With the Akela Flats trust acquisition, the Tribe removed gaming as a potential
use of the property. Resolution FSABC 99-14, Business Committee of the Fort Sill
Apache Tribe of Oklahoma (April 20, 1999); see also Letter from Omar C. Bradley,
Acting Area Director of the BIA Albuquerque Area Office, to Gary Johnson, Governor of
New Mexico (Aug. 11, 1999). Therefore, the Secretary had no occasion to decide
whether the Ft. Sill Apache Tribe and the Akela Flats property met any exceptions to
Section 2719 when the land was taken into trust. Rather, because the Tribe began gaming
on a parcel that had already been acquired into trust for non-gaming purposes, the matter
falls under the NIGC’s enforcement jurisdiction.

Paragraph 3 of the MOA directs whether the NIGC Office of General Counsel or
the DOI’s Office of the Solicitor, Division of Indian Affairs (“DIA”) will draft the legal
land opinions under certain scenarios, but it does not prohibit the NIGC Chairman from
seeking legal advice from the Office of General Counsel to determine, in an enforcement
context, whether there has been a violation of 25 U.S.C. § 2719 on existing trust lands.

More to the point, Paragraph 4 of the MOA states: “Regardless of whether the
DIA or OGC is drafting the opinion, prior to the opinion (or drafts) being released to
entities other than the DOI and the NIGC, the Solicitor must concur in any opinion that
provides legal advice relating to:

e The definition of “Indian lands;”
e The exceptions in 25 U.S.C. § 2719; or
e A tribe’s jurisdiction over Indian lands, or the boundaries of a tribe’s

reservation.”

20


federal regulations. As difficult as this case is, and as sympathetic as we are, the record
before us does not provided sufficient grounds to reverse the notice of violation.

The Tribe raises several arguments in its briefs. We will address each in turn and
explain why none provide a basis to vacate the NOV.

I. THE TRIBE’S PROCEDURAL RIGHTS HAVE NOT BEEN VIOLATED.
The Tribe argues that the NIGC’s investigation and appeal procedure was
arbitrary and capricious and violated the Tribe’s due process and sovereign rights. Tribe’s
Initial Brief at 2, 17-22. The record is clear, though, that the Tribe’s due process and

sovereign rights have been maintained at every step of this process.

The NIGC Chairman is authorized by IGRA to exercise enforcement powers to
ensure that gaming on Indian lands is not conducted in violation of the IGRA, NIGC
regulations, or a tribe’s own approved gaming ordinance. 25 U.S.C. §§ 2713(a), 2719(a).
It is well settled that when acting pursuant to its statute, an administrative agency is “free
to fashion [its] own rules of procedure and to pursue methods of inquiry capable of
permitting [it] to discharge [its] multitudinous duties.” FCC v. Schreiber, 381 U.S. 279,
290 (1965) (quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940)).

Before taking an enforcement action, the Chairman must investigate potential
violations to ensure that there are grounds for doing so. In this case, the investigation of
the Akela Flats facility was a necessary element of the Chairman’s duty under IGRA and
did not violate the Tribe’s due process or sovereign rights. Before the present NOV was
issued, NIGC investigators carried out a brief investigation at Akela Flats simply to
ascertain and document whether the Tribe was conducting gaming on the parcel. The

investigation involved nothing more than a short visit by NIGC investigators to confirm

14


of Akela Flats. But that, according to the Supreme Court, does not amount to a retroactive
application of the rule.

We also find that the regulations’ grandfathering provisions at 25 C.F.R.

§ 292.26(a) does not offer the Tribe an exemption that allows gaming. That exemption
states that the regulations “do not alter final agency decisions made pursuant to 25 U.S.C.
2719 before the date of enactment of these regulations.” 25 C.F.R. § 292.26(a). In this
case, however, there was no final agency decision from either DOI or NIGC pursuant to
Section 2719 issued prior to the effective date of the regulations. The Tribe had at least
two opportunities to obtain a final agency action pursuant to Section 2719 before Part 292
went into effect. It could have kept gaming as an intended use of the property during the
trust acquisition process, which would have caused the Secretary to make a decision
concerning gaming eligibility in 2002. Alternatively, the Tribe could have kept its site-
specific ordinance with the NIGC Chairman for a decision in May 2008 — three months
before the DOI’s regulations went into effect. But the Tribe chose to forego those options
and began gaming on the parcel without the benefit of a prior federal agency
determination concerning gaming eligibility of the lands. No such prior agency
determination was required, but the lack of a final agency action applying Section 2719
makes the grandfathering provision in 25 C.F.R. § 292.25(a) unavailable.

We do, however, find that the regulations do not apply to the Akela Flats parcel
due to the grandfathering provision in 25 C.F.R. § 292.26(b), which states that the
regulations do not apply when the DOI or the NIGC has issued an Indian lands opinion
prior to the effective date of the regulations. The NIGC’s May 2008 Opinion was issued

prior to the effective date of the regulations, and, therefore, the regulations do not apply.

24


Secretarial two-part determination and restored lands exception under IGRA Section 20,
25 U.S.C. § 2719. Id.

On December 6, 2007, the Tribe issued a license for a gaming facility to be
opened at Akela Flats. See Fort Sill Apache Gaming Commission Operators Gaming
License (Dec. 6, 2007). This license was signed by Benedict Kawaykla, Gaming
Commission Chairman, and Jeff Houser, Tribal Chairman. /d.

The NIGC became aware of the Tribe’s plan to open a gaming facility in New
Mexico on or around January 10, 2008. See E-mail from Phil Hogen to Penny J.
Coleman, Esther Dittler, Cesar Valdez, Ken Billingsley, Tim E. Harper (Jan. 10, 2008).
On January 18, 2008, the NIGC wrote to the Tribe and requested certain information
about the site, including “[t]he Tribe’s legal analysis supporting why the property
qualifies as ‘Indian lands’ see 25 U.S.C. § 2703(4), and why gaming is not prohibited on
the site by IGRA’s general prohibition against gaming on ‘after-acquired’ lands.” Letter
from Esther Dittler, NIGC Staff Attorney, to Jeff Houser, Chairman of the Ft. Sill Apache
Tribe (Jan. 18, 2008).

On February 1, 2008, the Fort Sill Apache Gaming Commission wrote to the
NIGC, stating that it “asked the Tribe to not present the requested information [to the
NIGC] until the Tribal Gaming Commission has made a determination on the Indian
Lands question and Section 2719 questions.” Letter from Benedict Kawaykla, Chairman
of the Fort Sill Apache Gaming Commission, to Philip Hogen, Chairman of the NIGC
(Feb. 1, 2008).

