                          In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2323
LAC COURTE OREILLES BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS OF WISCONSIN, RED CLIFF
BAND OF LAKE SUPERIOR CHIPPEWA INDIANS OF
WISCONSIN, and SAKAOGON CHIPPEWA COMMUNITY,
MOLE LAKE BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS,
                                        Plaintiffs-Appellants,
                              v.


UNITED STATES OF AMERICA, UNITED STATES
DEPARTMENT OF THE INTERIOR, GALE A. NORTON,
Secretary of the Department of the Interior, et al.,
                                       Defendants-Appellees,


JAMES E. DOYLE, Governor of the State of
Wisconsin and STATE OF WISCONSIN,
                          Intervening Defendants-Appellees.
                        ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 02 C 553—Barbara B. Crabb, Chief Judge.
                        ____________
    ARGUED JANUARY 16, 2004—DECIDED APRIL 29, 2004
                    ____________
2                                               No. 03-2323

  Before FLAUM, Chief Judge, and RIPPLE and ROVNER,
Circuit Judges.
  FLAUM, Chief Judge. The Plaintiff Tribes appeal the
district court’s opinion and order declaring the guberna-
torial concurrence provision of the Indian Gaming
Regulatory Act (“IGRA”) constitutional and not in violation
of the federal government’s trust obligation to Indians. For
the reasons set forth in the following opinion, we affirm the
judgment of the district court.


                     I. Background
  Plaintiffs are three federally-recognized Indian Tribes
with reservations in sparsely populated areas of northern
Wisconsin (“the Tribes”). While each of the Tribes operates
a casino on reservation land, these casinos do not generate
income comparable to casinos operated by tribes who have
reservations near Wisconsin’s urban centers or destination
resorts. Seeking to advance their tribal and economic de-
velopment, the Tribes joined together for the purpose of
establishing a jointly owned and operated off-reservation
gaming facility in a lucrative location.
  The Tribes found a struggling pari-mutuel greyhound
racing facility in Hudson, Wisconsin that they wished to
acquire and convert into a casino gaming facility. Hudson
was attractive to the Tribes because they believed its
proximity to the metropolitan areas of Minneapolis and
St. Paul and easy accessibility to Interstate Highway 94
would ensure a broad customer base. In October 1992 the
Tribes formally submitted their application under the
Indian Gaming Regulatory Act (“IGRA”) 25 U.S.C. §§ 2701
et seq. to the Department of the Interior seeking to have the
Hudson property taken into trust for their benefit for the
purpose of operating a casino gaming facility.
  The Secretary of the Interior has broad discretion to
acquire lands in trust for the benefit of Indian tribes pur-
No. 03-2323                                                  3

suant to Indian Reorganization Act of 1934, 25 U.S.C. § 465.
However, this authority is limited by IGRA, which prohibits
certain types of gaming on lands acquired in trust by the
Secretary of the Interior after October 17, 1988 (“after-
acquired lands”). 25 U.S.C. § 2719(a). The Tribes hoped that
their application would be favorably received pursuant to 25
U.S.C. § 2719(b)(1)(A), an exception to IGRA’s general ban
on gaming on after-acquired lands. That exception provides
that the general prohibition on gaming shall not apply
where:
    the Secretary, after consultation with the Indian tribe
    and appropriate State and local officials, including offi-
    cials 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 mem-
    bers, 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.
25 U.S.C. § 2719(b)(1)(A).
   The Department of the Interior initially denied the Tribes’
application, but later vacated the rejection following a
lawsuit and settlement. In February 2001, the Department
of the Interior issued findings that the proposal was in the
best interests of the Tribes and would not be detrimental to
the surrounding community. The Department of the
Interior sent the matter to then- Governor of Wisconsin
Scott McCallum for his concurrence. In May 2001, Governor
McCallum issued a letter declining to concur in the Secre-
tary’s findings, citing Wisconsin’s general disapproval of off-
reservation gaming and public policy of permitting only
“limited exceptions to the general prohibition against
gambling.” Governor McCallum opined that the public
interest would not be served by the addition of another
major casino gaming facility to the seventeen casino gaming
4                                                No. 03-2323

facilities already operating in Wisconsin. In June 2001, the
Department of the Interior issued a final decision denying
the Tribes’ application on the grounds that, absent the
Governor’s concurrence, the exception provided in 25 U.S.C.
§ 2719(b)(1)(A) did not apply and 25 U.S.C. § 2719(a)
precluded the acquisition of the land for the purposes of
gaming.
  The Tribes initiated this litigation in the United States
District Court for the District of Columbia in May 2001
seeking a declaration that the gubernatorial concurrence
provision of § 2719(b)(1)(A) was unconstitutional. The State
of Wisconsin and Governor McCallum moved to intervene
in July 2001. The Tribes moved for judgment on the
pleadings in December 2001. The case was eventually
transferred to the United States District Court for the
Western District of Wisconsin in October 2002. The Tribes
renewed their motion for judgment on the pleadings in
November 2002, and both defendants filed cross-motions for
judgment on the pleadings.1 The Tribes filed an opposition
to the defendants’ motions in addition to a “conditional
motion” to file a second amended complaint. The conditional
motion requested that the Tribes be permitted to add a
claim that Governor McCallum had relied on improper
factors in refusing to concur, in the event that the court
upheld the constitutionality of the gubernatorial concur-
rence provision of § 2719(b)(1)(A).
  In April 2003, the district court granted the defendants’
motions for judgment on the pleadings, finding that the
gubernatorial concurrence provision is not an unconstitu-
tional delegation of power, nor does it violate the separation
of powers doctrine, the Appointments Clause, Art. II, § 2, or
the Tenth Amendment. Further, the district court found


1
  James E. Doyle, the current Governor of Wisconsin, was sub-
stituted for Governor McCallum as the intervening defendant.
No. 03-2323                                                    5

that the Tribes’ claim that the gubernatorial concurrence
requirement represented a breach of trust was barred by
sovereign immunity and was without support in law.
Finally, the district court denied the Tribes’ conditional
motion to amend, stating that it was untimely and futile.
The district court subsequently denied the Tribes’ Rule 59
motion to vacate the judgment and the Tribes now appeal.
We uphold the judgment of the district court because we
conclude that § 2719(b)(1)(A) does not violate separation of
powers principles, the nondelegation doctrine, the Appoint-
ments Clause, principles of federalism, or the federal
government’s trust obligations to Indians.


