Judicial Review and Agency Deference Through a Tribal Lens

Recent litigation to determine the status of the Shiloh parcel for the Koi Nation of Northern California (Koi) could result in resounding implications for tribal gaming, including the Department of Interior (DOI) land-into-trust decisions under the Indian Gaming Regulatory Act (IGRA), tribal sovereignty and immunity, and refinement to required agency deference standards under Loper Bright Enterprises v. Raimondo.¹

IGRA: Land Into Trust For Gaming

IGRA generally prevents Native American Tribes from having land taken into trust for gaming purposes post-IGRA passage (October 1988). However, there are narrow exceptions set forth in the IGRA, such as the “restored lands exception,” permitting such action. This exception allows for the “restoration of lands” to “an Indian tribe that is restored to Federal recognition,” such that fee lands may be transferred into trust to be used for gaming purposes.² The DOI must find a “significant historical connection” to apply the restored lands exception to allow gaming on such lands, which definition and scope has been litigated.³

DOI’s Approval Decision

The DOI, in its Record of Decision (ROD) approving the Koi’s fee-to-trust request as to the Shiloh Site (70 acres near Windsor, California) on January 13, 2025, relied upon historic trade routes, certain census records referencing individual Koi tribal members, seasonal labor in the area, and Koi tribal burials within local cemeteries to find a “significant historical connection” allowing for application of the restored lands exception.⁴ The Federated Indians of Graton Rancheria (FIGR) brought claims in late 2024 (including a temporary restraining order, which was granted) and early 2025 (including a preliminary injunction that was denied) to challenge the decision.⁵ Both suits were consolidated into the instant case pending in the Northern District of California.⁶

FIGR’s Legal Challenge to DOI’s Approval

FIGR sued the DOI alleging: (1) DOI’s decision should be void due to procedural noncompliance as to delegation; (2) insufficiency of the DOI’s IGRA analysis due to Koi’s lack of continuous historical presence or connection with the Shiloh Site because the trade routes were transient, seasonal labor was temporary by nature, and burials were dispersed rather than concentrated; (3) DOI diminished FIGR’s privileges and immunities in violation of the Indian Reorganization Act (IRA) at 25 U.S.C. § 5123(f); and (4) DOI’s decision was arbitrary and capricious.⁷ This last contention based on assertion that DOI (a) failed to consider all relevant evidence as required by Section 106 of the National Historic Preservation Act (NHPA), evidenced in 36 C.F.R. § 800.2(c)(2)(ii)(C), and (b) failed to conduct a sufficient environmental review as required by the National Environmental Policy Act (NEPA) in 40 C.F.R. § 1508.1(i)(3).⁸

In support of its allegations, FIGR references precedent (1) voiding actions made without proper authority;⁹ (2) deeming insufficient tribal presence spanning a decade and requiring centuries-long, substantial presence for significant historical connection;¹⁰ (3) clarifying DOI obligations under the IRA;¹¹ and (4) clarifying requirements for (a) “meaningful” consultation,¹² and (b) consideration of reasonable data, evidence, and reasoned basis for conclusions.¹³ FIGR also alleges the Koi delayed its intervention until after the land-to-trust transfer was effectuated, despite prior notice of the challenge, in hopes of using the transfer to its tactical advantage.¹⁴

In defending that its decision was not arbitrary and capricious, the DOI maintains (1) it acted under valid delegation; (2) its interpretation under IGRA was reasonable; (3) its decision did not diminish FIGR’s privileges or immunities under the IRA; and (4) it engaged in all necessary processes, analyses, and consultations procedurally required under NDPA and NEPA.¹⁵

Koi’s Intervention and Claim That Sovereign Immunity Mandates Dismissal

The Koi moved to intervene in March 2025 for the limited purpose of seeking dismissal on the grounds that: (1) Koi is an indispensable party who must be joined under the Federal Rules of Civil Procedure (Rules), but (2) sovereign immunity bars the Koi’s joinder, so (3) the case cannot proceed in Koi’s absence.¹⁶ As a result, Koi claimed it must be dismissed under Rules 12(b)(7) and 19(b).¹⁷

