grantedby sections 2 and 9. Id. at 62, 82 S.Ct. at564. Village of Kake demonstrates thatthe Secretary lacks carte blanche to issueregulations pursuant to a generalizedgrant of authority untethered from theconfines of preexisting statutorily defined

rights. See United States v. Eberhardt,789 F.2d 1354, 1360 (9th Cir.1986).

For example, in Eberhardt, the NinthCircuit approved secretarial regulationsimposing a moratorium on commercialfishing on the Hoopa Valley Reservation.The court held that the Secretary wasauthorized to issue the regulations pursu-ant to the preexisting fishing rights thatwere granted when Congress authorizedcreation of the Hoopa Valley Reservationby statute. See People v. McCovey, 36Cal.3d 517, 205 Cal.Rptr. 643, 685 P.2d687, 697 (1984) (citing Menominee Tribe v.United States, 391 U.S. 404, 405–06, 88S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968)).In similar fashion, the caselaw overwhelm-ingly confirms that sections 2 and 9 do notempower issuance of regulations without astatutory antecedent. See, e.g., Washing-ton v. Wash. State Commercial PassengerFishing Vessel Assoc., 443 U.S. 658, 691,99 S.Ct. 3055, 3077, 61 L.Ed.2d 823 (1979)(sections 2 and 9 effectuate rights grantedby treaty); N. Arapahoe Tribe, 808 F.2dat 749 (general trust statutes ‘‘togetherwith the Treaty TTT provide the necessaryauthority for the Secretary to enact theseregulations.’’); United States v. Michigan,623 F.2d 448, 450 (6th Cir.1980) (upholdingsecretarial regulations governing rightsconferred by treaty).19

19. In addition to the requirement that theregulations be issued in accordance with therights conferred on the tribe by existing fed-eral legislation, here, IGRA courts have rec-ognized that sections 2 and 9 address theprotection and management of ‘‘Indian trustresources’’—typically natural resources orproperty. See, e.g., Washington v. Wash. StateCommercial Passenger Fishing Vessel Assoc.,443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823(1979) (fishing rights); Chippewa Indians ofMinn. v. United States, 301 U.S. 358, 57 S.Ct.826, 81 L.Ed. 1156 (1937) (land allotment);Pyramid Lake Paiute Tribe of Indians v. Unit-ed States Dep’t of Navy, 898 F.2d 1410 (9thCir.1990) (fisheries preservation); N. Arapa-hoe Tribe v. Hodel, 808 F.2d 741 (10th Cir.

1987) (hunting and fishing rights); see alsoMorton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055,39 L.Ed.2d 270 (1974) (payment of generalassistance benefits authorized under 25U.S.C. § 13); Seminole Nation v. UnitedStates, 316 U.S. 286, 62 S.Ct. 1049, 86 L.Ed.1480 (1942) (money held in trust by the Unit-ed States). Appellees’ assertion that sections2 and 9 apply here assumes that anticipatedgambling revenues constitute an Indian trustresource within the meaning of those stat-utes. This assertion is especially unjustifiedsince, under IGRA, after a tribal-state com-pact is in place the Secretary has no rolewhatsoever in the management or oversightof Class III gaming. See 25 U.S.C.§ 2710(d)(5).


IGRA, however, does not guarantee anIndian tribe the right to conduct Class IIIgaming and therefore cannot serve as astatutory antecedent justifying the Secre-tarial Procedures. IGRA grants tribes theright to negotiate the terms of a tribal-state compact, see 25 U.S.C.§ 2710(d)(3)(A), and by agreement to ‘‘reg-ulate class III gaming on its Indian landsconcurrently with the State.’’ § 2710(d)(5).Tribes, likewise, have the right to bringsuit against a state for its failure ‘‘to enterinto negotiations with the Indian tribe.’’See § 2710(d)(7)(A)(i). Seminole Tribe, ofcourse, clarified that the tribe’s right issubject to the state’s exercise of an affir-mative jurisdictional defense under theEleventh Amendment. In any case, theSecretary’s acting under sections 2 and 9cannot sidestep IGRA’s remedial processfor two reasons. First, there would havebeen no reason for IGRA to prescribe anyprocedures had Congress been willing toor believed it could entrust them entirelyto the Secretary’s general powers. Sec-ond, the fact that IGRA clearly limited theSecretary’s intervention into Class IIIgaming compacts constitutes the best evi-dence of congressional intent to limit theSecretary’s role.

IV. CONCLUSION

The Secretarial Procedures violate theunambiguous language of IGRA and con-gressional intent by bypassing the neutraljudicial process that centrally protects thestate’s role in authorizing tribal Class IIIgaming. Congress, to be sure, could omitstates entirely from Class III gaming reg-ulation. See Cabazon Band, 480 U.S. at207, 107 S.Ct. at 1087. But we need notspeculate on legislative alternatives thatCongress might adopt in response to Sem-inole Tribe. Suffice it here to say that thebalance Congress did strike cannot bewholly revised by substitute proceduresthat contradict Congress’s explicit statuto-

ry instructions. The Secretarial Proce-dures are invalid and constitute an unrea-sonable interpretation of IGRA. When, ashere, ‘‘the intent of Congress is clear, thatis the end of the matter; for the court, aswell as the agency, must give effect to theunambiguously expressed intent of Con-gress.’’ Chevron, 467 U.S. at 842–43, 104S.Ct. at 2781.

Pursuant to the foregoing discussion, weREVERSE the district court’s judgmentand REMAND for further proceedingsconsistent with this opinion.

REVERSED and REMANDED.

KING, Circuit Judge, concurring in partand in the judgment:

I concur in Part III.A of the opinion,which deals with justiciability. On themerits, I concur only in the judgment,reversing the district court’s conclusionthat the Secretary of the Interior (‘‘Secre-tary’’) had the authority to promulgate thechallenged regulations.

[13] In my view, the lack of any provi-sion in the Indian Gaming Regulatory Act(‘‘IGRA’’) addressing the dismissal of anIndian tribe’s enforcement suit on sover-eign immunity grounds is a statutory gapthat is akin to the gap recognized in Pitt-ston Co. v. United States, 368 F.3d 385,403–04 (4th Cir.2004), and Sidney Coal Co.v. Social Security Administration, 427F.3d 336, 346 (6th Cir.2005). Those casesheld that the Social Security Commission-er had implicit authority to fill a gap ex-posed by the Supreme Court’s invalidationof a portion of the Coal Industry RetireeHealth Benefit Act of 1992; in this casethe Secretary’s general authority to effec-tuate statutes relating to Indian affairsprovides analogous gap-filling power withregard to IGRA. See 25 U.S.C. §§ 2, 9;Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct.1055, 39 L.Ed.2d 270 (1974); Organized


Village of Kake v. Egan, 369 U.S. 60, 63,82 S.Ct. 562 (1962).

