No Casino In Plymouth, et al. v. National Indian Gaming Commission, et al.

The Secretary of Interior has authority under the Indian Reorganization Act (IRA) to acquire land in trust for tribes that were recognized in 1934. Carcieri v. Salazar, 555 U.S. 379 (2009). The National Indian Gaming Commission (NIGC) has authority under the Indian Gaming Regulatory Act (IGRA), “to regulate gaming on Indian lands, and nowhere else.” Mich. v. Bay Mills, 572 U.S. 782, 795 (2014). Recognition pursuant to 25 CFR Part 83, is a “prerequisite” for a tribe to receive “the protection, services and benefits of the federal government” including IGRA and IRA benefits. Carcieri, 555 U.S. at 385. Plaintiffs challenged two federal approvals for the Ione Band of Miwok Indians, namely: (1) the 2012 approval of an IRA trust transfer by the Department of Interior (DOI) even though the Ione Band was not federally recognized in 1934 and (2) the 2018 approval of a gaming ordinance by the NIGC even though the Ione Band does not have “Indian lands” as defined by IGRA. Nor has the Ione Band been acknowledged as a tribe per 25 CFR Part 83. The Ninth Circuit reviewed defendants’ motion for judgment on the pleadings (FRCP 12(c)), de novo, and dismissed plaintiffs’ complaint – in a four page unpublished memorandum - without leave to amend and without a hearing. The panel did not address the serious factual allegations in the complaint. Instead, it dismissed the complaint based on Ninth Circuit “precedent” that is contrary to Carcieri and that was superseded by a subsequent interpretation by the DOI. See Nat’l Cable Telecom. v. Brand X Internet, 545 U.S. 967, 982-83 (2005) (“Brand X”).