FIGR responded to Koi’s motion in April 2025, contending (1) Koi had a contingent (not vested) interest; (2) the DOI could adequately represent such interest; and (3) the DOI’s procedure is being challenged, but Koi’s fee title is not.¹⁸ Both parties subsequently submitted cross-motions for summary judgment.¹⁹

Court’s Application of the Public Rights Exception

The court allowed the intervention on the grounds that the Koi have a “significant protectable interest” in the Shiloh Site since the tribe’s rights would be impaired if the litigation resulted in a reversal of the land-into-trust decision.²⁰ Nevertheless, the court denied the Koi’s motion to dismiss on equity principles by applying the public rights exception (relating to the NHPA and NEPA claims).²¹

The public rights exception allows lawsuits otherwise subject to dismissal under Rule 19(b) to continue because one party is seeking to enforce a public right.²² The court reasoned that even an adverse outcome in the litigation would not destroy the Koi’s legal entitlement as a fee owner since the Koi could later seek to reinstate trust status.²³

The Koi moved to stay pending appeal of the court’s decision, and FIGR countered that a Rule 19 decision may only be appealed after final judgment and not appealed at present.²⁴

California’s Challenge to the Koi Acquisition

Parallel litigation in May 2025, brought by California and its Governor, challenged the DOI’s Koi land-to-trust decision under IGRA on similar grounds, while also claiming infringement upon the Governor’s statutory concurrence rights and undue pressure on tribal-state gaming compact negotiation in IGRA.²⁵ The case is proceeding similarly before the same judge. The Koi has submitted a motion for intervention and a motion to dismiss, both issues being briefed before the court, with the briefing schedule extending into mid-2026.²⁶

Looking Forward

This litigation will continue to be closely monitored as it may likely set the tone for future land-to-trust analyses under IGRA and have other implications under IGRA. Equally important are the unknown effects on the court’s deference to agencies, the contours and scope of the public rights exception, and tribal sovereign immunity questions regarding joinder and dismissal under the Federal Rules. The result of this litigation may well echo into the future for decades.

Footnotes

1. Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 395 (2024).

2. 25 U.S.C. § 2719(b)(1)(B)(iii).

3. Plaintiff’s Motion for Summary Judgment (MSJ)(found at: 98-graton-rancheria-msj.pdf), at 30; see also Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Att’y for W. Dist. Of Mich., 198 F. Supp. 2d 920 (W.D. Mich. 2002); Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552 (D.C. Cir. 2016); Wyandotte Nation v. Nat’l Indian Gaming Comm’n, 437 F. Supp. 2d 1193 (D. Kan. 2006); Plaintiff’s Reply in Support of Summary Judgment and Opposition to Federal Defendants’ Cross-Motion for Summary Judgment (Plaintiff’s Reply and Opposition)(located at: 124-graton-reply-iso-98.pdf at 13–15).

4. Heidi McNeil Staudenmaier and Kelsey Haake, “California Challenges Interior’s Trust Acquisition for Koi Nation Casino,” Snell & Wilmer Legal Alert (May 14, 2025) (found at: https://www.swlaw.com/publication/california-challenges-interiors-trust-acquisition-for-koi-nation-casino/); see also Bullock v. U.S. Bureau of Land Mgmt., 489 F. Supp. 3d 1112 (D. Mont. 2020); Batalla Vidal v. Wolf, 501 F. Supp. 3d 117 (E.D.N.Y. 2020).

5. MSJ at 24, 25; Federated Indians of Graton Rancheria v. Haaland et al, 3:2024cv08582 (Nov. 27, 2024); Federated Indians of Graton Rancheria v. Burgum et al, 3:2025cv01640 (Feb. 14, 2025); Federated Indians of Graton Rancheria v. Koi Nation of Northern California, et al., 25-4604 (Jul. 24, 2025).

