                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


COUNTY OF AMADOR, California,            No. 15-17253
              Plaintiff-Appellant,
                                            D.C. No.
                 v.                      2:12-cv-01710-
                                           TLN-CKD
UNITED STATES DEPARTMENT OF
THE INTERIOR; RYAN K. ZINKE,
Secretary of the United States             OPINION
Department of Interior; KEVIN K.
WASHBURN, Acting Assistant
Secretary of Indian Affairs, United
States Department of Interior,
               Defendants-Appellees,

IONE BAND OF MIWOK INDIANS,
     Intervenor-Defendant-Appellee.


      Appeal from the United States District Court
         for the Eastern District of California
       Troy L. Nunley, District Judge, Presiding

          Argued and Submitted July 14, 2017
              San Francisco, California

                 Filed October 6, 2017
2                COUNTY OF AMADOR V. USDOI

Before: Susan P. Graber and Michelle T. Friedland, Circuit
       Judges, and Jeremy D. Fogel,* District Judge.

                     Opinion by Judge Graber


                            SUMMARY**


                            Tribal Issues

    The panel affirmed the district court’s summary judgment
in favor of the U.S. Department of the Interior and the Ione
Band of Miwok Indians in a case involving a proposed casino
in Amador County, California, and the County’s challenge to
a Department of the Interior 2012 record of decision in which
the agency announced its intention to take land into trust –
the Plymouth Parcels – for the benefit of the Ione Band, and
to allow the Ione Band to build a casino complex on the land.

    In Carcieri v. Salazar, 555 U.S. 379, 395 (2009), the U.S.
Supreme Court ruled that a tribe must have been “under
Federal jurisdiction” at the time the Indian Reorganization
Act (“IRA”) was enacted in 1934 in order to qualify to have
lands taken into trust for its benefit.

    The panel held that a tribe qualifies to have land taken
into trust for its benefit under 25 U.S.C. § 5108 of the IRA if


    *
     The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              COUNTY OF AMADOR V. USDOI                      3

it was “under Federal jurisdiction” as of June 18, 1934, and
is “recognized” at the time the decision was made to take land
into trust. The panel also held that the Department of the
Interior did not err in determining that the Ione Band was
“under Federal jurisdiction” at the time that the IRA became
law in 1934.

    Finally, the panel held that Department of the Interior did
not err in allowing the Ione Band to conduct gaming
operations on the Plymouth Parcels under the “restored tribe”
exception of the Indian Gaming Regulatory Act. The panel
held that the agency’s decision to grandfather in the Ione
Band under 25 C.F.R. § 292.26(b) was permissible.


                         COUNSEL

Christopher E. Skinnell (argued) and James R. Parrinello,
Nielsen Merksamer Parrinello Gross & Leoni LLP, San
Rafael, California; Cathy A. Christian, Nielsen Merksamer
Parrinello Gross & Leoni LLP, Sacramento, California; for
Plaintiff-Appellant.

John L. Smeltzer (argued), Katherine J. Barton, and Judith
Rabinowitz, Attorneys; John C. Cruden, Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.;
Matthew Kelly, Office of the Solicitor, United States
Department of the Interior, Washington, D.C.; for
Defendants-Appellees.

Jerome L. Levine (argued) and Timothy Q. Evans, Holland &
Knight LLP, Los Angeles, California, for Intervenor-
Defendant-Appellee.
4             COUNTY OF AMADOR V. USDOI

                          OPINION

GRABER, Circuit Judge:

    This case involves a dispute over a proposed casino in
Amador County, California. Plaintiff, the County of Amador
(“County”), challenges a 2012 record of decision (“ROD”)
issued by the United States Department of the Interior
(“Interior”) in which the agency announced its intention to
take land into trust for the benefit of the Ione Band of Miwok
Indians (“Ione Band” or “Band”). The ROD also allowed the
Ione Band to build a casino complex and conduct gaming on
the land once it is taken into trust. Reviewing Interior’s
decision under the Administrative Procedure Act (“APA”),
we conclude that the agency did not err. Accordingly, we
affirm the district court’s award of summary judgment to
Interior and the Ione Band.

      FACTUAL AND PROCEDURAL HISTORY

    Amador County is located roughly 45 miles southeast of
Sacramento in the foothills of the Sierra Nevada Mountains.
The county is rural, with a population density well below the
state average, and it contains just five incorporated cities.

    The Ione Band’s origins lie in the amalgamation of
several “tribelets” indigenous to Amador County and the
surrounding area. The tribelets, which included the Northern
Sierra Miwok and the Wapumne, were independent, self-
governing groups that maintained their own territories but
regularly interacted with one another. The political and
geographic lines separating the tribelets began to erode in the
18th and early 19th centuries, as Spanish and Mexican
missionary efforts and the arrival of white settlers in the area
              COUNTY OF AMADOR V. USDOI                     5

decimated the Native American population and displaced
many villages. The discovery of gold in the area in 1848 and
the subsequent inpouring of miners and prospectors
accelerated the process of amalgamation. For instance, the
Foothill Nisenan living in the American River drainage were
displaced by miners and were forced to move south, where
they joined with Plains Miwok and Northern Sierra Miwok.

    Conflicts arose between the miners and settlers who
flooded into California beginning in 1848, on the one hand,
and the Native Americans already in the vicinity, on the
other. The federal government tried to ameliorate the
situation by convincing Native Americans to give up their
lands and move to “safer” areas. In 1851, federal agents
negotiated 18 treaties with Native Americans that required
such resettlement. One of those treaties—Treaty J—was
signed by members of some of the tribelets that would
eventually blend together to form the Ione Band. Treaty J set
aside land for those tribelets in what is now Amador County.
The land, which included the site of the proposed casino, was
to be “set apart forever for the sole use and occupancy of the
tribes whose representatives signed the treaty.” Neither
Treaty J nor any of the other treaties ever went into effect,
however. The California legislature, which opposed the
assignment of the lands to Native Americans, successfully
lobbied against the treaties and, in 1852, the United States
Senate voted not to ratify the treaties. Larisa K. Miller, The
Secret Treaties With California’s Indians, Prologue
Magazine, Fall/Winter 2013.

    Throughout the latter half of the 19th century, Native
Americans in the Amador County area continued to be
displaced by white settlers. By 1900, most Native Americans
lived either in remote settlements or on the edges of towns.
6             COUNTY OF AMADOR V. USDOI

They were largely destitute and often lacked permanent
homes. Congress felt that California was largely responsible
for this state of affairs and would have to play a primary role
in addressing the problem of the “landless Indians,” but its
position changed in 1905 when the 18 unratified treaties from
the 1850s were brought to light. Id. The treaties had been
printed “in confidence” in 1852 and could not be accessed by
the public from the Senate archives, so they had been largely
forgotten. Id. at 43. Two activists convinced Senator
Thomas Bard of California to have the treaties printed. After
he did, Congress was forced to acknowledge the role that it
had played in creating the problem of landless Indians in
California. Id. Capitalizing on the change in sentiment
among his colleagues, Senator Bard proposed an amendment
to the Indian Appropriations Act of 1905 that authorized the
Secretary of the Interior (“Secretary”) to “investigate . . .
existing conditions of the California Indians and to report to
Congress . . . some plan to improve the same.” Pub. L. No.
58-212, 33 Stat. 1048, 1058 (1905).

