NATIONAL INDIAN GAMING COMMISSION 

NOTICE OF VIOLATION 

TO: FortSillApacheTriheofOklahoma 

Agent for Service of Process 

Attn: Jeff Houser, Chairman 

Route 2, Box 12 1 

Apache, OK 73006 

Fax: (580) 588-3133 

Fort Sill Apache Tribe of Oklahoma 

Office of the Gaming Commission 

Attn: Sam Horton, Chairman 

P.O. Box 809 

Lawton, OK 73502-0809 

Fax: (580) 354-1 500 

1. Notification of Violation 

The Chairman of the National. Indian Gaming Commission (NIGC) hereby gives 

notice that the Fort SiII Apache Tribe of Oklahoma (Respondent or Tribe), located 

in Apache, Oklahoma, has violated the hdian Gaming Regulatory Act, 25 U.S.C. 

8 27 1 9, by gaming on Indian lands ineligible for gaming at 20885 Frontage Road 

Southeast, Derning, New Mexico, othemise known as "AkeIa Flats." 

2. Authority 

Under the Indian Gaming Regulatory Act (IGRA) and NlGC regulations, the 

Chairman of the NIGC (Chairman] may issue a Notice of Violation WOV) to any 

person for violation of any provision of the IGRA, NIGC regulations, or any 

provision of a tribaI gaming ordinance or resolution approved by the Chairman. 

25 U.S.C. 4 2713; 25 C.F.R. 5 573.3. 

3. Applicable Federal Laws and Regulations 

A. IGRA provides that a Tribe may engage in class PI gaming only on Indian 

lands. 25 U.S.C. 5 2710(b). 
B. 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 any Indian tribc or individual subject to restriction hy the United States 

azainst alienation and over which an Indian tribe exercised governmental 

power. 25 U.S.C. 8 2703(4). 

C. NIGC regulations defines Indian lands to mean (a) land within the limits 

of an Indian reservation; or (b) land over which an Indian tribe exercises 

govemmcntaI power and that is either (I) held in trust by the United States 

for the benefit of any Indian trjbe or individual; or (2) held by an Indian 

tribc or individual subject to restriction by the United States against 

alienation. 25 C.F.R. 4 502.12. 

D. IGM further provides in 25 U.S.C. 5 2719: 

(a) that gaming shall not be conducted on lands acquired by the 

Secretary in trust for the benefit of an Indian tribe after October 17, 

1 988 u~lless -- 

(1) such lands are located within or conti~wous to the boundarjes if 

the reservation of the Indian tribe on October 17,1988; or 

(2) the Indian tribe has no ~eservation on October 17, 1988, and 

(A) such lands are located in Oklahoma and 

(i) are within the boundaries of the Indian tribe's former 

reservation, as defined by the Secretary, or 

(ii) are contiguous to other land held in trust or restricted 

status by the United States for the Indian tribc in 

Oklahoma; or 

(B) such lands are located in a State other than OklaIzoma and 

are within the Indian tribc's last recognized reservation 

within the State or States within which such Indian tribe is 

presently located. 

(b) Exceptions 

(1) Subsection (a) of this section will not apply when - 

(B) lands are taken into trust as part of - 
(i) a settlement of a land claim, 

(ii) the initial reservation of an Indian tribe acknowledged 

by the Secretary under the Federal ach~owledgement 

process, or 

(iii) the restoration of lands for an Indian tribe that is 

restored to Federal recognition. . . .. 

C. Under 25 C.F.R. (i 292.7, gaming may occur on newly acquired lands 

under the "restored lands" exception only when all of the following 

conditions are met: 

(a) The tribe at one time was federally recognized, as evidenced 

by meeting the criteria in Ij 292.8; 

(b) The Tribe at some later time lost its government-to-government 

relationship by one of the means specified in $292.4; 

(c) At a time after the tribe lost its government-to-government 

relationship, the tribe was restored to Federal recognition by 

one of the means specified in 9 292.1 0; and 

(d) The newly acquired Iands meet the criteria of "restored lands" 

in $292.1 1. 

D. For a tribe to qualify as having lost its government-to-, uovernment 

relationship under 25 C.F.R. 5 292.9, it must show that its 

government-to-government relationship was terminated by one of the 

following means: 

(a) Legislative termination; 

(h) Consistent historical written documentation from the Federal 

Government effectively stating that it no longer recognized a 

government-to-govement relationship with the tribe or its 

members or taking action to end the govenment-togovernment relationship; or 

(c) Congressional restoration legislation that recognizes the 

existence of the previous government-to-government 

reIationship. 
4. Role of Prohibition against Gaming on Land Acquired after October 1 7, 1988 

IGRA explicitly iimi ts the trust lands where Indian gaming can be conducted to 

tnzst lands acquired before October 17, 1988 and, in limited circumstances, upon 

trust lands acquired after that date as set forth in 25 U.S.C. $27 19. There is no 

legislative history regarding 8 271 9. However, it is apparent from the statutory 

schernc that Conggress intended to limit the expansion of Indian gaming on tn~t 

land acquired after October 17, 1988. 

5. Circumstances of thc Violation 

A. Respondent is a federally reco~wized Indian Tribe with tnbal headquarters 

in Apache, Oklahoma. 

B. On June 26,2002, the parcel known as AkeIa Flats tocated in Deming, 

New Mexico was acquired into tnlst by the United States on belialf of the 

Fort Sill Apache Tribe. 

C. On May 19,2008, the NTGC Office of General Counsel issued an advisory 

legal opinion that considered whether the Tribe could lawfully game under 

IGRh on Akela Flats. Because the land is held in trust for the benefit of 

the Tribe by the United States, it qualifies as "lndian lands" under TGRA, 

25 U.S.C. 4 2703(4)(B). However, the Tribe acquired the land into trust 

aRer October 1 7, 1988. Therefore, the advisory legal opinion considered 

whether Akela Flats was eligible for gaming under the after acquired tmst 

land prohibition of IGRA, 25 U.S.C. 9 271 9. 

D. The May 19,2008 advisory legal opinion concluded that the Tribe did not 

meet any of the exceptions to the genmal prohibition of gaming on after 

acquired trust land or as the Tribe's last recognized reservation within the 

State that it is presently located. Therefore, the NIGC Office of General 

Counsel concluded that the Tribe could not lawfully game under IGRA on 

Akela Flats. 

E. On April 30,2009, the Office of General Counsel issued an addendum to 

the May 19,2008 advisory legal opinion. This legal, opinion supplements 

the Office of General Counsel's May 1 9, 2008 legal opinion and considers 

a new argument made by the Tribe after the Office of Genmal Counscl 

issued its May 19,2008 legal advisory opinion. Specifically, the Tribe 

contends that it should be considered a restored tribe pursuant to the 

restored lands exception, 25 U.S.C. 2719(b)(I)(B)(iii) and 25 C.F.R. 

ij 292.7, because the United States once maintained a govemment-togovernment relationship with the Chirachua and the Warn Springs 

Apache Tribes, of which the Fort Sill Apache Tibe is the successor of 

interest, and the United States no longer recognize the Chirachua and the 

Warn Springs Apache Tribes was a Federally recognized Tribe. 
Tlzaefore, the Tribe contends that its government-to-government: 

relationship was tcrminatcd as required by 25 C.F.R. 9 292.9. 

F. The OGC legal advisory addendum concluded that the Tribe had not 

demonstrated historical written documentation from the Federal 

government effectively stating that it no longer recognizes a governmentto-government relationship with the Fort Sill Apache Tribe or its members 

or taking action to end the government-to-government relationship. 

Therefore, the opinion concluded that the Tribe failed to produce the 

necessary documentation to support a claim lhat its government-togoven~ment relationship was terminated as required by 25 C.F.R. $ 

292.9@). 

G. Nor did the Tribe establish govemment-to-government termination by 

legislative termination or Congressional restoration legislation that 

recognizes the existence of the previous government-to-government 

relationship, as required by 25 C.F.R. $292.9 (a) and (c). 

H. Because the Tribe cannot establish that its government-to-government 

relationship was terminated, it does not mect the requiscments of the 

restored lands exception defined in 25 C.F.R. 3 292.7. As a consequence, 

the Akela Flats site, although Indian lands, remains ineligible for gaming 

under IGRA. 

I. Today, I adopt the Office of General Counsel's reasoning and conclusions 

set forth in its advisory legal opinions, dated May 1 9,2008 and April 30, 

2009. 

J. As a consequence, the AkeEa Flats parcel, although Indian lands, is 

ineligible for gaming under IGRA because it fails to satisfy any exception 

to the prohibition on gaming on after acquired trust lands. 

K. On or about ApriI 9,2009, the Tribe opened its gaming facility, Apache 

Homeland Casino, at Akela Flats. 

L. Thc Tribe operated its gaming facility, Apache Homeland Casino, during 

April 2009, undertaking the pIay of Class TI gaming at the gaming facility. 

Specifically, on ApriI 1 6,2009, at approximately 6: 15 pm, sixty-five (65) 

people engaged in a game of bingo at the Apache Homeland Casino and 

received monetary prizes for winning eight (8) different bingo games. 

M. As of July 16,2009, the Tribe was continuing to conduct class I1 gaming 

at the Apache Homeland Casino located on the Akela Flats parcel. 

N. By conducting Indian gaming on Indian lands ineligible for gaming, the 

Tribe is in violation of IGRA, 25 U.S.C. tj 2719. 
6 Measures Required to Correct the Violation 

There is no way for the Trihe to cure any past action of gaming on lands ineligible 

for gaming under IGRA. To correct the on-going violation, the Tribe must 

immediately cease all gaming operations at Akela Flats. 

7. Appeal 

Within thirty (30) days after service of this Notice of Violation, Respondent may 

appeaI to the full Commission under 25 C.F.R. Part 577 by submitting a notice of 

appeal, ad, if desired, request for hearing to the National. Indian Gaming 

Commission, 1441: L St~eet NW, Ninth Floor, Washington, DC 20005. 

Respondent has a right to assistance of counsel in such an appeal. A notice of 

appeal must reference this Notice of Violation. 

Within ten 1( 10) days after fiIing a notice of appeal, Respondent must fife with the 

Commission a supplemental statement that states with particularity the relief 

desired and the grounds therefore and that includes, when available, supporting 

evidence in the form of afidavits. If Respondent wishes to present oral testimony 

or witnesses at the hearing, Respondent must include a request to do so with thc 

supplemental statement. The request to present oral testimony or witnesses must 

specify the names of proposed witnesses and the genera1 nature of their expected 

testimony, whether a dosed hearing is requested and why. Respondent may 

waives its right to an oral hearing and instead elect to havc thc matter determined 

by the Commission soIeIy on the basis of written submissions. 

8. Fine-Submission of Information 

The violation cited above may result in the assessment of a civil fine against 

Respondent in an amount not to exceed $25,000 per violation per day. Under 25 

C.F.R. $ 575.5(a), Respondent may submit written information about the violation 

to the Chairman within fifteen (1 5) days after service of this notice of violation 

(or such longer period as the Chairman may pnt for good cause). The Chairman 

sllall consider any information submitted in determining the facts surrounding the 

violation and the amount of the civil fine, if any. 

Dated this -)sEJuly, ,,- 2979 
Certificate of Service 

I certify that this Notice of Violation was sent by facsimile transmission and certif ed 

U.S. mail. rctum receipt requested, on this 3I2daY of July, 2009 to: 

Fort Sill Apache Tribe of Oklahoma 

Agent for Scmice of Process 

Attn: Jeff Houscr, Chairman 

Route 2, Box 121 

Apache, OK 73006 

Fax: (580) 588-3133 

Fort Sill Apache Tribe of Oklahoma 

Office of the Gaming Commission 

Attn: Sam I-Torton, Chairman 

P.O. Box 809 

Lawton, OK 73502-0809 

Fax: (580) 354-1500 
To: Philip N. Hogen, Chairman "jc 

From: Penny J. Coleman, Acting General Counsel 

Re: The Merits of the Fort Sill Apache Tribe's New Argument 

Date: April 30,2009 

Introduction 

This opinion supplements the Ofice of General Counsel's May 19,2008 opinion 

and considers the Fort Sill Apache Tribe" (Tribe) new argument that its settlement 

agreement (Agreement) establishes that the Tribe's government-to-government 

relationship was terminated as required by 25 C.F.R. tj 292.9. 

On March 10,2008, the Tribe submitted a site-specific amended gaming 

ordinance for the Chairman's consideration. On May 19,2008, the Tribe withdrew its 

gaming ordinance from the Chairman's consideration. The Office of General Counsel, 

however, issued an advisory legal opinion that concluded the site was Indian lands, but 

not eligible for gaming under IGRA. See Memorandum fiom Penny 5. Coleman, Acting 

GeneraI Counsel, NIGC, to Philip N. Hogen, Chairman, NIGC (May 19,2008). In 

reaching this decision, the Office of General Counsel reviewed all documents that the 

Tribe presented and found insufficient evidence to support, among other things, the 

Tribe's restored lands claim. 

However, on September 26,2008, the Tribe filed a brief containing a new 

argument to support its claim of restored lands with the U.S. District Court for the 

Westem District of Oklahoma. See Brief for Defendant, Comanche Nation v. United 

States, Reply to Opposition to Motion for Enforcement of Agreement of Compromise 

and Settlement, (W.D. OK 2008) ('No. CFV 05-328-F). In 2005, the Comanche Nation 

sued the United States over a parcel of Comanche land that the United States had put in 

trust for the Fort Sill Apache ~ribe.' The Fort Sill Apache Tribe intervened in the 

"II April 2, 1999, the Fort Sill Apache acquired into trust a .53 acre parcel of land that was located in 

lands of the former Kiowa, Comanche and Apache Reservation in Oklahoma. Comanche Nation v. United 

Stutes, Agreement of Compromise and Settlement Recitals (Agreement), CIV-05-328-F at 1. The 

Department of Interior approved the trust acquisition without acquiring the written consent of the 

Comanche Nation. Id. The Comanche Nation sought a declaration voiding the trust transfer. Id. The parties 

entered into the Agreement to settle the matter. 
litigation. In 2007, the suit was resolved by a settlement agreement. In its Scptemher 26, 

2008 brief, the Fort SilI Apache Tribe assmied that the advisory legal opinion of the 

NIGC Office of General Counsel breached its Agreement with the United States by 

failing to acknowledge the Tribe's restored tribal status allegedly set forth in the 

Agreement. Id. Specifically, the Tribe cited paragraph 7(i) of the Agreement for the 

proposition that the United States acknowledged that it terminated the fedeta1 recognition 

of the Chiricrthua and/or Warm Springs Apache Tribes, to which the Fort Sill Apache 

Tribe is the successor in interest. As a consequence, the Tribe argued that the advisory 

legal opinion of the Office of General Counsel was incorrect because it failed to 

acknowledge the termination of its federal recognition and, thus, the Fort Sill Apache 

Tribe's restored status. Id. at 2. 

