Grand Traverse Band of Ottawa and Chippewa Indians v. Office of the U.s. Attorney for the Western District of Michigan

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0151P (6th Cir.)
File Name: 04a0151p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GRAND TRAVERSE BAND OF
OTTAWA AND CHIPPEWA
INDIANS,
Plaintiff-Appellee,
v.
OFFICE OF THE U.S.
ATTORNEY FOR THE WESTERN
DISTRICT OF MICHIGAN,
Defendant,
STATE OF MICHIGAN,
Intervenor-Appellant.
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No. 02-1679
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 96-00466—Douglas W. Hillman, District Judge.
Argued: March 10, 2004
Decided and Filed: May 24, 2004
2 Grand Traverse Band v.
Office of U.S. Attorney
No. 02-1679
*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
Before: MARTIN and CLAY, Circuit Judges; MILLS,
District Judge.*
_________________
COUNSEL
ARGUED: John M. Charamella, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
Riyaz A. Kanji, KANJI & KATZEN, Ann Arbor, Michigan,
for Appellee. ON BRIEF: John M. Charamella, OFFICE
OF THE ATTORNEY GENERAL, Lansing, Michigan, for
Appellant. Riyaz A. Kanji, Phillip F. Katzen, KANJI &
KATZEN, Ann Arbor, Michigan, John F. Petoskey, GRAND
TRAVE R S E BAND LEGAL DEPARTMENT,
Peshawbestown, Michigan, for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. The State of Michigan, the
intervenor in this litigation, appeals the April 22, 2002, order
of the district court, declaring that it is permissible for the
Grand Traverse Band of Ottawa and Chippewa Indians (“the
Band”) to conduct casino-style gaming at a site which is
located off of the Band’s initial reservation and which was
acquired and placed in trust for the Band after the enactment
of the Indian Gaming Regulatory Act, 25 U.S.C. § 2710 et
seq. (“IGRA”), pursuant to an exception for such gaming on
lands taken into trust as part of the restoration of lands for an
Indian tribe that is restored to federal recognition, 25 U.S.C.

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1The following description is taken fro m the d istrict court’s
memorand um opinion in Grand Traverse Band of Ottawa & Chippewa
Indians v. Office of the U.S. Attorney of the W. Dist. of Mich., 198 F.
Supp. 2d 920 , 924-26 (W .D. Mich. 2002 ) (“Grand Traverse Band II”).
The relevant facts in this case are undisputed.
2Henry Schoolcraft, who negotiated the 1836 Tre aty of Washington
on behalf of the United States, combin ed the Ottawa and Chippewa
nations into a jo int political unit solely for purposes of facilitating the
negotiation of that treaty. In the years that followed, the Ottawas and
Chippewas vociferously comp lained about being joined together as a
single political unit. To address their complaints, the 1855 Treaty of
Detroit contained language dissolving the artificial joinder of the two
tribes. This language, however, was not intended to terminate federal
recognition of either tribe, but to permit the United States to deal with the
Ottawas and the Chippewas as separate political entities. Ignoring the
historical context of the treaty language, Secretary Delano interpreted the
1855 treaty as providing for the dissolution of the trib es once the annuity
paym ents it called for were completed in the spring of 1872, and hence
decreed that upon finalization of those payments “tribal relations will be
§ 2719(b)(1)(B)(iii). For the reasons that follow, we
AFFIRM the well-reasoned decision of the district court.
I
A. Substantive Facts1
The Band is a federally recognized Indian tribe presently
maintaining a government-to-government relationship with
the United States. The Band previously maintained a
government-to-government relationship with the United
States from 1795 until 1872, and is a successor to a series of
treaties with the United States in 1795, 1815, 1836 and 1855.
In 1872, then-Secretary of the Interior, Columbus Delano,
improperly severed the government-to-government
relationship between the Band and the United States, ceasing
to treat the Band as a federally recognized tribe. This
occurred because the Secretary had misread the 1855 Treaty
of Detroit, 10 Stat. 591.2 Following termination of the
4 Grand Traverse Band v.
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terminated.” Letter from Secretary of the Interior Delano to Commission
of Indian Affairs at 3 (M ar. 27 , 1872). Beginning in that year, the
Department of the Interior, believing that the federal government no
longer had any trust obligations to the tribes, ceased to recognize the
tribes either jointly or sep arately.
relationship, the Band experienced increasing poverty, loss of
land base and depletion of the resources of its community.