However, the Secretary’s authority toeffectuate IGRA’s provisions does not in-clude the power to jettison some of thoseprovisions in the cause of gap-filling, re-gardless of whether they no longer seemwise or appropriate in light of events thatCongress did not foresee. In my opinion,the method used by the Secretary to fillthe gap here—creating an alternative re-medial scheme that allows the Secretary toissue Class III gaming procedures withoutCongress’s chosen prerequisites of a courtdetermination of a state’s bad faith andcourt-directed mediation, see 25 U.S.C.§ 2710(d)(7)—goes beyond the mere effec-tuation of IGRA’s provisions into the realmof wholesale statutory amendment. Cf.Gonzales v. Oregon, 546 U.S. 243, 258, 126S.Ct. 904, 163 L.Ed.2d 748 (2006) (‘‘Chev-ron deference TTT is not accorded merelybecause the statute is ambiguousTTTT Tobegin with, the rule must be promulgatedpursuant to authority Congress has dele-gated to the official.’’). By omitting thoseprerequisites, though for understandablereasons, the Secretary’s method fails topreserve the core safeguards by whichstate interests are protected in Congress’s‘‘carefully crafted and intricate remedialscheme.’’ Seminole Tribe of Florida v.Fla., 517 U.S. 44, 73–74, 116 S.Ct. 1114,134 L.Ed.2d 252 (1996); cf. Ragsdale v.Wolverine World Wide, Inc., 535 U.S. 81,91, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002)(invalidating an administrator’s remedialregulation that ‘‘worked an end run aroundimportant limitations of the [relevant] stat-ute’s remedial scheme’’ by allowing a pen-alty to be imposed without the thresholdcourt determination provided for by thestatute). And despite a state’s unforeseenand unintended ability to prevent the nec-essary court involvement from occurring,the Secretary ‘‘has no power to correctflaws that [he] perceives in the statute [he]

is empowered to administer. [His] rule-making power is limited to adopting regu-lations to carry into effect the will of Con-gress as expressed in the statute.’’ Bd. ofGovernors v. Dimension Fin. Corp., 474U.S. 361, 374, 106 S.Ct. 681, 88 L.Ed.2d691 (1986).

Today’s decision returns IGRA’s ClassIII gaming system to the complicated situ-ation that existed after the SupremeCourt’s decision in Seminole Tribe, with astate having the leverage to block gamingon Indian land under IGRA in a mannerwholly contrary to Congress’s intent. Al-ternatively, one could argue that a tribedealing with a state that will not negotiateor consent to an enforcement suit is nolonger bound by IGRA’s prohibition ongaming without a compact, depending onthe circumstances. See, e.g., United Statesv. Spokane Tribe of Indians, 139 F.3d 1297(9th Cir.1998). We do not resolve thesedifficulties here, as they are not before thiscourt. But because neither result is con-sistent with IGRA’s design, the situationclearly calls for congressional action.

DENNIS, Circuit Judge, dissenting:

I.

The State of Texas permits certain typesof gaming equivalent to Class III gamingas defined by the IGRA. But Texas ada-mantly refuses to negotiate with the Kic-kapoo Traditional Tribe towards a ClassIII gaming compact under the IGRA andhas blocked the tribe from seeking a reme-dy in federal court by invoking its right toEleventh Amendment sovereign immunityfrom suit. Therefore, the Tribe pursuedits only alternate remedy of asking theSecretary of the Interior to issue Class IIIgaming procedures under the SecretarialGaming Procedures, 25 C.F.R. §§ 291.1–291.15. The Secretary requested commentfrom the State of Texas pursuant to 25


C.F.R. § 291.7, but the state declined tocomment. The Secretary has not yet tak-en final action on the Tribe’s proposal.

The State of Texas brought this actionagainst the Secretary, the Department ofthe Interior and the United States chal-lenging the authority of the Secretary topromulgate the Secretarial Gaming Proce-dures regulations and seeking to perma-nently enjoin the application of 25 C.F.R.§ 291.1, et seq., in respect to the state ofTexas. The Kickapoo Traditional Tribeintervened. The district court ruled thatTexas’s claims were not ripe, but ex-pressed its opinion that the regulationswere validly promulgated and should beupheld. Texas v. United States, 362F.Supp.2d 765 (W.D.Tex.2004). Texas ap-pealed. The defendants-appellees and theintervenor contend that Texas’s suit shouldbe dismissed because it lacks standing, itsclaim is not ripe, and the Secretarial Gam-ing Procedures regulations are valid. Ipretermit the serious standing and ripe-ness issues but dissent from the merits ofChief Judge Jones’ opinion, portions ofJudge King’s opinion, and the judgmentfor the following reasons.

II.

The principles governing our review ofthe Secretary’s interpretation and imple-mentation of the pertinent statutes arewell established. Administrative imple-mentation of a particular statutory provi-sion qualifies for Chevron deference whenit appears that Congress delegated author-ity to the agency generally to make rulescarrying the force of law, and that theagency interpretation claiming deferencewas promulgated in the exercise of thatauthority. United States v. Mead Corp.,533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d292 (2001); see also Chevron, U.S.A., Inc.v. Natural Res. Def. Council, Inc., 467U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984). Congressional delegation to an ad-ministrative agency of authority generallyto make rules carrying the force of lawmay be shown in a variety of ways, as byan agency’s power to engage in adjudica-tion or notice-and-comment rule-making,or by some other indication of a compara-ble congressional intent. Mead, 533 U.S.at 227, 121 S.Ct. 2164.

When Congress has explicitly left a gapfor an agency to fill, there is an expressdelegation of authority to the agency toelucidate a specific provision of the statuteby regulation, and any ensuing regulationis binding in the courts unless procedurallydefective, arbitrary or capricious in sub-stance, or manifestly contrary to the stat-ute. Id. Considerable weight should beaccorded to an executive department’s con-struction of a statutory scheme it is en-trusted to administer. Id. ‘‘The power ofan administrative agency to administer acongressionally created and funded pro-gram necessarily requires the formulationof policy and the making of rules to fill anygap left, implicitly or explicitly, by Con-gress.’’ Morton v. Ruiz, 415 U.S. 199,231–32, 94 S.Ct. 1055, 39 L.Ed.2d 270(1974).

When circumstances imply that Con-gress would expect an agency to be able tospeak with the force of law, even thoughCongress may not have expressly delegat-ed authority or responsibility to implementa particular provision, a reviewing courthas no business rejecting an agency’s exer-cise of its generally conferred authority toresolve a particular statutory ambiguitysimply because the agency’s chosen resolu-tion seems unwise, and instead is obligedto accept the agency’s position if Congresshas not previously spoken to the point atissue and the agency’s interpretation isreasonable. Id. at 229, 94 S.Ct. 1055.


III.

The regulations challenged here, per-taining to the Secretarial Gaming Proce-dures, deserve Chevron deference becauseCongress explicitly authorized the Secre-tary to promulgate regulations to carryinto effect any statute relating to Indianaffairs or arising out of Indian relations,see 25 U.S.C. §§ 1a, 2 & 9; and implicitlyauthorized the Secretary to promulgatethe regulations at issue here to fill the gapin the IGRA created by Congress’s unin-tentional failure to provide for the unfore-seen ineffectiveness of a federal court suitas the tribal remedy in cases in which astate refused to bargain in good faith andinvoked its Eleventh Amendment sover-eign immunity; the regulations are reason-ably designed and appropriate for carryinginto effect the IGRA after the ineffective-ness of its remedial provision was revealedby Seminole Tribe of Florida v. Florida,517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d252 (1996); and the regulations are bind-ing in the courts because they are notprocedurally defective, arbitrary or capri-cious in substance, or manifestly contraryto the statutes.

