City of Council Bluffs, Iowa, Plaintiff - Appellant, State of Iowa v. United States Department of the Interior

United States Court of Appeals
For the Eighth Circuit
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No. 19-2898
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City of Council Bluffs, Iowa,
lllllllllllllllllllllPlaintiff - Appellant,
State of Iowa; State of Nebraska,
lllllllllllllllllllllIntervenor Plaintiffs - Appellants,
v.
United States Department of the Interior; Deb Haaland, in her official capacity as
Secretary of the United States Department of Interior; National Indian Gaming
Commission; E. Sequoyah Simermeyer, in his official capacity as Chairman of the
National Indian Gaming Commission,1
lllllllllllllllllllllDefendants - Appellees.
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Ponca Tribe of Nebraska,
lllllllllllllllllllllAmicus on Behalf of Appellee(s).
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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1Secretary Haaland and Chairman Simermeyer are automatically substituted for
their predecessors under Federal Rule of Appellate Procedure 43(c)(2).

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Submitted: April 13, 2021
Filed: August 30, 2021
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Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
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COLLOTON, Circuit Judge.
In 2017, the National Indian Gaming Commission determined that a parcel of
land in Iowa that is held in trust by the United States for the Ponca Tribe of Nebraska
is eligible for gaming. The Commission reasoned that the land is eligible as part of
“the restoration of lands for an Indian tribe that is restored to Federal recognition.”
25 U.S.C. § 2719(b)(1)(B)(iii). The appellants here, the States of Iowa and Nebraska
and the City of Council Bluffs, challenged that decision in the district court. The
district court2 agreed with the Commission that the Ponca Restoration Act, Pub. L.
No. 101-484, 104 Stat. 1167 (1990), does not preclude gaming on the parcel. But
because the Commission failed to consider a relevant factor in evaluating whether the
parcel is restored land for the Tribe, the court remanded the matter for further
consideration. The appellants noticed an appeal, arguing that the court erred in its
interpretation of the Ponca Restoration Act. We affirm the district court’s order.
I.
Congress enacted the Indian Gaming Regulatory Act in 1988 to regulate
gaming by Indian tribes on Indian lands. 25 U.S.C. § 2702. The term “Indian lands”
includes “any lands title to which is . . . held in trust by the United States for the
benefit of any Indian tribe.” Id. § 2703(4)(B). Gaming regulated by this statute is
2The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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generally prohibited on land acquired in trust by the Secretary of the Interior for the
benefit of an Indian tribe after October 17, 1988. Id. § 2719(a). But the so-called
restored lands exception states that this prohibition does not apply when such “lands
are taken into trust as part of . . . the restoration of lands for an Indian tribe that is
restored to Federal recognition.” Id. § 2719(b)(1)(B)(iii).
This long-running dispute concerns whether the restored lands exception
applies to a parcel of land in Carter Lake, Iowa, owned by the Ponca Tribe of
Nebraska. The Tribe was restored to federal recognition in 1990. The Ponca
Restoration Act states that the Secretary of the Interior “shall accept not more than
1,500 acres of any real property located in Knox or Boyd Counties, Nebraska, that is
transferred to the Secretary for the benefit of the Tribe,” and that the Secretary may
accept additional land in Knox or Boyd Counties pursuant to his authority under the
Indian Reorganization Act. Pub. L. No. 101-484, § 4(c), 104 Stat. 1167, 1167-68
(1990). The Restoration Act adds that “[a]ll Federal laws of general application to
Indians and Indian tribes,” including the Indian Reorganization Act, “shall apply with
respect to the Tribe and to the members.” Id. § 3, 104 Stat. at 1167. The Indian
Reorganization Act, in turn, authorizes the Secretary, “in his discretion, to
acquire . . . any interest in lands . . . for the purpose of providing land for Indians.”
25 U.S.C. § 5108. Some lands acquired under the Indian Reorganization Act may be
taken into trust as part of the restoration of lands for a tribe. See id. §§ 2703(4)(B),
2719(b)(1)(B)(iii).