Between 1872 and 1980, the Band continually sought to
regain its status as a federally recognized tribe. The Band’s
efforts succeeded in 1980 when it became the first tribe
“acknowledged” by the Secretary of the Interior pursuant to
the federal acknowledgment process, 25 C.F.R. Part 54 (now
25 C.F.R. Part 83). On January 17, 1984, the Department of
the Interior declared a single 12.5 acre parcel as the initial
reservation of the Band. 49 Fed. Reg. 2025 (Jan. 17, 1984).
The history of the Band’s original recognition, executive
termination and later re-recognition is essentially parallel to
that of the Pokagon Band of Potawatomi Indians, the Little
Traverse Bay Bands of Odawa Indians, and the Little River
Band of Ottawa Indians. All three tribes were parties to the
same series of treaties and the same termination by Secretary
Delano in 1872.
On April 20, 1989, the Band acquired title to a parcel of
land in Whitewater Township, Grand Traverse County,
Michigan, that is commonly referred to as the “Turtle Creek”
site. Located on the east shore of Grand Traverse Bay, Turtle
Creek is at the heart of the region that comprised the core of
the Band’s aboriginal territory and was historically important
to the economy and culture of the Band. Acquisition of the
Turtle Creek site was important for the Band to maintain a
connection to the east shore region and to provide services
and economic development to its members located on the east
shore. Although the Turtle Creek site is not located within or
contiguous to the Band’s last recognized reservation, it is

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within the lands that the Band ceded to the United States by
the Treaty of 1836. The trust application for the Turtle Creek
site did not indicate that it was being acquired for gaming
purposes, though it did specify that it may be used for future
economic development. The site was placed into federal trust
on August 8, 1989.
In August 1993, the Band entered into a tribal-state gaming
compact with the State of Michigan pursuant to the IGRA, 25
U.S.C. § 2710, for Class III (casino-style) gaming on
reservation lands. The compact is virtually identical to those
signed between the State and six other Indian tribes on the
same day. The United States Department of the Interior
approved the compact under the IGRA’s procedures. The
Michigan House of Representatives and the Michigan Senate
approved the compacts by concurrent resolution on
September 21, 1993 and September 30, 1993, respectively.
The compacts became effective on November 30, 1993, when
the Secretary of the Interior published his approval of the
compacts in the Federal Register. 58 Fed. Reg. 63,262
(1993).
On June 13, 1994, the National Indian Gaming
Commission approved the Band’s Gaming Code pursuant to
25 C.F.R. §§ 522.6 and 522.8. In accordance with the Band’s
Gaming Code, the Grand Traverse Band Gaming Commission
issued a license authorizing casino-style gaming at the Turtle
Creek site. The Band opened its Turtle Creek Casino on June
14, 1996. The casino’s operations now employ hundreds of
tribal members and fund hundreds of tribal government
positions responsible for administering programs such as
health care, elder care, child care, youth services, education,
housing, economic development and law enforcement.
B. Procedural History
On June 14, 1996, the day the Band commenced casino
operations at Turtle Creek, it brought a declaratory judgment
6 Grand Traverse Band v.
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action against the U.S. Attorney for the Western District of
Michigan. The complaint sought a declaration concerning the
legality of the Class III (casino-style) gaming being
conducted at Turtle Creek. The United States filed a
counterclaim, seeking to declare the Turtle Creek facility
illegal and to enjoin further gaming at the facility. The State
of Michigan was permitted to intervene as a defendant and to
file a complaint seeking to declare the operations illegal under
the tribal-state compact.
The State contended that the Turtle Creek casino operation
is illegal because the IGRA, 25 U.S.C. § 2719, bars casino
gaming on tribal lands taken into trust after October 17, 1988
(which is the case with Turtle Creek), unless the land meets
one of the exceptions set forth in § 2719. The State argued
that Turtle Creek does not meet any of the § 2719 exceptions,
and, consequently, casino-style gaming is unlawful, absent a
determination by the Secretary of the Interior and the consent
of the Governor of Michigan, that the casino would be in the
best interests of the tribe and its members and would not be
detrimental to the surrounding community. The Band has not
sought such a determination from the Secretary, nor the
consent of the Governor, insisting that the Turtle Creek
location satisfies one of the § 2719 exceptions.