Beginning in 1832 and 1834, Congressexplicitly authorized the President throughthe Secretary of the Interior to ‘‘prescribesuch regulations as he may think fit forcarrying into effect the various provisionsof any act relating to Indian affairs, andfor the settlement of the accounts of Indi-an affairs,’’ 25 U.S.C. § 9; and to author-ize the Commissioner of Indian affairs to,‘‘under the direction of the Secretary ofthe Interior, and agreeably to such regula-tions as the President may prescribe, havethe management of all Indian affairs andof all matters arising out of Indian rela-tions.’’ 25 U.S.C. § 2.1 Acting pursuant

to these broad powers, the Secretary has,following formal notice-and-comment rule-making procedures, promulgated proce-dures governing numerous programs andactivities related to Indian affairs and rela-tions.

Prior to the enactment of the IGRA,states generally were precluded from anyregulation of gaming on Indian reserva-tions. California v. Cabazon Band ofMission Indians, 480 U.S. 202, 107 S.Ct.1083, 94 L.Ed.2d 244 (1987). The IGRA,by offering states an opportunity to partic-ipate with Indian tribes in establishinggaming through a tribal-state compact,‘‘extend[ed] to the States a power withheldfrom them by the Constitution.’’ Semi-nole, 517 U.S. at 58, 116 S.Ct. 1114. Con-sequently, it is clear that before the enact-ment of the IGRA, the Secretary couldhave adopted, under 25 U.S.C. §§ 1a, 2, &9, regulations approving and governinggambling on Indian reservations to theextent it was not prohibited by generalstate laws.

Congress’s enactment of the IGRA in1988 did not in any way diminish the broadpowers of the President or the Secretaryto ‘‘prescribe such regulations as he maythink fit for carrying into effect TTT anyact relating to Indian affairs TTT or [man-agement of] matters arising out of Indianrelations.’’ See 25 U.S.C. §§ 2 & 9. Whenthe Supreme Court subsequently held inSeminole that Congress is not authorizedby the Indian commerce clause to abrogatea state’s Eleventh Amendment sovereignimmunity, this unforeseen event disclosedthe ineffectiveness of the remedy Congresshad granted tribes in the IGRA to suerecalcitrant states in federal court. Theimmediate result was that states could, as

1. See Morton v. Ruiz, 415 U.S. 199, 94 S.Ct.1055, 39 L.Ed.2d 270 (1974); see also 25

U.S.C. § 1a.


Texas has done, refuse to bargain andinvoke sovereign immunity against atribe’s federal court remedy. This re-vealed that after Seminole the tribes hadno remedy to enforce the IGRA, a gap inthe statute that Congress had not antici-pated and had unintentionally failed toprovide for. Under these circumstances, itbecame the Secretary’s clear duty to usehis broad rule-making powers under 25U.S.C. §§ 1a, 2 and 9 to provide alternateremedies and procedures necessary to car-ry the IGRA into effect. Nothing in theIGRA or its legislative history indicates anintention to prevent the Secretary fromretaining and putting his broad rulemakingpowers to this use.

The purpose of the IGRA is not simplyto establish a neutral bargaining forum;IGRA’s purpose is to affirmatively helpIndian tribes enter and conduct the busi-ness of gaming, where gaming is not pro-hibited by state laws of general applica-tion, as a means of ‘‘promoting tribaleconomic development, self-sufficiency,and strong tribal governments.’’ 25U.S.C. § 2702(1). The IGRA federalcourt action remedy was ‘‘designed to en-sure the formation of a Tribal–State com-pact.’’ Seminole, 517 U.S. at 49–50, 116S.Ct. 1114. Because this remedy hasbeen shown to be inoperative by Semi-nole, the Secretary’s Gaming Proceduresare consistent with the purpose and pro-visions of the IGRA and are the mostreasonable regulations that could be ad-ministratively prescribed to carry theIGRA into effect.

IV.

With respect, there is no valid basis forChief Judge Jones’s assertion that a judi-cial interpretation of a statute cannot lead

to an ambiguity, gap or unprovided forcase susceptible to the Chevron step-twoanalysis. To the contrary, there is noother way for a court to identify a statuto-ry ambiguity or gap than through the pro-cess of judicial interpretation.

The argument that a court decision ‘‘cre-ates’’ a gap is based on a theory inconsis-tent with the common-law tradition of thefederal courts. The prevailing view is thatthe judicial power vested in the federalcourts allows them to declare what the lawalready is, rather than to create new lawas the Chief Judge’s argument presup-poses that the Court did in Seminole. SeeAmerican Trucking Associations, Inc. v.Smith, 496 U.S. 167, 201, 110 S.Ct. 2323,110 L.Ed.2d 148 (1990) (Scalia, J., concur-ring in judgment); Linkletter v. Walker,381 U.S. 618, 622–23, 85 S.Ct. 1731, 14L.Ed.2d 601 (1965). Under the prevailingSupreme Court view, the ambiguity or gapin the IGRA was created by the Congresswhen it unintentionally chose and enacteda constitutionally ineffectual tribal remedy,and not by the Court in the Seminoledecision. The Supreme Court’s principlesgoverning retroactive application of its de-cisions reflect this view: ‘‘When this Courtapplies a rule of federal law to the partiesbefore it, that rule is the controlling inter-pretation of federal law and must be givenfull retroactive effect in all cases still openon direct review and as to all events, re-gardless of whether such events predate orpostdate our announcement of the rule.’’Harper v. Virginia Dep’t of Taxation, 509U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74(1993).2 Under prevailing Supreme Courttheory, the Seminole decision is and al-ways was the law. The Supreme Courtdoes not create law, it discovers it—andthe Supreme Court did not create the gap

2. For a full discussion of the history of thecommon law retroactivity principle and theSupreme Court’s recent return to the tradi-

tional view that it discovers law, rather thanmakes it, see Hulin v. Fibreboard Corp., 178F.3d 316, 329–33 (5th Cir.1999).


in this case, but merely declared its exis-tence. Congress itself created the gap orambiguity by mistakenly overestimatingits powers and passing a statute that couldnot be constitutionally applied as Congressintended.

The claim that a Chevron gap does notexist when a judicial decision has demon-strated an ambiguity in the statute hasbeen emphatically rejected by othercourts. In A.T. Massey Coal Co. v. Hol-land, 472 F.3d 148, 168 (4th Cir.2006), theFourth Circuit discussed a case in which agap was ‘‘created when the Supreme Courtfound a portion of [a] provision unconstitu-tional.’’ It held that ‘‘[o]nce that gap wascreated, the agency was left with an openpolicy space, which was the quintessenceof legislative-type action to which Chevrondeference was due.’’ Id. In another case,Pittston Co. v. United States, 368 F.3d 385,403–04 (4th Cir.2004), the Fourth Circuitconsidered a gap disclosed by a judicialdecision holding a portion of the Coal Actto be unconstitutional:

In drafting the Coal Act, Congress didnot contemplate that some members ofthe ‘‘signatory operators’’ group couldnot constitutionally be required to con-tribute to the Combined Fund. Thesituation faced by the Commissioner wasthus the kind of ‘‘case unprovided for’’that allows her to engage in gap-filling.See Barnhart v. Peabody Coal Co., 537U.S. 149, 169, 123 S.Ct. 748, 154 L.Ed.2d653 (2003).