In 1999, the Tribe purchased a 4.8-acre parcel in Carter Lake, which is located
in Pottawattamie County, Iowa. The following year, the Tribe requested that the
Bureau of Indian Affairs take the land into trust for the benefit of the Tribe, stating
that the property would be used “to provide services to our tribal members, primarily
health services.” The State of Iowa, fearing that the Tribe intended to use the parcel
for gaming, opposed the trust acquisition. The State eventually agreed to forgo
litigation over the trust acquisition; the State later maintained that counsel for the
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Tribe had agreed in exchange that the Carter Lake parcel was not eligible for gaming
under the restored lands exception. The Bureau of Indian Affairs, acting pursuant to
its authority under the Indian Reorganization Act, completed the trust acquisition in
2003.
In 2007, the Tribe requested that the Chairman of the National Indian Gaming
Commission approve an ordinance to allow gaming on the parcel. See 25 U.S.C.
§ 2710(b)(1). The Tribe maintained that the land was eligible for gaming after all
under the restored lands exception. The Chairman disapproved the gaming
ordinance, and the Tribe appealed to the full Commission. In December 2007, the
Commission reversed the Chairman’s decision, concluding that the Carter Lake parcel
qualified as land taken into trust as part of “the restoration of lands for an Indian tribe
that is restored to Federal recognition.” See 25 U.S.C. § 2719(b)(1)(B)(iii). The
Commission applied a common-law test requiring consideration of (1) the temporal
proximity of the trust acquisition to a tribe’s restoration, (2) whether the tribe has a
historical and modern nexus to the location, and (3) the factual circumstances of the
trust acquisition.
The appellants sought judicial review. The district court concluded that the
Commission’s restored lands decision was arbitrary and capricious, and entered a
declaratory judgment reversing the decision. The Department of the Interior and the
Commission appealed. On appeal, they conceded that the Commission improperly
failed to consider the alleged 2002 agreement between Iowa and the Tribe as a factor
in its restored lands analysis. Nebraska ex rel. Bruning v. U.S. Dep’t of Interior, 625
F.3d 501, 504, 509 (8th Cir. 2010). This court ordered a remand to the Commission
to consider the validity and legal effect of that agreement and, if necessary, to
reexamine whether the parcel is eligible for gaming under the restored lands
exception. Id. at 511-12. We declined then to address whether the Ponca Restoration
Act limits restored lands for the Tribe to land in Knox and Boyd Counties, Nebraska.
Id. at 512-13.
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In 2017, the Commission affirmed its decision that the Carter Lake parcel is
restored land. The Commission first concluded that the purported 2002 agreement
between Iowa and the Tribe was not valid, and thus did not estop the Tribe from
invoking the exception. The decision next adopted an interpretation letter from the
Solicitor of the Department of the Interior concluding that the Ponca Restoration Act
does not limit the Tribe’s restored lands to Knox and Boyd Counties, Nebraska. The
Commission then concluded that the parcel qualified as restored land under the
common-law test.
The appellants again sought judicial review under the Administrative
Procedure Act. See 5 U.S.C. § 702. They requested a declaratory judgment that the
Carter Lake parcel is not eligible for gaming under the restored lands exception, and
that the Commission’s restored lands analysis was arbitrary and capricious. The
district court granted in part and denied in part the appellants’ motion for summary
judgment. The court concluded that the Ponca Restoration Act does not preclude
gaming on the Carter Lake parcel. But because the Commission failed to consider the
2002 agreement between Iowa and the Tribe as a relevant factor in its restored lands
analysis, the court remanded the matter to the Commission again for further
consideration. The court later denied the appellants’ motion to certify an
interlocutory appeal on the question of the proper interpretation of the Ponca
Restoration Act. The court believed that the summary-judgment order was “final”
and therefore appealable under 28 U.S.C. § 1291 without certification as an
interlocutory appeal.
The appellants filed a notice of appeal, and they renew their contention that the
Ponca Restoration Act precludes gaming on the Carter Lake parcel. We review the
district court’s decision on this legal question de novo. Thomas v. Jackson, 581 F.3d
658, 664 (8th Cir. 2009).
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II.
We must first determine whether we have appellate jurisdiction. The parties
have not raised this issue, but the court has an independent “obligation to notice
jurisdictional infirmities.” Arnold v. Wood, 238 F.3d 992, 994 (8th Cir. 2001).
The courts of appeals “have jurisdiction of appeals from all final decisions of
the district courts of the United States.” 28 U.S.C. § 1291. A final decision for
purposes of appellate jurisdiction “generally is one which ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.” Catlin v.
United States, 324 U.S. 229, 233 (1945). This finality requirement forbids
“piecemeal disposition on appeal of what for practical purposes is a single
controversy.” Cobbledick v. United States, 309 U.S. 323, 325 (1940).