The Band’s original complaint asserted that the gaming
prohibition contained in 25 U.S.C. § 2719 does not apply
when a Tribe has a valid tribal-state compact. Following the
decision of this Court in Keweenaw Bay Indian Community
v. United States, 136 F.3d 469 (6th Cir. 1998), the Band
abandoned this claim, amended its complaint, and asserted
that the Turtle Creek site is “within or contiguous to the
boundaries of the reservation of the Indian tribe on October
17, 1988,” pursuant to § 2719(a)(1), and thus was exempted
from the prohibition against casino-style gaming. The United
States then moved for a preliminary injunction against
continued gaming operations at Turtle Creek. In response, the
Band proffered additional theories to support its exemption

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from the prohibition: (1) the Turtle Creek land is exempt
because it had been taken into trust as part of “the initial
reservation of an Indian tribe acknowledged by the Secretary”
of Interior, pursuant to § 2719(b)(1)(B)(ii) and (2) the land is
exempt because it constituted part of “the restoration of lands
for an Indian tribe that is restored to Federal recognition”
pursuant to § 2719(b)(1)(B)(iii).
On March 18, 1999, the district court denied the United
States’ motion in a published opinion. See Grand Traverse
Band of Ottawa & Chippewa Indians v. United States
Attorney for the W. Dist. of Mich., 46 F. Supp.2d 689 (W.D.
Mich. 1999) (“Grand Traverse Band I”). The district court
held that the government had not demonstrated a substantial
likelihood of success in proving that the Turtle Creek land
does not satisfy the “restoration of lands” exemption, 25
U.S.C. § 2719(b)(1)(B)(iii). Id. at 702-04. The district court
further stayed the litigation, pending a reference of the matter
to the National Indian Gaming Commission (“NIGC”). Id. at
706. The court found that it could benefit from the NIGC’s
determination of both factual and legal issues relating to the
application of the “restoration of lands” exception. Id. at 707-
08. The State appealed the district court’s denial of the
preliminary injunction, but this Court dismissed the appeal
because the State, as an intervenor, had not joined with the
United States’ motion for preliminary injunction, and
therefore lacked standing to pursue the appeal. See Grand
Traverse Band of Ottawa & Chippewa Indians v. Office of the
U.S. Attorney for the W. Dist. of Mich., No. 99-1584 (6th Cir.
May 17, 2001).
On August 31, 2001, Kevin Washburn, General Counsel for
the NIGC, sent the district court a 19-page letter regarding
whether the Turtle Creek site is exempt from the prohibition
against casino-style gaming for lands acquired after the
effective date of the IGRA. The NIGC found that the Turtle
Creek site is exempt from the prohibition pursuant to the
exception for lands that are taken into trust as part of “the
8 Grand Traverse Band v.
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restoration of lands for an Indian tribe that is restored to
Federal recognition.” 25 U.S.C. § 2719(b)(1)(B)(iii). To
reach this conclusion, the NIGC answered two questions:
(1) whether the Band became an Indian tribe that “is restored
to Federal Recognition” when the Secretary of the Interior
invoked an administrative process to formally “acknowledge”
the tribe in 1980; and (2) whether the Turtle Creek lands were
taken into trust as part of the restoration of lands for the Band.
In answering both questions in the affirmative, the NIGC
reasoned as follows:
The Band had a government-to-government relationship
with the United States until 1876 at which time BIA
officers improperly terminated the federal trust
relationship by administrative action. The clear import
of acknowledgment of the [Band] under federal
acknowledgment procedures was to “undo” the effect of
the improper administrative action and to resume a
proper government-to-government relationship between
[the Band] and the federal government. The result was
“restoration” under the plain meaning of that term.
Accordingly, it is difficult to argue that the [Band] is not
a “restored tribe” if the term should be interpreted
according to its plain meaning. …The Band has
assembled substantial evidence tending to establish that
the Turtle Creek site has been important to the tribe
throughout its history and remained so immediately on
resumption of federal recognition.…The site is within the
area ceded to the United States by the ancestors of the
present [Band].…The region surrounding the casino site
also has a modern nexus to the tribe. It is located within
the “service area” for which tribal members are entitled
to receive services by the BIA.…At the time of
termination, Band members lived not far from the Turtle
Creek site. For most of the Band’s recorded history, it
has lived and worked in this general area.…In light of
this showing of continuous interest in the area, the Band
has regained beneficial title to land that it may have

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ceded but did not abandon. In regaining its beneficial
use (the fee being held by the United States) to land that
has been at the heart of the Band’s culture throughout
history and particularly within the context of its
restoration process, the [NIGC] believes that the Turtle
Creek site constitutes land that has been not merely
obtained but, in some sense, “restored’ to the Band under
Section 2719(b)(1)(B)(iii).
(J.A. 222-31.) The Department of the Interior subsequently
concurred with the NIGC’s opinion.
As a consequence of this administrative opinion, the United
States abandoned its opposition to the Turtle Creek casino
and withdrew from the litigation. The district court then
permitted the Band to amend its complaint for a second time,
to reflect that the only issues that remained for trial were
whether the Turtle Creek site satisfied the “restoration of
lands exception” and whether the tribal-state compact
afforded the Governor of Michigan with an absolute veto
power over the siting of a casino at Turtle Creek.