Id. The Sixth Circuit agreed that a gapfor Chevron purposes was created when aportion of the Coal Act proved to be unin-tentionally ineffective. Sidney Coal Co. v.Soc. Sec. Admin., 427 F.3d 336, 346 (6thCir.2005) (holding that a gap existed be-cause ‘‘the Coal Act contains no languageas to how the SSA should have handled theprecise question raised by the Eastern En-terprises holding’’).

Chief Judge Jones’s attempt to distin-guish these cases is unpersuasive and cir-cular. She contends that because Con-gress must be able to foresee each gap andeach agency rule chosen to fill it, the Sec-retary’s remedial scheme here to fill thegap exceeds the scope of the authoritydelegated by Congress; so that, the gapcreated by judicial decision recognized inPittston and A.T. Massey could not haveexisted in the first place. This is a tor-tured logic that conflates two fundamental-ly distinct questions: was there a gap orambiguity, and if so, did the Secretaryexceed its authority in attempting to fill it?

Contrary to the suggestion of ChiefJudge Jones, the language of Chevrondoes not require that Congress must beable to envision a future gap or ambiguityand the particular provision that the agen-cy may choose to fill it or clarify it beforeit can come within the scope of the agen-cy’s implicitly authorized rulemaking.‘‘[I]t can still be apparent from the agen-cy’s generally conferred authority and oth-er statutory circumstances that Congresswould expect the agency to be able tospeak with the force of law when it ad-dresses ambiguity in the statute or fills aspace in the enacted law, even one aboutwhich Congress did not actually have anintent as to a particular result.’’ Mead,533 U.S. at 229, 121 S.Ct. 2164 (quotationsomitted) (emphasis added). Congress may‘‘create’’ a gap by explicitly delegating aquestion of interpretation to an agency;Chevron, 467 U.S. at 843–44, 104 S.Ct.2778; by implicitly doing so; id. at 844,104 S.Ct. 2778; or by simply remainingsilent ‘‘with respect to the specific issue;’’id. at 843, 104 S.Ct. 2778. It is inherent inthe policymaking process that some un-foreseen event, or ‘‘case unprovided for,’’could render a portion of a statute ambigu-ous or meaningless. See Barnhart v. Pea-body Coal Co., 537 U.S. 149, 169, 123 S.Ct.


748, 154 L.Ed.2d 653 (2003). The NinthCircuit best described the situation thatconfronted the Secretary and now con-fronts us:

We are left, then, with a tribe that be-lieves it has followed IGRA faithfullyand has no legal recourse against a statethat allegedly hasn’t bargained in goodfaith. Congress did not intentionallycreate this situation and would not havecountenanced it had it known then whatwe know now.

United States v. Spokane Tribe of Indians,139 F.3d 1297, 1302 (9th Cir.1998). Thereis no support for the suggestion that Con-gress cannot, through its unintentional si-lence, create a gap or an ambiguity con-cerning how to enforce the IGRA after aportion of it, the sole tribal remedy origi-nally chosen, has been invalidated.

V.

Chief Judge Jones further errs in con-tending that there has been no explicit orimplicit congressional delegation of author-ity to the Secretary of the Interior topromulgate gap-filling regulations underthe IGRA. Contrary to her assertions, theSecretary does not hang his hat on a merefailure of Congress to expressly withhold adelegation of agency authority. Rather,the Secretary of the Interior is the agencyCongress would have expected to fill anysuch gap, given the powers granted to itunder the IGRA and its general authoritystatutes. Chief Judge Jones focuses nar-rowly on the particular IGRA provision atissue here, relying conclusively on the factthat the IGRA itself does not contain anexpress delegation of agency authority toprovide an alternate tribal remedy. TheSupreme Court, by contrast, has instruct-ed us to broaden our inquiry outside of theparticular provision we are reviewing toinclude all statutes and circumstances per-taining to the agency’s powers:

Congress, that is, may not have express-ly delegated authority or responsibilityto implement a particular provision orfill a particular gap. Yet it can still beapparent from the agency’s generallyconferred authority and other statutorycircumstances that Congress would ex-pect the agency to be able to speak withthe force of law when it addresses ambi-guity in the statute or fills a space in theenacted law, even one about which ‘‘Con-gress did not actually have an intent’’ asto a particular result. When circum-stances implying such an expectation ex-ist, a reviewing court has no businessrejecting an agency’s exercise of its gen-erally conferred authority to resolve aparticular statutory ambiguity simplybecause the agency’s chosen resolutionseems unwise, but is obliged to acceptthe agency’s position if Congress has notpreviously spoken to the point at issueand the agency’s interpretation is rea-sonableTTTT

Mead, 533 U.S. at 229, 121 S.Ct. 2164(internal citations omitted). Instead of in-quiring into whether Congress would haveexpected the Secretary of the Interior toaddress any ambiguities in the IGRA,Chief Judge Jones focuses on whether theparticular IGRA statutory provision at is-sue included a delegation of authority tothe Secretary—an analysis that is bothcontrary to the Supreme Court’s admoni-tion in Mead and that would impose animpractical burden on Congress of includ-ing express delegations of an agency’s au-thority to administer every provision ofevery statute under its aegis.

Chief Judge Jones’s analysis of the gen-eral authority statutes and the IGRA itselfis similarly unpersuasive. Her opinion re-jects the significance of 25 U.S.C. §§ 2 &9, the general authority statutes for theDepartment of the Interior, based on amisplaced reliance on the Supreme Court’s


decision in Organized Village of Kake v.Egan. 369 U.S. 60, 82 S.Ct. 562 (1962).Kake is a weak authority for her positionfor several reasons. Even if it made thesweeping holdings Chief Judge Jones at-tributes to it, the case was decided in 1963and did not conduct the modern analysisrequired by more recent cases such asChevron and Mead. A greater difficultyfor Chief Judge Jones is that while it doesindeed include language to the effect thatthese sections do not grant the Interior ‘‘ageneral power to make rules governingIndian conduct,’’ that language was not theholding of the court in that case. Thatlanguage was, instead, a quotation from anInterior Department Handbook, and wasnot expressly adopted by the Court. TheCourt’s actual legal holding with respect tothe scope of the general authority statuteswas confined to a single sentence: ‘‘Weagree that they do not support the fish-trap regulations.’’ Kake, 369 U.S. at 63, 82S.Ct. 562. Most significantly, in Kake theCourt was analyzing a situation in whichother Congressional legislation, the WhiteAct, had expressly narrowed the authorityof the Secretary of the Interior under 25U.S.C. §§ 2 and 9 in the specific area inwhich he attempted to act. Id. at 62–63,82 S.Ct. 562. It was also plain that, unlikein this case, there was no underlying stat-ute being enforced and the Secretary wasnot attempting to ‘‘implement specificlaws’’—a power the Handbook referencedby the Supreme Court in Kake concludedwas granted to Interior under the generalauthority statutes. Id.

Chief Judge Jones’s reliance on UnitedStates v. Eberhardt, 789 F.2d 1354 (9thCir.1986), similarly distorts the actualholding of the case. Her opinion omitsthat court’s holding that ‘‘the general truststatutes in Title 25 do furnish Interior withbroad authority to supervise and manageIndian affairs and property commensuratewith the trust obligations of the United

States.’’ Id. at 1360. In distinguishingKake and concluding that the general au-thority statutes were broad in scope, theEberhardt court added that ‘‘Congressmust be assumed to have given Interiorreasonable power to discharge its broadresponsibilities for the management of In-dian affairs effectively.’’ Id. at 1361.

