State of Texas v. USA ( 2007 )

  •                                                            United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                           REVISED SEPTEMBER 13, 2007
                                                                      August 17, 2007
                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                   Charles R. Fulbruge III
                                  No. 05-50754
                                STATE OF TEXAS,
       OF THE INTERIOR; DIRK KEMPTHORNE, in his Official Capacity
             as Secretary of the Department of the Interior,
               Appeal from the United States District Court
                     for the Western District of Texas
    Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.
    EDITH H. JONES, Chief Judge:
               This is high-stakes litigation involving a challenge to
    procedures adopted by the Secretary of the Interior Department
    (“Secretary”) to circumvent the consequences of the Supreme Court’s
    Eleventh   Amendment   decision   in   Seminole   Tribe   of   Florida     v.
    517 U.S. 44
    116 S. Ct. 1114
     (1996).       An initial question
    is whether Texas’s challenge to the existence of the Secretarial
    Procedures is ripe now, before the Secretary has made a substantive
    determination on a tribe’s Class III gaming license.           We hold that
    the case is ripe, the State has standing, and the Secretary lacked
    authority to promulgate the regulations.              The district court’s
    judgment is REVERSED and REMANDED.
                                   I.   BACKGROUND
               In   the   1980s,   various    Indian    tribes   began   to   seek
    authority for legalized gambling as a way to earn revenue.                  As
    sovereigns, Indian tribes are subordinate only to the federal
    government.      California    v.   Cabazon    Band   of   Mission   Indians,
    480 U.S. 202
    , 207, 
    107 S. Ct. 1083
    , 1087 (1987).                State laws,
    however, “may be applied to tribal Indians on their reservations if
    Congress has expressly so provided.”          Id.   In Cabazon, the Supreme
    Court held that because Congress had not so expressly provided,
    California could not enforce certain anti-gambling laws against an
    Indian tribe there.       Id. at 214, 221-22, 107 S. Ct. at 1091,
               In response to Cabazon, Congress enacted the Indian
    Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq., to give
    states a subordinate but significant role in regulating tribal
    gaming.    IGRA separates gaming into classes of escalating stakes.
    Class I gaming – social games played for minimal value – is within
    the exclusive jurisdiction of the tribes.             25 U.S.C. §§ 2703(6),
    2710(a)(1).     Class II gaming – bingo and related activities – is
    subject to oversight by the National Indian Gaming Commission.
    25 U.S.C. §§ 2703(7), 2706(b), 2710(a), (b) & (c).          All other forms
    of gaming, including high-stakes games such as slot machines,
    casino games, lotteries, and dog racing, are Class III.           25 U.S.C.
    § 2703(8).
               Class III gaming, if authorized by the tribe, must be
    “conducted in conformance with a Tribal-State compact entered into
    by the Indian Tribe and the State.”          25 U.S.C. § 2710(d)(1).      In
    IGRA, Congress meticulously detailed two separate tracks leading to
    the institution of a Class III tribal gaming business.              On the
    first track, the tribe and the state may negotiate a voluntary
    compact governing the conduct of gaming activities, which takes
    effect    essentially       upon      approval      by    the   Secretary.
    § 2710(d)(3)(B).
               The second track begins when no compact has been reached
    one hundred eighty days after the tribe requests negotiations.
    IGRA then allows a tribe to file suit against the state in federal
    court and seek a determination whether the state negotiated in good
    faith.   § 2710(d)(7).     If the court finds the state negotiated in
    good faith, the tribe’s proposal fails.           On a finding of lack of
    good   faith,   however,   the     court   may   order   negotiation,   then
    mediation.      If the state ultimately rejects a court-appointed
    mediator’s proposal, the Secretary “shall prescribe, in consulta-
    tion with the Indian tribe, procedures . . . under which class III
    gaming may be conducted.”        § 2710(d)(7)(B).
                The        Supreme    Court    held       this        second    track   of   the
    congressional scheme flawed under the Eleventh Amendment, because
    Congress has no authority to abrogate a state’s sovereign immunity
    from suit under the Indian Commerce Clause of Article I of the
    Constitution.          See Seminole Tribe, 517 U.S. at 47, 116 S. Ct. at
    1119.     Following Seminole Tribe, a state may waive immunity from
    suit, or the United States may sue the state to obtain the
    statutory good-faith determination, but a state cannot be forced to
    submit to the tribe’s suit.               Seminole Tribe made the second track
    toward Class III gaming far more difficult to pursue.
                To work around the decision, the Secretary promulgated
    notice-and-comment regulations in 1999.                           See Class III Gaming
    Procedures,       25     C.F.R.    pt.    291       (“Secretarial          Procedures”    or
    “Procedures”).         The Secretarial Procedures only apply if the state
    asserts its sovereign immunity and refuses to consent to a tribe’s
    statutory good-faith suit.            25 C.F.R. §§ 291.1(b), 291.3.                 In such
    event, an eligible tribe may submit a Class III gaming proposal to
    the Secretary, who then affords the state sixty days to comment and
    submit an alternative proposal.                25 C.F.R. § 291.7.           At that point,
    the   Secretarial        Procedures       prescribe         two    tracks    depending   on
    whether    the    state     chooses       to       submit    an     alternative     compact
                If the state does not submit an alternative proposal, the
    Secretary reviews the tribe’s proposal and either approves it or
    offers the opportunity for a conference between the state and the
    tribe to address “unresolved issues and areas of disagreements in
    the proposal.”     25 C.F.R. § 291.8.       The Secretary must then make a
    “final decision either setting forth the Secretary’s proposed
    Class III gaming procedures for the Indian tribe, or disapproving
    the proposal.”       Id.
                If the state submits an alternative plan, the Secretary
    appoints a mediator who, following the same procedures as IGRA
    prescribes, will resolve differences between the two proposals.
    25 C.F.R. §§ 291.9, 291.10.             While, under the Procedures, the
    Secretary may reject the mediator’s proposal, he “must prescribe
    appropriate procedures within 60 days under which Class III gaming
    may take place.”      25 C.F.R. § 291.11 (emphasis added).
                The   difference      between    IGRA     and   the   Secretarial
    Procedures is that IGRA compels appointment of a mediator by the
    court only after a judicial finding that the state failed to
    negotiate in good faith, but under the Secretarial Procedures, the
    gaming    proposal    goes   forward    without     any   judicial   bad-faith
    determination if the state refuses to waive sovereign immunity.
    The Secretarial Procedures, in sum, offer two alternatives for a
    state    that   insists    upon   its   sovereign    immunity:       refuse   to
    negotiate, participate (or not) in an informal conference, and take
    a chance that the Secretary will not accept the tribe’s Class III
    gaming proposal, 25 C.F.R. § 291.8; or submit its “last best
    proposal” to a mediator, with the certainty that Class III gaming
    must be approved on the mediator’s or the Secretary’s terms.
    25 C.F.R. § 291.11.
                In 1995, the Kickapoo Traditional Tribe of Texas (the
    “Kickapoo”)    petitioned    the    State   to   enter   into   a   compact
    facilitating Class III gaming on its land.           Texas rejected the
    Kickapoos’ offer.     The tribe’s federal lawsuit against Texas was
    eventually dismissed under Seminole Tribe.         In 2004, the Kickapoo
    submitted a proposal to the Secretary, who followed the Secretarial
    Procedures and invited Texas to comment.           Texas responded with
    this lawsuit asking the court to declare the Secretarial Procedures
    unauthorized and unconstitutional.
                           II.   STANDARDS OF REVIEW
                This court reviews a district court’s legal conclusions,
    including the decision whether to grant a summary judgment motion,
    de novo.     Garcia v. LumaCorp, Inc., 
    429 F.3d 549
    , 553 (5th Cir.
    2005).     Jurisdictional issues such as ripeness and standing, as
    well as questions of statutory interpretation, are also legal
    questions for which review is de novo.             See Bonds v. Tandy,
    457 F.3d 409
    , 411 (5th Cir. 2006) (standing); Groome Res. Ltd.,
    L.L.C., v. Parish of Jefferson, 
    234 F.3d 192
    , 198-99 (5th Cir.
    2000) (ripeness); In re Reed, 
    405 F.3d 338
    , 340 (5th Cir. 2005)
    (statutory interpretation).        A district court’s factual findings,
    including those on which the court based its legal conclusions, are
    reviewed for clear error.         See Rivera v. Wyeth-Ayerst Labs.,
    283 F.3d 315
    , 319 (5th Cir. 2002).
                               III.    DISCUSSION
              The district court determined in a thoughtful opinion
    that Texas had standing to sue, but that the State’s claims were
    not ripe for adjudication.        See Order on Defendants’ Motion to
    Dismiss, Kickapoo Traditional Tribe of Texas v. State of Texas,
    Cause No. P-95-CA-66 (W.D. Tex. Apr. 2, 1996).            The court thus
    dismissed.    Nevertheless, it also opined that the Secretary had
    implied   authority     under     IGRA   and    his   general   statutory
    responsibility for Indian tribes to promulgate the Procedures.
    Texas v. United States, 
    362 F. Supp. 2d
    . 765, 769-70 (W.D. Tex.
    2004). The State appealed. Responding to the parties’ contentions
    in this court, we conclude that Texas has standing to sue, that its
    case is ripe, and that the Secretarial Procedures are unauthorized
    by statute.
                              A.    Justiciability
              Appellees first contend that Texas has no standing to
    seek invalidation of the Secretarial Regulations because Texas has
    suffered no injury from the mere existence of the Secretarial
    Procedures and, in any event, Texas brought any injury on itself by
    raising a sovereign immunity defense to the Kickapoo Tribe’s
    enforcement suit.     Relatedly, Appellees argue that Texas’s claims
    are not ripe because any injury that Texas could suffer from the
    Procedures would only manifest if the Secretary were to prescribe
    gaming procedures for the tribe at some point in the future.          We
    disagree with each contention.
               The standing and ripeness doctrines flow largely from
    Article III of the Constitution, which limits the federal judicial
    power to the resolution of cases and controversies.       Valley Forge
    Christian Coll. v. Ams. United for Separation of Church and State,
    454 U.S. 464
    , 471, 
    102 S. Ct. 752
    , 757-58 (1982) (discussing
    the   underpinnings   of   standing   doctrine).   In   general   terms,
    standing is concerned with whether a proper party is bringing suit,
    while ripeness is concerned with whether the suit is being brought
    at the proper time.   See Elend v. Basham, 
    471 F.3d 1199
    , 1205 (11th
    Cir. 2006).    However, the doctrines often overlap in practice,
    particularly in an examination of whether a plaintiff has suffered
    a concrete injury, see id. at 1205, and our injury-in-fact analysis
    draws on precedent for both doctrines.
                                  1.   Standing
               “The ‘gist of the question of standing’ is whether the
    party seeking relief has ‘alleged such a personal stake in the
    outcome of the controversy as to assure that concrete adverseness
    which sharpens the presentation of issues upon which the court so
    largely depends for illumination of difficult . . . questions.’”
    Flast v. Cohen, 
    392 U.S. 83
    , 99, 
    88 S. Ct. 1942
    , 1952 (1968)
    (quoting Baker v. Carr, 
    369 U.S. 186
    , 204, 
    82 S. Ct. 691
    , 703
    (1962)). To meet the constitutional standing requirements, (1) the
    plaintiff must have suffered an “injury in fact,” defined as an
    invasion of a legally protected interest that is (a) concrete and
    particularized and (b) actual or imminent, not conjectural or
    hypothetical; (2) there must be a causal connection between the
    injury and the conduct complained of, such that the injury is
    fairly traceable to the challenged action of the defendant; and
    (3) it must be likely, not merely speculative, that the injury will
    be redressed by a favorable decision.              Lujan v. Defenders of
    504 U.S. 555
    , 560-61, 
    112 S. Ct. 2130
    , 2136 (1992).
    Texas, as the party invoking federal jurisdiction, bears the burden
    of establishing that the standing requirements are met.            See id. at
    561, 112 S. Ct. at 2136.
                Texas   alleges    two    ways   in   which    the   Secretarial
    Procedures have caused it to suffer an injury in fact, contending
    first that the existence of the Secretarial Procedures has reduced
    the state’s bargaining power relative to that of the Kickapoo,1 and
    second that the Secretarial Procedures subject Texas to a process
    for approval of Class III gaming that omits IGRA’s procedural
    safeguards and thus exceeds the Secretary’s regulatory authority.
    The latter argument, in other words, is that Texas has suffered the
                While the Supreme Court has held that the denial of a “statutory
    bargaining chip” can “inflict[] a sufficient likelihood of economic injury to
    establish standing,” Clinton v. City of New York, 
    524 U.S. 417
    , 432, 
    118 S. Ct. 2091
    , 2101 (1998), it is unclear whether a reduction in bargaining power
    unaccompanied by economic injury or other concrete injury can constitute an
    injury in fact. We do not reach this issue because Texas’s other alleged injury
    in fact is sufficient to support standing.
    injury of being compelled to participate in an invalid administra-
    tive process, and we agree that standing exists on this basis.
               At the outset of IGRA’s enforcement process, the statute
    provides for tribe-initiated court review of a state’s good faith.
    Once a tribe makes a prima facie showing, the state has the
    opportunity to prove its good faith to the court and forestall the
    remainder of the enforcement process, which includes court-ordered
    mediation and possible secretarial approval of gaming procedures.
    Texas interprets this as a statutory promise that states will be
    spared   mediation    and   secretarial    action   unless    a   court   has
    determined that the state negotiated in bad faith.
               Contrary    to   Appellees’    suggestion   that    Texas   faces
    nothing more than the possibility that the Secretary might someday
    approve of gaming procedures for Kickapoo land, Texas is presently
    being subjected to an administrative process involving mediation
    and secretarial approval of gaming procedures even though no court
    has found that Texas negotiated in bad faith.                 Because Texas
    challenges the Secretary’s authority to undertake this process,
    Texas has alleged a sufficient injury for standing purposes.              Cf.
    Thomas v. Union Carbide Agric. Prods. Co., 
    473 U.S. 568
    , 580, 
    105 S. Ct. 3325
    , 3332 (1985) (holding that a challenge to a statutory
    system of arbitration was ripe because the plaintiffs’ “injury
    [was] not a function of whether the [arbitration] tribunal awards
    reasonable   compensation     but   of    the   tribunal’s    authority    to
    adjudicate the dispute”); Middle S. Energy Inc. v. Ark. Pub. Serv.