A bench trial was held in January, 2002. On April 22,
2002, the district court issued a memorandum opinion and
order in which it held that the Turtle Creek site was subject to
the “restoration of lands” exception. Grand Traverse II,
supra. The court noted, and the parties agreed, that the
NIGC’s finding that the “restoration of lands” exception
applied to the Turtle Creek site was not entitled to the highest
level of deference accorded to an administrative agency
because the NIGC had not employed formal adjudicatory
procedures. Grand Traverse Band II, 198 F. Supp. 2d at 927
(holding that NIGC opinion was not entitled to deference per
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)). Nevertheless, the court gave such
deference to the NIGC opinion as it deemed appropriate “in
light of the thoroughness, reasoning and consistency of its
determination.” Id. at 928 (citing United States v. Mead
10 Grand Traverse Band v.
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Corp., 533 U.S. 218, 228-30, 233-35)). The court deemed it
appropriate to afford the NIGC opinion “substantial weight”
and found no reasonable basis for altering its conclusion that
the Band is a restored tribe within the meaning of the IGRA.
Id.
The court then independently examined whether the Turtle
Creek site is exempt from the prohibition pursuant to the
exception for lands that are taken into trust as part of “the
restoration of lands for an Indian tribe that is restored to
Federal recognition” under 25 U.S.C. § 2719(b)(1)(B)(iii).
As the NIGC had done, the court broke this question into two
parts: first, whether the Band is a “restored tribe” and second,
whether the acquisition of Turtle Creek is part of a
“restoration of lands.”
The court found that the words “restored” and “restoration”
in the statutory exception were not defined in the IGRA, and
therefore it looked to the plain meaning of the words. Grand
Traverse Band II, 198 F. Supp.2d at 928. The court noted
that the dictionary definition of “restore” includes the
following meanings: to give back (as something lost or taken
away), make restitution of, return, to put or bring back (as
into existence or use); and to bring back or put back into a
former or original state. Id. (citing Webster’s New Third
New Int’l Dictionary 1936 (1976)). The court also looked to
the dictionary definition of “restoration,” which includes the
following meanings: an act of restoring or the condition or
fact of being restored: as bringing back to or putting back in
to a former position or conditions, reinstatement, renewal, or
reestablishment. Id. (citing Webster’s at 1936). The court
then held that the Band clearly was a “restored tribe” under a
plain meaning interpretation:
[T]he undisputed history of the Band’s treaties with the
United States and its prior relationship to the Secretary
and the BIA demonstrates that the Band was recognized
and treated with by the United States. Both prior to and

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after such treaties, until 1872, the Band was dealt with by
the Secretary as a recognized tribe. Only in 1872 was
that relationship administratively terminated by the BIA.
This history–of recognition by Congress through treaties
(and historical administration by the Secretary),
subsequent withdrawal of recognition, and yet later re-
acknowledgment by the Secretary–fits squarely within
the dictionary definitions of “restore” and is reasonably
construed as a process of restoration of tribal recognition.
The plain language of subsection (b)(1)(B)(iii) therefore
suggests that this Band is restored.
Id. at 934.
Having found in favor of the Band on the first question
(whether the Band was a tribe restored to federal recognition),
the district court proceeded to address the second question
(whether the Turtle Creek site was acquired as part of a
“restoration of lands”). The court ruled in favor of the Band
on this question as well. Id. at 936. The court further rejected
the State’s assertion that casino-style gaming is barred by
section 2(C) of the tribal-State compact, which allegedly
gives the Governor of Michigan absolute veto power over
gaming activities on lands taken into trust for the Band. Id.
at 937. The court held that the plain language of the compact
merely incorporated by reference the Governor’s concurrence
power “pursuant to 25 U.S.C. § 2719,” and therefore the
Governor had no greater veto power than that vested by
§ 2719. Id. at 938.
Based on the foregoing, the district court concluded that
casino-style gaming is permissible at the Turtle Creek site
pursuant to 25 U.S.C. § 2719(b)(1)(B)(iii) (the “restoration of
lands” exception). The court entered judgment in favor of the
Band on April 22, 2002. Id. at 940. The State filed a timely
appeal.
12 Grand Traverse Band v.
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3There are no disputed issues of fact on ap peal, only issues of
statutory interpretation, which this court reviews under a de novo
standard. Un ited States v. M iami Univ., 294 F.3d 797 , 806 (6th C ir.
2002).
