Memorandum 

To: Philip N. Hogen, Chairman 

From: Penny J. Coleman, Acting General Counsel 

Subject : Legality of Gaming under the IGRA on the Shriner Tract owned by the 

Wyandotte Tribe 

Date: July 19,2004 

I. Introduction 

On March 24,2004, the FIational Indian Gaming Commission (MGC) Office of General 

Counsel (OGC) provided you with its written opinion that gaming is not legal under the 

Indian Gaming Regulatory Act (IGRA) on the Shriner Tract, a parcel of land in Kansas 

City, Kansas, held in trust for the benefit of the Wyandotte Tribe of Oklahoma (Tribe). 

On March 31,2004, the Tribe requested reconsideration of the March 24,2004, opinion. 

On April 5,2004, the Tribe filed suit against the NTGC in U.S. District Court for the 

District of Columbia, challenging the March 24,2004, opinion.' 

Upon reconsideration, we recognize that some of the language in the March 24,2004 

opinion is over broad, and we have therefore revised the opinion. Consequently, the 

March 24,2004 opinion is superceded by this memorandum. The conclusion, however, 

remains the same. :It is the opinion of the OGC that the Tribe cannot lawfblly game on 

the Shriner Tract pursuant to the IGRA. 

At this time the Tribe is not conducting gaming on the property- Thus, no fkrth& action 

need be taken. With your permission, I will transmit this opinion to the Tribe and other 

interested parties. .. 

I The case was transferred to the US. District Court for the District of Kansas. The Kansas District Court 

denied the Tribe's Motion for a Temporary Restraining Order, and that issue is now before the 10' Circuit 

Court of Appeals on an interlocutory appeal. 

NATlONAL HEADQUARTERS 1441 L St. NW. Suite 9100. Washington. DC 20005 let: 202.632.7003 Fax: 202.632.7066 WWW.NlCC.GOV 

REGIONAL OFFICES Portland. OR: Sacramento. CA; Phoenix. AZ; St. Paul. MN;Tulsa. OK 

I 
I!. Background 

On August 28,2003, the Tribe commenced gaming on a parcel of land in downtown 

Kansas City, Kansas known as the Shriner 'Tract.' This parcel was taken into trust for the 

benefit of the Tribe on July 15,1996. Because the Shriner Tract was taken into trust 

after October 17,1988, for gaming to be legal under the IGRA, it must fall within one of 

'fGRA7s exceptions to the prohibition on gaming on lands acquired into trust after 

October 17,1988. 

The NIGC Chairman approved the Tribe's gaming ordinance on June 29,1994. The 

approved ordinance is not site specific. On June 20,2002, the Tribe submitted an 

amended gaming ordinance specific to the Shriner Tract property. The Tribe also 

submitted documentation supporting its claim that the Shriner Tract met three separate 

IGRA exceptions to the prohibition on gaming on post 1988 acquired lands. On August 

27,2002, the Tribe withdrew the amended ordinance to give the NlGC more time to issue 

an Indian lands opinion. The Tribe later advised the NlGC that it did not plan to game on 

the Shriner Tract after all. 

On September 2,2003, the Tribe advised the NlGC by letter that it had commenced 

gaming. The Tribe also resubmitted the supporting material from June 2002. 

Subsequently, on October 18, November 12, and November 3 1,2003, the Tribe provided 

additional supporting materials and arguments. In addition to information received from 

the Tribe, we solicited and reviewed information from the State of Kansas on this issue. 

The four gaming tribes in Kansas also submitted information. 

The Office of General Counsel has evaluated the status of the Shriner Tract and finds that 

it does not fall within one of the ERA exceptions. Therefore, the Tribe may not game 

on the Shriner Tract purmant to the IGRA. 

IU. Historical Backmound 

The Tribe provided much of the following historical background in its September 2, 

2003, submission. 

2 "'A tract of land in the Northwest Quarter of Section 10, Township 11, Range 25 Wyandotte County, 

Kansas situated in Kansas City, Kansas and more particularly descriid as: Beginning at tbe SW comer of 

Huron Place, as shown on the recorded plat of Wyandotte City, in Kansas City, Kansas, thence North 150 

feet; thence East 150 feet; thence South 1 SO feet; thence West 150 feet to the point of beginning, meaning 

and intending to describe a tract of land 150 feet square in the Southwest corner of Huron Place as shown 

on the recorded Plat of Wyandotte City, which is marked 'Church Lot' thereon. " 61 Fed. Reg. 1 14,29757- 

29758 (June 12,1996). 
A. Ere Revolutionary America 

Prior to the first contact with European settlers, the Tribe's ancestors, known as the 

Huron, resided in an area known as "Huronia" between the Georgia Bay and Lake 

Ontario south of the Ottawa River in Canada. After a bloody conflict with the Iroquois 