    772 F.2d 404
    , 410 (8th Cir. 1985) (challenge to a state
    agency’s    ongoing    proceedings     was   ripe   because    the   plaintiff
    “challenge[d] not the state’s ultimate substantive decision but its
    authority to even conduct the contemplated proceeding”).                     The
    alleged    injury     is   not   hypothetical    because     the   Secretarial
    Procedures have already been applied to Texas:             The Kickapoo Tribe
    submitted a Class III gaming application to the Department of the
    Interior, the Secretary notified Texas and the tribe that the
    application met the relevant eligibility requirements, and the
    Secretary invited Texas to comment on the proposal and submit an
    alternative proposal.2       Texas’s only alternative to participating
    in this allegedly invalid process is to forfeit its sole oppor-
    tunity to comment upon Kickapoo gaming regulations, a forced choice
    that is itself sufficient to support standing.             See Union Carbide,
    473 U.S. at 582, 105 S. Ct. at 3333 (recognizing “the injury of
                In accordance with the Secretarial Procedures, the Department of the
    Interior informed the Kickapoo that their proposal was completed on December 11,
    2003.   See 25 C.F.R. § 291.6(b).     On May 24, 2007, the Secretary issued a
    preliminary “scope-of-gaming decision” in response to the tribe’s proposal.
    According to the Secretary,
          [t]he Tribe should be authorized to engage in the following gaming
          activities under Class III procedures pursuant to 25 U.S.C.
          § 2710(d)(7)(B)(vii)(I), subject to the requirements discussed in
          [the scope-of-gaming decision]: (1) traditional casino-style games;
          (2) any lottery game including keno, numbers and lotto; and (3) off-
          track pari-mutuel betting and pari-mutuel betting through
          simulcasting on any gaming activity occurring off Tribal lands. The
          Tribe is not authorized to operate gaming machines.
    This recent, preliminary scope-of-gaming decision illustrates the concrete impact
    of the choice that the Secretarial Procedures had forced Texas to make, as
    Texas’s decision to forgo this allegedly invalid process has left it unable to
    influence important decisions such as the type of gaming activities that the
    Secretary will allow on Kickapoo land.
    being forced to choose between relinquishing [the benefit of an
    unlawful adjudicatory process] . . . or engaging in an unconstitu-
    tional adjudication”).       As the Supreme Court observed in Lujan,
         [w]hen the suit is one challenging the legality of
         government action or inaction . . . [and] the plaintiff
         is himself an object of the action (or forgone action) at
         issue . . . , there is ordinarily little question that
         the action or inaction has caused him injury, and that a
         judgment preventing or requiring the action will redress
    504 U.S. at 561-62, 112 S. Ct. at 2137.                 We are satisfied that
    Texas has alleged an injury in this case.
                The   causation    and     redressability           requirements      for
    standing are satisfied as well.           The injury that Texas claims is
    directly traceable to the Secretary’s applying the Secretarial
    Procedures to Texas, and a judicial invalidation of the Secretarial
    Procedures would give Texas direct relief from being effectively
    forced to participate in this process.             Although the United States
    argues that Texas brought the injury on itself by invoking a
    sovereign   immunity      defense,   it     provides       no   support    for    the
    proposition   that   an    injury    cannot       be   fairly     traceable      to   a
    defendant if the plaintiff’s acts motivated the defendant to
    undertake   its   injurious    acts.        The    State    did    not    cause   the
    Secretary of the Interior to promulgate the Secretarial Procedures,
    nor did it cause the Secretary to apply the process to Texas.                     The
    State’s sovereign immunity defense is a prerequisite to secretarial
    action only because the Secretarial Procedures so provide.
              Accordingly, Texas has standing to challenge the validity
    of the Secretarial Procedures.
                                2.    Ripeness
              [The] basic rationale [of the ripeness
              doctrine] is to prevent the courts, through
              avoidance of premature adjudication, from
              entangling themselves in abstract disagree-
              ments over administrative policies, and also
              to   protect  the   agencies  from   judicial
              interference until an administrative decision
              has been formalized and its effects felt in a
              concrete way by the challenging parties.
    Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 148-49, 
    87 S. Ct. 1507
    , 1515
    (1967), overruled on other grounds, Califano v. Sanders, 
    430 U.S. 99
    97 S. Ct. 980
     (1977).        To determine if a case is ripe for
    adjudication, a court must evaluate (1) the fitness of the issues
    for judicial decision, and (2) the hardship to the parties of
    withholding court consideration.        See id. at 149.   The fitness and
    hardship prongs must be balanced, Am. Forest & Paper Ass’n v. EPA,
    137 F.3d 291
    , 296 (5th Cir. 1998), and “[a] case is generally ripe
    if any remaining questions are purely legal ones.”           New Orleans
    Pub. Serv., Inc. v. Council of the City of New Orleans, 
    833 F.2d 583
    , 587 (5th Cir. 1987).   Yet “even where an issue presents purely
    legal questions, the plaintiff must show some hardship in order to
    establish ripeness.”3           Cent. & Sw. Servs. v. EPA, 
    220 F.3d 683
    , 590
    (5th Cir. 2000).
                     A challenge to administrative regulations is fit for
    review if (1) the questions presented are “purely legal one[s],”
    (2) the challenged regulations constitute “final agency action,”
    and   (3)    further        factual    development          would      not       “significantly
    advance [the         court’s]     ability       to       deal   with    the       legal   issues
    presented.”         Nat’l Park Hospitality Ass’n v. Dep’t of Interior,
    538 U.S. 803
    , 812, 
    123 S. Ct. 2026
    , 2032 (2003) (internal quotation
    marks and citations omitted); Abbott Labs., 387 U.S. at 149-54,
    87    S. Ct.       1515-18.      An     additional         consideration           is   “whether
    resolution of the issues will foster effective administration of
    the statute.”            Merchs. Fast Motor Lines, Inc. v. ICC, 
    5 F.3d 911
    920 (5th Cir. 1993); Abbott Labs., 387 U.S. at 154, 87 S. Ct. at
                     Appellees do not dispute that the issues involved in this
    case are purely legal, but their arguments with regard to the
    remaining fitness principles are all based on the mistaken belief
    that Texas’s alleged injury is the speculative harm that could
    result      if     the     Secretary     were       ultimately         to    approve      gaming
    procedures        for     Kickapoo     land.        As    discussed         in    the   standing
                   Texas relies on a case from another circuit for the proposition
    that hardship is an issue only if a case is not fit for review. See Fla. Power
    & Light v. EPA, 
    145 F.3d 1414
    , 1421 (D.C. Cir. 1998) (“When a challenged decision
    is not ‘fit’ for review, the petitioner must show ‘hardship’ in order to overcome
    a claim of lack of ripeness.”). We need not explore this contention here.
    inquiry, this is incorrect, as Texas claims present injury from
    submission to an invalid agency process, regardless whether the
    Secretary ultimately allows gaming on Kickapoo land.
                With this distinction in mind, Texas’s claims are fit for
    adjudication.    The challenged Secretarial Procedures are a “final
    agency action,” as they are final rules that were promulgated
    through a    formal,   notice-and-comment   rulemaking   process   after
    announcement in the Federal Register.       See Abbott Labs., 387 U.S.
    at 150-51, 87 S. Ct. at 1516-17.    Additional fact-finding would not
    aid our inquiry into the purely legal question of their validity.
    And resolution of this issue now will give both the Secretary and
    Congress significant guidance into how IGRA’s provisions may be
    administered in the particular situation addressed in this case.
    Appellees submit no relevant arguments as to why this issue is not
    presently fit for judicial resolution.
                We also agree with Texas that it would suffer hardship if
    we were to withhold consideration of its claims.     The Supreme Court
    has found hardship to inhere in legal harms, such as the harmful
    creation of legal rights or obligations; practical harms on the
    interests advanced by the party seeking relief; and the harm of
    being “force[d] . . . to modify [one’s] behavior in order to avoid
    future adverse consequences.”      Oh. Forestry Ass’n v. Sierra Club,
    523 U.S 726, 734, 
    118 S. Ct. 1671
     (1998).      Texas faces this third
    type of harm.    If Texas cannot challenge the Procedures in this
    lawsuit, the State is forced to choose one of two undesirable
    options:      participate    in   an   allegedly     invalid   process    that
    eliminates a procedural safeguard promised by Congress, or eschew
    the process with the hope of invalidating it in the future, which
    risks the approval of gaming procedures in which the state had no
    input.     See Abbott Labs., 387 U.S. at 152, 87 S. Ct. at 1517
    (finding hardship    where    administrative       regulations   forced    the
    plaintiffs either to comply with a challenged requirement and incur
    significant costs or refuse to comply and risk prosecution); cf.
    Union Carbide, 473 U.S. at 581, 105 S. Ct. at 3333 (finding
    hardship    where   the     plaintiffs      “suffer[ed]    the   continuing
    uncertainty and expense of depending for compensation on a process
    whose authority is undermined because its constitutionality is in
                We therefore agree with Texas that its challenge to the
    Secretarial Regulations is ripe for adjudication.
                                      B.   Merits
                On the merits, to which we now turn, Texas contends that
    the Procedures violate the constitutional separation of powers and
    nondelegation doctrines and are contrary to and unauthorized by
    IGRA or any other federal statute.              To avoid resolution of any
    constitutional issues, it is sufficient to consider whether the
    Procedures are authorized by IGRA or the general Indian trust
    statutes under the Chevron test.
                               1.     Statutory Background
                To put this dispute in clearer perspective, one must
    recall that although states have no constitutional authority over
    Indian reservations, Congress had consistently authorized states to
    regulate or prohibit certain activities on the reservations.                        The
    Supreme   Court    significantly         altered    the     assumed    state-tribal
    relationship      when,    in     the    1987    Cabazon     Band     decision,      it
    expansively interpreted a federal statute to prevent states from
    prohibiting certain tribal gambling activities.
                Congress responded to Cabazon Band by finishing work on
    IGRA, a gambling-enabling statute for Indian reservations that had
    been pending in the legislative process for several years.                         It is
    unnecessary to repeat our previous summary of the statute’s complex
    provisions.     Suffice it to say that among those provisions is a
    “carefully crafted and intricate remedial scheme”4 whereby, if a
    tribe and state do not voluntarily enter a compact for Class III
    gaming, the principal alternative is for the tribe to sue the state
    in federal court and secure a determination that the state had not
    negotiated in good faith.5              25 U.S.C. § 2710(d)(7)(A)(i).              What
    constitutes     good-faith         negotiating      by     the    state       is   left
    unexplained.       An     easy,    minimal      inference    is   that    a    state’s
                Seminole Tribe, 517 U.S. at 73-74, 116 S. Ct. at 1132.
                Even after Seminole Tribe, the federal government may sue a state on
    behalf of a tribe to pursue IGRA’s remedial process without jurisdictional
    insistence upon its general policy against legalized Class III
    gambling would constitute “good faith,” but that determination,
    along with numerous other issues such as the necessary “fit”
    between a state’s policy and the scope of Class III gaming sought
    by a tribe, is left to a federal court — a clearly neutral forum.
    Under IGRA, a federal court finding that the state negotiated in
    good faith ends the bargaining process.            On a finding of lack of
    good   faith,     however,      the    court    may     order    negotiation,
    § 2710(d)(7)(B)(iii), then mediation.           § 2710(d)(7)(B)(iv).         The
    court appoints a mediator.        If a state refuses to consent to the
    mediator’s proposed compact (which must blend the “last best
    offers” of     each   party),    the   Secretary   is   then    authorized    to
    prescribe procedures that will bind the state.                  Moreover, the
    Secretary must adopt procedures “consistent with the [mediator’s]
    proposed compact . . . .”       § 2710(d)(7)(B)(vii)(I).        This statutory
    balance   on    its   face   cabins    the   Secretary’s   authority    while
    implanting neutral factfinders on the decisive questions of good
    faith and the final imposition of a compact on an unwilling or
    uncooperative state.
               Absent the Seminole Tribe decision, this remedial plan is
    self-contained and fully sufficient.            No one contends that the
    Secretary could have promulgated his alternative Procedures under
    IGRA before Seminole Tribe was decided. Nonetheless, the Appellees
    insist that IGRA implicitly conferred on the Secretary the power to
    substitute the Secretarial Procedures for the judicial remedy
    foreclosed by Seminole Tribe.           This court must therefore move into
    the   realm    of   the      Chevron   doctrine   to   determine     whether    the
    Secretarial     Procedures       faithfully    interpret      IGRA   or,   as   the
    Appellees also assert, the general Indian trust statutes.                       See
    Class   III    Gaming     Procedures,     64   Fed.    Reg.   17,535-02,   17,536
    (Apr. 12, 1999) (Secretary asserts authority to prescribe the
    Procedures based on the statutory delegation of powers contained in
    25 U.S.C. § 2710(d)(7)(B)(vii) of IGRA and 25 U.S.C. §§ 2 and 9).
                            2.    Chevron Step-One Analysis
                  The authority of administrative agencies is constrained
    by the language of the statute they administer.               See Massachusetts
    v. EPA, __U.S.__, 
    127 S. Ct. 1438
    , 1462 (2007).               Under the Chevron
    doctrine, courts assess the validity of challenged administrative
    regulations by determining whether (1) a statute is ambiguous or
    silent concerning the scope of secretarial authority and (2) the
    regulations reasonably flow from the statute when viewed in context
    of the overall legislative framework and the policies that animated
    Congress’s design.        See Chevron, U.S.A., Inc. v. Natural Res. Def.
    Council, Inc., 
    467 U.S. 837
    , 842-43, 
    104 S. Ct. 2778
    , 2781-82
                  Under Chevron step one, the inquiry is “whether Congress
    has directly spoken to the precise question at issue.”                Id. at 842,
    104 S. Ct. at 2781.          Judicial deference is due only “if the agency
    interpretation is not in conflict with the plain language of the
    statute.”     Nat’l R.R. Passenger Corp. v. Boston & Maine Corp.,
    503 U.S. 407
    , 417, 
    112 S. Ct. 1394
    , 1401 (1992) (citing K Mart
    Corp. v. Cartier, Inc., 
    486 U.S. 281
    , 292, 
    108 S. Ct. 1811
    , 1818
    (1988)).    Step one includes challenges to an agency’s interpreta-
    tion of a statute, as well as whether the statute confers agency
    jurisdiction    over    an   issue.        See   generally   FDA   v.    Brown   &
    Williamson Tobacco Corp., 
    529 U.S. 120
    120 S. Ct. 1291
    “Regardless of how serious the problem an administrative agency
    seeks to address, however, it may not exercise its authority ‘in a
    manner that is inconsistent with the administrative structure that
    Congress enacted into law.’”           Id. at 125, 120 S. Ct. at 1297
    (quoting ETSI Pipeline Project v. Missouri, 
    484 U.S. 495
    , 517, 
    108 S. Ct. 805
    , 817 (1988)).6
                As was shown above in our discussion of the statute, the
    plain language of IGRA permits limited secretarial intervention
    only as a last resort, and only after the statute’s judicial
    remedial    procedures       have   been    exhausted.       See    25    U.S.C.
