FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLUB ONE CASINO, INC., DBA Club 

One Casino; GLCR, INC., DBA The 

Deuce Lounge and Casino,

Plaintiffs-Appellants,

v.

DAVID BERNHARDT; MIKE BLACK, 

Acting Assistant Secretary of the 

Interior - Indian Affairs; U.S.

DEPARTMENT OF THE INTERIOR,

Defendants-Appellees.

No. 18-16696

D.C. No.

1:16-cv-01908-

AWI-EPG

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted February 11, 2020

San Francisco, California

Filed May 27, 2020

Before: R. Guy Cole, Jr.,* Ronald M. Gould, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia

* The Honorable R. Guy Cole, Jr., Chief Judge of the United States 

Court of Appeals for the Sixth Circuit, sitting by designation.
2 CLUB ONE CASINO V. BERNHARDT

SUMMARY**

Tribal Gaming

The panel affirmed the district court’s summary 

judgment in favor of the U.S. Department of the Interior and 

its Secretary in an action brought by plaintiff cardrooms, 

challenging the Secretary’s approval of a Nevada-style 

casino project on off-reservation land in the County of 

Madera, California by the North Fork Rancheria of Mono 

Indians, a federally recognized tribe.

Section 3719 of Indian Gaming Regulatory Act 

(“IGRA”) prohibits gaming on any lands acquired by the 

Secretary in trust for the benefits of Indian Tribes after 

October 17, 1988, unless one of several exceptions applies. 

As relevant here, Class III games include casino-style 

games, slot machines, and lotteries, and can only be 

conducted pursuant to tribal-state compacts approved by the 

Secretary. Section 5108 of the Indian Reorganization Act of 

1934 (“IRA”) authorized the Secretary to acquire interests or 

rights for the purpose of providing land for Indians. In July 

2016, in accordance with IGRA, the Secretary prescribed 

certain procedures that permitted gaming on the Madera 

Parcel (the “Secretarial Procedures”).

The panel rejected plaintiffs’ contention that the 

Secretarial Procedures were issued in violation of IGRA. 

The panel held that as a matter of law, the federal 

government confers tribal jurisdiction over lands it acquires 

in trust for the benefit of tribes. The panel further held that 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CLUB ONE CASINO V. BERNHARDT 3

the Tribe’s jurisdiction over the Madera Parcel operated as a 

matter of law and the Tribe clearly exercised governmental 

power when it entered into agreements with local 

governments and enacted ordinances concerning the 

property. Finally, the panel rejected plaintiffs’ claim that the 

Tribe’s acquisition of any jurisdiction over the Madera

Parcel required the State’s consent or cession. Specifically, 

the panel held that the Enclave Clause of the U.S. 

Constitution did not apply because the Secretary’s 

acquisition of land in trust for the benefit of a tribe did not 

result in the creation of a federal enclave or violate the 

Clause. The panel also held that 40 U.S.C. § 3112 did not 

apply where the jurisdiction at issue here – which was 

created by operation of law – was not granted by the State to 

the federal government, or taken by the federal government 

from the State.

The panel rejected plaintiffs’ contention that to the extent 

IRA created tribal jurisdiction upon the Secretary’s 

acquisition of land in trust for the benefit of the Tribe, it 

violated the Tenth Amendment. The panel held that the IRA 

did not offend the Tenth Amendment because Congress has 

plenary authority to regulate Indian affairs.

The panel held that plaintiffs waived two arguments 

raised for the first time on appeal.

The panel concluded that the Secretary’s actions were 

not arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.
4 CLUB ONE CASINO V. BERNHARDT

COUNSEL

Robert D. Links (argued), Adam G. Slote, and Marglyn E. 

Paseka, Slote Links & Boreman LLP, San Francisco, 

California; Robert A. Olson and Timothy T. Coates, Greines 

Martin Stein & Richland LLP, Los Angeles, California; for 

Plaintiffs-Appellants.

Tamara Rountree (argued), John David Gunter II, Steven 

Miskinis, and Joann Kintz, Attorneys; Eric Grant, Deputy 

Assistant Attorney General; Jeffrey Bossert Clark, Assistant 

Attorney General; Environment and Natural Resources 

Division, United States Department of Justice, Washington, 

D.C.; for Defendants-Appellees.