Confederacy in 1648 and 1649, the Huron left their homeland and took refbge with the 

Ottawa and Chippewa on the northwest shore of Lake Huron in the present state of 

Michigan. During the early 1 8th century, the Huron gradually moved south to the area 

around the Detroit settlement and into the Western Reserve (the present State of Ohio and 

western Pennsylvania) and became known as the WyandotteB. Cessation of Ohio and Michigan Lands 

Beginning in 1795 after their defeat at the Battle of Fallen Timbers, the Tribe began 

ceding their lands to the United States. In a series of treaties with the United States 

between 1795 and 1832, the Tribe ceded to the United States all of the Tribe's interest in 

approximately 6 million acres of land in the present States of Ohio and Michigan. See 

Treaty with the Wyandot dated August 3,1795,7 Stat. 49; Treaty of Fort Industry dated 

July 4, 1805,7 Stat. 87; Treaty with the Wyandot dated July 22, 1814,7 Stat. 118; Treaty 

with the Wyandot dated September 8,181 5,7 Stat. 131; Treaty with the Wyandot dated 

September 29,1817,7 Stat. 160; Treaty with the Wyandot dated September 17,1818,7 

Stat. 178; Treaty with the Wyandot dated September 20,181 8,7 Stat. 180; Treaty with 

the Wvandot dated January 19,1832,7 Stat 364. After the Treaty of January 19,1832, 

the Tribe's land holdings were limited to a 109,144-acre reservation in Crawford County, 

Ohio and a 4,996-acre reservation in Michigan. 

C. Removal to Kansas 

In 1842, the Tribe again entered into a treaty with the United States pursuant to which the 

Tribe ceded its remaining Ohio and Michigan lands to the United States. See Treaty with 

the Wyandot dated March 17,1842,ll Stat. 58 1. Under the Treaty of 1 842, the United 

States in consideration of the Tnie's land cession, granted to the Tribe a 148,000-acre 

tract of land located west of the Mississippi River. &j. at Art. 2. The Treaty did not 

identify the specific location of the new 148,00eacre reserve, but the Tribe negotiated to 

purchase land fiom the Shawnee Tribe near Westport, Missouri. The last 664 Wyandotte 

left the State of Ohio on July 12,1843. 

The Tribe arrived in the Town of Kansas between July 28 and 3 1,1843, and originally 

took up residence on a strip of United States owned land between the Missouri border 

and the Kansas River. Shortly after arriving in the Kansas Territo~y, the Tni learned 

that the Shawnee would not complete the sale of the Westport lands and that the United 

States would not honor its 1842 Treaty commitment to provide the Tribe with a 148,000- 

acre reserve. 
On December 14, 1843, the Tribe entered into an agreement with the Delaware Nation to 

acquire Iand in the Kansas Temtory. Under the 1843 agreement the Delaware gifled to 

the Tribe three (3) sections of land, each comprising 640 acres, situated in the Kansas 

Temtory at the confluence of the Kansas and Missouri Rivers. A,oeement between the 

Delaware Nation and the Wyandot Nation, dated December 14,1843, at Art. I., 9 Stat. 

337. Additionally, the Delaware sold the Tribe thirty-six (36) sections of land to the west 

of the gified land. a. at Art II. The 1843 agreement between the Tribe and the Delaware 

was ratified by the United States Senate on July 25, 1848, with the following additional 

proviso: "the Wyandot 'Indian Nation shall take no better right or interest in and to said 

lands than is now vested in the Delaware Nation of Indians." 9 Stat. 337. 

D. Termination of Tribal Status, Removal to Oklahoma, and Restoration 

Between 1843 and 1855 the Tribe was instrumental in the founding and platting of 

Wyandotte City, which was later renamed Kansas City. In 1855 the Tribe again entered 

into a treaty with the United States. Treaty with the Wyandot dated January 31,1855,lO 

Stat. 1 159. Under the Treaty of 1855, the Tribe agreed to cede the 36 sections of land it 

had purchased from the Delaware Nation to the United States. @. at Art. II. Specifically 

reserved from the treaty cession was the Huron Indian Cemetery, which was and remains 

adjacent to the Shriner Tract, and 2 parcels of land that were then in use as Methodist 

Episcopal churches. Id. 

In addition to ceding tribal lands to the United States, the Treaty of 1855 offered tribal 

members the option of (i) renouncing their tribal affiliation and becoming citizens of the 

United States and receiving an allotment from the lands ceded to the United States under 

the Treaty, or (ii) maintaining their tribal affiliation and identity and removing to the 

Indian Temtory (the present State of Oklahoma). Xd, at Art. I, Art. III. In 1857, some 

200 tribal members who had elected to maintain their tribal affiliation were removed to 

the Zndiari Tenitory and resided among the Seneca Nation in the northeastern portion of 

the Territory. 

