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Their hubris knows no bounds . . .
I hope the Plaintiffs move for sanctions and fees under the Equal Access to Justice Act!
The two principle contentions on the NIGC's motion to remand are:
1) new regulations were promulgated and will come into effect in late August; and
2) 25 USC 2719 only prohibits gambling on land acquired in trust after October 17, 1988 and since the Buffalo site is in restricted fee status the prohibition does not apply.
A case is determined by the state of the law at the time of the decision and therefore the new regulations were not relevant to the decision made on July 8, 2008.
In judge Skretny's decision dated July 8, 2008 he ruled that:
"While the parties do not challenge Chairman Hogen's conclusion in this regard, the SNI does. In its amicus brief, the SNI argues that a plain reading of section 20 compels the conclusion that the IGRA does not prohibit gaming on after-acquired restricted fee land. Rather, the statute's plain terms unambiguously limit the section 20 prohibition to trust land. Docket No. 58 at 51-52 (citing, inter alia, Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992) (when the words of a statute are unambiguous, [*173] courts must presume that a legislature says in a statute what it means); United States v. Monsanto, 491 U.S. 600, 610, 109 S. Ct. 2657, 105 L. Ed. 2d 512 (1989), (Congress's intent is best determined by looking to the statutory language that it chooses); Keweenaw Bay Indian Cmty. v. United States, 136 F.3d 469, 474 (6th Cir.), cert. denied, 525 U.S. 929, 119 S. Ct. 335, 142 L. Ed. 2d 277 (1998) ("Absent an ambiguity or a result at odds with a statute's purposes, we must interpret a statutory provision according to its plain meaning.") (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989)).
Were the Court to start and end with the ordinary and common meaning of the terms employed in section 20, devoid of statutory and historical context, it might arrive at the reading advanced by the SNI. However, as the SNI has urged throughout its brief, issues relating to Indian law cannot be considered without historical context. See Sac & Fox Tribe v. Licklider, 576 F.2d 145, 147 (8th Cir.), cert. denied, 439 U.S. 955, 99 S. Ct. 353, 58 L. Ed. 2d 346 (1978) ("Federal Indian law is a subject that cannot be understood if the historical dimension of existing law is ignored.") (quotations omitted). Moreover, statutory interpretation requires consideration of the entire statute, not an isolated provision or phrase. Statutory language should be given a meaning that is most in accord with context and ordinary usage, and also most compatible with the surrounding body of law. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528, 109 S. Ct. 1981, 104 L. Ed. 2d 557 (1989) (Scalia, J., concurring).
As the historical discussion at Point II, supra, makes clear, during the almost two centuries of federal-Indian relations prior to the IGRA's enactment, lands were set aside for or held by Indians in a number of ways, including reservations, non-reservation trust land, non-reservation restricted fee land, and allotments. However, well before the IGRA's enactment, federal Indian policy had stabilized. By 1988, there remained a single statutory mechanism for the acquisition of new land for Indians; the IRA's trust provision, enacted in 1934. 25 U.S.C. § 465. There was no statutory mechanism in 1988 for taking land into restricted fee status.
Courts "assume that Congress is aware of existing law when it passes legislation." Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990) (citation omitted). As the IRA's trust provision was the only legally recognized manner in which new land could be acquired for Indians when the IGRA was enacted, the section 20 prohibition was all-inclusive on its face. After setting out what was then an all-inclusive prohibition, Congress carefully defined specific exceptions thereto. Given the existing state of the law and Congress's careful construction, the Court finds that Congress intended to prohibit gaming on all after-acquired land, unless one of the section 20 exceptions applies. The alternative interpretation suggested by the SNI--Congress intended that if there were a subsequent change in the law regarding the manner in which lands could be set aside for Indians, section 20 would be inapplicable and newly acquired Indian land automatically would be gaming-eligible, without restriction--is clearly at odds with section 20's purpose. Where "the literal application of a statute will produce a result demonstrably at odds with the intent of the drafters… the intention of the drafters, rather than the strict language, controls." Ron Pair Enters., 489 U.S. at 242 (internal citation and quotation marks omitted).
The Court also rejects the SNI's contention that Congress's use of the phrase "trust or restricted status" within section 20 is dispositive of congressional intent to limit the prohibition to trust land only." Citizens Against Casino Gambling v. Hogen, 2008 U.S. Dist. LEXIS 52395, 174-176 (W.D.N.Y. July 8, 2008)
Since Judge Skretny has made this determination based on statutory construction the new regulations to the extent they are inconsistent with the statute as construed by the court are invalid and cannot be made the basis for changing the interpretation.
Originally Posted by dtwarren