OPINION

MURGUIA, Circuit Judge:

This action is one in a series of actions1 concerning the 

proposed construction and operation of a Nevada-style 

casino on off-reservation land in the County of Madera, 

California (the “Madera Parcel”) by the North Fork 

Rancheria of Mono Indians (the “North Fork” or “Tribe”), a 

federally recognized tribe. Plaintiffs-Appellants, Club One 

Casino and the Deuce Lounge, are cardrooms licensed by the 

State of California (the “State”). Plaintiffs contend that the 

approval of the casino project by the United States Secretary 

of the Interior (the “Secretary”) and the United States 

1 See Picayune Rancheria of Chukchansi Indians v. United States 

Dep’t of Interior, No. 1:16-CV-0950-AWI-EPG, 2017 WL 3581735, 

at *3–5 (E.D. Cal. Aug. 18, 2017) (reviewing actions related to the 

proposed casino).
CLUB ONE CASINO V. BERNHARDT 5

Department of the Interior (collectively, DefendantsAppellees) is unlawful, and they brought a host of 

procedural, statutory, and constitutional challenges. The 

district court granted summary judgment against Plaintiffs 

on all claims. We affirm.

I

The North Fork Rancheria of Mono Indians of California 

are the modern descendants of the Mono Indians, who have 

used and occupied lands in and near California’s San 

Joaquin Valley for several centuries. The Tribe has 

approximately 1,750 citizens, is headquartered in North 

Fork, Madera County, California, and has been federally 

recognized since 1915.

In March 2005, the North Fork applied to the Department 

of the Interior to have a 305-acre plot of land in Madera 

County taken into trust by the United States pursuant to 

section 5108 of the Indian Reorganization Act (“IRA”), 

25 U.S.C. §§ 5101–5144. The Tribe proposes to construct a 

casino resort on the property.

In September 2011, the Secretary made a determination 

pursuant to section 2719 of the Indian Gaming Regulatory 

Act (“IGRA”), id. §§ 2701–2721, finding that gaming on the 

land would be in the best interest of the North Fork and not 

detrimental to the surrounding community (the “Secretarial 

Determination”). In August 2012, the Governor of the State 

of California (the “Governor”) informed the Secretary that 

he concurred in the Secretarial Determination and negotiated 

a compact with the North Fork to govern gaming at the 

Madera Parcel. In February 2013, the Madera Parcel was 

acquired in trust by the Secretary for the benefit of the North 

Fork. In June 2013, the California Legislature passed 

Assembly Bill 277, which ratified the compact, and the 
6 CLUB ONE CASINO V. BERNHARDT

Governor signed the legislation into law the following 

month. Enough signatures, however, were gathered to place 

a veto referendum (“Proposition 48”) on the November 2014 

ballot, which proposed voiding the California Legislature’s 

ratification of the compact. Proposition 48 passed with 

sixty-one percent of the vote—meaning that Assembly Bill 

277, which had ratified the compact between the Tribe and 

the State, was vetoed by the voters.

After this defeat at the polls, the North Fork requested 

that the State negotiate a new tribal-state compact to govern 

gaming at the Madera Parcel. The State refused, citing 

Proposition 48’s passage. In March 2015, the Tribe brought 

an action under IGRA, alleging that the State failed to 

negotiate in good faith. N. Fork Rancheria of Mono Indians 

of Cal. v. California, No. 1:15-CV-00419-AWI-SAB, 2015 

WL 11438206, at *1 (E.D. Cal. Nov. 13, 2015). The district 

court agreed, finding that the State’s refusal to negotiate a 

compact post-referendum violated IGRA, and ordered the 

State and the North Fork to conclude a compact within sixty 

days. Id. at *8, *12. When the parties failed to do so, the 

court selected a mediator and directed the parties to submit 

their last best offers. The parties complied with the order 

and the mediator selected the North Fork’s proposed 

compact as “the compact that best comported with IGRA, 

Federal law, and the orders of this Court.” The mediator 

thereafter submitted the compact to the State for its consent. 

The State did not consent to the selected compact within the 

statutorily required time period and the mediator’s proposed 

compact was submitted to the Secretary pursuant to 

section 2710(d)(7)(B)(vii) of IGRA.

In July 2016, in accordance with IGRA, the Secretary 

prescribed certain procedures that permitted gaming on the 

Madera Parcel (the “Secretarial Procedures”). The 
CLUB ONE CASINO V. BERNHARDT 7

Secretarial Procedures do not include express findings as to 

whether the North Fork had jurisdiction or exercised 

governmental power over the Madera Parcel or whether the 

Madera Parcel was Indian land.

