In Re: Gaming Ordinance of 1 

The Ponca Tribe of Nebraska 1 

1 

1 

1 

1 

1 

1 

1 

December 31,2007 

FINAL DECISION AND ORDER 

Appeal to the National Indian Gaming Commission ("NJGC" or "Commission") from a 

disapproval of a site specific gaming ordinance submitted by the Ponca Tribe of Nebraska 

("Tribe"). This appeal is brought pursuant to the Indian Gaming ReguIatory Act (IGRA), 25 

U.S.C, 5 2701 et. seq., and NIGC regulations at 25 C.F.R. Part 524. 

Appeara~r ces 

Michael Rossetti, James Meggesto, for the Ponca Tsibe of Nebraska 

Michael Gross for the Chairman, National Indian Gaming Commission 

John Lundquist, Assistant Attorney GeneraI, for the State of Iowa, a limited participant 

pursuant to 25 C.F.R. 8 524.2 

DECISION AND ORDER 

After careful and complete review of the agency record and pleadings filed by both the 

Tribe and the Chairman, as well as the State of Iowa, a limited participant pursuant to MGC 

regr~lations at 25 C.F.R.5 524.2, the Conrrnission finds and orders that: 

1. We affirm the Cllainnan's decision that the Carter Lake land meets the location and 

temporal factors of the restored lands analysis. 
2. We reverse the Chairman's decision with respect to the factual circumstances factor for 

the following reasons: 

(a) The Chairman's disapproval improperly died on the Tribe's intended use of 

the land; 

(b) The Chairman's disapproval improperly relied on events that occurred after 

the Department of the Interior's (DOI) final agency decision was made; and 

(c) The factual circumstances of the acquisitioi~ weigh in favor ofrestoration. 

3. We reverse tl~e Chairman's disapproval of the ordinance because we find that the 

Carter Lake land meets the restored Iands exception. 

PROCEDURAL AND FACTUAL BACKGROUND 

The factual background of the Tribe's history, including its termination and restoration to 

federal recognition, are well set forth in the Carter Lake Lands Opinion Memorandum 

(Disapproval Memo), which is incorporated by reference into the NIGC Chairman's (Chairman) 

disapprovaI of the ordinance. We see no need to revisit those facts here, The following events, 

however, are of particular significance to our decision. 

The Tribe was restored to federal recognition in 1990 by virtue of the Ponca Restoration 

Act. 25 U.S.C. 88 983 - 983h. 

On September 24, 1999, the Tribe purchased in fee approximately 4.8 acres of land in 

Carter Lake, Iowa. ShortIy thereafter, on January 10,2000, the Tribe passed a resolution seeking 

to have the DO1 place the land into trust. The Tribe's stated intent was to place a healthcare 

facility on the land. (Ponca Tribe of Nebraska, Resolution 00-01 .) 

On September 15,2000, the Great Plains Regional Director for the Bureau of Indian 

Affairs (BIA) within DO1 wrote to relevant state and local officiaIs in Iowa and stated her "intent 

to accept the land into tn~st for the benefit of the Ponca Tribe of Nebraska." (Letters fiom Cora 

L. Jones, Great Plains Regional Director, BTA, to Carter Lake Mayor, Iowa Governor, 
Pottawattamie County Supervisors, September 15,2000.) Both the State of Iowa and 

Pottawattamie County appealed the September 15 decision to the Interior Board of Indian 

Appeals (IBIA). They contended, in part, that the Tribe really intended to use the land for a 

casino and that the Regional Director erred in not considering this use. Iowa v. Great Pkains 

Regional Director, 38 IBIA 42,52 (2002). 

The IBL4 rejected the arppment, finding that the land "was purchased ... and is currently 

used for health care facilities" and that any possible gaming use was speculative. Id. The IBIA 

thus affirmed the Regional Director's decision on August 7,2002. Id. 

