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IGRA Case Analysis

Notwithstanding the court’s decision, it is possible that other tribes will be able to successfully challenge the provision in the Ho-Chunk compact. There is persuasive precedent from other jurisdictions authorizing a challenge under the APA to the Secretary of the Interior’s decision to approve a compact. Artichoke Joe’s v. Norton, 216 F.Supp.2d 1084 (E.D.Cal. 2002), aff’d, 353 F.3d 712 (9th Cir. 2003), cert. denied, 125 S.Ct 51 (2004).

In Artichoke Joe’s, a group of card clubs and charities that were prohibited from offering high stakes gambling brought suit against state and federal defendants, seeking to enjoin existing and future compacts between the State of California and Indian tribes in the state.

The district court held that neither IGRA nor the Johnson Act precluded review under the APA, and that the tribes were not necessary parties to the suit, because their interests were adequately represented by the Secretary. Id., 216 F.Supp,. at 1090-1091.

The court wrote, "There is nothing in the relevant structure of IGRA or the Johnson Act to suggest that Congress intended to preclude the type of APA review sought here by the plaintiffs. … The federal defendants are correct that IGRA contemplates a multitude of specific causes of action that may be brought by specified entities or persons. But the inclusion of remedies in IGRA for specific entities or persons only supports an inference that Congress intended to preclude others from bringing the same kind of claims under the APA (cites omitted)." Id., at 1112-1113.

The court continued, "The federal defendant’s implicit reliance on the legal maxim expressio unius est exclusio alterius — the expression of one implies the exclusion of others — to argue that the inclusion of specific remedies for some parties impliedly precludes all other parties and all other APA claims is not warranted. The starting point of preclusion analysis is ‘the strong presumption that Congress intends judicial review of administrative action.’ This presumption is inconsistent with the federal defendants’ reliance on a robust expressio unius doctrine because it would create the reverse presumption, one against APA review for most statutes." Id., at 1113.

Rejecting the argument that review was foreclosed because the decision to approve a compact was committed to the secretary’s discretion, the court in Artichoke Joe’s quoted the Supreme Court’s decision in FEC v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777 (1998), as follows: "those adversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision upon an improper legal ground. If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency’s decision and remand the case — even though the agency … might later, in the exercise of its lawful discretion, reach the same result for a different reason." Artichoke Joe’s, at 1115-1116.

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Whether the Seventh Circuit would ultimately adopt the reasoning of the California federal court is, of course, uncertain. But there is no reason why a party seeking to challenge a gaming compact should forfeit the issue of whether the Secretary’s decision is even subject to judicial review."

The decision in Artichoke Joe’s also supplies persuasive authority to oppose any argument by the Ho-Chunk that they are a necessary party to the action, but cannot be joined because of sovereign immunity.

The court wrote, "although the tribes can claim a legal interest in this lawsuit, they are not necessary parties because their legal interest can be adequately represented by the Secretary. … [F]or a conflict of interest to preclude a tribe’s representation by the Secretary, there must be a ‘clear potential for inconsistency between the Secretary’s obligations to the Tribes and its [other] obligations’ that arises ‘in the context of the pending case.’ (citations omitted)." Id., at 1118-1119.

– David Ziemer

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David Ziemer can be reached by email.

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