Plaintiffs, the cardrooms, sued the Secretary and the 

Department of the Interior in the district court in December 

2016. They challenged the Secretary’s issuance of the 

Secretarial Procedures under the Administrative Procedure 

Act, claiming: (1) the Secretarial Procedures were issued in 

violation of IGRA, as the Tribe purportedly never acquired 

jurisdiction or exercised governmental power over the 

Madera Parcel; and (2) assuming the Tribe acquired 

jurisdiction and exercised governmental power, IRA violates 

the Tenth Amendment to the Constitution by reducing the 

State’s jurisdiction over land within its territory without its 

agreement.

On cross-motions for summary judgment, the district 

court denied Plaintiffs’ motion and granted Defendants’ 

motion. In accordance with case law from other circuits, the 

district court held that: (1) the Tribe had jurisdiction over 

the Madera Parcel for purposes of IGRA by virtue of the land 

being acquired in trust for the Tribe and neither consent nor 

cession by the State was required; (2) Plaintiffs’ Tenth 

Amendment challenge was not properly before the court, as 

Plaintiffs had only challenged the issuance of the Secretarial 

Procedures, not the Secretary’s acquisition of the Madera 

Parcel in trust for the benefit of the Tribe; and 

(3) alternatively, Plaintiffs lacked standing to bring the 

Tenth Amendment challenge. Plaintiffs timely appealed.

II

We review the district court’s grant of summary 

judgment de novo to determine whether the Secretary’s 
8 CLUB ONE CASINO V. BERNHARDT

actions were “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A); Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 

544, 554 (9th Cir. 2016). We have described the arbitrary 

and capricious standard as deferential and narrow, 

establishing a “high threshold” for setting aside agency 

action. River Runners for Wilderness v. Martin, 593 F.3d 

1064, 1067, 1070 (9th Cir. 2010) (per curiam). We also 

review purely legal questions de novo. Wagner v. Nat’l 

Transp. Safety Bd., 86 F.3d 928, 930 (9th Cir. 1996).

III

Before proceeding to our analysis, we pause to set out 

the applicable statutory landscape. Gaming in Indian 

country is a multi-billion-dollar industry conducted pursuant 

to the Indian Gaming Regulatory Act of 1988. IGRA 

“accommodate[s] the interests of tribes in pursuing gaming 

but also set[s] forth a federal regulatory regime, and g[ives] 

a powerful role to states by providing for significant state 

involvement in the decision to permit casino-style gaming.” 

Cohen’s Handbook of Federal Indian Law § 12.01, at 876 

(2012) (“Federal Indian Law”).

Gaming is permitted only on Indian lands, which are 

defined as “all lands within the limits of any Indian 

reservation,” 25 U.S.C. § 2703(4)(A), and “any lands title to 

which is either held in trust by the United States for the 

benefit of any Indian tribe or individual or held by any Indian 

tribe or individual subject to restriction by the United States 

against alienation and over which an Indian tribe exercises 

governmental power,” id. § 2703(4)(B). Thus, a tribe may

engage in gaming activities either: (1) on a reservation; or 

(2) off a reservation on tribal or individual trust land, or land 

not held in trust but subject to a restriction on alienation, but 
CLUB ONE CASINO V. BERNHARDT 9

only if a tribe exercises governmental power over this trust 

or restricted land. Id. § 2703(4).

Importantly, section 2719 of IGRA prohibits gaming on 

any lands acquired by the Secretary in trust for the benefit of 

Indian tribes after October 17, 1988, unless one of several 

exceptions applies. An exception pertinent to this appeal 

permits gaming if the Secretary makes a two-part 

determination: (1) finding that gaming on land acquired in 

trust after 1988 “would be in the best interest of the Indian 

tribe and its members”; and (2) that such gaming “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.” Id.

§ 2719(b)(1)(A).

Additionally, IGRA divides gaming into three classes. 

As relevant here, Class III2 games include casino-style 

games, slot machines, and lotteries. See id. § 2703(8). 

Generally, Class III games can only be conducted pursuant 

to tribal-state compacts approved by the Secretary. Id.

§ 2710(d)(1)(C), (3)(B). If a state generally permits such 

gaming, IGRA authorizes a tribe to bring an action in federal 

court3 against a state that refuses to enter into negotiations at 

2 Class I games include social and traditional games for prizes of 

minimal value. Federal Indian Law § 12.02, at 881–82. Class I gaming 

is within the sole jurisdiction of tribes. Id. Class II games include bingo, 

bingo-like games, and certain non-banking (meaning, players compete 

against each other and not the “house”) card games. Id. Class II gaming 

is jointly regulated by tribes and the National Indian Gaming 

Commission, excluding a role for states. Id.

