`FILED
`United States Court of Appeals
`Tenth Circuit
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`July 3, 2023
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`Christopher M. Wolpert
`Clerk of Court
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`PUBLISH
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`UNITED STATES COURT OF APPEALS
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`FOR THE TENTH CIRCUIT
`_________________________________
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`No. 21-3097
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`STATE OF KANSAS, EX REL. KRIS
`KOBACH, Attorney General; THE
`SUMNER COUNTY, KANSAS,
`BOARD OF COMMISSIONERS;
`CITY OF MULVANE, KANSAS; SAC
`AND FOX NATION OF MISSOURI
`IN KANSAS AND NEBRASKA;
`IOWA TRIBE OF KANSAS AND
`NEBRASKA,
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` Plaintiffs - Appellants,
`
`v.
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`UNITED STATES DEPARTMENT OF
`INTERIOR; UNITED STATES
`DEPARTMENT OF THE INTERIOR,
`BUREAU OF INDIAN AFFAIRS,
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` Defendants - Appellees.
`_________________________________
`
`Appeal from the United States District Court
`for the District of Kansas
`(D.C. No. 2:20-CV-02386-HLT-GEB)
`_________________________________
`
`Mark S. Gunnison of Payne & Jones, Chartered, Overland Park, Kansas (Derek
`Schmidt, Attorney General; Jeffrey A. Chanay; Stephen Phillips; and Brant M.
`Laue, Attorneys, Office of Kansas Attorney General, Topeka, Kansas;
`Christopher J. Sherman, Stephen D. McGiffert, and Anna E. Wolf of Payne &
`Jones, Chartered, Overland Park, Kansas; David R. Cooper of Fisher Patterson
`Sayler & Smith, LLP, Topeka, Kansas; James A. Walker and Tyler E. Heffron
`of Triplett Woolf Garretson, LLC, Wichita, Kansas; Christopher C. Halbert of
`Halbert Law, L.L.C., Hiawatha, Kansas, with him on the briefs) for Plaintiffs-
`Appellants.
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`Tamara Rountree, Attorney, U.S. Department of Justice, Environmental &
`Natural Resources Division (Todd Kim, Assistant Attorney General, with her
`on the brief) for Defendants-Appellees.
`_________________________________
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`Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
`_________________________________
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`PHILLIPS, Circuit Judge.
`_________________________________
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`A congressional command to compensate the Wyandotte Tribe for its
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`claimed loss of millions of acres in the Ohio River Valley has morphed into a
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`thirty-year dispute over ten acres in a Wichita suburb. In the 1700s, as settlers
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`began occupying their land, the Wyandot people agreed to a series of treaties
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`that removed them to present-day Kansas and then later to Oklahoma. In 1951,
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`the Wyandotte Tribe sought compensation in the Indian Claims Commission. In
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`the late 1970s, the Commission agreed that the treaties rested on
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`“unconscionable” consideration and awarded the Wyandotte Tribe about $3
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`million in damages. In 1984, Congress distributed the awarded funds,
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`earmarking $100,000 for the Wyandotte Tribe to purchase lands for the
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`Secretary of the Interior to take into trust.
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`In 1992, eight years after Congress’s enacted remedy, the Tribe used
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`$25,000 of those funds to buy a ten-acre lot in Kansas called the Park City
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`Parcel. The next year, the Tribe applied for trust status on the Park City Parcel
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`under Congress’s 1984 enactment, but the Secretary denied the application. The
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`Tribe tried again in 2008, reapplying for trust status on the Park City Parcel
`2
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`under Congress’s 1984 enactment. The Tribe wished to set up gaming
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`operations on the Park City Parcel once the Secretary approved the lot for
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`federal trust status.
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`Since then, the State of Kansas has opposed the Tribe’s efforts to conduct
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`gaming on the Park City Parcel. The State has disputed the Tribe’s claim that
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`its purchase came from the allocated $100,000 in congressional funds. And the
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`State has argued that no exception to the Indian Gaming Regulatory Act
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`(IGRA) authorizes the Tribe to operate gaming on the lot.