The Office of General Counsel now considers the Tribe's new argument in light 

of the presented evidence. This memorandum supplements our May 19,2008 opinion. 

We conclude that the Tribe has failed to provide additional evidence, and the presented 

evidence remains insufficient to support its claim that it is a restored tribe.2 

Legal Background 

The United States Department of the Interior (DOI) issued regulations interpreting 

the restored lands exception of the Indian Gaming Regulatory Act, 25 U.S.C. $ 27 19. 

Those regulations specifically address tbe standards to demonstrate the termination of the 

government-to-govment relationship. See 25 C.F.R. part 292; 73 Fed. Reg. 29,3 54. 

These regulations became effective on August 25,2008. See 73 Fed. Reg. 3 5579 (June 

24,2008). The Commission subsequently adopted the regulations. Accordingly, the 

regulations are applisd to this case for the limited purpose of determining whether the 

T~be" government-to-government relationship with the United States was terminated. 

We note that the Tribe advised us that it did not believe that the new regulations 

should be used in this analysis. See Letter fiom Jeff Houser, Tribal Chairman, Fort Sill 

Apache Tribe, to Jo-Ann Shyloski, Associate General Counsel - Litigation and 

Enforcement, and Esther Dittler, Staff Attorney, National Indian Gaming Commission. 

We understand and appreciate that concern. The regulations were not intended to disrupt 

tribal gaming operations that were developed in reliance on the existing caselaw and 

earlier opinions that were issued. Consequently, we are focusing our analysis on the one 

and only argument presented by the Tribe and its impact on the Tribe's ability to game on 

the New Mexico site. We believe that this approach is appropriate because the regulations 

and the caselaw do not essentially establish different standards for concluding that a tribe 

had a period of time that it did not have a government-to-government relationship with 

the federal government. In other words, as described below, the regulatory standard for 

2 The Fort Sill Apache Tribe asserts that it was "formally recognized by the Federal government in 1976." 

See Memorandum in Support of Fort Sill Apache Tribal Gaming Commission Luna County, New Mexico 

Gaming License, I6 (Feb. 22,2008). 14s he Tribe may have been recognized after 1934, we understand 

that the trust status of the Akela Flats property might be impacted by the recent decision in Carcieri v. 

Solazar, 129 S. Ct. 1058 (Feb. 24,2009). However, we need not address this matter as we conclude that 

the Tribe may not game on the Akela Flats property. 
the tribe having "lost its government to government relationship," 25 C,F.R. 5 292.9, is 

not significantly different from the requirement in caselaw that there was a termination of 

federal reeoeition. 

Under the regulations, a tribe seeking to establish itself as a restored tribe must, 

among other things, demonstrate that "[tjhe tribe at one time was federally recognized" 

and "'[tlhe tribe at some later time lost its government-to-government relationship by one 

of the means specified in 4 292.9 . . .." 25 C.F.R. 5 292.7. For a tribe to qualify as having 

lost its government-t~-~overnment relationship under 25 C.F.R. (i 292.7, it must show 

that its government-to-government relationship was terminated by one of the following 

means: 

(a) Legislative termination; 

(b) Consistent historicaI written documentation from the Federal 

Government effectively stating that it no longer recognized a 

government-to-government relationship with the tribe or its 

members or taking action to end the government-to-government 

relationship; or 

(c) Congressional restoration legislation that recognizes the existence 

of the previous government-to-government relationship. 

25 C.F.R. 4 292.9. 

Section 292.7 of D017s regulations capture the elements outlined by courts for 

determining whether a tribe has demonstrated that the federal government terminated its 

federal recognition and whether such recognition has been restored. For example, the 

U.S. Dis~ct Court for the Western District of Michigan stated: 

In order to detemzine whether the Band meets the restoration exception 

under [25 U.S.C.] 9 27 1 O(b)(l)(B)(iii), the court must first determine 

whether the Band is a "restored" tribe within the meaning of the provision, 

and second, whether the land was taken into trust as part of a "restoration" 

of Iands to such restored tribe. 

Grand Traverse Band of Ottawa and Chippewa Indians v. O$ce of the United States 

Attorney for the Western Disfrict of Michigan,198 F. Supp.2d 920,927 (W.D. MI 2002). 

For a tribe to establish that it is a restored tribe, it must establish: I) federal government 

recognition; 2) withdrawal of recognition; and 3) restoration of recognition. See Grand 

Traverse Band of Ottawa and Chippewa Indians v. Oflee of the U. S. Attorney for the W. 

Dist. of Miclz., 369 F.3d 960, 967 (6th Cir. 2004). 

The Section 20 regulations build upon the caselaw. As mentioned above, 25 

C.F.R. 5 292.9 specifies how a tribe qualifies as having its government-to-government 

relationship terminated. Because the Tribe does not contend the termination of its 
government-to-government relationship was evidenced by legislative termination or 

Congressional restoration legislation, we can focus on section 292.9(b) which requires 

consistent historical written documentation from the federal government effectively 

stating that it no longer recognizes a government-to-government relationship with the 

tribe or its members or taking action to end the government-to-government relationship. 

ANALYSIS 

We conclude that the Tribe has not provided consistent historical written 

documentation effectively stating that the federal government no longer recognized a 

government-to-government relationship with the Tribe or its members or taking action to 

end the government-to-government re1 ationship. 

1. Paragraph T(i) of the Agreemcnt and the Tribe's history do not 

evidence that the Tribe's government-torgovernment relationship was 

terminated and fails to support the Tribe's claim that it is a restored 

tribe 

In this instance, the Xibe argues that it has met its burden to show that it is a 

restored tribe and relies on two pieces of evidence. On January 9,2007, the Fort Sill 

Apache and the Comanche Nation entered into a settlement agreement with the United 

States concerning the federal government" transfer of Comanche trust land for the 

benefit of the Fort Sill Apache Tribe. Comanche Nation, Agreement of Compromise and 

Settlement Recitals, CIV-05-328-F at 1-2. The Agreement states: 

g) The Fort Sill Apache Tribe is a successor-in-interest to the 

Chiricahua and Warm Springs Apache Tribes whose aboriginal 

territory, as defined by the Indian Claims Commission and as 

affirmed by the United States Court of Claims, includes those parts 

of Arizona and New Mexico where the United States currently 

holds land in trust for the benefit of the Fort Sill Apache Tribe. 

Fort Sill Apache Tribe v. United States, 19 hd. C1. Comm. 212 

(1 968); Fort Sill Apache Tribe v. United States, 477 F.2d 1360, 

201 Ct.Cl.630 (1973),cerE. denied, 416 U.S. 933 (1974). 

h) The United States once maintained a government-to-government 

relationship with the Chricahua and Warm Springs Apache Tribes, 

as evidenced by treaties, negotiations with tribal leaders, provision 

of services to the tribes and tribal members, and other governmentto-government relationships clearly identified in numerous legal 

actions maintained before the Indian Claims Commission, United 

States Court of Claims, United States District Courts, and the 

United States Department of Interior Board of Indian Appeals. 

=, Fort Sill Apache Tribe v. United States, supra. 19 Ind. Cl. 

Comm. at 212. 
i) The United States does not acknowledge and/or recognize the 

Chiricahua and/or Warm Spngs Apache Tribes as "Federally 

Recognized Tribes", or as entities "acknowledged to have the 

immunities and privileges available to other federally 

acknowIedged Indian bbes by virtue of their government-togovernment relationship with the United States as well as the 

responsibilities, powers, limitations and obligations of such tribes." 

70 Fed. Reg. 7 1 194 at 1 (Nov. 25,2005). 

j) 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, and has maintained a 

government-to-government relationship with the Fort Sill Apache 

Tribe since that date. See 70 Fed. Reg. 71 194. 

Id. at 7(g) - (j). 

The Agreement acknowledges that the Tribe is a successor in interest to the 

Chisicaha and Warm Springs Apache Tribes who once maintained a government-togovernment re1 ationship with the United States and this satisfies the first requirement of 

the restored lands exception. 25 C.F.R 292.7(a). As we stated in our May 19,2008 

opinion, these stipulations support the view that the Tribe was once recognized as the 

Chiricahua and Warm Springs Apache Tribes and that the Chiricahua and Warm Springs 

Apache Tribes were subsequently recognized as the Fort Sill Apache Tribe. 

The Tribe argues that the Agreement shows that the federal government has 

already acknowledged its restored status. Specifically, the Tribe focuses on the language 

of paragraph 7(i) as evidence that the federal government acknowledges its status as a 

successor in interest to tribes once terminated and its status as a restored tribe. See Brief 

for Defendant at 2. 

Further, the Tribe also relies on the history presented to the Federal Court of 

Claims to support its argument that the federal government terminated the federal 

recognition from its ancestors, the Chiricahua and Warm Springs Apache, to whom it is a 

successor in interest. The history presented in the Federal Court of Claims is already set 

forth in the General Counsel's May 19,2008 advisory legal opinion. Simply put, the 

Tribe argues that the Federal Court of Claims acknowledged the termination of federal 

recognition of the Chiricahua and Warm Springs Apache tribes when it noted that the 

Chiricahua and Warn Springs Apache were taken as prisoners of war. Fort SiI 2 Apache 

Tribe v. United States, 19 Ind. C1. Comm. 212,244-5 (June 28, 1968). 

Based upon these two pieces of evidence, and its new argument, the Fort Sill 

Apache Tribe argues that the General Counsel" May 19, 2008 advisory legal opinion is 

incorrect. Upon cIoser review of the Agreement, we do not agree. These pieces of 
evidence remain insufficient to support the Tribe's claim, and the advisory legal 

opinion's reasoning with this addition remains sound. 

As stated in the advisory legal opinion, the Tribe's evidence from the Federal 

Court of Claims case remains insufficient to support its claim that its government-togovernment relationship was terminated. The evidence is insufficient because taking 

Chiricahua and Warm Springs Apache members as prisoners of war in 1886 did net 

necessarily constitute the federal government's termination of the Chiricahua and Warm 

Springs Apaches' federal rwognition and a cessation of the government-to-government 

relationship, In fact, the United States military force's decision to take the Chiricahuas as 

prisoners of war indicates that the Tribe was still considered a hostile but separate and 

sovereign entity. Because this history fails to indicate or acknowledge any type of loss of 

federal recognition, it does not support the Tribe's assertion that the federal government 

terminated the federal recognition of the Chiricahua and Warm Springs Apache tribes. 

Nor does the Tribe's Agreement with the United States and the Comanche Nation 

constitute consistent historical written documentation from the federal government 

effectively stating that it no longer recognized a government-to-government relationship 

with the Chisicahua md Warm Springs Apache tribes or its members or taking action to 

end the government-to-government relationship. The Agreement provides 

The United States does not acknowledge andlor recognize the Chiricahua 

and/or Warm Springs Apache Tribes as "Federally Recognized Tribes", or 

as entities "acknowldged to have the immunities and privileges available 

to other federally acknowledged Indian tribes by virtue of their 

government-to-government relationship with the United States as well as 

the responsibilities, powm, limitations ad obligations of such tribes.'" 

Comanche Nation, Agreement of Compromise and Settlement Recitals, CW-05-328-E at 

7(i). While the language of the Agreement acknowIedges that the United States does not 

recognize the Chirjcahua and Warm Springs Apache Tribes, this document states the 

facts as they were on the date the Agreement was entered into. It reflects that the 

successor tribe, the Fort Sill Apache Tribe is a Federally recognized tribe. In other words, 

the fact that the Chiricahua or Warm Springs are not presently recognized is not evidence 

that the federal government terminated the government-to-government relationship 

within the meaning of 25 C.F.R. $ 292.9. It merely evidences that in the present day the 

Chiricahua and Warm Springs Apache are no longer recognized3 and does not explain 

This interpretation is consistent with the U.S. District Court for the Western District of Oklahoma's Order 

denying the Tribe's motion for Enforcement of Agreement of Compromise and Settlement. The U.S. 

District Court noted hat ". . . it was made abundantfy clear to the court that the Chiricahua Tribe and the 

Warm Springs Apache Tribe are not federally recognized Indian tribes. No such status, with respect to 

those tribes, has been confirmed by publication in the Federal Register, nor has any such status been 

memorialized in any list of federally recognized tribes maintained by or at the direction of the Secretary of 

the Interior ox any subordinate official in the Department of the Interior." See Comanche Nation v. United 

Slates No. CIV 05-328-F (W.D. Okla. Oct. 7,2008) (orderdenying motion for Enforcement of Agreement 

of Compromise and Settlement). TIie court specifically found "that the Chiricahua Apache and Warm 

Springs Apache Tribes have not been recognized by the United States of America, the United States 
why or how its successor, the Fort Sill Apache Tribe, took its place or how or if its 

successor in interest's recognition or government-to-government relationship was 

terminated. Because the Tribe has not demonstrated that its government-to-government 

relationship was terminated, it does not meet the requirements for the restored lands 

exception under 25 C.F.R. $292.7. 

This analysis is consistent with previous NlGC legal opinions. As explained 

below, the statute and regulations require evidence of action on the part of the federal 

government ending or terminating federal recognition. A tribe's attempt to prove the 

termination of federal recognition has always required greater evidence than the Fort Sill 

Apache Tribe provided in this case. 

For example, the Cowlitz hdian Tribe presented numerous records from the 

federal government where the government explicitly denied its fedmztl recognition of the 

Tribe. See Memorandum to Philip N. Hogen, Chairman from Penny J. Coleman, Acting 

General Counsel, Re: CowEitz Tribe Restored Lands Opinion at 8-9 Wov. 22,2005). The 

Bureau of Indian Affairs refused to discuss enrollment in the Cowlitz Tribe with an 

individual on the grounds that they did not recognize the Tribe. Id. Further, the 

Department of the Interior represented to Congress that the Cowlitz Tribe was no longer 

federally recognized. These acts and ether documentation represents consistent written 

documentation from the federal government stating that it no longer recognized a 

government-to-government relationship with the Tribe or its members, and constitutes 

action to end the government-to-government relationship. 