During the Civil War most of the Wyandotte and Seneca left the Indian Territory and 

relocated back to Wyandot City to live among their relatives who had become citizens of 

the United States and had received allotments fiom the tribal lands. After the war, these 

Wyandottes again relocated back to the Indian Territory and received a reservation under 

the Omnibus Treaty of 1867.15 Stat. 51 3. This reservation was allotted in 1893. 

The Tribe, pursuant to the Oklahoma Indian Welfare Act of 1936, adopted a constitution 

and by-laws, which were ratified on July 24,1937. In 1956, however, Federal 

supervision of the Tribe was terminated. Act of August 1,1956,70 Stat. 893. The Tribe 

was restored as a federally recognized Indian tribe on May 14,1978. Act of May 14, 

1978,92 Stat. 246. The Assistant Secretary- Indian Affairs on May 30,1985, approved 

the Tribe's Revised Constitution. 
E. Trust Land Acquisitions 

On June 8, 1979, the United States took into trust for the benefit of the Tribe a 1.5-acre 

parcel in Wyandotte, Oklahoma. In a memorandum fiom the BJA Superintendent of the 

Miami Agency to the BL4 Area Director, Muskogee Area Office, regarding the Tribe's 

request to have land taken into trust it states, "The Wyandotte tribe was recently 

reinstated and recognized by the United States Government as Indians and, more 

recently, acquired a land base with desires of purchasing additional land adjacent and 

elsewhere." Memorandum from BIA Superintendent of the Miami Agency to the BIA 

Area Director, Muskogee Area Office, Re: Request for Land to be Placed and Held in 

Trust.. ., Dated November 13,1878. The memorandum further states, "The Wyandotte 

tribe will use their land as a base for tribal economic development.. ." @. 

Five years later, in 1984, two additional parcels of land in Wyandotte, Oklahoma, one 3.8 

acres, the other 1 893 acres were taken into trust for the Tribe. With respect to the 189 

acres, the BIA Muskogee Area Director stated in a June 3,1980, letter to the United 

States General Services Administration, "I have [dletemined and hereby certify that 

subject property is located within the boundary of the former reservation of the 

Wyandotte Tribe of Oklahoma.. ." Letter from BW Muskogee Area Director to United 

States General Services Administration, June 3, 1980. 

F. Indian Claims CornmiThe Indian Claims Commission (ICC) was established to resolve Indian claims that had 

accrued against the federal government prior to August 13,1946. 25 U.S.C. $5 70-70v-3. 

During the 1950s, the Tribe filed several actions against the United States with the ICC. 

On August 17, 1978, in ICC Docket No. 139, the ICC entered a judgment in favor of the 

Tribe against the United States in the amount of $561,424.21 as additional compensation 

for the Tribe's land cession to the United States under the Treaty of Fort Jndusbry of 

1805,7 Stat. 87. Funds to cover this judgment were appropriated on October 31,1978. 

On January 19,1979, in JCC Docket No. 141, the ICC entered a judgment in favor of the 

Tribe against the United States in the amount of $2,348,679.90 as additional 

compensation for the Tribe's land cessions to the United States under the treaties dated 

September 29,181 7,7 Stat- 160, Sept. 17,181 8,7 Stat- 178; and Sept. 20, 1818,7 Stat180. Funds to cover this judgment were appropriated on March 2,1979. Finally, on 

January 20,1983, the US. Court of Claims, in ICC Docket Nos. 212 and 213, entered 

judgment in favor of the Tribe against the United States in the amount of $200,000 as 

additional compensation for the Tribe's land cessions to the United States under the 

treaties of 1832, 1 836 and 1842. 

The 189-acre parcel, a former Indian boarding school, was actually transfened by the General Services 

Administration to the Secretary of the Interior to be held in trust for the Tni in 1979. However, other 

Oklahoma Tribes appealed that transfer, and lengthy litigation ensued. The other Oklahoma Tnbes were 

unsuccessful, and the transfer was completed in 1984. (*Memorandum fiom Assistant Secretary-Indian 

Affairs to Deputy to the Assistant Seaeta~y-Indian Affairs (Trust and Economic Development), Re: 

Recording the Transfer of Seneca Indian School, dated: October 14, 1986.. 
Under the Indian Tribal Judgment Funds Use or Distribution Act of 1973, 87 Stat. 466, 

the Secretary of the Interior is required to provide a distribution plan for judgment funds 

within 180 days after the appropriation of such funds. 25 U.S.C. 9 1402(b). The 

Secretary did not provide a plan for the use or distribution of the funds appropriated in 

settlement of the judgments entered in 1CC Docket Nos. 139 and 141 within the 

prescribed time. On December 20, 1982, Pub. L. No. 97-371,96 Stat- 181 8, was enacted 

to provide for the distribution of funds appropriated to the Nation in settlement of the 

judgments entered in ICC Docket Nos. 139 and 141. 