    § 2710(d)(7)(B)(i)-(vi). Congress did not explicitly authorize the
    Secretarial Procedures.         Under Chevron step one, when, as here,
    “the statute is clear and unambiguous, that is the end of the
    matter; for [this] court, as well as the agency, must give effect
                Additionally, courts “must be guided to a degree by common sense as
    to the manner in which Congress is likely to delegate a policy decision of such
    economic and political magnitude to an administrative agency.” Chevron, 467 U.S.
    at 133, 120 S. Ct. at 1301.
    to the unambiguously expressed intent of Congress.”                        K Mart,
    486 U.S. at 291, 108 S. Ct. at 1817 (quoting Bd. of Governors of
    the Fed. Reserve Sys. v. Dimension Fin. Corp., 
    474 U.S. 361
    , 368,
    106 S. Ct. 681
    , 685 (1986)); Chevron, 467 U.S. at 842-43, 104
    S. Ct. at 2781-82.7
                 Chevron deference “comes into play, of course, only as a
    consequence of statutory ambiguity, and then only if the reviewing
    court finds an implicit delegation of authority to the agency.”
    Sea-Land Serv., Inc. v. Dep’t of Transp., 
    137 F.3d 640
    , 645 (D.C.
    Cir. 1998) (citing Chevron, 467 U.S. at 842-44, 104 S. Ct. at 2781-
    83). Thus, even if there were an ambiguity concerning whether IGRA
    permits     the    Secretarial   Procedures        without    exhaustion    of   its
    judicially-controlled remedy, an equally salient fact is that
    “[m]ere ambiguity in a statute is not evidence of congressional
    delegation of authority.”         Michigan v. EPA, 
    268 F.3d 1075
    , 1082
    (D.C. Cir. 2001)(citing cases); Montana v. Clark, 
    749 F.2d 740
    , 745
    (D.C.     Cir.    1984)   (“[D]eference       to   an    agency’s   interpretation
    constitutes a judicial determination that Congress has delegated
    the     norm-elaboration      function    to       the    agency    and   that   the
                It is noteworthy that the “Indian canon” of statutory construction
    has no bearing on this case because IGRA unambiguously defines the scope of
    secretarial authority and the conditions under which such authority may be
    lawfully exercised. See Negonsott v. Samuels, 
    507 U.S. 99
    , 110, 
    113 S. Ct. 1119
    1125-26 (1993) (courts do not “resort to [the Indian] canon of statutory
    construction” when a statute is unambiguous (citation omitted)); Cabazon Band of
    Mission Indians v. Nat’l Indian Gaming Comm’n, 
    14 F.3d 633
    , 637 (D.C. Cir. 1994)
    (“When the statutory language is clear, as it is here, the [Indian] canon may not
    be employed.”).
    interpretation     falls   within     the       scope   of   that     delegation.”
    (emphasis in original) (citation omitted)).               The Appellees’ argu-
    ment   attempts   to    obviate    Chevron’s        delegation   requirement     by
    contending that, despite IGRA’s meticulous description of the
    protracted remedial prelude to the Secretary’s involvement in
    approving Class III gaming without a state’s consent, this court
    can nonetheless discover a silent, or “implicit,” delegation of
    secretarial authority. That is, Appellees contend that even though
    Congress specifically       addressed         the   circumstances     under   which
    secretarial authority can be exercised — and even though those
    circumstances     are   absent    here    —    the   Secretary’s      actions   are
    justifiable because IGRA does not explicitly address the Eleventh
    Amendment issue that arose in the wake of Seminole Tribe.
               Courts encountering this kind of “whatever-it-takes”
    approach to Chevron analysis in the past have rejected it.                      See,
    e.g., Platte River Whooping Crane Critical Habitat Maint. Trust v.
    962 F.2d 27
    , 33 (D.C. Cir. 1992) (appeals to a statute’s
    broad purposes do not allow the discovery of implicit delegations
    of authority when Congress has explicitly delineated the boundaries
    of delegated authority).         When Congress has directly addressed the
    extent of authority delegated to an administrative agency, neither
    the agency nor the courts are free to assume that Congress intended
    the Secretary to act in situations left unspoken.                   See Nat’l R.R.
    Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 
    414 U.S. 453
    94 S. Ct. 690
    , 693 (1974) (“When a statute limits a thing to
    be done in a particular mode, it includes the negative of any other
    mode.” (quoting Botany Worsted Mills v. United States, 
    278 U.S. 282
    , 289, 
    49 S. Ct. 129
    , 132 (1929))).8            Accordingly, adminis-
    trative agencies and the courts are “bound, not only by the
    ultimate purposes Congress has selected but by the means it has
    deemed appropriate, and prescribed, for the pursuit of those
    purposes.”      MCI Telecomm. Corp. v. AT&T Corp., 
    512 U.S. 218
    , 231
    114 S. Ct. 2223
    , 2232 n.4 (1994) (emphasis added).
                  Thus, at the heart of the Appellees’ delegation argument
    is the assumption that since Congress did not explicitly withhold
    secretarial rulemaking authority in the event that a tribe is
    unable to obtain a judicial determination of the state’s bad faith,
    the ensuing congressional “silence” creates an implicit delegation
    under Chevron to promulgate Class III gaming regulations.
                  That is an inaccurate interpretation of the nature of the
    delegation inquiry under Chevron’s first step.          “Agency authority
    may not be lightly presumed.”       Michigan, 268 F.3d at 1082.        “Were
    courts   to    presume   a   delegation   of   power   absent   an   express
    withholding of such power, agencies would enjoy virtually limitless
    hegemony, a result plainly out of keeping with Chevron and quite
    likely with the Constitution as well.”         Ethyl Corp. v. EPA, 
    51 F.3d 8
                See also Pub. Serv. Comm. of State of N.Y. v. FERC, 
    866 F.2d 487
    491-92 (D.C. Cir. 1989) (executive agencies “cannot enlarge the choice of
    permissible procedures beyond those that may fairly be implied from the
    substantive sections and the functions there defined”).
    1053, 1060 (D.C. Cir. 1995); Michigan, 268 F.3d at 1082.9                     It
    stands to reason that when Congress has made an explicit delegation
    of authority to an agency, Congress did not intend to delegate
    additional authority sub silentio.          See Backcountry Against Dumps
    v. EPA, 
    100 F.3d 147
    , 151 (D.C. Cir. 1996) (finding that explicit
    congressional     delegation     of   authority     precludes     an   implicit
    delegation more expansive than Congress’s express terms).                Courts
    recognize an implicit delegation of rulemaking authority only when
    Congress has not spoken directly to the extent of such authority,
    or has “intentionally left [competing policy interests] to be
    resolved by the agency charged with administration of the statute.”
    Chevron 467 U.S. at 865-66, 104 S. Ct. at 2793.
                In IGRA, Congress plainly left little remedial authority
    for the Secretary to exercise.          The judicially-managed scheme of
    good-faith litigation, followed by negotiation, then mediation,
    allows the Secretary to step in only at the end of the process, and
    then only to adopt procedures based upon the mediator’s proposed
    compact.    The Secretary may not decide the state’s good faith; may
    not require or name a mediator; and may not pull out of thin air
    the compact provisions that he is empowered to enforce.                To infer
                Nor can congressional silence on an issue be used as a panacea
    justifying rulemaking authority untethered from any trace of congressional
    intent. “To suggest, as the [Secretary] effectively does, that Chevron step two
    is implicated any time a statute does not expressly negate the existence of a
    claimed administrative power . . . is both flatly unfaithful to the principles
    of administrative law and refuted by precedent.” Am. Bar Ass’n v. FTC, 
    430 F.3d 457
    , 468 (D.C. Cir. 2005) (quoting Ry. Labor Executives’ Ass’n v. Nat’l Mediation
    29 F.3d 655
    , 671 (D.C. Cir. 1994) (en banc) (emphasis in original)).
    from this limited authority that the Secretary was implicitly
    delegated the ability to promulgate a wholesale substitute for the
    judicial process amounts to logical alchemy.
                 Citing Seminole Tribe, Appellees further contend that a
    judicial decision can, ex post facto, create a Chevron-type “gap”
    that introduces ambiguity into the operation of a statutory scheme
    and thereby authorizes an administrative agency to step in and
    remedy     the   ambiguity.      This    claim   ignores     Chevron’s    well-
    established      requirement    that     any   delegation-engendering        gap
    contained in a statute, whether implicit or explicit, must have
    been “left open by Congress,” not created after the fact by a
    court.      Chevron, 467 U.S. at 866, 104 S. Ct. at 2793 (emphasis
                Moreover, no other circuit court to have considered the propriety of
    the Secretarial Procedures in light of IGRA has discovered the statutory gap
    purportedly created by Seminole Tribe.      The Eleventh Circuit has suggested
    without any analysis that if a state asserted Eleventh Amendment immunity against
    a tribe’s lawsuit, the judicial good-faith determination was severable and
    unnecessary, and the Secretary could simply enforce against the state regulations
    governing Class III gaming. See Seminole Tribe of Fla. v. Florida, 
    11 F.3d 1016
    1029 (11th Cir. 1994), aff’d, 
    517 U.S. 44
    116 S. Ct. 1114
     (1996). A close
    reading of the Eleventh Circuit’s decision, however, demonstrates that it meant
    to allow the Secretary to proceed under IGRA as if a judicial finding of lack of
    good faith had been made and a court-appointed mediator failed to bring the
    parties to terms. See id. (citing § 2710(d)(7)(B)(vii) as the basis for the
    Secretarial Procedures). Nowhere does the Eleventh Circuit claim that a state’s
    exercise of Eleventh Amendment sovereign immunity creates a statutory gap.
    Likewise, considering IGRA in the wake of the Supreme Court’s Seminole Tribe
    decision, the Ninth Circuit reaffirmed the centrality of the statutory balancing
    of interests in IGRA’s remedial scheme, yet did not mention the apparent gap
    Appellees claim was created by the Supreme Court. See United States v. The
    Spokane Tribe of Indians, 
    139 F.3d 1297
    , 1299-1300 (9th Cir. 1998).
                 Although      later    enacted        statutory     provisions        may   be
    relevant to determine congressional intent for purposes of Chevron
    ambiguity, see Brown & Williamson, 529 U.S. at 143-44, 120 S. Ct.
    at 1306-07, there is no support for the proposition that later
    court decisions affect or effect ambiguity.                     Chevron’s delegation
    inquiry     gauges    congressional        intent        that   is    independent    from
    subsequent administrative or judicial constructions of a statute.
    See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 
    545 U.S. 967
    , 982, 
    125 S. Ct. 2688
    , 2700 (2005)(“[W]hether Congress has
    delegated to an agency the authority to interpret a statute does
    not depend on the order in which the judicial and administrative
    constructions occur.”); see also Bowen v. Georgetown Univ. Hosp.,
    488 U.S. 204
    , 208, 
    109 S. Ct. 468
    , 471 (1988)(“It is axiomatic that
    an     administrative      agency’s        power     to     promulgate        legislative
    regulations is limited to the authority delegated by Congress.”).
    Accordingly, even though court interpretation of IGRA produced the
    unexpected result that a state may “veto” Class III gaming by
    exercising its Eleventh Amendment sovereign immunity, that outcome
    has no      bearing   on   the     scope    of     the    administrative       authority
    originally delegated by Congress to the Secretary.
                 When it so desires, Congress has the power to confer
    expansive     interpretive         authority       on     agencies      to    accommodate
    changing or unpredictable circumstances. See, e.g., Massachusetts,
    __U.S. at__, 127 S. Ct. at 1462 (“The broad language of [Clean Air
    Act]    §   202(a)(1)      reflects     an       intentional         effort   to   confer
    flexibility necessary to forestall . . . obsolescence.”).                Like-
    wise, Congress knows well how to cabin agency authority through
    specific definitions that pretermit flexible interpretation.              See,
    e.g.,   Ethyl   Corp.,   51   F.3d   at   1058    (Congress   unambiguously
    expressed   that   waiver     decisions    made    under   Clean   Air     Act
    § 211(f)(4) are based exclusively on one criterion).           However, the
    fact that later-arising circumstances cause a statute not to
    function as Congress intended does not expand the congressionally-
    mandated, narrow scope of the agency’s power.              For example, in
    evaluating the validity of the Federal Reserve’s interpretation of
    the Bank Holding Company Act in Dimension Financial, the Supreme
    Court observed that:
         Congress defined with specificity certain transactions
         that constitute banking subject to regulation.        The
         statute may be imperfect, but the [Federal Reserve] Board
         has no power to correct flaws that it perceives in the
         statute it is empowered to administer. Its rulemaking
         power is limited to adopting regulations to carry into
         effect the will of Congress as expressed in the statute.
         If the Bank Holding Company Act falls short of providing
         safeguards desirable or necessary to protect the public
         interest, that is a problem for Congress, not that Board
         or the courts, to address.
    Dimension Fin. at 374-75, 106 S. Ct. at 689.11                  In strikingly
    similar    terms,    the   Seminole    Tribe    Court    rejected    Florida’s
    invitation to prescribe a remedy unsupported by the language and
    legislative history of IGRA.          517 U.S. at 76, 116 S. Ct. at 1133
    (“Nor are we free to rewrite [IGRA’s] statutory scheme in order to
    approximate what we think Congress might have wanted had it known
    that § 2710(d)(7) was beyond its authority.             If that effort is to
    be made, it should be made by Congress, not by the federal
                Under the Chevron analysis, the question is whether Congress could
    be said to have delegated explicit or implicit authority to the agency to deal
    with an issue. We focus here on implicit delegation since IGRA indisputably does
    not address the post-Seminole Tribe state of affairs. The Dissent suggests that
    Congress effects an implicit delegation of legislative authority each time it
    decides an issue and withholds power from the agency in so doing. Following this
    ungainly line of reasoning to its conclusion, the Dissent would hold that any
    time a court overturns a statute speaking expressly to an administrative issue,
    the agency has been delegated de facto implicit authority to revise the procedure
    as it sees fit. That result stands Congress’s exertion of power on it head,
    transforms a denial of agency authority into an implicit delegation thereto, and
    radically undercuts the Supreme Court’s attempt in Chevron to distinguish between
    congressional power and agency authority in a principled way. In the Indian
    gaming context, Congress reacted to the Cabazon Band decision by adopting a
    highly complex scheme to balance the tribal-state interests inherent in Indian
    gaming.   Congress could have simply authorized the Secretary to promulgate
    compacts however he chose to do so, or, it could have refrained from acting
    entirely. It took neither route. Instead, it explicitly withheld power from the
    Secretary to accomplish IGRA’s balancing scheme. As Dimension Financial states,
    no court decision can restore power that was withheld by Congress.