    The Secretary tasked C.E. Kelsey with conducting the
investigation into the condition of Native Americans in
California. In Kelsey’s 1906 report to the Commissioner of
Indian Affairs, he recommended that Native Americans in
Northern California who were “landless through past acts [or]
omissions of the National Government . . . receive land in lieu
of any claims they may have against the Government, moral
or otherwise; that the land . . . be of good quality with proper
water supply, and . . . be located in the neighborhoods in
which the Indians wish to live.” Indian Tribes of California:
Hearings Before a Subcomm. of the H. Comm. on Indian
Affairs, 66th Cong. 131, at 23–24 (1920) (Report of the
Special Agent for California Indians to the Commissioner of
Indian Affairs, Mar. 21, 1906). The Commissioner, in turn,
               COUNTY OF AMADOR V. USDOI                       7

recommended to Congress that it appropriate money to carry
out Kelsey’s plan. Congress responded by appropriating
$100,000 in 1906 for the purchase of land in California for
“Indians . . . now residing on reservations which do not
contain land suitable for cultivation, and for Indians who are
not now upon reservations.” Pub. L. No. 59-258, 34 Stat.
325, 333 (1906). Congress continued to appropriate money
for that purpose almost every year until the passage of the
Indian Reorganization Act in 1934 made such annual
appropriations unnecessary. William Wood, The Trajectory
of Indian Country in California: Rancherías, Villages,
Pueblos, Missions, Ranchos, Reservations, Colonies, and
Rancherias, 44 Tulsa L. Rev. 317, 357–58 (2008).

     Kelsey also prepared a census of non-reservation Indians
living in California. That census served as a guide for John
Terrell, a Special Agent with Interior’s Bureau of Indian
Affairs who traveled to California in 1915. Terrell was to
assess which groups of Indians were in need of land and was
to negotiate purchases of land for their benefit. Terrell visited
the Native Americans living near Ione and counted some 101
members of the Ione Band, including Charlie Maximo, the
recently elected Chief of the Band. In a May 1915 letter to
the Commissioner of Indian Affairs, Terrell wrote that, “[o]f
all the Indians I have visited,” the members of the Ione Band
“have stronger claims to their ancient Village than any
others.” After visiting the Band, Terrell almost immediately
set about trying to buy some of the land on which the Band
resided, for use as a permanent home for the Band.

   In August 1915, Terrell reached an agreement for the
purchase of 40 acres at a total price of $2,000. But the
purchase stalled because of problems with the title to the
property. For years, various officials with Interior tried to
8             COUNTY OF AMADOR V. USDOI

close the deal, but with no success. In a July 1923 letter, one
Interior official wrote that the agency “ha[d] tried very hard
for five years to get this sale through because . . . [the Ione
Band], if dispossessed, would be placed in such shape as to
call forth untold criticism by all people knowing the
circumstances of their occupation of this land as homesites
for years.” A different Interior official wrote, in a January
1924 letter, that the deal was “all but closed.” More than five
years later, though, the transaction still had not been
consummated. As one official wrote to a member of the
Band in a May 1930 letter, “[w]e have for more than eight
years been negotiating with owners of the [land] for the
purpose of purchasing same, but because of our inability to
get a clear title to the land, the deal has not been closed.”

    In 1934, Congress enacted the Indian Reorganization Act
(“IRA”).

           The IRA was designed to improve the
       economic status of Indians by ending the
       alienation of tribal land and facilitating tribes’
       acquisition of additional acreage and
       repurchase of former tribal domains. Native
       people were encouraged to organize or
       reorganize with tribal structures similar to
       modern business corporations. A federal
       financial credit system was created to help
       tribes reach their economic objective.
       Educational and technical training
       opportunities were offered, as were
       employment opportunities through federal
       Indian programs.
              COUNTY OF AMADOR V. USDOI                       9

Cohen’s Handbook of Federal Indian Law § 1.05, at 81 (Nell
Jessup Newton ed., 2012) [hereinafter Cohen’s Handbook].
Relevant to this case, the IRA gave the Secretary of the
Interior the power to take land into trust for a tribe’s use.

     In 1972, the California Rural Indian Land Project, acting
on behalf of the Band, asked the federal government to accept
title to the same 40-acre tract that the government had tried to
buy years earlier and to hold the land in trust for the Band. In
October of that year, Robert Bruce, the Commissioner of
Indian Affairs, agreed to do so. In his letter to the Band,
Bruce wrote:

       Federal recognition was evidently extended to
       the Ione Band of Indians at the time that the
       Ione land purchase was contemplated. As
       stated earlier, they . . . are eligible for the
       purchase of land under [the IRA].

    The federal government did not take the land into trust at
that time, however, because several officials within Interior
questioned Commissioner Bruce’s conclusion that the Ione
Band was eligible to have land taken into trust for its benefit
under the IRA. In 1973, for instance, the Deputy Assistant
Secretary of the Interior wrote a letter stating that “[t]he
former contemplated purchase of land for [the Ione Band] by
the United States may indicate that they are a recognizable
group entitled to benefits of the [IRA]. We have no
correspondence, however, from the group requesting
recognition or a desire to establish a reservation. . . . If the
Band desires and merits Federal recognition, action should be
taken to assist them to perfect an organization under the
provisions of the [IRA].”
10              COUNTY OF AMADOR V. USDOI

    In 1978, Interior promulgated what are known as the “Part
83” regulations, 25 C.F.R. pt. 831 “The purpose of [the Part
83 regulations] [wa]s to establish a departmental procedure
and policy for acknowledging that certain American Indian
tribes exist. Such acknowledgment of tribal existence . . . is
a prerequisite to the protection, services, and benefits from
the Federal Government available to Indian tribes,” including
the benefits of the IRA. Procedures for Establishing That an
American Indian Group Exists as an Indian Tribe, 43 Fed.
Reg. 39,361-01, 39,362 (Aug. 24, 1978). “Prior to 1978,
Federal acknowledgment was accomplished both by
Congressional action and by various forms of administrative
decision. . . . The [Part 83] regulations established the first
detailed, systematic process for review of petitions from
groups seeking Federal acknowledgment.” Procedures for
Establishing That an American Indian Group Exists as an
Indian Tribe, 59 Fed. Reg. 9280-01, 9280 (Feb. 25, 1994).

    Following the promulgation of the Part 83 regulations,
Interior began to take the position that the Band had not yet
been recognized by the federal government and that it had to
proceed through the Part 83 regulations if it wished to be
recognized. When the Band sued the federal government in
1990, for instance, the government took the position that the
Band was not a recognized tribe.

     But in 1994, the federal government changed its mind
about the Band’s “recognized” status. In a March 1994 letter
to the Chief of the Band, Assistant Secretary of Indian Affairs


     1
      The regulations were initially designated as 25 C.F.R. part 54, but
they were later redesignated without textual change as 25 C.F.R. part 83.
Procedures for Establishing That an American Indian Group Exists as an
Indian Tribe, 59 Fed. Reg. 9280-01, 9280 (Feb. 25, 1994).
                 COUNTY OF AMADOR V. USDOI                              11

Ada Deer “reaffirm[ed] the portion of Commissioner Bruce’s
[1972] letter” that stated that “Federal recognition was
evidently extended to the Ione Band of Indians at the time
that the Ione land purchase was contemplated.” Assistant
Secretary Deer further ordered that the Ione Band be included
on the official list of “Indian Entities Recognized and Eligible
to Receive Services from the United States Bureau of Indian
Affairs,” which was published in the Federal Register. The
Band was included on the list beginning in 1995.

    Meanwhile, Congress passed the Indian Gaming
Regulatory Act (“IGRA”) in 1988. Section 20 of IGRA
limits “gaming . . . on lands acquired by the Secretary in trust
for the benefit of an Indian tribe after the date of enactment
of” the statute, allowing gaming in just a few circumstances.
Pub. L. No. 100-497, § 20, 102 Stat. 2467, 2485–86 (1988),
codified at 25 U.S.C. § 2719(a). One such circumstance
exists when “lands are taken into trust as part of . . . the
restoration of lands for an Indian tribe that is restored to
Federal recognition.” Id. § 2719(b)(1)(B)(iii).2 That
exception is called the “restored tribe” or “restored lands of
a restored tribe” exception.