Sometime following the IBIA decision in the Tribe's favor, the Tribe, the State of Iowa, 

and Pottawattamie County reached an agreement that avoided further litigation. Although there 

is no evidence to sl~ow that the agreement was reduced to writing, it was acknowledged through 

correspondence both by the Tribe and the State. On November 26,2002, the Tribe's then 

attorney sent the BIA an e-mail message requesting that a notice of intent to take the land into 

trust be published and requested that the folfowing language be included: 

The trust acquisition of the Carter Lake lands has been made for non-gaming 

related purposes, as requested by the Ponca Tribe and discussed in the September 

15, 2000, decision under the Regional Director's analysis of 25 CFR E 51.1 O(c). 

As an acquisition occurring after October 1 7, 1988, any gaming or gaming-related 

activities on the Carter Lake lands are subject to the Two-Part Determination 

under 25 U.S.C. sec. 27 19. Ln making its request to have the Carter Lake lands 

taken into trust, the Ponca Tribe has acknowledged that the lands are not eligible 

for the exceptions under 25 U.S.C. sec. 2719(b)(l)(B). There may be no gaming 

or gaming-related activities on the land unless and until approval under the 

October 2001 Checklist for Gaming Acquisitions, Gaming-ReIated Acquisitions 

and Two-Part Determinations Under Section 20 of the Indian Gaming Regulatory 

Act has been obtained. 

(November 26,2002, e-mail, from Michael Mason, Esq.) 
On December 3,2002, the Regional Director published in a newspaper of general 

circulation in Carter Lake a notice of intent to take the Carter Lake land into trust but omitted the 

additional language requested by the Tribe. On December 6, BTA published a "corrected notice 

of intent to take land into trust" this time including the language. (Council Bluffs Daily 

Nonpareil, December 6,2002). An internal BIA e-mail noting the incorrect publication 

described the additional language as follows: 

The attached Notice of Intent was published in the Co~mcil Bluffs, Iowa, 

newspaper yesterday, December 2 [sic, December 31,2002. You will recall that 

the last paragraph in the Notice was a compromise reached by the Ponca Tribe 

and the State of lowa as well as Pottawatomie County, Iowa. The Solicitor's 

office had no problem including the appended paragraph. If we did not include the 

last paragraph, Iowa would have litigated the matter in FederaI Court, Also, the 

last paragraph was agreed upon by the Ponca's auorney , . . . 

(December 3,2002, e-mail from Tim Lake to various BIA recipients.) 

On December 13,2002, Jean M. Davis, an Iowa Assistant Attorney General, wrote a 

confirming letter to the Tribe's attorney, stating: 

As you are aware, the Corrected Notice of Intent to take Land in Tmst was 

published in the Council Bluffs Daily Norzpareil. The corrected Public Notice 

makes clear that lands lo be taking into trust in this case will be taken for nongaming related purposes. The corrected Public Notice also contains the 

acknowledgement by the Ponca Tribe of Nebraska that the lands are not eligible 

for any of the exceptions found under 25 U.S.C. sec. 271 9(b)(I)(B). 

This corrected Public Notice is consistent [with] your repeated representations to 

me and to Pottawattarnie County, made on behalf of the Ponca Tribe of Nebraska, 

that the Tribe intends to use the lands for the purpose stated in the original 

application, not for gaming activities. Based upon our agreement that the lands 

will be used in a manner consistent with the origjnaI application and the corrected 

Public Notice and not for gaming purposes, you have requested that the State of 

lowa and Pottawatamie County forego judicial review and further appeals. 

Inasmuch as the corrected Public Notice now filed in this case contains the nongaming purpose restriction to which we have agreed, the State of Iowa has agreed 

not to pursue judicial review or further appeals of the final decision of the Unitcd 

States Department of the Interior in this case. 
(December 13,2002, letter from Jean M. Davis.) 

On January 28,2003, following the publication of the corrected notice, the Tribe 

executed a deed conveying the Carter Lake land to the United States, and the BIA completed the 

acquisition in February 2003. (January 28,2003, warranty deed; February 10,2003, letter from 

Acting Regional Director, Great Plains Region, BIA, to Superintendent, Yankton Agency.) 