Questions subsequently arose regarding the equity of the formula used to divide the 

award between the Tribe and Absentee Wyandottes no longer associated with the Tribe. 

Therefore, Pub. L. 97-371 was repealed and on October 3 1, 1984, Pub. L. 98-602,98 

Stat. 3149, was enacted to replace it. The distribution plans contained in Pub. L. No. 97- 

371 and Pub. L. No. 98-602 both provided that $100,000 of the judgment funds was to be 

used for the purchase of real property; that the Secretary was required to take into trust for 

the benefit of the Tribe. See, Pub. L. No. 97-371, §3(b)(l); Pub. L. No. 98-602, 

§105(b)(l)- 

G. Park City, Kansas Property 

On November 22,1992, the Tribe purchased a 10-acre parcel of real property located in 

Park City, Sedgwick County, Kansas (the "Park City Property) for $25,000.00. In 

February 1993, the Tribe petitioned the United States to accept title to the Park City 

property in trust for the benefit of the Tribe for gaming purposes. On February 4,1993, 

the Muskogee Area Director requested guidance fiom the Field Solicitor on what actions, 

if any, were necessary to insure compliance with the IGRA. On February 9, 1993, at the 

invitation of the Field Solicitor, the Tribe submitted a memorandum stating, among other 

things, that the land claim settlement exception applied to the Park City property. In a 

memorandum to the Area Director dated February 19,1993, the Field Solicitor, however, 

concluded that the land cIaim settlement exception would not apply to the Park City 

property if the Property were accepted into trust. (Exhibit 3 to Tribe's September 2, 

2003, submission). On April 28, 1993, the Muskogee Area Director advised the Tribe 

that if the Tribe intended to use the Park City Property for gaming, it must go through the 

Secretarial determination process contained in 25 U.S.C- §2719@)(1)(A). 

The Tribe consulted with the BIA regarding the trust acquisition of the Park City 

Property throughout 1993 and 1994, and as a result of those consultations, the Tribe 

elected to cease temporarily its efforts to have the United States accept title to the Park 

City Property in trust for the benefit of the Tribe. 

H. Shriner Tract Trust Acquisition 

During 1994 and 1995, the Tribe negotiated to purchase several properties adjacent to the 

Huron Cemetery. In January 1996, the Tribe submitted an application to the BIA 

requesting that the United States accept title to certain parcels of real property located in 
Kansas City, KS, including the Shriner Tract, in trust for the Tribe. The Tribe's trust 

application cited Pub. L. No. 98-602 as the statutory authority for the requested trust 

acquisition. The trust application further stated that the proposed trust lands were 

contiguous to the Huron Cemetery and argued that because the Huron Cemetery was 

reservation land of the Tribe on October 17, 3988, the Tribe would be entitled to conduct 

gaming on the proposed tmst parcels pursuant to 25 U.S.C. 5 271 9(a)(l). On June 12, 

1996, the BLA published in the Federal Register a notice stating its intention to accept 

title to the Shriner Tract in trust for the Tribe. 

On July 12,1996, the State of Kansas and four (4) Indian tribes in Kansas filed suit 

against the Assistant Secretary seeking to enjoin the trust acquisition of the Shriner Tract. 

Plaintiffs argued that Pub. L. No 98-602 did not mandate a trust acquisition and the 

Secretary's determination to accept title to the Shriner Tract in trust for the Nation was 

arbitrary and capricious because the Secretary did not consider the factors enumerated in 

25 C.F.R. Part 15 1. The plaintiffs also argued that the trust acquisition was in violation 

of Federal law because the Secretary did not require compliance with certain Federal 

statutes, including the National Environmental Policy Act. Plaintiffs further contended 

that the Secretary's determination that the Huron Cemetery constituted an Indian 

reservation of the Nation was arbitrary and capricious and inconsistent with applicable 

law. Although an injunction was entered against the United States on July 12, 1996, the 

Nation took an emergency appeal to the Tenth Circuit, and on July 15, 1996, the Tenth 

Circuit vacated the July 12 injunction. The United States accepted title to the Shriner 

Tract in tmst for the benefit of the Nation on July 15,1996. 

Although the Tenth Circuit vacated the July 12,1996, injunction, the Court preserved the 

rights of the parties to assert any all claims or defenses with respect to the trust 

acquisition. The matter proceeded before the United States District Court, and on March 

2,2000, the District Court entered judgment dismissing Plaintiffs' Complaint on the 

grounds that Plaintiffs had failed to join an indispensable party, i.e., the Tribe. Sac and 

Fox Nation of Missouri v. Babbitt, 92 F. Supp.2d 1 124 (D. Kan. 2000). While the 

District Court did not rule on the merits of the case, it did note that had it been required to 

address the merits the Court would have ruled that Pub. L. No. 98-602 was a mandatory 

trust acquisition statue. Id. at 1128. The District Court lefi undecided the question of 

whether the Huron Cemetery was a reservation for purposes of the IGRA. a. at 1 129. 