                        II. Analysis
   The Tribes challenge the constitutionality of the guberna-
torial concurrence provision of the Indian Gaming Regula-
tions Act (“IGRA”), 25 U.S.C. § 2719(b)(1)(A) on multiple
grounds. The constitutionality of a federal statute is an
issue of law subject to de novo review. United States v.
Hausmann, 345 F.3d 952, 958 (7th Cir. 2003). When “it
is fairly possible[,]” this Court is “to interpret the statute in
a manner that renders it constitutionally valid.”
Communications Workers of Am. v. Beck, 487 U.S. 735, 762
(1988).
  Following the Supreme Court’s decision in California v.
Cabazon Band of Mission Indians, 480 U.S. 202 (1987),
which held that Congress had not yet expressly granted the
States jurisdiction to enforce state civil gaming regulations
on Indian reservation land, Congress passed IGRA for the
purpose of creating a federal regulatory scheme for the
operation of gaming on Indian lands. 25 U.S.C. § 2702.
IGRA states that the operation of gaming by Indian tribes
is to serve “as a means of promoting tribal economic devel-
opment, self-sufficiency, and strong tribal governments.” 25
U.S.C. § 2702(1). IGRA recognizes that the States have an
6                                                 No. 03-2323

interest in the regulation of gaming on Indian lands within
their borders and allows state regulation of Indian gaming
in two ways: (1) state criminal laws that prohibit gaming
are enforceable on tribal lands, see 25 U.S.C. § 2701(5), and
(2) Indian tribes who choose to engage in Class III gaming
may do so only pursuant to a Tribal-State compact, see 25
U.S.C. § 2710(d)(1).2
  At issue in this litigation is § 2719(b)(1)(A), which allows
the Secretary of the Interior to deviate from IGRA’s general
prohibition of gaming on after-acquired lands if certain
prerequisites are met. Under § 2719(b)(1)(A), the Secretary
of the Interior may take land not contiguous to the reserva-
tion of the applicant Indian tribe into trust for the purpose
of operating a gaming establishment if the Secretary finds
that two factual predicates exist, namely, whether (1) “a
gaming establishment on newly acquired lands would be in
the best interest of the Indian tribe and its members,” and
(2) “would not be detrimental to the surrounding commu-
nity,” and if the “Governor of the State in which the gaming
activity would be conducted” concurs in the Secretary’s
favorable determination. 25 U.S.C. § 2719(b)(1)(A).


                              A.
  The Tribes assert that the gubernatorial concurrence pro-
vision of § 2719(b)(1)(a) violates the separation of powers


2
  Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) held
that 25 U.S.C. § 2710(d)(7), which purported to authorize an
Indian tribe to bring suit in federal court to compel a State to
negotiate in good faith toward the formulation of a Tribal-State
compact, violated the Eleventh Amendment. The Supreme Court
held that the Indian Commerce Clause does not grant Congress
the power to abrogate the States’ sovereign immunity from suit.
Id. at 48.
No. 03-2323                                                 7

doctrine because it prevents the Executive Branch from
executing the laws. In their view, § 2719(b)(1)(A) unconsti-
tutionally diverts to the Governors of the 50 States the final
decisional authority delegated by IGRA to the Secretary of
the Interior. The Tribes submit that § 2719(b)(1)(A) re-
quires a governor to review the Secretary of the Interior’s
analysis of the two factual predicates and empowers the
governor to “veto” the Secretary of the Interior’s conclusion
by withholding concurrence. The Tribes cite INS v. Chadha,
462 U.S. 919 (1983) for the proposition that Congress
cannot confer upon itself or an actor external to the federal
Executive Branch the power to veto the President’s execu-
tion of federal law.
   At issue in Chadha was Section 244(c)(2) of the
Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2),
which authorized either House of Congress, by resolution,
to veto the Attorney General’s decision to suspend the
deportation of a particular alien. The Supreme Court noted
that the one-house veto served an “essentially legisla-
tive . . . purpose and effect,” id. at 952, and was therefore
subject to the procedural requirements for enacting legi-
slation set forth in the Constitution: bicameral passage,
U.S. Const. art. I, § 1, and presentment to the President,
U.S. Const. art. 1, § 7, cl. 2. Chadha, 462 U.S. at 954-55.
The Supreme Court concluded that none of the “four
provisions in the Constitution, explicit and unambiguous,
by which one House may act alone with the unreviewable
force of law, not subject to the President’s veto” applied
to § 244(c)(2), and therefore concluded that the House of
Representatives lacked authority under the Constitution to
veto the Attorney General’s decision to suspend the pe-
titioner’s deportation. Id. at 956-57. Finally, the Chadha
Court noted that to maintain the separation of powers, “the
carefully defined limits on the power of each Branch must
not be eroded.” Id. at 958.
8                                                No. 03-2323

  Unlike the one-House veto provision at issue in Chadha,
the gubernatorial concurrence provision does not prevent
the Executive Branch from accomplishing its delegated
function under IGRA. Section 2719(b)(1)(A) assigns the
Secretary of the Interior two responsibilities: (1) to evaluate
whether gaming on the proposed trust land would be in the
best interest of the applicant tribe and not detrimental to
the surrounding community; if so, then (2) to ascertain
whether the Governor of the State where the proposed trust
land is located concurs with his or her favorable determina-
tion. A governor’s concurrence is no less a precondition to
the Executive Branch’s authority to waive IGRA’s general
prohibition of gaming on after-acquired lands than are the
factual circumstances that give rise to Secretary of the
Interior’s conclusion that gaming on the proposed trust land
would be in the Indian tribe’s best interests and would not
be detrimental to the surrounding community. Unless and
until the appropriate governor issues a concurrence, the
Secretary of the Interior has no authority under
§ 2719(b)(1)(A) to take land into trust for the benefit of an
Indian tribe for the purpose of the operation of a gaming
establishment.
  The power delegated to the Attorney General in
Chadha had no similar contingency predicate to the
Attorney General’s statutory authority to execute the law.
The one-House veto wrested final decision-making power
away from the Executive Branch over an issue that had
been legislatively entrusted to the Attorney General and
thereby directly impeded the Attorney General from ac-
complishing the function delegated: to determine whether
to suspend, and to suspend, the deportation of a particular
alien. In contrast, after the two preconditions to the
Secretary of the Interior’s authority are met—i.e., the two
factual predicates exist and the governor issues a concur-
rence—the Secretary of the Interior’s decision to execute
§ 2719(b)(1)(A) by taking the proposed land into trust is not
subject to review.
No. 03-2323                                                 9