   In September 2004, the Band submitted a request to the
National Indian Gaming Commission (“Gaming




    2
       “Indian tribe” is defined in IGRA as “any Indian tribe, band, nation,
or other organized group or community of Indians which (A) is recognized
as eligible by the Secretary for the special programs and services provided
by the United States to Indians because of their status as Indians, and
(B) is recognized as possessing powers of self-government.” 25 U.S.C.
§ 2703(5).
12              COUNTY OF AMADOR V. USDOI

Commission”)3 for an Indian lands determination—a ruling
as to the eligibility of land to be used for gaming—regarding
some land known as the Plymouth Parcels. While that
request was pending, the Band submitted a “fee-to-trust”
application to Interior, asking that the Secretary accept trust
title to the Plymouth Parcels. Under then-applicable Interior
practice, a fee-to-trust application seeking to use the newly
acquired lands for gaming under the “restored tribe”
exception of IGRA required “[a] legal opinion from the
Office of the Solicitor concluding that the proposed [land]
acquisition” came within the exception, and the Indian lands
determination would constitute such a legal opinion.
Pursuant to a memorandum of agreement between the
Gaming Commission and Interior, the Associate Solicitor in
Interior’s Division of Indian Affairs prepared an Indian lands
determination in September 2006 (“2006 Determination”).
The Associate Solicitor concluded that “Assistant Secretary
Deer’s [1994] . . . reaffirmation of Commissioner Bruce’s
[1972] position amounts to a restoration of the Band’s status
as a recognized Band. Under the unique history of its
relationship with the United States, the Band should be
considered a restored tribe within the meaning of IGRA.”
The Associate Deputy Secretary for Indian Affairs concurred
in that determination and notified the Band of his concurrence
later in September 2006.4 After receiving the 2006


     3
      The Gaming Commission “is a federal regulatory agency, created by
IGRA, that oversees the business of Indian gaming in order to ensure its
lasting integrity.” Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d
712, 716 n.6 (9th Cir. 2003).
     4
      The County notes that, “[i]n January 2009, Department Solicitor
David Bernhardt sent a memorandum to George Skibine, Acting Deputy
Assistant Secretary for Policy and Economic Development, withdrawing
the [2006 Determination].” Bernhardt told Skibine that he was
                 COUNTY OF AMADOR V. USDOI                              13

Determination, the Band continued to pursue its fee-to-trust
application.

    Over the next few years, Interior engaged in an internal
dispute about the correctness of the 2006 Determination.
While that was occurring, the Supreme Court decided
Carcieri v. Salazar, 555 U.S. 379 (2009), a case that
concerned the meaning of the phrase “recognized Indian tribe
now under Federal jurisdiction” in the IRA. The Court ruled
that a tribe must have been “under Federal jurisdiction” at the
time the IRA was enacted (1934) in order to qualify to have
lands taken into trust for its benefit. Id. at 395.

    In May 2012, Interior issued the relevant ROD, in which
it announced its intention to take the Plymouth Parcels into
trust for the Band and approved the Band’s plan to build a
gaming complex on the Plymouth Parcels. The agency
concluded, in relevant part, that (1) the Ione Band was under
federal jurisdiction in 1934 and was thus eligible to have land
taken into trust under the statute, and that (2) the Plymouth
Parcels could be used for gaming under the “restored tribe”




“withdraw[ing] and . . . reversing that opinion” and that the opinion “no
longer represents the legal position of the Office of the Solicitor. The
opinion of the Solicitor’s Office is that the Band is not a restored tribe
within the meaning of IGRA.” That is true but, as Interior points out, the
“County does not challenge the 2006 Determination based on the
purported 2009 withdrawal.” That silence probably results from the fact
that, “in 2011, Solicitor Hilary Tompkins reaffirmed the 2006
Determination[] after concluding that neither Bernhardt’s circulation of his
draft legal opinion nor his issuance of a memorandum regarding it to the
Acting Deputy Assistant Secretary had the effect of withdrawing or
reversing it.”
14               COUNTY OF AMADOR V. USDOI

exception of IGRA. The ROD was signed by Donald
Laverdure, the Acting Assistant Secretary of Indian Affairs.5

    In June 2012, the County sued Interior6 in district court
under the APA, challenging both the agency’s decision to
take the Plymouth Parcels into trust and its conclusion that
the land could be used for gaming under the “restored tribe”
exception of IGRA. The Ione Band intervened in each case,
on the side of Interior. In 2015, the district court granted
summary judgment to Interior and the Band and denied the
County’s motion for summary judgment. The County timely
appeals.

         STANDARD AND SCOPE OF REVIEW

    We review de novo the district court’s summary judgment
rulings, “thus reviewing directly the agency’s action under
the [APA’s] arbitrary and capricious standard.” Alaska
Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir.
2015) (internal quotation marks omitted). “In general, a court


     5
       Laverdure was serving as the Principal Deputy Assistant Secretary
of Indian Affairs before Assistant Secretary Larry Echo Hawk’s
resignation. Laverdure was thus “the first assistant to the office” of the
Assistant Secretary of Indian Affairs. Schaghticoke Tribal Nation v.
Kempthorne, 587 F.3d 132, 135 (2d Cir. 2009) (per curiam). Accordingly,
Laverdure assumed the duties of the Assistant Secretary automatically
upon Echo Hawk’s resignation. Hooks v. Kitsap Tenant Support Servs.,
Inc., 816 F.3d 550, 557 (9th Cir. 2016). Those duties included taking land
into trust under the IRA, a duty that had been delegated to the Assistant
Secretary. Accordingly, Laverdure was empowered to take the Plymouth
Parcels into trust.
     6
     The County named Interior, the Secretary of the Interior, and the
Acting Assistant Secretary of Indian Affairs as defendants. We refer to
them collectively as “Interior.”
              COUNTY OF AMADOR V. USDOI                     15

reviewing agency action under the APA must limit its review
to the administrative record.” San Luis & Delta-Mendota
Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir. 2014).

                       DISCUSSION

    Interior’s decision to take the Plymouth Parcels into trust
for the Ione Band rested on two key determinations, each of
which the County challenges. First, Interior determined that
the Ione Band qualifies to have land taken into trust for its
benefit under the IRA because the Band is now “recognized”
and was “under Federal jurisdiction” in 1934 when the IRA
took effect. Second, Interior determined that the Ione Band
may conduct gaming on the Plymouth Parcels under the
“restored lands of a restored tribe” provision of IGRA. We
address those issues in turn.