The State appeaIed the District Court's dismissal to the Tenth Circuit. In a February 28, 

2001, opinion, the Court of Appeals concluded that Pub. L. No. 98-602 was a mandatory 

trust acquisition statute, and that, if funds allocated to the Tribe under Section 105(b)(l) 

of Pub- L. No. 98-602 were used to acquire the Shriner Tract, the Secretary had no 

discretion and was required to accept title in trust for the Tribe. Sac and Fox Nation, 240 

F.3d at 1262. The Appeals Court, however, concluded that it was unclear fiom the 

administrative record whether the Tribe had in fact used Pub. L. 98-602 funds to purchase 

the Shriner Tract, and the Court remanded the matter back to the District Court with 

instruction that the District Court remand the matter back to the BIA for confirmation that 

Pub. L. No. 98-602 hnds were used to purchase the Shriner Tract. a. at 1263-64. 
After addressing the Pub. L. No. 98-602 issue, the Tenth Circuit turned to the question of 

the status of the Huron Cemetery. a. at 1264. The Court noted that under Chevron Inc. 

v. Natural Resources Defense Council. Inc., 467 US. 837 (I 984), courts typically extend 

considerable deference to determinations by executive agencies charged with the 

administration of a particular statute. The Court stated, however, that "when Congress 

enacted IGRA, it established the. . . [National lndian Gaming] Commission and charged 

the Commission with exclusive regulatory authority for Indian. gaming conducted 

pursuant to IGM." Sac and Fox Nation, 240 F.3d at 1265-66. The Court concluded that 

because Congress vested the Commission, and not the BIA, with exclusive regulatory 

authority over Indian gaming, the Court was not required under Chevron to extend any 

deference to the Secretary's determination that the Huron Cemetery was a reservation for 

purposes of the IGRA. Id. Owing no deference to the Secretary's determination, the 

Court determined that the Huron Cemetery was not a reservation for purposes of the 

IGRA as Congress had contemplated, and directed the District Court to enter judgment 

declaring that the Huron Cemetery was not a reservation for purposes of the IGRA. d. at 

1267. 

On August 23,2001, the District Court, pursuant to the directions from the Tenth Circuit, 

entered its final judgrnent. The judgment remanded the matter "to the Secretary of the 

Interior to reconsider whether Pub. L. 98-602 funds alone were used to purchase the 

Shriner Tract in connection with the decision to approve taking the Shriner Tract into 

trust for the Wyandotte Tribe of Oklahoma." The District Court also entered judgment 

"declaring that the Huron Cemetery is not a 'reservation' for purposes of the lndian 

Gaming Regulatory Act, 25 U.S.C. 2701 et seq." 

On March 1 1,2002, the Assistant Secretary published a notice in the Federal Register 

concluding that the Tribe had used only Pub. L. 98-602 hds to purchase the Shriner 

Tract. The notice also confirmed the trust status of the Shriner Tract. To alleviate any 

confusion the March 1 I notice may have caused, the Assistant Secretary published on 

May 5,2002, a revised notice stating that the original March 1 1 notice was not intended 

as a determination on the question whether the Shriner Tract was taken into trust as part 

of the settlement of a land claim. 

After the publication of the March 11 notice, the State of Kansas and the four Kansas 

tribes filed suit in the U.S. District Court for Kansas, alleging that the Secretary's March 

I I determination was arbitrary and capricious. At the same time, the State filed a request 

with the Assistant Secretary asking that the Assistant Secretary reconsider the March 11 

determination. On or about June 1 1,2002, the Assistant Secretary granted the State's 

request for reconsideration. On June 12,2003, the Acting Assistant Secretary issued an 

Opinion on Reconsideration, finding that only Pub. L. 98-602 funds were used to 

purchase the Shriner Tract. 

IV. Avplicable Provisions of IGRA and NlGC Remlations 

An lndian tribe may engage in gaming under IGRA only on "Indian lands" that are 

within such tribe's jurisdiction." 25 U.S.C. $9 271 O(b)(l) and 2710(d). Additionally, if 
the proposed lands are trust or restricted lands, rather than land within the limits of an 

Indian reservation, the tribe may conduct gaming only if it exercises "governmental 

powerT7 over those lands. 25 U.S.C. 9 2703(4)(B); 25 C.F.R. § 502.12(b). 