6. Id.

7. Order Granting Motion To Intervene For The Limited Purpose Of Moving To Dismiss And Denying 12(B)(7) Motion To Dismiss For Failure To Join An Indispensable Party (Order Granting Intervenor, Denying MTD) (located at: 127-dct-order.pdf) at 1, 6, 15-16; see also Federated Indians of Graton Rancheria v. Burgum et al., No. 3:24-cv-08582-RFL (N.D. Cal. filed Nov. 27, 2024); see also Plaintiff’s MSJ at 2–3, 23–24; see also 124-graton-reply-iso-98.pdf at 9–10, 29–30; see also Law360 Calif. Tribe Says 70-Acre Casino Land Fight Must Continue (July 30, 2025); see also Grand Traverse Band, Jewell, and Wyandotte Nation.

8. Id.

9. Bullock; citing State Farm Mut. Auto. Ins. Co., 463 U.S. at 41-43 (quoting 5 U.S.C. § 706(2)(A)). “[T]he application process for taking land into trust is exacting,” particularly for off-reservation acquisitions. Cherokee Nation v. Bernhardt, 936 F.3d 1142, 1157 (10th Cir. 2019).

10. Plaintiff’s MSJ at 13, 23–25, 27, 30, 34-39, 41, 46, 60; see also Plaintiff’s Reply and Opposition at 13–15; Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395 (2024); Bullock; Crawley v. United States, 149 Fed. Cl. 258 (2020).

11. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012):

12. See Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592 (9th Cir. 2010); Quechan Tribe of Fort Yuma Indian Rsrv. v. U.S. Dep’t of Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010).

13. See Winter v. Nat. Res. Def., 555 U.S. 7 (2008).

14. Plaintiff’s Opposition to Motion to Intervene (Opp. Mot.)(found at: https://turtletalk.wordpress.com/wp-content/uploads/2025/07/92-graton-response-to-81.pdf)

15. Federal Defendants’ Motion for Summary Judgment and Response to Plaintiff’s Motion for Summary Judgment (F.Def. MSJ)(located at: 115-federal-msj.pdf), Page 17, 27, 29, 36, 47; see Batalla Vidal v. Wolf, 501 F. Supp. 3d 117, 131-132 (E.D.N.Y. 2020).

16. Order Granting Intervenor, Denying MTD at 7, 13, 14-16; see also Koi Nation of Norther California’s Non-Party Motion for Limited Intervention (Koi Nation Mot. to Intervene), at 1–2, 9–12 (found at: 81-koi-nation-motion-to-intervene-mtd.pdf); see also Limited Intervenor Koi Nation of Norther California’s [Proposed] Motion to Dismiss (Koi Nation Mot. to Dismiss) (found at: https://turtletalk.wordpress.com/wp-content/uploads/2025/07/81-1-koi-nation-mtd.pdf); see also Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377 (1987); Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992); see also Law360 (July 30, 2025).

17. Id.

18. Id.

19. Id.

20. Plaintiff’s MSJ at 12, 23–25; see Plaintiff’s Reply and Opposition at 13–15; Order Granting Intervenor, Denying MTD at 1, 6, 14-15; Conner, 848 F.2d 1441; Wyandotte Nation v. Nat’l Indian Gaming Comm’n, 437 F. Supp. 2d 1193, 1215–16 (D. Kan. 2006); Guidiville Band of Pomo Indians, Letter from Larry Echo Hawk, Ass’t Sec’y, U.S. Dep’t of the Interior (Mar. 26, 2012).

21. Id.

22. Order Granting Intervenor, Denying MTD at13.

23. Koi Nation Mot. to Intervene, at 10; see also F.Def. MSJ at 13–14.

24. F.Def. MSJ at 14; see also 73 Fed. Reg. 29,354, 29,366 (May 20, 2008); see also Stringfellow, 480 U.S. at 377; Chuman, 960 F.2d at 105; Law360 (July 30, 2025).

25. See Staudenmaier and Haake, “California Challenges Interior’s Trust Acquisition for Koi Nation Casino;” see also California and Gov. Gavin Newsom v. the U.S. Department of the Interior et al., case number 3:25-cv-03850-JCS, in the U.S. District Court for the Northern District of California.

26. See Docket Report for The State of California et al v. United States Department of Interior et al, located at https://dockets.justia.com/docket/california/candce/3:2025cv03850/448961.