  We agree with the Ninth Circuit that § 2719(b)(1)(A) is an
example of contingent legislation, wherein Congress
restricted the authority to execute federal legislation con-
tingent upon the approval of an actor external to the federal
Executive Branch. Confederated Tribes of Siletz Indians of
Oregon v. United States, 110 F.3d 688, 694-95 (9th Cir.
1997). As the Supreme Court established in Currin v.
Wallace, 306 U.S. 1, 15 (1939), Congress may place “a
restriction upon its own regulation by withholding its
operation” unless a specified percentage of those affected by
the regulation agree to submit to it. In Currin, the Supreme
Court upheld a federal statute that authorized the Secre-
tary of Agriculture to designate markets for the sale of
tobacco, but only if two-thirds of affected tobacco growers
favored the designation. See also United States v. Rock
Royal Co-op, 307 U.S. 533, 577-78 (1939) (upholding
provision conditioning Secretary of Agriculture’s power to
issue marketing orders contingent upon vote of producers);
J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 407
(1928). Moreover, Congress may condition the operation of
federal law on the approval of a state official. See Parker v.
Richard, 250 U.S. 235 (1919) (upholding provision that
conditioned the conveyance of certain Indian lands upon the
approval of a state court). As in Currin, where the Secretary
of Agriculture’s authority was conditioned on a favorable
vote of the affected farmers, the Secretary of the Interior’s
authority to act is conditioned on the concurrence of the
relevant governor. This condition does not impermissibly
interfere with the Executive Branch’s execution of federal
law, so much as its occurrence is a prerequisite to the
Executive Branch’s authority to act pursuant to § 2719
(b)(1)(A).
  The Tribes contend that the contingent legislation ra-
tionale is an inappropriate analogy to § 2719(b)(1)(A)
because that Section empowers governors to impose the
force of law on Indian Tribes, who they characterize as
10                                               No. 03-2323

“unwilling third parties,” whereas contingent legislation
typically empowers the decision-maker to submit only itself
to regulation. We agree with the Tribes that the statutes
upheld in Currin and Rock Royal conditioned the power of
the federal Executive on the approval of those subject to the
proposed regulation, but we also conclude that the guberna-
torial concurrence provision conditions the Secretary of the
Interior’s power on the approval of the appropriate party.
  According to the Tribes, § 2719(b)(1)(A) regulates Indian
tribes with reservations encompassed by the state where
the proposed trust land is located. We disagree. The object
of regulation under § 2719(b)(1)(A) is land that the
Secretary of the Interior has taken into trust for Indians for
the purpose of operating a gaming establishment. Before
the land is taken into trust, it is within the jurisdiction of
a state and is not yet subject to federal regulation under
IGRA. Therefore, while the Secretary of the Interior
investigates whether gaming on the proposed trust land
“would be in the best interest of the Indian tribe” and
“would not be detrimental to the surrounding community,”
the proper spokesperson for the land in question is neces-
sarily a representative of the state where the land is
located. It is only after the Secretary of the Interior de-
termines that the proposed trust land meets the factual
requirements of § 2719(b)(1)(A), the governor issues a con-
currence, and the Secretary executes the federal law by
taking the land into trust, that the Tribe enjoying that trust
land becomes its appropriate representative. Thus, condi-
tioning the Secretary of the Interior’s power on the assent
of the relevant governor is not unlike the contingent
legislation in Currin, in that the proper spokesperson of the
object of regulation—the land—is empowered to invite, or
refuse, federal regulation.
   We find that the remaining separation of powers issues
illustrated by the one-House veto in Chadha are not
No. 03-2323                                                11

present here. The gubernatorial concurrence provision does
not aggrandize the power of the Legislative Branch at the
expense of the Executive Branch. The Secretary of the
Interior would have no authority to permit gaming on after-
acquired trust lands absent the power delegated by Con-
gress in IGRA. Congress may, consistent with the doctrine
of separation of powers, condition that delegation on the
approval of an actor external to the Executive Branch. See
Currin, 306 U.S. at 1. Congress has not wrongfully en-
hanced its power by the use of the contingent legislation
mechanism; whether the governor concurs and thereby
triggers the Secretary of the Interior’s power under
§ 2719(b)(1)(A) is a circumstance outside of Congress’s
influence or control. See Morrison v. Olson, 487 U.S. 654,
694 (1988) (holding that the independent counsel provisions
of the Ethics in Community Government Act do not violate
separation of powers principles by impermissibly interfering
with the functioning of the Executive Branch, when
“Congress retained for itself no powers of control or supervi-
sion over an independent counsel”).
  Finally, the Tribes argue that § 2719(b)(1)(A) violates the
separation of powers doctrine because it transfers control
over the execution of federal law from the Executive Branch
to the Governors of the 50 States, citing Printz v. United
States, 521 U.S. 898 (1997). In Printz, at issue were certain
interim provisions of the Brady Handgun Violence Preven-
tion Act (“Brady Act”), 18 U.S.C. § 922, which obliged state
law enforcement officers to conduct background checks of
prospective handgun purchasers until a national system
became operative. Id. at 903. The Supreme Court held that
the interim provisions unconstitutionally transferred the
responsibility of the President to “take Care that the Laws
be faithfully executed,” U.S. Const. Art. II, § 3, to the law
enforcement officers of the 50 States, “who are left to
implement the program without meaningful Presidential
control.” Id. at 922. The Printz Court noted that, by accom-
12                                              No. 03-2323

plishing the execution of the law through state officers,
Congress had denigrated the President’s power by circum-
venting the Executive Branch and had weakened the
accountability and vigor of that Branch. Id.
  Unlike the Brady Act’s requirement that state officers
temporarily execute federal law by performing background
checks, the gubernatorial concurrence provision does not
require or even permit any governor to execute federal law.
The execution of § 2719(b)(1)(A) occurs when the Secretary
of the Interior takes land into trust for the benefit of
Indians for the purpose of operating a gaming establish-
ment. IGRA does not empower any governor to perform that
function. For example, even if a governor believed that
taking land into trust for an Indian tribe for the purpose of
gaming “would be in the best interest of the Indian tribe”
and “would not be detrimental to the surrounding commu-
nity,” if the Secretary of the Interior disagreed, the gover-
nor would be unable to execute § 2719(b)(1)(A) by taking the
land into federal trust.
  As only the Secretary of the Interior may execute the
§ 2719(b)(1)(A) exception to IGRA’s general prohibition of
gaming on after-acquired land, the Executive Branch re-
tains control over IGRA’s execution, and therefore there is
no Printz separation of powers problem. In conclusion, we
hold that the contested provision of IGRA does not violate
the separation of powers doctrine by interfering with the
Executive Branch’s execution of federal law.