On July 23,2007, the Tribe submitted a site specific class I1 gaming ordinance 

amendment (ordinance) to the Chairman for review and approvaI. In this ordinance, the Tribe 

defined a parcel of trust land in Carter Lake, Iowa (Carter Lake land) as "Indian lands" meeting 

the restored lands exception to the general prohibition on gaming on Iands acquired after October 

17, 1988. 25 U.S,C.$j 271 9(b)(l)(B)(iii). By Ietter dated October 22, 2007, the Chairman found 

that the Carter Lake land is not restored lands within the meaning of 25 U.S.C. 3 2719 

(b)(l)(B)(iii) and disapproved the ordinance. The Tribe filed a Notice to Appeal on November 9, 

2907. Furthermore, on November 16,2007, the Tribe and the Chairman filed a Joint Motion for 

Expedited Decision, requesting that the Comrnjssion issue a final decision on the appeal within 

35 days or prior to the December 31,2007 scheduled departure of Vice-Chairman 

Cloyce V. Choney. 

The Commission issued a decision on the Joint Motion stating that it would do a11 in its 

power to issue a decision prior to the departure of Vice-Chairman Choney, but that 

circumstances may require additional time to review the matter and issue a decision, and that the 

Commission could not agree to be bound by an earlier deadline than that which is set forth in its 

remlations. ' Under NIGC regulations, the Commission has ninety (90) days to decide an appeal 

of an ordinance disapproval. 

1 The Comnlission was able to accommodate the Joint Motion and this Decision and Order is issued prior to the 

departure of Vice-Chairman Choney. 
In addition, the Commission invited the State of Iowa to file a Request to Participate 

pursuant to 25 C.F.R. $ 524.2. The State filed its Request to Participate on November 29 and the 

Commission granted the request on November 30. Pursuant to a briefing deadline cstabIished by 

the Commission, both the Tribe and tlte Chairman replied to the State's filing on Bec. 7. 

DISCUSSION 

Legal Framework 

Tribal ordinances or resolutions governing the conduct or regulation of Class I1 gaming 

on Indian Iands are reviewed and approved by the Chairman under 25 U.S.C. 6 27 1 0(b)(2). 

Amendments to a tribe's gaming ordinance are submitted for approval by the Chairman in 

accordance with 25 C.F.R. 8 522.3. A tribe may appeal a disapproval of a garning ordinance, 

resolution, or amendment within 30 days after the Chairman serves notice of his determination of 

disapproval. 25 C.F.R. Part 524. The Tribe's appeal here was filed in a timely manner. 

IGRA permits gaming onIy on Indian Iands, 25 U.S.C. 93 271 O(b)(l), (2); 2710(d)(l), 

(2), which it defines as: 

(A) all Iands 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 individuaI or held by any Indian tribe or 

individuaI subject to restriction by the United States against alienation and 

over which an Indian tribe exercises governmental power. 

There is no dispute that the Carter lake land meets this definiltion. However, there is a 

general prohibition on gaming on trust land acquired after October 1 7, 1988, unless the 

land meets one of several exceptions. 25 U.S.C. tj 27 I 9(a). Because the Carter Lake land 

was acquired after this date, the question then becomes whether the Carter Lake land 

meets any of the exceptions in 3 2719. The Tribe contends that the land meets the 

restored lands exception, which requires land to be "taken into trust as part of. . . the 
restoration of lands for an Indian tribe that is restored to federal rec~~nition."~ 25 U.S.C. 

$ 27 19(b)(I)(B>(iii). 

Courts apply a three-factor test to determine whether lands are "restored" within 

the meaning of 25 U.S.C. Ij 27 19(b)(l)(B)(iii): (I) temporal proximity to restoration; (2) 

historical and modern nexus to the location; and (3) fachlal circumstances. Grand 

Traverse Band ofOltawa & Chippewa Indians v. United States Atty., 198 F. Supp. 2d 

920,935 (W.D. Mich., 2002). Applylng these criteria to the restored lands exception 

pIaces "belatedly reslored tribes in a comparable position to earlier recognized tribes 

w11iIe simultaneously limiting after-acquired property in some fashion." Id. Courts apply 

the factors in a balancing test, and not all factors must weigh in a tribe's favor for the 

land to meet the restored lands exception. Grnrld Traverse, 198 F. Supp. 2d 920 at 936; 

W'yandotte Nation v. NUX~OMU~ Indian Gaming Comrn 'n, 437 F.Supp. 2d 1 193, 12 14 

(D-Kan. 2006). In fact, the court in Grand Traverse fomd that "the land may be 

considered part of a restoration of lands on the basis of timing alone" 198 F. Supp. 2d 

920 at 936, and the Wyandotte court found that the Iocation factor is "arguably the most 

important component of the test for the restoration of land exception." Wynnclotte, 437 

F.Supp 2d 1193,1214. 

