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Case 1:08-cv-00317-RWR Document 17 Filed 06/23/2008 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Plaintiff,

BOARD OF COMMISSIONERS OF
CHEROKEE COUNTY, KANSAS,

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__________________________________________)

Defendants.

v.

KEMPTHORNE, et al.,



Case No. 1:08-cv-00317-RWR
Judge Richard W. Roberts

MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT OR IN THE

ALTERNATIVE FOR SUMMARY JUDGMENT

Pursuant to Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure,

Defendants, the United States Department of the Interior, Dirk Kempthorne, in his official

capacity as Secretary of the Interior, and the National Indian Gaming Commission (collectively,

“United States”), move to dismiss the First Amended Complaint on the grounds that this Court

lacks jurisdiction over the Complaint and that Plaintiff fails to state any claim upon which relief

can be granted, or in the alternative for summary judgment. Submitted herewith is Defendants’

Statement of Points and Authorities in Support of their Motion.

Dated: June 23, 2008

Respectfully submitted,

/s/

_____________________________

AMY S. TRYON

Case 1:08-cv-00317-RWR Document 17 Filed 06/23/2008 Page 2 of 2

Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Indian Resources Section
P.O. Box 44378
L’Enfant Plaza Station
Washington, D.C. 20026-4378
(202) 353-8596
[email protected]

Case 1:08-cv-00317-RWR Document 17-2 Filed 06/23/2008 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BOARD OF COMMISSIONERS OF
CHEROKEE COUNTY, KANSAS,

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__________________________________________)

KEMPTHORNE, et al.,

Defendants.

v.

Plaintiff,



Case No. 1:08-cv-00317-RWR
Judge Richard W. Roberts

STATEMENT OF POINTS AND AUTHORITIES

IN SUPPORT OF THE UNITED STATES’S MOTION TO DISMISS

PLAINTIFF’S FIRST AMENDED COMPLAINT

OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

RONALD J. TENPAS
Assistant Attorney General

AMY S. TRYON
GINA L. ALLERY
Trial Attorneys
U.S. Department of Justice
Environment and Natural Resources Division
Indian Resources Section
P.O. Box 44378
L’Enfant Plaza Station
Washington, D.C. 20026-4378
(202) 353-8596
[email protected]

Case 1:08-cv-00317-RWR Document 17-2 Filed 06/23/2008 Page 2 of 44

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. FACTUAL AND STATUTORY BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A.

B.

C.

D.

The Meh-No-Bah Allotment

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Indian Land Consolidation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Indian Gaming Regulatory Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The National Environmental Policy Act

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV. APPLICABLE STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A.

B.

C.

D.

Standard for Dismissal under Rules 12(b)(1) and 12(b)(6) . . . . . . . . . . . . . . . . . . 8

Conversion of Motion for Dismissal to Motion for Summary Judgment

. . . . . . . 9

Standard for Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Review of Agency Action Under the Administrative Procedure Act

. . . . . . . . . 11

V. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A.

Plaintiff lacks standing to challenge the ILCA transfer.

. . . . . . . . . . . . . . . . . . . 16

1.

Plaintiff’s alleged injuries bear no causal connection to the
federal conduct Plaintiff challenges.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

a.

b.

c.

Plaintiff has alleged only gaming-related injuries. . . . . . . . . . . . . 18

The ILCA transfer of the Meh-No-Bah Allotment into
trust for the Quapaw Tribe did not authorize gaming
on the land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The ILCA transfer had no effect on the lawfulness of
gaming on the Meh-No-Bah Allotment because the land
was “Indian lands” both before and after the transfer. . . . . . . . . . 21

2.

The relief Plaintiff seeks would not redress its alleged injuries. . . . . . . . 23

Case 1:08-cv-00317-RWR Document 17-2 Filed 06/23/2008 Page 3 of 44

3.

Plaintiff lacks prudential standing because it falls
outside ILCA’s “zone of interests.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Plaintiff’s claim that the land transfer is invalid is barred
by the Quiet Title Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

The ILCA transfer of the Meh-No-Bah Allotment did not require NEPA
documentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

The Secretary was not required to refer the Meh-No-Bah transfer
to the Office of Indian Gaming Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

1.

The Checklist is irrelevant to the ILCA transfer of
the Meh-No-Bah Allotment.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

2.

The Checklist is not binding on the Secretary.

. . . . . . . . . . . . . . . . . . . . 31

The Section 151 regulations are irrelevant to the ILCA transfer because they
implement an entirely different statute.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Under the APA, Plaintiff cannot challenge the lack of an “Indian lands”
determination because there has been no final agency action.

. . . . . . . . . . . . . . 35

B.

C.

D.

E.

F.

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Attached:

Exhibit 1, North County Cmty. Alliance, Inc. v. Kempthorne, Case No. 2:07-cv-01098-JCC
(W.D. Wash. Nov. 16, 2007)

Case 1:08-cv-00317-RWR Document 17-2 Filed 06/23/2008 Page 4 of 44

I. INTRODUCTION

Pursuant to Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure,

Defendants, the United States Department of the Interior, the Secretary of the Interior, and the

National Indian Gaming Commission (“NIGC”) (collectively, “United States”), by undersigned

counsel, hereby respectfully submit this Statement of Points and Authorities in support of their

Motion to Dismiss Plaintiff’s First Amended Complaint (“Complaint”) or in the Alternative for

Summary Judgment. For the reasons described below, this Court lacks jurisdiction to hear the

primary claim raised in the Complaint. In addition, the Complaint fails to state any claim against

the United States upon which relief can be granted. The United States therefore respectfully

requests that the Court dismiss the Complaint, or grant summary judgment in its favor.