In contrast, the Karuk Tribe of California presented no evidence of the federal 

government" termination of recognition to support its restored tribe claim. See Letter to 

Bradley G. Beldsoe Downes, Esq., Dorsey & Whitney LLP from Penny J. Coleman, 

Acting General Counsel (Oct. 12,2004). While the federal government appeared to have 

no dealings with the Tribe for a time, individual members still received benefits from the 

federal government. Id. at 3. Because the Tribe presented no evidence of action by the 

federal government to terminate recognition, the Office of General Counsel concluded 

that the Tribe was not restorsd. Id. 

In the present matter, the evidence presented by the Fort Sill Apache Tribe is 

more analogous to the evidence presented by the Karuk Tribe than the CowEitz Indian 

Tribe. In support of its claim as a restored tribe, the Cowlitz Indian Tribe presented 

evidence of an explicit denial of the Tribe. The Karuk Tribe, on the other hmd, failed to 

provide any proof of a termination of recognition. See Letter to Bradley Bledsoe Downes 

from Penny J. Coleman, Acting General Counsel (Oct. 12,2004). The lack of evidence to 

support its elaim Id the Office of General Counsel to find that it was not a restorsd tribe. 

Id. 

Department of the Interior, or any subordinate officer or agency thereof." Id. Thus, the U.S. District Court's 

Order is only evidence of the fact that the United States does not recognize the Chiricahua and Wm 

Springs Apache Tribes, not evidence of the United States' action to end the govement-to-government 

relationship. 
The lack of sufficient evidence presented here leads to the same result. In 

presenting its case for restoration, the Fort Sill Apache Tribe failed to provide evidence 

of consistent historical written documentation from the federal govanment effectively 

stating that it no longer recognized a government-to-government relationship with the 

Chiricahua and Warm Springs Apache tribes or its members or taking action to end the 

government-to-govment relationship. Without such evidence to support its claim, the 

Tribe fails to meet the requirements of the restored lands exception. 

Conclusion 

The Tribe presented a new argument with the same evidence, challenging the 

General Counsel's May 19,2008 advisory legal opinion as incorrect. The Tribe's 

argument, however, fails to change the previous analysis undertaken by the Office of 

General Counsel. The Tribe presented no additional evidence to support its claim as a 

restored tribe. Because the Agreement does not constitute historical written 

documentation from the federal government effectively stating that it no longer 

recognizes a government-to-government relationship with the Fort Sill Apache Tribe or 

its members or take action to end the government-to-government relationship, it cannot 

support the Tribe's claim that its government-to-government relationship was terminated 

as required by 25 C.F.R. 8 292.9@). Because the Tribe cannot establish that its 

government-to-government relationship was terminated, its does not meet the 

requirements of the restored lands exception. 25 C.F.R. 4 292.7. As a consequence, the 

Akela Flats site, although Indian lands, remains ineligible for gaming under IGRA. 
Memorandum 

Re: I:;. Sill .-lpachc Trik 1.una C'o., XM I'mpcxy 

Introduction 

Chiman I ic>uscr in fomrcd thc CicneraE Counsel at a meeting in Scottsdnlc. r\rizi)na. on 

Januaq I h. 2:IIlS. 111s Ft. Si Il Apache Trik (Trik) planned to open a nmi. Class XI 

- earning operd~iiln on rrust Iands. known as Akela Flats. i:~ I .uxa County, Nen Mexico. 

C'h~rman I fouscr cspressed ctrncorn ah3u-t !he potential apylicabtailip ofrautx Na? innal 

Indian Urerning Commission (NIC;C') faci t iry license regulations which were schcdulcd to 

bccame ctTcctivc 1111 4Iarch 3,3008. ?'he n-gulations require ntribc to noai6 tt~c N1GC 

1 20 days in advance OF its plans ro license n nen- facility. AIthou~h I assured tlx *Yrih 

that the NJGC' wouId work Q i1I1 the 'I'rilx to diminish any adverse canscquenccs of Zhc 

120 day rule. ~hr' Trihtl apparct~tl). attcrnprrd to open its gaming faciiitl; at clkclu Flats 011 

Fzbn~rl~ 28.2008. It did nor do so however. 

On March 10.2008. rhe Tribe sukrnitttd an mended gaming ordinance COT I~c 

Ohaiman's cucsidcra~ian. The amended gaming ordinance is site specific 2nd the Tribe's 

goal in submi~ring he amendmen: is 10 attain final agency action. As a result. thc OfXcc 

of'Genertni Counsel hzs r,vorl;ud n,ith all due ddiligencc to review the Tribe's cIainls rhat it 

is entitled to opcmtc giamifig on its Neu S4cxico property pursuant to the Indim Ciarning 

Rugulaton Act IC;KAj. .As dctnilad below. wc c-oncl~~de That the 'KM propcrry docs no: 

quaIi :'?f for gaming ernder IGR-4. 

Ih Febmaq 73. 7008. the Fort Silt Apache *Tribe {Tribe) submitted its analysis that the 

'%be's trust Iand located in 1-una County. Yew Mexico. is Indian lands upor. nhich it 

ma? 1lawf~1l I: game pursuanl to IGRA. 25 U .S.C. 270 I er scq. Specifically. rhc Tribe 

assend that t Ilc land sarisfies rkc. -*East recognized reservation" cxc~qsion. 75 I ' .S.f'. 

$2719(a)(2)1I31. and rhe "msrorcd lands" sxccption. 75 LI.S.C. 6 2719{b)(l t(I3)fiii). In 
addition, tlre Tribe indicated that it also wishes to claim the "initial rescrvatisn" 

exception.' 25 U.S.C. $27 19(b)(l)(B)(ii). 

The Land Acquisition 

On October 23, 1 998, the Tribe acquired approximately thirty (50) acres of land in fec, in 

Luna County, New Mexico, The lc~al dmcriptiun of fhe land known as Akela Flats 

follows: 

That part of the North half WH) of Section Eleven (1 11, tying North of the 

lntmtate 10 right-of-way, Tomship Twenty-four (24) south, Range Six 

(6) w&, N.M.P.M., Luna County, New Mexico, being described as 

foI1ows: Beginning at a spike in the center of an abandoned asphalt 

roadway at t hc Northeast cwncr of said Section Eleven (1 1) and Northeast 

carncr of this tract; Thence SOc22'53'%y., along the east line of Section 

Elcvm ( I I), a distance of 500.76 fcct to a no. 5 steel rod at the Southeast 

corner of this tract and on the North boundary of the Interstate I0 right-ofway; Thence adjoining the North bmdasy of said 1-1 O right-of-way 

throush the folIowing comes md distances; along a curve to the Icfl fm 

a tangcnt which bears N,88°56"1 K'W., having a mdius of 789.30 feet, a 

delta angle of 32"47'40", a cord which 'bears S.T3"39'52"W.. 445.63 f'eet 

through an arc Icngth of 45 1.77 feet to I- 10 P.C. marker 1 13+30.62; Thmce 

S.57" % 2'44'-W.. a distance of 23 1.01 fect to 1-10 P.T. marker 8+W; 

Thence alon~ a curve to the right hrn a tangent which bears 

S.57"%6YPWw., having a radius of 1096.00 feet, a delta angle of 

39"58'50", a cord whiclz bears 5.77*15'43"W.. 749.36 feet through an arc 

Iengh of 764.78 feet to I- 10 P.C. marker 45+11.53; Thence 

N.82O45'7T'W., a distancc of 340.58 feet to a no. 5 steel d at the 

Southwest corner of this tract; ThenceN.0°21'53"E., along a fine pmllci 

with the east fine of Section Eleven (1 I), a distance of 871.49 fcct to a no. 

5 steel rod at the Northwest corner of this tract Thence N.X9'55'55"E., 

1 On February 25,2008, Richard Grellner, an attomay representing the Tribe, smt an +mail to Staff 

Attorncy Esther Bittlcr, cxprcssing the Trik's intention to claim the settlement of a land claim exception. 

25 U.S.U. 5 27 19 (b>(l xR)(i). 7he Tribe has suhmiaed no other information supponing this exception. 

l'bc Tribe might have argued that it settled a Id him in Cumancir~ .Fv'nrjon P Unirrcl States of Artterica. 

Tke rcsotutinn of that case is embodid in the Agreement of Compromise and Scrtiemt Rtxibls that was 

executed on January 9,1007 See C'nmalrche rt"ntion v. i1nii't.d Starm of A wmila, Agreement of 

Canlprumise ad Senlemcrn Recitals. CIV-05-328-F at 7(i) <W.D.OK, March 8,2007). The bnb however, 

was taken rnrn imiruf;t on July 23,2001 which was sevd years befm the Tribe Ned its complaint in 

rornanck~ Norion and prior to the exmutian of the settlement. The settlement of a Fand claim exception 

requires hat land be taken into trusr as part of a settlement of a land claim As Zs thead was taken into trust 

prior to the date the settlement was c.xen*ed, this axception is not applicable. 
along the No& line of Scction Eleven (1 11, a distance of I G88.27 feet to 

the point of beginning." 

Tnitially, thc Tribe rqucstd that the Burcau of Indian AfTaiirs (13L4) take the land into 

tmst undcr 25 C.F.R. Part. 15 X and Section 20 aF the XGRA. However, thc Govemol eT 

Yew Mexico declined to concur with the Tribe's The Tribe recnnsidd the uusc 

of the land. passing a resolution that its use would not change. At that time, kc Iwd 

known as Akela Flats was vacrant and undeveloped. See Tribal Council Resolution No. 

FSAABC-2000-19 (Feb. IS, 2000). 

On July 23,2001, he BIA issued n trust acquisition approval l~etem. In approving the 

acquisition the BIA noted that: 

The acquisition was in the best interest of thc Fort Sit1 

Apache of Oklahoma the~by promoting tribal selfdetermination and Iand for reeslablishent of the Tribe's 

Iand base in New Mexico. The Tribe stated the purposes 

for which this land will bc used are for a land base to 

reestablish its prescncc in its aborignal and former 

rescnyation territoria in New* Mexico. No dwefopment, is 

proposed at this time. By letter dated April 21, 1999, thc 

Tribal Planner transmitted a copy of Tribal Council 

Resolution No. FSd4BC-99-1 4 dated April 20,1499, and 

advised that through this Ilcsolution the Tribe was 

removing gaming as a purpose for this acquisition. %ad 

upon these s~atcmrmts, I dso make am that this 

acquisition is not for gaminmr pumscs. 'Phmfore, 1 am 

signing this letter of intent to take the Akela property into 

tmst status for the Fort SiiI Apache Tribe of Oklahon~a 

.fe~ Letter from Ethel Abeita, Acting Regional Director of BIA to Ruey Darrow, 

Chairwoman of the Fort Sill Apache Tribe of 0kf;ihoma {July 23,2001) (emphasis in 

original). 

Applicable Law 

For tribes to conduct gaming under IGRA. such gaming must be conducted on "Indian 

Imfnds," defined as: 

(A) all lands within the limits of any Indian reservation; and 

' SP~ Warranty Wd between the Schogpner Family Trust and the Fort Sill Apache Tribe (October 23, 

19'181. 

' Sw IxfZer iiom Gary Johon, Covmor, Stare of New Mexico, to Robert Barackcr, Area Director, 

Bureau of Ind~an Aflairs (Apd 1,19W), 

3 
(B) my lands title to which is either held in trust by the Unitcd States for thc 

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

individual subject to restriction by the United State against xialienation and over 

which an Indian tribe exercises governmental power. 

25 17-5.61.3 2703(4). S~E also 25 C.F.R. $502.12 (NIGC's implementing regulation 

further defining Indian lands). 

The land a3 issue here is not within a ?resent day reservation. Thus, for hut or lands 

subjccC bo a restriction to qualify as Indim Imds, a Tribe must pmsent evidence that it 

exercises govrmmental power over land at issue. Prier to answering that question, 

howcvc-r. we must consider the Tribe's jurisdiction ovcr the land, as a tribe must possess 

&torc~icaE and actual j urisdicfion to enable it to exercise govmrnmtd power over a 

parcel of land. 

Jurisdiction and the Exercise of Governmental Power 

As stated before, bibal jurisdiction is a threshold requiremerat to the exercise of 

governmental power. See c.g., RRde Island 1,. .Vavragameit Ikdian Tribe, I9 F.3d 685, 

701-703 (1st Cir. 1994), cert. denied, 513 L.S. 91 9 (1994), superseded hystarule as 

stated in hTurmgansftt lnciian Tribe v. Ndfiotrcrl lttdian Ganring Commi~sion, 158 F.3d 

1335 (D.C. Cir. 1998) Yln addifion & having jurisdiction, a tribc rntm exercisc 

governmental power in order to uiggm [IGRA]"): .;Miami Trib of Oklalro?tna v. United 

Stnres, 5 1:. Supp. 2d 1 2 I 3, I 2 1 7- t 8 @. Kan. 1 998) (,Winmi I0 (a tnbe must have 

jurisdiction in order to be able to exercise governmental power); Miami Tribe of 

Oklahot~ra 1. United Smfm, 927 F. Supp . 1 4 1 9, 1 423 ID. Kan. 1 996) (lMiumi I) (*The 

N1GC implicitly decided that in order to exercisc governmental power for purposes of 25 

U.S.C. 6 3703141, a tribe must first have jurisdiction over the land''): State ex. re!. Grmm 

v. Uuired Stares, 8G F. Supp. 2d 1 094 (D. Kan. 2000), ufd and remanded stl b nom., 

Kansas v. linilcd Srttres, 249 F.3d 121 3 (1 0th Cir. 2001). This interpretation is consistent 

wi tIl IGRA 's language limiting the applicability of its key provisions to "[ajny Indian 

tribe having jurisdiction over Indian tmds," or to "Indim lands within such tribe's 

jwidiction." 25 U.S.C. $5 271Q(d)(3)(A), 2710@)(1)); see also N~maganscf~ Indian 

Tribe, 13 F.3d at 701-703. As a thmhold matxm, we must thereforc cmnlyxc whether the 

Tribe possesses jurisdiction over ihthe trust parcel. 

Gcndly speaking, w Indian tribe: possess jurisdiction over land that the hibe inhabits if 

the land qualifies as "Indian country." Alaska v. Xaaiw Villuge of ly~rzetiu Triba!E GOY % 

522 U.S. 520,537 n.1 (199%). Congress defined the term "Indian country" as: "{a) a11 

land within the limits of any Indian reservation . . . . (b) all dependent Indian 

comrnunitics . . . , and (c) all Indian allotments, the Indian titles to which have not been 

4 
extinguished . . . ." 1 R U .S.C. t;; 1 15 1. Although this definition applies directly only to 

federal criminal juridictian, the courts have aiso generally applied this definition to 

questions of civil jurisdiction. JJmerie, 522 U.S. at 527. 