The Chairman's Decision and the Issues Presented bv the Tribe's Appeal 

Because the Tribe's ordinance was site-specific and defined the Carter Lake land as 

Indian land that meets the restored lands exception, the Chairman had to determine the validity 

of this assertion in the process of deciding whether to approve or disapprove the ordinance. See 

' There is no dispute that the Tribe is a restored tribe. 
e.g Citizens Against Casino Gambling in Erie County, et. al. v. Kempthorne, et, al., 471 F. Supp. 

2d 295,323 (W.D. N.Y., 2007, 

The Chairman found that the Carter Lake parcel meets both the temporal and location 

factors of the restored lands analysis, and there has been no challenge lo these findings. We agree 

with the Chairmail's findings in this regard and affirm those findings. What is in dispute, then, is 

the Chairman's appIication of the factual circumstmces element and his resultant disapproval of 

the ordinance on the grounds that it purported to authorize and regulate gaming on lands upon 

which the Tribe could not lawfully game. 

The Chairman found the following facts to be determinative in disapproving the 

ordinance: (1) the Tribe did not contemplate a gaming use for the land when it applied for trust 

status; (2) Iowa and Pottawattamie County challenged the Regional Director's decision to take 

thc Iand into trust; (3) The Tribe represented before the BJA that the land would not be used for 

gaming; (4) the IBIA affirmed the Regional Director's decision, finding it only specdative that 

the Tribe intended to game on the land; (53 the Tribe and the State reached agreement that the 

State would forgo litigation in Federal court and the Tribe acknowledged the land did not meet 

the restored lands test; (6) the Tribe's attorney requested that RIA'S public notice contain 

language to the effect that the Tribe acknowledged that the lands are not restored lands; (7) the 

BIA published the requested language; and (8) the State wrote a confirming letter to the Tribe in 

which it agreed not to pursue judicial review of the IBIA's decision. These events, the Chairman 

found, show that "at the time of the acquisition. no one involved intended the Carter Lake land to 

bc used for gaming or. more importantly, to be restored land." Disapproval Memo at 27-30. Each 

of these factors fall into one of the followi~ag three categories: (1) the Tribe's expressions of 
intent as to its use of the land; (2) the Tribe's expressions of intent regarding the restored Iands 

status of the land; and (3) reliance by third parties upon those expressions of intent. 

The Tribe argues that the Chairman erred in considering these facts for several reasons. 

First, prior agency opinions show that a tribe's intended use of the land at the time it is taken into 

trust is not relevant to the restored lands analysis. Tribe's Notice of Appeal at 5-6. Second, the 

Tribe's expressions of its intent that the Carter Lake parceI was not restored lands occurred 

outsids the relevant period for consideration. Id. at 10-12. Third, case law does not support 

subjective intent as a factual circumstance, Id. at 7, and even if it did, the expressions of intent do 

not outweigh the overwhelmingly positive analysis of the location and temporal factors. Id. at 8. 

Finally, reliance by third parties was not within the Commission's authority to consider in a 

gaming ordinance review. Tribe's Response to Submission of the State of Iowa at 3-8. 

The State argues, in part, that the Comrnissjon should affirm the Chairman's decision 

because the Tribe "previously repudiated any claim it may have had that the Carter Iake trust 

holdings constitute restored land eligible for class 111 gaming under IGRA." Request to 

Participate in Appeal at 5 and that "[bloth the State of Iowa and the BIA acted in reliance on [the 

Tribe's] representations." Id. at 7. 