II. PROCEDURAL HISTORY

On February 25, 2008, Plaintiff filed a complaint alleging that the United States had

violated the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, and the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f, when it transferred a parcel of

land known as the Meh-No-Bah Allotment from a trust status benefitting individual Indians into

trust on behalf of the Quapaw Tribe of Oklahoma (“Tribe”). The United States moved to dismiss

the complaint on the ground that Plaintiff lacked standing to challenge the transfer of the Meh-

No-Bah Allotment because the transfer had not caused Plaintiff any injury.

Plaintiff responded by filing its First Amended Complaint. In the new Complaint,

Plaintiff reiterates its challenge to the United States’s transfer of beneficial interest in the Meh-

No-Bah Allotment to the Quapaw Tribe. Plaintiff has also added the NIGC as a defendant –

even though there is no final agency action the NIGC took or could have taken relating to the

1

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land at issue – and raised a new claim against the NIGC, claiming the NIGC failed to make a

required determination that the Meh-No-Bah Allotment was “Indian lands.” The Complaint also

includes numerous new unsupported assertions and allegations, none of which states a claim

against the United States. The United States now again moves for dismissal of the Complaint, or

in the alternative for summary judgment.

III. FACTUAL AND STATUTORY BACKGROUND

A.

The Meh-No-Bah Allotment

Plaintiff’s Complaint centers around the construction and development of a casino/hotel

complex by the Quapaw Tribe in the northeastern corner of Oklahoma, where the State borders

Kansas and Missouri. Am. Compl. at 1. The project consists of the construction of the

casino/hotel complex, infrastructure, and amenities on 85 acres of land in Oklahoma; surface

vehicle parking and a driveway on approximately 63 acres in Kansas; and an extension of the

driveway on approximately 30 acres in Missouri. /1

Ex. 1(C) to Pl.’s Mem. in Supp. of Mot. for

Prelim. Inj., ¶ 2. The development is largely complete, and the Tribe has announced plans to

open the casino for business on or about July 4, 2008. See Am. Compl. at 3. Plaintiff is

planning its own privately managed casino nearby. Id. at 16.

The land on which the gaming establishment will be located is, in its entirety, a parcel of

land in Oklahoma known as the Meh-No-Bah Allotment. Ex. 1(C) to Pl.’s Prelim. Inj. Mem., ¶

3. The parcel is named for its original allottee, Meh-No-Bah Rabbit, a member of the Quapaw

All 63 acres in Kansas, where Plaintiff is located, are owned by the Tribe in fee simple. As
/1
such, that parcel is subject to the State of Kansas’s jurisdiction.

2

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Tribe who was allotted the land in 1895. Id. Ex. 2(C) at 4; AR 192; see AR 45. /2

After Meh-No-

Bah’s death in 1905, the Allotment passed in fractionated trust or restricted interests to her heirs

through several generations. Ex. 2(C) to Pl.’s Prelim. Inj. Mem., at 5-6; AR 192. At the

beginning of April 2007, the entire Meh-No-Bah Allotment was held by the United States in trust

for four individual Indians and one Indian estate in varying shares. /3

In five separate transactions

over the next three months, the United States transferred five-sixths of the Allotment from its

individual Indian landowners in trust to the Quapaw Tribe; the remaining one-sixth of the land

was transferred to the Tribe in restricted fee status. /4

All five transactions took place pursuant to

the Indian Land Consolidation Act (“ILCA”), 25 U.S.C. §§ 2201-2221. See Deeds to Restricted

Indian Land [AR 19, 63, 111, 132, 140]. The first two transactions each involved a one-quarter

undivided beneficial interest in the Allotment, for a total of a one-half undivided interest. These

interests were transferred from their individual Indian owners into trust for the Tribe on April 27,

2007. AR 19, 63. Two additional one-sixth beneficial interests were transferred from their

individual Indian owners into trust for the Tribe on May 18, 2007 and July 6, 2007, respectively.

/2

Citations to “AR” are to pages of the Certified Administrative Record.

Contrary to Plaintiff’s unsupported allegations, see Am. Compl. at 8-9, all five individuals (four
/3
living, one deceased) who owned beneficial interests in the Meh-No-Bah Allotment are Indians.
George McWatters and Yannah Stephenson, who each held a one-quarter interest, are members
of the Quapaw Tribe. AR 22, 69. Jan Killough, who held a one-sixth interest, is a member of
the Comanche Nation. AR 123. Bobbie Rae Starr, who held a one-sixth interest, is a member of
the Peoria Tribe of Indians of Oklahoma. AR 139. Billy Lewis Urquhart, whose estate held a
one-sixth interest, was a member of the Creek Nation. AR 140.

The title of restricted fee land is held by the Indian tribe with specific federally-imposed
/4
restrictions on its use and/or disposition. As the Supreme Court has noted, “[t]he power of
Congress over ‘trust’ and ‘restricted’ lands is the same and in practice the terms have been used
interchangeably.” Okla. Tax Comm’n v. United States, 319 U.S. 598, 618 (1943) (citation
omitted).

3

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AR 111, 132. The final transaction, on July 10, 2007, involved the transfer of the remaining one-

sixth undivided beneficial interest in the Allotment to the Tribe in restricted fee status. AR 140.

Thus, after July 2007, the Meh-No-Bah Allotment was held by the United States in trust and

restricted fee solely for the Quapaw Tribe.