Chief Judge Jones’s opinion furtheravoids referencing other cases that havealso come to the conclusion that the Secre-tary of the Interior has comprehensivepowers under the general authority stat-utes to effectuate other Indian-related leg-islation. The D.C. Circuit, from which heropinion eagerly borrows in other sections,emphatically disagrees with a crampedview of the general authority statutes suchas hers. That court described the powersof the Secretary of the Interior under thegeneral authority statutes as follows:

In charging the Secretary with broadresponsibility for the welfare of Indiantribes, Congress must be assumed tohave given him reasonable powers todischarge it effectively. Courts havetaken this approach with respect to vari-ous aspects of Indian life, recognizingthat ‘‘[this] statute furnishes broad au-thority for the supervision and manage-ment of Indian affairs and propertycommensurate with the obligation of theUnited States.’’In our opinion the very general lan-guage of the statutes makes it quiteplain that the authority conferred uponthe Commissioner of Indian Affairs wasintended to be sufficiently comprehen-sive to enable him, agreeably to the lawsof Congress and to the supervision ofthe President and the Secretary of theInterior, to manage all Indian affairs,and all matters arising out of Indianrelations, with a just regard, not merelyto the rights and welfare of the public,but also to the rights and welfare of the


Indians, and to the duty of care andprotection owing to them by reason oftheir state of dependency and tutelage.

Udall v. Littell, 366 F.2d 668, 672–73(D.C.Cir.1966) (internal citations and foot-notes omitted). Other circuits haveagreed that the Secretary’s powers to pro-mulgate regulations to effectuate all Indi-an-related statutes are broad in scope.See Armstrong v. United States, 306 F.2d520, 522 (10th Cir.1962) (‘‘This statute fur-nishes broad authority for the supervisionand management of Indian affairs andproperty commensurate with the obli-gation of the United States.’’).

Inexplicably, the Chief Judge’s opinionfails to acknowledge that, subsequent toKake, the Supreme Court in Morton v.Ruiz, in articulating the keystone to theChevron doctrine, simultaneously recog-nized that Congress intended for the Sec-retary of the Interior to play a majorpolicy-making, rule-making, and gap-fillingrole in effectuating its Indian-related stat-utes. The Court plainly rejected an im-practicably constrained view of the Secre-tary’s powers in stating:

The power of an administrative agencyto administer a congressionally createdand funded program necessarily re-quires the formulation of policy and themaking of rules to fill any gap left,implicitly or explicitly, by Congress. Inthe area of Indian affairs, the Executivehas long been empowered to promulgaterules and policies, and the power hasbeen given explicitly to the Secretaryand his delegates at the BIA.

415 U.S. at 231–32, 94 S.Ct. 1055 (foot-notes citing and quoting 25 U.S.C. §§ 2 &9 as authority omitted).

Pursuant to its general authority under25 U.S.C. §§ 2 & 9, recognized so clearlyby Morton v. Ruiz and later built upon inChevron, the Secretary of the Interior hassuccessfully promulgated regulations gov-

erning activities across the spectrum ofIndian affairs. See 25 C.F.R. § 23.1 (regu-lating child and family service programsunder the Indian Child Welfare Act); 25C.F.R. § 89.30 (approval of legal contractswith certain tribes); 25 C.F.R. § 166.1(imposing grazing restrictions on triballands); 25 C.F.R. § 241.1 (regulating fish-ing on certain reservations); 25 C.F.R.§ 150.1 (regulating the recording, certifica-tion, and use of title documents on triballands); 25 C.F.R. § 61.1 (regulating themanagement of rolls and membership listsof Indian tribes); 25 C.F.R. § 83.1 (estab-lishing procedures for determining wheth-er a group constitutes an Indian tribe).

Chief Judge Jones is further incorrect insuggesting that there is no ‘‘statutory an-tecedent’’ to support the Secretary’s regu-lations at issue here under the generalauthority statutes. The short answer toChief Judge Jones’s suggested complaint,of course, is that there is an obvious ‘‘stat-utory antecedent’’ here—the IGRA itself,which clearly evinces Congress’s intent toempower the Secretary to authorize Indi-ans to conduct gaming businesses on tribalreservations where not prohibited by gen-eral state laws and after giving states afull and fair opportunity to bargain in goodfaith over the specific terms of the individ-ual tribal gaming regulations. It turnsout, however, that her argument in thisrespect is simply another version of herargument against implicit agency authori-ty, diametrically contrary to Chevron andMead, to the effect that each separateIndian-related statute must explicitly au-thorize the Secretary to carry it into effect,i.e., that the general authority statutesalone do not really do what they purportto—empower the Secretary to prescriberegulations to effectuate subsequent Indi-an-related statutes. The cases upon whichthe Chief Judge relies, again, however, donot see her argument through. In the


final analysis, they stand only for the sim-ple proposition that in order for the Secre-tary to use his general authority under 25U.S.C. §§ 2 and 9 to prescribe regulationsto carry a subsequent statute into effect,there must first be a statute or a treaty toeffectuate. See N. Arapahoe Tribe v. Ho-del, 808 F.2d 741, 745–46 (10th Cir.1987)(holding that 25 U.S.C. § 9 could not beapplied unless it was to carry ‘‘into effectthe various provisions of any act relatingto Indian affairs,’’ but that a treaty couldin effect substitute for an act or statute);United States v. Michigan, 623 F.2d 448,450 (6th Cir.1980) (holding only that therequirement is not a difficult one to meetand that a treaty can substitute for an ‘‘actrelating to Indian affairs’’). The ChiefJudge’s opinion plays a linguistic game,using the phrase ‘‘statutory antecedent’’ tosuggest that there must be some specificprovision in every Indian-related statutegranting the authority to invoke sections 2and 9—when, in fact, the courts have onlylogically required that some sort of statuteor law related to Indian affairs be extantbefore the Secretary can prescribe regula-tions to carry it into effect. In otherwords, when Congress enacts a statutepertaining to Indian affairs and relations,but not before, it becomes the duty of thePresident and the Secretary to exercisetheir powers under 25 U.S.C. § 2 & 9 topromulgate rules necessary to give it ef-fect. Ruiz, 415 U.S. at 231, 94 S.Ct. 1055.

Chief Judge Jones’s further assertionthat ‘‘the fact that IGRA clearly limitedthe Secretary’s intervention into Class IIIgaming compacts constitutes the best evi-dence of congressional intent to limit theSecretary’s role’’ ignores the reality of thesituation here: that Congress enacted thestatute without foreknowledge of the Su-preme Court’s decision in Seminole. ThatCongress did not contemplate a need forthe Secretary to prescribe an alternatetribal remedy to fill a gap is merely a

function of Congress’s failure to foreseethe gap it was leaving, i.e., Congress didnot foresee that it lacked power under theIndian commerce clause to abrogate statesovereign immunity and that, therefore, itsown statutorily prescribed tribal remedy ofa federal court suit would prove to beineffectual. Congress’s lack of foreknowl-edge that the IGRA would prove to bedevoid of any constitutionally effectivetribal remedy does not suggest in theslightest that Congress anticipated or in-tended that the Secretary would default inhis duty to prescribe an alternate remedialprocedure to carry the IGRA into effect.