                  This comment was made in the context of the Supreme Court’s
    rejection of a judicially crafted Ex Parte Young remedy — not the Secretarial
    Procedures at issue in this appeal. But Florida’s proposed Ex Parte Young remedy
    was rejected by the Supreme Court because, like the Secretarial Procedures, it
    was contrary to the “carefully crafted and intricate remedial scheme set forth
    in § 2710(d)(7)” by Congress. Seminole Tribe, 517 U.S. at 73-74, 116 S. Ct. at
    1132. The Supreme Court’s reason for rejecting the Ex Parte Young remedy thus
    applies with equal force to the Secretarial Procedures here. Nevertheless, we
    acknowledge that the Court explicitly refused to consider the Eleventh Circuit’s
    “substitute remedy” of Secretarial Procedures. Id. at 76, 116 S. Ct. at 1133;
    see also 
    517 U.S. 1133
    116 S. Ct. 1416
     (1996) (mem.).
              Nor does the fact that judicial interpretation of a
    statute leads to consequences unforeseen by Congress make a statute
    “ambiguous” within the meaning of Chevron.   See, e.g., Exxon Mobil
    Corp. v. Allapattah Servs., Inc., 
    545 U.S. 546
    , 567, 
    125 S. Ct. 2611
    , 2625 (2005)(rejecting legislative history that might have
    demonstrated Congress “did not intend” to overrule a case because
    the statutory language was unambiguous that Congress did in fact
    overrule the case); In re Abbott Labs., 
    51 F.3d 524
    , 528-29 (5th
    Cir. 1995) (applying the plain meaning of a statute even though
    that construction “may have been a clerical error”); see also
    Thompson v. Goetzmann, 
    337 F.3d 489
     (5th Cir. 2003).   In Thompson,
    the Department of Health & Human Services sought deference for its
    interpretation of a particular term, as construed in the applicable
    regulations and in its lawsuit for Medicare reimbursement.       The
    court stated:
         [W]e reiterate that the courts are not in the business of
         amending legislation. If the plain language of the MSP
         statute produces the legislatively unintended result
         claimed by the government, the government’s complaint
         should be addressed to Congress, not to the courts, for
         such revision as Congress may deem warranted, if any.
    Id. at 493.   Court decisions cannot serve to dilate or contract the
    scope of authority delegated by Congress to an administrative
    agency because delegation is a matter of legislative intent, not
    judicial interpretation.     Thus, if Congress did not originally
    intend   to    confer    rulemaking    authority,    the    Secretary    cannot
    synthesize that authority from a judicial opinion.13
                  3.   Reasonableness of Secretarial Procedures
                             Under Chevron’s Step Two
                  Even were we to conclude under the Chevron step-one
    analysis that Seminole Tribe effected a sub rosa delegation of
    administrative       authority    allowing     the   Secretary      to   ignore
    Congress’s         explicit    limitation      of     his     authority       in
    § 2710(d)(7)(B)(vii), the Secretarial Procedures still cannot pass
    muster under Chevron step two because they do not reasonably
                 The United States’ analogy to the Coal Act cases fails to lend
    support to its endorsement of the unauthorized actions Interior has taken in this
    case.    The Fourth Circuit’s decision in The Pittston Co. v. United States,
    368 F.3d 385
     (4th Cir. 2004), stands only for the proposition that an
    administrative agency’s interpretation of a statute in light of a subsequent
    judicial decision may be permissible if that interpretation is (1) faithful to
    the authority Congress originally delegated to the agency and (2) does not
    contradict the plain language of the statute. That uncontroversial stance shares
    our view that the scope of authority delegated by Congress to an administrative
    agency is not altered by subsequent developments. See, e.g., Brand X, 545 U.S.
    at 983, 125 S. Ct. at 2700. As the Pittston court recognized, the beneficiary
    reassignments undertaken by the Social Security Commissioner in the wake of
    Eastern Enterprises v. Apfel, 
    524 U.S. 498
    118 S. Ct. 2131
     (1998), did not
    “violate[] or disturb[] the structure of the Coal Act . . . . [The Commissioner]
    followed the Coal Act’s assignment structure to the letter. . . . [T]he fact and
    method of applying the Coal Act . . . have not changed.” 368 F.3d at 404-05; see
    also A.T. Massey Coal Co. v. Holland, 
    472 F.3d 148
    , 167 (4th Cir. 2006)
    (“[D]elegation must appear from the statute itself, not from the agency’s
    actions”); Sidney Coal Co. v. Soc. Sec. Admin., 
    427 F.3d 336
    , 347 n.15 (6th Cir.
    2005). The same cannot be said of the Secretary’s actions. In stark contrast
    to the Commissioner’s reassignments in Pittston, here the Secretary did not
    promulgate Class III gaming regulations that correspond to the structure of IGRA.
    Instead, the Secretary has erected an ersatz remedial scheme that exceeds the
    authority Congress delegated to the Secretary under IGRA’s remedial provisions.
    Pittston does not support the creation of a novel remedial scheme never
    envisioned by Congress and specifically contradictory of Congress’s expressed
    intent concerning the scope of secretarial rulemaking. The application of a
    preexisting remedial scheme to a narrower pool of plan participants that was
    approved in Pittston is not remotely analogous to the wholesale invention of the
    remedial scheme that we are confronted with in the Secretarial Procedures.
    Pittston lends no support for the unprecedented “gapfilling” that the Secretary
    has undertaken in this case.
    effectuate Congress’s intent for IGRA.        “If [the agency’s] choice
    represents a reasonable accommodation of conflicting policies that
    were committed to the agency’s care by the statute,” a court will
    not disturb that choice “unless it appears from the statute or
    legislative history that the accommodation is not one that Congress
    would have sanctioned.”        Chevron, 467 U.S. at 845, 104 S. Ct. at
    2783 (quoting United States v. Shimer, 
    367 U.S. 374
    , 382-83, 
    81 S. Ct. 1554
    , 1560-61 (1961)); see also United States v. Riverside
    Bayview Homes, Inc., 
    474 U.S. 121
    , 131, 
    106 S. Ct. 455
    , 462 (1985)
    (Chevron step two entails evaluation of agency action “in light of
    the language, policies and legislative history of the Act.”).              In
    any   event,     “[p]olicy     considerations       cannot   override     our
    interpretation of the text and structure of the Act.”             Cent. Bank
    of Denver, N.A., v. First Interstate Bank of Denver, N.A., 
    511 U.S. 164
    , 188, 
    114 S. Ct. 1439
    , 1453-54 (1994).           “The judiciary is the
    final authority on issues of statutory construction and must reject
    administrative     constructions     which    are     contrary    to    clear
    congressional intent.”       Chevron, 467 U.S. at 843 n.9, 104 S. Ct. at
    2782 n.9.    Thus, as with the delegation inquiry, Chevron step two
    compels a judicial evaluation of congressional intent. Because the
    Secretary’s    actions   clearly    violate   IGRA’s    intent,    they   are
                In IGRA, Congress struck a “finely-tuned balance between
    the interests of the states and the tribes” to remedy the Cabazon
    Band prohibition on state regulation of Indian gaming.                 United
    States v. Spokane Tribe of Indians, 
    139 F.3d 1297
    , 1301 (9th Cir.
    1998); S. REP. NO. 100-446, at 2 (1988), as reprinted in 1988
    U.S.C.C.A.N. 3071, 3071-72 (noting Cabazon Band’s holding that
    tribes “have a right to conduct gaming activities on Indian lands
    unhindered by State regulation”).           Congress attempted to “provide
    a means by which tribal and State governments can realize their
    unique and individual governmental objectives” by giving tribes the
    opportunity to negotiate a Class III gaming compact, and by giving
    states the protection of an objective judicial intermediary in case
    negotiations prove unsuccessful. S. REP. NO. 100-446, at 13 (1988),
    as reprinted in 1988 U.S.C.C.A.N. 3071, 3083.
                The lynchpin of IGRA’s balancing of interests is the
    tribal-state compact.        Melding the provisions for negotiation of a
    compact with the remedial structure ultimately included in IGRA
    took over five years to accomplish legislatively.14                 Moreover,
    IGRA’s legislative history amply demonstrates that Congress viewed
    the compact as an indispensable prerequisite to Class III gaming.
    See   id.   at   6,   as   reprinted   in   1988   U.S.C.C.A.N.   3071,    3076
    (“[IGRA] does not contemplate and does not provide for the conduct
    of Class III gaming activities on Indian lands in the absence of a
    tribal-State compact”); id. (“tribes will be unable to enter into
    [Class III] gaming unless a compact is in place”).                    Congress
                The legislation to enable Indian gaming was first introduced as
    H.R. 4566, 97th Cong. (1983), by Representative Morris Udall in 1983. S. 555,
    100th Cong. (1988), introduced by Senator Daniel Inouye, was enacted into law as
    IGRA in 1988.
    considered — and rejected — other remedial structures that did not
    guarantee states such protections.            The legislature eventually
    settled on IGRA’s judicial remedy and the tribal-state compact
    requirement as the “best mechanism to assure that the interests of
    both sovereign entities are met with respect to the regulation of
    complex gaming enterprises.”         Id. at 13, as reprinted in 1988
    U.S.C.C.A.N. 3071, 3083.
               Congressional intent on this score is pellucid. In order
    to conduct Class III gaming, tribes must either: (1) negotiate a
    voluntary compact with the state, see 25 U.S.C. § 2710(d)(3)(A)-
    (C); (2) obtain the state’s agreement to the mediator-selected
    compact   that   follows   the     judicial    good-faith    process,    see
    § 2710(d)(7)(B)(iii)-(vi); or (3) obtain secretarial Class III
    procedures    based   on     the    mediator-selected        compact,    see
    §   2710(d)(7)(B)(vii)(I).       Absent   a   tribal-state    compact,   the
    statute forbids tribes to offer Class III gaming.
               The tribal-state compact is in fact so central to the
    IGRA process that it is the only means by which the tribe can avoid
    incurring liability under other federal statutes that regulate
    Indian gaming.    Two statutes, both of which antedate IGRA, are
    relevant to this issue.      First, the Johnson Act, 15 U.S.C. § 1175
    et seq., prohibits the possession or use of “any gambling device
    . . . within Indian country.”        Id. § 1175(a).    Second, 18 U.S.C.
    § 1166 punishes gambling in Indian country in derogation of state
    law.   Congress coordinated IGRA with these criminal provisions by
    providing that the tribal-state compact is the exclusive means of
    avoiding gaming-related         violations.15      Apart    from    the   limited
    circumstances in which IGRA allows Class III gaming to be imposed
    by   the   Secretary    following    exhaustion      of   the   judicial      good-
    faith/mediation process, Class III gaming remains illegal in Indian
    country without a tribal-state compact.
                The role the Secretary plays and the power he wields
    under the Procedures bear no resemblance to the secretarial power
    expressly    delegated     by   Congress     under    IGRA.        First,     IGRA
    interposes, before any secretarial involvement, the requirement
    that an impartial factfinder determine whether the state has
    negotiated in good faith.          See § 2710(d)(7)(B)(iii).          Under the
    Secretarial Procedures, however, it matters not that a state
    undertook good-faith negotiations with the tribe:                  The Secretary
    may prescribe Class III gaming irrespective of a state’s good
    faith.     See 25 C.F.R. § 291.7-.8.          This result contravenes the
    plain language of IGRA.
                Second, under IGRA, if mediation is ordered, it is
    undertaken     by   a   neutral,    judicially-appointed           mediator     who
    objectively weighs the proposals submitted by the state and tribe.
                See IGRA § 2710(d)(6) (Johnson Act does not apply to gaming conducted
    under a tribal-state compact); see also United States v. Cook, 
    922 F.2d 1026
    1034 (2d Cir. 1991) (Johnson Act liability waived only by a Class III gaming
    compact between a state and tribe).        Likewise, 18 U.S.C. § 1166(c)(2),
    referencing IGRA, excepts “class III gaming conducted under a Tribal-State
    compact.” See, e.g., Mashantucket Pequot Tribe v. Connecticut, 
    913 F.2d 1024
    1031 (2d Cir. 1990) (tribal-state compact required for waiver of 18 U.S.C. § 1166
    See § 2710(d)(7)(B)(iv).           Under the Procedures, however, the
    Secretary selects the mediator.           25 C.F.R. § 291.9.        In light of
    the Secretary’s statutory trust obligation to protect the interests
    of Indian tribes, this aspect of the Procedures is stacked against
    the objective interest-balancing Congress intended and creates the
    strong impression of a biased mediation process.                     See, e.g.,
    Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v.
    43 F.3d 1491
    , 1499 (D.C. Cir. 1995) (noting that “the
    Secretary was not in a position to champion the State’s position in
    view of his trust obligations to the tribe.” (citing Heckman v.
    United    States,   
    224 U.S. 413
    ,    444-45,   32   S.   Ct.   424,   433-34
    (1912))). Common sense dictates that the Secretary cannot play the
    role of tribal trustee and objective arbiter of both parties’
    interests simultaneously.         Congress did not intend this incoherent
                Third, whereas under IGRA’s remedial scheme the court-
    appointed mediator essentially defines the regulations that the
    Secretary may promulgate, the Procedures enable the Secretary to
    disregard not only the mediator’s proposal, but also the proposals
    of the state and tribe.16        IGRA’s remedial process makes clear that
                Compare § 2710(d)(7)(B)(vii) (“the mediator shall notify the
    Secretary and the Secretary shall prescribe . . . procedures (I) which are
    consistent with the proposed compact selected by the mediator under clause (iv))
    with 25 C.F.R. § 291.11(c) (“If the Secretary rejects the mediator’s proposal
    . . . he/she must prescribe appropriate procedures within 60 days under which
    Class III gaming may take place that comport with the mediator’s selected
    proposal as much as possible, the provisions of IGRA, and the relevant provisions
    of the laws of the State.”).
    Congress did not intend to delegate to the Secretary unbridled
    power to prescribe Class III regulations.
                Fourth, the Secretarial Procedures contemplate Class III
    gaming in the absence of a tribal-state compact — directly in
    derogation of Congress’s repeated and emphatic insistence.                 See,
    e.g., S. REP. NO. 100-446, at 6 (1988), as reprinted in 1988
    U.S.C.C.A.N. 3071, 3076 (“[IGRA] does not contemplate and does not
    provide for the conduct of class III gaming activities on Indian
    lands in the absence of a tribal-State compact.”).17                 The only
    exception to the compact requirement Congress envisioned was the
    promulgation of procedures after a bad-faith determination and in
    concert with the proposal selected by a court-appointed mediator.