A. “Recognized Indian Tribe Now Under Federal
   Jurisdiction”

    The IRA provides that the Secretary of the Interior may
take land into trust “for the purpose of providing land for
Indians.” 25 U.S.C. § 5108. The statute defines “Indian” to
include “all persons of Indian descent who are members of
any recognized Indian tribe now under Federal jurisdiction.”
Id. § 5129. In Carcieri, the Court held that the “temporal
restrictions that apply to [the] definition of ‘Indian’” in
§ 5129 limit the set of tribes that can have land taken into
trust for their benefit under § 5108. 555 U.S. at 393. The
Court also held that “the term ‘now under Federal
jurisdiction’ . . . unambiguously refers to those tribes that
were under the federal jurisdiction of the United States when
the IRA was enacted in 1934.” Id. at 395. Accordingly, the
Secretary may take land into trust for the Ione Band only if it
16               COUNTY OF AMADOR V. USDOI

was “under Federal jurisdiction” at the time that the IRA was
passed.7

    Carcieri left several questions unanswered, two of which
the parties dispute. First, need a tribe have been “recognized”
in 1934, as well as “under Federal jurisdiction” in 1934, in
order to benefit from the IRA, or can recognition occur at any
time? We will call this the “timing-of-recognition issue.”
Second, what does it mean for a tribe to have been “under
Federal jurisdiction” in 1934?8


     7
      Section 5129 contains two additional definitions of “Indian,” but
they are not relevant to this case.
     8
       There is a third question left open by Carcieri: Are the “now under
Federal jurisdiction” and “recognized” requirements even distinct, or do
they comprise a single requirement? The Court in Carcieri did not
explicitly hold that the two requirements are distinct but, as Justice Souter
noted in his opinion, “[n]othing in the majority opinion forecloses the
possibility that the two concepts, recognition and jurisdiction, may be
given separate content.” Carcieri, 555 U.S. at 400 (Souter, J., concurring
in part and dissenting in part). We think that the better reading of the
statute is that “recognition” and being “under Federal jurisdiction” are
distinct requirements, for two reasons. First, statutes should be construed
so as to “give effect, if possible, to every clause and word.” Roberts v.
Sea-Land Servs., Inc., 566 U.S. 93, 111 (2012) (quoting Duncan v.
Walker, 533 U.S. 167, 174 (2001)). Second, the phrase “now under
Federal jurisdiction” was added to the statute during the drafting process.
To Grant to Indians Living Under Federal Tutelage the Freedom to
Organize for Purposes of Local Self-Government and Economic
Enterprise: Hearings Before the Comm. on Indian Affairs on S. 2755 and
3645, 73d Cong. 264 (1934). If “under Federal jurisdiction” meant the
same thing as “recognized,” then the only effect of the addition would
have been to fix the recognition time at “now”—that is, 1934. But that
goal could have been accomplished simply by adding the word “now” in
front of “recognized.” The fact that an entirely new phrase was added
suggests that the change was intended to do more than fix the time of
recognition at 1934 and that the added new phrase, “under Federal
                  COUNTY OF AMADOR V. USDOI                             17

    1. The Timing-of-Recognition Issue

    The parties’ first dispute is over the timing-of-recognition
issue.9 The County argues that the phrase “now under
Federal jurisdiction” modifies the entire phrase “recognized
Indian tribe,” so that a tribe must have been recognized in
1934 in order to benefit from the statute.10 Interior and the
Band, on the other hand, argue that “recognized” and “now
under Federal jurisdiction” separately modify “Indian tribe,”
so that recognition can occur at any time before land is taken
into trust.

    Both arguments are plausible because, as one of our sister
circuits has held, the IRA is ambiguous with respect to the
timing-of-recognition issue. Grand Ronde, 830 F.3d at 560.
That is, even after applying the usual tools of statutory



jurisdiction,” was understood to mean something different than
“recognized.” Cf. Zachary v. Cal. Bank & Tr., 811 F.3d 1191, 1198–99
(9th Cir. 2016) (rejecting a statutory construction that reflected a policy
choice that Congress could have made “in a far more straightforward
manner”).
    9
        The County does not dispute that the Band is presently recognized.
    10
       We reject the County’s argument that the Supreme Court already
resolved the timing-of-recognition issue in Carcieri. As the D.C. Circuit
has observed, Carcieri’s “holding reaches only the temporal limits of the
Federal-jurisdiction prong” of § 5129. Confederated Tribes of Grand
Ronde Cmty. of Or. v. Jewell (Grand Ronde), 830 F.3d 552, 559–60 (D.C.
Cir. 2016), cert. denied, 137 S. Ct. 1433 (2017). And to the extent that the
Court said anything about the timing-of-recognition issue in United States
v. John, 437 U.S. 634 (1978), its statements were unreasoned dicta that are
entitled to little weight. See United States v. Montero-Camargo, 208 F.3d
1122, 1132 n.17 (9th Cir. 2000) (en banc) (“We do not treat considered
dicta from the Supreme Court lightly.” (emphasis added)).
18               COUNTY OF AMADOR V. USDOI

construction, the statute does not yield a clear answer as to
Congress’ intent on the timing-of-recognition issue. The
statute reasonably can be read to limit its benefits to tribes
that were recognized in 1934, or it reasonably can be read to
extend benefits to later-recognized tribes, provided that those
tribes were “under Federal jurisdiction” in 1934.11

    Interior is the agency that Congress designated to
administer the IRA. Grand Ronde, 830 F.3d at 559; United
States v. Eberhardt, 789 F.2d 1354, 1359–60 (9th Cir. 1986).
Interior argues that its resolution of the timing-of-recognition
issue is entitled to deference under Chevron.12 But we need
not decide whether Chevron deference (or any other level of
deference) is appropriate, because we reach the same
conclusion as Interior when we review the timing-of-
recognition issue de novo. The phrase “recognized Indian
tribe now under Federal jurisdiction,” when read most
naturally, includes all tribes that are currently—that is, at the
moment of the relevant decision—“recognized” and that were
“under Federal jurisdiction” at the time the IRA was passed.



     11
        Of course, those two interpretations of the statute need not be
equally plausible or reasonable to give rise to “ambiguity” within the
meaning of Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). See Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 980 (2005) (“If a statute is ambiguous,
and if the implementing agency’s construction is reasonable, Chevron
requires a federal court to accept the agency’s construction of the statute,
even if the agency’s reading differs from what the court believes is the
best statutory interpretation.”).
     12
       As Interior points out, the D.C. Circuit and several district courts
have deferred to the agency under Chevron on the timing-of-recognition
issue. See, e.g., Grand Ronde, 830 F.3d at 559–63.
              COUNTY OF AMADOR V. USDOI                      19

    In addition to exploring the text of the statute itself, we
examine the relevant statutory context. When construing a
statutory provision, we must “bear[] in mind the fundamental
canon of statutory construction that the words of a statute
must be read in their context and with a view to their place in
the overall statutory scheme.” Util. Air Regulatory Grp. v.
EPA 134 S. Ct. 2427, 2441 (2014) (internal quotation marks
omitted). “The meaning . . . of certain words or phrases may
only become evident when placed in context.” FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).
Unfortunately, though, contextual clues are of little value in
understanding the phrase at issue.

    Section 5129 provides “three discrete definitions” of
“Indian”: “[1] members of any recognized Indian tribe now
under Federal jurisdiction, and [2] all persons who are
descendants of such members who were, on June 1, 1934,
residing within the present boundaries of any Indian
reservation, and . . . [3] all other persons of one-half or more
Indian blood.” Carcieri, 555 U.S. at 391–92 (alterations in
original) (quoting 25 U.S.C. § 5129). As the D.C. Circuit
recognized in Grande Ronde, the second and third definitions
of “Indian” in § 5129 do not shed much light on the meaning
of the first definition. See 830 F.3d at 561 (“Appellants do
not believe a descendant of a tribe recognized in 2002 could
have lived on a reservation in 1934. That assumption is
incorrect, for . . . recognition that occurs after 1934 simply
means, in retrospect, that any descendant of a Cowlitz Tribal
member who was living on an Indian reservation in 1934 then
met the IRA’s second definition.”).

    Nor does the remainder of the IRA illuminate the timing-
of-recognition issue. As noted, § 5129 is a definitional
section, so the remainder of the statute simply uses the terms
20               COUNTY OF AMADOR V. USDOI

defined in § 5129 and is coherent whether or not those terms
include later-recognized tribes.