As with the general authority statutes,the role of the Interior under the specificdelegations of authority under the IGRA isfar broader than what Chief Judge Jones’sopinion, focused as it is on a narrow sec-tion of the law, admits. The IGRA author-izes the Secretary to approve or disap-prove Tribal–State compacts according towhether a compact complies with or vio-lates the IGRA, federal law or ‘‘the trustobligations of the United States to Indi-ans.’’ 25 U.S.C. § 2710(d)(8)(B). Further,the IGRA specifically provides that ‘‘[i]fthe State does not consent TTT to a pro-posed compact submitted by a mediatorTTT, the mediator shall notify the Secre-tary and the Secretary shall prescribe, inconsultation with the Indian tribe, proce-dures TTT which are consistent with TTT

the relevant provisions of the laws of theStateTTTT’’ 25 U.S.C. § 2710(d)(7)(B)(vii)(emphasis added). Thus, the IGRA con-templates that the Secretary of the Interi-or, and not the federal or state courts or amediator, shall perform the task of inter-preting state and federal laws and treatiesto assure that a proposal or compact forIndian gaming complies with them. Addi-tionally, the Secretary is given powers toreview and approve or disapprove anyplans by tribes to distribute revenue from


gaming to members of a tribe, and toevaluate such plans for whether they com-ply with the IGRA’s goal of tribal econom-ic development. See 25 U.S.C.§ 2710(b)(3)(B).

Moreover, a number of regulatory pow-ers are delegated to the Secretary of theInterior through the National Indian Gam-ing Commission (‘‘NIGC’’), a three-mem-ber body within the Department of theInterior. Tamiami Partners v. Miccosuk-ee Tribe of Indians, 63 F.3d 1030, 1048(11th Cir.1995); Seneca–Cayuga Tribe v.Nat’l Indian Gaming Comm’n, 327 F.3d1019, 1023 (10th Cir.2003). Two of thethree members of the NIGC are appointeddirectly by the Secretary of the Interior.Tamiami, 63 F.3d at 1048. Congressplainly intends the Department of the In-terior to have broad authority over gamingin enacting the IGRA, delegating to theNIGC the power to close an Indian gamingfacility permanently, to adopt regulationsgoverning fines, to issue subpoenas, to in-spect the books and records of a Class IIgaming facility, and to hold hearings. Id.The NIGC is required to ‘‘monitor class IIgaming continuously, inspect class II gam-ing premises, promulgate regulations nec-essary to implement IGRA, and conductbackground investigations of, among oth-ers, management contractors.’’ Id. Whilethe NIGC is technically a distinct entitywithin the Department of the Interior, theSecretary retains majority control over theboard by appointing two of its members.It is plain that the nominal separation ofthe two does not change the clear intent ofCongress to locate rulemaking and admin-istrative authority under the IGRA withthe Secretary of the Interior. Indeed, af-ter the Tenth Circuit attempted to restrictthe powers of the Interior by holding thatthe IGRA delegated determinations ofwhat constituted a reservation to theNIGC, Sac & Fox Nation of Missouri v.Norton, 240 F.3d 1250 (10th Cir.2001),

Congress immediately corrected the courtand clarified that the Secretary of theInterior holds this power. City of Rose-ville v. Norton, 348 F.3d 1020, 1029–30(D.C.Cir.2003); Department of the Interi-or and Related Agencies AppropriationsAct, 2002, Pub.L. No. 107–63, § 134 (2001).

In view of all of the foregoing, it is‘‘apparent from the agency’s generally con-ferred authority and other statutory cir-cumstances that Congress would expectthe agency to be able to speak with theforce of law’’ with respect to any gaps orambiguities in the IGRA. Mead, 533 U.S.at 229, 121 S.Ct. 2164. Chief JudgeJones’s contention to the contrary is basedon a narrow reading of a particular statu-tory provision, exactly the kind of analysisforbidden by the Supreme Court. FDA v.Brown & Williamson Tobacco Corp., 529U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d121 (2000) (holding that ‘‘a reviewing courtshould not confine itself to examining aparticular statutory provision in isolation’’).

VI.

Chief Judge Jones also incorrectly main-tains that, under step two of the Chevronanalysis, the Secretarial Procedures regu-lations do not reasonably effectuate Con-gressional intent with respect to theIGRA. Contrary to the suggestion ofChief Judge Jones’s opinion, the Secre-tary’s regulations are not only consistentwith the intentions of Congress but arenecessary to achieve the intended ‘‘finely-tuned balance’’ that Seminole revealedCongress had unintentionally failed to pro-vide.

The IGRA was enacted with more thanthe interests of the states in mind. It wasenacted ‘‘in large part to ‘provide a statu-tory basis for the operation of gaming byIndian tribes as a means of promotingtribal economic development, self-sufficien-


cy, and strong tribal governments.’ ’’ TO-MAC, Taxpayers of Mich. Against Casi-nos v. Norton, 433 F.3d 852, 865 (D.C.Cir.2006) (quoting 25 U.S.C. § 2702(1)). Itwas also designed to ensure that a tribewas the primary beneficiary of any gamingoperations. Citizens Exposing Truthabout Casinos v. Kempthorne, 492 F.3d460, No. 06-5354, 2007 WL 1892080, at *1(D.C.Cir. Jul. 3, 2007). ‘‘IGRA was de-signed primarily to establish a legal basisfor Indian gaming as part of fosteringtribal economic self-sufficiency, not to re-spond to community concerns about casi-nosTTTT’’ Id. at *10; San Manuel IndianBingo and Casino v. N.L.R.B., 475 F.3d1306, 1308 (D.C.Cir.2007) (holding that thepurpose of the IGRA was to ensure eco-nomic development and self-sufficiency ofIndian tribes through gaming).

While Congress did, as Chief JudgeJones asserts, intend that the mechanismto introduce gaming would be a tribal-statecompact, it did not intend to allow, as theSeminole-blunted statute does, a situationin which states could refuse to negotiateand thus veto a tribal-state compact. Un-der the IGRA as passed by Congress, astate that failed to act in good faith, asTexas indisputably has here, could be suedin federal court. 25 U.S.C. § 2710(d)(7).That state would have the burden of prov-ing that it negotiated in good faith. Id. at2710(7)(B)(ii). If the state failed to meetits burden of proof, it would have beenordered to negotiate a compact within 60days. Id. at 2710(7)(B)(iii). If the statecontinued to refuse to compact, it wouldhave been forced into mediation. Id. at2710(7)(B)(iv). If the state ultimately re-fused to consent to the results of the medi-ation, the Secretary of the Interior wasempowered to bypass the state and createits own procedures authorizing gamblingby the tribe, consistent with the compactproposed during mediation. Id. at2710(7)(B)(vii).