Tribe's Intended Use of the Land is Not Relevant to a Restored Lands Anam 

The Chairman based his disapproval in part on the Tribe's representations that it intended 

to use the land for a health care facility and tlze IBIA ruling that gaming was only a speculative 

use. Disapproval Memo at 27-28. Reliance on these facts was error. Prior agency decisions 

3 Pottawattamie County was invited to subrmt information to the NIGC reIative to the status of the Carter Lake land 

but did not do so. See Letter to Pottawattamie County Board of Supervisors from Michael Gross, NlGC Senior 

Attorney, dated March 10,2006. 
instruct that intended use at the time of the trust acquisition has no pIace in a restored lands 

anaI ysis. 

The question of whether lands are restored is, in fact, quite distinct from the question of 

whether a tribe intends to conduct gaming on those particular lands. In other words, the focus of 

tl~e analysis is whether the Iand was acquired as part of the Tribe's restoration, not on what the 

Tribe planned to do with the land at the time. Most restored lands determinations are made 

through the DOI's trust acquisition process in cases where a tribe has expressed intent to game. 

However, there are also a number of cases, such as this one, where tribes acquire trust land for 

another purpose, and later, often within only a few years, receive a positive restored lands 

determination so that they may conduct gaming. Regardless of when the tribe expresses its intent 

to game, the analysis is the same. 

On remand from the District Court in Confederated Tribes of Coos, Lower U~zpytia & 

Sizaslcrw Indians v. Bahbitt, 1 16 F. Supp. 2d 1 55 (D.D.C. 2000), the DO1 found that the land at 

issue was restored lands. It noted that the Iand "was taken into tmst for historical, cultural and 

economic self-sufficiency" and that '"a]t the time of the land being taken into trust, the Tribes 

were not considering it for gaming purposes" but changed tlreir intended purpose "to maximize 

their economic development opportunities." DO1 Memorandum from Philip Hogen, Associate 

Solicitor, Division of Indian Affairs to Assistant Secretary - Indian Affairs Re: Confeclernted 

Tribes of Coos, Lower Umpyua & Siusluw Indians v, Babbitt, 11 6 Fa Supp. 2d 155 (B.D.C. 

2000) in regard to proposed gaming on the Hatch Tract in Lane County, Oregon (Dec. 5,2001) 

(Coos Opinion). Only 22 months after the land was taken into trust for another purpose, the 

Tribes announced tlreir intent to game and requested a restored lands opinion. 
Si~nilarly, the Commission's Office of General Counsel (OGC) has issued two opinions 

in favor of restored lands for tribes that originally expressed their intent to use the property for 

another purpose. The Bear River Band of Rohnerville Rancheria sought a restored lands decision 

in much Ihe same way the Tribe does here - by way of a site-specific ordinance. The land the 

Bear River Band sought to game on was land it had purchased through a Community 

Development Block Grant from the U.S. Department of Housing and Urban Development and 

with the assistance of the BIA. Thc Secretary accepted the land into trust, and only one year 

later, the Bear River Band began to seek a restored lands determination. Memorandum from 

NIGC Acting General Counsel to NIGC Chairman Deer, Re: Bear fiver Band of Rohnerville 

Rancheria at 2 (August 5,2002). The OGC found that the land was restored lands under the 

IGRA. Id. at 14. 

More recently, aur OGC found that the land upon which the Mooretown Rancheria 

wished to conduct gaming was restored land despite that the land had been originally acquired 

for housing purposes and, like the Bear River Band land, was also purchased with HCTD money. 

Memorandum from John R. Hay, NIGC Staff Attorney, through Penny J. Coleman, NIGC 

Acting General Counsel to P11ilip N. Hogen, NIGC Chairman Re: Mooretown Rancheria 

Restored Lands at 9-1 0 (October 18,2007). Again, only two years had passed before the Tribe 

announced its intent to game and sought a restored Iands opinion. Id. 

As is shown by these earlier restored lands opinions, the Tribe's intended use of the land 

is not relevant to a restored lands finding and tribes are free to change their intended use of the 

land to take advantage of gaming opportunities if the land othenvise meets the relevant factors. 

Here, the Tribe took more than twice as long as other tribes to change course and pursue gaming. 