      We next examine the purpose and history of the IRA. See
Abramski v. United States, 134 S. Ct. 2259, 2267 (2014)
(“[W]e must (as usual) interpret the relevant words [in a
statute] not in a vacuum, but with reference to the statutory
. . . history[] and purpose.” (internal quotation marks
omitted)). “Examination of purpose is a staple of statutory
interpretation that makes up the daily fare of every appellate
court in the country . . . .” McCreary County v. ACLU of Ky.,
545 U.S. 844, 861 (2005) (citation omitted).              And
understanding the historical context in which a statute was
passed can help to elucidate the statute’s purpose and the
meaning of statutory terms and phrases. See, e.g., Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 471 (2001) (“The text
of [the provision], interpreted in its statutory and historical
context and with appreciation for its importance to the
[statute] as a whole, unambiguously bars cost considerations
. . . , and thus ends the matter for us . . . .”).

    The IRA represented the culmination of a “marked
change in attitude toward Indian policy” that began in the
mid-1920s. Cohen’s Handbook § 1.05, at 79. The “prior
policy of allotment[13] sought ‘to extinguish tribal
sovereignty, erase reservation boundaries, and force the
assimilation of Indians into the society at large.’” Grand
Ronde, 830 F.3d at 556 (quoting County of Yakima v.


     13
       Under the allotment policy, Native Americans “surrendered their
undivided interest in the tribally owned common or trust estate for a
personally assigned divided interest, generally held in trust for a limited
number of years, but ‘allotted’ to them individually.” Cohen’s Handbook
§ 1.04, at 72.
              COUNTY OF AMADOR V. USDOI                    21

Confederated Tribes & Bands of Yakima Indian Nation,
502 U.S. 251, 254 (1992)). The new policy, by contrast,
reflected “more tolerance and respect for traditional aspects
of Indian culture,” Cohen’s Handbook § 1.05, at 79, and
rested “on the assumption . . . that the tribes not only would
be in existence for an indefinite period, but that they should
be,” William C. Canby, Jr., American Indian Law in a
Nutshell 25 (6th ed. 2014). As the “crowning achievement”
of the new policy, Cohen’s Handbook § 1.05, at 81, the IRA
was intended “to establish machinery whereby Indian tribes
would be able to assume a greater degree of self-government,
both politically and economically,” Morton v. Mancari,
417 U.S. 535, 542 (1974). To a large extent, the IRA was
intended to undo the damage wrought by prior policies—“to
rehabilitate the Indian’s economic life and to give him a
chance to develop the initiative destroyed by a century of
oppression and paternalism.” Mescalero Apache Tribe v.
Jones, 411 U.S. 145, 152 (1973) (quoting H.R. Rep. No. 73-
1804, at 6 (1934)).

    In 1934, when Congress enacted the IRA, there was no
comprehensive list of recognized tribes, nor was there a
“formal policy or process for determining tribal status.”
William Wood, Indians, Tribes, and (Federal) Jurisdiction,
65 U. Kan. L. Rev. 415, 429–30 (2016); accord Cohen’s
Handbook § 3.02[7][a], at 153 (noting “the history of
inconsistent, vague, and contradictory policies surrounding
the recognition of tribes”). It seems unlikely that Congress
meant for the statute’s applicability to a particular tribe to
turn on whether that tribe happened to have been recognized
by a government that lacked a regular process for such
recognition. It seems more likely that Congress intended the
statute to benefit all tribes, whenever recognized, provided
22             COUNTY OF AMADOR V. USDOI

that those tribes were “under Federal jurisdiction” as of the
date when the IRA was enacted.

    Next, we consider the drafting history of the statute. As
we have already noted, an earlier draft of the statute extended
benefits to “all persons of Indian descent who are members of
any recognized Indian tribe.” The best reading of that version
of the statute would have been that “recognition” could occur
at any time. The phrase “now under Federal jurisdiction” was
a free-standing addition. Its apparent purpose was simply to
exclude those tribes that were not at that time under federal
jurisdiction.

    Finally, we consider Interior’s history of administering
the IRA. We “give an agency’s . . . practices considerable
weight where they involve the contemporaneous construction
of a statute and where they have been in long use.” Davis v.
United States, 495 U.S. 472, 484 (1990); see also United
States v. 103 Elec. Gambling Devices, 223 F.3d 1091, 1097
(9th Cir. 2000) (stating that an agency’s “practice has peculiar
weight when it involves a contemporaneous construction of
a statute by the men charged with the responsibility of setting
its machinery in motion, of making the parts work as
efficiently and smoothly while they are yet untried and new.”
(quoting Norwegian Nitrogen Prods. Co. v. United States,
288 U.S. 294, 315 (1933))). A court should hesitate before
construing a statute in a way that renders years of consistent
agency practice unlawful. See, e.g., Baur v. Mathews,
578 F.2d 228, 233 (9th Cir. 1978) (“The administrative
agency clothed with responsibility for implementing
congressional pronouncements is generally well acquainted
with the policy of the statute it administers. This is
particularly true when the agency has long been involved in
the . . . administration of a given statute or its predecessors.”).
              COUNTY OF AMADOR V. USDOI                      23

     Pre-Carcieri “administrative practice . . . treated all
federally recognized tribes as entitled to have land taken into
trust under the IRA, so long as those tribes were recognized
as of the time the land was placed in trust.” Cohen’s
Handbook § 3.02[6][d], at 149. Even in the early years of the
administration of the statute, Interior’s practice allowed for
post-1934 recognition. In 1937, for instance, Interior
recognized the Mole Lake Indians of Wisconsin as a tribe that
was entitled to the IRA’s benefits. 1 Dep’t of Interior,
Opinions of the Solicitor Relating to Indian Affairs,
1917–1974, at 725 (Feb. 8, 1937); see also Carcieri, 555 U.S.
at 399 (Breyer, J., concurring) (“[T]he Department in the
1930’s thought that an anthropological study showed that the
Mole Lake Tribe no longer existed. But the Department later
decided that the study was wrong, and it then recognized the
Tribe.”). Furthermore, none of the Solicitor’s Opinions
issued in the mid-to-late 1930s concerning whether a tribe
qualified for the benefits of the IRA “contain[ed] any
suggestion that it [was] improper to determine the status of a
tribe after 1934.” Memorandum from Assoc. Solicitor to the
Assistant Sec’y of Indian Affairs 7 (Oct. 1, 1980) (Request
for Reconsideration of Decision Not to Take Land in Trust
for the Stillaguamish Tribe). In short, Interior’s longstanding,
consistent practice of allowing tribes recognized after the
passage of the IRA to benefit from the statute supports its
reading of the statute.

    Given the IRA’s text, structure, purpose, historical
context, and drafting history—and Interior’s administration
of the statute over the years—the better reading of § 5129 is
that recognition can occur at any time. We therefore hold that
a tribe qualifies to have land taken into trust for its benefit
under § 5108 if it (1) was “under Federal jurisdiction” as of
24             COUNTY OF AMADOR V. USDOI

June 18, 1934, and (2) is “recognized” at the time the
decision is made to take land into trust.

     2. The Meaning of “Under Federal Jurisdiction”

    The County next challenges Interior’s determination that
the Ione Band was “under Federal jurisdiction” at the time
that the IRA became law. The County’s first argument in
support of that challenge is that Interior’s interpretation of the
phrase “under Federal jurisdiction” is incorrect.