IGRA defines "Indian landsy7 as: 

(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 lndian tribe or individual or held by any Indian tribe or 

individual subject to restriction by the United States against alienation and 

over which an Indian tribe exercises governmental power. 

25 U.S.C. § 2703(4). 

NGC regulations further clari6 the Indian lands definition: 

lndian lands means: 

(a) Land within the limits of an Indian reservation; or 

@) Land over which an hdian tribe exercises governmental power and that is 

either - 

(1) Held in trust by the United States for the benefit of any lndian tribe or 

individual; or 

(2) Held by an Indian tribe or individual subject to restriction by the United States 

against alienation. 

25 C.F.R. 502.12. Lands that do not qualify as Indian lands under IGRA generally are 

subject to state gambling laws. See National Indian Gaming Commission: Dejinitions 

Under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12382,12388 (1 992). 

Section 2719(a) of the IGRA provides that gaming shall not be conducted on lands 

acquired by the Secretary in trust for the benefit of an Indian tribe after October 17,1988, 

unless certain exceptions are met. For the purposes of reviewing the Shriner Tract, the 

following exceptions are particularly relevant. The general prohibition does not apply to 

lands located in a state other than Oklahoma that are within the Indian tribe's "last 

recognized reservation within the State or States" within which the tribe is presently 

located. 25 U.S.C. 5 27 19(a)(Z)(B). In addition, the prohibition does not apply when: 

lands are taken into trust as part of- 

(i) a settlement of a land claim, [or] 

(ii) the restoration of lands for an Indian tribe that is restored to 

Federal recognition. 

25 U.S.C. 5s 27 19(b)(l)(B)(i), (iii). 
V. Le~al Analysis 

An Indian tribe may engage in gaming under IGRA only on "Jndian lands" that are 

within such tribe's jurisdiction. 25 U.S.C. $2701; 25 U.S.C. $5 271 O(b)(l) and 271 O(d); 

25 U.S.C. tj 2703(4). Additionally, if the lands at issue are trust lands outside the tribe's 

reservation, the tribe may conduct gaming on it only if it exercises "governmental power7' 

over the land. 25 U.S.C. 5 2703(4)(B); 25 C.F.R. tj 502.12(b). Therefore, to determine 

whether the Shriner Tract is Indian land, we must determine that the Tribe has 

jurisdiction, and, because the Shriner Tract is trust land outside a reservation, that the 

Tribe exercises governmental power over it. 

Tribal jurisdiction is a threshold requirement to the exercise of governmental power. &, 

e.g., Rhode Jsland v. Narragansett lndian Tribe, 19 F.3d 685,701 -703 (1''. Cir. 1994), 

cert denied, 513 U.S. 919 (1994), superceded by statue as stated in Narragansett Indian 

Tribe v. National Indian Gaming Commission, 158 F.3d 1335 (D.C. Cir. 1998) (In 

addition to having jurisdiction a tribe must exercise governmental power in order to 

trigger [IGRA]); Miami Tribe of Oklahoma v. United States, 5 F.Supp.'Zd 121 3, 12 17-1 8 

(D.Kan.1998) (MNI (A tribe must have jurisdiction in order to be able to exercise 

governmental power); Miami Tribe of Oklahoma v. United States, 927 F.Supp. 141 9, 

1423 (D. Kan. 1996) (Miami I) (The NIGC implicitly decided that in order to exercise 

governmental power for purposes of 25 U.S.C. $2703(4), a tribe must first have 

jurisdiction over the land); State ex. re]. Graves v. United States, 86 F.Supp. 2d 1094 (D. 

Ran. 200), aff d and remanded, Kansas v. United States, 249 F.3d 121 3 (1 oth Cir. 2001). 

This interpretation is consistent with IGRA's language limiting the applicability of its key 

provisions to "[alny Indian tribe having jurisdiction over Indian lands," or to "Indian 

lands within such tribe's jurisdiction. 25 U.S.C. §tj 271 0 (d)(3)(A), 271 O(b)(l); see also 

Rhode Island v. Narragansett hdian Tribe, 19 F.3d 685,701-703 (lsr. Cir. 1994) 

denied 5 13 U.S. 91 9 (1 994). As a threshold matter, we must therefore analyze whether 

the Tribe possesses jurisdiction over the trust parcel. 

A. Jurisdiction 

As a general matter, tribes are presumed to possess tribal jurisdiction within "Indian 

country." See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998)- The Supreme 

Court has stated that Indian tribes are 'invested with the right of self-government and 

jurisdiction over the persons and property within the limits of the territory they occupy, 

except so far as that jurisdiction has been restrained and abridged by treaty or act of 

Congress." Menion v. Jicarilla Apache Tribe, 455 U.S. 130,140 (1 982). 