On February 6, 2008, representatives of the Tribe met in Washington, D.C. with

the NIGC. See Letter from Penny J. Coleman, Acting General Counsel of the NIGC, to


Because the Office of General Counsel’s two opinions in this matter provided legal
advice relating to the exceptions in 25 U.S.C. § 2719, Paragraph 4 of the MOA required
the Solicitor’s concurrence, which the NIGC obtained. See Letter from Scott Keep,
Acting Associate Solicitor, DOI Office of the Solicitor, to Penny Coleman, NIGC Acting
General Counsel (May 15, 2008); Letter from Arthur E. Gary, DOI Acting Solicitor, to
Penny Coleman, NIGC Acting General Counsel (April 23, 2009).

The Tribe makes a related argument when it claims that the DOI has already
determined the status of the Akela Flats property and the NIGC is bound by that decision.
Reply Brief of the Fort Sill Apache Tribe of Oklahoma to Response of State of New
Mexico at 2 (May 3, 2010) (“Reply Brief”). The Tribe argues that any further
administrative proceedings before the Commission are therefore superfluous. /d.
However, the Tribe does not withdraw its appeal.

The “determination” the Tribe is referring to is a letter from Pilar Thomas, DOI
Deputy Solicitor — Indian Affairs, who wrote in response to the Tribe’s request that the
Secretary review the NIGC Indian lands opinions for consistency with the Comanche
Nation settlement agreement. In the response, Ms. Thomas noted that because the Tribe
raised legal questions, she was responding on the Secretary’s behalf, but that she was
declining to re-evaluate the status of the Akela Flats property. Letter from Pilar Thomas,
DOI Deputy Solicitor — Indian Affairs, to Jeff Houser, Chairman of the Fort Sill Apache
Tribe (March 5, 2010). This, according to the Tribe, constitutes a final land determination
from the Secretary that is binding on the NIGC. Reply Brief at 2. The Tribe, however,

misconstrues the letter and its legal significance.

21


Indians y. Office of the U.S. Attorney for the W.D. Mich., 369 F.3d 960, 967 (6th Cir.
2004) (“Grand Traverse”).

The May 2008 Opinion concluded that the Tribe’s evidence failed to support its
claim that the imprisonment of its ancestors as prisoners of war amounted to a
termination of the government-to-government relationship. May 2008 Opinion at 16-17.
The Department of the Interior’s Solicitor’s office concurred in that opinion. Over the
course of this appeal, though, the Tribe offered additional evidence to support its
argument that the tribe was terminated by its years of imprisonment. We have reviewed
this material and acknowledge that it chronicles a sorrowful time during which the Tribe
was unable to exercise the full extent of its rights as a government. Unfortunately,
though, even if this additional evidence did lead us to find that the imprisonment by the
United States was a de facto termination of the tribe, it does not change the overall
determination that the land does not meet the restored lands exception.

As set forth above, in addition to showing the loss and restoration of federal
recognition, the Tribe must also show that the land was taken into trust as part of that
restoration. To do so, Courts look to three factors: the factual circumstances of the
acquisition, the location of the acquisition, and the temporal relationship of the
acquisition to the tribal restoration. The May 2008 Opinion thoroughly discussed these
factors and concluded that they did not fully support the Tribe’s claim to restored lands.
May 2008 Opinion at 18-27. On review of the additional material supplied by the Tribe
on appeal, we concur with that finding.

The April 2009 Opinion reached this conclusion under DOI’s Part 292 regulations

and in consideration of the historical facts as set forth in the Comanche Nation settlement

27


into trust after October 17, 1988. By their terms, with two grandfathering exceptions
discussed below, the Part 292 regulations “apply to final agency action taken after the
effective date of these regulations .. . .” 25 C.F.R. § 292.26(b). The Part 292 regulations
went into effect on August 25, 2008. 73 Fed. Reg. 35,579 (June 24, 2008). The Tribe
opened its gaming operation on or about April 9, 2009, and the Chairman issued NOV-
09-35 on July 21, 2009. Technically, the final agency action in this case is this
Commission’s decision on appeal, which theoretically could create a dilemma if we were
reviewing an action that occurred before the effective date of the regulations. Fortunately,
we are not troubled by the prospect of a retroactive application of the rule because the
Tribe had not yet conducted any gaming activities on Akela Flats when the regulations
took effect.

The Tribe argues that the timing of the settlement agreement in Comanche Nation
is the operative date in question. Tribe’s Initial Brief at 28. For that to be true, the
settlement agreement must have vested the Tribe with the right to conduct gaming at
Akela Flats. But the settlement agreement does not make that promise. Nor does the
settlement agreement say that Akela Flats (or any parcel for that matter) qualifies for any
exception in 25 U.S.C. § 2719. At most, the settlement agreement sets forth several facts
concerning the Tribe’s history that might otherwise be subject to some debate. Arguably,
those facts may have fit better into a legal analysis under the landscape that existed
pursuant to the statute and case law before the Part 292 regulations went into effect. But
even assuming that to be true, it is not enough to show retroactivity. At most the

regulations may have unsettled the Tribe’s expectations regarding the gaming eligibility

23


The Tribe claims that CRIT prohibits the NIGC from relying on its own Indian
lands determination because, according to CR/T, NIGC enforcement powers must derive
from specific authority granted by IGRA. Tribe’s Initial Brief at 28. The Chairman was
not allowed to make an Indian lands determination, according to the Tribe, because he is
not specifically authorized to do so by IGRA.

The Tribe’s argument misapprehends the agency action in this case. The Indian
lands opinions were not agency actions, but rather necessary elements of an enforcement
action for violation of a specific statutory prohibition involving the status of Indian lands.
The NIGC Chairman is explicitly given the authority to take enforcement actions for
violations of IGRA. 25 U.S.C. § 2713. Before the NOV can issue, though, the Chairman
must verify that the NIGC has jurisdiction, which is limited to Indian lands, and that a
violation has occurred, thus requiring an analysis of the potential Section 2719
exceptions. Therefore, the authority to make that determination is derived from the
Chairman’s specific authority to enforce IGRA, including Section 2719, and is perfectly
consistent with the holding in CRIT.

The Tribe also argues that IGRA gives the Tribal Gaming Commission the
exclusive authority to determine the Indian lands status of the Tribe’s potential gaming
sites. Tribe’s Initial Brief at 23. The Tribe argues that the decision was made pursuant to
§ 2710(a) of IGRA, which states: “Class II gaming on Indian lands shall continue to be
within the jurisdiction of the Indian tribes.” 25 U.S.C. § 2710(a). This, according to the
Tribe, means that the Tribal Gaming Commission has the exclusive authority to decide

the land’s gaming eligibility. We disagree.