Like Coos, Bear River, and Mooretown, the Tribe is free to do so. It was error for the Chairman 
to consider that the Tribe did not contemplate a gaming use for the land when it applied for tnrst 

status; that it represented before the IBIA that the land would not be used for gaming; and that 

tlze IBIA relied on that representation. 

The Tmst Decision was Made When tlze EBIA Issued its Final Agency Decision and Events 

Which Post-Date this Decision Were Improperly Considered 

AIthough we have found the intended use of the land is not relevant, we still must 

determine whether the Tribe's expressed intention with regard to the restored status of the land, 

and reIiance thereon, are factual circumstances appropriately considered in the restored lands 

analysis. Before we can do so, however, we must address whether the Tribe's expressions of that 

intent were timely considered; i.e. were they present at the time the land was taken into trust? 

The core question of any restored lands analysis is whether the land at issue was "'taken 

into trust as part of. . . the restoration of lands for an Indian tribe that is restored to Federal 

recognition." Grurqcl Traver-se at 934. Whether the lands are taken into trust as part of a 

restoration of lands necessariIy depends on the facts present at the time of the acquisition, or, 

more precisely, the facts present when the decision to acquire the land was made. Any facts 

which were not present at the time of the decision are not part of the trust acquisition, and, 

therefore, are not properly considered. 

At issue is exactly when the acquisition occurred. There are three views expressed here: 

1. The Tribe argues that the decision was made on September 15,2000, when the 

Regional Director issued the decision to take the land into tntst. Tribe's Notice of 

Appeal at 11. 

2. The Chairnlan stated that the earliest the decision could lsave been final was in 

August 2002 when the IBW decision was issued. Disapproval Memo at 27-30. 
3. The Chairman tl~en expanded the time frame to the date the Secretary signed the 

deed in February 2003, and relied on this later date and events which occurred up 

and until this date, in his disapproval of the ordinance. Id. The State agrees with 

the Chairman's reliance on this Iater date. State of Iowa's Request to Participate at 

6. 

We believe the correct view, first expressed by the Chairman, is that the land to trust 

decision was made when it became a final agency decision, i.e. upon the IRTA's decision. 

Consequently, events that occurred after that were not considered as part of the trust decision, 

Support for this view rests in DOI's regulations that govern both IBIA appeals and land 

acquisitions. Interior's regulations provide that the IBIA decides "finally for the Department 

appeals to the head oitl~e Department pertaining to administrative actions of aficials of the 

Bureau of Indian Affairs, issued under 25 CFR chapter I."~ 43 C.F.R. 9 4.1 (b)(2). AdditionalIy, 

25 C.F.R. 8 4.3 12 states, "rulings by the [IBIA] are final for the Department and must be b' wen 

immediate effect." Finally, 43 C.F.R. 4.21 (d) provides, in pertinent part: 

No further appeal will Iie in the Department from a decision of the Director or an 

Appeals Board of the Office of Hearings and Appeals. Unless otherwise provided by 

regulation, reconsideration of a decision may be granted only in extraordinary 

circumstances where, in the judgment of the Director or an Appeals Board, suficient 

reason appears therefor. 

3llese regylations unequivocally denlonstrate that the TBIA decisicln is a final agency decision. 

3L9 regulations requiring public notice that a final decision has been made are also 

instructive here. Section 15 1 .12(b) of 25 of C.F.R. requires public notice "that a final agency 

determination to take land into trust has been made and that the Secretary shall acquire title in 

the name of the United States no sooner than 30 days after the notice is published." 25 C.F.R. 

The land into trust process is governed by 25 C.F.R. Part 151, which falls within chapter I of 25 C.F.R, and is 

therefore appropriately witlrin the jurisdiction of IBIA. 
$ 15 1.12(b). When the BTA amended its regulation regarding land acquisitions, it added this 

notice requirement to facilitate judicial review of decisions by the Secretary to take Iand into 

trust. See GE Fed. Reg. 18082 (Apr. 24, 1996); See also, McAlpine v. United States, 1 12 F.3d 

1429, 1433 (loth Cir. 1997). The preamble to the BIA regulation explains that the rule: 

establishes a 30-day waiting period after final administrative decisions to acquire 

land in trust under the [IRA]. The Department is estabIishing this waiting period 

so that parties seeking review af final decision by the [IBIA]. ..will have notice of 

administrative decisions to take land into trust before title is actually transferred. 