Plaintiff alleges that the Meh-No-Bah Allotment lost its restricted status by 1921 because

the names of Meh-No-Bah’s heirs were not included in a 1921 Act of Congress extending

restrictions on land belonging to certain named Quapaw allottees. Am. Compl. at 6-7. However,

the deeds transferring the fractionated interests in the Allotment make clear that the land was

restricted Indian land. See AR 19, 63, 111, 132, 140. Moreover, the Meh-No-Bah Allotment and

other parcels of land were allotted to members of the Quapaw Tribe pursuant to an Act of the

Quapaw National Council approved on March 23, 1893, and ratified and confirmed by Congress

with the Act of March 2, 1895, 28 Stat. 876, 907. At the time of allotment, the land became

Indian country. “‘Indian country’. . . means . . . (c) all Indian allotments, the Indian titles to

which have not been extinguished, including rights-of-way running through the same.” 18

U.S.C. § 1151. Although Congress enacted Section 1151 as a guide to federal criminal

jurisdiction, the Supreme Court has applied its definition of Indian country to questions of federal

civil jurisdiction and tribal jurisdiction. California v. Cabazon Band of Mission Indians, 480

U.S. 202, 208 (1987); DeCoteau v. Dist. County Court for Tenth Judicial Dist., 420 U.S. 425,

427 n.2 (1975). Therefore, the Meh-No-Bah Allotment has always been Indian country.

B.

The Indian Land Consolidation Act

ILCA was adopted in 1983 “in part to reduce fractionated ownership of allotted lands”

resulting from the unsuccessful historic federal allotment policy. Babbitt v. Youpee, 519 U.S.

4

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234, 238 (1997). From the 1870s until 1934, the United States followed a policy, reflected in the

General Allotment Act, 24 Stat. 388, of dismantling Indian tribal governments, allotting parcels

of tribal land to individual members, and conveying “surplus” tribal land to non-Indians. The

allotment policy ultimately resulted in a large-scale transfer of Indian lands out of Indian

ownership, which undermined tribal communities and impoverished the tribes and their

members. See Hodel v. Irving, 481 U.S. 704, 707-08 (1987) (describing allotment policy as

“disastrous for the Indians”); see also Felix Cohen, Handbook of Federal Indian Law § 1.04

(1982 ed.). Allotment also created the problem of “undivided fractionated interests.” As the

House Committee on Interior and Insular Affairs explained when recommending ILCA for

passage,

If an Indian possessed of an allotment failed to make a will (and most Indians did
not make wills), all heirs would inherit a fraction of this allotment. The allotment
would then be owned in “undivided” interests because the heirs would own all of
the allotment together instead of each person having a specific part of the
allotment. . . . [C]ourts have interpreted the law as to allow partition only if all the
heirs agree to it. . . . [S]ome allotments have been passed on from generation to
generation with the number of owners rapidly multiplying – in some cases owners
have only 1/1000th share of the original 160 acre tract.

H.R. Rep. No. 97-908, at 10 (1982).

ILCA was designed to solve these problems. In particular, the law aimed “to allow Indian

tribes: (1) to consolidate their tribal landholdings; (2) to eliminate certain undivided fractionated

interests in Indian trust or restricted lands; and (3) to keep trust or restricted lands in Indian

ownership by allowing tribes to adopt certain laws restricting inheritance of Indian lands to

Indians.” Id. at 9. The statute provides several means of accomplishing the twin goals of tribal

land consolidation and elimination of fractionated interests. It authorizes Indian tribes to adopt

5

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land consolidation plans and submit them for approval by the Secretary. 25 U.S.C. § 2203.

ILCA also describes specific methods tribes can use to acquire and consolidate land holdings.

For example, if an Indian tribe owns more than 50 percent of a tract of trust or restricted land

within the tribe’s reservation, or has the consent of the owners of more than 50 percent of such

land, the tribe may purchase the remainder of the tract for its fair market value. Id. § 2204. An

amendment to the statute in 2000 created a pilot land consolidation program, giving the Secretary

discretionary authority to acquire certain fractional interests in trust or restricted lands, at fair

market value and with the consent of the owner, to be held in trust for the relevant tribe. Id. §

2212(a). In 2004, Congress appropriated nearly $22 million for Indian land consolidation, noting

that the pilot program “has been successful in slowing the problem [of fractionated interests] on

those few reservations where it has been implemented” but that “more needs to be done.” S.

Rep. No. 108-89 (2003). Of that $22 million appropriation, $1 million was earmarked for land

consolidation efforts by the Quapaw Tribe. H.R. Rep. No. 108-330 (2003).

Consistent with these statutory goals, and using funds from the $1 million earmark, the

land at issue in this case, the Meh-No-Bah Allotment, was transferred to the Quapaw Tribe. The

transfer took place in pieces under different sections of ILCA. Four of the five individual Indian

owners of the allotment consented to the transfer of their shares of beneficial interest to the Tribe

in exchange for a payment of assessed fair market value. See AR 19, 63, 111, 132. Their shares

of the beneficial interest were transferred to the Tribe under 25 U.S.C. § 2212. Id. The fifth

owner was deceased and thus unable to consent to the transfer of his share, so the Tribe

purchased the share from the owner’s estate for its fair market value under 25 U.S.C. § 2204.

See AR 140.

6

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C.

The Indian Gaming Regulatory Act

IGRA was enacted in 1988, designed “in large part to ‘provide a statutory basis for the

operation of gaming by Indian tribes as a means of promoting tribal economic development,

self-sufficiency, and strong tribal governments.’” Citizens Exposing Truth About Casinos v.

Kempthorne, 492 F.3d 460, 462 (D.C. Cir. 2007) (“CETAC”) (quoting Taxpayers of Mich.

Against Casinos v. Norton, 433 F.3d 852, 865 (D.C. Cir. 2006) (“TOMAC”); 25 U.S.C. §

2702(1)). IGRA recognizes that “Indian tribes have the exclusive right to regulate gaming

activity on Indian lands” as long as the gaming complies with federal law and takes place in a

state where gaming is not prohibited. 25 U.S.C. § 2701(5). The statute regulates various aspects

of Indian gaming. For example, a tribe that wishes to conduct gaming under IGRA must adopt a

tribal gaming ordinance that meets certain requirements. See id. § 2710. A tribe wishing to

contract with an outside manager for the management of a gaming facility must first obtain

approval of the management contract. See id. § 2711. In addition, with certain important

exceptions, IGRA generally prohibits gaming activities on land acquired into trust by the United

States after October 17, 1988. Id. § 2719(a).