3 As a result of the Supreme Court’s ruling in Seminole Tribe of Fla.

v. Florida, 517 U.S. 44 (1996), states may assert Eleventh Amendment 

immunity from tribal lawsuits alleging failure to negotiate in good 
10 CLUB ONE CASINO V. BERNHARDT

all or has refused to negotiate a Class III tribal-state compact 

in good faith. Id. § 2710(d)(7)(A)(i), (B)(i). If there is a 

finding by a district court that the state failed to negotiate in 

good faith, IGRA requires the district court to order the tribe 

and the state to negotiate a compact within sixty days. Id.

§ 2710(d)(7)(B)(iii). If a compact fails to materialize within 

sixty days, the district court shall appoint a mediator who 

will require the tribe and the state to submit their best and 

final proposal for a compact. Id. § 2710(d)(7)(B)(iv). The 

mediator then selects the compact that best comports with 

policies embodied in IGRA and other applicable federal 

laws. Id. If the state still refuses to agree to be bound by the 

chosen compact, IGRA requires the mediator to refer the 

matter to the Secretary, who must then issue gaming 

procedures consistent with the compact selected by the 

mediator, other relevant provisions of IGRA, and the laws of 

the state. Id. § 2710(d)(7)(B)(vii).

In addition to IGRA, this appeal implicates the Indian 

Reorganization Act of 1934. IRA authorizes the Secretary 

“in his discretion” to acquire “any interest in lands, water 

rights, or surface rights to lands, within or without existing 

reservations,” through purchase, gift, or exchange “for the 

purpose of providing land for Indians.” Id. § 5108 (formerly 

§ 465). IRA reflected a major shift in federal policy from 

one favoring diminishment of tribal lands to one protecting 

tribal lands and supporting tribal self-government and 

economic development. See Mescalero Apache Tribe v. 

Jones, 411 U.S. 145, 152 (1973).

faith—meaning, tribes are prohibited from bringing lawsuits in federal 

court against a state without the consent of the state. California has

waived its immunity and has thereby consented to such suits. See Cal. 

Gov’t Code § 98005.
CLUB ONE CASINO V. BERNHARDT 11

In sum, in order for a tribe to engage in any gaming on 

off-reservation land acquired after October 17, 1988, the 

following must take place: (1) land—which is either held in 

trust by the United States for the benefit of any Indian tribe 

or individual or held by any Indian tribe or individual subject 

to restriction by the United States against alienation, 

25 U.S.C. § 2703(4)(B)—must be acquired; (2) the 

Secretary must make a determination finding that gaming 

would be in the best interest of the Indian tribe and its 

members, and would not be detrimental to the surrounding 

community, id. § 2719(b)(1)(A); and (3) the governor of the 

state must concur in the determination, id.

In order for a tribe to engage in Class III gaming, 

however, the Secretary must also either approve a tribalstate compact, id. § 2710(d)(1)(C), or prescribe secretarial 

procedures, if the state failed to negotiate in good faith, id.

§ 2710(d)(7)(B)(vii). As explained above, if a state refuses 

to negotiate a tribal-state compact in good faith or to enter 

into negotiations at all, IGRA authorizes the Secretary to 

permit gaming by issuing gaming procedures consistent with 

a compact selected by a mediator, other relevant provisions 

of IGRA, and the laws of the state.

IV

On appeal, Plaintiffs re-assert the arguments they 

presented to the district court. Plaintiffs contend that: 

(1) the Secretarial Procedures were issued in violation of 

IGRA, as the Tribe purportedly never acquired jurisdiction 

or exercised governmental power over the Madera Parcel; 

and (2) assuming the Tribe acquired jurisdiction and 

exercised governmental power, IRA violates the Tenth 

Amendment by reducing the State’s jurisdiction over land 

within its territory without its agreement. Plaintiffs also, 

however, introduce two additional arguments, which they 
12 CLUB ONE CASINO V. BERNHARDT

present for the first time on appeal: (1) that the Secretarial 

Determination finding that gaming at the Madera Parcel 

would be in the best interest of the North Fork and not 

detrimental to the surrounding community did not reflect 

sufficiently robust consultation, as required by law; and 

(2) that the Governor lacked authority to concur in the 

Secretarial Determination. We address the first two 

arguments below, and we conclude that the latter two have 

been waived.