As a general rule, a district court order that remands a case to a federal agency
for further proceedings is not a final decision within the meaning of 28 U.S.C.
§ 1291. See Borntrager v. Cent. States, Se. & Sw. Areas Pension Fund, 425 F.3d
1087, 1091 (8th Cir. 2005). We have recognized limited exceptions. An order
remanding to an agency merely for “ministerial proceedings” may be considered final.
Davies v. Johanns, 477 F.3d 968, 971 (8th Cir. 2007). And if “an order remanding
a case for further administrative proceedings will likely escape appellate review
unless subject to immediate appeal, the order may be considered final.” Id. This
latter exception applies only if “an agency seeks to appeal a remand order.” Izaak
Walton League of Am., Inc. v. Kimbell, 558 F.3d 751, 763 (8th Cir. 2009).
This case does not fall within these recognized exceptions to the general rule.
The remand called for “further consideration” of the “facts and circumstances
surrounding” the 2002 agreement between Iowa and the Tribe as part of the
Commission’s restored lands analysis. By the federal defendants’ admission, the
events surrounding that 2002 agreement were crucial to the government’s trust
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acquisition of the Carter Lake parcel. The remand required the Commission to
reevaluate an important legal question, and not simply to complete a ministerial task
such as calculating a partial tax refund. See Goodwin v. United States, 67 F.3d 149,
151 (8th Cir. 1995). And the federal agencies are not appealing to litigate an issue
that would otherwise escape review.
In denying the appellants’ motion to certify an interlocutory appeal under 28
U.S.C. § 1292(b), the district court likened this case to Sisseton-Wahpeton Oyate of
Lake Traverse Reservation v. United States Corps of Engineers, 888 F.3d 906 (8th
Cir. 2018). There, an Indian Tribe alleged that the Corps of Engineers violated the
Administrative Procedure Act, the Clean Water Act, and the National Historic
Preservation Act in issuing six permit and exemption determinations allowing a
landowner to construct a road on wetlands adjacent to a lake. Id. at 909. The Tribe
asserted ten claims against the Corps and asked the district court to order the road’s
removal and enjoin the Corps from allowing further construction. Id. at 912.
The district court dismissed the Tribe’s claims, with one exception. Id. at 909.
The court agreed with the Tribe that the Corps failed to consider the requirements of
the National Historic Preservation Act in issuing a 2009 permit determination, and
remanded the issue to the Corps for further consideration. Id. at 914, 921. The Tribe
appealed, and this court concluded that there was jurisdiction to consider the
dismissal of the Tribe’s Clean Water Act claim regarding the 2009 permit
determination. Id. at 909-10, 914, 919-20. While acknowledging that a remand order
is not final where the district court neither granted nor denied the ultimate relief
sought by the plaintiff, Giordano v. Roudebush, 565 F.2d 1015, 1017 (8th Cir. 1977)
(per curiam), this court reasoned that the district court had “denied all relief requested
by the Tribe except with regard to whether the 2009 permit violated the [National
Historic Preservation Act], which was remanded for the Corps to determine.”
Sisseton-Wahpeton, 888 F.3d at 920. Because the district court “explicitly denied”
the Tribe’s request for relief under the Clean Water Act, and did not retain
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jurisdiction for further proceedings on that claim, this court exercised jurisdiction to
address the Tribe’s Clean Water Act claim. Id. at 920-21.
The district court understandably thought the present case bears “a striking
resemblance to Sisseton-Wahpeton,” but that decision pressed the outer boundaries
of finality, and there is a distinguishing feature between the cases. Here, the district
court “remanded the case for further administrative proceedings” and “neither granted
nor denied the ultimate relief . . . sought by the plaintiff[s]” on any claim. Giordano,
565 F.2d at 1017. The appellants set forth just one claim for relief, asking the court
to reverse the Commission’s determination that the Carter Lake parcel is restored
land. The court did not finally deny that ultimate relief. In fact, the court concluded
that the Commission’s restored lands analysis was arbitrary and capricious, and
directed the Commission to consider further whether the parcel was restored land.