IGRA established the NIGC, id. § 2704, granting it specific authority over certain aspects

of Indian gaming, while granting specific authority for other aspects of Indian gaming to the

Secretary, Indian tribes, and the States. IGRA authorizes the NIGC Chairman to bring

enforcement actions and collect civil fines for substantial violations of IGRA, NIGC regulations,

and approved tribal gaming ordinances. Id. § 2713(a). The Chairman has the authority to

temporarily close Indian gaming, and the full Commission has the authority to halt gaming

permanently if it finds a substantial violation. Id. § 2713(b).

7

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D.

The National Environmental Policy Act

NEPA sets forth “a broad national commitment to protecting and promoting

environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348

(1989). However, NEPA is a procedural statute; it requires federal agencies to follow certain

procedures when making decisions, but “does not mandate particular consequences.” Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991). NEPA requires

federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal

actions significantly affecting the quality of the human environment.” Duncan’s Point Lot

Owners Ass’n v. Fed. Energy Reg. Comm., 522 F.3d 371, 376 (D.C. Cir. 2008) (citing 42 U.S.C.

§ 4332(C)). NEPA applies, however, only when an agency contemplates a major federal action

and that action would significantly affect the quality of the human environment. See Found. on

Econ. Trends v. Lyng, 817 F.2d 882, 885 (D.C. Cir. 1987) (major federal action is “a sine qua

non of NEPA’s applicability (in addition to the requirement of ‘significantly affecting’ the

environment)”).

IV. APPLICABLE STANDARDS

A.

Standard for Dismissal under Rules 12(b)(1) and 12(b)(6)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may dismiss a

complaint for lack of subject matter jurisdiction. If a plaintiff lacks standing to bring a claim,

that is a defect in the court’s subject matter jurisdiction over the claim. See Haase v. Sessions,

835 F.2d 902, 906 (D.C. Cir. 1987) (citing Bender v. Williamsport Area School Dist., 475 U.S.

534, 541 (1986)). “Although the District Court may in appropriate cases dispose of a motion to

dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) on the complaint

8

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standing alone, where necessary, the court may consider the complaint supplemented by

undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus

the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d

193, 198 (D.C. Cir. 2003) (internal quotation marks omitted) (citation omitted).

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the Court to dismiss a

complaint when it fails “to state a claim upon which relief can be granted.” “[T]he accepted rule

[is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Generally, under this standard, the

Court accepts the allegations within the complaint as true and resolves ambiguities in favor of the

pleader. See Harbury v. Deutch, 244 F.3d 956, 958 (D.C. Cir. 2001); Tripp v. Dep’t of Defense,

193 F. Supp. 2d 229, 234 (D.D.C. 2002). However, the Court “need not accept as true inferences

unsupported by facts set out in the complaint or legal conclusions cast as factual allegations.”

Guam Indus. Servs., Inc. v. Rumsfeld, 405 F. Supp. 2d 16, 19 (D.D.C. 2005) (citing Warren v.

District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002)).

B.

Conversion of Motion for Dismissal to Motion for Summary Judgment

Rule 12(d) of the Federal Rules of Civil Procedure provides for the conversion of a Rule

12(b)(6) motion to dismiss to a motion for summary judgment where “matters outside the

pleadings are presented to and not excluded by the court” after there has been a “reasonable

opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).

However, a court may take judicial notice of matters in the general public record, including

9

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records and reports of administrative agencies, without converting a motion to dismiss into a

motion for summary judgment. See Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 106 (D.D.C.

2000) (citing Black v. Arthur, 18 F. Supp. 2d 1127, 1131 (D. Or. 1998)). Further, where a

challenge to an agency decision presents only legal questions concerning, for example, “whether

the agency adhered to the standards of decisionmaking required [by law],” the court may “consult

the record to answer the legal question before the court” without converting a 12(b)(6) motion

into one for summary judgment. Marshall County Health Care Auth. v Shalala, 988 F.2d 1221,

1226 (D.C. Cir. 1993); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.

Cir. 2001) (“As we have repeatedly recognized, however, when a party seeks review of agency

action under the APA . . . [t]he ‘entire case’ on review is a question of law.”). Finally,

conversion of a motion to dismiss to one for summary judgment does not entitle a plaintiff to

discovery: “Challengers to agency action are not . . . ordinarily entitled to augment the agency’s

record with either discovery or testimony presented in the district court.” Marshall County

Health Care Authority, 988 F.2d at 1226; see also Am. Bioscience, Inc., 269 F.3d at 1083

(“Absent very unusual circumstances the district court does not take testimony.”).

C.

Standard for Summary Judgment

In the event the Court finds it necessary to convert the United States’s motion to a

summary judgment motion, Rule 56 of the Federal Rules of Civil Procedure provides that

summary judgment shall be rendered if there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Rule 56 is “an integral part of the

Federal Rules as a whole” insofar as it allows for the dismissal of “factually insufficient claims”

before trial, and thereby prevents the “unwarranted consumption of public and private resources”

10

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required by a trial of such meritless claims. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

D.

Review of Agency Action Under the Administrative Procedure Act

Plaintiff’s claims are brought via the Administrative Procedure Act (“APA”), 5 U.S.C. §§

701-706, which provides for judicial review of certain administrative actions: namely, “agency

action made reviewable by statute and final agency action for which there is no other adequate

remedy in a court.” Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 13 (D.C. Cir. 2005)

(quoting 5 U.S.C. § 704). Section 706(2)(A) of the APA provides that a court may set aside

agency action where it finds the action “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” This standard encompasses a presumption in favor of the validity

of agency action. Thus, “the ultimate standard of review is a narrow one. The court is not

empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 416 (1971); see also Mount Royal Joint Venture v. Kempthorne, 477

F.3d 745, 753 (D.C. Cir. 2007). The reviewing court’s task is to determine “whether the

[agency’s] decision was based on a consideration of the relevant factors and whether there has

been a clear error of judgment.” Overton Park, 401 U.S. at 416; see also Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 378 (1989).