This notice allows interested parties to seek judicial or other review under the 

[APA] . . . 

6 1 Fed.Reg. 1 8082 (Apr. 24, 1996). The preamble further explains: 

following consideration of the factors in the current regulations and completion 

of the title examination, the Department, through Federal Register notice, or other 

notice to affected members of the public, will announce any final administrative 

detemination to take land in trust. The Secretary will not acquire title to the land 

in trust until at least 30 days after publication of the announcement. This 

procedure permits judicial review before transfer of title to the United States. The 

Quiet Title Act (QTA), 28 U.S .C. 5 2409(a), precludes judicial review after the 

United States acquires title. (citations omitted). 

The timing and purpose of the public notice shows that it was not considered as part of 

the trust decision. The purpose of the notice is to advise the public that a land to trust decisiol~ 

has been made so that affected parties may sue in federal court to prevent the trust acquisition 

before the land is formally acquired because the Quiet Title Act precludes judicial review after 

the United States acquires title. See 28 U.S.C. 5 2403(a). See also, Governor of Kansas, et. a!. I>. 

Kenythome, 505 F.3d 1089 (10" Cir. 2007). The agreement entered into between the Tribe and 

the State, and the written documentation of that agreement, all occurred after, and as a result of, 

the land to trust decision. It was because the JBIA issued a final decision that the State sought the 

agreement with the Tribe that it would not pursue its remedies in federal district court so long as 

the Tribe "acknowledged that the lands are not eligible for the exceptions under 25 U.S.C. 
271 ~@)(F)(B).''~ 

Finally, and importantly, the TBIA acts under authority delegated to it by the Secretary. 

See 43 C.F.R. 4.1, which provides that "[tlhe Office of Hearings and Appeals, [of which the 

IBIA is a board] is an authorized representative of the Secretary for the purpose of hearing, 

considering and determining, as fully and finally as might the Secretary, matters within the 

jurisdiction of the Department involving hearings and appeals and other review functions of the 

Secretary." Id. Because the BL4 acts for the Secretary and decides matters finally as the 

Secretary would, the IBIA decision here was, in effect, the Secretary's decision. The actions that 

followed that decision, i.e, the publication of the notice and the signing of the deed were not past 

of the decision whether to take the land into trust, but were actions the Secretary was required to 

take following a decision to take land in trust. This conclusion is supported by the use of the 

word "shall" in 25 C.F.R. $ I 5 1.12(b). Once the waiting period has expired and there is no 

challenge to the decision or request for reconsideration, the Secretary must acquire the land into 

trust. 

We are not persuaded by the Tribe's argument that the decision-making process ended 

with the Regional Director and any events that occur after that point are not properly considered. 

Had the State not appealed, the Tribe would be correct in its timing analysis; however, where an 

appeal is timely filed and further documents may be submitted for con~idesation,~ the Regional 

Director's decision cannot be said to have been final. While the Regional Director expressed 

intent to take the land into trust, that decision was timeIy appealed to IBTA and it is the IJ3TA 

decision that constitutes final agency action. DO1 was not, as the Tribe suggests, "simply 

defending its decision by following the process set forth by law." Tribe's Notice of Appeal at 11. 

As discusscd at pages 16-17, i~fro, the question of restoration is a legal one not affected by a tribe's 

acknowledgement that the land is or is not restored. b See 43 C.F.R. 5 4.22 for regulations regarding submissions to IBIA. 
Tt was still actively engaged in the decision-making process up and until the final agency 

decision. 

The Chairman considered events that occurred up until the Secretary signed the deed. 