II
In this appeal, the State has not contested the district court’s
ruling that the acquisition of Turtle Creek was part of a
“restoration of lands.” Accordingly, the sole issue for this
Court is whether the Band is a tribe “restored to federal
recognition.”3 Like the district court below, we answer this
question in the affirmative.
Section 20 of the Indian Gaming Regulatory Act (“IGRA”),
25 U.S.C. § 2719, generally prohibits casino-style gaming on
lands acquired by the Secretary of the Interior in trust for an
Indian tribe after October 17, 1988, unless an exception is
satisfied. That section states, in relevant part:
(a) Prohibition on lands acquired in trust by Secretary
Except as provided in subsection (b) of this section,
gaming regulated by this chapter shall not be conducted
on lands acquired by the Secretary in trust for the benefit
of an Indian tribe after October 17, 1988, unless--
(1) such lands are located within or contiguous to
the boundaries of the reservation of the Indian tribe
on October 17, 1988; or
(2) the Indian tribe has no reservation on October
17, 1988, and–
* * * *
(B) such lands are located in a State other than
Oklahoma and are within the Indian tribe’s last

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recognized reservation within the State or States
within which such Indian tribe is presently
located.
(b) Exceptions
(1) Subsection (a) of this section will not apply
when--
(A) the Secretary, after consultation with the
Indian tribe and appropriate State and local
officials, including officials of other nearby
Indian tribes, determines that a gaming
establishment on newly acquired lands would
be in the best interest of the Indian tribe and its
members, and would not be detrimental to the
surrounding community, but only if the
Governor of the State in which the gaming
activity is to be conducted concurs in the
Secretary's determination; or
(B) lands are taken into trust as part of--
(i) a settlement of a land claim,
(ii) the initial reservation of an Indian tribe
acknowledged by the Secretary under the
Federal acknowledgment process, or
(iii) the restoration of lands for an Indian
tribe that is restored to Federal recognition.
25 U.S.C.A. § 2719.
The IGRA does not define the words “restored” and
“restoration” in the “restoration of lands” exception set forth
at § 2719(b)(1)(B)(iii). Therefore, this Court must give the
words “their ordinary, contemporary, common meaning,
14 Grand Traverse Band v.
Office of U.S. Attorney
No. 02-1679
absent an indication Congress intended them to bear some
different import.” Williams v. Taylor, 529 U.S. 420, 431-32
(2000) (internal quotation marks and citations omitted)
(referring to Webster’s dictionary definitions to determine the
meaning of a statutory term). The district court appropriately
looked to the dictionary definitions of “restore” and
“restoration,” which include the following meanings: to give
back, return, make restitution, reinstatement, renewal, and
reestablishment. Grand Traverse Band II, 198 F. Supp.2d at
928 (citing Webster’s at 1936). The court then correctly held
that the Band clearly was a “restored tribe” under these
definitions. The Band had treaties with the United States and
a prior relationship with the Secretary of the Interior at least
as far back as 1795. Until 1872, the Secretary had treated the
Band as a recognized tribe. As the State concedes, the
“United States unilaterally ceased to treat the Band as a
federally-recognized tribe commencing in 1872, when
Secretary of the Interior Columbus Delano improperly
severed the government-to-government relationship between
the United States and the Band.” In 1980, the Secretary
finally re-established the government-to-government
relationship through the administrative “acknowledgment”
process. As the district court concluded, this history of
governmental recognition, withdrawal of recognition, and
then reinstatement of recognition “fits squarely within the
dictionary definitions of ‘restore’ and is reasonably construed
as a process of restoration of tribal recognition.” Grand
Traverse II, 198 F. Supp.2d at 934. Thus, we hold that the
Band is a tribe “restored to Federal recognition” under the
plain language of 25 U.S.C. § 2719 (b)(1)(B)(iii).
The State attempts to evade the plain language of the
“restoration of lands” exception by arguing that the term
“restoration” has a distinct meaning when applied to Indian
tribes and their trust status with the federal government – a
meaning that precludes tribes like the Band from constituting
a restored tribe when it has been re-recognized
administratively through the “acknowledgment” process. The

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State argues that Indian tribes inherently possess sovereignty,
subject only to the plenary powers, and trust obligations, of
the United States. The State further argues that an Indian
tribe’s trust relationship with the United States, once
established by Congress, can be extinguished only by
Congressional action and not by administrative action of the
Secretary of the Interior. Moreover, when Congress has
terminated that trust relationship, only Congress can restore
it; the Secretary of the Interior has no power to restore trust
status administratively through the acknowledgment process.