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`In 2020, the Secretary rejected the State’s arguments, approving the
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`Tribe’s trust application and ruling that the Tribe could conduct gaming
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`operations on the Park City Parcel. The district court agreed. And so do we. We
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`affirm the ruling that the Secretary was statutorily bound to take the Park City
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`Parcel into trust and to allow a gaming operation there under IGRA’s
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`settlement-of-a-land-claim exception.
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`BACKGROUND
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`I.
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`Legal Background
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`In the early 1700s, the Iroquois Confederacy displaced the Wyandot
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`people from their ancestral homes in present-day Ontario. The Wyandot
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`migrated to lands in southeastern Michigan, northern Ohio, and western
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`Pennsylvania. But near the end of the 1700s, American settlers began
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`occupying these lands. To head off conflict, the United States entered a series
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`of treaties with the Wyandot people, which ceded this land to the United States.
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`3
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`Under an 1842 treaty, the Wyandot people ceded millions of acres in the
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`Ohio River Valley to the United States in exchange for lands west of the
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`Mississippi River. Per the treaty’s terms, the United States funded the
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`Wyandot’s acquisition of about 23,000 acres in present-day Wyandotte County,
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`Kansas. But in 1855, the Wyandot agreed to dissolve and cede back to the
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`United States all their Kansas holdings (except a tribal cemetery). Some
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`Wyandot opposed the dissolution, and the United States soon after removed the
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`dissenters to present-day Oklahoma. In 1867, Congress recognized those few
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`dissenters as the Wyandotte Tribe, today known as the Wyandotte Nation.1
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`A.
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`The Indian Claims Commission Act
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`Nearly a century later, Congress passed the Indian Claims Commission
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`Act, Pub. L. No. 79-726, 60 Stat. 1049 (1946) (ICCA). The ICCA created the
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`Indian Claims Commission (ICC), “a quasi-judicial body to hear and determine
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`all tribal claims against the United States that accrued before August 13, 1946.”
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`Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1460 (10th Cir. 1987).
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`Congress authorized the ICC to adjudicate “claims which would result if the
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`treaties, contracts, and agreements between the claimant and the United States
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`were revised on the ground of fraud, duress, unconscionable consideration,
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`1 We refer to the Wyandotte Nation as “the Tribe.” We note that the
`record reflects that the spelling of the Tribe’s name has changed over the years
`from “Wyandot” to “Wyandotte.”
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`4
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`mutual or unilateral mistake, whether of law or fact, or any other ground
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`cognizable by a court of equity.” § 2(3), 60 Stat. at 1050.
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`As an Article I court and agent of Congress, the ICC adjudicated Native
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`American land claims for the U.S. government. Until then, “Indian tribes had to
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`petition Congress for special jurisdictional acts authorizing the Court of Claims
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`to hear their grievances against the United States.” Pueblo of Jemez v. United
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`States, 790 F.3d 1143, 1152 (10th Cir. 2015) (cleaned up). The “chief purpose”
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`of the ICCA was “to dispose of the Indian claims problem with finality.” H.R.
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`Rep. No. 1466, at 10 (1945). “A final determination against a claimant . . . shall
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`forever bar any further claim or demand against the United States arising out of
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`the matter involved in the controversy.” § 22(b), 60 Stat. at 1055.2
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`Early on, the ICC “construed the ICCA as limiting the available relief ‘to
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`that which is compensable’ in money.” Navajo Tribe, 809 F.2d at 1461
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`(citations omitted); § 2, 60 Stat. at 1050. The ICC interpreted the ICCA as
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`“reflect[ing] a congressional policy that tribes with valid claims would be paid
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`in money” and that “[n]o lands would be returned to a tribe.” Navajo Tribe, 809
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`F.2d at 1461 (citing Authorizing Appropriations for the Indian Claims
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`Commission for Fiscal Year 1977: Hearing on H.R. 11909 Before the Subcomm.