Review is based on an examination of the administrative record. 5 U.S.C. § 706; Am.

Bioscience, Inc., 269 F.3d at1084 (citing Overton Park, 401 U.S. 402). The APA “standard of

review is a highly deferential one, which presumes the agency’s actions to be valid” and

“requires affirmance if a rational basis exists for the agency’s decision.” Am. Fin. Servs. Ass’n

v. Fed. Trade Comm’n, 767 F.2d 957, 985 (D.C. Cir. 1985) (citations omitted).

The APA’s definition of “agency action” includes an agency’s failure to act. See

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Kaufman v. Mukasey, 524 F.3d 1334, 1337-38 (D.C. Cir. 2008) (citing 5 U.S.C. § 551(13)).

Under the statute, a court is authorized to “compel agency action unlawfully withheld or

unreasonably delayed.” Id. (quoting 5 U.S.C. § 706(1)). However, a plaintiff may challenge an

agency’s failure to act under the APA “only where a plaintiff asserts that an agency failed to take

a discrete agency action that it is required to take.” Id. (quoting Norton v. S. Utah Wilderness

Alliance, 542 U.S. 55, 61, 64 (2004)).

V. ARGUMENT

Plaintiff challenges the Secretary’s transfer under ILCA of beneficial interest in the Meh-

No-Bah Allotment from individual Indians to the Quapaw Tribe. First, Plaintiff contends that the

ILCA transfer will permit the construction of a casino resort on the Allotment without the proper

environmental review. Am. Compl. at 1-2. In particular, Plaintiff alleges that the Secretary

failed to comply with NEPA before effecting the transfer; failed to abide by an internal guidance

document for gaming-related land acquisitions; and neglected to apply the regulations found in

25 C.F.R. Part 151. Id. at 18-19. Second, Plaintiff suggests that the beneficial interests in the

Meh-No-Bah Allotment were not eligible for transfer under ILCA in the first place because the

Allotment had fallen out of restricted status by 1921. For relief, Plaintiff asks this Court to

declare the United States’s transfer of the Meh-No-Bah Allotment invalid and to require the

Secretary to reopen the Meh-No-Bah conveyance and conduct certain NEPA review. Id. at 20-

21. /5



In its original complaint, Plaintiff also requested this Court (1) to enjoin the United States from
/5
acting on any pending land conveyances relating to the Quapaw Tribe’s casino development and
(2) to enjoin the Secretary and those acting in concert with him from conducting any further
construction activity on the property and from operating the casino. These claims were not
included in the First Amended Complaint and are therefore waived. See, e.g., Armstrong v.

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These claims should be dismissed because Plaintiff lacks standing to challenge the

transfer of the Meh-No-Bah Allotment. The transfer of beneficial interest took place pursuant to

ILCA, which, as described above, was designed exclusively to benefit Indians and Indian tribes

by helping eliminate pernicious fractionated interests and consolidate land for tribal governance.

The Meh-No-Bah Allotment had been held by the United States in trust or restricted status for

various individual Indians for more than a century. To complete the ILCA transfer of the

Allotment, the Secretary simply shifted the beneficiary of the fractionated interests in the

property from individual Indians to the Quapaw Tribe; the United States remained the trustee.

The individuals were paid compensation for their interest in the land. Nothing about this transfer

had any effect on Plaintiff whatsoever, let alone resulted in an injury that would confer standing

on Plaintiff to challenge the transaction.

All of Plaintiff’s alleged injuries are gaming-related. However, the ILCA transfer of

beneficial interest in no way allowed or authorized gaming to occur on the land. The transfer

was a simple change in beneficial owner that had no bearing on any issues related to gaming.

Transferring beneficial interest in the land to the Tribe was neither sufficient nor necessary for

gaming to lawfully occur there. Because Plaintiff’s only claimed injuries relate to the

prospective operation of a casino on the transferred parcel, Plaintiff has alleged no injury

resulting from or attributable to the transfer of beneficial interest itself – the only federal action

Plaintiff challenges. Likewise, the remedy Plaintiff ultimately seeks, a re-do of the ILCA transfer

Executive Office of the President, 810 F. Supp. 335, 337 n.1 (D.D.C. 1993), rev’d on other
grounds, 90 F.3d 553 (D.C. Cir. 1996). For the same reason, Plaintiff’s motion for a preliminary
injunction ordering the Secretary to halt construction, filed on the same day as Plaintiff’s original
complaint, is now moot.

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accompanied by NEPA review, would not redress Plaintiff’s injuries: those injuries all relate to

the prospective operation of a casino, and the ILCA transfer – whether accompanied by NEPA

documents or not – has no bearing on whether a casino may lawfully be operated on the site.

Without an injury fairly traceable to the challenged federal conduct, and redressable by the relief

sought, Plaintiff lacks constitutional standing to sue. Plaintiff also lacks prudential standing

because it is not within the zone of interests that ILCA was designed to protect. As a result,

Plaintiff’s challenge to the ILCA transfer should be dismissed for lack of standing.

Moreover, as described above, Plaintiff has attempted to establish that the Meh-No-Bah

Allotment had fallen out of restricted status by 1921, and, presumably, that the land was therefore

not eligible for gaming before the ILCA transfer at issue here. See Am. Compl. at 11. If this

theory is correct, however, Plaintiff’s challenge to the ILCA transfer is barred by the sovereign

immunity of the United States, which Congress expressly declined to waive in the Quiet Title

Act (“QTA”), 28 U.S.C. § 2409a. The QTA preserves sovereign immunity in cases challenging

title to trust or restricted Indian lands. If Plaintiff is correct that the Meh-No-Bah Allotment lost

restricted status decades ago, then to invalidate the ILCA transfer would return the land to its

former fee simple owners and wholly divest the United States of title to the land. Such a claim is

barred by sovereign immunity.