18


Richardson’s Petition to Intervene in Fort Sill Apache Tribe’s Appeal From
Commissioner Hogen’s Notice of Violation Filed Herein on August 20, 2009, In re Fort
Sill Apache Tribe of Okla. NOV-09-35 (NIGC Aug. 31, 2009). The Tribe objected to the
State’s participation as a party. Fort Sill Apache Tribe’s Opposition to State of New
Mexico and Governor Bill Rachardson’s [sic] Petition to Intervene, Jn re Fort Sill Apache
Tribe of Okla. NOV-09-35 (NIGC Oct. 19, 2009); Fort Sill Apache Tribe’s Reply to the
State of New Mexico’s Response to the Tribe’s Opposition to State of New Mexico and
Governor Bill Rachardson’s [sic] Petition to Intervene, In re Fort Sill Apache Tribe of
Okla, NOV-09-35 (NIGC Nov. 2, 2009). After reviewing the Parties’ briefings on the
intervention, the Commission granted the State’s petition. Letter from Michael Gross,
Appellate Counsel for the Commission, to Jeff Houser, Chairman of the Fort Sill Apache
Tribe and C. Shannon Bacon, Special Assistant Attorney General for State of New
Mexico, Re: Ft. Sill appeal of NOV 09-35, motion to intervene and briefing schedule
(Sept. 18, 2009); Order on Reconsideration Granting State’s Petition to Intervene, In re ~
Fort Sill Apache Tribe of Okla. NOV-09-35 (NIGC Nov. 20, 2009).

The Commission set forth a briefing schedule and amended it several times to
grant the parties’ requests for extensions. Letter from Michael Gross, Appellate Counsel
for the Commission, to Jeff Houser, Chairman of the Fort Sill Apache Tribe and C.
Shannon Bacon, Special Assistant Attorney General for State of New Mexico, Re: Ft. Sill
appeal of NOV 09-35, motion to intervene and briefing schedule (Sept. 18, 2009); Order
on Procedural Motions, Jn re Fort Sill Apache Tribe of Okla. NOV-09-35 (NIGC Oct. 8,
2009); Order on Motion for Modification of Briefing Schedule, /n re Fort Sill Apache

Tribe of Okla. NOV-09-35 (NIGC Nov. 24, 2009); Order on Third Request for

10


Certificate of Service

Thereby certify that on May 6, 2015, I served the foregoing Final Decision and Order In
the Matter of Fort Sill Apache Tribe of Oklahoma Appeal of NOV-09-05 by facsimile
and certified mail on:

Jeff Haozous, Chairman

Fort Sill Apache Tribe of Oklahoma
Route 2, Box 121

Apache, Oklahoma 73507

Fax: (580) 588-3133

Lisa Davis, Chair

Fort Sill Gaming Commission
1914A East Gore Blvd.
Lawton, Oklahoma 73502
Fax: (580) 354-1500

Stephen Blankenship

General Counsel to the Honorable Susana Martinez
Governor of the State of New Mexico

490 Old Santa Fe Trail, Suite 400

Santa Fe, New Mexico 87501

Fax: (505) 476-2226

I hereby certify that on May 6, 2015, I served the foregoing Final Decision and Order by
hand delivery on:

John Hay

Counsel to NIGC Chairman

National Indian Gaming Commission
1441 L St. NW

Suite 9100

Washington, DC 20005

Thereby certify that on May 6, 2015, I served the foregoing Final Decision and Order by
e-mail delivery on:

Phillip E. Thompson Robert Prince

Counsel for Fort Sill Apache Tribe Counsel for Fort Sill Apache Tribe
philliptho@comcast.net lawyers2@sbeglobal.net

Alan Fedman

Counsel for the Fort Sill Apache Tribe
alan.fedman@dentons.com


Chairman’s decision that the Akela Flats property does not qualify for the initial
reservation exception.

D. Last Recognized Reservation

The final IGRA exception claimed by the Tribe allows gaming on newly acquired
trust lands where a tribe had no reservation as of October 17, 1988 and “such lands are
located in a State other than Oklahoma and are within the Indian tribe’s last recognized
reservation within the State or States within which such Indian tribe is presently located.”
25 U.S.C. § 2719(a)(2)(B); Tribe’s Initial Brief at 45-46; Tribal Gaming Commission
Memo at 9-12 (Feb. 22, 2008).

The May 2008 Opinion concluded that the Akela Flats parcel does not qualify as
the Tribe’s last recognized reservation because the Tribe was not presently located in
New Mexico and because the Tribe failed to demonstrate that Akela Flats was within any
recognized reservation, much less the Tribe’s last recognized reservation. We adopt the
reasoning and conclusions found therein with the following notations. First, we note that
our analysis of the last recognized reservation exception has evolved since the NOV was
issued to the Tribe. Prior to DOI’s adoption of the Part 292 regulations, the NIGC used
the analysis laid out in the case Wyandotte Nation v. National Indian Gaming
Commission, 437 F. Supp. 2d 1193 (D. Kan. 2006), which found that a Tribe is
“presently located” where a Tribe has its “population center and major governmental
presence.” With the Part 292 regulations, though, those determining factors were made
less stringent, and a tribe must now show that it is “located in a State other than
Oklahoma and within the tribe's last recognized reservation within the State or States

within which the tribe is presently located, as evidenced by the tribe's governmental

30


then constructing a gaming casino was not gaming eligible. Letter from Penny J.
Coleman, Acting General Counsel of the NIGC, to Jeff Houser, Chairman of the Fort Sill
Apache Tribe (Feb. 27, 2008). Ms. Coleman’s letter stated: “While I have not finished
my review, I believed it necessary to advise you of my initial views so that the Tribe can
consider whether it wishes to risk enforcement action by the Chairman of the National
Indian Gaming Commission.” /d. She concluded her letter by strongly encouraging the
Tribe not to open the gaming facility that was under construction without a Secretarial
two-part determination. Id.

By letter dated March 7, 2008, received March 10, 2008, the Tribe submitted an
amended gaming ordinance to the NIGC specifying the Akela Flats property as a gaming
site. Letter from Jeff Houser, Chairman of the Fort Sill Apache Tribe, to Philip Hogen,
Chairman of the NIGC, Re: Fort Sill Apache Tribe Amended Gaming Ordinance (March
7, 2008). This action was taken in consultation with the NIGC’s Office of General
Counsel, presumably so the Tribe could obtain a reviewable decision of the NIGC
Chairman outside of an enforcement context. See Letter from Phillip E. Thompson, to
Penny Coleman, Acting General Counsel for the NIGC (Feb. 28, 2008). As part of the
ordinance review and in further development of its legal analysis, the NIGC Office of
General Counsel again asked the Tribe to supply more information in support of the
Tribe’s position, this time with specific requests for information tailored to the various
elements of the required analysis. Letter from Esther Dittler, NIGC Staff Attorney, to
Phillip E. Thompson (March 26, 2008).

The Tribe responded with legal analysis and supporting materials. Letter from

Phillip E. Thompson, Attorney for Fort Sill Apache Tribe, to Esther Dittler, NIGC Staff


Jeff Houser, Chairman of the Ft. Sill Apache Tribe (Feb. 7, 2008). During that meeting,
the NIGC reiterated its request for information regarding the site’s gaming eligibility. /d.

On February 15, 2008, the NIGC again requested that the Tribe provide
information and documentation supporting its claim that the Tribe’s Akela Flats property
was Indian lands upon which it may lawfully game under 25 U.S.C. §§ 2703(4) and
2719. Letter from Esther Dittler, NIGC Staff Attorney, to Phillip Thompson, Counsel for
Ft. Sill Apache Tribe (Feb. 15, 2008).