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`2 Indeed, the ICCA directs that ICC judgments become final when filed
`with Congress. Id. § 22(a), 60 Stat. at 1055; see also United States v. Dann,
`470 U.S. 39, 46-47 (1985) (surveying legislative history to conclude that
`§ 22(a) of ICCA meant that the ICC “should, unless reversed [by the Court of
`Claims], have the same finality as judgments of the Court of Claims”
`(alteration in original) (quoting H.R. Rep. No. 2693, at 8 (1946) (Conf. Rep.)).
`5
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`on Indian Affs. of the H. Comm. on Interior & Insular Affs., 94th Cong. 48
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`(1976)).
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`B.
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`Congressional Enactments Responding to ICC Judgments
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`In July and August 1951,3 the Tribe sued the United States in the ICC.
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`The Tribe asserted aboriginal title to several tracts of land in northern Ohio,
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`northeastern Indiana, and southeastern Michigan. The Tribe asserted that it had
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`forsaken those lands in a series of unconscionable treaties with the United
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`States between the 1790s and 1840s. In decisions on four separate dockets in
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`the late 1970s, the ICC agreed that the consideration given for the lands “was
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`so grossly inadequate as to render it unconscionable within the meaning of
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`section 2(3) of the Indian Claims Commission Act.” It ordered as compensation
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`$561,424 for lands in north-central Ohio (Docket 139), $2,348,679.60 for lands
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`in northwestern Ohio and northeastern Indiana (Docket 141), and $200,000 for
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`lands in northwestern Ohio and southeastern Michigan (Dockets 212 and 213).
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`Soon after the ICC’s final judgments, Congress appropriated funds to
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`cover those judgments. Act of Dec. 20, 1982, Pub. L. No. 97-371, § 1, 96 Stat.
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`1813, 1813 (noting that funds “in satisfaction of judgments granted to the
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`Wyandot” were “appropriated on October 31, 1978, and March 2, 1979”). But
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`Congress waited until 1982 to enact legislation distributing the funds to the
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`3 The ICCA set a five-year statute of limitations for all claims, ending
`five years “after the date of the approval of” the ICCA—August 13, 1951. § 12,
`60 Stat. at 1052; see also Navajo Tribe, 809 F.2d at 1460-61.
`6
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`Tribe and dictating how the Tribe could expend them. In that statute, PL
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`97-371, Congress distributed funds to cover the judgments in ICC Docket 139
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`and ICC Docket 141. Id. Of the total funds, Congress allocated $100,000 to “be
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`utilized to purchase land for the tribe to be held in trust status by the Secretary
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`[of the Interior].” Id. § 3(b)(1), 96 Stat. at 1813.
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`In 1984, Congress repealed its 1982 law and enacted the presently
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`operative statute detailing the distribution of the judgment funds. That statute,
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`PL 98-602, distributed funds to cover judgments from all four ICC dockets,
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`“provid[ing] for the use and distribution of certain funds awarded the
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`Wyandotte Tribe of Oklahoma.” Act of Oct. 30, 1984, Pub. L. No. 98-602,
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`§ 101, 98 Stat. 3149, 3149. PL 98-602 distributed to the Tribe about $4.7
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`million in funds,4 80% to the Tribe’s members for compensation and 20% to the
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`Tribe itself for land acquisition and tribal development. Id. § 105, 98 Stat. at
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`3151. To that end, Congress decreed that the funds allocated for land
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`acquisition and tribal development “shall be used and distributed in accordance
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`with the following general plan”:
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`(1) A sum of $100,000 of such funds shall be used for the purchase
`of real property which shall be held in trust by the Secretary [of the
`Interior] for the benefit of such Tribe.
`
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`4 We assume the difference between the ICC awards (about $3 million)
`and the congressional distribution (about $4.7 million) accounts for “any
`interest or investment income accrued or accruing” on the ICC awards.
`§ 101(a), 98 Stat. at 3149.