Even if this were the appropriate time-frame for considering evidence, we agree with the Tribe 

that '"there is no evidence that Interior 'reviewed, analyzed, or considered whether to approve or 

endorse whatever 'agreement' that may have given rise to the notice before publishing it in the 

local newspaper. Rather, the Department simply accepted certain language to be appended to the 

. . . notice without independently determining whether it concurred with the substance.. . "' 

Tribe's Request for Indian Lands Opinion at 33 (July 23,2007). See also, internal BL4 e-mail 

referencing the language in the notice as a "compromise reached by the Ponca Tribe and the 

State of Iowa . . . [and tl~at] the Solicitor's office had no problem including the appended 

paragraph. If we did not include the last paragraph, Iowa would have litigated the matter in 

Federal Court." December 3,2002, e-mail from Tim Lake, Superintendent, BIA, Yankton 

Agency, to various BIA recipients. 

Consequently, we find that the IBIA decision is the point at which the decision was made 

by the agency, and any relevant events that occur up and until this point are properly considered 

as part of that decision. Events occurring after the decision are not properly considered. As such, 

the Chairman erred in relying on events that occurred after DOI's decision was final.' 

kecause we find that the Tribe's expressed intentions and reliance thereon are not relevant because they occurred 

after the DO1 final decision, we need not reach the question whether the subjective intent of a tribe and rcliance 

thereon are proper factual circumstances to be considered in a rescared lands analysis nor do we reach the question 

of the enforceability ofthe agreement between the Tribe and the State. 
The Carter Lake Land Meets the Location, Temporal Proximity, and Factual Circunlslances 

Factors and is Therefore Restored Land under the IGRA 

The Chairman set forth a strong positive analysis of the location and temporal 

factors, which we affirm. Because the test for restored lands is a balancing test, we weigh as we11 

the factual circumstances prong of the analysis. As discussed at pages 12-1 6, supra, the factual 

circumstances on which the Chairnlan relied occurred after IBIA's final decision and were therefore 

improperly considered. When we evaluate, however, the factual circumstances that occurred within 

the relevant time period, we find one fact in particular that weighs in favor of restoration, and no 

facts which weigh against it. Whether a tribe has significant intervening trust parcels is a fact that 

we have prevjouslly considered as part of the factual circumstances analysis. See Mernormdum to 

Philip N. Hogen, Chairman, from Penny J. Coleman, Acting General Counsel, Re: Cowlitz Tribe 

Restored Lands Opinion, November 22,2005 at 9; Memorandum to Philip N. Hogen, Chairman, 

through Penny J. Coleman, Acting General Counsel, fiom John R. Hay, Staff Attorney, Re: 

Mooretown Rancheria Restored Lands, October 18,2007. Here, we note that the Carter Lake land is 

among the first trust acquisitions of the Tribe ("[tlhe Tribe owed in trust only an office building in 

Lincoln, Nebraska . . . and approximately 150 acres in Niobrara, Nebraska, for a community 

building and bison grazing land." Disapproval Memo at 26.). We find that the factual 

circumstances prong, as well as the location and temporal prongs, weighs in favor of a finding that 

the Carter Lake land is restored. 

Despite the clear direction of the law, we are troubled by the inequities worked in this 

case. We do not "diminish the importance of [the Tribe's] concession to the State of Iowa." 

State's Request to Participate at 9. It seems the Tribe led the State down the primrose path with 

promises it never intended to keep. Yet, the law here prevents us from granting either a remedy 
to the State or imposing a consequence on the Tribe. Without a consequence for those who so 

boldly promise whatever suits them, we are concerned by the tarnish the Ponca's actions may 

leave on the credibility and good faith of other tribes that attempt to have land taken into trust. 

CONCLUSION 

We affirm in part and reverse in part the Chairman's decision. We afirm the Chairman's 

determination that the land meets the location and temporal factors of the restored lands analysis. 

We reverse the Chairman's decision with respect to the factual circurnstances factor because it 

improperly relied on the Tribe's intended use of the Iand and events that occurred after the 

Department of Interior's final agency decision was made. Because the Chairman relied on the 

factual circumstances findings to disapprove the ordinance, we reverse the Chairman's 

disapproval of the ordinance. The Carter Lake land meets the restored Iands exception. The 

ordinance is therefore hereby approved. 

It is so ordered by theNATIONAL INDIAN GAMTNGSOMMISSION. 

Philip N. Hogen Cloyce V. Choney 

Chairman Vice-Commissioner 

Norman H. DesRosiers 

Commissioner