On February 22, 2008, the NIGC received an unsigned document titled
Memorandum in Support of Fort Sill Apache Tribal Gaming Commission Luna County,
New Mexico Gaming License (“Tribal Gaming Commission Memo”). Although it is not
clear from its face whether the Tribal Gaming Commission Memo is a final document
adopted by the Fort Sill Apache Gaming Commission, the Tribe’s Initial Brief discusses
the Tribal Gaming Commission Memo as an official action of the Tribal Gaming
Commission. Tribe’s Initial Brief at 24-26. In its memorandum, the Tribal Gaming
Commission sets forth a history of the Tribe, citing to the findings of fact contained in
several Indian Claims Commission decisions from 1968-1977, as well as a history of the
Tribe’s trust acquisition in New Mexico. Tribal Gaming Commission Memo at 2-6. The
Tribal Gaming Commission then sets forth a legal analysis, concluding that Akela Flats
property qualifies for two of the exceptions in IGRA that allow gaming on newly
acquired trust lands: the last recognized reservation exception and the restored lands
exception. /d. at 8-18.

On February 27, 2008, the NIGC’s Acting General Counsel sent a letter to the

Tribe stating her preliminary view that the Akela Flats property on which the Tribe was


While it is true that IGRA recognizes and confirms tribal jurisdiction over Class IT
gaming on Indian lands, it also states that such jurisdiction “shall be subject to the
provisions of this chapter.” 25 U.S.C. § 2710(a)(2). IGRA established the NIGC as the
federal regulatory agency to oversee Indian gaming and provided the Chairman with
authority to enforce its provisions, subject only to administrative appeal to the full
Commission and judicial review in federal court. 25 U.S.C. §§ 2713, 2714. The Tribe’s
jurisdiction is therefore subject to the NIGC’s regulatory authority to enforce IGRA,
including IGRA’s prohibition against gaming on lands acquired after October 17, 1988.
25 U.S.C. § 2719(a). The NIGC has solicited and considered the Tribe’s legal views, but
nothing in IGRA mandates that the NIGC must now defer to the Tribe’s interpretation of
the statute.

Nor do we agree with the Tribe that the memorandum of agreement entered into
by the NIGC and the Department of the Interior (“DOI”) on January 14, 2009 (“MOA”)
restricts the Chairman from making an Indian lands determination in the context of an
action to enforce 25 U.S.C. § 2719. The Tribe rests its argument primarily on Paragraph |
of the MOA, which states that “whether a tribe meets one of the exceptions in 25 U.S.C.
§ 2719... is a decision made by the Secretary when he or she decides to take land into
trust or restricted fee for gaming.” Tribe’s Initial Brief at 31-32 (quoting MOA § 1). The
Tribe reads this to mean that any decision about whether Akela Flats qualifies as
“restored lands” rests entirely within the jurisdiction of DOI. But by its terms, the
language in question applies to decisions of the Secretary to take land into trust for

gaming, and it is inapplicable here.

19


On or about April 9, 2009, the Tribe opened a gaming facility and conducted
gaming activities on its Akela Flats property. See Declaration of Ronald Ray, NIGC
Senior Field Investigator, Exhibit 4 (July 16, 2009). Gaming activities observed by NIGC
enforcement staff consisted of paper bingo games. See Declaration of Ken Billingsley,
Region Director for the Phoenix Region of the NIGC (June 10, 2009); Declaration of
Ronald Ray, NIGC Senior Field Investigator (July 16, 2009).

On April 30, 2009, the NIGC Office of General Counsel issued a supplement to
the May 2008 Opinion in order to address whether anything in the Comanche Nation
settlement agreement required a change in the original legal analysis. Memorandum from
Penny J. Coleman, NIGC Acting General Counsel, to Philip N. Hogen, NIGC Chairman
(April 30, 2009) (“April 2009 Opinion”). The April 2009 Opinion concluded that even
considering the agreed-upon facts in the Comanche Nation settlement agreement, the
Akela Flats property still did not qualify for gaming under IGRA.

On July 21, 2009, the NIGC Chairman adopted the Office of General Counsel’s
opinions and issued NOV-09-35 to the Tribe for gaming on Indian lands not eligible for
gaming under the IGRA. The Tribe filed a timely appeal. Letter from Jeff Houser,
Chairman of the Fort Sill Apache Tribe, to the National Indian Gaming Commission
(Aug. 20, 2009). The Tribe also waived its right to a hearing before a presiding official,
electing instead to allow this matter to proceed directly to the full Commission for a
decision on the parties’ briefs. Letter from Jeff Houser, Chairman of the Fort Sill Apache
Tribe, to Jo-Ann Shyloski and Melissa Schlichting, NIGC (Sept. 9, 2009).

Governor Bill Richardson and the State of New Mexico (collectively “the State”)

petitioned to intervene in the appeal. The State of New Mexico’s and Governor Bill


This in itself does not mean, however, that the Chairman erred in issuing the NOV at
issue here. The purpose of § 292.26(b) is to protect tribes that may have relied on a
positive Indian lands opinion issued under the legal landscape that existed prior to the
Part 292 regulations. The preamble to the final rule explains that under 5 292.26(b), “the
Federal Government may be able to follow through with its prior legal opinions and take
final agency actions consistent with those opinions, even if these regulations now have
created a conflict.” The preamble further explains that the “regulations will not affect the
Department's ability to qualify, modify or withdraw its prior legal opinions.” 73 Fed.
Reg. at 29,372. Here the May 2008 Opinion concluded that the land is not eligible for
gaming. As such, the Tribe has no positive opinion on which to rely. Moreover, because
the Chair’s decision to issue the NOV was based, in part, on the May 2008 opinion, the
reliance on the Part 292 regulations in the April 2009 Opinion, and the Chairman’s partial
reliance on that Opinion, is not grounds for overturning the NOV.
Iv. THE AKELA FLATS PROPERTY DOES NOT QUALIFY FOR ANY
EXCEPTIONS TO THE GENERAL PROHIBITION AGAINST GAMING
ON NEWLY ACQUIRED LANDS.

The Commission wishes to reiterate that we appreciate the history of hardship and
suffering endured by the Ft. Sill Apache’s ancestors, as well as the fact that such history
now puts the present-day Tribe in a difficult position vis-a-vis its desire to operate a
gaming facility in New Mexico. Though we are sympathetic to the Tribe and its attempts
to expand its economic development opportunities, we concur with and adopt the
reasoning and conclusions of the May 2008 Opinion. In doing so, however, we wish to
reiterate that we are not commenting upon, or passing judgment on, the Tribe’s ties to its

ancestral homelands in New Mexico, nor are we ruling on the status of the Tribe’s Akela

25


National Indian Gaming Commission

In the matter of:
Final Decision and Order
Fort Sill Apache Tribe of Oklahoma

Appeal of NOV- 09-35 May 5, 2015

wee se er

On appeal to the National Indian Gaming Commission (“NIGC” or
“Commission”) from a notice of violation issued by the Chairman of the NIGC to the
Fort Sill Apache Tribe of Oklahoma (“Tribe”) for gaming on ineligible Indian lands in
violation of 25 U.S.C. § 2719.