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`7
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`(2) The amount of such funds in excess of $100,000 shall be held in
`trust by the Tribal Business Committee of such Tribe for the benefit
`of such Tribe.
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`Id. § 105(b)(1)-(2). By its terms, the statute allocates funds for separate
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`purposes: (1) $100,000 to buy new land under section 105(b)(1) (which we’ll
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`call Section 105(b)(1) Funds), and (2) the remaining funds to be spent “for the
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`benefit” of the Tribe (or Section 105(b)(2) Funds). Id. PL 98-602 also mandates
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`that the Secretary of the Interior hold in trust any land purchased with Section
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`105(b)(1) Funds. Id. § 105(b)(1).
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`C.
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`The Indian Gaming Regulation Act
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`In 1988, Congress passed the Indian Gaming Regulation Act, 25 U.S.C.
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`§§ 2701-2721. Congress passed IGRA to “provide clear standards or
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`regulations for the conduct of gaming on Indian lands” and “to promote tribal
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`economic development, tribal self-sufficiency, and strong tribal government.”
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`Id. § 2701(3)-(4); see also id. § 2702(1) (declaring the purpose of IGRA as
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`“provid[ing] a statutory basis for the operation of gaming by Indian tribes as a
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`means of promoting tribal economic development”). Indeed, Congress meant
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`IGRA “to create a framework for states and Indian tribes to cooperate in
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`regulating on-reservation tribal gaming.” Navajo Nation v. Dalley, 896 F.3d
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`1196, 1201 (10th Cir. 2018) (collecting cases).
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`Under IGRA’s general rule, gaming “shall not be conducted on lands
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`acquired by the Secretary in trust for the benefit of an Indian tribe after
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`October 17, 1988.” 25 U.S.C. § 2719(a). But subsection (b)(1)(B)(i) provides
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`8
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`an exception when “lands are taken into trust as part of . . . a settlement of a
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`land claim.” IGRA does not define “settlement of a land claim.” See id. § 2703.
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`In 2008, the Bureau of Indian Affairs promulgated regulations clarifying
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`“[w]hen can gaming occur on newly acquired lands under a settlement of a land
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`claim?” 25 C.F.R. § 292.5 (2008); see also id. § 292.1 (“This part contains
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`procedures that the Department of the Interior will use to determine whether
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`these exceptions [under IGRA] apply.”).5 The regulations provide “criteria for
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`meeting the requirements” of IGRA’s settlement-of-a-land-claim exception. 25
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`C.F.R. § 292.5. They set forth three ways for the Secretary to permit gaming on
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`“newly acquired land”:
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`
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`The Secretary “[a]cquired [the land in trust] under a settlement
`of a land claim that resolves or extinguishes with finality the
`tribe’s land claim in whole or in part, thereby resulting in the
`alienation or loss of possession of some or all of the lands
`claimed by the tribe, in legislation enacted by Congress”;
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`5 The regulations define “land claim”:
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`Land claim means any claim by a tribe concerning the impairment
`of title or other real property interest or loss of possession that:
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`(1) Arises under the United States Constitution, Federal common
`law, Federal statute or treaty;
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`(2) Is in conflict with the right, or title or other real property interest
`claimed by an individual or entity (private, public, or governmental);
`and
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`(3) Either accrued on or before October 17, 1988, or involves lands
`held in trust or restricted fee for the tribe prior to October 17, 1988.
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`25 C.F.R. § 292.2.
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`9
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`The Secretary “[a]cquired [the land in trust] under a settlement
`of a land claim” that “[i]s executed by the parties, which
`includes the United States, returns to the tribe all or part of
`the land claimed by the tribe, and resolves or extinguishes
`with finality the claims regarding the returned land”; or
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`The Secretary “acquired [the land in trust] under a settlement
`of a land claim” that “[i]s not executed by the United States,
`but is entered as a final order by a court of competent
`jurisdiction or is an enforceable agreement that in either case
`predates October 17, 1988 and resolves or extinguishes with
`finality the land claim at issue.”