A

Plaintiffs contend that the Secretarial Procedures, which 

permit gaming on the Madera Parcel, were issued in 

violation of IGRA because the Tribe purportedly lacked 

jurisdiction and did not exercise governmental power over 

the Madera Parcel. In support of this argument Plaintiffs 

appear to claim that: (1) tribal jurisdiction was not 

automatically obtained by the Tribe when the United States 

acquired the Madera Parcel in trust for the benefit of the 

Tribe; (2) the Secretary was required, but failed, to consider 

whether the Tribe possessed jurisdiction and whether the 

Tribe exercised governmental power over the Madera 

Parcel; and (3) the Tribe’s acquisition of any jurisdiction 

over the Madera Parcel requires the State’s consent or 

cession—neither of which was granted. None of these 

arguments has merit.

1

As noted above, IRA authorizes the Secretary “in his 

discretion” to acquire “any interest in lands, water rights, or 

surface rights to lands, within or without existing Indian 

reservations,” through purchase, gift, or exchange “for the 

purpose of providing land for Indians.” Id. § 5108. And 

while there is no Ninth Circuit precedent precisely on point, 
CLUB ONE CASINO V. BERNHARDT 13

other circuits have logically concluded that, as a matter of 

law, the federal government confers tribal jurisdiction over 

lands it acquires in trust for the benefit of tribes. We agree.

In Upstate Citizens for Equality, Inc. v. United States, for 

example, the Second Circuit concluded that “[l]and held by 

the federal government in trust for Indians under [section 

5108 of IRA] ‘is generally not subject to (1) state or local 

taxation; (2) local zoning and regulatory requirements; or, 

(3) state criminal and civil jurisdiction [over Indians], unless 

the tribe consents to such jurisdiction.’” 841 F.3d 556, 561 

(2d Cir. 2016) (alteration in original) (quoting Conn. ex rel. 

Blumenthal v. United States Dep’t of Interior, 228 F.3d 82, 

85–86 (2d Cir. 2000)). The court further noted that the 

federal government may, “by acquiring land for a tribe, 

divest a state of important aspects of its jurisdiction, even if 

a state previously exercised wholesale jurisdiction over the 

land and even if ‘federal supervision over [a tribe] has not 

been continuous.’” Id. at 568 (alteration in original) 

(quoting United States v. John, 437 U.S. 634, 653 (1978)). 

Accordingly, “[w]hen the federal government takes land into 

trust for an Indian tribe, the state that previously exercised 

jurisdiction over the land cedes some of its authority to the 

federal and tribal governments.” Id. at 569 (emphasis 

added).4

Similarly, in Yankton Sioux Tribe v. Podhradsky, the 

Eighth Circuit concluded that “land held in trust under [IRA] 

4 Notably and importantly, federal and Indian authority do not 

entirely displace state authority over land taken into trust. Upstate 

Citizens for Equality, 841 F.3d at 572. For example, under Public Law 

280, 18 U.S.C. § 1162(a), California retains “broad criminal jurisdiction 

over offenses committed by or against Indians within all Indian country 

within the State.” California v. Cabazon Band of Mission Indians, 

480 U.S. 202, 207 (1987), superseded on other grounds by statute.
14 CLUB ONE CASINO V. BERNHARDT

is effectively removed from state jurisdiction,” for “when 

Congress enacted [IRA] ‘it doubtless intended and 

understood that the Indians for whom the land was acquired 

would be able to use the land free from state or local 

regulation or interference as well as free from taxation.’” 

606 F.3d 994, 1011 (8th Cir. 2010) (quoting Chase v. 

McMasters, 573 F.2d 1011, 1018 (8th Cir. 1978)).

As a general matter, too, off-reservation trust land like 

the Madera Parcel is “Indian country” with all the 

jurisdictional consequences that attach to that status.5 

Federal law defines “Indian country,” in part, as “all 

dependent Indian communities within the borders of the 

United States whether within the original or subsequently 

acquired territory thereof, and whether within or without the 

limits of a state.” 18 U.S.C. § 1151(b). Off-reservation trust 

land set aside for Indian use is Indian country under 

subsection (b) of the Indian country statute. Off-reservation 

trust land is, by definition, land set aside for Indian use and 

subject to federal control. Federal control over trust land is 

evident and made clear in regulations such as 25 C.F.R. 

§ 1.4(a), which precludes state or local regulation of 

property “belonging to any Indian or Indian tribe, band, or 

community that is held in trust by the United States[.]” 

“Generally speaking, primary jurisdiction over land that is 

Indian country rests with the Federal Government and the 

Indian tribe inhabiting it, and not with the States.” Native 

Vill. of Venetie, 522 U.S. at 527 n.1.