DECISION AND ORDER

After a full review of the agency record and the briefs filed on appeal, the
Commission finds and orders that:

1. The Indian Gaming Regulatory Act (““IGRA”), 25 U.S.C. § 2701 et seq., permits a
tribe to operate Class II gaming only on Indian lands as defined by IGRA. 25
U.S.C. § 2710(b).

2. IGRA defines Indian lands to mean (A) all lands within the limits of any Indian
reservation and (B) 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 an Indian tribe or
individual subject to restriction by the United States against alienation and over
which an Indian tribe exercises governmental power. 25 U.S.C. § 2703(4).

3. IGRA prohibits gaming on Indian lands acquired in trust for the benefit of a tribe
after October 17, 1988, unless one of a number of exceptions applies. 25 U.S.C.

§ 2719.


Supplemental Information, and the Tribe filed its reply on August 26, 2011, thus
completing the scheduled briefings. Memorandum in reply to State of NM’s response to
Ft. Sill Apache Tribe: Akela Flats Supplemental Information (August 26, 2011).

We acknowledge that four years is outside the normal range of time for deciding
appeals before the Commission. This matter, though, asserted a number of grounds for
appeal and raised particularly complex issues to resolve. The Commission has thoroughly
reviewed all the materials, and this matter is now ready for the Commission’s decision.

HISTORICAL BACKGROUND

Over the course of this matter, the Tribe has submitted several documents laying
out the history of the Fort Sill Apache Tribe of Oklahoma. The Tribe’s ancestors, the
Chiricahua and Warm Spring Apache Tribes (hereafter referred to collectively as “the
Chiricahua Apache”), once occupied a large area of the southwest United States,
including the area that would become known as Akela Flats. Eventually, the United
States attempted to move the Tribe onto reservations. While some moved onto the
reservations peaceably, others resisted, including the renowned Apache warrior
Geronimo. Tribe’s Initial Brief at 5; Memorandum in Support of Fort Sill Apache Tribal
Gaming Commission Luna County, New Mexico Gaming License at 2 (Feb. 22, 2008)
(“Tribal Gaming Comm’n Memo”).

After many years of fighting, Geronimo and his followers eventually surrendered
in 1886. The United States government then decided that in response to Geronimo’s
resistance, every Chiricahua Apache man, woman, and child would be taken from the
Southwest, moved to military forts in the southeastern United States, and made prisoners

of war—including men who had served the U.S. military as scouts against Geronimo.

12


Modification of Briefing Schedule, Jn re Fort Sill Apache Tribe of Okla. NOV-09-35
(NIGC Jan. 15, 2010); Letter from Michael Gross, Appellate Counsel for the
Commission, to C. Shannon Bacon, Special Assistant Attorney General for State of New
Mexico, Re: Ft. Sill Apache Tribe of Oklahoma, Appeal of NOV-09-35, Request for an
extension of time (Feb. 12, 2010).

On January 25, 2010, the Tribe submitted an initial brief with supporting
materials. Initial Brief of Fort Sill Apache Tribe of Oklahoma on Appeal from NOV-09-
35 (Jan. 25, 2010) (“Tribe’s Initial Brief”). The NIGC Chairman elected to forego
submission of a brief. Chairman’s Response to the Fort Sill Apache Tribe of Oklahoma’s
Substitute Initial Brief (Feb. 22, 2010). The State submitted a response brief. The State of
New Mexico and Governor Bill Richardson’s Response to Fort Sill Apache Tribe of
Oklahoma’s Initial Brief Regarding the Appeal from NOV-09-35 (April 2, 2010). The
Tribe submitted a reply to the State’s brief. Reply Brief of Fort Sill Apache Tribe of
Oklahoma to Response of State of New Mexico (May 3, 2010). On September 29, 2010,
the Tribe filed a motion to stay the proceeding for 120 days so that the Tribe could
introduce additional evidence into the record. Motion to Stay Proceedings to Allow
Introduction of Additional Evidence; And to Permit Department of Interior to Consider
Additional Material Bearing Upon Application of Post 1988 Exceptions To Tribal Trust
Lands (September 29, 2010). The Tribe’s Motion was granted on October 6, 2010. Order
in Response to Motion to Stay (October 6, 2010). On January 5, 2011, the Tribe filed its
supplemental information with the Commission, Ft. Sill Apache Tribe: Akela Flats
Supplemental Information (January 5, 2011), the State of New Mexico filed its response

on July 6, 2011, State of New Mexico’s Response to Fort Sill Apache Tribe: Akela Flats

11


May 2008 Opinion discusses, although the Akela Flats parcel is within the Tribe’s
ancestral homelands, the Tribe has not demonstrated that Akela Flats is within the bounds
of the Tribe’s last reservation.

In its briefs, the Tribe cites to definitions of “reservation” found in other statutes
and regulations, and argues that the Akela Flats parcel is on land that could have met any
of those definitions. The Commission does not administer the statutes and regulations
cited to by the Tribe, and would not presume to interpret the definitions found therein.
We note, however, that other than simply stating that the Tribe’s land in New Mexico
would meet any of these definitions of reservation, the Tribe offers no analysis as to
whether the varying definitions of reservation as found in other laws and regulations can
or should be applied in the context of IGRA. We therefore uphold the Chairman’s
decision that the Akela Flats parcel does not meet IGRA’s “last recognized reservation
exception” to the prohibition against gaming on land taken into trust after October 17,
1988.

CONCLUSION

Given all of the foregoing, NOV-09-35 is upheld and made final for the
Commission.

It is so ordered by the NATIONAL INDIAN GAMING COMMISSION on this

5" day of May, 2015.

O40 Ve

(Ofodev O. Chaudfuri ~~ Danie( J. Little
airman Commissioner

32


presence and tribal population.” 25 C.F.R. § 292.4(b). Thus, the plain language of the
regulation dictates that a tribe may demonstrate that it is “presently located” in a state or
states by showing a governmental presence and tribal population there. There is no longer
a need to show a “major” governmental presence” or a “population center.” See Letter
from Eric N. Shepard, NIGC Acting General Counsel, to Steven R. Ward (November 21,
2014).

As discussed earlier in this opinion, though, we cannot apply the Part 292
regulations to the Akela Flats parcel, but must instead analyze the exception pursuant to
the pre-Part 292 Wyandotte test.