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`Id. § 292.5(a)-(b).
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`D.
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`The Shriner Tract Litigation
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`In 1996, the Tribe bought a half-acre lot in downtown Kansas City,
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`Kansas, called the Shriner Tract. Though that land is not at issue in the present
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`appeal, the protracted litigation around it helps inform our analysis.
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`1.
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`The Shriner Tract Trust Determination
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`In 1996, the Tribe purchased the Shriner Tract for $180,000. To fund that
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`purchase, the Tribe pledged the contents of an investment account (which
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`included assets purchased with Section 105(b)(1) Funds) as collateral for a
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`$180,000 loan with its investment broker.6 Also during 1996, the Tribe applied
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`6 These brokerage loans are called margin-account loans. As we
`understand it, the Tribe opted for a margin-account loan because “the interest
`expense [associated with the margin loan] incurred is less than the interest and
`dividend income earned on the investments.”
`
`PL 98-602 does not define how the Tribe may “use” its statutory funds to
`buy land. In the litigation following the Tribe’s Shriner Tract purchase, the
`(footnote continued)
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`10
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`to the Secretary to hold the Shriner Tract in trust. Later that year, the Secretary
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`ruled that PL 98-602 mandated taking the Shriner Tract into trust and that
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`IGRA authorized the Tribe to conduct gaming on the land under the statute’s
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`settlement-of-a-land-claim exception. In June 1996, the Secretary published
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`notice in the Federal Register that the Bureau intended to hold the Shriner Tract
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`in trust for the Tribe. Indian Gaming, 61 Fed. Reg. 29757, 29757-58 (June 12,
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`1996).
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`That notice spawned protracted litigation over the Shriner Tract. As
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`relevant here, when the dispute first reached us, we remanded after being
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`uncertain whether the Tribe had used solely Section 105(b)(1) Funds to
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`purchase the Shriner Tract. Sac & Fox Nation of Mo. v. Norton, 240 F.3d 1250,
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`1263-64 (10th Cir. 2001). Our review of the administrative record left us
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`unsure what funds the Tribe had expended in the purchase. We expressed
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`concern that “documents in fact suggest that nearly half of the funds used to
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`acquire the Shriner Tract were non-Pub. L. 98-602 funds.” Id. at 1263. We
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`identified, for instance, a letter from the Tribe that stated that the Shriner Tract
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`State “posit[ed] that the Shriner Tract was not purchased with Pub.L. 98-602
`funds” because “the source of the $180,000 was a loan, and not the actual
`Pub.L. 98-602 funds.” Governor of Kansas v. Norton, 430 F. Supp. 2d 1212,
`1222 (D. Kan. 2006). The district court rejected that interpretation, ruling that
`the Secretary did not act arbitrarily and capriciously by allowing the Tribe to
`use Section 105(b)(1) Funds as pledged collateral for a loan on the Shriner
`Tract. Id. at 1223. We agree with the district court’s analysis and find that the
`Tribe used its statutory funds by pledging its Section 105(b)(1) Funds as
`collateral for margin-account loans.
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`11
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`would be purchased with both “funds wired from the Pub.L. 98-602 trust
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`account” and funds from “another tribal account.” Id. (cleaned up). So we
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`remanded to the Secretary for a more precise accounting of whether the Tribe
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`had used solely Section 105(b)(1) Funds to purchase the Shriner Tract. Id. at
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`1264.
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`On remand, the Secretary determined that the Tribe had purchased the
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`Shriner Tract solely from the $100,000 principal and the associated investment
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`income from it. The Secretary relied on a report from an accounting firm,
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`KPMG, that valued the Tribe’s Section 105(b)(1) Fund principal and earnings
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`at more than $212,000 when the Tribe purchased the Shriner Tract. See
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`Determination of Trust Land Acquisition, 67 Fed. Reg. 10926, 10926 (Mar. 11,
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`2002) (“At the time of the July 12, 1996 disbursement of $180,000 for the
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`Shriner’s Building purchase, the remaining accumulated amount of section 602
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`funds and the dividends and interest of those funds, was $212,169.65.”). The
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`Secretary further interpreted PL 98-602 as authorizing the Tribe to use the
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`$100,000 principal and accrued earnings on that principal to purchase the
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`Shriner Tract.