On appeal, the parties ask us to decide whether the Ponca Restoration Act
prevents the agency from treating the Carter Lake parcel as restored land. The
remand order directed the Commission to reevaluate whether the parcel is restored
land. The same issue of the parcel’s status as restored land is implicated both on
remand to the agency and on this appeal. By contrast, the remand in Sisseton-
Wahpeton concerned a claim under the National Historic Preservation Act that was
separate from the claim under the Clean Water Act over which this court exercised
appellate jurisdiction. 888 F.3d at 912, 919-21. Because the district court in this case
did not decide whether the parcel is restored land, the court’s decision did not end the
relevant dispute “on the merits” or leave “nothing for the court to do but execute the
judgment.” Catlin, 324 U.S. at 233. Therefore, we conclude that the decision is not
final within the meaning of 28 U.S.C. § 1291.
Even so, we do not believe that dismissal is required, because the district court
plainly indicated that a prompt appeal was warranted, and we construe its order as an
implied statement that immediate appeal on a controlling question of law would
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advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b). The
appellants moved to certify for interlocutory appeal the order on whether the Ponca
Restoration Act restricts the Tribe’s restored lands to land in Knox and Boyd
Counties. The court denied the motion, but only because it believed the summary-
judgment order was final and “thus ineligible for interlocutory appeal.” In its post-
judgment order, the district court said that the appellants “asserted many compelling
arguments as to why the Court should certify” the order for interlocutory appeal,
including that a decision in favor of the appellants would “all but conclusively resolve
the case.” And the court suggested that it was “more sensible” for the appellants “to
pursue an appeal now, rather than wait until after” the court conducted further
proceedings with respect to the Commission’s decision on remand.
A district court may certify a question for interlocutory appeal by stating in
writing that a nonfinal order “involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b). We think it evident that, but for its belief that the summary-judgment
order was final, the district court believed the statutory requirements for interlocutory
appeal were fulfilled. A remand for reconsideration of the appellants’ motion to
certify inevitably would lead to a refiling of the same appeal under a different
jurisdictional statute. Accordingly, in the interest of judicial economy, we will treat
the case as a proper interlocutory appeal under 28 U.S.C. § 1292(b).
III.
The issue on appeal is whether the Ponca Restoration Act restricts land that can
qualify as part of “the restoration of lands” for the Tribe to land located in Knox and
Boyd Counties, Nebraska. See 25 U.S.C. § 2719(b)(1)(B)(iii). The Restoration Act
extends federal recognition to the Tribe and provides that “[a]ll Federal laws of
general application to Indians and Indian tribes,” including the Indian Reorganization
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Act, “shall apply with respect to the Tribe.” Pub. L. No. 101-484, § 3, 104 Stat. 1167,
1167. In a section titled “Restoration of Rights,” the Restoration Act mandates that
the Secretary “shall accept not more than 1,500 acres of any real property located in
Knox or Boyd Counties, Nebraska, that is transferred to the Secretary for the benefit
of the Tribe,” and permits the Secretary to “accept any additional acreage in Knox or
Boyd Counties pursuant to his authority under” the Indian Reorganization Act. Id.
§ 4(c), 104 Stat. at 1167-68. Separately, the Indian Reorganization Act authorizes the
Secretary, “in his discretion, to acquire . . . any interest in lands . . . for the purpose
of providing land for Indians.” 25 U.S.C. § 5108. The Indian Gaming Regulatory
Act, in turn, allows a tribe to seek a determination from the Indian Gaming
Commission that lands acquired under the Indian Reorganization Act are restored to
the tribe. Id. §§ 2703(4)(B), 2710(b), 2719(b)(1)(B)(iii).
That Congress specified a geographic area in which the Secretary is required
to accept land for the Tribe under the Ponca Restoration Act does not mean that only
land within that area can be part of the restoration of lands for the Tribe. Lands
expressly granted to a tribe in the tribe’s restoration act may be the “paradigm” of
restored lands, see City of Roseville v. Norton, 348 F.3d 1020, 1025 (D.C. Cir. 2003),
but lands acquired for a tribe through means other than a restoration act also can
qualify. See Oregon v. Norton, 271 F. Supp. 2d 1270, 1278-80 (D. Or. 2003);
Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt, 116 F.
Supp. 2d 155, 162-64 (D.D.C. 2000).
Under the Indian Gaming Regulatory Act, the Secretary may use an established
regulatory analysis to determine whether other lands acquired in trust for a tribe
constitute restored lands. See Confederated Tribes, 116 F. Supp. 2d at 163-64; see
also 25 C.F.R. § 292.12. Congress can specify a contrary rule by explicitly limiting
the area within which a tribe can have restored lands, but it has not done so here.