Historically, the term "hdian country" has been used to identify land that is subject to the 

"primary jurisdiction . . . [of] the Federal Government and the Indian tribe inhabiting it" 

Alaska v. Native Village of Venetie Tribal Gov7t, 522 U.S. 520,527 n. 1 (1 998). The 

U.S. Code defines "Indian country" as: 

(a) all land within the limits of any Indian reservation.. ., 
(b) all dependent Indian communities.. ., and 

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

18 U.S.C. tj I 151. The Venetie court observed that Section 1 151 reflects the two criteria 

the Supreme Court "previously . . . had held necessary for a finding of 'lndian country' 

. . . first, [the lands] must have been set aside by the Federal Government for the use of the 

Indians as Indian land; second, they must be under federal superintendence." Venetie, 

522 U.S. at 527. Prior to the enactment of section 11 5 1 in 1948, the Court had already 

found that reservation lands and allotments satisfied those requil-ements. See, e.g., 

United States v. Pelican, 232 US. 442,449 (1 914) (hdian country includes individual 

Indian allotments held in trust by the United States because they "remain lndian lands set 

apart for Indians under governmental 'care"); Donnelly v. United States, 228 U.S. 243, 

269 (191 3) (Indian country includes lands within formal reservations). The Venetie court 

also observed that Congress used the term "dependent Indian communities" in Section 

115l(b) to codify the Court's understanding, as expressed in United States v. McGowan, 

302 U.S. 535 (1938), and United States v. Sandoval, 231 US. 28 (1913), that other lands, 

although not formally designated as a reservation, may also possess the attributes of 

"federal set-aside" and "federal superintendence" characteristic of Indian country. 

Venetie, 522 U.S. at 530; see, ex., McGowan, 302 U.S. at 538-539 (Reno lndian Colony 

land held in trust by the United States is lndian country); Sandoval, 231 U.S. at 45-49 

(Pueblo Indian lands). 

Several Supreme Court decisions hold or assume that tribal trust lands are lndian country 

although they are not part of a formal reservation. In Oklahoma Tax Comm'n v. Citizen 

Band Potawatomi lndian Tribe of Oklahoma, the Supreme Court concluded that lands 

held in trust by the United States for the Tribe were "validly set apart for the use of the 

Indians as such, under the superintendence of the Government," and therefore were 

Indian country, with the consequence that the State did not have the authority to tax sales 

of goods to tribal members that occurred on those lands. 498 U.S. 505,511 (I 991). The 

Potawatomi Court specifically rejected the contention that the tribal trust land was not 

Indian country because it was not a reservation, noting that no "precedent of this Court 

has ever drawn the distinction between tn'bal trust land and resenrations that Oklahoma 

urges." Id.; see also Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450,452-453 

and n.2 (1995) (treating tribal trust lands as Indian country); Qklahoma Tax Comm'n v. 

Sac & Fox Nation, 508 U.S. 114,123-125 (1993); United States v. John, 437 U.S. 634, 

649 (1W8) (observing that "[tjhere is no apparent reason why these lands, which had 

been purchased by the United States] in previous years for the aid of those Indians, did 

not become a 'reservation,' at least for purposes of federal criminal jurisdicti~n'~); United 

States v. McGowan, 302 U.S. 535,539 (1938). 

Here, consistent with Venetie and other Supreme Court decisions, the Tribe's trust land, 

although not a formal reservation is ''Indian country," within the meaning of section 

11 51. The land has been 'validly set-aside for the tribe under the superintendence of the 

federal government." United States v. McGowan, 302 U.S. at 539, quoted in Venetie, 

522 U.S. at 529. 
It is unnecessary to decide whether the Tribe's trust lands are more properly categorized 

as an informal reservation under section 11 51 (a) or as a dependent lndian community 

under section 1 15 1 (b) because, regardless of category, the property in this case, owned by 

the United States in trust for the Tribe, is Indian country. The Tribe's trust lands come 

within at least one of the three statutory categories, because the trust lands possess the 

two characteristics of Xndian country reflected in section 1 151. See Venetie, 522 U.S. at 

527. 

B. Exercise of Governmental Power 

Because the trust land is Indian country, we can conclude that the Tribe has jurisdiction 

over it. For the land to fit the definition of "Indian lands," we must next decide whether 

the Tribe also exercises governmental power over the parcel. See 25 U.S.C. 

5 2703(4)@3); see also Narragansett Indian Tribe, 19 F.3d at 703. 

IGRA is silent as to how NIGC is to decide whether a tribe exercises govemental 

power. Furthermore, the manifestation of governmental power can differ dramatically 

depending upon the circumstances. For this reason NIGC has not formulated a uniform 

definition of "exercise of govemental power," but rather decides that question in each 

case based upon all the circumstances. See National Indian Gaming Commission: 

Definitions Under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12382, 12388 (1 992). 