    Yet in spite of this single statutory exception — the product of
    IGRA’s complex and balanced remedial scheme — Appellees maintain it
    is equally reasonable to assume that Congress intended a waiver of
    liability under the Johnson Act and 18 U.S.C. § 1166 even without
    a judicial determination of bad faith; without the participation of
    a court-appointed mediator; and without the requirement that the
    regulations ultimately promulgated be “consistent with the proposed
                Department of the Interior and Related Agencies Appropriations Act,
    Pub. L. No. 105-83, 111 Stat. 1543, 1570 (1998) (“SENSE OF THE SENATE CONCERNING
    INDIAN GAMING. It is the sense of the Senate that the United States Department
    of Justice should vigorously enforce the provisions of the Indian Gaming
    Regulatory Act requiring an approved Tribal-State gaming compact prior to the
    initiation of class III gaming on Indian lands.”)
    compact      selected       by     the        [court-appointed]      mediator.”
    § 2710(d)(7)(b)(vii)(I).18
                For   all    these    reasons,      the   Secretary’s    Class    III
    Procedures are not a reasonable interpretation of IGRA, especially
    when viewed against “their place in the overall statutory scheme.”
    Brown & Williamson, 529 U.S. at 133, 120 S. Ct. at 1301.                      The
    Secretary, of course, is not authorized to promulgate regulations
    in violation of federal law, see Sohappy v. Hodel, 
    911 F.2d 1312
    1320 (9th Cir. 1990), yet the Secretarial Procedures stand in
    direct violation of IGRA, the Johnson Act, and 18 U.S.C. § 1166
    insofar as they may authorize Class III gaming without a compact.
    Because “the Executive Branch is not permitted to administer the
    Act in a manner that is inconsistent with the administrative
    structure that Congress enacted into law,” and because doing so
    constitutes an unreasonable interpretation of Congress’s intent,
                  Commentators have noted the problems with the Procedures.        See
    Rebecca S. Lindner-Cornelius, Note, The Secretary of the Interior as Referee: The
    States, The Indian Nations, and How Gambling Led to the Illegality of the
    Secretary of the Interior’s Regulations in 25 C.F.R. § 291, 84 MARQUETTE L. REV.
    685, 695 (2001) (arguing that the regulations are unconstitutional and noting
    that “when a state claims it has negotiated in good faith to no avail, the only
    recourse it is left with is a biased factfinder who can do what it wants without
    any state input”); Nicholas S. Goldin, Note, Casting a New Light on Tribal Casino
    Gaming: Why Congress Should Curtail the Scope of High Stakes Indian Gaming,
    84 CORNELL L. REV. 798, 843-44 (1999) (arguing that the Procedures are “troubling”
    because the Secretary “assumes a massive unilateral power that Congress did not
    intend to delegate” and because the Procedures “make a travesty of the concept
    of federalism and in its place substitute a system in which Washington claims it
    knows best what state laws mean”); Joe Laxague, Note, Indian Gaming and Tribal-
    State Negotiations: Who Should Decide the Issue of Bad Faith?, 25 J. LEGIS. 77,
    91 (1999) (arguing that the Procedures “do both parties a disservice and badly
    skew the balance of interests intended by Congress when it wrote the IGRA”).
    the Secretarial Procedures cannot pass muster under Chevron step
    two.   ETSI Pipeline Project, 484 U.S. at 157, 108 S. Ct. at 817.
                       4.    General Authority Statutes
               An alternative contention raised by Appellees is that
    secretarial authority to promulgate the Procedures derives from the
    general   Indian   trust    statutes    when    read   in   concert     with
    § 2710(d)(7)(B)(vii).       See 25 U.S.C. §§ 2, 9; 64 Fed. Reg.
    17,535-02, 17,536 (Apr. 12, 1999). To be sure, courts may consider
    “generally   conferred     authority”   in   the   statutory   scheme     to
    determine the propriety of administrative agency action.              United
    States v. Mead Corp., 
    533 U.S. 218
    , 229, 
    121 S. Ct. 2164
    , 2172
    (2001).   But sections 2 and 9 do not grant Interior “a general
    power to make rules governing Indian conduct.”         Organized Vill. of
    Kake v. Egan, 
    369 U.S. 60
    , 63, 
    82 S. Ct. 562
    , 564 (1962).        Instead,
    the authority Congress there delegated to the Secretary only allows
    prescription of regulations that implement “specific laws,” id.,
    and that are consistent with other relevant federal legislation.
    See Morton v. Ruiz, 
    415 U.S. 199
    , 232, 
    94 S. Ct. 1055
    , 1073 (1974);
    N. Arapahoe Tribe v. Hodel, 
    808 F.2d 741
    , 748 (10th Cir. 1987)
    (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 
    401 U.S. 402
    91 S. Ct. 814
     (1971)).            Thus, in Village of Kake, the
    Secretary issued fishing regulations ostensibly permitted under the
    White Act and the Alaska Statehood Act.        However, the regulations,
    which allowed the Kake community to operate four fish traps,
    violated Alaska’s anti-fish-trap and conservation law.               Because
    Interior could point to no affirmative statutory grant of authority
    that allowed the Secretary to issue regulations in derogation of
    state law, the Supreme Court held that the Secretary had exceeded
    the authority granted by sections 2 and 9.         Id. at 62, 82 S. Ct. at
    564.   Village of Kake demonstrates that the Secretary lacks carte
    blanche to issue regulations pursuant to a generalized grant of
    authority untethered from the confines of preexisting statutorily
    defined rights.        See United States v. Eberhardt, 
    789 F.2d 1354
    1360 (9th Cir. 1986).
                For example, in Eberhardt, the Ninth Circuit approved
    secretarial regulations imposing a moratorium on commercial fishing
    on the Hoopa Valley Reservation.         The court held that the Secretary
    was authorized to issue the regulations pursuant to the preexisting
    fishing rights that were granted when Congress authorized creation
    of the Hoopa Valley Reservation by statute. See People v. McCovey,
    685 P.2d 687
    , 697 (Cal. 1984) (citing Menominee Tribe v. United
    391 U.S. 404
    , 405-06, 
    88 S. Ct. 1705
    , 1707 (1968)).                 In
    similar     fashion,     the   caselaw     overwhelmingly    confirms     that
    sections 2 and 9 do not empower issuance of regulations without a
    statutory    antecedent.       See,   e.g.,   Washington    v.   Wash.   State
    Commercial Passenger Fishing Vessel Assoc., 
    443 U.S. 658
    , 691, 
    99 S. Ct. 3055
    , 3077 (1979) (sections 2 and 9 effectuate rights
    granted by treaty); N. Arapahoe Tribe, 808 F.2d at 749 (general
    trust statutes “together with the Treaty . . . provide the neces-
    sary authority for the Secretary to enact these regulations.”);
    United States v. Michigan, 
    623 F.2d 448
    , 450 (6th Cir. 1980)
    (upholding secretarial regulations governing rights conferred by
                  IGRA, however, does not guarantee an Indian tribe the
    right to conduct Class III gaming and therefore cannot serve as a
    statutory antecedent justifying the Secretarial Procedures.                  IGRA
    grants tribes the right to negotiate the terms of a tribal-state
    compact, see       25   U.S.C.    §   2710(d)(3)(A),    and    by   agreement   to
    “regulate class III gaming on its Indian lands concurrently with
    the State.” § 2710(d)(5).             Tribes, likewise, have the right to
    bring      suit   against   a    state   for   its   failure   “to   enter   into
    negotiations with the Indian tribe.”                 See § 2710(d)(7)(A)(i).
    Seminole Tribe, of course, clarified that the tribe’s right is
    subject to the state’s exercise of an affirmative jurisdictional
                 In addition to the requirement that the regulations be issued in
    accordance with the rights conferred on the tribe by existing federal
    legislation, here, IGRA courts have recognized that sections 2 and 9 address the
    protection and management of “Indian trust resources” – typically natural
    resources or property. See, e.g., Washington v. Wash. State Commercial Passenger
    Fishing Vessel Assoc., 
    443 U.S. 658
    99 S. Ct. 3055
     (1979) (fishing rights);
    Chippewa Indians of Minn. v. United States, 
    301 U.S. 358
    57 S. Ct. 826
    (land allotment); Pyramid Lake Paiute Tribe of Indians v. United States Dep’t of
    898 F.2d 1410
     (9th Cir. 1990) (fisheries preservation); N. Arapahoe Tribe
    v. Hodel, 
    808 F.2d 741
     (10th Cir. 1987) (hunting and fishing rights); see also
    Morton v. Ruiz, 
    415 U.S. 199
    94 S. Ct. 1055
     (1974) (payment of general
    assistance benefits authorized under 25 U.S.C. § 13); Seminole Nation v. United
    316 U.S. 286
    62 S. Ct. 1049
     (1942) (money held in trust by the United
    States). Appellees’ assertion that sections 2 and 9 apply here assumes that
    anticipated gambling revenues constitute an Indian trust resource within the
    meaning of those statutes. This assertion is especially unjustified since, under
    IGRA, after a tribal-state compact is in place the Secretary has no role
    whatsoever in the management or oversight of Class III gaming. See 25 U.S.C.
    § 2710(d)(5).
    defense under the Eleventh Amendment. In any case, the Secretary’s
    acting under sections 2 and 9 cannot sidestep IGRA’s remedial
    process for two reasons.      First, there would have been no reason
    for IGRA to prescribe any procedures had Congress been willing to
    or believed it could entrust them entirely to the Secretary’s
    general powers.   Second, the fact that IGRA clearly limited the
    Secretary’s intervention into Class III gaming compacts constitutes
    the best evidence of congressional intent to limit the Secretary’s
                               IV.    CONCLUSION
              The   Secretarial      Procedures    violate   the   unambiguous
    language of IGRA and congressional intent by bypassing the neutral
    judicial process that centrally protects the state’s role in
    authorizing tribal Class III gaming.      Congress, to be sure, could
    omit states entirely from Class III gaming regulation. See Cabazon
    Band, 480 U.S. at 207, 107 S. Ct. at 1087.               But we need not
    speculate on legislative alternatives that Congress might adopt in
    response to Seminole Tribe.         Suffice it here to say that the
    balance Congress did strike cannot be wholly revised by substitute
    procedures that contradict Congress’s explicit statutory instruc-
    tions.   The Secretarial Procedures are invalid and constitute an
    unreasonable interpretation of IGRA. When, as here, “the intent of
    Congress is clear, that is the end of the matter; for the court, as
    well as the agency, must give effect to the unambiguously expressed
    intent of Congress.”     Chevron, 467 U.S. at 842-43, 104 S. Ct. at
               Pursuant to the foregoing discussion, we REVERSE the
    district   court’s   judgment   and    REMAND   for   further   proceedings
    consistent with this opinion.
               REVERSED and REMANDED.
    KING, Circuit Judge, concurring in part and in the judgment:
          I concur in Part III.A of the opinion, which deals with justiciability. On
    the merits, I concur only in the judgment, reversing the district court’s
    conclusion that the Secretary of the Interior (“Secretary”) had the authority to
    promulgate the challenged regulations.
          In my view, the lack of any provision in the Indian Gaming Regulatory Act
    (“IGRA”) addressing the dismissal of an Indian tribe’s enforcement suit on
    sovereign immunity grounds is a statutory gap that is akin to the gap recognized
    in Pittston Co. v. United States, 
    368 F.3d 385
    , 403-04 (4th Cir. 2004), and
    Sidney Coal Co. v. Social Security Administration, 
    427 F.3d 336
    , 346 (6th Cir.
    2005). Those cases held that the Social Security Commissioner had implicit
    authority to fill a gap exposed by the Supreme Court’s invalidation of a portion
    of the Coal Industry Retiree Health Benefit Act of 1992; in this case the
    Secretary’s general authority to effectuate statutes relating to Indian affairs
    provides analogous gap-filling power with regard to IGRA. See 25 U.S.C. §§ 2,
    9; Morton v. Ruiz, 
    415 U.S. 199
    , 231 (1974); Organized Village of Kake v. Egan,
    369 U.S. 60
    , 63 (1962).
          However, the Secretary's authority to effectuate IGRA's provisions does
    not include the power to jettison some of those provisions in the cause of
    gap-filling, regardless of whether they no longer seem wise or appropriate in
    light of events that Congress did not foresee. In my opinion, the method used by
    the Secretary to fill the gap here—creating an alternative remedial scheme that
    allows the Secretary to issue Class III gaming procedures without Congress’s
    chosen prerequisites of a court determination of a state’s bad faith and court-
    directed mediation, see 25 U.S.C. § 2710(d)(7)—goes beyond the mere
    effectuation of IGRA’s provisions into the realm of wholesale statutory
    amendment.     Cf. Gonzales v. Oregon, 
    546 U.S. 243
    , 258 (2006) (“Chevron
    deference . . . is not accorded merely because the statute is ambiguous . . . . To
    begin with, the rule must be promulgated pursuant to authority Congress has
    delegated to the official.”).    By omitting those prerequisites, though for
    understandable reasons, the Secretary’s method fails to preserve the core
    safeguards by which state interests are protected in Congress’s “carefully crafted
    and intricate remedial scheme.” Seminole Tribe of Fla. v. Florida, 
    517 U.S. 44
    73-74 (1996); cf. Ragsdale v. Wolverine World Wide, Inc., 
    535 U.S. 81
    , 91 (2002)
    (invalidating an administrator’s remedial regulation that “worked an end run
    around important limitations of the [relevant] statute’s remedial scheme” by
    allowing a penalty to be imposed without the threshold court determination
    provided for by the statute). And despite a state’s unforeseen and unintended
    ability to prevent the necessary court involvement from occurring, the Secretary
    “has no power to correct flaws that [he] perceives in the statute [he] is
    empowered to administer. [His] rulemaking power is limited to adopting
    regulations to carry into effect the will of Congress as expressed in the statute.”
    Bd. of Governors v. Dimension Fin. Corp., 
    474 U.S. 361
    , 374 (1986).
          Today’s decision returns IGRA’s Class III gaming system to the
    complicated situation that existed after the Supreme Court’s decision in
    Seminole Tribe, with a state having the leverage to block gaming on Indian land
    under IGRA in a manner wholly contrary to Congress’s intent. Alternatively,
    one could argue that a tribe dealing with a state that will not negotiate or
    consent to an enforcement suit is no longer bound by IGRA’s prohibition on
    gaming without a compact, depending on the circumstances. See, e.g., United
    States v. Spokane Tribe of Indians, 
    139 F.3d 1297
     (9th Cir. 1998). We do not
    resolve these difficulties here, as they are not before this court. But because
    neither result is consistent with IGRA’s design, the situation clearly calls for
    congressional action.