Instead, § 3 of the Ponca Restoration Act makes applicable to the Tribe all laws of
general application to Indians and Indian tribes, including the Indian Gaming
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Regulatory Act and the Indian Reorganization Act. Together, those laws operate to
allow the Secretary to acquire land in trust for the Tribe outside of Knox and Boyd
Counties, and to determine whether such land is restored using the established
regulatory analysis. The Restoration Act provides that “[e]xcept as otherwise
specifically provided in any other provision” of the Act, nothing in the statute “may
be construed as altering . . . any rights or obligations with respect to property.” Pub.
L. No. 101-484, § 4(d)(1), 104 Stat. 1167, 1168 (emphasis added). There is no
specific provision that alters the Tribe’s right, under the Indian Gaming Regulatory
Act, to seek restored land status for property outside of Knox and Boyd Counties.
Congress has shown that it knows how to limit a tribe’s ability to conduct
gaming on its land when it wishes to do so. After the Indian Gaming Regulatory Act
went into effect, Congress amended another tribe’s restoration act to mandate that the
Secretary acquire land in a certain area for the tribe, but added that “[r]eal property
taken into trust pursuant to this section shall not be considered to have been taken
into trust for gaming (as that term is used in the Indian Gaming Regulatory Act).”
Pub L. No. 105-256, § 9, 112 Stat. 1896, 1898 (1998). The Ponca Restoration Act,
by contrast, contains no language limiting gaming or the “restoration of lands” for the
Tribe. The better reading of Ponca Restoration Act permits the Tribe to invoke the
restored lands exception for land outside of Knox and Boyd Counties.
The appellants argue that two canons of interpretation favor a contrary
conclusion. They invoke the presumption that Congress is aware of existing law
when it passes legislation. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351
(1998). Because the Indian Gaming Regulatory Act refers to “restoration of lands,”
they argue that Congress imported a limitation on the restoration of lands by using the
title “Restoration of Rights” for the section mandating the acquisition of land in Knox
or Boyd Counties. Pub. L. No. 101-484, § 4, 104 Stat. 1167, 1167-68. While a
statutory title is a tool for resolving doubt about a statute’s meaning, a heading
“cannot substitute for the operative text of the statute.” Fla. Dep’t of Revenue v.
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Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008). The title of § 4 does not address
whether the restoration of lands under that section is exclusive. Nor does the title of
§ 4 change the fact that § 3 provides that “[a]ll Federal laws of general application to
Indians and Indian tribes,” including the Indian Reorganization Act, “shall apply with
respect to the Tribe.” 104 Stat. at 1167. For the reasons discussed, that § 4 calls for
the acquisition of restored lands in Knox and Boyd Counties does not mean that the
Secretary lacks authority to restore lands elsewhere.
The appellants also invoke the canon that the expression of one thing implies
the exclusion of others. See United States v. Juan-Manuel, 222 F.3d 480, 488 (8th
Cir. 2000). They contend that because land in Knox and Boyd Counties is singled
out, Congress implicitly excluded land in other counties from being “treated the
same.” The land in Knox and Boyd Counties, however, was singled out only for
mandatory acquisition, and the parcel in Carter Lake was not treated the same in that
respect. The relevant distinction is between the Secretary’s duty to acquire a certain
amount of land in Knox and Boyd Counties for the Tribe, and her discretion to accept
other land in trust for the Tribe. Congress guaranteed a certain amount of trust land
to the Tribe without otherwise infringing on the Secretary’s typical discretion to
accept land in trust for Indian tribes.
The appellants argue that the Department’s regulations implementing the
restored lands exception under the Indian Gaming Regulatory Act compel a different
conclusion. See 25 C.F.R. § 292.11. But the question on appeal is the meaning of the
Ponca Restoration Act, and the agency’s interpretation of a different statute does not
affect our conclusion about whether the Restoration Act precludes gaming on the
parcel in Carter Lake.
The appellants acknowledged in the district court that if the Ponca Restoration
Act does not exclude the Carter Lake parcel from eligibility for gaming, then “the
proper resolution of this case will depend upon the outcome of the [Indian Gaming
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Commission’s] balancing of factors weighing in favor and against recognition of
restored land status on remand.” That question was to be considered by the
Commission on remand from the district court, and it is not before us in this appeal.
* * *
For these reasons, the district court’s order of March 26, 2019, is affirmed.
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