The State points to a federal regulation providing that “groups
which are, or the members of which are, subject to
congressional legislation terminating or forbidding the
Federal relationship may not be acknowledged” by the
Secretary. 25 C.F.R. § 83.3(e).
The Band counters that a termination of tribal recognition
can occur not only through Congressional legislation but also
through a complete refusal of the federal government, which
includes the executive branch, to treat the Band as a tribe.
Thus, in 1872 and for the next hundred years, during which
the Secretary of the Interior erroneously refused to treat the
Band as a tribe, the Band suffered a de facto termination of
the trust relationship, even though only Congress legally
could terminate that relationship. Since the executive branch
effectively could terminate the trust relationship, it also could
restore it, which is what the acknowledgment process
accomplished.
To support its view that the power to terminate the trust
relationship of a Congressionally-recognized tribe lies
exclusively with Congress, the State cites the First Circuit’s
decision in Joint Tribal Council of the Passamaquoddy Tribe
v. Morton, 528 F.2d 370 (1st Cir. 1975). In that case, the
federal government argued, among other things, that the
Passamaquoddy Tribe was equitably precluded from invoking
the trust relationship purportedly established by Congress
through the Indian Nonintercourse Act. The court rejected
16 Grand Traverse Band v.
Office of U.S. Attorney
No. 02-1679
this argument, holding that “once Congress has established a
trust relationship with an Indian tribe, Congress alone has the
right to determine when its guardianship shall cease.” Id. at
380 (citing United States v. Nice, 241 U.S. 591, 598 (1916);
Tiger v. W. Investment Co., 221 U.S. 286, 315 (1911)). The
tribe simply did not have the power to terminate the
relationship. Id. The unremarkable holding in
Passamaquoddy, however, is irrelevant to the instant case.
There is no dispute that only Congress had the legal right to
terminate the Band’s recognition because Congress originally
had recognized the Band. But the relevant question is
whether a termination nevertheless took place because the
executive branch of the government illegally acted as if the
Band’s recognition had been terminated, as evidenced by its
refusal to carry out any trust obligations for over one hundred
years.
A prominent treatise on federal Indian law states that
federal recognition of a tribe requires (1) a legal basis for
recognition (i.e. Congressional or Executive action) and
(2) the empirical indicia of recognition, namely, a “continuing
political relationship with the group, such as by providing
services through the Bureau of Indian Affairs.” Cohen,
Handbook of Federal Indian Law 6 (1982). The First Circuit
adopted Professor Cohen’s test for tribal recognition in
Mashpee Tribe v. Sec’y of the Interior, 820 F.2d 480, 484 (1st
Cir. 1987) (Breyer, C.J.). See also W. Shoshone Bus. Council
v. Babbitt, 1 F.3d 1052, 1056 (10th Cir. 1993) (“Historically,
the federal government has treated a tribe as ‘recognized’ if
Congress or the President has created a reservation for the
group and the United States has a continuing political
relationship with the group.”) (citing Cohen, supra, at 6). The
implication of Professor Cohen’s two-part test, which we
adopt today, is that the empirical acts that are tantamount to
the termination of tribal recognition are analytically distinct
from the legality of those acts, just as the empirical act of
terminating an individual’s employment (e.g., being told to

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4Indeed, the federal government admitted the Band’s lack of
recognition in 1979, one year before the Band was acknowledged by the
Secretary of the Interior. In a 1979 brief filed in a case concerning the
Band’s fishing rights und er a 1836 treaty, the U nited States argued,
The problem with fishing rights for [the Grand T raverse Band
of] Ottawas is that there is no fed erally recognized tribal en tity.
W ithout such an entity, the federal governm ent must oppose the
assertion of treaty fishing rights by individual Ottawas or
unrecognized O ttawa groups.
Mem. of the Un ited States Relating to Treaty Fishing Rights of Ottawa
Indians, United States v. Michigan, No. M 26-73 ( W .D. M ich.), at 2
(attached as Appendix 1 to App ellee’s Br.) (emp hasis ad ded ).
leave the workplace and never to return) is distinct from the
legality of that act (e.g., a breach of contract).
Once tribal recognition is understood as having both legal
and empirical elements, it becomes clear that the State’s
argument must fail. The State has conceded that “[t]he
United States unilaterally ceased to treat the Band as a
federally-recognized tribe commencing in 1872, when
Secretary of the Interior Columbus Delano improperly
severed the government-to-government relationship between
the United States and the Band.” In other words, acting
through the Secretary of the Interior, the federal government
terminated the political relationship with the group, in
particular, the provision of services. Because the Department
of Interior refused to recognize the Band as a political entity,
“the Band experienced increasing poverty, loss of land base
and depletion of the resources of its community,” particularly
when compared to those tribes that appeared on the
Department of Interior’s list of federally recognized tribes.