It was thus not just the existence of acompact that was crucial to the balancebetween states and tribes under the IGRA.‘‘It is quite clear from the structure of thestatute that the tribe’s right to sue thestate is a key part of a carefully-craftedscheme balancing the interests of thetribes and the states. It therefore seemshighly unlikely that Congress would havepassed one part without the other, leavingthe tribes essentially powerless.’’ SpokaneTribe, 139 F.3d at 1300. The right to sueto essentially force a compact gave tribes acrucial piece of leverage against thestates—preventing a state from taking theapproach of Texas in this case, which hasbeen to utterly refuse to negotiate. Priorto the promulgation of the Secretarial Pro-cedures regulations, states had underSeminole ’s constitutional interpretation aveto over the tribal-state compact process.See Matthew L.M. Fletcher, Bringing Bal-ance to Indian Gaming, 44 HARV. J. ON

LEGIS. 39, 75 (2007) (describing the stale-mate resulting from the elimination ofCongress’s intended remedy for tribesfaced with a state refusing to negotiate).‘‘Congress did not intentionally create thissituation and would not have countenancedit had it known then what we know now.’’Spokane Tribe, 139 F.3d at 1302.

Chief Judge Jones’s opinion gives lip-service to the deference accorded underChevron at step two to the Secretary’sProcedures regulations, noting correctlythat we may not disturb the agency’s deci-sion ‘‘unless it appears from the statute orlegislative history that the accommodationis not one that Congress would have sanc-tioned.’’ Chevron, 467 U.S. at 845, 104S.Ct. 2778. We do not ask whether theProcedures regulations are ideal, orwhether there is some way they can beimproved. Mead, 533 U.S. at 229, 121S.Ct. 2164 (holding that ‘‘a reviewing courthas no business rejecting an agency’s exer-


cise of its generally conferred authority toresolve a particular statutory ambiguitysimply because the agency’s chosen resolu-tion seems unwise’’). We do not askwhether Congress would have modifiedthem in some minor way. We ask onlywhether they were reasonable and wheth-er Congress would have sanctioned them.Chevron, 467 U.S. at 845, 104 S.Ct. 2778.To focus on the minutiae, as Chief JudgeJones’s opinion does, distracts from thegeneral intentions of Congress in passingthe IGRA: Congress intended to allowIndian gaming to proceed, for the purposeof economically benefitting Indian tribes,after a negotiating process that would givestates a right to negotiate towards theultimate outcome. In the case of a statethat attempted to halt or veto this processwithout good faith, Congress intended thattribes would ultimately be able to forcegaming even over the objections of thestate. The Secretary’s regulations at issuehere may not be perfect, but by allowingtribes an alternate process to proposegaming procedures in cases where a staterefuses to negotiate and refuses to be suedin federal court, they closely approximatewhat Congress likely would have intended,while the status quo after Seminole undis-putedly subverts the national legislativeaims in respect to Indian affairs and rela-tions.

Even on its discussion of the details,Chief Judge Jones’s opinion is misguided.It first argues that the Procedures areunreasonable because they eliminate therequirement that a federal court determinewhether the state has negotiated in goodfaith. But this criticism based on the ideathat the Secretary’s regulations deny theState of Texas access to an impartial fed-eral court fact-finder rings hollow giventhat the Secretary’s alternate remedy reg-ulations are triggered only if the state hasasserted its Eleventh Amendment rightnot to be sued in federal court by an

Indian tribe under the original statutoryprocedures enacted by Congress. 25C.F.R. § 291.3. Under the Secretary’s al-ternate remedy regulations, a state thatprefers that a federal court resolve itsdispute with the tribe may simply choosethat option, waiving its objection to federaljurisdiction and proceeding exactly as Con-gress originally intended. The State ofTexas, after categorically refusing to nego-tiate with the Kickapoo and after assertingits sovereign immunity in federal courtwhen the Kickapoo attempted to invokethe original statutory procedures, now re-sorts to a federal court complaining that itis crucial that a federal court serve as anindependent body to determine whether itsabsolute refusal to negotiate constituted‘‘negotiations in good faith.’’ The Proce-dures do not deny a state its right to ajudicial determination as to whether it act-ed in good faith, because the state maychoose to submit to a federal court’s juris-diction by allowing a tribe to sue it there;just as it has in the present case by bring-ing this suit in federal court. That Texasis well aware that a fair and impartialfederal court would be unlikely to find thatits utter refusal to negotiate amounted togood-faith bargaining does not obviate itsundisputed right to litigate that matter infederal court.

Moreover, Congress contemplated the‘‘good faith’’ determination as an affirma-tive defense, with the burden on the stateto prove that it negotiated in good faith.25 U.S.C. § 2710(d)(7)(B)(ii). The Secre-tary’s alternate tribal remedy regulationsrequire that the tribe has negotiated witha state for a six-month period prior toinvoking the Secretarial Gaming Proce-dures. 25 C.F.R. § 291.3(b). A statemust also have asserted its sovereign im-munity defense against a suit by the tribe.Id. at 291.3(d). The Procedures give thestate a 60–day comment period, and invite


it to submit an alternate gaming proposal.Id. at 291.7(b). They invite the state toparticipate in an informal conference withthe tribe. Id. at 291.8(b). Only after me-diation may the Secretary attempt to actu-ally impose a proposal over the state’sobjection. Id. at 291.11. It seems unlike-ly that a state, negotiating in good faith,would fully proceed through this processwithout coming to some agreement withthe tribe. A good faith determinationmight improve these procedures from apolicymaking perspective, but that ques-tion is not one for this court under Chev-ron. We ask only whether the Secretary’sregulations are reasonable and whetherCongress would have sanctioned them—and it seems unlikely, given the Congres-sional goal of allowing and promoting law-ful Indian gaming businesses, that Con-gress would not sanction these regulationsclosely tracking and complementing theoriginal statute, rendered ineffective bySeminole, with an alternate remedy that isabsolutely essential to its having the Con-gressional effect intended.

Chief Judge Jones’s second contention isthat the Secretarial Gaming Proceduresregulations create a biased mediation pro-cess by allowing the Secretary of the Inte-rior, rather than a court, to appoint amediator who has ‘‘no official, financial, orpersonal conflict of interest with respect tothe issues in controversy.’’ 25 C.F.R.§ 291.9(a). Chief Judge Jones’s sugges-tion that the Interior is placed in the roleof an ‘‘objective arbiter’’ is incorrect—in-stead, the person appointed as a mediatoris the fair and impartial decider. Un-founded speculation that the Secretarymight not perform his plain duty under thestatutes and his own department’s regula-tions to select a neutral mediator fails tojustify a conclusion that the regulationsare unreasonable—especially given thatfor Chief Judge Jones’s fears to material-ize, not only must the Secretary violate his

duty, but the neutral mediator must aswell.

Chief Judge Jones’s third contention,that the Secretary is enabled to simplydisregard the mediator’s proposal, exag-gerates the Secretary’s powers under theProcedures. The Secretary may not es-tablish his own procedures unless he doesnot approve the mediator’s proposal. TheSecretary may not disapprove the media-tor’s proposal unless it violates federal orstate law, violates the trust obligations tothe tribe, or does not comply with thetechnical requirements of a proposal. 25C.F.R. § 291.11. In the event that theSecretary disapproves, he may prescribehis own procedures—but only if they‘‘comport with the mediator’s selected pro-posal as much as possibleTTTT’’ Id. at291.11(c). This differs only slightly fromthe statutory requirement that the proce-dures be ‘‘consistent with the proposedcompact selected by the mediatorTTTT’’ 25U.S.C. § 2710(d)(7)(B)(vii). Moreover, itis unclear which of the two is the morerestrictive on the Secretary—and the reg-ulations certainly do not grant ‘‘unbridledpower to prescribe Class III regulations.’’