Even if Plaintiff had standing to challenge the ILCA transfer and the challenge was not

barred by the QTA, its claim under NEPA fails because no NEPA documentation is required for

actions that do nothing but preserve the regulatory status quo, such as the land transfer here, and

in any event the NEPA claim is moot because the casino construction is virtually complete.

Plaintiff’s contention that the Secretary violated an internal guidance document when transferring

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the land is incorrect because the document was both non-binding and inapplicable to the Meh-

No-Bah transfer. Likewise, Plaintiff wrongly alleges that the Secretary was required to abide by

the regulations found in 25 C.F.R. Part 151, because those regulations apply to the initial

acquisition of land in trust by the United States under a separate statute and have no application

to ILCA transfers of beneficial interests in trust land. /6



Finally, Plaintiff newly alleges that the Defendants were required, and failed, to conduct

an “Indian lands” inquiry and render an “Indian lands” determination about the Meh-No-Bah

Allotment, as well as a determination that gaming is not prohibited by Section 20 of IGRA, 25

U.S.C. § 2719. /7

Am. Compl. at 17. Plaintiff asks this Court to declare that the Allotment is not

“Indian lands” and is not eligible for gaming under Section 20 of IGRA. Id. at 21. Plaintiff

further seeks an injunction requiring the NIGC to notify the Tribe that the parcel is ineligible for

gaming and issue a notice of violation and closure order if the Tribe begins gaming on the parcel.

Id. This allegation fails to state a claim under the APA, because the APA allows a plaintiff to

challenge an agency’s failure to act only where the agency has neglected to take an action it was

required by law to take. Here, neither the NIGC nor the Secretary had a statutory or regulatory

The Amended Complaint also includes an assortment of unsupported factual assertions about
/6
the Tribe’s role in the five transfers of beneficial interest in the Meh-No-Bah Allotment and the
amount of compensation paid to the former beneficial owners. Am. Compl. at 7-9. Plaintiff also
mentions that the reason it amended its original complaint is that Plaintiff “has become aware of
additional facts and circumstances” after being “contacted by different third parties with an
interest in the events surrounding the development of the Quapaw casino resort.” Id. at 2.
Although Plaintiff does not appear to marshal these unsupported assertions behind any actual
legal claim, the United States notes that Plaintiff does not have standing to raise complaints of
third parties.

Under IGRA, Indian gaming may take place only on “Indian lands.” 25 U.S.C. § 2710(b)(1) &
/7
(d)(3).

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obligation to formally determine whether the Meh-No-Bah Allotment qualifies as “Indian lands.”

In addition, no gaming is yet taking place on the property; and even if gaming were taking place

and were unlawful, the exclusive authority to bring an enforcement action against the Tribe

would lie in the NIGC’s discretion. Accordingly, Plaintiff’s “Indian lands” determination claim

should be dismissed.

A.

Plaintiff lacks standing to challenge the ILCA transfer.

The only completed federal action Plaintiff targets in its Complaint is the transfer of the

beneficial interests in the Meh-No-Bah Allotment, under ILCA, from trust status for individual

Indians into trust status for the Quapaw Tribe. Plaintiff asks this Court to invalidate that

conveyance as well as to require the United States to re-conduct the transfer while preparing

NEPA documentation. Am. Compl. at 20-21. However, Plaintiff lacks standing to challenge the

ILCA transfer of the Meh-No-Bah Allotment. The only effect of the transfer was to change the

beneficiary of the trust land from four individual Indians and one Indian estate to the Quapaw

Tribe. Plaintiff suffered no injury as a result of this land transfer – in fact, the transaction had no

effect on Plaintiff whatsoever.

“The ‘irreducible constitutional minimum of standing contains three elements’: (1) the

plaintiff must have suffered injury in fact, an actual or imminent invasion of a legally protected,

concrete and particularized interest; (2) there must be a causal connection between the alleged

injury and the defendant’s conduct at issue; and (3) it must be ‘likely,’ not ‘speculative,’ that the

court can redress the injury.” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C.

Cir. 2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). It is a

plaintiff’s burden to establish standing to sue. See KERM, Inc. v. FCC, 353 F.3d 57, 59 (D.C.

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Cir. 2004). In this case, even assuming that Plaintiff’s feared future injuries qualify as

“imminent,” the second and third elements of standing are absent because Plaintiff’s injuries bear

no causal connection to the challenged federal action, and because the relief Plaintiff seeks would

not redress its injuries.

1. Plaintiff’s alleged injuries bear no causal connection to the federal conduct
Plaintiff challenges.

“No more fundamental component of standing doctrine exists than the requirement of a

presently demonstrable injury in fact directly traceable to the defendant’s supposedly unlawful

actions.” Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 54 (D.C. Cir. 1991). Here, all of the

injuries Plaintiff alleges either stem from the Tribe’s current construction activities or are

anticipated by Plaintiff as a future result of the Tribe’s prospective operation of its casino. See,

e.g., Am. Compl. at 14 (alleging Plaintiff “will bear the cost of repairing its roads that have

already been damaged by Quapaw construction equipment” and “the cost imposed by the

dramatic increase in vehicle traffic caused by the Quapaw’s 24-hour a day, 365-day a year casino

resort”). These injuries have no causal link to the ILCA transfer of beneficial interests, which is

the only federal action Plaintiff challenges. The Secretary’s act of approving the ILCA transfer

in no way authorized or enabled the Tribe to build a casino and conduct gaming on the parcel.