Furthermore, on administrative appeal of an NOV for illegal gaming activities,
the question of whether the Tribe qualifies for any Section 2719 exception must be
answered as of the time of the gaming activities that were subject to the NOV—in this
case April 2009. Since the May 2008 Opinion was written almost a year prior to the
gaming activity at issue here, we reviewed the Tribe’s submissions on appeal to
determine whether the Tribe introduced any evidence of relocation actions taking place
between May 2008 and April 2009 that would have added support to the Tribe’s claim of
being presently located in New Mexico. We find that the Tribe’s submissions on
administrative appeal failed to overcome the conclusion reached in the May 2008
Opinion and that as of April 2009, the Tribe still was not located in New Mexico for
purposes of Section 2719(a)(2)(B).

Regardless of whether we use the Wyandotte analysis, though, or the Part 292
regulations, the ultimate outcome is unchanged due to the fact that the Akela Flats Parcel

is not within the bounds of the Tribes last recognized reservation in New Mexico. As the

31


Attorney (April 7, 2008). But instead of waiting to receive a decision on its site-specific
gaming ordinance, the Tribe withdrew its ordinance from review. Letter from Jeff
Houser, Chairman of the Fort Sill Apache Tribe, to Philip Hogen, Chairman of the NIGC
(May 19, 2008).

On the very same day that the Tribe withdrew its ordinance submission, the NIGC
Office of General Counsel finalized an opinion to the NIGC Chairman stating that the
Tribe’s Akela Flats property did not qualify for gaming under IGRA because of the
general prohibition against gaming on newly acquired trust land and the lack of an
applicable exception. Memorandum from Penny J. Coleman, NIGC Acting General
Counsel, to Philip N. Hogen, NIGC Chairman (May 19, 2008) (“May 2008 Opinion”).
But because the Tribe withdrew the subject gaming ordinance, neither the Chairman nor
the Commission had the opportunity at that point in the proceedings to take any formal
agency action.

On July 31, 2008, the Tribe filed a supplement to a motion in an existing case
before the United States District Court for the Western District of Oklahoma to which the
Commission was not a party. In that filing, the Tribe claimed that the May 2008 Opinion
breached a settlement agreement the Tribe had entered into with the United States.
Supplemental Brief in Support of Motion by Fort Sill Apache Tribe of Oklahoma for
Enforcement of Agreement of Compromise and Settlement, Comanche Nation v. United
States, No. CIV 05-328-F (W.D. Okla. July 31, 2008).

The court in Comanche Nation held a hearing and determined that the May 2008
Opinion did not violate the settlement agreement because it was not a final agency action.

Order, Comanche Nation v. United States, No. CIV 05-328-F (W.D. Okla. Oct. 7, 2008).


The Deputy Solicitor’s letter is not a final lands determination. In fact, it is not
even a legal opinion. It simply declines the Tribe’s request to issue one and restates the
DOI’s earlier concurrence with the NIGC’s Indian lands opinions. In short, there is no
decision in the letter to which the Commission could be bound.

Il. | PART 292 DOES NOT APPLY TO THE ACTION HERE

The Tribe next contends that the DOI’s regulations at 25 C.F.R. Part 292 do not
apply to the Akela Flats property. Tribe’s Initial Brief at 28. The Tribe claims that
because the Part 292 regulations went into effect after the Comanche Nation settlement
agreement was signed, our application of the Part 292 regulations to the Akela Flats
parcel is retroactive and impermissible. In the alternative, the Tribe claims that the
regulations themselves contain an exemption that prohibits their application to the Tribe’s
land at Akela Flats. We reject the Tribe’s first argument that the regulations are
retroactive as applied to the Tribe’s gaming at Akela Flats, but agree that the regulation
contains an exemption as to the Akela Flats parcel.

A retroactive law attaches new legal consequences to events completed before its
enactment. Landgraf v. USI Film Products, 511 U.S. 244, 269-70 (1994). In Landgraf,
the Supreme Court stated that a law is not to be deemed retroactive if it merely unsettles
expectations or imposes burdens on past conduct. Jd. at n.21. In its explanation, the Court
included an example that strikes close to home: “a new law banning gambling harms the
person who had begun to construct a casino before the law’s enactment or spent his life
learning to count cards.” /d. But such a law, according to the Court, is not retroactive. /d.

The Part 292 regulations do not ban gambling. But they do affect the federal

government’s analysis of whether a tribe may conduct gambling activities on land taken

22


agreement. Although as discussed above, the regulations should not have been applied to
the Akela Flats parcel, such application does not warrant overturning the NOV as the
May 2008 opinion’s analysis of the “restored lands exception” used the test set forth in
Grand Traverse.

B. Settlement of a Land Claim

IGRA also allows gaming on newly acquired trust lands “taken into trust as part
of... a settlement of a land claim.” 25 U.S.C. § 2719(b)(1)(B)(i); 25 C.F.R. § 292.5. The
Tribe argues that this exception applies by virtue of the settlement agreement reached in
the Comanche Nation litigation. Tribe’s Initial Brief at 42.

The May 2008 Opinion, however, noted that the Akela Flats property was not
taken into trust as part of the Comanche Nation settlement. May 2008 Opinion at 2 n.1.
Rather, the opinion notes that the Akela Flats property was taken into trust on June 26,
2002, several years prior to the execution of the Comanche Nation settlement agreement.
Id. We hereby adopt the reasoning and conclusion in the May 2008 opinion that: “The
settlement of a land claim exception requires that land be taken into trust as part of a
settlement of a land claim. As the [Akela Flats] land was taken into trust prior to the date
the settlement was executed, this exception is not applicable.” /d. Because the Akela Flats
property was not taken into trust under any settlement, it cannot qualify for this
exception.

c. Initial Reservation

The third Section 2719 exception raised by the Tribe permits gaming on newly

acquired trust land that was taken into trust as part of “the initial reservation of an Indian

28


determination, effectively blocking that option for the Tribe. See Letter from Gary E.
Johnson, Governor of New Mexico, to Robert Baracker, Area Director of the BIA
Albuquerque Area Office, Re: Acquisition of New Mexico Land by Fort Sill Apache
Tribe of Oklahoma for Off-Reservation Gaming Activities (April 1, 1999).

In response, the Tribe adopted a resolution to remove gaming as an intended use
of the property, declaring instead that the purpose of the trust acquisition would now be
to “engage in business opportunities to assist their repatriation of their Sacred Lands in
New Mexico ....” Resolution FSABC 99-14, Business Committee of the Fort Sill
Apache Tribe of Oklahoma (April 20, 1999); see also Letter from Omar C. Bradley,
Acting Area Director of the BIA Albuquerque Area Office, to Gary Johnson, Governor of
New Mexico (Aug. 11, 1999).

As a result of the resolution, the DOI processed the trust application without an
IGRA analysis, relying on the Tribe’s stated intent that the site would not be used for
gaming purposes. Letter from Ethel J. Abeita, Acting Regional Director, BIA Southwest
Region, to Ruey R. Darrow, Chairwoman of the Fort Sill Apache Tribe (July 23, 2001).
On June 26, 2002, the Akela Flats property was accepted into trust for the benefit of the
Tribe. Warranty Deed between Ft. Sill Apache Tribe (grantor) and the United States of
America, in trust for the Ft. Sill Apache Tribe (grantee) (app’vd June 26, 2002).