    In the ROD, Interior applied the following two-part test
to determine whether the Band was “under Federal
jurisdiction” in 1934:

        [W]e construe the phrase “under federal
        jurisdiction” as entailing a two-part inquiry.
        The first part examines whether there is a
        sufficient showing in the tribe’s history, at or
        before 1934, that it was under federal
        jurisdiction, i.e., whether the United States
        had, in 1934 or at some point in the tribe’s
        history prior to 1934, taken an action or series
        of actions—through a course of dealings or
        other relevant acts for or on behalf of the tribe
        or in some instances tribal members—that are
        sufficient to establish or that generally reflect
        Federal obligations, duties, responsibility for
        or authority over the tribe by the Federal
        Government. Some Federal actions may in
        and of themselves demonstrate that a tribe
        was under Federal jurisdiction or a variety of
        actions when viewed in concert may achieve
        the same result.
              COUNTY OF AMADOR V. USDOI                     25

           ....

           Once having identified that the tribe was
       under Federal jurisdiction at or before 1934,
       the second part ascertains whether the tribe’s
       jurisdictional status remained intact in
       1934. . . . [T]he longer the period of time
       prior to 1934 in which the tribe’s
       jurisdictional status is shown, and the smaller
       the gap between the date of the last evidence
       of being under Federal jurisdiction and 1934,
       the greater likelihood that the tribe retained its
       jurisdictional status in 1934.

Interior and the Band argue that this interpretation of “under
Federal jurisdiction” is entitled to Chevron deference.

    The County disagrees with Interior and the Band both
about the meaning of “under Federal jurisdiction” and about
the level of deference owed to the agency. According to the
County, “in 1934[,] federal jurisdiction over Indians
unambiguously went hand-in-hand with federally-supervised
land reserved for those Indians, at least where there was no
valid treaty in effect.” Because the meaning of the phrase is
clear, argues the County, Interior’s contrary interpretation is
not owed Chevron deference.

    We need not decide whether Chevron deference is owed
to the agency because, once again, we reach the same
conclusion as the agency even without it. Even if we do not
owe Chevron deference to Interior’s interpretation of “under
Federal jurisdiction,” that interpretation “certainly may
influence” our analysis. United States v. Mead Corp.,
533 U.S. 218, 227 (2001). The proper amount of such
26                 COUNTY OF AMADOR V. USDOI

influence “has been understood to vary with circumstances,”
id. at 228; it depends on “a variety of factors, such as the
thoroughness and validity of the agency’s reasoning, the
consistency of the agency’s interpretation, [and] the formality
of the agency’s action,” Tualatin Valley Builders Supply, Inc.
v. United States, 522 F.3d 937, 942 (9th Cir. 2008). We also
consider the agency’s “relative expertness.” Mead Corp.,
533 U.S. at 228. Ultimately, the amount of deference—so-
called Skidmore14 deference—that we give to an agency’s
interpretation of a statute ranges “from great respect . . . to
near indifference” depending on how those factors play out.
Id. (citation omitted).

     Here, those factors counsel in favor of giving Interior’s
interpretation “great respect.” Interior’s reasoning is
thorough and careful,15 and it includes an analysis of the
IRA’s historical context, legislative history, and purpose.
Employing its institutional expertise gleaned from years of
administering the IRA, the agency situates the statute in the
larger context of the history of Indian law and, in doing so,
arrives at an interpretation of “under Federal jurisdiction” that
fits with the rest of the statute and makes sense in historical
context. Interior adopted its interpretation in a Solicitor’s
Opinion after issuing the Ione Band ROD, thus evincing its
intent to be bound by the interpretation. For those reasons,



     14
          Skidmore v. Swift & Co., 323 U.S. 134 (1944).
     15
        Interior first announced its interpretation of “under Federal
jurisdiction” in its record of decision for the fee-to-trust application of the
Cowlitz Tribe in 2010. The agency then applied the interpretation to the
Ione Band in the 2012 ROD. Accordingly, in deciding how much
deference should be given to Interior’s interpretation of “under Federal
jurisdiction,” we consider both records of decision.
               COUNTY OF AMADOR V. USDOI                      27

we give Interior’s interpretation of the phrase “under Federal
jurisdiction” great respect.

     The phrase “under Federal jurisdiction,” considered on its
own, does not have an obvious meaning. “Jurisdiction, it has
been observed, is a word of many, too many, meanings.” N.
Cal. River Watch v. Wilcox, 633 F.3d 766, 774 (9th Cir.
2011) (quoting Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 90 (1998)). One possible meaning of “under
Federal jurisdiction” is offered by the County: A tribe was
“under Federal jurisdiction” in 1934 only if it lived on “a
reservation set aside on its behalf (at least absent a specific
treaty or legislation).” Under that interpretation, the IRA’s
benefits would be limited to tribes that, as of 1934, already
had very consequential dealings with the federal government.
Another possible meaning that has been suggested is that all
tribes that were actually tribes in 1934—that is, all tribes that
“continue[d] to exist as . . . distinct Indian communit[ies],
such that the [federal government’s plenary] Indian affairs
jurisdiction attache[d] to them”—were “under Federal
jurisdiction” in 1934. Wood, 65 U. Kan. L. Rev. at 422.
Under that interpretation, the IRA’s benefits would extend to
all recognized tribes.

    Each of those proposed interpretations has substantial
flaws. The trouble with the County’s interpretation is that it
would effectively render the word “recognized” surplusage.
A tribe that lived on a reservation in 1934 was almost
certainly “recognized” within any meaning of that term. See
generally Cohen’s Handbook §§ 1.03, 3.02. And a tribe that
had entered into a formal arrangement with the federal
government of the type cited by the County would almost
certainly count as “recognized.” See id. If Congress had
truly understood “now under Federal jurisdiction” to mean
28               COUNTY OF AMADOR V. USDOI

what the County claims that it means, it could have removed
“recognized” from the statute with almost no effect.16 As for
the other interpretation, it gives too little meaning to the
phrase “under Federal jurisdiction,” because it would
encompass nearly every tribe.

    The shortcomings of those two interpretations suggest
that “under Federal jurisdiction” must mean something more
than mere continued existence, but something less than a
relationship with the federal government that had already
resulted in the setting aside of a reservation or the signing of
a formal treaty. In other words, “under Federal jurisdiction”
should be read to limit the set of “recognized Indian tribes”
to those tribes that already had some sort of significant
relationship with the federal government as of 1934, even if
those tribes were not yet “recognized.” Such an interpretation
ensures that “under Federal jurisdiction” and “recognized”
retain independent meaning. See United States v. 144,774
pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th Cir.
2005) (“It is an accepted canon of statutory interpretation that
we must interpret [a] statutory phrase as a whole, giving
effect to each word and not interpreting the provision so as to
make other provisions meaningless or superfluous.”).

    Interior’s interpretation of “under Federal jurisdiction,”
which involves an inquiry into “whether the United States
had . . . taken an action or series of actions . . . sufficient to
establish or that generally reflect[ed] Federal obligations,
duties, responsibility for or authority over the tribe by the


     16
        The only effect of retaining the term “recognized” in that situation
would be to exclude from the scope of the IRA those tribes that were
“under Federal jurisdiction” as of 1934, but which lost federal recognition
after that time.
               COUNTY OF AMADOR V. USDOI                      29

Federal Government,” fits the bill. Interior’s interpretation
also recognizes that there may be gaps in the history of a
tribe’s relationship with the United States, but that those gaps
do not necessarily mean that a tribe was not “under Federal
jurisdiction” at the time that the IRA became law. The
interpretation is thus consistent with the observation in
United States v. John, 437 U.S. 634, 652–53 (1978), that “the
fact that federal supervision over [a tribe] has not been
continuous” does not “destroy[] the federal power to deal
with” that tribe.