Facially, the ILCA transfer was done for the Congressionally-approved purposes of tribal land

consolidation, not gaming. But there are no hidden gaming-related consequences of the

transaction. The transfer of the Meh-No-Bah Allotment into trust for the Tribe was neither

sufficient nor necessary for Indian gaming to lawfully occur there. Whether and under what

circumstances an Indian tribe may engage in gaming activities is determined by IGRA. In

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addition, when lawful gaming is permitted, it is permitted on “Indian lands,” a term which

includes individual as well as tribal trust or restricted land. See 25 U.S.C. § 2703(4). The Meh-

No-Bah Allotment was “Indian lands” both before and after the transfer at issue here. In short,

the ILCA transfer did not allow or authorize the Tribe to construct a casino or to engage in

gaming on the land. Because none of Plaintiff’s alleged injuries actually result from the federal

action Plaintiff seeks to set aside, it has no standing to challenge the ILCA transfer. /8

a. Plaintiff has alleged only gaming-related injuries.

In its Amended Complaint, Plaintiff alleges the following injuries: (1) the cost of

repairing roads damaged by the Quapaw Tribe’s construction equipment; (2) the cost that will be

imposed by increased vehicle traffic caused by operation of a 24-hours-a-day, 365-days-a-year

casino; (3) “the public safety burden caused by Quapaw casino customers’ vehicular accidents

and fatalities, and of any crime or disorderly behavior that spill into the parking lot or further into

the county,” (4) funding of five new law enforcement personnel “to patrol the vicinity of the

casino parking area and respond to service calls in the area”; and (5) the cost of “a new public

safety facility in the vicinity of the Quapaw casino to provide timely and adequate fire and

This causation analysis does not change even if Plaintiff frames its injuries as resulting from the
/8
United States’s failure to comply with NEPA when effecting the transfer of the Meh-No-Bah
Allotment. “Where plaintiffs allege injury resulting from violation of a procedural right afforded
to them by statute and designed to protect their threatened concrete interest, the courts relax –
while not wholly eliminating – the issues of imminence and redressability, but not the issues of
injury in fact or causation.” Ctr. for Law & Educ., 396 F.3d at 1157 (emphasis omitted).
Causation is lacking here from every angle. Whether or not the United States properly complied
with NEPA’s procedural requirements when transferring the Allotment, the fact remains that the
Plaintiff’s injuries stem from the Tribe’s prospective gaming activity on the land, and the ILCA
transfer did not authorize, allow, enable, or otherwise cause that gaming activity.

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ambulance services.” Am. Compl. at 14-15. /9

All of these injuries plainly relate either to the

Tribe’s current construction activity on its land or to the Tribe’s anticipated future operation of a

casino on that land. As shown below, however, none of the injuries bears a causal relationship to

the federal action Plaintiff challenges in this case. The ILCA transfer is neither a direct cause nor

even a but-for cause of Plaintiff’s alleged injuries.

b. The ILCA transfer of the Meh-No-Bah Allotment into trust for the
Quapaw Tribe did not authorize gaming on the land.

The legal and practical effect of the ILCA transfer was simply to change the trust

beneficiaries of the Meh-No-Bah Allotment from several individual Indians to the Quapaw Tribe.

In other words, the fractional interests owned by the individual Indians were consolidated in the

Tribe. The United States was trustee of the land before the transfer, and it remained trustee after

the transfer. ILCA is “primarily directed to exchanges of Indian tribal lands for individual Indian

trust lands (e.g., allotments) in an effort to consolidate tribal land holdings.” Ute Indian Tribe v.

Utah, 935 F. Supp. 1473, 1504 (D. Utah 1996). Congress favored consolidation so that tribes

could eliminate checkerboard patterns of ownership, which in turn would “reduce instances of

fractionated heirship in trust lands and provide land for tribal programs designed to improve the

economy of the tribe and its members.” Id. (quoting H. Rep. No. 97-908, at 5). The actual land

transfers themselves, however, do not authorize any programs or projects, especially not gaming,

Plaintiff also describes its suspicions that the Quapaw Tribe has violated the Clean Water Act.
/9
Am. Compl. at 15-16. These suspicions are patently irrelevant to the present lawsuit, where the
Tribe is not even a party. If Plaintiff has been adversely affected by a person’s alleged violations
of the Clean Water Act, Plaintiff may initiate a citizen suit against that person after providing 60
days’ notice. See 33 U.S.C. § 1365; Citizens Coordinating Comm. on Friendship Heights, Inc. v.
Wash. Metro. Area Transit Auth., 765 F.2d 1169, 1172 (D.C. Cir. 1985) (describing Clean Water
Act citizen suit process).

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which is subject to its entire own statutory scheme. Plaintiff’s alleged injuries, which all pertain

to gaming on the Allotment, have no causal connection to the ILCA transfer.

The circumstances under which an Indian tribe may engage in gaming activity are

specified by IGRA. There are many restrictions on Indian gaming that have nothing to do with

ownership of the land, so the mere fact that the Quapaw Tribe is now the trust beneficiary of the

Meh-No-Bah Allotment does not mean that gaming is suddenly allowed on the land. For

example, “IGRA requires tribes that engage or intend to engage in ‘class III gaming’ . . . to

negotiate, enter into, and comply with a compact between the tribe and the state in which the

gaming will occur.” San Manuel Indian Bingo & Casino v. Nat’l Labor Relations Bd., 475 F.3d

1306, 1317 (D.C. Cir. 2007) (citing 25 U.S.C. § 2710(d)(1)(C), (3)(A)).

/10

In addition, Class III

Indian gaming can be lawful “only if authorized by a tribal ordinance or resolution approved by

the Chairman of the National Indian Gaming Commission.” Id. at 1318 (citing 25 U.S.C. §

2710(d)(1)(A)). To suggest that the mere transfer of the Allotment from one trust status to

another authorized or caused the Quapaw Tribe’s gaming to go forward is to ignore the entire

statutory scheme that was designed to regulate Indian gaming.