On April 7, 2006, the Tribe informed the BIA that it intended to conduct gaming
on its Akela Flats trust property. Letter from Jeff Houser, Chairman of the Ft. Sill Apache
Tribe, to Larry Morrin, Regional Director of the BIA Southwest Regional Office (April 7,

2006). In order to accomplish this purpose, the Tribe indicated that it would seek a


that the Tribe was indeed gaming at its Akela Flats facility. See Declaration of Ken
Billingsley, Region Director for the Phoenix Region of the NIGC (June 10, 2009);
Declaration of Ronald Ray, NIGC Senior Field Investigator (July 16, 2009). It was not
disruptive or overreaching and made no demands of the Tribe.

In addition, the record shows that the Tribe had ample opportunity to be involved
and be heard during the development of the NIGC Office of General Counsel’s two lands
opinions. See generally, Procedural Background, supra. In fact, the record shows that the
Office of General Counsel made repeated requests for the Tribe to support its position
that the Akela Flats property was gaming eligible. Letter from Esther Dittler, NIGC Staff
Attorney, to Jeff Houser, Chairman of the Ft. Sill Apache Tribe (Jan. 18, 2008); Letter
from Penny J. Coleman, Acting General Counsel of the NIGC, to Jeff Houser, Chairman
of the Ft. Sill Apache Tribe (Feb. 7, 2008); Letter from Esther Dittler, NIGC Staff
Attorney, to Phillip Thompson, Counsel for Ft. Sill Apache Tribe (Feb. 15, 2008); Letter
from Esther Dittler, NIGC Staff Attorney, to Phillip E. Thompson (March 26, 2008).
Pursuant to those repeated requests, the Tribe eventually did submit its legal analysis and
supporting materials. Tribal Gaming Commission Memo; Letter from Phillip E.
Thompson, Attorney for Fort Sill Apache Tribe, to Esther Dittler, NIGC Staff Attorney
(April 7, 2008). It is apparent that the Tribe was given ample opportunity to be heard
during the development of the legal opinions and the NOV.

In addition to allegations of arbitrary and capricious treatment throughout the
NOV process, the Tribe claims that its due process rights have been violated through the
appeal process. We disagree. “The fundamental requisite of due process of law is the

opportunity to be heard.” Goldberg v. Kelly, 397 U.S. 254 (1970). The Tribe has been

15


Finally, the Tribe claims that the involvement of multiple attorneys representing
the Chairman and the Commission confused the NOV and appellate processes. Tribe’s
Initial Brief at 18-19. As the Tribe itself admits, the matter of attorney reporting structure
does not prove arbitrary and capricious treatment. Tribe’s Initial Brief at 19. The NIGC
has been involved in this matter for a long time, and it should not be surprising to see
new attorneys being substituted for those who leave the NIGC or must be reassigned for
other reasons. Moreover, the NIGC ensures that the attorneys assigned to the
Commission during an administrative appeal are different than the attorneys who were
assigned to the matter through the NOV process and who represent the Chairman on
appeal. This is done in order to protect the respondent’s right to a fair and impartial
appeal. The involvement of multiple attorneys may make communication with the
NIGC’s Office of General Counsel more complicated, but it is done for good reason and
certainly is not grounds for vacating an NOV.

Il. THE COMMISSION IS NOT OBLIGATED TO DEFER TO THE TRIBE’S
INDIAN LANDS DETERMINATION.

The Tribe next claims that the NIGC does not have the authority to overrule the
Fort Sill Apache Tribal Gaming Commission’s Indian lands determination as set forth in
the February 22, 2008 Tribal Gaming Commission Memorandum. Tribe’s Initial Brief at
23. That authority, according to the Tribe, is restricted by the requirements of IGRA, a
memorandum of agreement between the NIGC and the Department of the Interior
(“DOI”), and Colorado River Indian Tribes v. NIGC, 383 F. Supp. 2d 123 (D.D.C. 2005),
aff'd, 466 F.3d 134 (D.C. Cir. 2006) (“CRIT”). The Tribe’s claims notwithstanding, the
NIGC has the authority to enforce Section 2719 of IGRA, and in so doing, the Chairman.

need not defer to the Tribe’s interpretation of the federal statute.

17


PROCEDURAL BACKGROUND

The record indicates that the Fort Sill Apache Tribe has been working toward a
goal of gaming on its Akela Flats property for quite some time. The Tribe’s original fee-
to-trust application for Akela Flats, submitted in 1998, evidenced a clear intent that the
Tribe wished to conduct gaming activities on the land. Resolution FSABC-98-26,
Business Committee of the Fort Sill Apache Tribe of Oklahoma (Feb. 14, 1998)
(requesting trust acquisition of Akela Flats for gaming purposes); Letter from Donald E.
Whitener, Acting Area Director of the Bureau of Indian Affairs (“BIA”) Albuquerque
Area Office, to Ruey R. Darrow, Chairwoman of the Fort Sill Apache Tribe, Re: Fort Sill
Apache Tribe’s application to transfer land into trust for gaming purposes (Jan. 27, 1999).

Unfortunately for the Tribe, the legal landscape has not offered a clear path
toward that goal. Under 25 U.S.C. § 2719, gaming is prohibited on lands acquired into
trust after October 17, 1988 unless the land qualifies for one of the statutory exceptions
contained within that section. Under the original trust application, the Tribe pursued the
exception commonly known as a two-part determination, 25 U.S.C. § 2719(b)(1)(A),
which requires the Secretary of the Interior to determine that the proposed gaming
establishment would be in the best interest of the Indian tribe and its members 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 that determination. See Letter
from Donald E. Whitener, Acting Area Director of the BIA Albuquerque Area Office, to
Ruey R. Darrow, Chairwoman of the Fort Sill Apache Tribe, Re: Fort Sill Apache Tribe’s
application to transfer land into trust for gaming purposes (Feb. 4, 1999). The Governor

of New Mexico, however, made it clear that he would not concur with any such


Flats property as Indian lands. We do not take today’s decision lightly, and although we
understand that this decision has real consequences for the Tribe’s economic
development on the parcel, our decision is limited to the land’s eligibility for gaming
under IGRA. With that in mind, we uphold NOV 09-35, and we add only the following.

With several important exceptions, IGRA prohibits tribes from gaming on lands
acquired by the Secretary in trust for the benefit of the tribe after October 17, 1988—the
date of IGRA’s enactment. 25 U.S.C. § 2719(a). The Fort Sill Apache Tribe does not
dispute the fact that it conducted gaming on lands taken into trust for its benefit after
October 17, 1988. But the Tribe argues that it meets four of the statutory exceptions.
Specifically, the Tribe argues that the Akela Flats property qualifies as: A) restored lands
for a restored tribe, B) land taken into trust as part of a settlement of a land claim, C) the
initial reservation of an Indian tribe acknowledged by the Secretary under the federal
acknowledgement process, and D) the last recognized reservation within the state or
states within which the Tribe is presently located. Tribe’s Initial Brief at 33-47.