    In summary, Interior’s reading of the ambiguous phrase
“under Federal jurisdiction” is the best interpretation. Interior
did not err in adopting that interpretation for purposes of
deciding whether the Ione Band was “under Federal
jurisdiction” as of 1934.

    3. Interior’s Determination

    The County’s second argument in support of its challenge
to Interior’s “under Federal jurisdiction” determination
assumes that Interior’s interpretation of the statute is correct.
Even assuming that interpretation, the County argues, the
agency acted arbitrarily and capriciously in concluding that
the Ione Band was “under Federal jurisdiction” as of the
effective date of the IRA. We disagree. “[W]here the
[agency] has considered the relevant factors and articulated
a rational connection between the facts found and the choice
made, the decision is not arbitrary or capricious.” Pac. Dawn
LLC v. Pritzker, 831 F.3d 1166, 1173 (9th Cir. 2016) (citation
and internal quotation marks omitted).

    In the ROD, Interior relied on “[t]he continuous efforts of
the United States beginning in 1915 to acquire land for the
30             COUNTY OF AMADOR V. USDOI

Ione Band as a permanent reservation” to conclude that the
Band had been “under Federal jurisdiction” in the years
leading up to 1934. Interior also found that the government’s
post-1934 attempts to buy land for the Ione Band showed that
the Band’s “under Federal jurisdiction” status continued
through 1934. The County argues that the government’s
failed attempts to buy land for the Band are insufficient to
establish that the Band was “under Federal jurisdiction.”

    Interior did not act arbitrarily or capriciously in
concluding that the federal government’s efforts to purchase
land for the Band beginning in 1915 suffice to establish that
the Band was “under Federal jurisdiction” at some time
before 1934. The efforts failed not because of a lack of will
on the part of the federal government, but because of
problems securing valid title to the land and the stubbornness
of the government’s negotiating partners. As one Interior
official wrote to the Band in 1930, “[w]e have for more than
eight years been negotiating with owners of the [land] for the
purpose of purchasing same, but because of our inability to
get a clear title to the land, the deal has not been closed. . . .
The negotiations are still pending and we hope at some
reasonably early date to acquire the [land].” The federal
government’s continued attempts reflected “Federal
obligations, duties, responsibility for or authority over” the
Band. That the attempts were thwarted by forces outside the
government’s control is not relevant. The difference between
being “under Federal jurisdiction” and not “under Federal
jurisdiction” cannot turn on the actions of third-party
landowners.

    Nor did Interior act arbitrarily or capriciously in
concluding that the Ione Band remained “under Federal
jurisdiction” when the IRA became effective. A 1941 letter
              COUNTY OF AMADOR V. USDOI                      31

from an Interior official in California to the Commissioner of
Indian Affairs states that efforts to purchase land for the Ione
Band resumed in 1935, but that the efforts once again failed,
this time because of “mineral rights and values.” Given that
efforts were made by the federal government on the Band’s
behalf a few years before and just one year after 1934, it was
reasonable for Interior to conclude that the Band’s
“jurisdictional status remained intact in 1934.”

    Interior’s determination that the Band was “under Federal
jurisdiction” as of 1934 was therefore not arbitrary or
capricious. And the Band is now recognized. Accordingly,
the Band is a recognized Indian tribe that was “under Federal
jurisdiction” in 1934, and Interior did not err in concluding
that the Band is eligible to have land taken into trust on its
behalf under 25 U.S.C. § 5108.

B. Grandfathering Under IGRA

    The County next challenges Interior’s determination that
the Plymouth Parcels qualify as “restored lands of a restored
tribe” under IGRA. See 25 U.S.C. § 2719(b)(1)(B)(iii).
Interior ruled that the Plymouth Parcels qualify under the so-
called “grandfather provision” in the IGRA’s implementing
regulations, 25 C.F.R. § 292.26(b). The County argues, in
essence, that the grandfather provision is invalid, at least as
applied to the facts of this case. In order to explain why we
disagree with the County, we must place the grandfather
provision in context.

    As mentioned earlier, IGRA severely limits “gaming . . .
on lands acquired by the Secretary in trust for the benefit of
an Indian tribe after” the date of enactment of the statute.
25 U.S.C. § 2719. But gaming is allowed when the “lands are
32             COUNTY OF AMADOR V. USDOI

taken into trust as part of . . . the restoration of lands for an
Indian tribe that is restored to Federal recognition,” id.
§ 2719(b)(1)(B)(iii)—the “restored lands of a restored tribe”
or “restored tribe” exception.

     IGRA does not define “restored to Federal recognition.”
But by the time the statute was passed, Interior had already
established a mechanism—the Part 83 process—by which
unrecognized Indian groups could petition for recognition.
See 25 C.F.R. pt. 83 (1988) (“The purpose of this part is to
establish a departmental procedure and policy for
acknowledging that certain American Indian tribes exist.
Such acknowledgment of tribal existence by the Department
is a prerequisite to the protection, services, and benefits from
the Federal Government available to Indian tribes.”). That
mechanism was put in place in order to “enable [Interior] to
take a uniform approach in the[] evaluation” of requests for
recognition. Procedures for Establishing That an American
Indian Group Exists as an Indian Tribe, 43 Fed. Reg. at
39,361. Previously, Interior had recognized tribes on a “case-
by-case basis at the discretion of the Secretary,” id., which
had resulted in a “history of inconsistent, vague, and
contradictory policies surrounding the recognition of tribes,”
Cohen’s Handbook § 3.02[7][a], at 153. Thus, when
Congress enacted IGRA in 1988, there existed (1) a formal
administrative recognition process and (2) some tribes that
had been re-recognized outside that process both before and
after the effective date of Part 83.

    In 1994, when Assistant Secretary of Indian Affairs Ada
Deer “reaffirmed” the Band’s status as a recognized tribe and
directed that the Band be included on the list of recognized
tribes published by Interior, the Band was effectively
recognized without having to go through the Part 83 process.
               COUNTY OF AMADOR V. USDOI                      33

Later that year, Congress passed the Federally Recognized
Indian Tribe List Act of 1994 (“Tribe List Act”), which
required Interior to publish a definitive list of recognized
tribes annually. Pub. L. No. 103-454, § 103(3), 108 Stat.
4791 (1994), codified at 25 U.S.C. §§ 5130, 5131. The
“findings” section of the law—which was not codified in the
United States Code—includes the following statement:
“Indian tribes presently may be recognized by Act of
Congress; by the administrative procedures set forth in [P]art
83 . . .; or by a decision of a United States court[.]” 108 Stat.
4791, 4791. In 1995, the Ione Band was included on the list
of recognized tribes published by Interior. Indian Entities
Recognized and Eligible To Receive Services From The
United States Bureau of Indian Affairs, 60 Fed. Reg. 9250-
01, 9252 (Feb. 16, 1995). In 1996, the Band held tribal
government elections that resulted in Interior’s
acknowledging the Band’s tribal government.

    In 2008, Interior promulgated regulations implementing
IGRA’s provisions governing gaming on lands acquired after
the statute went into effect. Gaming on Trust Lands Acquired
After October 17, 1988, 73 Fed. Reg. 29,354-01 (May 20,
2008). The regulations limit the “restored tribe” exception to
those tribes that have been restored to recognition through
(1) an act of Congress, (2) the Part 83 process, or (3) a federal
court order. 25 C.F.R. § 292.10. In other words, the restored
tribe exception, as interpreted by Interior, does not apply to
tribes—such as the Ione Band—that were administratively
restored outside the Part 83 process either before or after that
process was put into place in 1978. In the explanation of its
final rules, Interior expressed its “belie[f] that in 1988
Congress did not intend to include within the restored tribe
exception [any] pre-1979 ad hoc determination[s].” Gaming
on Trust Lands Acquired After October 17, 1988, 73 Fed.
34            COUNTY OF AMADOR V. USDOI

Reg. at 29,363. Interior relied, in part, on the fact that the
Tribe List Act had not listed non-Part-83 administrative
determinations as a possible route to recognition. Id.

