FORT SILL APACHE TRIBE v. NATIONAL INDIAN GAMING COMMISSION et al
MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 2/17/2017. (lcrmc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FORT SILL APACHE TRIBE,
NATIONAL INDIAN GAMING
COMMISSION, et al.,
Civil Action No. 14-958 (RMC)
This action concerns a Notice of Violation issued by the Chairman of the National
Indian Gaming Commission to the Fort Sill Apache Tribe. In an effort to facilitate settlement,
the parties asked the Court to order a set of agreed-upon actions the parties would undertake,
which the Court duly did. See 8/17/2016 Order [Dkt. 51] (Order). The Order went through
several amendments at the parties’ request. See 10/4/2016 Order [Dkt. 55] (Amended Order);
10/21/2016 Order [Dkt. 60]. The Tribe is now challenging the sufficiency of NIGC’s actions
under the terms of that order, and has asked the Court to order NIGC to show cause why it
should not be held in contempt. See Pl.’s Em. Mot. to Enforce the Court’s Order [Dkt. 67].
NIGC has opposed this request, [Dkt. 68], and the Tribe has replied. [Dkt. 69]. The matter is
ripe for the Court’s review.
This case concerns a set of administrative proceedings involving the Tribe,
NIGC, and the Department of Interior, all of which relate to a May 15, 2015 Decision issued by
NIGC that the Tribe was not eligible to provide gaming on certain Tribe-owned lands. One of
the complicating issues in this matter is a prior settlement (the Settlement) between Interior and
the Tribe, and the extent to which the Settlement affects the Tribe’s right to operate a casino and,
by extension, affects NIGC’s May 15, 2015 determination.
In an effort to resolve this case through settlement instead of continued litigation,
the parties jointly proposed the following: (1) the Department of Interior would issue a letter to
the NIGC stating its opinion on the relevancy of the Settlement on the Tribe’s rights to the
operation of a casino, whereupon (2) the NIGC would review its initial determination in light of
Interior’s letter. The Court, as requested, memorialized this agreement in an Order. See
After months of delay, Interior issued its letter to NIGC on December 9, 2016,
with a copy provided to the Court in camera. On January 12, 2017, NIGC issued a letter to the
Tribe, indicating that the information provided by the Interior in its letter did not give reason for
NIGC to reconsider its initial determination. See Pl.’s Mot. Ex. 1 (NIGC Letter).1
Believing that NIGC’s actions are inadequate, the Tribe has filed the Motion
currently before the Court. The Tribe asserts that the letter issued by NIGC falls outside the
terms of the parties’ agreement as reflected in the Court’s order. See Pl.’s Mot. at 2.
Specifically, the Tribe argues that the letter issued by NIGC is insufficient under the plain
language of the Order, which states that NIGC shall “reconsider its Decision and Order dated
In their briefs, the parties engage in a dispute about whether the Tribe’s decision to attach the NIGC’s
letter to its motion violated Federal Rule of Evidence 408 protection. The parties misapprehend FRE 408.
“‘FRE 408 limits a document's relevance at trial, not its disclosure for other purposes.’” NAACP Legal
Def. Fund & Educ. Fund, Inc. v. U.S. Dep't of Justice, 612 F. Supp. 1143, 1146 (D.D.C. 1985) (quoting
Ctr. for Auto Safety v. Dep't of Justice, 576 F. Supp. 739, 749 (D.D.C. 1983)). “‘[A] party is not allowed
to use Rule 408 as a screen for curtailing his adversary's right of discovery.’” In re Subpoena Issued to
Commodity Futures Trading Comm'n, 370 F. Supp. 2d 201, 211 (D.D.C. 2005) (quoting 2 Weinstein's
Federal Evidence § 408.07 at 408-26 (2005)). The Court need not consider whether FRE 408 applies to
the NIGC letter, since FRE 408 would not preclude the letter’s use in this context.
May 5, 2015, in consideration of the letter to be provided by Interior, and shall issue a Decision
and Order incorporating such reconsideration.” Amended Order.
NIGC’s letter does not violate the Court’s order. The letter indicates that NIGC
reviewed the material provided by Interior and considered whether that information warranted a
reexamination of NIGC’s initial decision. NIGC concluded that it did not, and informed the
Tribe of that fact in the form of a letter. In doing so, the Court finds that NIGC by all
appearances acted in good faith and in substantial compliance with the Court’s order. See Food
Lion, Inc. v. United Food & Commercial Workers Int'l Union, AFL-CIO-CLC, 103 F.3d 1007,
1017 (D.C. Cir. 1997) (“[T]he burden of proving good faith and substantial compliance is on the
party asserting the defense.”) Given this, the Court denies the Tribe’s motion.
While the intent of the parties’ plan was to promote a settlement of this dispute,
that appears now to have been unsuccessful. Accordingly, the Court directs the parties to meet
and confer and propose a joint schedule for the next phase of this litigation.
Plaintiff’s Motion for an Order to Show Cause [Dkt. 67] will be DENIED. The
parties are ordered meet and confer and to submit a joint proposed schedule on or before March
20, 2017. A memorializing order accompanies this memorandum opinion.
Date: February 17, 2017
ROSEMARY M. COLLYER
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?