                             B.
  We now turn to the Tribes’ argument that Congress vio-
lated a related branch of the separation of powers jurispru-
dence: the nondelegation doctrine. In the Tribes’ view, if
§ 2719(b)(1)(A) does not require a governor to decide
whether to concur based on his or her analysis of the two
factual predicates that bind the Secretary of the Interior’s
No. 03-2323                                                 13

determination, but instead directs each governor to select
any standard on which to base the decision, then Congress
has abdicated its duty to guide the execution of the law. See
Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472 (2001)
(quoting J.W. Hampton, Jr., & Co. v. United States, 276
U.S. 394, 409 (1928)) (stating that Congress must “lay down
by legislative act an intelligible principle to which the
person or body authorized to [act] is directed to conform”).
According to the Tribes, Congress failed to adequately
constrain the discretion of the Governors, and
§ 2719(b)(1)(A) therefore requires the Governors to estab-
lish Congressional policy, in violation of U.S. Const. Art. 1,
§ 1.
  The Supreme Court has explained that the nondelegation
doctrine generally prohibits Congress from delegating its
legislative power to another Branch of the federal govern-
ment. Mistretta v. United States, 488 U.S. 361, 372 (1989).
We conclude that the nondelegation doctrine is
not implicated by the provision at issue because
§ 2719(b)(1)(A) does not delegate any legislative power to
the Governors of the 50 States. When Congress enacts con-
tingent legislation, it does not “abdicate, or . . . transfer to
others, the essential legislative functions with which it
is vested by the Constitution, U.S.C.A. Art. 1, sec. 1.”
Currin, 306 U.S. at 15. There is no “delegation of legislative
authority” to the actor whose assent is a precondition to the
execution of the law. Id. (“So far as growers of tobacco are
concerned, the required referendum does not involve any
delegation of legislative authority. Congress has merely
placed a restriction upon its own regulation by withholding
its operation . . . unless two-thirds of the growers voting
favor it.”) (citations omitted).
  Congress exercised its legislative authority by enacting
IGRA’s general prohibition of gaming on after-acquired
land, creating an exception to that rule in § 2719(b)(1)(A),
and dictating the prerequisites for the application of that
14                                              No. 03-2323

exception. A governor does not enact federal policy by issu-
ing a concurrence, but instead merely waives one legisla-
tively enacted restriction on gaming. Nor does a governor
impact federal policy by declining to concur; in that event,
IGRA’s policy of prohibiting gaming on after-acquired lands
remains in force. See Kentucky Div., Horsemen’s Benevolent
Ass’n, Inc. v. Turfway Park Racing Ass’n, Inc., 20 F.3d 1406,
1416 (6th Cir. 1994) (stating that federal legislation
conditioning the legality of off-track betting on the consent
of the host racing association does not allow the association
to “make the law . . . rather, the veto is merely a condition
established by Congress upon the application of Congress’
general prohibition of interstate off-track betting”).
  During oral argument, it became evident that the Tribes’
concern is not so much the unconstrained discretion that
Congress permitted the Governors of the 50 States to
exercise under § 2719(b)(1)(A), but that Congress had dele-
gated any power to the Governors at all. The Tribes con-
ceded that they would not have objected on nondelegation
grounds had Congress conditioned the Secretary’s power
to take land into trust not upon the concurrence of a
governor, but rather upon the majority vote of the Indian
tribes with reservations encompassed by the state where
the proposed trust land is located. In the Tribes’ view, the
Governor of Wisconsin is an improper delegatee because his
administration oversees the Wisconsin State Lottery, which
they maintain is in competition with the casinos subject to
regulation under IGRA. The Tribes rely on Carter v. Carter
Coal Co., 298 U.S. 238, 311 (1936) for the proposition that
Congress may not delegate to a private party the power to
regulate an industry when the delegatee has “interests
[that] may be and often are adverse to the interests of
others in the same business.”
  At issue in Carter were certain provisions of the
Bituminous Coal Conservation Act of 1935. Under that Act,
the largest producers of coal were delegated the power to es-
No. 03-2323                                                15

tablish the maximum hour and minimum wage terms that
controlled the entire coal industry. Carter, 298 U.S. at 284.
In striking down the provision, the Supreme Court was
troubled that the statute did not empower “an official or
an official body, presumptively disinterested,” but instead
empowered “private persons whose interests may be and
often are adverse to the interests of others in the same
business.” Id. at 311. The Supreme Court concluded that
the Act denied the smaller coal producers their “rights
safeguarded by the due process clause of the Fifth
Amendment,” and therefore invalidated the provision at
issue. Id. at 311-12.
  We conclude that the gubernatorial concurrence provision
does not raise the concerns presented in Carter.
The Governors of the 50 States are politically accountable
to their constituencies and will therefore be motivated to
maximize the public good, contrary to the chief coal pro-
ducers in Carter, whose relationship with minor coal pro-
ducers was “conflicting and even antagonistic,” and whose
motivations were self-serving. See Carter, 298 U.S. at
311. Even if a particular governor might enjoy ultimate
authority over a state lottery or gaming system, that role
will surely be eclipsed by the governor’s responsibility to
regulate the broader state economy.
  In conclusion, we find that § 2719(b)(1)(A) does not violate
the nondelegation doctrine because it does not entrust to
the Governors of the 50 States any legislative power, nor
does it violate the principles of Carter by wrongfully
authorizing a self-interested leader of private industry to
regulate its competitors.


                             C.
  We now address the Tribes’ argument that the guber-
natorial concurrence provision violates the Appointments
Clause. That Clause states that:
16                                                 No. 03-2323

     [The President] . . . shall nominate, and by and with the
     Advice and Consent of the Senate, shall appoint . . .
     Officers of the United States, whose Appointments are
     not herein otherwise provided for, and which shall be
     established by Law: but the Congress may by Law vest
     the Appointment of such inferior Officers, as they think
     proper, in the President alone, in the Courts of Law, or
     in the Heads of Departments.
U.S. Const. Art II. § 2, cl. 2. Any person “exercising signi-
ficant authority pursuant to the laws of the United States
is an ‘Officer of the United States’ and must, therefore, be
appointed in a manner prescribed by § 2, cl. 2 of that
Article.” Buckley v. Valeo, 424 U.S. 1, 126 (1976).
  The Tribes contend that a governor is required by
§ 2719(b)(1)(A) to execute “final decisional discretion on
whether and how federal power is exercised,” and that this
function is sufficiently significant under Buckley as to merit
the title of “Officer of the United States.” Thus, they claim,
the gubernatorial concurrence provision violates the
Appointments Clause because no governor has been nom-
inated by the President with the advice and consent of the
Senate, as is required by Article II, § 2, cl. 2 of all Officers
of the United States.
  At issue in Buckley were certain provisions of the Federal
Election Campaign Act which vested the members of the
Federal Election Commission (“commissioners”) with broad
authority, including “recordkeeping, disclosure and investi-
gative functions”; “extensive rulemaking and adjudicative
powers”; and the power to “institute a civil action” for the
purposes of enforcing the Act. Buckley, 424 U.S. at 110. The
Supreme Court held that, because the commissioners
enjoyed “primary responsibility for conducting civil litiga-
tion . . . for vindicating public rights,” their “authority . . .
cannot possibly be regarded as merely in aid of the legi-
slative function of Congress,” but rather extended to typ-
ically executive functions of administering and enforcing
No. 03-2323                                                 17