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`The federal district court affirmed the Secretary’s determinations that the
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`Tribe had sufficient section 105(b)(1) principal and earnings to purchase the
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`Shriner Tract. Governor of Kansas v. Norton, 430 F. Supp. 2d 1204, 1221-25
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`(D. Kan. 2006). And it affirmed that PL 98-602 required the Secretary to take
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`into trust land that the Tribe bought with both section 105(b)(1) principal and
`12
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`investment income on it. Id. at 1217-21. On appeal, we did not reach the merits
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`because we ruled that we lacked appellate jurisdiction under the Quiet Title
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`Act. Governor of Kansas v. Kempthorne, 516 F.3d 833, 846 (10th Cir. 2008),
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`abrogated by Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
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`Patchak, 567 U.S. 209 (2012).
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`Still, we may consider the district court’s earlier merits-based opinion as
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`persuasive authority. Cf. Rio Grande Silvery Minnow v. Bureau of Reclamation,
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`601 F.3d 1096, 1133 (10th Cir. 2010) (“Since the district court’s opinions will
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`remain ‘on the books’ even if vacated, albeit without any preclusive effect,
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`future courts and litigants will be able to consult their reasoning.” (cleaned up)
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`(quoting Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 354
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`(D.C. Cir. 1997))).
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`In Governor of Kansas v. Norton, the district court reviewed the
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`administrative record of the Tribe’s Shriner Tract purchase and concluded that
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`the Tribe had purchased the Shriner Tract solely with Section 105(b)(1) Funds
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`and earnings. 430 F. Supp. 2d at 1223-24. The district court began by
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`evaluating whether PL 98-602 authorized the Tribe “to purchas[e] the Shriner
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`Tract with only the original $100,000, or if [it] may use additional interest or
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`investment income accrued from the $100,000.” Id. at 1218. It concluded that
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`PL 98-602 was ambiguous on this question and afforded the Secretary’s
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`interpretation Chevron deference. Id. at 1218-20. In so holding, the district
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`court deferred to the Secretary’s position that the statute’s including $100,000
`13
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`for land acquisition did not exclude investment earnings from that principal
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`amount to buy land under section 105(b)(1). Id. at 1219-20 (“Applying that
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`guidance to Pub.L. 98-602, the Secretary concluded that because the purpose
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`of Pub.L. 98-602 was to provide benefits to the Tribe by paying settlements
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`awarded by the I.C.C., there was nothing indicating Congress intended to
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`preclude the addition of investment income to the original $100,000, either in
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`the legislative history or the record of the case.”).
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`That decided, the district court turned to whether the Tribe had
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`exclusively used Section 105(b)(1) Funds and earnings to buy the Shriner Tract.
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`The district court affirmed the Secretary’s determination that the Tribe had
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`done so, concluding that substantial evidence supported the Secretary’s finding.
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`Id. at 1222. The district court also affirmed the Secretary’s ruling that the Tribe
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`could use a margin loan to purchase the Shriner Tract. Id. at 1222-23. And the
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`district court approved of the Secretary’s reliance on the KPMG report rather
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`than competing evidence. Id. at 1223-25 (“The mere presence of contradictory
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`evidence, however, does not invalidate [the agency’s] actions or decisions.”
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`(citing Wyo. Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1241 (10th Cir.
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`2000))).
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`2.