5 “Although this definition by its terms relates only to federal 

criminal jurisdiction, we have recognized that it also generally applies to 

questions of civil jurisdiction . . . .” Alaska v. Native Vill. of Venetie

Tribal Gov’t, 522 U.S. 520, 527 (1998).
CLUB ONE CASINO V. BERNHARDT 15

As such, the federal government confers tribal 

jurisdiction over lands it acquires in trust for the benefit of 

tribes as a matter of law.

2

Plaintiffs’ next contention, that the Secretary was 

somehow legally required to consider whether the Tribe 

possessed jurisdiction and exercised governmental power 

over the Madera Parcel, is equally unpersuasive. Plaintiffs 

do not point to any provision of IGRA—or any other 

relevant authority, for that matter—requiring the Secretary 

to make either determination. We decline to read into IGRA 

unnecessary requirements demanded neither by law nor 

logic. As to jurisdiction specifically, requiring the Secretary 

to evaluate whether the Tribe possesses jurisdiction over the 

land would be illogical. As noted above, the Tribe’s 

jurisdiction over the Madera Parcel operates as a matter of 

law; it is not a question of fact. Upstate Citizens for 

Equality, 841 F.3d at 569 (“When the federal government 

takes land into trust for an Indian tribe, the state that 

previously exercised jurisdiction over the land cedes some 

of its authority to the federal and tribal governments.”).

As to governance, the Tribe most certainly exercises 

governmental power over the Madera Parcel. IGRA 

authorizes gaming on “any lands title to which is . . . held in 

trust by the United States for the benefit of any Indian tribe 

. . . and over which an Indian tribe exercises governmental 

power.” 25 U.S.C. § 2703(4)(B) (emphasis added). 

Although federal courts have not often had occasion to 

consider whether a tribe “exercises governmental power” 

within the meaning of IGRA, those that have considered the 

question have held that exercising governmental power 

requires a showing of both theoretical power to exercise 

jurisdiction over the property and proof of actual exercise of 
16 CLUB ONE CASINO V. BERNHARDT

that authority. For example, the First Circuit in Rhode Island 

v. Narragansett Indian Tribe held that “[m]eeting this 

requirement does not depend upon the Tribe’s theoretical 

authority, but upon the presence of concrete manifestations 

of that authority.” 19 F.3d 685, 703 (1st Cir. 1994).

In Massachusetts v. Wampanoag Tribe of Gay Head, the 

First Circuit similarly concluded that a tribe which had 

passed ordinances and entered into agreements with state 

and local governments for the provision of law enforcement 

and firefighting services exercised governmental power 

sufficiently within the meaning of IGRA. 853 F.3d 618, 

625–26 (1st Cir. 2017). The court underscored that “the 

achievement of full-fledged self-governance” was not 

necessary—only “merely movement in that direction.” Id.

at 626.

Here, the record clearly indicates that in late 2006 the 

Tribe entered into “enforceable and binding” agreements 

with the County of Madera and the City of Madera for the 

provision of law enforcement and fire protection services at 

the Madera Parcel. The Tribe also enacted a gaming 

ordinance in 2009 “governing the conduct of gaming” at the 

Madera Parcel. The district court also took judicial notice of 

the fact that the Tribe enacted an ordinance in October 2015 

approving a conservation plan for the Madera Parcel.

For these reasons, both conditions were met here. The 

Tribe’s jurisdiction over the Madera Parcel operates as a 

matter of law and the Tribe clearly exercised governmental 

power when it entered into agreements with local 

governments and enacted ordinances concerning the 

property.
CLUB ONE CASINO V. BERNHARDT 17

3

Plaintiffs’ final claim in support of their argument that 

the Secretarial Procedures were issued in violation of 

IGRA—that the Tribe’s acquisition of any jurisdiction over 

the Madera Parcel requires the State’s consent or cession—

is also unavailing. Plaintiffs point to the Constitution’s 

Enclave Clause and a federal statute, 40 U.S.C. § 3112, as 

the sources of those requirements.6

The Enclave Clause does not apply here. The 

Secretary’s acquisition of land in trust for the benefit of a 

tribe does not result in the creation of a federal enclave or 

violate the Enclave Clause. See, e.g., Upstate Citizens for 

Equality, 841 F.3d at 571 (“When land is taken into trust by 

the federal government for Indian tribes, the federal 

government does not obtain such categorically exclusive 

jurisdiction over the entrusted lands.”); City of Roseville v. 

