                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

                                              )
FORT SILL APACHE TRIBE,                       )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil Action No. 14-958 (RMC)
                                              )
NATIONAL INDIAN GAMING                        )
COMMISSION, et al.,                           )
                                              )
               Defendants.                    )
                                              )



                                  MEMORANDUM OPINION

               This action concerns a Notice of Violation issued by the Chairman of the National

Indian Gaming Commission to the Fort Sill Apache Tribe. In an effort to facilitate settlement,

the parties asked the Court to order a set of agreed-upon actions the parties would undertake,

which the Court duly did. See 8/17/2016 Order [Dkt. 51] (Order). The Order went through

several amendments at the parties’ request. See 10/4/2016 Order [Dkt. 55] (Amended Order);

10/21/2016 Order [Dkt. 60]. The Tribe is now challenging the sufficiency of NIGC’s actions

under the terms of that order, and has asked the Court to order NIGC to show cause why it

should not be held in contempt. See Pl.’s Em. Mot. to Enforce the Court’s Order [Dkt. 67].

NIGC has opposed this request, [Dkt. 68], and the Tribe has replied. [Dkt. 69]. The matter is

ripe for the Court’s review.

                    This case concerns a set of administrative proceedings involving the Tribe,

NIGC, and the Department of Interior, all of which relate to a May 15, 2015 Decision issued by

NIGC that the Tribe was not eligible to provide gaming on certain Tribe-owned lands. One of

the complicating issues in this matter is a prior settlement (the Settlement) between Interior and

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the Tribe, and the extent to which the Settlement affects the Tribe’s right to operate a casino and,

by extension, affects NIGC’s May 15, 2015 determination.

                In an effort to resolve this case through settlement instead of continued litigation,

the parties jointly proposed the following: (1) the Department of Interior would issue a letter to

the NIGC stating its opinion on the relevancy of the Settlement on the Tribe’s rights to the

operation of a casino, whereupon (2) the NIGC would review its initial determination in light of

Interior’s letter. The Court, as requested, memorialized this agreement in an Order. See

Amended Order.

                After months of delay, Interior issued its letter to NIGC on December 9, 2016,

with a copy provided to the Court in camera. On January 12, 2017, NIGC issued a letter to the

Tribe, indicating that the information provided by the Interior in its letter did not give reason for

NIGC to reconsider its initial determination. See Pl.’s Mot. Ex. 1 (NIGC Letter).1

                Believing that NIGC’s actions are inadequate, the Tribe has filed the Motion

currently before the Court. The Tribe asserts that the letter issued by NIGC falls outside the

terms of the parties’ agreement as reflected in the Court’s order. See Pl.’s Mot. at 2.

Specifically, the Tribe argues that the letter issued by NIGC is insufficient under the plain

language of the Order, which states that NIGC shall “reconsider its Decision and Order dated




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  In their briefs, the parties engage in a dispute about whether the Tribe’s decision to attach the NIGC’s
letter to its motion violated Federal Rule of Evidence 408 protection. The parties misapprehend FRE 408.
“‘FRE 408 limits a document's relevance at trial, not its disclosure for other purposes.’” NAACP Legal
Def. Fund & Educ. Fund, Inc. v. U.S. Dep't of Justice, 612 F. Supp. 1143, 1146 (D.D.C. 1985) (quoting
Ctr. for Auto Safety v. Dep't of Justice, 576 F. Supp. 739, 749 (D.D.C. 1983)). “‘[A] party is not allowed
to use Rule 408 as a screen for curtailing his adversary's right of discovery.’” In re Subpoena Issued to
Commodity Futures Trading Comm'n, 370 F. Supp. 2d 201, 211 (D.D.C. 2005) (quoting 2 Weinstein's
Federal Evidence § 408.07 at 408-26 (2005)). The Court need not consider whether FRE 408 applies to
the NIGC letter, since FRE 408 would not preclude the letter’s use in this context.


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May 5, 2015, in consideration of the letter to be provided by Interior, and shall issue a Decision

and Order incorporating such reconsideration.” Amended Order.

               NIGC’s letter does not violate the Court’s order. The letter indicates that NIGC

reviewed the material provided by Interior and considered whether that information warranted a

reexamination of NIGC’s initial decision. NIGC concluded that it did not, and informed the

Tribe of that fact in the form of a letter. In doing so, the Court finds that NIGC by all

appearances acted in good faith and in substantial compliance with the Court’s order. See Food

Lion, Inc. v. United Food & Commercial Workers Int'l Union, AFL-CIO-CLC, 103 F.3d 1007,

1017 (D.C. Cir. 1997) (“[T]he burden of proving good faith and substantial compliance is on the

party asserting the defense.”) Given this, the Court denies the Tribe’s motion.

               While the intent of the parties’ plan was to promote a settlement of this dispute,

that appears now to have been unsuccessful. Accordingly, the Court directs the parties to meet

and confer and propose a joint schedule for the next phase of this litigation.

               Plaintiff’s Motion for an Order to Show Cause [Dkt. 67] will be DENIED. The

parties are ordered meet and confer and to submit a joint proposed schedule on or before March

20, 2017. A memorializing order accompanies this memorandum opinion.




Date: February 17, 2017                                                      /s/
                                                              ROSEMARY M. COLLYER
                                                              United States District Judge




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