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`The Shriner Tract Gaming Determination
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`Later, in a separate appeal, the district court answered the second
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`question pertinent to the Shriner Tract—whether IGRA permitted the Tribe to
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`conduct gaming on the land. In Wyandotte Nation v. National Indian Gaming
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`14
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`Commission (the Gaming Case), the district court considered whether the Tribe
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`met IGRA’s settlement-of-a-land-claim exception. 437 F. Supp. 2d 1193, 1207
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`(D. Kan. 2006). In doing so, it first addressed the meaning of the statutory term
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`“land claim.” Id. at 1207-10.7 The court noted that the National Indian Gaming
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`Commission had earlier ruled that ICC judgments are not land claims because
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`money judgments are not transfers of land parcels. Id. at 1208. The court
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`rejected that interpretation, concluding that “land claim” unambiguously
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`includes the “assertion[s] of an existing right to land.” Id. The court ruled that
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`it did not matter whether “the remedy for a land claim is monetary, rather than
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`specific relief . . . where, as here, Congress mandated that the monetary remedy
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`be utilized to purchase land to be held in trust for the benefit of the Tribe.” Id.
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`at 1210. In support, the district court recounted the statutory procedure under
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`PL 98-602:
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`The NIGC’s focus on the ICC money judgment might pass muster if
`the Tribe had merely purchased the Shriner Tract with money
`received from a claim brought before the ICC. That is not the case,
`however, because Congress mandated that $100,000 of the Tribe’s
`ICC judgment funds be utilized to purchase land to be taken into
`trust for the benefit of the Tribe as a means of effectuating a
`judgment that resolved the Tribe’s land claims. The Wyandotte used
`the funds appropriated by Congress in satisfaction of the ICC
`judgment to acquire the Shriner Tract, and the Secretary, based upon
`the mandate of Pub. L. 98-602, accepted title to the Shriner Tract in
`trust for the Tribe.
`
`
`7 The district court decided this case two years before the Bureau enacted
`the 2008 regulations, so it did not analyze whether the Tribe could conduct
`gaming under those regulations. Even still, the district court’s analysis aligned
`with the Bureau’s later regulations.
`
`
`
`15
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`Id.
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`II.
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`Factual Background
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`At issue in this litigation is a ten-acre lot outside Wichita, Kansas, that
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`the Tribe bought in 1992. As shown below, the accounting on this land
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`purchase is complicated and disputed.
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`Soon after Congress passed PL 98-602, the Tribe received its $100,000 in
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`Section 105(b)(1) Funds. Rather than immediately buy land with those funds,
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`the Tribe invested them.8 In 1986, the Tribe purchased roughly $95,000 in
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`mortgage bonds with its Section 105(b)(1) Funds. It kept those bonds,
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`investment income on the bonds, the remaining section 105(b)(1) principal, and
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`interest on that principal in its A.G. Edwards account. Then in 1989, the Tribe
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`transferred the holdings in its A.G. Edwards account to a new investment
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`account with Mercantile, the ’769 Account. By November 1991, the ’769
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`Account reported a balance of almost $157,000—all in Section 105(b)(1) Funds
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`and earnings.
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`The accounting of the Section 105(b)(1) Funds gets murkier from there.
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`On November 21, 1991, the Tribe withdrew $25,199.67 from the ’769 Account
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`“in anticipation of the purchase of approximately 10 acres of land in Park City,
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`
`8 For clarification, the Tribe maintained several investment accounts over
`the years. Those include an account with A.G. Edwards & Sons, Inc., and two
`accounts with Mercantile Investment Services, Inc., bearing account numbers
`24067769 and 24067750. To distinguish between the two Mercantile accounts,
`we refer to them as the ’769 Account and the ’750 Account.
`16
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`Kansas,” known as the Park City Parcel. But the Tribe did not use that money
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`to buy the Park City Parcel. Instead, the same day it withdrew the funds from
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`the ’769 Account, the Tribe redeposited the $25,199.67 into its general-
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`investment account with Mercantile, the ’750 Account. The ’750 Account
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`already contained other cash, bonds, and assets apart from the Section
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`105(b)(1) Funds. In December 1991, the Tribe further commingled the
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`Mercantile accounts by closing the ’769 Account and transferring its remaining
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`holdings into the ’750 Account.