the law. Id. at 139-40. Therefore, because the Act specified
a procedure for appointing the commissioners different from
that required by Article II, § 2, cl. 2, the Supreme Court
held that the provisions of the Act that conferred authority
to the commissioners to execute federal law were in viola-
tion of the Constitution. Id. at 140.
  Unlike the members of the Federal Election Commission
in Buckley, the Governors of the 50 States do not enjoy
power under § 2719(b)(1)(A) to enforce or administer federal
law. The power to execute § 2719(b)(1)(A) is entrusted
exclusively to the Secretary of the Interior, as only he or she
may lift IGRA’s general prohibition of gaming on after-
acquired land. A governor’s role under § 2719(b)(1)(A) is
limited to satisfying one precondition to the Secretary of the
Interior’s authority under § 2719(b)(1)(A) to permit gaming
on after-acquired trust land.
  Nor is the governor’s role under § 2719(b)(1)(A) significant
enough to merit the title of an Officer of the United States.
An Officer of the United States enjoys more than a merely
“temporary, episodic” opportunity to act pursuant to federal
law, and instead enjoys a somewhat regular opportunity to
issue enforceable decisions. See Freytag v. Comm’r of
Internal Revenue, 501 U.S. 868, 877, 881 (1991) (differenti-
ating between special masters whose duties are “temporary”
and “episodic” in nature and subject to review, and special
trial judges who enjoy regular opportunities to issue final
decisions of federal law, holding that only the latter served
as Officers of the United States subject to the Appointments
Clause). Not only is a governor unable to issue the Secre-
tary of the Interior’s final decision regarding an Indian
tribe’s application under § 2719(b)(1)(A), a governor’s
opportunity to participate in the administration of IGRA
will arise irregularly, if it materializes at all. Moreover, the
influence of any one governor is temporary and limited to
the particular application under review.
18                                               No. 03-2323

  The Tribes argue vociferously that the Governor of
Wisconsin is not permitted by any Wisconsin state law to
communicate with the federal government regarding pro-
posals to acquire Wisconsin land in trust for the benefit of
Indians. Rather, only federal law authorizes the Governor
of Wisconsin to respond to the Secretary of the Interior’s
request for concurrence; in their view, this necessarily
imbues the Governor with the role of an Officer of the
United States. Notwithstanding the absence of a specific
Wisconsin state law authorizing the Governor of Wisconsin
to respond to the Secretary of the Interior’s request for
concurrence, we conclude that the Governor of Wisconsin’s
role under § 2719(b)(1)(A) is not one that requires appoint-
ment in conformity with Article II, § 2, cl. 2.
   The text of the relevant portion of the Appointments
Clause limits its applicability to Appointments “. . . not
herein otherwise provided for, and which shall be estab-
lished by Law . . .” U.S. Const. Art. II, § 2, cl. 2. In deter-
mining whether a particular position is “established by
Law,” the Supreme Court has considered whether the
position’s “duties, salary, and means of appointment” are
stipulated by federal law. See Freytag, 501 U.S. at 881-82.
Here, even though federal law requests that the office of the
Governor of Wisconsin respond to the Secretary of the
Interior’s request for concurrence, it is the citizens of
Wisconsin, and not Congress, who elect the Governor,
pursuant to procedures mandated by the Constitution of the
State of Wisconsin. We conclude that the requirements
of the Appointments Clause are not triggered by the
gubernatorial concurrence provision because that provision
neither specifies the “duties, salary, and means of appoint-
ment” of any governor, nor does it empower any governor to
execute federal law.
  Further, we note that the separation of powers concerns
underlying the Appointments Clause are not suggested by
the gubernatorial concurrence provision. See Freytag, 501
No. 03-2323                                               19

U.S. at 878 (“The roots of the separation-of-powers concept
embedded in the Appointments Clause are structural and
political.”). In § 2719(b)(1)(A), Congress did not select
the administrator of federal gaming policy in derogation of
the President’s power to appoint subordinates to aid in the
execution of federal law. Rather, Congress directed the
Secretary of the Interior, a Presidential appointee, to con-
sult with the chosen representative of the citizens of the
States before executing the law. Therefore, we agree with
the Ninth Circuit that the governor’s concurrence provision
does not violate the Appointments Clause. Confederated
Tribes, 110 F.3d at 698.


                             D.
   The Tribes seek to persuade this Court that the guberna-
torial concurrence provision compels state governors to
administer federal law in violation of principles of feder-
alism as interpreted in New York v. United States, 505 U.S.
144 (1992) and in Printz v. United States, 521 U.S. 898
(1997). In New York v. United States, at issue were provi-
sions of the Low-Level Radioactive Waste Policy Amend-
ments Act which required each state to either enact legisla-
tion providing for the disposal of locally generated radioac-
tive waste or to take title to and possession of that waste.
New York v. United States, 505 U.S. at 153-54. The Su-
preme Court invalidated the provisions at issue, holding
that the Tenth Amendment prohibited the federal govern-
ment from compelling “the States to enact or administer a
federal regulatory program.” Id. at 188. In Printz, the
Supreme Court applied the rule of New York to the Brady
Act, a federal statute which required state law enforcement
officers to conduct background checks of prospective
handgun purchasers. The Printz Court held that Congress
may no more “command the State’s officers . . . to adminis-
20                                               No. 03-2323