Grand Traverse Band II, 198 F. Supp.2d at 924. Thus, the
undisputed facts show that the federal government withdrew
the Band’s recognition in 1872 under the second factor of the
Cohen test.4
18 Grand Traverse Band v.
Office of U.S. Attorney
No. 02-1679
Since the Secretary of the Interior had the power to
terminate the Band’s federal recognition, he also had the
power to restore that recognition. That is exactly what the
Secretary did in 1980 through the newly-promulgated
acknowledgment process, which “applies only to those
American Indian groups indigenous to the continental United
States which are not currently acknowledged as Indian tribes
by the Department” of the Interior and who have not been
subject to federal legislation that expressly terminated the
federal relationship. 25 C.F.R. §§ 83.3(a), 83.3(e), 83.7(g).
The result of this administrative acknowledgment was a
restoration of federal recognition, a necessary component of
which includes the resumption of the government’s political
relationship with the Band. Contrary to the State’s position,
the restoration of federal recognition was not contingent on
Congressional action, because it was administrative action
that terminated the recognition in the first place. On the facts
of this case, a tribe like the Band, which was administratively
“acknowledged,” also is a “restored” tribe.
The State persists in arguing that an administratively
“acknowledged” tribe like the Band cannot simultaneously be
a “restored” tribe by pointing to statutory language Congress
has employed in other legislation concerning Indians. The
State argues that Congress has consistently used the term
“restored” to describe the legislative reestablishment of
government-to-government relations with tribes whose trust
status had previously been terminated by Congressional
action. In contrast, argues the State, Congress has used the
term “affirmed” when recognizing tribes, such as the Pokagon
Band of Potawatomi Indians, that had never been the subject
of Congressional termination. E.g., 25 U.S.C. §§ 1300j,
1300j-1.
Congress, however, has not consistently referred to
legislatively terminated-and-later-recognized tribes as
“restored” tribes. When Congress reversed its legislative
termination of the Menominee Tribe, it provided that federal

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No. 02-1679 Grand Traverse Band v.
Office of U.S. Attorney
19
recognition was “extended” to the Tribe. 25 U.S.C.
§ 903a(a). Congress also reversed its legislative terminations
of three other tribes by providing that federal recognition was
“extended or confirmed” to those tribes. Id. § 861(a), (b).
Finally, although Congress used the term “affirmed” when it
legislatively recognized the Pokagon Band, whose trust status
had not previously been terminated by Congress, the report of
the Senate Committee on Indian Affairs that accompanied the
legislation stated,
The Committee concludes that the Band was not
terminated through an act of the Congress, but rather the
Pokagon Band was unfairly terminated as a result of both
faulty and inconsistent administrative decisions contrary
to the intent of Congress, federal Indian law and the trust
responsibility of the United States.…The Band’s claim
of rights and status as a treaty-based tribe, and the need
to restore and clarify that status has been clearly
demonstrated.
S. Rep. No. 103-266 at 6 (1994) (emphasis added). This
language not only confirms the above conclusion that an
executive agency can terminate the recognition of a
Congressionally-recognized tribe, but also shows that
Congress did not intend to meaningfully distinguish the word
“affirmed” from “restored.” Thus, the district court correctly
concluded that “the State has failed to demonstrate that
Congress consistently and exclusively used only the word
“restore” when restoring Indian tribes through legislative
action.” Grand Traverse Band II,198 F. Supp.2d at 930.
The State next argues that the structure of the exceptions set
forth in § 2719 evidence Congressional intent that an
“acknowledged” tribe cannot also be a “restored” tribe. As
noted above, the general prohibition against casino-style
gaming on tribal lands acquired after October 17, 1988 does
not apply when (1) the Secretary of the Interior has made a
determination that a gaming establishment would be in the
20 Grand Traverse Band v.
Office of U.S. Attorney
No. 02-1679
best interest of the Indian tribe and not detrimental to the
surrounding community, and the Governor has concurred in
the Secretary's determination; (2) the lands were taken into
trust as part of a settlement of a land claim; (3) the lands were
taken into trust as part of the initial reservation of an Indian
tribe acknowledged by the Secretary under the federal
acknowledgment process; or (4) the lands were taken into
trust as part of the restoration of lands for an Indian tribe that
is restored to federal recognition. 25 U.S.C. § 2719(b)(1).