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`Thus, by the beginning of 1992, the Tribe maintained a single investment
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`account with Mercantile that contained not only the mortgage bonds purchased
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`with Section 105(b)(1) Funds and the leftover section 105(b)(1) principal as
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`cash but also all the investment income attributable to the Section 105(b)(1)
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`Funds and unrelated cash and assets. And that’s not all. Because of a title
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`dispute over the Park City Parcel, the Tribe could not purchase that land until
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`late 1992. To fund that purchase, it used $25,000 from the commingled ’750
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`Account. We say “used” because the Tribe did not simply withdraw $25,000
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`from the ’750 Account to purchase the Park City Parcel. Instead, the Tribe
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`pledged the holdings in the ’750 Account as collateral for a $25,000 margin-
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`account loan from Mercantile.
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`Soon after purchasing the Park City Parcel, the Tribe asked the Secretary
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`to hold the Park City Parcel in trust under PL 98-602. But in December 1995
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`the Tribe withdrew its application after a field office of the Department of the
`17
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`Interior construed PL 98-602 as not mandating that the Secretary take the land
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`into trust.9
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`Ten years later, in 2006, the Tribe reapplied to the Secretary to hold the
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`Park City Parcel in trust. Though it initially applied for trust status under 25
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`U.S.C. § 465,10 in 2008, it amended its application to claim trust status under
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`PL 98-602. The amended application relied on the KPMG report and noted that
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`“[KPMG] audited the original $100,000 allocated to the Wyandotte” and
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`“deducted the $25,000 purchase price of the Park City [Parcel] from the 98-602
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`account.” “The deduction,” said the Tribe, “was consistent with the Wyandotte
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`assertion that the land was purchased with [Section 105(b)(1) Funds].”11
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`The State of Kansas and a group of Native American tribes (Appellants
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`here)12 opposed the Tribe’s application for trust status. The State submitted an
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`accounting report from Gottlieb, Flekier & Co. to rebut the Tribe’s application.
`
`
`9 We eventually overruled this interpretation of PL 98-602. In Sac & Fox
`Nation, we ruled that section 105(b)(1) of PL 98-602 unambiguously “imposed
`a nondiscretionary duty on the Secretary” to take land purchased with Section
`105(b)(1) Funds into trust. 240 F.3d at 1262.
`
`10 Unrelated to PL 98-602, this statute permits the Secretary to take lands
`into trust “in his discretion” so long as the Secretary’s acquisitions do not
`“exceed $2,000,000 in any one fiscal year.” 25 U.S.C. § 5108 (original version
`at 25 U.S.C. § 465).
`
`11 To clarify, the KPMG report did not deduct or account for the $25,000
`margin-account loan the Tribe used to purchase the Park City Parcel. Instead, it
`included the $25,199.67 withdrawal from the ’769 Account as part of its
`review.
`
`12 We collectively refer to Appellants as “the State.”
`18
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`The Gottlieb report criticized the earlier KPMG report from the Shriner Tract
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`litigation as overstating the investment income on the Tribe’s Section 105(b)(1)
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`Funds. Accounting for the $25,199.67 withdrawal from the ’769 Account, the
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`Gottlieb report contended that the Tribe had about only $161,000 in Section
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`105(b)(1) Funds and earnings in 1996. So, the Tribe could not have purchased
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`the Shriner Tract for $180,000 with exclusively Section 105(b)(1) Funds and
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`earnings. In other words, disagreeing with the KPMG report, the Gottlieb report
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`concluded that the Tribe could not have afforded both the Shriner Tract and the
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`Park City Parcel with its Section 105(b)(1) Funds and earnings.
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`In 2014, the Secretary denied the Tribe’s trust application for the Park
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`City Parcel. Based on the Gottlieb report, the Secretary agreed with the State
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`that the Tribe had insufficient section 105(b)(1) principal and earnings to buy
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`both the Park City Parcel and the Shriner Tract. “A finding that the Nation used
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`[Section 105(b)(1) Funds and earnings] to acquire both Shriner Tract and the