    The 2008 regulations “apply to final agency action taken
after” June 19, 2008. 25 C.F.R. § 292.26(b). However, the
regulations include a “grandfather” provision:

           These regulations . . . shall not apply to
       applicable agency actions when, before the
       effective date of these regulations, [Interior]
       or the . . . Gaming Commission . . . issued a
       written opinion regarding the applicability of
       25 U.S.C. [§] 2719 for land to be used for a
       particular gaming establishment, provided that
       [Interior] or the [Gaming Commission] retains
       full discretion to qualify, withdraw or modify
       such opinions.

Id. The decision to include the grandfather provision
reflected Interior’s concern that some tribes “may have relied
on . . . legal opinion[s]” issued by Interior or the Gaming
Commission

       to make investments into . . . property or taken
       some other actions that were based on their
       understanding that . . . land was eligible for
       gaming. Therefore, [§] 292.26(b) states that
       these regulations . . . shall not apply to
       applicable agency actions taken after the
       effective date of these regulations when the
       Department or the [Gaming Commission] has
       issued a written opinion regarding the
       applicability of 25 U.S.C. [§] 2719 before the
              COUNTY OF AMADOR V. USDOI                     35

       effective date of these regulations. In this
       way, the Federal Government may be able to
       follow through with its prior legal opinions
       and take final agency actions consistent with
       those opinions, even if these regulations now
       have created a conflict.

Gaming on Trust Lands Acquired After October 17, 1988,
73 Fed. Reg. at 29,372.

    It is this grandfather provision that Interior invoked in
2012 when it decided that the Band qualified as a “restored
tribe.” Specifically, Interior determined that the Indian lands
determination that the Band had received in 2006 constituted
“a written opinion regarding the applicability of 25 U.S.C.
§ 2719 for land to be used for a particular gaming
establishment,” so that the 2008 regulations did not apply to
the Band’s application. Interior then relied on and adopted
the 2006 Determination’s conclusion that the Band is a
“restored tribe” and that the Plymouth Parcels are “restored
lands.”

    According to the County, the 2008 regulations (minus the
grandfather provision) carried into effect the clear intent of
Congress to exclude from the “restored lands of a restored
tribe” exception those tribes that were administratively
restored to recognition outside the Part 83 process. The
County does not dispute that the Band falls within the scope
of the grandfather provision, nor does the County challenge
Interior’s 2006 determinations—adopted and relied on in the
ROD—that the Band is a “restored tribe” and that the
Plymouth Parcels are “restored lands” under IGRA. But the
County argues that, when an agency promulgates a new rule
and the agency’s pre-rule practice was “inconsistent with
36             COUNTY OF AMADOR V. USDOI

[Congress’] intent,” the agency cannot “grandfather in”
pending applications unless certain conditions are met. The
County relies on Natural Resources Defense Council, Inc. v.
Thomas, 838 F.2d 1224, 1244 (D.C. Cir. 1988), and its test
for determining when an agency has a “duty to apply a rule
retroactively.” Interior’s decision to grandfather in the Band
does not pass muster under that framework, argues the
County, so the grandfather provision of 25 C.F.R.
§ 292.26(b), as applied by Interior to the band, is contrary to
IGRA—that is, is “not in accordance with law.” 5 U.S.C.
§ 706.

       The premise of the County’s argument is flawed:
Congress did not clearly intend to exclude from the “restored
tribe” exception those tribes administratively restored to
recognition outside the Part 83 process. As Interior
recognized in its 2008 rulemaking, “[n]either the express
language of IGRA nor its legislative history defines restored
tribe.” Gaming on Trust Lands Acquired After October 17,
1988, 73 Fed. Reg. at 29,363. “Restored to Federal
recognition” certainly could mean “restored via the Part 83
process, legislation, or a court order,” as the 25 C.F.R. part
292 regulations reflect. But if Congress wanted to exclude
those tribes that were administratively re-recognized outside
the Part 83 process, it could have done so by explicitly
referring to that process, as it did in the exception
immediately preceding the restored lands exception. See
25 U.S.C. § 2719(b)(1)(B)(ii) (“Subsection (a) of this section
will not apply when . . . lands are taken into trust as part of
. . . the initial reservation of an Indian tribe acknowledged . . .
under the Federal acknowledgment process[.]” (emphasis
added)). Instead, Congress used the undefined term
“restored.” Furthermore, Congress used that undefined term
knowing that some tribes had been re-recognized outside the
                  COUNTY OF AMADOR V. USDOI                                37

Part 83 process. See Interstate Commerce Comm’n v. Texas,
479 U.S. 450, 458 (1987) (“Presumably, in enacting [the
statute], Congress was aware of the [implementing agency’s]
consistent practice of regulating railroads as ‘rail carriers’
even when they performed Plan II intermodal service.”).
Given those indicators of congressional intent, we conclude
that Congress did not clearly intend for the “restored lands”
exception to be unavailable to those tribes administratively
re-recognized outside the Part 83 process. Rather, Congress
left a statutory ambiguity for Interior to resolve, and Interior
reasonably could have determined that a tribe could be
“restored” to Federal recognition outside the Part 83 process,
at least in certain circumstances.17

    Because Congress did not clearly intend for the “restored
lands” exception to be unavailable to those tribes
administratively re-recognized outside the Part 83 process,
grandfathering in those tribes would not frustrate
congressional intent. Accordingly, even assuming that the
principles of Thomas apply, Interior’s decision to grandfather
in the Ione Band under 25 C.F.R. § 292.26(b) was
permissible. See Sierra Club v. EPA, 719 F.2d 436, 467–68
(D.C. Cir. 1983) (“The statutory interest in applying [a] new
rule despite individual reliance is, of course, the crucial
consideration in the context of requiring an agency to apply
one of its rules retroactively.”). In other words, 25 C.F.R.

    17
       The Tribe List Act suggests that a non-Part-83 administrative
“recognition” is not a recognition at all. See 108 Stat. 4791, 4791 (listing
methods of recognition). Even if a non-Part-83 administrative recognition
occurring after the effective date of that statute is invalid, the Band was re-
recognized before the effective date of the Tribe List Act. Furthermore,
Congress’ intention in 1994 sheds no light on what Congress meant in
1988 when IGRA was passed. Olive v. Comm’r, 792 F.3d 1146, 1150 (9th
Cir. 2015).
38                COUNTY OF AMADOR V. USDOI

§ 292.26(b), as applied by Interior in the ROD, is “in
accordance with law.”18 5 U.S.C. § 706.

     In short, Interior permissibly grandfathered in the Band’s
application, and the County does not challenge Interior’s
determination that the Band falls within the scope of the
grandfather provision. We therefore hold that Interior did not
err in allowing the Band to conduct gaming operations on the
Plymouth Parcels under the “restored tribe” exception of
IGRA.

     AFFIRMED.




     18
        To the extent that the County makes a facial challenge to the
grandfather provision, that challenge necessarily fails. See William
Jefferson & Co. v. Bd. of Assessment & Appeals No. 3 ex rel. Orange
County, 695 F.3d 960, 963 (9th Cir. 2012) (“If [the plaintiff’s] as-applied
challenge fails, then [its] facial challenge necessarily fails as well because
there is at least one set of circumstances where application of [the
challenged statute] does not violate a taxpayer’s procedural due process
rights.”).