    DENNIS, Circuit Judge, dissenting.
          The State of Texas permits certain types of gaming equivalent to Class III
    gaming as defined by the IGRA. But Texas adamantly refuses to negotiate with
    the Kickapoo Traditional Tribe towards a Class III gaming compact under the
    IGRA and has blocked the tribe from seeking a remedy in federal court by
    invoking its right to Eleventh Amendment sovereign immunity from suit.
    Therefore, the Tribe pursued its only alternate remedy of asking the Secretary
    of the Interior to issue Class III gaming procedures under the Secretarial
    Gaming Procedures, 25 C.F.R. §§ 291.1-291.15. The Secretary requested
    comment from the State of Texas pursuant to 25 C.F.R. § 291.7, but the state
    declined to comment. The Secretary has not yet taken final action on the Tribe’s
          The State of Texas brought this action against the Secretary, the
    Department of the Interior and the United States challenging the authority of
    the Secretary to promulgate the Secretarial Gaming Procedures regulations and
    seeking to permanently enjoin the application of 25 C.F.R. § 291.1, et seq., in
    respect to the state of Texas. The Kickapoo Traditional Tribe intervened. The
    district court ruled that Texas’s claims were not ripe, but expressed its opinion
    that the regulations were validly promulgated and should be upheld. Texas v.
    United States, 
    362 F. Supp. 2d 765
     (W.D. Tex. 2004). Texas appealed. The
    defendants-appellees and the intervener contend that Texas’s suit should be
    dismissed because it lacks standing, its claim is not ripe, and the Secretarial
    Gaming Procedures regulations are valid. I pretermit the serious standing and
    ripeness issues but dissent from the merits of Chief Judge Jones’ opinion,
    portions of Judge King’s opinion, and the judgment for the following reasons.
          The principles governing our review of the Secretary’s interpretation and
    implementation of the pertinent statutes are well established. Administrative
    implementation of a particular statutory provision qualifies for Chevron
    deference when it appears that Congress delegated authority to the agency
    generally to make rules carrying the force of law, and that the agency
    interpretation claiming deference was promulgated in the exercise of that
    authority. United States v. Mead Corp., 
    533 U.S. 218
     (2001); see also Chevron,
    U.S.A., Inc. v. Natural Res. Def. Council, Inc., 
    467 U.S. 837
    Congressional delegation to an administrative agency of authority generally to
    make rules carrying the force of law may be shown in a variety of ways, as by an
    agency’s power to engage in adjudication or notice-and-comment rule-making,
    or by some other indication of a comparable congressional intent. Mead, 533 U.S.
    at 227.
          When Congress has explicitly left a gap for an agency to fill, there is an
    express delegation of authority to the agency to elucidate a specific provision of
    the statute by regulation, and any ensuing regulation is binding in the courts
    unless procedurally defective, arbitrary or capricious in substance, or manifestly
    contrary to the statute. Id. Considerable weight should be accorded to an
    executive department’s construction of a statutory scheme it is entrusted to
    administer. Id. “The power of an administrative agency to administer a
    congressionally created and funded program necessarily requires the
    formulation of policy and the making of rules to fill any gap left, implicitly or
    explicitly, by Congress.” Morton v. Ruiz, 
    415 U.S. 199
    , 231-32 (1974).
          When circumstances imply that Congress would expect an agency to be
    able to speak with the force of law, even though Congress may not have
    expressly delegated authority or responsibility to implement a particular
    provision, a reviewing court has no business rejecting an agency’s exercise of its
    generally conferred authority to resolve a particular statutory ambiguity simply
    because the agency’s chosen resolution seems unwise, and instead is obliged to
    accept the agency’s position if Congress has not previously spoken to the point
    at issue and the agency’s interpretation is reasonable. Id. at 229.
          The regulations challenged here, pertaining to the Secretarial Gaming
    Procedures, deserve Chevron deference because Congress explicitly authorized
    the Secretary to promulgate regulations to carry into effect any statute relating
    to Indian affairs or arising out of Indian relations, see 25 U.S.C. §§ 1a, 2 & 9;
    and implicitly authorized the Secretary to promulgate the regulations at issue
    here to fill the gap in the IGRA created by Congress’s unintentional failure to
    provide for the unforeseen ineffectiveness of a federal court suit as the tribal
    remedy in cases in which a state refused to bargain in good faith and invoked its
    Eleventh Amendment sovereign immunity; the regulations are reasonably
    designed and appropriate for carrying into effect the IGRA after the
    ineffectiveness of its remedial provision was revealed by Seminole Tribe of
    Florida v. Florida, 
    517 U.S. 44
     (1996); and the regulations are binding in the
    courts because they are not procedurally defective, arbitrary or capricious in
    substance, or manifestly contrary to the statutes.
          Beginning in 1832 and 1834, Congress explicitly authorized the President
    through the Secretary of the Interior to “prescribe such regulations as he may
    think fit for carrying into effect the various provisions of any act relating to
    Indian affairs, and for the settlement of the accounts of Indian affairs,” 25 U.S.C.
    § 9; and to authorize the Commissioner of Indian affairs to, “under the direction
    of the Secretary of the Interior, and agreeably to such regulations as the
    President may prescribe, have the management of all Indian affairs and of all
    matters arising out of Indian relations.” 25 U.S.C. § 2.1 Acting pursuant to these
    broad powers, the Secretary has, following formal notice-and-comment rule-
    making procedures, promulgated procedures governing numerous programs and
    activities related to Indian affairs and relations.
          Prior to the enactment of the IGRA, states generally were precluded from
    any regulation of gaming on Indian reservations. California v. Cabazon Band of
    Mission Indians, 
    480 U.S. 202
     (1987). The IGRA, by offering states an
    opportunity to participate with Indian tribes in establishing gaming through a
    tribal-state compact, “extend[ed] to the States a power withheld from them by
    the Constitution.” Seminole, 517 U.S. at 58. Consequently, it is clear that before
    the enactment of the IGRA, the Secretary could have adopted, under 25 U.S.C.
    §§ 1a, 2, & 9, regulations approving and governing gambling on Indian
    reservations to the extent it was not prohibited by general state laws.
          Congress’s enactment of the IGRA in 1988 did not in any way diminish the
    broad powers of the President or the Secretary to “prescribe such regulations as
    he may think fit for carrying into effect ... any act relating to Indian affairs ... or
    [management of] matters arising out of Indian relations.” See 25 U.S.C. §§ 2 &
    9. When the Supreme Court subsequently held in Seminole that Congress is not
               See Morton v. Ruiz, 
    415 U.S. 199
     (1974); see also 25
    U.S.C. § 1a.
    authorized by the Indian commerce clause to abrogate a state’s Eleventh
    Amendment sovereign immunity, this unforeseen event disclosed the
    ineffectiveness of the remedy Congress had granted tribes in the IGRA to sue
    recalcitrant states in federal court. The immediate result was that states could,
    as Texas has done, refuse to bargain and invoke sovereign immunity against a
    tribe’s federal court remedy. This revealed that after Seminole the tribes had no
    remedy to enforce the IGRA, a gap in the statute that Congress had not
    anticipated and had unintentionally failed to provide for. Under these
    circumstances, it became the Secretary’s clear duty to use his broad rule-making
    powers under 25 U.S.C. §§ 1a, 2 and 9 to provide alternate remedies and
    procedures necessary to carry the IGRA into effect. Nothing in the IGRA or its
    legislative history indicates an intention to prevent the Secretary from retaining
    and putting his broad rulemaking powers to this use.
          The purpose of the IGRA is not simply to establish a neutral bargaining
    forum; IGRA’s purpose is to affirmatively help Indian tribes enter and conduct
    the business of gaming, where gaming is not prohibited by state laws of general
    application, as a means of “promoting tribal economic development,
    self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702(1). The IGRA
    federal court action remedy was “designed to ensure the formation of a
    Tribal-State compact.” Seminole, 517 U.S. at 49-50. Because this remedy has
    been shown to be inoperative by Seminole, the Secretary’s Gaming Procedures
    are consistent with the purpose and provisions of the IGRA and are the most
    reasonable regulations that could be administratively prescribed to carry the
    IGRA into effect.
          With respect, there is no valid basis for Chief Judge Jones’s assertion that
    a judicial interpretation of a statute cannot lead to an ambiguity, gap or
    unprovided for case susceptible to the Chevron step-two analysis. To the
    contrary, there is no other way for a court to identify a statutory ambiguity or
    gap than through the process of judicial interpretation.
          The argument that a court decision “creates” a gap is based on a theory
    inconsistent with the common-law tradition of the federal courts. The prevailing
    view is that the judicial power vested in the federal courts allows them to declare
    what the law already is, rather than to create new law as the Chief Judge’s
    argument presupposes that the Court did in Seminole. See American Trucking
    Associations, Inc. v. Smith, 
    496 U.S. 167
    , 201 (1990) (Scalia, J., concurring in
    judgment); Linkletter v. Walker, 
    381 U.S. 618
    , 622-23 (1965). Under the
    prevailing Supreme Court view, the ambiguity or gap in the IGRA was created
    by the Congress when it unintentionally chose and enacted a constitutionally
    ineffectual tribal remedy, and not by the Court in the Seminole decision. The
    Supreme Court’s principles governing retroactive application of its decisions
    reflect this view: “When this Court applies a rule of federal law to the parties
    before it, that rule is the controlling interpretation of federal law and must be
    given full retroactive effect in all cases still open on direct review and as to all
    events, regardless of whether such events predate or postdate our announcement
    of the rule.” Harper v. Virginia Dep’t of Taxation, 
    509 U.S. 86
    , 97 (1993).2 Under
    prevailing Supreme Court theory, the Seminole decision is and always was the
    law. The Supreme Court does not create law, it discovers it - and the Supreme
    Court did not create the gap in this case, but merely declared its existence.
    Congress itself created the gap or ambiguity by mistakenly overestimating its
    powers and passing a statute that could not be constitutionally applied as
    Congress intended.
          The claim that a Chevron gap does not exist when a judicial decision has
    demonstrated an ambiguity in the statute has been emphatically rejected by
    other courts. In A.T. Massey Coal Co. v. Holland, 
    472 F.3d 148
    , 168 (4th Cir.
    2006), the Fourth Circuit discussed a case in which a gap was “created when the
    Supreme Court found a portion of [a] provision unconstitutional.” It held that
               For a full discussion of the history of the common law
    retroactivity principle and the Supreme Court’s recent return to
    the traditional view that it discovers law, rather than makes it,
    see Hulin v. Fibreboard Corp., 
    178 F.3d 316
    , 329-33 (5th Cir.
    “[o]nce that gap was created, the agency was left with an open policy space,
    which was the quintessence of legislative-type action to which Chevron deference
    was due.” Id. In another case, Pittston Co. v. United States, 
    368 F.3d 385
    , 403-04
    (4th Cir. 2004), the Fourth Circuit considered a gap disclosed by a judicial
    decision holding a portion of the Coal Act to be unconstitutional:
          In drafting the Coal Act, Congress did not contemplate that some
          members     of   the   “signatory   operators”    group   could    not
          constitutionally be required to contribute to the Combined Fund.
          The situation faced by the Commissioner was thus the kind of “case
          unprovided for” that allows her to engage in gap-filling. See
          Barnhart v. Peabody Coal Co., 
    537 U.S. 149
    , 169 (2003).
    Id. The Sixth Circuit agreed that a gap for Chevron purposes was created when
    a portion of the Coal Act proved to be unintentionally ineffective. Sidney Coal
    Co. v. Soc. Sec. Admin., 
    427 F.3d 336
    , 346 (6th Cir. 2005) (holding that a gap
    existed because “the Coal Act contains no language as to how the SSA should
    have handled the precise question raised by the Eastern Enterprises holding”).
          Chief Judge Jones’s attempt to distinguish these cases is unpersuasive and
    circular. She contends that because Congress must be able to foresee each gap
    and each agency rule chosen to fill it, the Secretary’s remedial scheme here to
    fill the gap exceeds the scope of the authority delegated by Congress; so that, the
    gap created by judicial decision recognized in Pittson and A.T. Massey could not
    have existed in the first place. This is a tortured logic that conflates two
    fundamentally distinct questions: was there a gap or ambiguity, and if so, did
    the Secretary exceed its authority in attempting to fill it?
          Contrary to the suggestion of Chief Judge Jones, the language of Chevron
    does not require that Congress must be able to envision a future gap or
    ambiguity and the particular provision that the agency may choose to fill it or
    clarify it before it can come within the scope of the agency’s implicitly authorized
    rulemaking. “[I]t can still be apparent from the agency's generally conferred
    authority and other statutory circumstances that Congress would expect the
    agency to be able to speak with the force of law when it addresses ambiguity in
    the statute or fills a space in the enacted law, even one about which Congress did
    not actually have an intent as to a particular result.” Mead, 533 at 229
    (quotations omitted) (emphasis added). Congress may “create” a gap by explicitly
    delegating a question of interpretation to an agency; Chevron, 467 U.S. at 843-
    44; by implicitly doing so; id. at 844; or by simply remaining silent “with respect
    to the specific issue;” id. at 843. It is inherent in the policymaking process that
    some unforeseen event, or “case unprovided for,” could render a portion of a
    statute ambiguous or meaningless. See Barnhart v. Peabody Coal Co., 
    537 U.S. 149
    , 169 (2003). The Ninth Circuit best described the situation that confronted
    the Secretary and now confronts us:
          We are left, then, with a tribe that believes it has followed IGRA
          faithfully and has no legal recourse against a state that allegedly
          hasn’t bargained in good faith. Congress did not intentionally create
          this situation and would not have countenanced it had it known
          then what we know now.
    United States v. Spokane Tribe of Indians, 
    139 F.3d 1297
    , 1302 (9th Cir. 1998).
    There is no support for the suggestion that Congress cannot, through its
    unintentional silence, create a gap or an ambiguity concerning how to enforce
    the IGRA after a portion of it, the sole tribal remedy originally chosen, has been
           Chief Judge Jones further errs in contending that there has been no
    explicit or implicit congressional delegation of authority to the Secretary of the
    Interior to promulgate gap-filling regulations under the IGRA. Contrary to her
    assertions, the Secretary does not hang his hat on a mere failure of Congress to
    expressly withhold a delegation of agency authority. Rather, the Secretary of the
    Interior is the agency Congress would have expected to fill any such gap, given
    the powers granted to it under the IGRA and its general authority statutes.
    Chief Judge Jones focuses narrowly on the particular IGRA provision at issue
    here, relying conclusively on the fact that the IGRA itself does not contain an
    express delegation of agency authority to provide an alternate tribal remedy.