The State argues that the “acknowledged tribe” exception and
the “restoration of lands” exception are expressly limited to
either “acknowledged” or “restored” tribes, respectively, and
that the two exceptions are mutually exclusive. The State
further argues that if such overlap is permitted, the
“acknowledged tribe” exception is relegated to mere
surplusage, because any lands established as the initial
reservation of an acknowledged tribe also qualify as restored
lands for a restored tribe under the “restoration of lands”
exception. According to the State, no tribe would ever resort
to the “acknowledged tribe” exception because it could
invoke the more liberal provisions of the “restoration of
lands” exception.
The State’s arguments lack merit. As stated above, a tribe
like the Band, which has had its federal recognition
terminated by administrative action or inaction, can be
restored to federal recognition through the administrative
acknowledgment process. Thus, it is possible for a tribe to be
both “restored” and “acknowledged.” Moreover, the district
court did not hold that every acknowledged tribe
automatically constitutes a restored tribe. In fact, the court
noted that there will be situations where there is no overlap,
such as when the Secretary of the Interior has acknowledged
a tribe that had never previously been recognized by the
federal government. Grand Traverse Band II, 198 F. Supp.2d
at 932. See also 69 Fed. Reg. 550-01 (Feb. 5, 2004)
(administrative acknowledgment of the Schaghticoke Tribal
Nation, which was never Congressionally-recognized); 67

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No. 02-1679 Grand Traverse Band v.
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21
Fed. Reg. 44234-02 (July 1, 2002) (administrative
acknowledgment of the Eastern Pequot Tribe, which was
never Congressionally-recognized). Such a tribe might be
able to invoke the “acknowledged tribe” exception, but not
the “restoration of lands” exception, because the tribe’s
federal recognition, which was never lost in the first place,
cannot, by definition, be restored. Also, a tribe that is
restored through legislative action, as opposed to the
administrative “acknowledgment” process, cannot, by
statutory definition and administrative regulations, invoke the
“acknowledged tribe” exception. Thus, the “acknowledged
tribe” exception is not rendered mere surplusage simply
because a tribe like the Band might be able to invoke another
exception as well.
Finally, even assuming, arguendo, that the State has
“muddied the waters” with respect to the meanings of the
terms “restored” and “acknowledged,” the Supreme Court
repeatedly has held that “‘statutes are to be construed liberally
in favor of the Indians, with ambiguous provisions interpreted
to their benefit.’” Chickasaw Nation v. United States, 534
U.S. 84, 94 (2001) (quoting Montana v. Blackfeet Tribe, 471
U.S. 759, 766 (1988)). This canon is “rooted in the unique
trust relationship between the United States and the Indians.”
Blackfeet Tribe, 471 U.S. at 766 (internal quotation marks and
citations omitted). The force of this interpretive canon can be
overcome only when “other circumstances evidencing
congressional intent” demonstrate that “the statute is ‘fairly
capable’ of two interpretations… [or] that the [conflicting]
interpretation is fairly ‘possible.’” Chickasaw Nation, 534
U.S. at 94 (citing Blackfeet Tribe, 471 U.S. at 766).
The State has pointed to no evidence of Congressional
intent that would forbid this Court from invoking the canon
of statutory construction applied to statutes affecting Indians
and their trust relationship with the United States. Indeed, the
only evidence of intent strongly suggests that the thrust of the
IGRA is to promote Indian gaming, not to limit it. See
22 Grand Traverse Band v.
Office of U.S. Attorney
No. 02-1679
25 U.S.C. § 2702(1) (providing that the purpose of the statute
is to provide a statutory basis for gaming by Indian tribes “as
a means of promoting tribal economic development, self-
sufficiency, and strong tribal governments”). Although
§ 2719 creates a presumptive bar against casino-style gaming
on Indian lands acquired after the enactment of the IGRA,
that bar should be construed narrowly (and the exceptions to
the bar broadly) in order to be consistent with the purpose of
the IGRA, which is to encourage gaming. Cf. City of
Roseville v. Norton, 348 F.3d 1020, 1030-32 (D.C. Cir. 2003)
(holding that the “restoration of lands” exception should be
interpreted broadly because the IGRA’s exceptions “embody
policies counseling for a broader reading” due to the statute’s
general purpose of promoting tribal economic development
and self-sufficiency; also applying the Indian canon of
statutory construction to resolve any ambiguities in favor of
a broad reading of the “restoration of lands” exception).
III
For all the foregoing reasons, the district court properly
found that the Grand Traverse Band of Ottawa and Chippewa
Indians is an Indian tribe that is restored to federal recognition
under the Indian Gaming Regulatory Act, 25 U.S.C.
§ 2719(b)(1)(B)(iii). The district court’s order of April 22,
2002 is therefore AFFIRMED.

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