Chief Judge Jones’s final argument com-bines her previous three into a grand peti-tio principii. That is, she begs the ques-tion by contending that Congress wouldnot have expected the Secretary to fill theunforeseen gap it left in the IGRA’s tribalremedy unless he included the require-ments that made it unintentionally unen-forceable in the first place—a federalcourt’s determination of a state’s failure tobargain in good faith, the participation of afederal court-appointed mediator, andgaming procedures consistent with a feder-al court-appointed mediator’s proposedcompact. Yet we are not inquiring intowhether Congress ‘‘intended’’ or couldforesee the result reached by the Secre-tary in filling Congress’s own unforeseen


and unintended gap. We instead askwhether the result is a reasonable one thatCongress would sanction by the agency ithad empowered to make rules and policiesto effectuate its acts regarding Indian af-fairs and relations for purposes of comple-menting or filling the gap in the statute.Chevron, 467 U.S. at 845, 104 S.Ct. 2778.Congress intended for recalcitrant statesto be subjected to suit by Indian tribes infederal court—but that intended tribalremedy was frustrated by the unforeseenconstitutional interpretation in Seminole.I conclude that, if Congress had knownthat it lacked power to abrogate state sov-ereignty under the Indian commerceclause, it obviously would have adopted atleast some alternate form of remedy—andthat it would likely have enacted some-thing similar to the Secretarial GamingProcedures regulations, as a reasonableand necessary alternate tribal remedy.Otherwise, if this reasonable and practica-ble proposition cannot be laid, we are facedwith a preposterous alternative conclusion,viz., that Congress would have declined toadopt the IGRA in any form or would have

included a veto power for hostile states ina statute designed ‘‘to provide a statutorybasis for the operation of gaming by Indi-an tribes as a means of promoting tribaleconomic development, self-sufficiency,and strong tribal governments.’’3 25U.S.C. § 270(1).

VII.

In sum, this reviewing court has no busi-ness rejecting the Secretary’s exercise ofhis generally conferred authority to fill aparticular statutory gap simply because itdeems the Secretary’s chosen resolution tobe unwise, but instead is obliged to acceptthe Secretary’s position because Congresshas not spoken to the point or gap at issuehere and the Secretary’s interpretation isreasonable. Further, the circumstanceshere imply that Congress would expect theSecretary to be able to speak with theforce of law, even though Congress maynot have expressly delegated authority orresponsibility to implement a particularprovision; the power of an administrative

3. Chevron is not the only potential source ofdeference owed to the regulations. The Indi-an canon of construction provides that be-cause of the trust relationship between thefederal government and the tribes, statutes‘‘are to be construed liberally in favor of theIndians, with ambiguous provisions interpret-ed to their benefit.’’ County of Yakima v.Confederated Tribes & Bands of Yakima IndianNation, 502 U.S. 251, 269, 112 S.Ct. 683, 116L.Ed.2d 687 (1992) (quoting Montana v.Blackfeet Tribe, 471 U.S. 759, 766, 105 S.Ct.2399, 85 L.Ed.2d 753 (1985)). The preciserelationship between this canon of construc-tion and the Chevron doctrine has not beenresolved. Several circuits, however, haveheld that when the two principles of defer-ence are in conflict, the Indian canon trumpsthe Chevron doctrine, requiring deference tothe interpretation that is most favorable to theIndian tribes. See Scott C. Hall, The IndianLaw Canons of Construction v. The ChevronDoctrine: Congressional Intent and the Unam-biguous Answer to the Ambiguous Problem, 37

CONN. L.REV. 495 (2004); Cobell v. Norton, 240F.3d 1081, 1101 (D.C.Cir.2001) (holding thatthe Indian canon prevailed over the Chevrondoctrine when the two were in conflict).

There is no need to ponder the preciserelationship of the two principles in this case,however, because they are not in conflict butconcurrently call for judicial deference to-ward the Secretary’s gaming procedures reg-ulations that are necessary to carry the IGRAinto full effect. Thus, at a minimum, theIndian canon adds substantially to the level ofdeference owed to the Secretary’s Proceduresregulations in this case. Chief Judge Jonesmakes unwarranted assumptions about theintent of Congress that are not consistent withthe obvious gap it unintentionally left in theIGRA along with the requirement that wegenerously construe any regulation by theSecretary to fill it in favor of the IGRA’seffectuation, and with IGRA’s furtherance oftribal economic development and self-suffi-ciency in light of Congress’s unique trust rela-tionship with the Indians.


agency to administer a congressionally cre-ated and funded program necessarily re-quires the formulation of policy and themaking of rules to fill any gap left, implic-itly or explicitly, by Congress. The Secre-tary therefore acted within his authority topromulgate regulations filling an unantic-ipated statutory gap under the explicit au-thority of 25 U.S.C. §§ 2 and 9 and theimplicit authority of the IGRA, and hisensuing regulations are owed Chevron def-erence and are binding in the courts be-cause they are not procedurally defective,arbitrary or capricious in substance, ormanifestly contrary to the statutes. Ac-cordingly, I DISSENT.

,

Linda R. BENAVIDES; Paul A. Bena-vides; and David R. Benavides,

Plaintiffs–Appellants,

v.

UNITED STATES of America,Defendant–Appellee.

No. 06–40526.

United States Court of Appeals,Fifth Circuit.

Aug. 17, 2007.

Background: Taxpayers brought suitagainst government seeking refund for in-come taxes paid on jury award of punitivedamages in state wrongful death action.The United States District Court for theSouthern District of Texas, Hayden W.Head, Jr., Chief Judge, 2006 WL 582038,granted government’s motion for summaryjudgment and taxpayers appealed.

Holding: The Court of Appeals, Wiener,Circuit Judge, held that taxpayers could

not exclude punitive damages award inTexas wrongful death action from grossincome.

Affirmed.

1. Internal Revenue O3124

Taxpayers, who were survivors of de-ceased worker, could not exclude punitivedamages award in Texas wrongful deathaction from gross income under statuteexcluding punitive damages awards fromgross income when wrongful death claim-ants can recover only punitive damages;even though Texas’s Workers’ Compensa-tion Act limited recovery to punitive dam-ages to plaintiffs who recovered workers’compensation benefits for the wrongfuldeath of a covered worker, the Texas lawapplicable to wrongful death actions didnot restrict recovery to successful plain-tiffs only to punitive damages, and thestate law in question was the wrongfuldeath law. 26 U.S.C.A. § 104(c); V.T.C.A.,Civil Practice & Remedies Code§ 71.002(a); V.T.C.A., Labor Code§ 408.001(a, b).


Statute excluding punitive damagesawards from gross taxable income whenwrongful death claimants can recover onlypunitive damages does not exclude puni-tive damages from gross income of surviv-ors of a deceased worker when the wrong-ful death laws of the state in question donot limit recovery to punitive damages,even if, some other law of the state, suchas its Workers’ Compensation Act, mightrestrict wrongful death recovery to puni-tive damages. 26 U.S.C.A. § 104(c).


Exclusions from gross income must beconstrued narrowly.

texas v. u.s. 491 - turtle talk circuit judge, filed opinion concur-ring in part and concurring in...

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