    The Supreme Court, by contrast, has instructed us to broaden our inquiry
    outside of the particular provision we are reviewing to include all statutes and
    circumstances pertaining to the agency’s powers:
          Congress, that is, may not have expressly delegated authority or
          responsibility to implement a particular provision or fill a particular
          gap. Yet it can still be apparent from the agency's generally
          conferred authority and other statutory circumstances that
          Congress would expect the agency to be able to speak with the force
          of law when it addresses ambiguity in the statute or fills a space in
          the enacted law, even one about which “Congress did not actually
          have an intent” as to a particular result. When circumstances
          implying such an expectation exist, a reviewing court has no
          business rejecting an agency’s exercise of its generally conferred
          authority to resolve a particular statutory ambiguity simply because
          the agency's chosen resolution seems unwise, but is obliged to accept
          the agency’s position if Congress has not previously spoken to the
          point at issue and the agency’s interpretation is reasonable....
    Mead, 533 U.S. at 229 (internal citations omitted). Instead of inquiring into
    whether Congress would have expected the Secretary of the Interior to address
    any ambiguities in the IGRA, Chief Judge Jones focuses on whether the
    particular IGRA statutory provision at issue included a delegation of authority
    to the Secretary - an analysis that is both contrary to the Supreme Court’s
    admonition in Mead and that would impose an impractical burden on Congress
    of including express delegations of an agency’s authority to administer every
    provision of every statute under its aegis.
           Chief Judge Jones’s analysis of the general authority statutes and the
    IGRA itself is similarly unpersuasive. Her opinion rejects the significance of 25
    U.S.C. §§ 2 & 9, the general authority statutes for the Department of the
    Interior, based on a misplaced reliance on the Supreme Court’s decision in
    Organized Village of Kake v. Egan. 
    369 U.S. 60
     (1962). Kake is a weak authority
    for her position for several reasons. Even if it made the sweeping holdings Chief
    Judge Jones attributes to it, the case was decided in 1963 and did not conduct
    the modern analysis required by more recent cases such as Chevron and Mead.
    A greater difficulty for Chief Judge Jones is that while it does indeed include
    language to the effect that these sections do not grant the Interior “a general
    power to make rules governing Indian conduct,” that language was not the
    holding of the court in that case. That language was, instead, a quotation from
    an Interior Department Handbook, and was not expressly adopted by the Court.
    The Court’s actual legal holding with respect to the scope of the general
    authority statutes was confined to a single sentence: “We agree that they do not
    support the fish-trap regulations.” Kake, 369 U.S. at 63. Most significantly, in
    Kake the Court was analyzing a situation in which other Congressional
    legislation, the White Act, had expressly narrowed the authority of the Secretary
    of the Interior under 25 U.S.C. §§ 2 and 9 in the specific area in which he
    attempted to act. Id. at 62-63. It was also plain that, unlike in this case, there
    was no underlying statute being enforced and the Secretary was not attempting
    to “implement specific laws” - a power the Handbook referenced by the Supreme
    Court in Kake concluded was granted to Interior under the general authority
    statutes. Id.
          Chief Judge Jones’s reliance on United States v. Eberhardt, 
    789 F.2d 1354
    (9th Cir. 1986), similarly distorts the actual holding of the case. Her opinion
    omits that court’s holding that “the general trust statutes in Title 25 do furnish
    Interior with broad authority to supervise and manage Indian affairs and
    property commensurate with the trust obligations of the United States.” Id. at
    1360. In distinguishing Kake and concluding that the general authority statutes
    were broad in scope, the Eberhardt court added that “Congress must be assumed
    to have given Interior reasonable power to discharge its broad responsibilities
    for the management of Indian affairs effectively.” Id. at 1361.
          Chief Judge Jones’s opinion further avoids referencing other cases that
    have also come to the conclusion that the Secretary of the Interior has
    comprehensive powers under the general authority statutes to effectuate other
    Indian-related legislation. The D.C. Circuit, from which her opinion eagerly
    borrows in other sections, emphatically disagrees with a cramped view of the
    general authority statutes such as hers. That court described the powers of the
    Secretary of the Interior under the general authority statutes as follows:
          In charging the Secretary with broad responsibility for the welfare
          of Indian tribes, Congress must be assumed to have given him
          reasonable powers to discharge it effectively. Courts have taken this
          approach with respect to various aspects of Indian life, recognizing
          that ‘[this] statute furnishes broad authority for the supervision and
          management of Indian affairs and property commensurate with the
          obligation of the United States.’
          In our opinion the very general language of the statutes makes it
          quite plain that the authority conferred upon the Commissioner of
          Indian Affairs was intended to be sufficiently comprehensive to
          enable him, agreeably to the laws of Congress and to the supervision
          of the President and the Secretary of the Interior, to manage all
          Indian affairs, and all matters arising out of Indian relations, with
          a just regard, not merely to the rights and welfare of the public, but
          also to the rights and welfare of the Indians, and to the duty of care
          and protection owing to them by reason of their state of dependency
          and tutelage.
    Udall v. Littell, 
    366 F.2d 668
    , 672-73 (D.C. Cir. 1966) (internal citations and
    footnotes omitted). Other circuits have agreed that the Secretary’s powers to
    promulgate regulations to effectuate all Indian-related statues are broad in
    scope. See Armstrong v. United States, 
    306 F.2d 520
    , 522 (10th Cir. 1962) (“This
    statute furnishes broad authority for the supervision and management of Indian
    affairs and property commensurate with the obligation of the United States.”).
          Inexplicably, the Chief Judge’s opinion fails to acknowledge that,
    subsequent to Kake, the Supreme Court in Morton v. Ruiz, in articulating the
    keystone to the Chevron doctrine, simultaneously recognized that Congress
    intended for the Secretary of the Interior to play a major policy-making, rule-
    making, and gap-filling role in effectuating its Indian-related statutes. The
    Court plainly rejected an impracticably constrained view of the Secretary’s
    powers in stating:
          The power of an administrative agency to administer a
          congressionally created and funded program necessarily requires
          the formulation of policy and the making of rules to fill any gap left,
          implicitly or explicitly, by Congress. In the area of Indian affairs,
          the Executive has long been empowered to promulgate rules and
          policies, and the power has been given explicitly to the Secretary
          and his delegates at the BIA.
    415 U.S. at 231-32 (footnotes citing and quoting 25 U.S.C. §§ 2 & 9 as authority
          Pursuant to its general authority under 25 U.S.C. §§ 2 & 9, recognized so
    clearly by Morton v. Ruiz and later built upon in Chevron, the Secretary of the
    Interior has successfully promulgated regulations governing activities across the
    spectrum of Indian affairs. See 25 C.F.R. § 23.1 (regulating child and family
    service programs under the Indian Child Welfare Act); 25 C.F.R. § 89.30
    (approval of legal contracts with certain tribes); 25 C.F.R. § 166.1 (imposing
    grazing restrictions on tribal lands); 25 C.F.R. § 241.1 (regulating fishing on
    certain reservations); 25 C.F.R. § 150.1 (regulating the recording, certification,
    and use of title documents on tribal lands); 25 C.F.R. § 61.1 (regulating the
    management of rolls and membership lists of Indian tribes); 25 C.F.R. § 83.1
    (establishing procedures for determining whether a group constitutes an Indian
          Chief Judge Jones is further incorrect in suggesting that there is no
    “statutory antecedent” to support the Secretary’s regulations at issue here under
    the general authority statutes. The short answer to Chief Judge Jones’s
    suggested complaint, of course, is that there is an obvious “statutory antecedent”
    here - the IGRA itself, which clearly evinces Congress’s intent to empower the
    Secretary to authorize Indians to conduct gaming businesses on tribal
    reservations where not prohibited by general state laws and after giving states
    a full and fair opportunity to bargain in good faith over the specific terms of the
    individual tribal gaming regulations. It turns out, however, that her argument
    in this respect is simply another version of her argument against implicit agency
    authority, diametrically contrary to Chevron and Mead, to the effect that each
    separate Indian-related statute must explicitly authorize the Secretary to carry
    it into effect, i.e., that the general authority statutes alone do not really do what
    they purport to — empower the Secretary to prescribe regulations to effectuate
    subsequent Indian-related statutes. The cases upon which the Chief Judge
    relies, again, however, do not see her argument through. In the final analysis,
    they stand only for the simple proposition that in order for the Secretary to use
    his general authority under 25 U.S.C. §§ 2 and 9 to prescribe regulations to carry
    a subsequent statute into effect, there must first be a statute or a treaty to
    effectuate. See N. Arapahoe Tribe v. Hodel, 
    808 F.2d 741
    , 745-46 (10th Cir. 1987)
    (holding that 25 U.S.C. § 9 could not be applied unless it was to carry “into effect
    the various provisions of any act relating to Indian affairs,” but that a treaty
    could in effect substitute for an act or statute); United States v. Michigan, 
    623 F.2d 448
    , 450 (6th Cir. 1980) (holding only that the requirement is not a difficult
    one to meet and that a treaty can substitute for an “act relating to Indian
    affairs”). The Chief Judge’s opinion plays a linguistic game, using the phrase
    “statutory antecedent” to suggest that there must be some specific provision in
    every Indian-related statute granting the authority to invoke sections 2 and 9 -
    when, in fact, the courts have only logically required that some sort of statute or
    law related to Indian affairs be extant before the Secretary can prescribe
    regulations to carry it into effect. In other words, when Congress enacts a statute
    pertaining to Indian affairs and relations, but not before, it becomes the duty of
    the President and the Secretary to exercise their powers under 25 U.S.C. § 2 &
    9 to promulgate rules necessary to give it effect. Ruiz, 415 U.S. at 231.
              Chief Judge Jones’s further assertion that “the fact that IGRA clearly
    limited the Secretary’s intervention into Class III gaming compacts constitutes
    the best evidence of congressional intent to limit the Secretary’s role” ignores the
    reality of the situation here: that Congress enacted the statute without
    foreknowledge of the Supreme Court’s decision in Seminole. That Congress did
    not contemplate a need for the Secretary to prescribe an alternate tribal remedy
    to fill a gap is merely a function of Congress’s failure to foresee the gap it was
    leaving, i.e., Congress did not foresee that it lacked power under the Indian
    commerce clause to abrogate state sovereign immunity and that, therefore, its
    own statutorily prescribed tribal remedy of a federal court suit would prove to
    be ineffectual. Congress’s lack of foreknowledge that the IGRA would prove to
    be devoid of any constitutionally effective tribal remedy does not suggest in the
    slightest that Congress anticipated or intended that the Secretary would default
    in his duty to prescribe an alternate remedial procedure to carry the IGRA into
              As with the general authority statutes, the role of the Interior under the
    specific delegations of authority under the IGRA is far broader than what Chief
    Judge Jones’s opinion, focused as it is on a narrow section of the law, admits.
    The IGRA authorizes the Secretary to approve or disapprove Tribal-State
    compacts according to whether a compact complies with or violates the IGRA,
    federal law or “the trust obligations of the United States to Indians.” 25 U.S.C.
    § 2710(d)(8)(B). Further, the IGRA specifically provides that “[i]f the State does
    not consent ... to a proposed compact submitted by a mediator ..., the mediator
    shall notify the Secretary and the Secretary shall prescribe, in consultation with
    the Indian tribe, procedures ... which are consistent with ... the relevant
    provisions of the laws of the State....” 25 U.S.C. § 2710(d)(7)(B)(vii) (emphasis
    added) Thus, the IGRA contemplates that the Secretary of the Interior, and not
    the federal or state courts or a mediator, shall perform the task of interpreting
    state and federal laws and treaties to assure that a proposal or compact for
    Indian gaming complies with them. Additionally, the Secretary is given powers
    to review and approve or disapprove any plans by tribes to distribute revenue
    from gaming to members of a tribe, and to evaluate such plans for whether they
    comply with the IGRA’s goal of tribal economic development. See 25 U.S.C. §
          Moreover, a number of regulatory powers are delegated to the Secretary
    of the Interior through the National Indian Gaming Commission (“NIGC”), a
    three-member body within the Department of the Interior. Tamiami Partners
    v. Miccosukee Tribe of Indians, 
    63 F.3d 1030
    , 1048 (11th Cir. 1995);
    Seneca-Cayuga Tribe v. Nat’l Indian Gaming Comm’n, 
    327 F.3d 1019
    , 1023 (10th
    Cir. 2003). Two of the three members of the NIGC are appointed directly by the
    Secretary of the Interior. Tamiami, 63 F.3d at 1048. Congress plainly intends
    the Department of the Interior to have broad authority over gaming in enacting
    the IGRA, delegating to the NIGC the power to close an Indian gaming facility
    permanently, to adopt regulations governing fines, to issue subpoenas, to inspect
    the books and records of a Class II gaming facility, and to hold hearings. Id. The
    NIGC is required to “monitor class II gaming continuously, inspect class II
    gaming premises, promulgate regulations necessary to implement IGRA, and
    conduct background investigations of, among others, management contractors.”
    Id. While the NIGC is technically a distinct entity within the Department of the
    Interior, the Secretary retains majority control over the board by appointing two
    of its members. It is plain that the nominal separation of the two does not
    change the clear intent of Congress to locate rulemaking and administrative
    authority under the IGRA with the Secretary of the Interior. Indeed, after the
    Tenth Circuit attempted to restrict the powers of the Interior by holding that the
    IGRA delegated determinations of what constituted a reservation to the NIGC,
    Sac & Fox Nation of Missouri v. Norton, 
    240 F.3d 1250
     (10th Cir. 2001),
    Congress immediately corrected the court and clarified that the Secretary of the
    Interior holds this power. City of Roseville v. Norton, 
    348 F.3d 1020
    , 1029-30
    (D.C. Cir. 2003); Department of the Interior and Related Agencies
    Appropriations Act, 2002, Pub. L. No. 107-63, § 134 (2001).
          In view of all of the foregoing, it is “apparent from the agency’s generally
    conferred authority and other statutory circumstances that Congress would
    expect the agency to be able to speak with the force of law” with respect to any
    gaps or ambiguities in the IGRA. Mead, 533 U.S. at 229. Chief Judge Jones’s
    contention to the contrary is based on a narrow reading of a particular statutory
    provision, exactly the kind of analysis forbidden by the Supreme Court. FDA v.
    Brown & Williamson Tobacco Corp., 
    529 U.S. 120
    , 132 (2000) (holding that “a
    reviewing court should not confine itself to examining a particular statutory
    provision in isolation”).