'tn its review of 18 U.S.C, 9 1351, the YenetSe coud found that the stahrtc contains two of 

the indicia prebiously USHI to determine what Iands constitute "Indian Cotmtry": (I) 

lands set aside for Indians and (2) Federal superintendence of those lands. Sep Verrerae. 

522 U.S. a? 527. In Venetie, the court obstmd that Section 1 151 reflects the two criteria 

the Sup-emc Court previously held necessary for a finding of "Indian County." 522 US. 

at 527. Further. reservation status is not necessary for a finding of '-Indian ~ountry.'" 

'The 'Yenth Circuit round that '"lojficial designation of mavation status is not: necessary 

fbr the propcrtl; to be treated as Indim Country under 18 U.S.C. $ 1 15 I ." rathcr. "it is 

enough that thc propwty has kcn validly set aside for the use of the Indians, under 

Sederal supcrintendcncc." Gild Stales v. Roherts, 185 F.3d 1125, 1133, n.4 (10th Cir, 

1999). Further. "resrrvatjon status is not dispositive and lands omd by the fderal 

government in trust for Indian tribes are Indian Country pursuant to 18 U .LC. 9 1 15 1 ." 

RO~ETIS, 1 85 F.3d at 1 t 30. Thus, as lon~ as the land in question is in trust, the courts 

make no distinction between the types of trust lands that can be considered "Indim 

Country." Roberts, 185 F.3d at 1 13 1. n.4. Accordingly, Imds held in trust, fee simple 

restricted stabs. allotments and resen7ations are all considad '?*dim ~ountxy."~ 

Consistent with the Supreme Court decisions discussed above, Akda Flats qualifrcs as 

'7rtdim ccauntry," becawe the land has been validly set-aside for the Tribe vndw the 

superintendence of the Fdd government. Because the land is Indian country held in 

trust for the Tribe, we concludc that the Ttibe has jurisdiction over it. 

&. Got-ernmental Power on Non-Resewation Trust Land 

NCX~ we Imk ta whether the Tribe exercises governmental power over Ajrela Flats. See 

2 5 U. S.C. $2703(4)(B); see also Rlrode Islund v. Nurraganseu I~~~uII TriteI1 9 F.3d 

685,703 (I st Cir, 1494). 

lGTth js silent as to how NTGC is to decide whether a tribe exercises govmmental 

power over lands at issue. Furthermore, the manifestation of governmental power can 

diffct dramatically depending upon the circumstances. For this reason, the WIGC has not 

formulated a uniform definition of "'exercise of governmental power." but rather decides 

that question in each case based upon dI the circumstsutccs. See National Indian Gaming 

Co~nrnission: Degnitions Under the 'Indian Gaming Regulatory Act, 57 Fed. Reg. 12382, 

' Srr Oklnhom Tar Comtn 'n v. Citizen Bclnd Po~uwa!omi Idim Tribe ofCIkIc~harnd, 498 U.S. 505.5 1 1 

.( I99 1) r'Yo preden% of this Court has ever drawn the distinction betwwn hiM rmst land and reswation 

that Oklahoma urges.") 

"eta Lhi~c<! Stflfr3 R %ndov~l. 23 1 U.S, 28 (1 913) (fee restricted land as hdian Country); Unirtd Sf~tev v. 

Pclicmr, 232 U.S, 442 (1 9 14) (allotment as Indian Corn); United Srfflcs v. McGown, 302 11.S. 535 

(1 418) {mst hnd as Indian Country). 

5 
12388 (1992). CslseIaw provides some guidance. The First Cixxit in ~Varmgansctt Indiun 

Tribe forlnd that satisfying his: requirement depends '"upon the presence of concrete 

lnanifestations oY[gov@mmentalj aur'norip.'" 19 F.3d at 703. Such examples include the 

establishment of a housing authority, administration of health care programs, job training, 

public safety, conservation, and other governmental programs. Id 

In CJ~crcmte Rivm Sium Tribe v. State of Soulk Dakora, 830 F. Supp. 523 (D.S.D. 1993, 

afd. 3 F.3d 273 (8th CCir. 1943), t11e leoaurk stated that sevwal factors might be relevant to 

a defermination of whether off-resewation trust lands constitute Indian lands, Thc factors 

we=: 

I ) Wether fie areas are developed; 

(2) h-hethcr the tribal mcmbes reside in those areas; 

(3) Whether any governmental services are provided and by whom; 

(4) Whether law mforccment on the lands in question is provided by the 

Trihc; and 

f5) Other indicia as to who exercises goventmental powcr ovcr thosc areas. 

Ed. at 528. 

In this mattcr, the Trihc has identified several actions that demonstrate its prescnt 

cxcrcise of governmental power over AkeIa Flats. Specifically, thc foilnwing actions arc 

signi ficanl: 

{I) The Tribe has fenced off the land; 

(2) The Tribe has begun constniction of a gaming Facility on the sifc; 

(3) The Trjbe has issued a facility license to the saming faci Iit y; and 

(4) The 'f ribe: is in the process of improving the roads on the site. 

Thew actions constitute "conc~te manifestations of governmental authority'' over AkeIa 

Flats. Thmfh, the Tribe exercises governmental power over Akela Flats. 

Application of 25 U.S.C. 5 2719 

A detcrmirtatian of whether a tribe is exercising governmental powers over the subject 

parcel, howcvm, is not nwdfy the end of the inquiry. lGRA gcneraHy prohibits 

gaming on lands acquired in .trust &er October 1 7, 1998, unless one of the statute's 
csceptions apply. 25 U.S.C. $2319. Accordingly, for Imds taken into trust afies October 

17, 1988, it is necessary to review Ihc prohihition and its exceptions to determine whether 

a tribe can conduct gaming on such lands. 

The Trihe aIleges that the land a! issue qualifies for ICIM's last recognized rescmation 

exception and its restored lands exception. The last recognized reservation exception 

allows gaming on Indian lands acquired in mst after October 17,1988, if the Indian tribe 

has no reservation on the October 17. 1888, and "such lands are located in a State othcr 

than Oklahoma and are within the Indian tribe's Iast =cognized reservation within the 

Statc or States within which such Indian tribe is prescnt.1~ located." 25 U.S.C. 

5 27 1 9(a)(2)(%). The restored lands cxcepzion allows gaming on Indim lmds acquired in 

trust after October I 7, 1988, if &e lands are rakcn into trust as part of the "rcstohation of 

lands for an Indian tribc that is restored to Federal recognition." 25 L7,S.C. 

g 27 19(h)(l)(B)(iif). Thc Tribc also claims that the land satisfies the "initial mewation'" 

exception which allows gaming on Indian lands taken into ms2 as part of a crik's ''initial 

reservation of an Indian tribc ackrrowledged by the Secretary ztndcr the Fdml 

acknowlcdgmcnt process." 25 U.S.C. 3 27 1 9@)(l){R)(ii). 

I. Last Reco:nized Reservation 

Thc Iast recoentzed reservation exception allows gaming on Indian lands squid in tmt 

after October 1 7. I 988, if the Indian uibe had no reservation as of Octobm 17, 1928, and 

"'such lands ate located in a State other than Oklahoma and are within the Indian bribe's 

last recognized reservation within the State or States wi&in which such lrzdiavl tribe is 

presently located.'' 25 U.S.C. 5 271 9(a)(2)(B). The first hvo park of this exception are 

met: thc Tribe had no reservation on October 17, 1988, md the land is in New Mcxico, a 

state o~hcr than Oklahoma. Wc now consider to whether Akela Flats is within thc State or 

States within which the Tribe is presently located and whether Akela Flats is within the 

Tribe's Ia~t recognized resenfation. 

IGM docs not define "presently located." Whether the Tribe is "resently )tlocakd" in 

NLW Mexico turns on the scope and meaning of the lerm "presently located." To 

dcterminc the scope of a statute, we look first to its lanpse. Rmes v. EYP.N~S! & Yming, 

507 U.S. 170, 177 (1993). To ascertain the plain meaning of a statute we look to the 

particular statulary Ianguase a% issue, as well as the language and design of the statute as 

a wholc. Ktnarf Corp. v. C~rrrtier, Inc., 486 U.S. 281,291 ('1 988); (See also, U.S. v. 

S"L.minole Nution ofOklalzoma, 321 F.3d 939,944 (10th Cir. 20021, "In interpreting a 

statute, the [Tenth Circuit) gives effg~t to a statute's unambiguous tcnns. in ascertaining 

the plain meaning of the statute, the court must look to the particular statutory language at 

issue, as well as the language and design of the statute as a whole.") Furthemore, we 

must give the words of the statute "their ordinary. contemporary, common meaning, 

absent an indication Congmss intended them to hcar same direrent import." WiIIiums v. 

TqIor. 529 U.S. 420,433 (2000). 
'The NIGC has defined "presently Iacnted" 'to mcan where a tribe physically resides, and 

''to determine where this is the YTGC iooks to the seat of tribal government and 

population cent^." Wyundotte i?fution v. .%2fi~na/ I~~diarr Gaming Cornmission, 43 7 

F.Supp.2d 1293, 1205 (Kmsas 2006). Thc JYy~tndofte court. however, accepted a less 

rcstsictivc definition of vprescntly located." It concluded that a tribe is presently located 

where "a tribe has its population center zmd major govmmental presence.'' IdTd. at 1206, 

We conclude that under either test, the Tribe is not presently Iocatcd in the State of New 

Mexico. 

A, Seat of Tribal Government and Population Center 

To determine where the Tribe is located, we first consider thc location of the Trihe's scat 

of government and the focation of the Tribe's population center. The Tnibe meets neither 

test. 

The Tribe argues that it is prwentIy located in Neul Mexico bccause the Tribe has: 

I . expressed its intent to repatriate back to the State; 

2. rcccivd correspondmce from the Governor in which d~c Governor expressed his 

support of the Tribe's effort to mum to the State: 

3. purchased Akcla Flats in 1998 and Akcla Flats was taken into trust; 

4. submitt4 an application questing a Reservation Proclamation be issued; 

5. allegedly opened tribal offices at Akela Flats ancf is administering programs to its 

tribal members from that location; 

6. sought to purchase additional land within the New Mexico; 

7, enter4 info discussions with the Bureau of Land managemenr regarding ?.Taking 

over the conservancy of protected sites in Dona Ana County, New Mexico; 

8. received raumcrous cornrnunjcat.ions From Federal, State, and local agencies 

seeking thc Tribe's participation, comments on, or consultation regarding prqiects 

or actions throughout the Tribe's fomer reservdtion in New Mexico; 

9. asserted that individuals who are now members of the Mescalem Apache Tribe 

may qualify for membership to the Tribe if they choose to revoke their Mescalem 

Apache membership; 

10. aw,&ed that thirty current members af the Tribe Five in New Mexico; 
1 1. provides educational program benefits and per capita payments to all members, 

including those members that resjdc in New Mexico; and 

12. conduct4 elections in which any member may participate through rnaii-in ballot. 

including those members who reside in New Mexico. 

The Tribe's govcmmental headquarters is located in Apache, Oklahoma. Sep 

Mcmomdum of Support of Fort Sill Apache Tribal Gaming Commission Luna County, 

New Mcxico Gaming License, page 10 (Feb. 22,2008). On March 37,2008, the Tribe 

passed rcsolutians transferring several of its tribal propms to the Tribe's New Mexico 

Office. The follotving programs were allegedly transferred: 

1) Section 106 Consultation Prosram; 

2) Cultural Resource Management Program; 

3) Native American Graves Protection and Repatriation Act Pmgram; 

3) Environmental Protection Agcncy Program; and 

5) Higher Education Pmpm. 

Sre FOI? Sill Apache Business CommiMm Resolution Number FSABC-2008- 15; FSABC2008- I 6; FSABC-2008- 17; FSABC-260S*Z 1 8; FSABC-2008- 18, In addition, the Tribe 

may have also relocated its per capita prom to New Mexico. While the Tibc may 

have authorized the transfer of tf-rcse programs, the Tribe did not submit my evidence that 

thesc pragams are presently administered Crom the site. Moreover, the transfa of several 

tribal pmgrams does not equate to the establishment of the seat of tribal government in 

New Mexico. Thus, the seat of the Tribe's government remains in Apache, Oklahoma. 

The Tribe has not demonstrated that its population center is located in Nmv Mexico. The 

Trjbe notes that half of the Trik"s mmbers live outside the State of Oklahoma and that 

this resultcd from the Tribe's lack of an adequate land base in Apache, Oklahoma. The 

Tribc also acknowlcdgs that its M'bal rolls do not reflect a large number of members in 

New Mexico. Ile Tribe's current tribal membership roll indicates that the Tribe has 

approxi rnatcl y 635 enrolled membm. See Letter from Phillip Thompson, Attorney fw 

Fort Sill Apachc Tribe, to Esther Dittler, Staff Attorney, NIGC, Enclosure I 0 (Apxil7, 

2008). Approximately two hundred ninety seven (297) tribal members, forty-swen 

percent (47%), Iivc in Oklahoma. Id. By contrast, approximate1 y twenty six (26) tribal 

nlcmhers. four percent (4%), live in Nmv Mexico. Td. 

'I'ht uibal membership rolls demonstrate that a majority of the Tribe's membership is 

disbursed ovm a pal many states. 
Figure 1 : Fort Sill Apache Location of Enrolled Tribal Members hy stated 

tare as a Percent 

%ah Source: Ltttcn. hm Phillip Thompson, Ailorney for Fort SiIl Apache Tribe, to Esthcr Dinler, Staff 

Attorney, NIGC. bsent Tribal Membership Roll - Enclosure 10 (April 7,2008). 

10 
TIlc Tribe notes that there arc an mnatfctmined number of individuals who arc now 

members of the Mescalero Apache Tribe, somc of whom may qualify for membership in 

the Tribe il'zhey C~IUSC to renounce their Mescalcto Apachc mmhhip. Potential tribal 

rnenlkrs, by definition, arc: not members of the Tribe; therefore, such individuals arc not 

properly considcrcd in this analysis. The approximately twenty six (25) tribaI members 

who reside: in New Mexico do not rqresent the Tribe's population center. fian(iatte 

-irrio'on v. :V~lti~f~~lllndi~n Gnmirg Commissiwr, 437 F.Supp.2d 1193,1207 (Kansas 2006) 

(rcjccring the assdon that appraxin~ately 100 members residing in the county 

constitutes a popu1afion center). 

Consequently, the Trihe's population center is clearly located in Oklahoma. Furthermore* 

the Trihc's seal of government is in Apache, Oklahoma. 