Plaintiff’s misapprehension of the cause and effect at work in this case is embodied in its

statement, “As a result of defendants’ failure to comply with the law, the Quapaw casino resort

IGRA divides gaming activities into three classes. Class I gaming includes social games for

/10
minimal prizes and traditional forms of gaming in connection with tribal ceremonies or
celebrations. 25 U.S.C. § 2703(6). Class I gaming is within the exclusive jurisdiction of the
tribe and not regulated under IGRA. Id. § 2710(a)(1). Class II gaming includes games of chance
commonly known as bingo, including pull-tabs, lotto, punch boards, tip jars, and instant bingo,
and card games which are not banked. Id. § 2703(7). Class III gaming is all forms of gaming
that are not Class I or II, including banked card games (such as blackjack) and slot machines. Id.
§ 2703(8). Class II and Class III gaming are subject to IGRA.

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has been under construction for many months.” Am. Compl. at 19. This statement displays

Plaintiff’s failure to understand ILCA, IGRA, and the relationship between the United States and

the Tribe. So far, the only role played by the United States has been that of facilitating the

transfer of the beneficial interest in the Meh-No-Bah Allotment from individuals to the Tribe.

The United States did not endorse, authorize, allow, or cause any construction for the proposed

casino. The Tribe has engaged in construction activities on its own – activities which, to date,

involve no violation of law of which the United States is aware. The United States has taken no

action to allow or authorize gaming by the Tribe on the Allotment. Certainly the ILCA transfer

did not have that effect. Accordingly, Plaintiff’s injuries, which are all related to prospective

gaming by the Tribe, simply were not caused by the federal action Plaintiff seeks to overturn –

the ILCA transfer.

/11

c. The ILCA transfer had no effect on the lawfulness of gaming on the Meh-
No-Bah Allotment because the land was “Indian lands” both before and after
the transfer.

Finally, the ILCA transfer did not cause Plaintiff’s gaming-related injuries because the

Allotment’s eligibility for use as lawful gaming land was identical both before and after the

transfer occurred. When lawful gaming is permitted, it is permitted on “Indian lands,” a term

which includes individual as well as tribal trust or restricted land. 25 U.S.C. § 2703(4). Under

IGRA’s statutory definition, the Meh-No-Bah Allotment was “Indian lands” both before the

transfer, when the trust beneficiaries were individual Indians, and after the transfer, when the

The only injury Plaintiff alleges to have already occurred is damage to its roads by the Tribe’s
/11
construction equipment. Am. Compl. at 14. It is hard to imagine how the transfer of beneficial
interest under ILCA from individual Indians to the Tribe, which spoke not at all to whether the
Tribe could operate heavy equipment, could be deemed the cause of damage to Plaintiff’s roads.

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trust beneficiary became the Tribe. Accordingly, the Allotment’s eligibility for gaming remained

the same after the ILCA transfer as it was before the transfer. Plaintiff’s claimed injuries, which

will stem from future gaming on the parcel, thus will not have been caused by the ILCA transfer.

Without an injury caused by that land transfer – the only federal action at issue – Plaintiff lacks

constitutional standing to seek to invalidate the transfer.

IGRA “provide[s] a statutory basis for the operation of gaming by Indian tribes as a

means of promoting tribal economic development, self-sufficiency, and strong tribal

governments.’” TOMAC, 433 F.3d at 865 (quoting 25 U.S.C. § 2702(1)). As noted above, the

statute places many restrictions on Indian gaming. One of these restrictions is that “[a] tribe may

conduct gaming only on ‘Indian lands’ within its jurisdiction.” CETAC, 492 F.3d at 462 (citing

25 U.S.C. § 2710(b)(1), (d)(1)(A)(I)). IGRA includes a definition of “Indian lands”:

(A) all lands within the limits of any Indian reservation; and

(B) any lands title to which is either held in trust by the United States for the
benefit of any Indian tribe or individual or held by any Indian tribe or individual
subject to restriction by the United States against alienation and over which an
Indian tribe exercises governmental power.


Id. (citing 25 U.S.C. § 2703(4)).

The definition includes trust or restricted land held by or for “any Indian tribe or

individual.” 25 U.S.C. § 2703(4)(B) (emphasis added). Thus, the Meh-No-Bah Allotment was

eligible for gaming before and after the ILCA transfer.

/12

The Tribe must, of course, comply with

The Meh-No-Bah Allotment consists of “lands located within the Quapaw Tribe of

/12
Oklahoma’s jurisdictional boundary.” AR 19, 63, 111, 132. See also Ex. 1(B) to Pl.’s Prelim.
Inj. Mem., Bureau of Indian Affairs Letter to NIGC (confirming that the Meh-No-Bah Allotment
lies within the former historic territory of the Tribe and is tantamount to “former reservation
lands” under IGRA); id. Ex. 2(C) at 9-11, Ward Letter to NIGC (describing Tribe’s exercise of
jurisdictional and governmental powers over the Allotment).

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the other restrictions and procedures laid out in IGRA in order to game lawfully, but the simple

change in trust beneficiary from the individual Indians to the Tribe did not affect the Allotment’s

status as “Indian lands” and, therefore, had no effect one way or the other on the land’s eligibility

to host gaming.

Plaintiff contends that the Meh-No-Bah Allotment lost its restricted status sometime

before 1921, and thus would not have satisfied the “Indian lands” definition before being

transferred to the Tribe. Am. Compl. at 11. However, contrary to Plaintiff’s allegation, the Meh-

No-Bah Allotment has continuously been treated as restricted Indian lands. The deeds

transferring the interests in the Allotment clearly indicate those interests’ restricted status. See

AR 19, 63, 111, 132, 140. Accordingly, Plaintiff’s alleged gaming-related injuries cannot be

causally linked to the ILCA transfer.