ter or enforce a federal regulatory program,” than it may
command State legislatures to do so. Printz, 521 U.S. at
935.
  The Tribes contend that the Secretary of the Interior’s
request for a governor’s concurrence pursuant to
§ 2719(b)(1)(A) is no less offensive to state sovereignty than
were the statutes at issue in New York v. United States and
Printz. In their view, § 2719(b)(1)(A) mandates that state
governors participate in the federal regulation of property
held in federal trust for the benefit of Indians. We disagree.
Neither the States nor their Governors are required to aid
the federal administration of § 2719(b)(1)(A) in any way.
Upon receiving the Secretary of the Interior’s request for
concurrence, a governor may, consistent with IGRA,
willfully ignore it. In that instance, the governor’s inaction
could not fairly be characterized as the “administ[ration] or
enforce[ment] [of] a federal regulatory program” under
Printz. See Printz, 521 U.S. at 935. In neither New York v.
United States nor Printz were state officials permitted to
disregard a federal directive; to the contrary, compliance
with the Low-Level Radioactive Waste Policy Amendments
Act and the Brady Handgun Violence Protection Act
required officers of the States to implement the costly and
time-consuming programs that Congress had devised.
  The Tribes counter that it is immaterial to the federalism
analysis that a governor’s role under § 2719(b)(1)(A)
is purely voluntary, because even in choosing inaction, a
governor will have a “dispositive” impact on IGRA’s reg-
ulatory scheme. Indeed, if the Secretary of the Interior
receives no response from a governor whose concurrence he
or she had solicited, the Secretary must deny the applica-
tion pending under § 2719(b)(1)(A). A governor is thus
inescapably ensnared in the execution of federal law, the
Tribes argue, and despite a governor’s decision to ignore the
Secretary of the Interior’s inquiry, the result is in violation
of principles of federalism under New York v. United States
and Printz.
No. 03-2323                                               21

  Despite the impact of gubernatorial inaction under
§ 2719(b)(1)(A), we conclude that the governor’s role under
that Section does not violate principles of federalism.
Printz and New York v. United States are concerned with
the denigration of state sovereignty that results when
Congress forces the States to implement federal policy
against their will. Section 2719(b)(1)(A), however, preserves
state sovereignty by merely encouraging the States to
decide whether to endorse federal policy and by reserving
the ultimate execution of that policy to the federal govern-
ment. That Section neither imposes on the States nor
depends on them for the implementation of federal law.
Contrary to the view of the Tribes, Printz and New York v.
United States do not prohibit the federal government from
seeking the voluntary input of the States in the federal
government’s execution of federal law.
  Nor does the gubernatorial concurrence provision obstruct
the political accountability of the dual sovereigns. Because
the provision does not require a governor to respond, each
governor is solely responsible for the decision to grant,
decline, or deny consideration of the request for concur-
rence. The inability to shift blame to Congress for the
decision ensures that a governor will remain attuned to
political pressure from his or her constituents. See New
York v. United States, 505 U.S. at 168 (“Where Congress
encourages state regulation rather than compelling it, state
governments remain responsive to the local electorate’s
preferences; state officials remain accountable to the
people.”). It is only when Congress mandates that state
officials devote attention to a particular matter that the
local electorate is rendered politically mute. In that in-
stance, as in New York v. United States, no amount of
lobbying will resonate with local lawmakers because the
state’s agenda is no longer within their control.
  In addition, the procedure under § 2719(b)(1)(A) is trans-
parent, enabling citizens and tribal members of an affected
22                                               No. 03-2323

State to ascertain which sovereign to criticize or laud after
a decision has been rendered. For example, if the Secretary
of the Interior refrains from soliciting the concurrence of
the relevant governor, an applicant tribe will conclude that
the Secretary of the Interior found § 2719(b)(1)(A)’s factual
predicates wanting. See Sokaogon Chippewa Cmty. v.
Babbitt, 214 F.3d 941 (7th Cir. 2000). Yet, if the Secretary
of the Interior issues a favorable finding, but ultimately
denies the application, the constituents will gather that the
governor likely declined to issue a concurrence, as is
demonstrated by the present litigation. Finally, if the
Secretary of the Interior takes land into trust pursuant to
§ 2719(b)(1)(A), tribal members and the citizens of the state
where the trust land is located can hold both sovereigns
accountable.
  Lastly, the Tribes argue that the gubernatorial concur-
rence provision violates principles of federalism because
it impermissibly interferes with the functioning of state
government by rearranging its structure. The Tribes submit
that the gubernatorial concurrence provision requires the
Governor of Wisconsin to enact Wisconsin’s public policy
regarding gaming on after-acquired trust land, a function
which they characterize as legislative. This role violates the
Wisconsin Constitution, they argue, because Article IV, § 1
of the Wisconsin Constitution reserves the legislative power
to Wisconsin’s “senate and assembly.” The Tribes believe
that when the Secretary of the Interior seeks the concur-
rence of the Governor of Wisconsin, he or she requires the
Governor to legislate Wisconsin’s gaming policy in violation
of the Wisconsin Constitution.
  The Tribes erroneously assume that § 2719(b)(1)(A) vests
the Governor of Wisconsin with authority to act outside
of the strictures of the gaming policy that Wisconsin
has already established through legislation and amend-
ments to the Wisconsin Constitution. In fact, the Wisconsin
Constitution and various Wisconsin statutes have already
No. 03-2323                                                23

implemented a fairly complex gaming policy. The Wisconsin
Constitution, which originally prohibited the establishment
of a lottery, was amended in 1987 to authorize a lottery
operated by the State. See Wis. Const. Art. VI § 24(6)(A).
The lottery is limited in the types of games it may offer. See
Wis. Stat. § 565.01(6)(m); Wis. Const. Art. IV § 24(6)(c).
Other than the state-operated lottery, the Wisconsin
Constitution permits gaming only in the following circum-
stances: bingo and raffle games operated by “religious,
charitable, service, fraternal or veterans’ organizations,”
and pari-mutuel wagering and on-track betting. Wis. Const.
Art. IV §§ 24(3-5). Notably, casino gambling is not permit-
ted under Wisconsin law.
  The establishment of a state lottery signals Wisconsin’s
broader public policy of tolerating gaming on Indian lands.
See California v. Cabazon Band of Mission Indians, 480
U.S. 202 (1987). In Cabazon, the Supreme Court held that
a state has no authority to enforce its gaming laws on
Indian lands if it permits any gaming activity under state
law. Id. at 211. Further, because IGRA permits gaming on
Indian lands only if they are “located in a State that per-
mits such gaming for any purpose by any person, organiza-
tion or entity,” 25 U.S.C. § 2710(d)(1)(b), the lottery’s
continued existence demonstrates Wisconsin’s amenability
to Indian gaming. Although Wisconsin has not been willing
to sacrifice its lucrative lottery and to criminalize all gam-
bling in order to obtain authority under Cabazon and
§ 2710(d)(1)(b) to prohibit gambling on Indian lands,
Wisconsin once sought (albeit unsuccessfully) to limit
Indian gaming to the “identical types of games” authorized
for the Wisconsin State Lottery. See Lac du Flambeau Band
of Lake Superior Chippewa Indians v. Wisconsin, 770
F.Supp 480, 487 (W.D. Wis. 1991) appeal dismissed for
want of jurisdiction, 957 F.2d 515 (7th Cir. 1992).
  The Tribes and the Governor of Wisconsin may not share
an opinion of the overriding goal of Wisconsin’s gaming
24                                               No. 03-2323