Norton, 219 F. Supp. 2d 130, 151 (D.D.C. 2002) (“[I]t is 

clear that land taken into trust for Indians does not create an 

exclusive federal enclave. Consequently, the Enclaves [sic] 

Clause is not implicated[.]”). “State jurisdiction is . . . only 

6 In general, Congress may acquire jurisdiction from a state through 

two methods: consent and cession. The first method, consent, arises 

from the Constitution’s Enclave Clause. Case law construing the clause 

instructs that state consent is needed only when the federal government 

takes “exclusive” jurisdiction over land within a state. See, e.g., Paul v. 

United States, 371 U.S. 245, 263 (1963). “Exclusive” jurisdiction for 

Enclave Clause purposes is equivalent to the sweeping power that 

Congress exerts over the District of Columbia, the first subject of the 

clause. Id. The second method, cession, relates to 40 U.S.C. § 3112. 

Under this federal statute, the federal government can acquire 

jurisdiction from a state by filing a notice accepting the state’s

jurisdiction with the state’s governor or in such manner as may be 

prescribed by the laws of the state where the lands are situated. 40 U.S.C. 

§ 3112(b).
18 CLUB ONE CASINO V. BERNHARDT

reduced, and not eliminated, when the federal government 

takes land into trust for a tribe. Because federal and Indian 

authority do not wholly displace state authority over land 

taken into trust pursuant to § 5 of the IRA, the Enclave 

Clause poses no barrier to the entrustment that occurred 

here.” Upstate Citizens for Equality, 841 F.3d at 572.

Section 3112 also does not apply. By its own terms, the 

statute sets forth requirements for the federal government’s 

acceptance of jurisdiction over land. See, e.g., 40 U.S.C. 

§ 3112(b) (“[The federal government] shall indicate 

acceptance of jurisdiction . . . by filing a notice of acceptance 

with the Governor of the State[.]”) Here, the federal 

government is not accepting jurisdiction “from the State.” In 

other words, the jurisdiction at issue here—which was 

created by operation of law, as noted above—was not 

granted by the State to the federal government, or taken by 

the federal government from the State. See, e.g., Kleppe v. 

New Mexico, 426 U.S. 529, 541–43 (1976) (noting the 

distinction between Congress’ constitutional powers and its 

derivative legislative powers acquired from a state, and 

noting that where Congress acts pursuant to a non-derivative 

constitutional power, federal legislation preempts 

conflicting state law). The federal government’s power 

under IRA to acquire the Madera Parcel in trust for the 

benefit of the Tribe is derived from Congress’ broad general 

power, pursuant to the Indian Commerce Clause, to legislate 

with respect to Indian tribes—power which has been 

consistently described as “plenary and exclusive” power 

over Indian affairs. United States v. Lara, 541 U.S. 193, 200 

(2004); see also Cotton Petroleum Corp. v. New Mexico, 

490 U.S. 163, 192 (1989) (“[T]he central function of the 

Indian Commerce Clause is to provide Congress with 

plenary power to legislate in the field of Indian affairs[.]”). 

Therefore, when Congress so acts, the federal legislation 
CLUB ONE CASINO V. BERNHARDT 19

necessarily overrides conflicting state laws under the 

Supremacy Clause. See Kleppe, 426 U.S. at 543.

Thus, Plaintiffs’ claim that the Tribe’s acquisition of any 

jurisdiction over the Madera Parcel requires the State’s 

consent or cession fails.

B

Plaintiffs also contend that to the extent IRA creates 

tribal jurisdiction upon the Secretary’s acquisition of land in 

trust for the benefit of the Tribe, it violates the Tenth 

Amendment.7 Plaintiffs assert that “tak[ing] sovereignty 

from a State without that State’s consent or permission” 

violates the Tenth Amendment, as “[t]erritorial jurisdiction 

is a fundamental component of State sovereignty.”

The authority to regulate Indian affairs is among the 

enumerated powers of the federal government. U.S. Const. 

art. I, § 8, cl. 3; Cotton Petroleum Corp., 490 U.S. at 192; 

Morton v. Mancari, 417 U.S. 535, 551 (1974) (noting that 

Congress has plenary power “to deal with the special 

problems of Indians,” including the power to legislate on 

their behalf). “With the adoption of the Constitution, Indian 

relations became the exclusive province of federal law.” 

Cty. of Oneida v. Oneida Indian Nation of New York, 

470 U.S. 226, 234 (1985); see also United States v. FortyThree Gallons of Whiskey, 93 U.S. 188, 194 (1876) 

(“Congress now has the exclusive and absolute power to 

regulate commerce with the Indian tribes[.]”).