A. Restored Lands for a Restored Tribe

IGRA allows gaming on newly acquired trust lands if those lands were taken into
trust as part of “the restoration of lands for an Indian tribe that is restored to Federal
recognition.” 25 U.S.C. § 2719(b)(1)(B)(iii). To qualify for the exception, a tribe must
demonstrate that it was at one time federally recognized, that it lost its government-to-
government relationship, that it was restored to federal recognition, and that the land on
which it wants to game was taken into trust as part of the restoration of lands for the

restored tribe. /d.; 25 C.F.R. § 292.7; Grand Traverse Band of Ottawa and Chippewa

26


. The Tribe is a federally recognized Indian tribe with its headquarters in Apache,
Oklahoma.

. On June 26, 2002, the United States acquired the Akela Flats property, located in
Deming, New Mexico, in trust for the benefit of the Tribe. From that date
forward, the Akela Flats property qualified as Indian lands under IGRA, thereby
giving the NIGC jurisdiction over any gaming activities there.

. On or about April 9, 2009, the Tribe opened a gaming facility and conducted
gaming activities on its Akela Flats property.

. On July 21, 2009, the NIGC Chairman issued NOV-09-35 to the Tribe for gaming
on Indian lands not eligible for gaming under the IGRA.

Based on the record before the Commission and the briefs filed by each party to

this appeal, we uphold Notice of Violation NOV-09-35.


Thereby certify that on May 6, 2015, I served the foregoing Final Decision and Order by
facsimile on:

Donovan Lieruance

Acting Executive Director

New Mexico Gaming Control Board
(505) 841-9725

Michael C. Hoenig
NIGC Associate General Counsel



tribe acknowledged by the Secretary under the Federal acknowledgment process.” 25
U.S.C. § 2719(b)(1)(B)(ii); 25 C.F.R. § 292.6; Tribe’s Initial Brief at 42-45.

The May 2008 Opinion addresses this issue, and we adopt its reasoning and
conclusion. May 2008 Opinion at 27-30. Briefly, the May 2008 Opinion states that the
exception requires three elements: 1) the land must be designated as a reservation, 2) the
reservation must be the Tribe’s initial reservation, and 3) the Tribe must have been
acknowledged by the Secretary under the federal acknowledgement process set forth in
25 C.F.R. part 83. Jd. The May 2008 Opinion concludes that because the Akela Flats trust
land has not been proclaimed a formal reservation and because the Tribe was not
acknowledged through the Federal acknowledgement process under 25 C.F.R. part 83,
the Akela Flats land does not qualify for the initial reservation exception.

Since this matter was appealed, though, and after briefing was complete, the
Secretary of the Interior proclaimed the Akela Flats Parcel as reservation land for the
Tribe. 76 Fed. Reg. 72969. Accordingly, the overlying issue of whether the land is
reservation land has been made moot. There is no longer any dispute that Akela Flats is a
reservation under 25 U.S.C. § 467.

The Tribe also argues, though, that the term Federal acknowledgment process in
IGRA’s initial reservation exception should include the process by which the
Commissioner of Indian Affairs approved the Ft. Sill Apache Tribe’s constitution in
1976, thereby recognizing the Tribe. Tribe’s Initial Brief at 43-45. The May 2008
Opinion considered and rejected this argument, and we find nothing in the record on

appeal that would compel us to overrule that determination. We therefore, affirm the

29


The Chiricahua Apache were initially placed in military prisons in Florida, where many
died due to deplorable conditions and hostile climate. Those that remained were moved to
Mobile, Alabama, and finally to Fort Sill, Oklahoma, where they were held until 1913. In
total, the entire Chiricahua Apache people endured 27 years of imprisonment. Tribe’s
Initial Brief at 8.

Upon release, many of the Chiricahua Apache returned to New Mexico, where
they enrolled with the Mescalero Apache Tribe. But 76 Chiricahua Apache people
remained in Oklahoma and organized as the Fort Sill Apache Tribe. Tribal Gaming
Comm’n Memo at 2-3.

On or about August 16, 1976, the Commissioner of Indian Affairs formally
approved the Constitution of the Fort Sill Apache Tribe, and thereafter the United States
acknowledged the Fort Sill Apache Tribe to be a federally recognized tribe. The United
States government has maintained a government-to-government relationship with the
Fort Sill Apache Tribe since that date. Agreement of Compromise and Settlement
Recitals  7(j), Comanche Nation v. United States, No. CIV-05-328 (W.D. Okla. March
8, 2007).

DISCUSSION

The abbreviated historical account set forth above of course barely touches on the
history of the Fort Sill Apache people. The Tribe has faced much adversity at the hands
of the U.S. government. This Commission would like nothing more than to reverse that
trend and help the Tribe re-establish an economic presence in its ancestral homelands

through a gaming operation. We are, however, bound by the strictures of IGRA and

13


given, and has exercised, that opportunity before this Commission. Rather than pursue a
hearing before a presiding official, the Tribe voluntarily opted to have the matter decided
by the Commission on written submissions, as permitted by NIGC regulations, 25 C.F.R.
§ 577.3. Letter from Jeff Houser, Chairman of the Fort Sill Apache Tribe, to Jo-Ann
Shyloski and Melissa Schlichting, NIGC (Sept. 9, 2009).

The Commission set a reasonable briefing schedule and, at the Tribe’s request,
granted multiple extensions on filing deadlines and allowed the Tribe time to submit
additional information after the initial briefing schedule was complete. Letter from
Michael Gross, Appellate Counsel for the Commission, to Jeff Houser, Chairman of the
Fort Sill Apache Tribe and C. Shannon Bacon, Special Assistant Attorney General for
State of New Mexico, Re: Ft. Sill appeal of NOV 09-35, motion to intervene and briefing
schedule (Sept. 18, 2009); Order on Procedural Motions, /n re Fort Sill Apache Tribe of
Okla. NOV-09-35 (NIGC Oct. 8, 2009); Order on Motion for Modification of Briefing
Schedule, In re Fort Sill Apache Tribe of Okla. NOV-09-35 (NIGC Nov. 24, 2009); Order
on Third Request for Modification of Briefing Schedule, Jn re Fort Sill Apache Tribe of
Okla. NOV-09-35 (NIGC Jan. 15, 2010). The Tribe submitted two briefs on appeal with
multiple supporting documents. Initial Brief of Fort Sill Apache Tribe of Oklahoma on
Appeal from NOV-09-35 (Jan. 25, 2010); Reply Brief of Fort Sill Apache Tribe of
Oklahoma to Response of State of New Mexico (May 3, 2010). Those briefs, along with
information and analysis already in the administrative record, were thoroughly reviewed
by this Commission as part of our decision. Therefore, the Tribe was granted the
opportunity to be heard and its due process rights have been protected, notwithstanding

the Tribe’s claims to the contrary.

16