R. Major Governmental Presence and Population Cenfer 

Some Irihs have resma~ions that span more than one state. (e.g the Navajo Nation's 

rescnlatio~i spans the borders of Arizona, New Mexico, and Utah). In such a case, a tribe 

may bc "pr~wntly located'' in more than one state, that is, the Tribe may be presently 

locatud in "states." 25 U.S.C. Ij 771 9(ii)(2)(3), Although it is possible for a erilse to have 

merc than one sea1 of government (e.g., he Seneca Nationms seat of government rotates 

betxveen two reservations), gmcrally a Tribe has on1 y one scat of ~ovement. if the 

NIGC applicd the seat of tribal government test in circumstances where a tribe's former 

resenlation spanned more than one state, any tribe with one seat of government would be 

preciuderl rmrn gaming on at least pad of its last recognized mscrrarion, and we would 

have failed to give effect to the term "states" within the meaning of 25 U.S.C. 

$ 27 1 9{a1(2)(B). 

I-lowever, while a tribe that may be located in more than onc state and may have one seat 

of government, generally, the hibe will maintain a major governmentaf presence in the 

states through the provision of services to tribal members. Therefore, in circumstances 

where a tribe's last recognized reservation spans more than one state, and in order to give 

effect to the term "states," the NIGC looks ra a tribe's population ccnter and for a "major 

governmenu1 presence." 'IVl~ere statutory lmgarage is ambiguous, a court wi I E defer to 

the NlGC's reasonable interpretation efthe language. U.S. v. Seminole NnFion of 

Okd~homa, 32 1 F.3d 939,944 ( E 0th Cir. 2Q02). In V<vandorre Nation, the District Court 

for the District of Kansas found that a review based upon population center and major 

governmcntsl presence was a "reasonable interpretation in light ofthe plain meaning of 

the phrase presently located, and adopt[ed] the me."' Wv<iadofde Nation v. NIGC, 43 7 

F.Supp.2d 1 195, 1206 (2006). 
The Tribe has not demonstrated that it has a "major governmental presence" in New 

Mexico. An expression of intent to repatriate back to the Statc, comspondencc From the 

Govcmor cxprcssing his supporl of the Tribe's cfforf to return 10 the State, purchase of 

the land at issue and subseqlnmt trust acquisition, the sribmjssion of an application 

rcqus~ing a Rcsemation ProcIamation, and the Tribe's effort to purchase additional land 

within the Ncw Mexico simply do not demonstmte a major governrnmtal presence in 

Ncw klexico. 

Tfie Tribe also rtsserts that iz has opencd tribal offices on the land a1 issue and is 

administering pmgrm~s to its tribal members from that location. Based on observations 

made by NIGC fxdd staff, there arc no tribal ofices on the site and no programs being 

administered on thc site. As mentioned above, the Tribe recently authorized the transfer 

of several tribal programs to New Mexico. While the Tribe may have authoked the 

~ansfer of these programs, we have na evidence that my programs are presently being 

arfministercd from the sitc. 

Thc Tribe furthw asserts that it has a govmmmtal presencc in New Mexico throu& thc 

provision of ccrtain services to members who five in the state. The Tribe's government is 

Iscatod in Apacl~c, Oklakoma md it permits tribal mmbem to participate in various 

tribal pra,gams through the mail. Specifically3 the Tribe permits its rncmbcrs to 

participate in its cdueation programs, dis&ibutes pcr capita payments, and conducts 

elections through the mail. Thesc activities instead of establishing a governmental 

presence in Ncw Mexico, establish that the Tribe is cxctcising its govemmmtal pawcr 

from the State of Oklal~on~a. 

Further, the Tribe has indicated that ir has entered into discussions with the Bureau of 

Idand management regarding taking over the conservancy of pxatectd sites in Dona ha 

County, New Mexico, and suggests that &is contributes to the Trihc's presence in the 

State. The Tribc has not asserted that it is currently acting as the canswator fur these 

sites; thmcfore, these discussions do not support the claim of a major govemrncntal 

presence within the State. 

In addition, the Tribe notes that it received numcrous communications from Federal, 

State, and lml agencies seeking the Tribe's participation, comment. or consuItation 

regarding pmjccts or actions in Ncw Mexico, including onc letter from the Department of 

the interior, Bmau of Indian Affairs, providing the Tribe with notice and an opportunity 

to comment on a Wo-park determination for the Pueblo of Jmcz pursuant to the 

exception contained in 25 U.S.C. 2719@)~l)(a).~ The Tribe suggests that these 

communications represent the acknowledgement of the various governmental agencies of 

the Trihe's physical presence in New Mexico. At most, these communications 

acknowledge thc Tribe's potentid interest in the proposed action. In particular, Section 

' We note that this comspondcnce was sent to the Tribe's g~vwnmentill headquarfers in Okiahoma. 

12 
20 oflGRA rcquircs the Secrebry of the Interior to consult with any "'nearby Indian 

&iW' whi 1e considering a two-pM determination. The Secretary has not yet adopted a 

definition for "nearby Indian tfik.'Wowever, the Secretary has published a proposed 

dc ftni tjon for "nearby Jndian Iriti." Undcr the prop& definition: 

Nearby Indian tribc means an Indian tribe with tribal Indian lands, as 

defined in 35 U.S.C. 2703(4) af IGRA, Iocakd within a 25-mile radius af 

the location of the proposed gaming establishrncnt, or if the tribe js 

landless, within a 25-mile radius of its pvcmmental headquarters. 

Gaming on Tn~st Lands Acguircd After October 17,1988,7 I Fed. Reg. 58769 [Oct. 5, 

2006) (to be codified at 25 C.F.R. pt. 292). Similar to the other requests. for comment or 

consultition, thc Secretnry's notice and request for comment acknowledge that the Tribe 

holds Indian Lands in New Mexico and is not an ackfflowledgment that the Tribe is 

'pe.wnt1 y located" in Ncw Mexico as con~emplated by 25 U.S.C. 5 27 19{a)(2)(B) or is 

eligible to game on such lands under $27 19. 

Taken together, the actions taken by the Tribe establish that it is exercising its 

governmental power from the State of Oklahoma ad that, at besi, its governmental 

presence in Ncw Mexico is Iimited, Tlrcrefore, the Tribe has not estabIished that it has a 

"major governmental presence" in New Mexico, or, as noted above, that its population 

center is located in New Mexico. 

C. The Tribe failed to show that the parcef is located within its last recognized 

reservation, 

The Tribc has failed to demonstrate that the land it intends to gamc on is "within the 

Indian tribe's la% rcmgnized reservation . . . .'* 25 U.S.C. 271 9(a](Z)(PI). The Tribe 

failed to show that my land was designated a reservation for its benefit in New Mexico, 

lct alone that Akela Flats was part of it. Mer from Phillip Thompson, Attorney for For& 

Sill Apachc: Tribe. to Esther Dittlet, Staff Attorney, NIX, 6 (April 7,2008). Thc Tribe 

states: 

In New Mexico, thc only ~eservation which may have ben dcsignnted for 

the Chiricahua or Wm Springs Apaches was the Hot Springs 

Rescrvatiiorl. . . The Executive Order establishing the Hot $pings 

Reservations mentions the Southem Apaches. The Souther [sic] Apaches 

[however] is not a designation us~d to describe the Tribe in the ICC 

opinions. 

The Fort Si l l Apache was found to be the successor-of-interest of the ChisEcahua and 

Warm Springs Apache Rands. Fort Sill Apache Trih~ 11. Uni~ed sf ate^. 1 9 Ind. Cl. Cornrn. 
2I2,2F 5 (June 28, 1968). As the Tribe indicated, the ICC opinion did not specificaily 

find that Southern Apache was ns designation us4 $0 describe thc Skibe. Therefore, it has 

no claim to the Warm Springs stsenration. 

Alternatively, the Tribe claims that iis last recogized reservation is the land described in 

Finding of Fact 13Ia) of the case Fort Sill Apache Trihe v. UnitedSfotes, 39 fnd. C1. 

Comrn. 212, at 2241 -242. The land defined in that case encompasses Akela F~IS because 

it encompasses half of Arizona, half o~Nm Mcxica, and part of Mexico. The Tribe 

wants to claim that this entirc area constitute. a reservation, and thus Akela Mats is part 

of rl-te last recog~izd reservation. Howcver, Finding of Fact 13(a) designates the lmds to 

which the Tribe held aboriginal title as of September 4, I886 and docs not connate a 

rescrvat i en. Id. ;fr 24 1 , 

Many definitions mist for what consritutw a rcsmation. Resewation originally meant 

any Iand resewed from a Tribe's cession of aboriginal terrifory. SEE F. Cohm, Hanrlhoak 

or! Federal Indian Lau; note 3 at 34 (1982 ed.). Over thc years a number of definitions 

havc arisela in Indian law including the following: 

Rescwalion includes Indian rwmations, public domain Indian allotments, 

former Indian reservations in Okt&oma, and land held by incorporated 

Native goups, regional corpoxations, and village corporations under thc 

provisions of the Alaska Native Claims Settlement Act 143 U.5.C. 1601 et 

sea.]. 

25 1J.S.C. 4 1452Cd). Another definition of resoation is that: 

Reservation means, for purposes of this part, &at ma of land which has 

been set aside or which has keen acknowledged as having been set aside 

by Ihe United States for the use of the trjbe, the exterior boundaries of 

which arc morc particularly dehd in a final treaty, Federal agreement, 

Executive or secretarial order, Executive or secretarial proclamation, 

Unltecl States patent, Federal statute, or final judicial or administrative 

determination. 

35 C.P.R. 5 15 1.2. EIowcver, the Tribe's claim as to the land described in Finding of Fact 

13(4 cannot meet any of the definitions of resetvation because the Tribc does not provide 

evidence that it ceded its lands and resewed a part or that the fdmE guvmment set 

aside any tracts for its usc as a reservation. Because the Tribe failed to present evidence 

of a last recognized reservation, it cannot claim that Alrela Flats is located within that 

area. Thus, the Tribe cannot claim that exception under TGU. 
11. Restored Lands for a Restored Tribe 

The Fotl Sill Apache Tri he also claims that Akcla Flats meets the restored lands 

exception of IGM. Hawcvcr, because the land was not placed into trust for the Tribe as 

part of a restomtion, it docs not qualify for tI~c cxceprion. 

For tmst lands to qualiry for thc restored Iands exception, fhe tribe must present evidence 

that meets both of the following requirements: 1) the tribe has been restored to its federal 

recognition and, 2) the land at issuc was placed in tmqf as part sf a "restoration of lands'' 

for the tribe. If the evidence presented fails to meet either of these rquirements, then the 

land at issue cannot qualify for the restored lands excpiion. 

Aflcr an examination of the evidence, we conclude that the Fort Sill .Apache Tribe is not 

a rcsfared tribe, irnd Akela Flats does not qualify for the restored lands exception under 

25 G.S.C. 3 27 t Q@)(l)iR)(iii). 

A. The Ft. Sill Apache Tribe's evidence is insufficient to prove that it constitutes a 

restored trihe. 

To bc considered restored, a tribe must present evidence of: 1) fderal government 

recognition; 21 termination of recognition; and 3) restoration of rocogni tion. See Grand 

Trrverse Bmrd of Oiirawu and Chipp~~va hdians v. Wce of rhe iY. S. Afomqfor the tF 

Dt~r. qf.Wich., 369 F.3d 960,967 (6th Gr. 2004). 

1. The federal government mcognhed the Fort Sit1 Apache% 

ancestors, the Chiricahua ~nd Warm Springs Apache. 

To claim federal ~cogniticm. a bibe must present evidmce that shows that tkc fderal 

govcrnmcnt views it as an entity with: 

Immunities arad pri+ileges available to othm federalIy acknowledged 

Indian tribes by virtue of their government-to-government relationship 

with the United States as well as the responsibilities, powers, limitations, 

and obligations of such tribes." 

The Fort Sill Apache descend $om the Chiricahua and Spring Apache Bands and 

claims its ancestors' federal recognition for its own. The Fort Sill Apache takc their 

1 anguage, history, md eul ture from the Tribes that lived as one community. Forl SiIi 

AptrcJre Tribe 1~- Slnired Sfarm, 19 Ind. C1, Comm. 212,221-223 (June 28, 1968). The 

Tribe considers .the Chirjcahua and Warm Springs Apache's territory to be its own 

ancestral hnmdmd, and the courts agee. Fort Sill Apnclze, 19 hd. C1. Comm. at 224. 

Furihcr, the court has declared thc Fort Sill Apache Tribe to be the successor-in-interest 

' lb~nirncbe ,4!otir~ii 1.. United Sfnres of America, Ageernent of Compromjs~ and Seltlemnt RPxiidgls, CIV05-328-F at 7(i) { W.ES.QK, March 8.2007jqciting 70 Fed. Reg. 7 2 194 at 1 (Nov. 25, 2OQ5)). 

15 
to the Chiricahua and Warn Springs Apache. Id. at 2 15. Thus, the Fort Sill Apache Tribe 

is the same tribe and can claim the political history of its ancestors as its own. ld. at 220 

(citing hTookrrtck Tfie rr. United ft'rrfes, 3 Ind. C3. Comm. 479; Snake or Piurr Jttrlians v. 

Unilrd Siatcs, 4 Ind. C1. Corn. 5 76,6 1 2). 

With this in mind, the histoy of federal recogition of the Tribe is evidenced by thc 

Treaty of Juiy I, 1 R52, and other contacts with the federal govmment. 

a, The Treaty of July 1, f 892. 

In 1552, Coloncf Sumner repmmtd the federal government in treaty negotiations with 

the southwcstem Apache tribes. Id. ax 22?. On July 1 1, 1852, Mangas Coloradas, chief of 

thc Chiricd~ua Apaches signed the Treaty of July 1. 1852. Id. at 228. In this treaty, thc 

Apache awcd to remain peacehl md not make war on cach other or the United States. 

See Treaty with the Apache, July 1, 1852, Art. 2. The tribes agreed to designate forma1 

boundaries and wield their sovereign powers to pass laws within their territory. See 

Treaty of July I. 1 852, Arl. 9. Congress ratified the treaty on March 23, 1853. !O Stat. 

979. 

This agreement is evidence of the federal government's recognition of the Chiricahuas 

Apache's sovereign sbk~s ad thc government-to-govemmmt relationship. Fwpl Sili 

Apocfie, 19 Ind. C1. Cornrn. at 239. Because the Fort Sill. Apache Tribe is a successor-ininterest to the Chiricahhua and Warm Springs Apachc, the Fort Sill Apache Tribe may also 

claim this p~vious recognition. Con~anch~ Nation, CN-05328-F at 71g). 

b. Other contacts with the federal government. 

