Redding Rancheria v. Kenneth Salazar

*709 Opinion by Judge SCHROEDER; Partial Concurrence and Partial Dissent by Judge CALLAHAN.

OPINION

The Redding Ranchería (“the Tribe”) is a very small Indian tribe trying to restore the Reservation that was taken away by the United States during the mid-Twentieth century era of assimilation. See City of Roseville v. Norton, 348 F.3d 1020, 1022 (D.C.Cir.2003); see also William C. Canby, American Indian Law in a Nutshell 27-30 (5th ed.2009) (describing the federal government’s general policy of terminating tribal recognition in order to assimilate Indian populations); Felix S. Cohen, Federal Indian Law § 1.06 (2005) (noting that, starting in the 1950s, the federal government began an official “policy of rapid assimilation through termination”). The Tribe also wishes to establish a successful gaming operation on its land. For that purpose, it has asked the Department of the Interior to take into trust a substantial parcel the Tribe recently acquired for the construction and operation of a new gambling casino. The Secretary of the Interi- or (“Secretary”) denied the request.

The Indian Gaming Regulatory Act (“IGRA”) generally bans gaming on lands that tribes acquire after its…

concurring and dissenting:

I concur in parts I, II and III of the majority’s opinion. I agree that the regulation here at issue is reasonable, the Indian canon does not apply, and there has *716 been no unexplained change in agency policy. In other words, I agree that the Secretary reasonably rejected the Tribe’s challenges to the underlying regulation. However, I dissent from part IV of the opinion because the Tribe did not fairly prompt the Secretary of the United States Department of Interior (“the Secretary” or “the Department”) to consider its alleged offer to move its casino and did not ask the district court to consider the alleged offer to move the casino. Moreover, on this record, there is no basis for suggesting that the such an offer would merit relief under the regulation. Our sympathy for a small, struggling tribe does not justify formalizing a claim that was never clearly presented to the Secretary, was not fairly presented to the district court, and is of questionable merit. Our opinion should conclude this litigation.

I

As the opinion notes, the Tribe made its application in 2003. The application was supplemented on several occasions, including on December 22,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REDDING RANCHERIA, No. 12-15817 Plaintiff-Appellant, D.C. No. v. 3:11-cv-01493- SC SALLY JEWELL, in her official capacity as Secretary of the United States Department of the interior; OPINION KEVIN K. WASHBURN, in his official capacity as the Assistant Secretary for Indian Affairs for the United States Department of the Interior,* Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Samuel Conti, Senior District Judge, Presiding

Argued and Submitted April 8, 2014—San Francisco, California

Filed January 20, 2015

Before: Mary M. Schroeder, Kermit Victor Lipez**, and Consuelo M. Callahan, Circuit Judges.

* Sally Jewell and Kevin K. Washburn are substituted for their predecessors pursuant to Fed. R. App. P. 43(c)(2). ** The Honorable Kermit Victor Lipez, Senior United States Circuit Judge for the First Circuit, sitting by designation. Opinion by Judge Schroeder; Partial Concurrence and Partial Dissent by Judge Callahan

SUMMARY***

Tribal Matters

The panel affirmed the…