policy, but they must concede that a gaming policy exists.
When the Governor of Wisconsin considers the Secretary of
the Interior’s request for concurrence regarding an off-
reservation gaming proposal, he or she will be informed
by the public policy represented by the Wisconsin
Constitution and relevant statutes. Thus, the Governor’s
decision regarding any particular proposal is not analogous
to creating Wisconsin’s gaming policy wholesale—a leg-
islative function—but rather is typical of the executive’s
responsibility to render decisions based on existing policy.
The governor’s role is not inconsistent with the Wisconsin
Constitution, which vests “the executive power . . . in a
governor.” Wisc. Const. Art 5, § 1. Further, it is not prob-
lematic that the Governor of Wisconsin enjoys discretion
within the limitations of Wisconsin’s existing gaming policy
to render an opinion regarding any particular application
under § 2719(b)(1)(A). See Printz, 521 U.S. at 927 (“Execu-
tive action that has utterly no policymaking component is
rare, particularly at an executive level as high as a jurisdic-
tion’s chief law enforcement officer.”).
  Additionally, the Governor of Wisconsin’s power to re-
spond to the Secretary of the Interior’s request for concur-
rence is not without a check in the Wisconsin Legislature.
Indeed, on two occasions, the Wisconsin Legislature has
attempted to curtail the Governor’s power to concur. See
1999 Wis. Act 9, § 7(q), and 2003 Assembly Bill 144.
Although the Legislature did not override the Governor’s
veto of either bill, the Wisconsin Constitution provides a
mechanism for the Legislature to do so. See Wis. Const. Art.
5 § 10(2)(a). Moreover, the citizens of Wisconsin could
render the gubernatorial concurrence provision a nullity by
repealing the Constitutional amendments that sanction
gaming in Wisconsin; if Wisconsin prohibited all gaming,
§ 2710(d)(1) would not permit gaming on Indian lands in
Wisconsin, and the Secretary of the Interior would have no
occasion to solicit the Governor’s concurrence.
No. 03-2323                                                  25

  In conclusion, we hold that § 2719(b)(1)(A) does not vio-
late principles of federalism by either commandeering
the Governors of the 50 States into federal service or by
interfering with the functioning of the Wisconsin state
government.


                              E.
  We now address the Tribes’ argument that the gubernato-
rial concurrence provision is in violation of the federal
government’s trust responsibility to Indians. The Tribes
submit that the Indian Commerce Clause, U.S. Const. art.
I § 8, cl. 3, confers “plenary power to legislate in the field of
Indian affairs” to Congress, Cotton Petroleum Corp. v. New
Mexico, 490 U.S. 163, 192 (1989), but that this power is
limited by the federal government’s trust obligation to
Indians. They argue that all legislation enacted pursuant to
the Indian Commerce Clause must be “rationally tied to
furthering the federal government’s trust obligations.”
Further, they believe that the gubernatorial concurrence
provision does not meet that standard because it delegates
to non-trustees the authority to make decisions that effect
the administration of Indian affairs. We conclude that
Congress’s obligation to Indians is not so broad as to
require invalidation of the provision at issue.
  First, the Tribes argue that the trust doctrine cannot be
severed from the Indian Commerce Clause. We disagree.
The Supreme Court has acknowledged the “distinctive
obligation of trust incumbent upon the Government in its
dealings with these dependent and sometimes exploited
people,” Seminole Nation v. United States, 316 U.S. 286, 296
(1942), and the “undisputed existence of a general trust
relationship between the United States and the Indian
people,” United States v. Mitchell, 463 U.S. 206, 225 (1983),
yet it has not held that this obligation arises from any
particular provision of the Constitution. Rather, the trust
26                                               No. 03-2323

relationship arises from the United States’ unfortunate
history of Indian policy, as is explained in the following
paternalistic terms: “[i]n the exercise of the war and treaty
powers, the United States overcame the Indians and took
possession of their lands, sometimes by force, leaving them
an uneducated, helpless and dependent people, needing
protection against the selfishness of others and their own
improvidence. Of necessity the United States assumed the
duty of furnishing that protection . . . .” Morton v. Mancari,
417 U.S. 535, 552 (1974) (quoting Board of County Comm’rs
v. Seber, 318 U.S. 705,715 (1943)). It is the common law,
and not the Constitution, that recognized the Indian tribes
as “the wards of the nation.” See United States. v. Kagama,
118 U.S. 375, 384 (1886).
  Despite the trust doctrine’s lack of foundation in the
Constitution, the Tribes seek to persuade this Court that all
Indian legislation must be related rationally to furthering
the federal government’s trust obligation to Indians.
In support, the Tribes cite Delaware Tribal Bus. Comm.
v. Weeks, 430 U.S. 73 (1977) for the proposition that “leg-
islative judgment should not be disturbed ‘[a]s long as the
special treatment can be tied rationally to the fulfillment of
Congress’ unique obligation toward the Indians . . . .’ ”
Weeks, 430 U.S. at 85 (quoting Morton, 417 U.S. at 555).
  In Morton, non-Indian employees of the Bureau of Indian
Affairs (“BIA”) challenged the Indian Reorganization Act on
the ground that the preference granted to qualified Indians
for employment at the BIA constituted invidious racial
discrimination in violation of the Due Process Clause of the
Fifth Amendment. Id. at 537. The purpose of the employ-
ment preference was to “give Indians a greater participation
in their own self-government; to further the Government’s
trust obligation toward Indian tribes; and to reduce the
negative effect of having non-Indians administer matters
that affect Indian tribal life.” Id. at 542-43 (internal
footnotes omitted). Similarly, in Weeks, an Act of Congress
No. 03-2323                                                 27