'The Acl ar February 27, 1851' allowed the United Statcs to extend the Indian Trade and 

Inttrcaursc Act of June 30, t 834'' to tribes in New Mexico, This included all Apache 

tribes. The Act extended ihe right of occupancy to al! tribes in that area and made it 

ilEegal to dispossess tribes and individual members of that sight. 

This Act furthcr evidenced the government-to-g.ovemme relationship betwecn the 

Clriricahua and Warm Springs Apache and thc federa1 govanmat. ahus, the descendents 

of the Chiricahua, its sumessor in interest known as the Fort Sill Apache Tribe, enjoyed 

that ~Ialianship and federal recognition. 

2. The Tribe's widence is insuficient to support the cIaim of 

termination of the Cbiricabua and Warm Springs Apaches. 

Resisting removaI to the San Carlos Reservation, bands of Chirichua and Warn Springs 

Apachc engaged in hostilities with fdcrat forces. For! Sill Apncl~e, 7 9 Ind. C1. Camm. at 

" %I!. 574,537. 

lo 4 Stat, 728. 
244. On September 4,1886. thc Chiricahua undw Geronimo surrendered, and the 

Apaches were hkm to Florjda as prisoners of war. Id. at 245. On this date, the fdemt 

gotlemmcnt took away the Chiricahua Apache's aboriginal fitlc to its lands in Arizona, 

New Mexico, and Mexico. Id. 

This action. however, did not necessarily constitute the federal government" fmimtion 

of the Tribe and a cessation of the gol'ernment-to-govemmcnt relationship, In fact, the 

Unitcd States military forms' decision to take the Chiricahuas as prisonen of war 

indicates that Be Tribe was stilI considered a hostile but separate and sovereign entity. 

Tlw Fort Sill Apache Tribe failed to provide any furtI~er evidence to connote ternination 

of federal recognition. Thus, the Tribe's presented evidence fails to definitiveIy establish 

termination. 

3. The federal government accepted the Fort SilI Apache Tribal 

Constttlrfioo and agreed that the Fort Sill Apache acts as the 

sucressnr in interest for its ancestors Tribe, the Chiriahue and 

Warm Springs Apache. 

One way that the federal govcmment may recognize an Iadian hibe is through the Indian 

Reorganization Act (IRA) of 1934,25 U.S.C. 5 476(a). Under the IRA, a tritrc may adopt 

a cons~irution by majosity vote that is then sent to the Secretary of the hterior for 

approval. 25 U.S.C. 3 476(a). On August 16,1976, the Bureau of Indian Affairs approved 

the Fort Sill Apache Tribe's Constimion. Comnnche d?Jarioft, CIV-05-328-F at 7G) (citijag 

70 Fed. Reg. 7 1 1941. This approval reflects the @vernmmt-to-govem1ent relations 

bctwecn the Tribe and the Federal government. 

Further, the Tribe's status became a stipulated point in a 2007 trust land case invclluing 

the Con~anche Xaiion and a Fort, Sill Apache casino. Id. in that case, the Department sf 

the Interior !lad mnsfened into trust a parcel of land that had once belonged la a member 

of the Commchc fiation but did this on khalfof the Fort Sill Apxhe Tribe. Id. a1 I. The 

dcpartmcnt's failure to notify the Cammche Nation led TO a lawsuit that the partics 

settled under a set of stipulations. Id. The =levant stipulations are as follows: 

719). The Fort Sill Apache Tribe is a succcssor-in-intenzrt to the 

Chiricahua and \tram Sprinp Apache Tribes whose aboriginal tdtory, 

as defined by the Indian Claims Commission and as affirmed by thc 

Unitcd States Court of Claims, includes thosc parts of Arizona and New 

Mexico tvherc the Tjnitd States currently holds land in Wst for the 

bctlefit of the Fort Sill Apache Tribe. 

(bf. Tfic IJr~ited States once maintained a goxrerrzment-to-governmat 

relationship with the Chirictduzl and Warm Spn'nss Apache Tribes, as 

evidenced by treaties, negotiations with tribaI leaders, provision of 

services to the ttihcs and tribal members, and other govment-to- 
government relationships clearly identified in numerous legal actions 

maintained before the Indian Claims Commission, United Slates Court of 

Claims, Unitcd States District Courts, and the Unit& States Department af 

the Interior Board of Indian Appeals. 

(j). On or abut Augst 16, t 376, the Commissioner of Indian AEaiss 

ComalIy app~oved the Constitution of the Fort Sit1 Apache TriAe, and 

thereafter the United States acknowldged the Fort Sill Apache Tribe to be 

a Federally Recognized Tribe, :,and has mainhind a gwment-togovmrncnt relationship with the Fort Sill Apache Tribe since that date. 

(I). The Fort Sill Apache Tribe has land in Mew Mexico held in federal 

Cmst status within the former aboriginal: andor Indian Title lands of the 

Chisicahua and/or Warm Springs Apache Tribes as defined by the Lndian 

Claims Commission and the United States Court of Claims. The United 

States agrees zo accqt and timely process a Fort Sif l Apache Tribe 

applicat~on for a reservation proclamation on land curnut1 y held in msi 

for the fort SjlI Apache Tribe which is located in Luna County, New 

Mexico. 

Thus, the court: md the United States agreed to the Fort Sill Apdte's sovereignty md 

federal rec~~gnition. Further, thcse stipulations support the view &at the: Tribc was once 

recokgized as the Chiricahua and that the Chiricahua Tribe was subsqurntly recognized 

as the Fort Sill Apache. The evidence presented, however, fails to show that the 

governmen t-to-government relationship with the Chiricahua, wd thus the Fort Sill 

Apache, su ffcred tamination. Thus, the Fort S j 1 l Apache Tribe has not presented 

sufficient evidence to establish that j t is a restored tribe. 

Because the T*be laas not estabf ished that it is a restored Tribe, we need nut dctmine 

whether Akela flats is part of a restoration of lands. However, the MGC is concmd 

with the evidmce prcsentcd and details its concerns bclow. 

B. Akela Flats is not conclusively part of a arestoration sf lands." 

IGRA does not define restore and resrorarion, hut absent express indication from 

Congress to the contrary> we must give the words tbeix plain meaning. Grad Traverse 

Brand of Ortnrvu narl Chippewn Indians v. oflee ofthe U.3. Artomey for the Vm Dist. of 

.IMicIt., 198 F.Supp. 2d 920,928 (W. D. Mich. 2002). lGRA does not require that a 

"restoration of lands" be accomplished *mu& congrcssiandl action or in the very same 

transaction that restored the tribe to Federal recognition. Lands may bc restored to a tribe 

through the admjnislrative fee-to-tmst proccss under 25 C.F.R. Part 151 .I1 

'"rand Traverse Band of Uitawa and CXpptwa India= v. United States Attorney, 198 F. Supp. 2d 920, 

935-56 (W.D. Mick. 2W), aff d, 349 F.3d 960 (6th Cir. 2004) (Grand Traverse II); Co~~fedmted Trik aT 

C'oos, Lower ljqqua & Siuslaw Indians v. Uabbirt, 116 I;. 3qp. 2d 155, 161-54 {D.D.C. 2000); Ch~d 

18 
Limits cxisr, ho~vever, as to .;-hat constitutes restored Iands. Thc exception is nor meant $0 

extend to '"my lands that the tribe conceivably once occupied tlxxuughout its history-" 

dYGC Grand Truvcrse Opinion at 15 (August 3 1 ? 2001). The United States District Court 

fbr the Western District of Michip noted the limitations, stating that they cxist to 

avoid a result that "my and all properky acquired by mstosed tribes would bc eligible for 

gaming.'''' Thc cotrrt continued: 

The term 'restomri~n" may be read in numerous ways to place belatedly 

restoral tribes in comparable position to mIier recognized tribes whilc 

simolfanmusl y limiting after-acquired property in some fashion. 

Grctnd Tt-uver-sc 1. 195 F-Supp. 2d at 935. Thus, courts now apply a three-factor tat to 

dctminc whether land meets fine rcstmd lmds exception under TGRA: (1) the factual 

circumstances of the acquisition, (2) the location of the acquisition, or (3) thc temporal. 

relationship of thc acquisition to the tribal restoration. Id. These factors are a balancing 

test and not all factors must weigh in the Tribe's favor to meet the exception Td at 936. 

These factors focrgdher, however, must indicate overall that the Tribe aqua Akela Flab 

*d~ pan of its initial attempt to =build its land base. 

On balance, we remain concerned that the factual circumstances and the location or the 

acquisition ate not strong enough to firliy support the Tribe's claim to restored lands. 

1. The Tribe's evidence regarding the temporal relationship and the 

factual clrcamstances of the acquisition is insufficient ta faHy support the 

restored land claim, 

a. Temporal relationship 

One factor to be considered is whether there is a reasonable tempma! connection behvm 

the restohation and the trust land acquisition. Grand Tmverse find L7 at 936 (finding that 

the Iand may be considered part of a restoration of lands on the basis of liming alone). 

The NTGC und~lesstands that once recognition occurs, a bibe still nds time to organize 

and create a constitution before taking land into trust. With that in mind, Phe NIGC 

dti)zes a restored land claim to see if the lancl in question constitutes "part of a 

systematic effort to restore n-ibaI lands,"' Id. at 936. Thus, the NIGC looks at two factors: 

I) the Xime span between when the kbe was restored and when the land was acquired in 

tnrst, and 2) how many other parcels the tribe acquired in that time. 

The Tribe's evidcnce of a tcmporai relationship between the acquisition and rcs~mr;ion is 

insufici mt. The Tribe was recognized in 1 976, but it admits that it waited to prmhase 

Traverse 13and of Ottawa and Chipperva Indians v. United States Attornex 45 F. Supp. 26 689.699-700 

(W.D. Mich. i 999) (Grand Traverse 3). 

l2 G~nd Trmlersa Bnnd 1-46 F.Sugp. 2rl at 7W, Gwnd Tmvme Band li, 198 P.Sqp 2d at 935. 

19 
Akela Flaas until 1998. Furkhe~~ the Tribe did not reguest that MeIa Fiats be placed into 

trust until 1999, and Akda Flats did not $0 into trust until 2~2,'~ In shor2, the Tribe 

waited 23 years from recognition to acquire Akela Flats and request that it be placed into 

trust for gaming. 

To date, the longest tempom1 period &at the NIGC has mnsidcred for rest& lands is 14 

yean.'' The NlGC has found in favor of restored land claims tlor both the Grand Travmc 

l3andI5 and the Bear hver Band of Rhoncrville ~rncheria" when those tribes obtained 

tn~st land within nine and ten years afiw restoration respectively. Zhc NTGC has not 

found in favor of thc Kawk hib be'' and the Wyandofte ~ation~bwhen those tribes 

claimed rcstorcd lands fir parcels taken into tntst eighteen years after the tribes were 

. restored. 

The Tribe's evidence here is not strong enough to satis+ this temporal factor. We cannot 

find that Akela Flats constitutes ws'tored lmds solely on the passage of 23 years. f crhaps 

iFthc Tribe hd met the other factors, we xvould be willing to push the outer limits of 

what has bmrl previously cansidmcd an acceptable: delay. However, that is not the case 

hcrc. 

b. Other factual cimnmstances 

The Fort Sill Apache Tribe asserts poverty ad a dificuft time with the land-into-trust 

proc~s as circumstances that mitigate its late restored lands claim. To illustrate its point, 

the Tribe rcfcrs to the current settlment with the Comanche Nation. The Comanche 

Nation threatened to assert its jurisdiction over a parcel held in trust for the Fort Sill 

Apachc Tribe. See Cv~rral~che :Matlopa v. Uuited Sfota, Case KO. C1V-05-328°F (W.D. 

OK May 27,2005). (The Fort Sill Apaclle Tribe bought a parcel of allofid land from a 

Cmmche mmbcs, placed it into trust, and started gaming on it. The Comanche Nation 

ansser$ed thdt a treaty with the United States required its notification. As SLIC~, %key sought 

to prevcnt Fort Sill Apache from acquiring any Fuazher Comanche parcels.). The Tribe 

insists that under these circumstances, its ability $0 acquire land tmst was precarious. 

Dcspite the Tribe's claim to the contrary, the evidence docs not support the idea that 

Akela Fiats is pslrt of the Tribe's initial attempts to reesmbIish its land base. In fact., thc 

fac~ual circumstanew surrounding the acquisition of Aketa Flats weigh against thc Tribe. 

This factor weizhs against the Tribe because the evidence hdicatcs that the Tribe has 

[' Scc Warranty Deed between thc Schoqmer Family Tnst and the Fort Sill Apache Tnhe (October 23. 

1998): Warnnty Dad bctwcen the Fort Sill Apche Tribc and the Unitcd Sates es trustee (June 26,ZiKn). 14 S~P C'mf~dera~mi Trihm of C'oos, Lolver Urnpqua & Sittsimv Indians v. RnhIrifi, 1 15 I.'.Supp. 2d 155 

(n.n.c. 2on01. '' Set NfGC Opinion for Grand Traverse Band of Uttawa and Chippewa Indians, at 9 (AuguBt 31,2001). 

IG See NIGC Opinion for Rear River Band of RbonmiUe Rancheria, ar 12 (Au~ust 5,2002). 

!'See NIGC Opinion for Kamk 'fnk of California, at 9 (October 12,2004). II Src KTGC Final Dec~sWn and &dm, In re Wynndotre N~tion Arnmdcd Gumi~g Ordinance, at 14 

(September I 0,2004). 

20 
acquird rturr~ero~rs parcels and focused its Eand acquisition efforts not in Netv Mexico but 

in ~ktal~orna." 

Prior to 198 1, the Tribe rmdved a 56 million award from tke Court of Claims. See Fort 

Sill Apache Tn'baI Resolution, FSA-8 1-01 (January 17,198 1). Soon after receiving the 

money, the Tribe purchased 3 6.25 acres (md a 1 1'6 share of mineral rjghts) in Cadda 

County, Oklahoma Tor 552,562.50. Shortly after the Tribe purchased the land and 

accepted the deed, it pass& a molution permitting tribal leaders to purchase the 36.25 

acres, and maw land in Oklahoma, using funds from the Court of Claims. See FSA-81- 

0 I. However, the tribal resolution anIy authorized $1 5U,OQ6.00 to purchase land. Id. The 

molution decreed that 80% of the $6 million award would become a per capita 

distribution for tribal members. Id. 