7 Plaintiffs have standing to bring this claim pursuant to Bond v. 

United States, 564 U.S. 211, 220–21 (2011).
20 CLUB ONE CASINO V. BERNHARDT

The Tenth Amendment to the Constitution reserves to 

the states those powers not expressly delegated to the federal 

government. The powers delegated to the federal 

government and those reserved to the states by the Tenth 

Amendment are mutually exclusive. “If a power is delegated 

to Congress in the Constitution, the Tenth Amendment 

expressly disclaims any reservation of that power to the 

States[.]” New York v. United States, 505 U.S. 144, 156 

(1992).

Because Congress has plenary authority to regulate 

Indian affairs, contrary to Plaintiffs’ argument, IRA does not 

offend the Tenth Amendment. See, e.g., Carcieri v. 

Kempthorne, 497 F.3d 15, 39–40 (1st Cir. 2007) (en banc) 

(emphasizing that powers expressly delegated to Congress 

do not implicate the Tenth Amendment), rev’d on other 

grounds sub nom. Carcieri v. Salazar, 555 U.S. 379 (2009); 

see also Gila River Indian Cmty. v. United States, 729 F.3d 

1139, 1154 (9th Cir. 2013), as amended (July 9, 2013) 

(holding that a federal statute “was well within congressional 

power under the Indian Commerce Clause and is not 

trumped by the Tenth Amendment”).

C

Plaintiffs also raise two arguments for the first time on 

appeal. First, Plaintiffs claim the Secretarial Determination 

that gaming would be in the best interest of the Tribe and 

would not be detrimental to the surrounding community did 

not reflect sufficiently robust consultation with “appropriate 

State and local officials” pursuant to section 2719(b)(1)(A) 

of IGRA because some local authorities opposed the Tribe’s 

request for gaming on off-reservation lands. Second, 

Plaintiffs claim that the Governor’s 2012 concurrence in the 

Secretarial Determination was unauthorized as a matter of 
CLUB ONE CASINO V. BERNHARDT 21

state law8 and, alternatively, was revoked before the 

issuance of the Secretarial Procedures. Neither of these 

arguments were presented to the district court.

“Absent exceptional circumstances, we generally will 

not consider arguments raised for the first time on appeal, 

although we have discretion to do so.” El Paso City v. Am. 

W. Airlines, Inc. (In re Am. W. Airlines, Inc.), 217 F.3d 1161, 

1165 (9th Cir. 2000). Plaintiffs have failed to address any of 

the exceptions to the general rule that an argument raised for 

the first time on appeal is waived. See United States v. 

Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990) (discussing the 

limited circumstances where the Court may consider an issue 

raised for the first time on appeal, which include when there 

are “exceptional circumstances” why the issue was not 

raised in the trial court, when the new issue arose while the 

appeal was pending because of a change in the law, and 

when the issue presented is purely one of law and the 

opposing party will not suffer prejudice as a result of the 

failure to raise the issue in the trial court).

Accordingly, Plaintiffs have waived these arguments.

8 The California Supreme Court has granted review of two related 

cases involving the following legal question: “May the Governor concur 

in a decision by the Secretary of the Interior to take off-reservation land 

in trust for purposes of tribal gaming without legislative authorization or 

ratification, or does such an action violate the separation of powers 

provisions of the state Constitution?” United Auburn Indian Cmty. of 

the Auburn Rancheria v. Brown, No. S238544 (review granted Jan. 25, 

2017); Stand Up for California! v. State, No. S239630 (review granted 

Mar. 22, 2017) (briefing deferred pending decision in United Auburn).
22 CLUB ONE CASINO V. BERNHARDT

V

In summary, the Tribe’s jurisdiction over the Madera 

Parcel operates as a matter of law and the Tribe clearly 

exercised governmental power when it entered into 

agreements with local governments and enacted ordinances 

concerning the property. Because neither the Enclave 

Clause nor 40 U.S.C. § 3112 are implicated here, neither the 

State’s consent nor cession is required for the Tribe to 

acquire any jurisdiction over the Madera Parcel. Finally, 

IRA does not offend the Tenth Amendment because 

Congress has plenary authority to regulate Indian affairs. As 

such, we conclude that the Secretary’s actions were not 

“arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 5 U.S.C. § 706(2)(A); Alaska 

Oil & Gas, 815 F.3d at 554.

AFFIRMED.