was challenged on the grounds that it denied non-beneficia-
ries of Indian legislation the equal protection of the laws in
violation of the Due Process Clause of the Fifth Amend-
ment. Weeks, 430 U.S. 75. At issue in Weeks was an authori-
zation by Congress to disburse funds to certain Delaware
Indians in order to redress the United States’ breach of a
particular treaty. Id. It was challenged by a group of
Delaware Indians who were excluded from the distribution.
Id.
   In both cases, the Supreme Court established that
congressional legislation was subject to judicial review “to
determine whether it violates the equal protection com-
ponent of the Fifth Amendment.” Id. at 919 (citing Morton,
417 U.S. 535). The Morton Court cautioned, however, that
courts must consider the constitutional validity of Indian
legislation in the “historical and legal context” of the United
States’ trust obligation to Indians. Morton, 417 U.S. at 553.
The Supreme Court noted that “[l]iterally every piece of
legislation dealing with Indian tribes . . . single[s] out for
special treatment a constituency of tribal Indians,” and that
if such legislation were to be “deemed invidious racial
discrimination, . . . [that] the solemn commitment of the
Government toward the Indians would be jeopardized.” Id.
at 552. Thus, in order to preserve Congress’s ability to
legislate in furtherance of the United States’ trust obliga-
tion to Indians, the Supreme Court held that “special
treatment [that] can be tied rationally to the fulfillment of
Congress’ unique obligation toward the Indians . . . will not
be disturbed.” The Supreme Court applied the Morton
standard to the Fifth Amendment challenge in Weeks, and
again upheld the Act of Congress at issue on the basis that
it was rationally tied to fulfillment of the trust obligation to
Indians. Weeks, 430 U.S. at 85, 90.
   To read Morton as requiring that all legislation enacted
pursuant to the Indian Commerce Clause be rationally
related to the United States’ trust obligation to Indians
28                                               No. 03-2323

would be to take the Morton rule outside of the limited
context in which it arose. Neither Morton nor Weeks holds
that all legislation enacted pursuant to the Indian
Commerce Clause be rationally related to the trust obli-
gation. Rather, they hold that courts may not invalidate
Indian legislation on the ground that the legislation offends
the Due Process Clause of the Fifth Amendment if that
legislation was enacted in furtherance of the trust obliga-
tion. See Weeks, 430 U.S. at 85, 90. In arguing that all
Indian legislation must comply with the trust doctrine, the
Tribes seek to impose a limitation on Congress’s plenary
power which has no basis in the Constitution and has not
yet been recognized by the Supreme Court.
   The Supreme Court has not yet invalidated a federal
statute on the ground that it did not advance the federal
government’s trust obligation to Indian tribes. Indeed, even
after concluding that an Act of Congress failed to comport
with Congress’s fiduciary responsibility to Indians, the
Supreme Court refrained from acknowledging a cause of
action on that ground. See United States v. Sioux, 448 U.S.
371 (1980). In Sioux, the Sioux Nation challenged the
Congressional Act of February 28, 1877 (“the 1877 Act”)
which had authorized the confiscation of lands that had
been pledged by treaty to the Sioux Nation. Id. at 374.
Before evaluating the Sioux Nation’s claim, the Supreme
Court sought to answer a preliminary question: had
Congress enacted the 1877 Act in its capacity as trustee and
guardian of tribal property, or had Congress instead passed
the 1877 Act in exercise of its power of eminent domain? Id.
at 408, 416. The Sioux Court endorsed the following test for
distinguishing between the two types of Congressional
action. If Congress had “made a good faith effort to give the
Indians the full value of their lands,” then Congress had
acted in its fiduciary capacity. Id. at 416. In the event that
it had not attempted to adequately compensate the Sioux,
however, then Congress had exercised its power of eminent
No. 03-2323                                              29

domain and effecting a taking for which just compensation
was due under the Fifth Amendment. Id. at 408, 416.
Notably, the Supreme Court did not hold that Congress
violated the trust doctrine by failing to make a “good faith
effort” to “transmut[e]” the Sioux Nation’s property for
property of equal value, even though it acknowledged that
a trustee would ordinarily be required to do so when
dispensing of the property of her ward. See id. at 416. The
Sioux Nation prevailed in Sioux, but singularly on the
ground that 1877 Act effected a taking under the Fifth
Amendment. Id. at 423-24. Thus, Sioux establishes that, in
the context of congressional management of Indian land,
the trust doctrine imposes no restriction on Congress
beyond compliance with the constitutional restrictions
which would otherwise constrain Congress’s power.
  Although Weeks states that a court should not refrain
“from scrutinizing Indian legislation to determine whether
it violates the equal protection component of the Fifth
Amendment,” Weeks, 430 U.S. at 919, the Supreme Court
has not yet held that an Act of Congress is subject to in-
validation on the ground that it violates the federal gov-
ernment’s general trust obligation to Indians. Thus, this
Court will not invalidate the gubernatorial concurrence
provision on that basis.


                            F.
  Finally, we address the Tribes’ claim that the district
court erred in denying their conditional motion to file a
second amended complaint. In the event that the court
upheld the gubernatorial concurrence provision, the motion
requested that the Tribes be permitted to amend their
complaint to add a claim that then-Governor McCallum had
relied on improper factors when he refused to concur in the
Secretary of the Interior’s favorable determination. The
Tribes submitted the conditional motion and supporting
30                                               No. 03-2323

brief with their reply to the State and federal defendants’
cross-motion for judgment on the pleadings.
  A “district court’s denial of a motion to amend pleadings
under Fed. R. Civ. P. 15(a) will be overturned on appeal
only if it is shown that the district court abused [its] dis-
cretion by refusing to grant the leave without any justifying
reason.” J.D. Marshall Intern., Inc. v. Redstart, Inc., 935
F.2d 815, 819 (7th Cir. 1991). In this case, the district court
denied the motion for leave to amend on the grounds that
the Tribes had unduly delayed in bringing the claim and
that allowing such an amendment would be a futility.
   The Tribes concede that the facts that demonstrate
the invalidity of Governor McCallum’s withholding of con-
currence were known to them when they filed their first
amended complaint. In fact, they included those allegations
in the first amended complaint, yet they did not assert the
invalidity of the Governor’s concurrence as a theory of relief
at that time. Nor did the Tribes assert the claim in their
memorandum in support of judgment on the pleadings. The
first time that the Tribes advanced the theory that they
now wish to present was in their combined reply brief in
support of their motion for judgment on the pleadings and
brief in response to the defendants’ cross-motions for
judgment on the pleadings. The Tribes have not explained
their failure to move to amend the complaint prior to that
time.
  The Tribes have not provided an adequate justification for
the delay in stating the claim that they now wish to bring,
see Kleinhans v. Lisle Savings Profit Sharing Trust, 810
F.2d 618, 625 (7th Cir. 1987), nor have they explained why
they failed to argue that claim in their brief in support of
their motion for judgment on the pleadings. We therefore
conclude that the district court did not abuse its discretion
in denying the motion for leave to amend.
No. 03-2323                                                31

                     III. Conclusion
  For the foregoing reasons, we AFFIRM the judgment of the
district court in favor of the federal and State defendants in
all respects.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—4-29-04