Fuxthcr, in June 1983. the Tribe used monies hm the Bureau of Indian Affairs' Iand 

acquisitions fund to purchase more land. See Fort Sill Apache Tribal Resolution, FSA-83- 

7 (June 11,1983). The Tribe purchased 2.5 acres in Caddo County, OkIahoma far 

$3,850.00" 

The Tribe made thm more purchases in 1987. Qn January 5,1987, the Tribe paid 

$8,600.00 for 3.75 acres in ~kl&orna.~b that same day, the Txibe paid %149500.00 for 

another 8.75 acres (absent minml rights) in Caddo County, ~klahaxna~~ In addition, the 

Tribe spent $3,750.00 to purchase the rnincral rights to a 12.5 acre parcel in Caddo 

County, 0k1ahorna" 

Additionally, the Tribe spent $24,055.25 in April. 1988 for a 17.1975 acre parcel in 

Caddo County, 0k1aharna~~ In addition, the Trib added to that holdings in 1989 by 

purchasing 1 -25 acres (nor including mineral rights) for S1 ,!~WO.OO?~ 

10 Tnt. MGC also notes fh thc Trik onms 4.35 acrcs in Akna, but fhe focus ofthis discussion centers 

on thc Oklnhornrr parcels. The Tribe's Arizona holding is located in Cochise County, Arizona within its 

ahriginal terribry. St-r Letter from Pbmix Offlice RIA Field Solicitor to the BI.4 Am Diream regarding 

thc Final Title Opinioa far the land into trust acquisition of the FQT~ Sill Apache in Cochise Cow, AZ 

(July 22.1992). 

20 SPC Wamnty Deed kbvm Hamld KawaykIa and the: United Statcs as %us& for the Fort Sill Apache 

Tnk (July 14, 1983); see also FSA-83-7. 

?' Scr Wzrranty Dmd bcm Mamie Lee Mahlrseet, Ramonhuty, and tk United States as for the 

Fort Sill Apache Tribe (January 5, 1987). " Scc Warranty Deed beween Edmond ZRe Mak~ect ef a!. and the United Skks as trustee for the FoFort Sill 

Apachc Tribe {Jaman; 5,1987). 

.YEP Wsrranry Deed between Linda Lee Pmty el a!. and the United Stntes as tru.tee for the Fort Sill 

Apache Trh {June 5, 1 98 7). M Siv Warranty Dccd bemeen Edmond L. Maher ~t d. and the United Stares as trustee for the Fort Sill 5 ache Tribe (April 26, 1988). P 

-' SCL- Warranty Deed between William Kawaykla and the United States as trustee fox the Fort Siil Apache 

Tribe (May 12, 1989). 

21 
In 1998, the Tribe acquired &Irela Flats but did not request that it go into trust until 1999. 

Thus, tllc Tribe had already .spent ST 092 18.75 to acquire 7 parcels totaling over 82 acres 

in trust iu Oklahoma prior to this purchase. 

Funher, the Tribe continued to acquire parcels in Oklahoma after its purchmc of Akeb 

Flats. 1%~ Tribe's last two land acquisitions oamd in 1989 and 200 1. In 1999, the 

Tribe paid S 175,0011.00 for 0.53 acres (absent mineral rights) in Comanche County, 

~klahorna.'~' In 2001, the Tribe paid 5200,000.00 for 160 acres in Caddo County. 

~klahorna.'~ 

Thus, the acquisition of so many Oklahoma pmcls of Iand prior $0 the purchase of Akela 

Flm is contmry to an assertion of hardship and a ciai~n th;ft Akela Flats is part OF the 

Tribe's initial attempts to rebuild its land base. 

The N IGC has considered the issue of prior acquisitions in other cases. For example, the 

NTGC found rhat the Cowlitz Tribe's pa~cel constitrttd restored lands because the tribe 

had no land base --hen it applied for trust lad. Cawliiz X~rciian Tribe 3 CIass fl Gming 

Or~Ei~~nnce, NIGC Opinim Wov. 23,2Q05). Likewise, both the Mmhoopda Tribe and the 

8w River Band had very few parcels of land in trust beforc receiving a restored lands 

determination. YIGC Meckoopda Opinion (March 4,20033. (The Mechoopda Tribe 

requested a reslored lmds determination for only its second trust acquisition.); NKG 

Bear River Rand Opinion (Aug. 5,2003). (The Bear River Band requested a restored 

lmds determination for its first trust acquisition.). In contrast, the NIGC found that the 

Wpndotte Tribe had acquired too many parcels in the interim for the requested land to 

be considered part of their initial attempts at rebuilding their land base. In re: Jy~nndoite 

nation A rnencl~d Gansizg Orciina~ce, NJGC Final Dec isian artd Order at 10 (Sep~ I 0, 

2004). (The Wyandota Tribe amassed three parcels totaling over 194 acres prior to 

obtaining the trust parcel at issue.). 

Much like the Wyandotte Nation. the Fort Sill Apache Tribe has acquired many parcels 

of land during the years prim to its acquisition of the Akela Flag parcel. Further, the 

Tribc's attempts to move into New Mexico did nr>% come until a& the conflict and 

litigation involving the Commchc Nation. See Letter from 'fca~ond Nauni Sr., Tax 

Administrator for the Comanche Tax Cornmissinn 10 Davis Quails, Manager of the Fork 

Sill Apache Casino (March 7 8,2000). (The letter warns the Fozt. Sill Apache Tribe of 

Comanche jurisdiction ovcr its newly acquired Oklahoma lands two years prior to its 

Akela Flats land king placed into trust.). The fa~tual circumstances indicate that Akela 

Ffats is not part of the Tribe's earliest attempts to esmblish its land base. Tlms, the factual 

circumstances do not appmr to weigh in the Tribe's favor. 

Sm Wam~y Dced he~e~n Robert and Linda Rowell and the United States as trustee far the Fun Sill 

Apche TTrit ((March 24,1999), 2 0 Sw Warranty Deed &tween Tmn and Donna Pearl M7rtre and the United State as tms~ fa the Fort 

Sill Apache Trik [June 26,2001). 

22 
& an aside, opponents to the Tribc's right to gzune at Akela Flats have raised concerns 

about the Tribe's promise not to use Akela Flats for gaming prior to the decision lo ta&c it 

into trust?' We addrcss thew concerns as a means to clarify wha &ton are relevant to a 

restored lands determination. 

Opponents to the Tribe's daim point to the Tribe's initid plan to game on the parcel by 

obtaining the govcmor's consent for a Wo-part determinaiim.2q They aIw cite the? Tribe's 

resolution to take the land in trust for gaming and the subsqumt resolution tltat removed 

thc gaming Eanguagc. Fort Sill Apache Rcsoltrtion FSA-98-26; see also Fort Sill Apache 

Resolution FSA-94-14. The opponents assert that many others have relied on whrrt they 

considered a promise not to game and feel that they have done so to their detriment. Sm 

Letter from Ethd Abeita, BI.4 Acting Regional Director to Tribal Chairman Ruey 

Darrow dated July 23,2001 (stating the Tribe dropped its request to take the land into 

rru~t-~r g~mirtg, thus the parcel would he taken into trust absent thc previously stated 

ohjec tions) (emphasis added); see tafsa letter from BIA Acting Director Omas Bradley to 

Governor Gary Johnson dated August 1 I, E 999. U11cfer this reasoning, they assert that &c 

promise not to game on the land should be considered a factor in denying the Tribe's 

claim fox restored lands. 

The NIGC, howwcr, has already found that a Tribe" original inkndd use of the land is 

not a relevant factor in a restored lands determination. See Memorandum from NIGC 

Acting General Counsel: to NlGC Chairman Deer, Re: Bear River Rand of Rohncmille 

Kanchesia at 2. 14 (Pcugust 5,2002). Further, case law does not support the: contention 

that subjective intent and rclimcc on that intent may be considered as relevant factors in a 

restored lands ma1 ysis. See Corfderafed Trikes of Coos, Lower C7ft1pqwa, & Siu- law 

Indiurrs v. Btrhhitt, f 16 F. Supp.2d 155 (D.D.C. 2000). Bwause the Focus of the analysis 

is to determine the legal status af the land, and not the intendcd use, promises concerning 

future uses OF the land cannot be considered an analytical factor. 

For example, the Tribcs in Confederated Trihm of Coos took land into f mst for onc 

reason. and then announced their intention to game 22 months after the acquisition was 

completc,'%esP;pitc the change of plan, the Tribes met all the requirements for the 

restored lands analysis and were able to usc the pared for gaming. Thus, broken promises 

are not part of the restored Ism& analysis. 

Letter fmm Smatm Bingaman to XGC Chaimra~1 Phil Hogen dated Jan 29.211OR; see ah kt& from 

Pad Bardach oaf %tin, Thaycr, and Brown PA to Acting General Counsel Penny Coltmm &&d Eeb. 15. 

2008. 

Letter fiom New Mexico Govemr Gary Johnson to Chief Mild& Cleghom dated April 10,2995; scc 

aisu letter from New Mex~co Governor Gary Jo-a to 31A Arm Dimtor Robert Barackcr dated April I, 

1999. 

30 UOI Memwa~ldum from Philip Hogen, Associate Solicitor. Division of h&n Affairs to mistant 

Secmtary - Indian AfEairs, Re: Cot~f>~Iryot~d Tribes of Cwa, Lower LTm~ & Siuslaw Indinns v. Babbitt, 

I T 6 F. Supp.Zd 155 (D.D.C. 2000) rgardin$ proposed gaming on the Harch Tract in Lane County, Qregan 

fuec. 5,2001) QCm Oyinian). 
That is not to say ahat the WGC is not disappointed when the government-to-govmment 

relationship is ilffccted by broken promises. Broken promises affect the ovmll integriv 

of the process and the rciatianship bctwea~ the federal famfIy and trihes. The law, 

however, consisterltly shows that thc NIGC cmot consider such factors in its analpis. 

8ee Lla~If~cieraded Tribes of Coos, 1 I 6 F. Supp2d 7 55, 

2, The Tribe's evidence regarding the Iocation of the acqaisitisn does not 

support the restored Iand claim. 

The physical location of a trust acquisition is an important factor in determining whether 

The parcel canstilutes restad lands. MlGC IVyandofte Final Decision and Order at 1 0; 

NXC* Cirrrnd Tmver5e Opinion at 1 7- I 8. In reviewing the Tribe% evidence, it is 

necessary tn examine the location of Akela Flats to determine the Tribe's historicai and 

modern connectiorts to it. Id. In this case, the Tribe" modern connoce-ions ta Akela Flats 

do not wciz11 in favor of finding that the land Is sestorcd. 

a. Historical Connections to the Land 

The evidence prcsenaatcd shows that the land was historically significant to the Tribe. The 

NIGt looks a"rwhether tmds located "within areas hi~orically occupied by the TriW 

were takcn into h1st as part orthe restoration. Grand Traverse 1; 198 F.Supp.2d at 701. 

To inform Ets daision, the NIGC looks at the Tribe's historical use of the land and the 

land's significance. 

Far example, the Bear River Band was able to show a historical connection to a site that 

was located one mile away from former villages, trails, and locations fcatud in tribal 

rnj;rks. AYGC Brnr River Rand Opinion at 1 8- 1 I. Further, the Tribe occupied the land 

sincc 1300 B.C., making clear its historical significance to thc Tribe. Id. Likewise, in 

adcr to prow a historical connection to its land, the Mahuqda Tribe pmvidcd evidcncc 

that the land in question -was part of their ahoriginal territory. Id. 

Similar to the Bear River Band and Mechoopda, the Fort Sill Apache's land has historical 

significance to the Tribe. Much like the Bear River Band, the Tribe occupied its 

aboriginal territory "from time jmmernorial." Fort Sill Apache, 1 9 Lnd. C1. Comm. at 2 15. 

Until September 11886, thc Chiricahua Apache, to whom the Tribe is a successor in 

interest, occupied part of what is known May as Anzona, New Mexico, and Mexico. Id. 

More specifically, the: Tribe lived in Ulm primary locations that extended from Navajo 

country in the north down into nofim Mexico. Id. at 220. The westemmost portion of 

the Tribc exlmxrdd past: the Chiricahua Mountain Range. The Tribe ranged weslwd 

along the Gila River to the Brtrro Mountains. Id. at 23 1. 

Additionally, the Tribe hunted and subsisted for food, and thus it traveled over large 

tracts of semi-arid Iand to reach that food. Id. at 232. Subsistence, and the constant sea~h 
For water in a semi-arid land, required thc Tribe to control and traverse great distances for 

its survival. Id. at 233. Seasonal camp sites wm locat4 throughout thc territory, md 

these camps were generally near water because water meant gomi hunting and good 

pasture fur horses. Id. Cmps also mowd with the changes in seasons, corresponding to 

the wild harvests. lii. 

Tile Trihe's dcfensc; of its lands f. both Spanish conquistadors and Mexican jnvaders 

alsa indicates its importance to &fie Tribe. Id. at 230. The Tribe continually defended its 

territory until 1886 fmm foreign invaders and American settlers. Id. at 234. The ferocity 

of the Tribe's defense is countcd as a reason for the slow advance of white sefllers in the 

area Id. at 257-8. 

'Kus, the Tribe's evidence supports thc histo~cal conn~ction to the land and its 

significance to the Trittc. 

6. Modern Coandon to the Land 

The 'I'rik's evidence of a modem connection does not support its restored lands claim. 

To find a modem connection to Akela Flats, the NTGC considers the Tribe's pasttcmiaration activities surrounding the land and its tribal members. AVGC Wyandorte 

Opiaiurr at 21. Specifically, the KICK asks whether the Tribe has maintained its 

connmriun to the land. In other words, the Tribe must show rhat Akela Flats has always 

been impafiant to the Tribe and its members. The Tribe must show that Akela Flats 

maintained its significance throughout tribal history and into the present day. The Tribe's 

evidence, however, fails to definitively establish Akela Flats' on-going importance to the 

Tribe. 

NIGC is concerned that the Tribe has not presented su%fficient evidence that &eXa Flats 

has rnaintaincd its significance throughout tribal histmy and into ~e present day. The 

Tribe had no contact with the parcel until 1998. The Trjbe presented evidence: of a 

general histo~cal connection to the area until its forced removal in 1 886. The Tribe 

pvided a wmnty deed indicating purchase and ownership of Akcla Flats in 1998. See 

Warranty Deed between the Schoqpner Family Tmst and the Fort Sill Apache Tribc 

(October 23, 1998). 