          Chief Judge Jones also incorrectly maintains that, under step two of the
    Chevron analysis, the Secretarial Procedures regulations do not reasonably
    effectuate Congressional intent with respect to the IGRA. Contrary to the
    suggestion of Chief Judge Jones’s opinion, the Secretary’s regulations are not
    only consistent with the intentions of Congress but are necessary to achieve the
    intended “finely-tuned balance” that Seminole revealed Congress had
    unintentionally failed to provide.
          The IGRA was enacted with more than the interests of the states in mind.
    It was enacted “in large part to ‘provide a statutory basis for the operation of
    gaming by Indian tribes as a means of promoting tribal economic development,
    self-sufficiency, and strong tribal governments.’” TOMAC, Taxpayers of Mich.
    Against Casinos v. Norton, 
    433 F.3d 852
    , 865 (D.C. Cir. 2006) (quoting 25 U.S.C.
    § 2702(1)). It was also designed to ensure that a tribe was the primary
    beneficiary of any gaming operations. Citizens Exposing Truth About Casinos
    v. Kempthorne, ___ F.3d ___, No. 06-5354, 
    2007 WL 1892080
    , at *1 (D.C. Cir.
    Jul. 3, 2007). “IGRA was designed primarily to establish a legal basis for Indian
    gaming as part of fostering tribal economic self-sufficiency, not to respond to
    community concerns about casinos....” Id. at *10; San Manuel Indian Bingo and
    Casino v. N.L.R.B., 
    475 F.3d 1306
    , 1308 (D.C. Cir. 2007) (holding that the
    purpose of the IGRA was to ensure economic development and self-sufficiency
    of Indian tribes through gaming).
          While Congress did, as Chief Judge Jones asserts, intend that the
    mechanism to introduce gaming would be a tribal-state compact, it did not
    intend to allow, as the Seminole-blunted statute does, a situation in which states
    could refuse to negotiate and thus veto a tribal-state compact. Under the IGRA
    as passed by Congress, a state that failed to act in good faith, as Texas
    indisputably has here, could be sued in federal court. 25 U.S.C. § 2710(d)(7).
    That state would have the burden of proving that it negotiated in good faith. Id.
    at 2710(7)(B)(ii). If the state failed to meet its burden of proof, it would have
    been ordered to negotiate a compact within 60 days. Id. at 2710(7)(B)(iii). If the
    state continued to refuse to compact, it would have been forced into mediation.
    Id. at 2710(7)(B)(iv). If the state ultimately refused to consent to the results of
    the mediation, the Secretary of the Interior was empowered to bypass the state
    and create its own procedures authorizing gambling by the tribe, consistent with
    the compact proposed during mediation. Id. at 2710(7)(B)(vii).
          It was thus not just the existence of a compact that was crucial to the
    balance between states and tribes under the IGRA. “It is quite clear from the
    structure of the statute that the tribe's right to sue the state is a key part of a
    carefully-crafted scheme balancing the interests of the tribes and the states. It
    therefore seems highly unlikely that Congress would have passed one part
    without the other, leaving the tribes essentially powerless.” Spokane Tribe, 139
    F.3d at 1300. The right to sue to essentially force a compact gave tribes a crucial
    piece of leverage against the states - preventing a state from taking the approach
    of Texas in this case, which has been to utterly refuse to negotiate. Prior to the
    promulgation of the Secretarial Procedures regulations, states had under
    Seminole’s constitutional interpretation a veto over the tribal-state compact
    process. See Matthew L.M. Fletcher, Bringing Balance to Indian Gaming, 44
    HARV. J. ON LEGIS. 39, 75 (2007) (describing the stalemate resulting from the
    elimination of Congress’s intended remedy for tribes faced with a state refusing
    to negotiate). “Congress did not intentionally create this situation and would not
    have countenanced it had it known then what we know now.” Spokane Tribe,
    139 F.3d at 1302.
          Chief Judge Jones’s opinion gives lip-service to the deference accorded
    under Chevron at step two to the Secretary’s Procedures regulations, noting
    correctly that we may not disturb the agency’s decision “unless it appears from
    the statute or legislative history that the accommodation is not one that
    Congress would have sanctioned.” Chevron, 467 U.S. at 845. We do not ask
    whether the Procedures regulations are ideal, or whether there is some way they
    can be improved. Mead, 533 U.S. at 229 (holding that “a reviewing court has no
    business rejecting an agency’s exercise of its generally conferred authority to
    resolve a particular statutory ambiguity simply because the agency’s chosen
    resolution seems unwise”). We do not ask whether Congress would have modified
    them in some minor way. We ask only whether they were reasonable and
    whether Congress would have sanctioned them. Chevron, 467 U.S. at 845. To
    focus on the minutiae, as Chief Judge Jones’s opinion does, distracts from the
    general intentions of Congress in passing the IGRA: Congress intended to allow
    Indian gaming to proceed, for the purpose of economically benefitting Indian
    tribes, after a negotiating process that would give states a right to negotiate
    towards the ultimate outcome. In the case of a state that attempted to halt or
    veto this process without good faith, Congress intended that tribes would
    ultimately be able to force gaming even over the objections of the state. The
    Secretary’s regulations at issue here may not be perfect, but by allowing tribes
    an alternate process to propose gaming procedures in cases where a state refuses
    to negotiate and refuses to be sued in federal court, they closely approximate
    what Congress likely would have intended, while the status quo after Seminole
    undisputedly subverts the national legislative aims in respect to Indian affairs
    and relations.
          Even on its discussion of the details, Chief Judge Jones’s opinion is
    misguided. It first argues that the Procedures are unreasonable because they
    eliminate the requirement that a federal court determine whether the state has
    negotiated in good faith. But this criticism based on the idea that the Secretary’s
    regulations deny the State of Texas access to an impartial federal court fact-
    finder rings hollow given that the Secretary’s alternate remedy regulations are
    triggered only if the state has asserted its Eleventh Amendment right not to be
    sued in federal court by an Indian tribe under the original statutory procedures
    enacted by Congress. 25 C.F.R. § 291.3. Under the Secretary’s alternate remedy
    regulations, a state that prefers that a federal court resolve its dispute with the
    tribe may simply choose that option, waiving its objection to federal jurisdiction
    and proceeding exactly as Congress originally intended. The State of Texas, after
    categorically refusing to negotiate with the Kickapoo and after asserting its
    sovereign immunity in federal court when the Kickapoo attempted to invoke the
    original statutory procedures, now resorts to a federal court complaining that it
    is crucial that a federal court serve as an independent body to determine
    whether its absolute refusal to negotiate constituted “negotiations in good faith.”
    The Procedures do not deny a state its right to a judicial determination as to
    whether it acted in good faith, because the state may choose to submit to a
    federal court’s jurisdiction by allowing a tribe to sue it there; just as it has in the
    present case by bringing this suit in federal court. That Texas is well aware that
    a fair and impartial federal court would be unlikely to find that its utter refusal
    to negotiate amounted to good-faith bargaining does not obviate its undisputed
    right to litigate that matter in federal court.
          Moreover, Congress contemplated the “good faith” determination as an
    affirmative defense, with the burden on the state to prove that it negotiated in
    good faith. 25 U.S.C. § 2710(d)(7)(B)(ii). The Secretary’s alternate tribal remedy
    regulations require that the tribe has negotiated with a state for a six-month
    period prior to invoking the Secretarial Gaming Procedures. 25 C.F.R. § 291.3(b).
    A state must also have asserted its sovereign immunity defense against a suit
    by the tribe. Id. at 291.3(d). The Procedures give the state a 60-day comment
    period, and invite it to submit an alternate gaming proposal. Id. at 291.7(b).
    They invite the state to participate in an informal conference with the tribe. Id.
    at 291.8(b). Only after mediation may the Secretary attempt to actually impose
    a proposal over the state’s objection. Id. at 291.11. It seems unlikely that a state,
    negotiating in good faith, would fully proceed through this process without
    coming to some agreement with the tribe. A good faith determination might
    improve these procedures from a policymaking perspective, but that question is
    not one for this court under Chevron. We ask only whether the Secretary’s
    regulations are reasonable and whether Congress would have sanctioned them -
    and it seems unlikely, given the Congressional goal of allowing and promoting
    lawful Indian gaming businesses, that Congress would not sanction these
    regulations closely tracking and complementing the original statute, rendered
    ineffective by Seminole, with an alternate remedy that is absolutely essential to
    its having the Congressional effect intended.
          Chief Judge Jones’s second contention is that the Secretarial Gaming
    Procedures regulations create a biased mediation process by allowing the
    Secretary of the Interior, rather than a court, to appoint a mediator who has “no
    official, financial, or personal conflict of interest with respect to the issues in
    controversy.” 25 C.F.R. § 291.9(a). Chief Judge Jones’s suggestion that the
    Interior is placed in the role of an “objective arbiter” is incorrect - instead, the
    person appointed as a mediator is the fair and impartial decider. Unfounded
    speculation that the Secretary might not perform his plain duty under the
    statutes and his own department’s regulations to select a neutral mediator fails
    to justify a conclusion that the regulations are unreasonable - especially given
    that for Chief Judge Jones’s fears to materialize, not only must the Secretary
    violate his duty, but the neutral mediator must as well.
          Chief Judge Jones’s third contention, that the Secretary is enabled to
    simply disregard the mediator’s proposal, exaggerates the Secretary’s powers
    under the Procedures. The Secretary may not establish his own procedures
    unless he does not approve the mediator’s proposal. The Secretary may not
    disapprove the mediator’s proposal unless it violates federal or state law,
    violates the trust obligations to the tribe, or does not comply with the technical
    requirements of a proposal. 25 C.F.R. § 291.11. In the event that the Secretary
    disapproves, he may prescribe his own procedures - but only if they “comport
    with the mediator’s selected proposal as much as possible....” Id. at 291.11(c).
    This differs only slightly from the statutory requirement that the procedures be
    “consistent with the proposed compact selected by the mediator....” 25 U.S.C. §
    2710(d)(7)(B)(vii). Moreover, it is unclear which of the two is the more restrictive
    on the Secretary - and the regulations certainly do not grant “unbridled power
    to prescribe Class III regulations.”
          Chief Judge Jones’s final argument combines her previous three into a
    grand petitio principii. That is, she begs the question by contending that
    Congress would not have expected the Secretary to fill the unforeseen gap it left
    in the IGRA’s tribal remedy unless he included the requirements that made it
    unintentionally unenforceable in the first place---a federal court’s determination
    of a state’s failure to bargain in good faith, the participation of a federal court-
    appointed mediator, and gaming procedures consistent with a federal court-
    appointed mediator’s proposed compact. Yet we are not inquiring into whether
    Congress “intended” or could foresee the result reached by the Secretary in
    filling Congress’s own unforeseen and unintended gap. We instead ask whether
    the result is a reasonable one that Congress would sanction by the agency it had
    empowered to make rules and policies to effectuate its acts regarding Indian
    affairs and relations for purposes of complementing or filling the gap in the
    statute. Chevron, 467 U.S. at 845. Congress intended for recalcitrant states to
    be subjected to suit by Indian tribes in federal court - but that intended tribal
    remedy was frustrated by the unforeseen constitutional interpretation in
    Seminole. I conclude that, if Congress had known that it lacked power to
    abrogate state sovereignty under the Indian commerce clause, it obviously would
    have adopted at least some alternate form of remedy - and that it would likely
    have enacted something similar to the Secretarial Gaming Procedures
    regulations, as a reasonable and necessary alternate tribal remedy. Otherwise,
    if this reasonable and practicable proposition cannot be laid, we are faced with
    a preposterous alternative conclusion, viz., that Congress would have declined
    to adopt the IGRA in any form or would have included a veto power for hostile
    states in a statute designed “to provide a statutory basis for the operation of
    gaming by Indian tribes as a means of promoting tribal economic development,
    self-sufficiency, and strong tribal governments.”3 25 U.S.C. § 270(1).
                Chevron is not the only potential source of deference
    owed to the regulations. The Indian canon of construction provides
    that because of the trust relationship between the federal
    government and the tribes, statutes “are to be construed liberally
    in favor of the Indians, with ambiguous provisions interpreted to
    their benefit.” County of Yakima v. Confederated Tribes & Bands of
    Yakima Indian Nation, 
    502 U.S. 251
    , 269 (1992) (quoting Montana v.
    Blackfeet Tribe, 
    471 U.S. 759
    , 766 (1985)). The precise
    relationship between this canon of construction and the Chevron
    doctrine has not been resolved. Several circuits, however, have
    held that when the two principles of deference are in conflict, the
    Indian canon trumps the Chevron doctrine, requiring deference to
    the interpretation that is most favorable to the Indian tribes. See
    Scott C. Hall, The Indian Law Canons of Construction v. The Chevron
    Doctrine: Congressional Intent and the Unambiguous Answer to the
    Ambiguous Problem, 37 CONN. L. REV. 495 (2004); Cobell v. Norton,
    240 F.3d 1081
    , 1101 (D.C. Cir. 2001) (holding that the Indian canon
    prevailed over the Chevron doctrine when the two were in conflict).
         There is no need to ponder the precise relationship of the two
    principles in this case, however, because they are not in conflict
    but concurrently call for judicial deference toward the Secretary’s
    gaming procedures regulations that are necessary to carry the IGRA
    into full effect. Thus, at a minimum, the Indian canon adds
    substantially to the level of deference owed to the Secretary’s
    Procedures regulations in this case. Chief Judge Jones makes
    unwarranted assumptions about the intent of Congress that are not
          In sum, this reviewing court has no business rejecting the Secretary’s
    exercise of his generally conferred authority to fill a particular statutory gap
    simply because it deems the Secretary’s chosen resolution to be unwise, but
    instead is obliged to accept the Secretary’s position because Congress has not
    spoken to the point or gap at issue here and the Secretary’s interpretation is
    reasonable. Further, the circumstances here imply that Congress would expect
    the Secretary to be able to speak with the force of law, even though Congress
    may not have expressly delegated authority or responsibility to implement a
    particular provision; the power of an administrative agency to administer a
    congressionally created and funded program necessarily requires the
    formulation of policy and the making of rules to fill any gap left, implicitly or
    explicitly, by Congress. The Secretary therefore acted within his authority to
    promulgate regulations filling an unanticipated statutory gap under the explicit
    authority of 25 U.S.C. §§ 2 and 9 and the implicit authority of the IGRA, and his
    ensuing regulations are owed Chevron deference and are binding in the courts
    because they are not procedurally defective, arbitrary or capricious in substance,
    consistent with the obvious gap it unintentionally left in the IGRA
    along with the requirement that we generously construe any
    regulation by the Secretary to fill it in favor of the IGRA’s
    effectuation, and with IGRA’s furtherance of tribal economic
    development and self-sufficiency in light of Congress’s unique
    trust relationship with the Indians.
    or manifestly contrary to the statutes. Accordingly, I DISSENT.