The Fort Sill Apache Tribe alsa pmats evidence of their madem connection to hkcla 

Flats by way of consultations with government offxcfices regarding actions near the site. For 

example, the Tribe received a request for consultation regding archmlogical sites near 

Akeia ~lats.~ ' Additionally. the Tribe received a quest ibr consuItations on utility lines 

3 1 5re Lcttcr from the Burrau of Land Management's Districf Manager Edwin Robuson $0 Chairman 

lInuser dated April 12,2007. 

25 
in Dona ha County, New ~exictl.~' The Tribe has also received a quest Grn the City 

of Sunland Park to consult on the improvements to a wastewater Watmcnt plant located 

in Dona ha County, Kew ~exico.'~ Further, the Tribe meivcd a request for input from 

the Bumu of Indian Affaim regarding the cuItura1 and mheolo@cal impact af a 

p~op~sml casino in nmrby Dona Ana County, New Mexico, See Letter from Rurcau of 

Indian Affairs, Real Estate Superintendent Ms. Gutiemz to Chairman Houser datcd Nov. 

18,2005. This reyest also inspired the Tribe to consider taking over the conservancy ef 

protected sites in thc arca. Id. 

These consuItations, however, came afkr the Tribe acquired the parcel in 1888. The 

Tribe presents no othcr evidence of contact or local relalionships before it acquired Akela 

Flats. Because the Tribc has provided na other evidence regarding a connection to the 

parcel in between the years of 1886 and 1998, it has failed to provide sufficient evidence 

of an on-going modcm connmtion to Akcla Flats. 

Further, fiela Flats is over 540 miles away from all major Fort SilI Apache 

govcmentd osces. Thc Tribc currently maintains an inoperative casino and gaming 

commission office an the site but little else. In April 2008, the Tribe oped a restaurant 

and smoke shop:# The restaurant and smoke shop are in the same building that hmsa 

thc inoperative casino. The lack of evidence regarding lxibal offices dating from the 

land's initial purchse indicates that thc Tribe has not maintained an on-going cannation 

to Akela Flats. 

Additionally, tht: Tribe presented evidence that is has approved the movement of the 

following programs to New Mexico: the Kative American Graves Protwtion and 

Rqatriation Act program; the Culturn1 Resources Management program; the Fort SilI 

Apachc Environmental Protection Agency prog-arn; thc Higher Fducation program; and 

the Pcr Capita program. See Letter f~om Phil Thompson, Fort SjI1 Apache Attorney to 

Esther Dnler, _Attorney for the Nalional Indian Gaming Commission, Re: Fort Sill 

Apache Tribe {April 7,2008). 

However, the Tribe has prcscnted no evidence of the programs' actual movement and its 

activities in New Mexico. The Tribe's major pagans, one for high ducation &its 

and one for pix capita payments, service Its members by mail. Aside hm 'the higher 

ducation program md the per capita program, it mains unclear how the pmgarns 

service tribal members dirrxtly. Eurthmo~ no tribal members live on-site or adjacent 

"' Sec Letter ftom Carlos Pena, Division Eng%cm for the Xntemational bundary and Wakr Corrrmission to 

Fort Sill Apache Chairma Jeff Houses regardmg notification and consultation far the dnum masmlssioa 

Imne in Las Cruces, ha hna County, Ncw Mexico (March 21,2008). '' Scv Lencr from Chris Grasso, Projcc.47t Manager for Tasrhek Environmental Consulting b Fort Sill 

Apache Ckaimn JeffFIouser regarding Sunland Park North waste ware^ T~rcamment Plant Improvements 

(Frhmry 22,20081 :A See Dana M. Xlba, Trifle openirrg ..l k~ln rrsta~mmi while mitingfor cmirzo, Las Cwes Sun Ncws, 

~i!tp:!~ww.1csm-neu'~.~~m~~i~8R3S050 (April 7,2008). 

26 
to Akela Flats. In fact, most arthe tribal members live in Oklahoma, Therefore3 Akela 

Flab docs not appear to have maintained its significance to tribal members. 

Evidence of an mi-going connection to the land, from historic4 times to the present day, 

is. an importan? factor in establishing a restored lands claim. For example, the NGC 

found that the Bear River Band was able to show that the desired parcd was only I I 

rnJles from a tribal residential area and government ofices. X.C Bear River Band 

Opinion at 1 0. Likewise, the Grand Traverse Band had tribal mmbers 1 ivi ng near the 

parcel and receiving BIA services. Grand T~averse Band 11, 1 98 F. Supp. 17d at 936. 

On the other hand, the Wyandottc Nation did not possess a sufficimf modern connection 

to a parcel that was 175 miles away hm any major governmental office and population. 

NfGC W<vunrlort~ Opinion at 21. Further, the Tribe could provide no evidmce that the 

land maintained its importance to the Tribe's members because the Tribe's pmgams 

serviced members in Oklahoma. fd, {Wyandatte, Oklahoma was also home to the Tribe's 

Turtle Stop Convenience Store, Turtte Tot. Learning Center, a Seniors Program, and 

education asistancc programs). 

Thc Tribe's forced remavat hm their aboriginal territorv. md subsequent sefilernent in 

Oklahoma, helps explain ttre Tribe's lack af modern connections to Akela Fla& That fact 

alone, however. fails 10 explain why the Tribe did not estabTish my connections to the 

land until 1998. The Tribe meived new recognition in 1976 but failed to establish 

modem connections to Akela Flats as a trust parcel for mother 23 years. Instd, the 

'Tribe focused on obtaining mst land in Oklahoma. As stated before, the Tribe's evidence 

of connections established to Akela Flats do not jnclude fmstioning government offices. 

%or do the connections estabIished clearly indicate that Akda Plats has maintained its 

significance in thc eyes of tribal members, Thus, the Tribe's cvidmce of modem 

connmtians to Akcla Flats is Ensuffrcient. 

The initial reservation exception pem-iits gaming on Indian Imds acquired in mst afier 

Ocmbcr f 7, 1988, where tho lands am t&m into trust as part of the initial reservation of 

an Indian i~be acknowledged by the Secretary under the Federal acknowledgment 

process. 25 U.S.C. $271 9(b)/l)@)(ii). This exception requires: I) the land is part ofthe 

nibe's reservation: 2) ttxe reservation is thc 'Tribe's initid resewation: and 3) fie Trib 

was acknowledged by the Secretary of the Tntcriox under the Federal achowl~gemmt 

process. The Trihe has failed to demonstrate that Nrela Flats is designated a reswation, 

that Akela Flats is thc Tribe's initial reservation. and that the Tribe was aacknowlcdged 

through the Fderal acknowledgment process. 

TFrc Tribe also asserts that the land has reservation status bas& upn the assignment of a 

reswation code to Akela Flats as indicated on the BIA's hrl Titlcs and Records mce 

(ETRO) Document Recordation form. The B?A has infumed us of the following: 
A function of the Bureau of Indian Affairs (Bureau) LO is to rmard 

documents, a function sirnilax to a county rccoding office. Documents 

submilid by servicing Bureau agencies are to bc accompanied by a 

documalt recoding tmnsmiml. 

The current farm used in the Albuqumquc LTRO contains a field titled 

"Reservation Code*'. (sic] Ilris title is merely a iieId name intended to 

identify a code for a land area used in the automated land records system. 

It docs not mean that the code identified in the field is strictly associated 

with a rcsm~ation - only a land area, 

Thc previously automated land records system has recently tmdqone an 

m tire enhancement and data was converted lo a new system. Mmy field 

namcs tirere changd to better identify thcir contents. The previously 

identified field name "Reswation Cde" was changrl to '-Land Am 

Code". [sic1 

The document recordation form, itself, has nof yet hem modified to 

so'rncide wiih the new system's fieid names. The LTROs are in the process 

of ugrading [sic] all associations to the new system. The previous 

"Reservation Code'' field will also be changed to "Tand Area Code''. [sicj 

Set letter from Donna M. Peiglcr* Manager, Albuquerque Land Titles Records 

Ofice, Bureau of Indian ATfairc;, to Whom Tt May Cancem (March 13,2006). 

Thc assignment of a resm-ation code does not mean that it is strictly assuciated 

with a reservation, but idcntifics a particular land area. See Let& Erom Feorgc T. 

Skihine, Acting Dcputy Assistant Secretary for PoIicy and Economic 

Development, Department of the Interior, to Esther Dittler, Staff Attorney, NTGC 

(May I 5,2008). Assignment of a reswation code does not demonstrate that 

Akela Flals has bccn designated a reswation. 

The Secretary has not yet processed the Tribe's application requesting that its trust land 

be proclaimed a reservation,"' The Tribc has informed the NIGC that it filed a lawsuit in 

the Unit4 States District Coust of the Western Dis~ct of Oklahoma seckimag 

enforcement of the Agreement oFCompromise and Settlement in which the Wnitd States 

39 0, Mwh 3,2003. rhc TriL met 4th k Ofice of thc Omcc of the Sm3fy U1 Plimss- its mcwation proclamation 

xppfimtion. 'lSrr Tribc 2nd ;ht' Clmce afthe Secrckrynoted th rirhc rtxtrva~ivn pmlamtion ~ppIicarron iz approved. 

tlrn &mc will hca change in land usr. 7fldorr. tbc %bc d the Om~e dfhc SWclw "aqccd thdala min~murn an 

i'nviromnentat Asscssrw'ill (Iy%) wr>~rM have to bchc Fur this Pedml action in wdcr to comply uith !he Ns~bal 

Pnvrmnmmr;ll Pol~cy Act [MFP4)." LcBcr from Carl 1. Am. Assistant kwtary- Indian Affairs. Dprfmmt aflhc 

InIcnor. ORicc or the S~vrchrj ta Jeff t louscr. Cfuimn. Fcrrt Siil ApshcTnk of Oklah (ripnll?, 2008). 
agreed "to accept and timely process an [sic] Fort SiIE Apache Tribe application for a 

reservation proc1ama;ition on land currently held in trust fbr the Fort Sill Apachc Tribc 

which is IocatcxE in Luna County, New Mexico.'' Comanche Nation v. IJni~ed States of 

America, Agreement of Compromise and SefAlement Recitals, CW-05-3284 at 711) 

(W.D.OK, March 8,2007). 

Moreover, the initial memation exception is 1 irnited to tribes acknowledged through he 

federal acknnwIdgment process. "Achuw~edgrnen~ is a specifically defined term under 

the IGM, because the statute expressly references a federal adrninistralive process [,I 25 

C.F.R. Part 83, by which the agency acknowledges the hislon'cal existence of a rribe." 

6wnd Tmvevse Band of Oftma and CI~iplzeu~a Indians v. ilriitcd States A tlornq fo~ !ha 

tYe3rerrl District af.Vic?rigan, 46 F. Supp. 2d 689,699 (JV. D. Mich. 1998). George 

Skibinc, Acting Dcpllty Assistant Secretary for Policy and Economic Develuprncnt, 

in fomd the NIGC that the Tribe was no1 acknowledged througl~ the federal 

acknowledgment process. Ser Lem hm George T. Skibine, Acting Deputy Assistant 

Secrctafy for Policy and Economic helopment, Department of the Interior, to Esther 

Dittlcr, Staff Attorney, NIGC (May 15,2Q08); also see Status Summary of 

Acknowledgnent Cascs, Prqmd by thc Office of Eedcrd Acknowledgment, Assistant 

Secretary - rndian Affairs (Feb. 15,2007) (Lists forty tribes whose status was detmmined 

through the acktlowlcdgment process, as of Fehniary IS, 2007). Rather, the most mcnt 

evidence nf the Tribe's recognition is when the Commissioner of Indian Affairs apprwcd 

thc Tribe's constitution on August 16, 1976. Comancf~e Nution v. LJnr'ted States of 

Arnerico, Apment of Compromise and Scttltement Recitals, CIV-05-328-F at 7Cj) 

(W.D.OK March 8,2007). 

Thc Tribc argues thae the exception applies to a11 fderal actions that result in the 

recognition of a rribc. 'Ihc Tribe argues that the term "federal acknowledgement process" 

is ambipous. Undcr this theory, the Tribe attempts to argue that statutory rules of 

construction enable it to interpr& "federal achowledgnent pmeess" under a plain 

meaning standard and that tthc phrase means any fderaI action that constitutes 

recognition. However, "fedmf achswledgement process" is a term of art that is 

commonly understood to refer to the regulations adopted by the Secretmy in Part 83. "It 

is a tvcI1-established rule of statutory construction that when Congress rases a tm of 

art . . . unless Congess afimativcly indicates otherwise, we praume Conps intended 

to incorporate the Gammon definition oftbat tm.'W~nirerI Stat= offfrnerjw 1: Danfe 

JJ~rga~-Arnqu, 389 F.3d 901,904 (9th Cir. 20043. 

Further, the recognition of tribes prior to the development and implementation of the 

Bh's federal acknowfedgment regulations cannot be fairIy identified as a process. It 

was, in fact, this lack of process that required thc development of the process now 

contained jn 25 C.F.R. Part 83. The pmble to the final rule expIains: 

Various Indian groups throughout the United States have rcqtaestd that 

the Smrary of the Interjar oficialIy acknowIedge thcm as Indian tribes. 
Heretofore, the limit& number of such requests permitied an 

ackno~vledgmmt of the pup's status on a caw-by-case basis at the 

discretion of the Secretary. The recent, increase in the number ofsuch 

requests before the Departnaent necessj tates the Bevelepmm t of 

pmcduaes to enable the Department to take a unifm approach in their 

evaluation, 

Sec Procedums for Establishing that an American Indian Group Exists as a.n Indian Tribc, 

40 Ecd. Reg. 39361 (Sept. 5,1978). Thep~trpose of these procedures is the "establish a 

departmental procerlurc and palicy for acknowledging that certain American Indian tribes 

exist." Id. at 39362. 

Tile Tribe may not claim this exception because it was not recognized through thc 

FedmI acknrsw?dgemcn~ process. Furthemore, Akela Flats is not a reservation and the 

'I'xibe's application for a rcservarion p~aclamation remains pending. Thercforc, if the 

'Tribe had been acknowledged by the Secretary under thc Federal ricknowled_ment 

process, 25 C.F.R. Part 83. the Tribe's land wouId not qudigy under the initial rescwation 

exception because the land has not been proclaimed a resenration. 

Conclusion 

Based upan the foregoing, we conclucle the Tribe may not lawfully condnd gaming on 

thc proposed site. The Tribe has failed to dmanstmte thzt its New Mexico trust land is 

located within the Tribe's last recognized resewation within the State or Sat= within 

which the Tribe is located. In addition, the Tribe does not meet the requirements of the 

initial reservation or dcmonstratod that ic is a restored tribe. 

The Department of the lnterjor Office of the Solicitm concurs that the Tribe may not 

game on Akela Flats.