Case law provides some guidance. The First Circuit in Narragansett Indian Tribe found 

that satisfying this requirement depends "upon the presence of concrete manifestations of 

[governmental ] authority." Narragansett Indian Tribe, 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 Cheyenne River Sioux Tribe v. State of South Dakota, 830 F. Supp. 523 (D.S.D. 

1993), aff d 3 F.3d 273 (8' Cir. 1993), the comt stated that several factors might be 

relevant to a determination of whether off-reservation trust lands constitute Indian lands. 

The factors were: 

(1) Whether the areas are developed; 

(2) Whether the tribal members reside in those areas; 

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

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

the Tribe; and 

(5) Other indicia as to who exercises govemental power over those 

areasThe Tnie identified several actions it believes demonstrates its present exercise of 

governmental power over the Shriner Tract. We find the following actions significant: 
(1) The Tribe asserted its governmental authority to challenge 

taxes purported to be levied by the Unified Government of 

Wyandotte CountyKansas City, Kansas. In 2001, the 

Unified Government filed a legal action to foreclose a tax 

lien on the Shriner Tract. The Tribe asserted its 

sovereignty and the foreclosure action was dismissed by 

Wyandotte County; 

(2) The Tribe has posted signs around the perimeter of the 

Shriner Tract which advise the public that the property is 

Indian country, and that persons entering upon the property 

are subject to the laws and jurisdiction of the Tribe and the 

United States; 

(3) The Tribal Police Department provides law enforcement 

services to the property; 

(4) In 1998, the Tribe entered into a Settlement Agreement 

with its sister tribe, the Wyandot Nation of Kansas, 

wherein the Tribe agreed the Masonic Temple Building on 

the Shriner Tract would be used solely for govemmental 

purposes; and 

(5) The Tribe's Business Committee is in the process of 

finalizing the Tribe's Historic Preservation Plan, which 

provides that the Tribe will have the exclusive jurisdiction 

over historic properties located on its lands, including the 

Masonic Temple Building on the Shriner Tract. 

Also relevant is a Memorandum of Understanding entered into in 1998 between the Tribe 

and the Unified Govenunent of Wyandotte County/Kansas City, Kansas wherein the 

Unified Government recognized the governmental jurisdiction of the Tribe. 

In addition, the Tribe has, on at least one occasion, excluded non-tribal members fiom the 

property. In a letter dated September 22,2003, fiom David McCullough, Esq. to Phill 

KIine, Attorney General of Kansas, the Tribe denied the State of Kansas's request to 

inspect the Masonic Temple Building. (Letter hm David McCullough, Esq., attorney 

for the Tribe, to Phill Kline, Kansas Attorney General, dated September 22,2003). 

These "concrete manifestations of governmental authority" show that the Tribe in fact 

exercises governmental authority over the trust lands in question. We are satisfied that 

the parcel in question meets the statutory and regulatory definition of "Indian lands." 

However, a determination of whether the Tribe has Indian lands is not the end of the 

inquiry of whether the Tribe can conduct gaming on the land. 

C. Lands Acquired in Trust bv the Secretary After October 17, 1988 

Section 20 of the IGRA, 25 U.S.C. fj 2719, generally prohibits gaming on lands acquired 

in trust after the enactment of IGRA on October 17, 1988, unless one of several 

exceptions apply. Accordingly, because the Shriner Tract was taken into trust after 
October 17, 1988, it is necessary to review the prohibition and its exceptions to determine 

whether the Tribe may conduct gaming on the Shriner Tract. 

The Tribe argues that three exceptions to the general prohibition on gaming on afteracquired lands apply to the Shriner Tract. The Tribe argues that (I) the Shriner Tract is 

within the Tribe's last reservation; (2) the Shriner Tract was taken into trust as part of a 

settlement of a land claim, and (3) the Shriner Tract was taken into trust as part of the' 

restoration of their lands. We address each of these arguments in turn. 

1. Last Reservation 

The Tribe argues that the "last reservation exception" applies to the Shriner Tract. The 

"last reservation exception" provides that gaming may be conducted on lands acquired 

after October 17, 1988, provided that the tribe had no reservation on October 17, 1988, 

and the lands are located in a state other than Oklahoma and are within the Indian tribe's 

last recognized reservation within the State or States within which such Indian tribe is 

presently located. 25 U.S.C. 2719(a)(2)(B). The first two parts of this exception are 

met: the Tribe had no reservation on October 17, 1988,~ and the land is in Kansas, not in 

Oklahoma. We therefore turn our attention to the remaining question, whether the land 

at issue is within the tribe's last recognized reservation within the State within which the 

Tribe is presently located. 

To answer this question, we must first determine where the Tribe is presently located. 

The Tribe argues that it is presently located in Kansas, and that the Shriner Tract is within 

the Tribe's last recognized reservation in Kansas. The Tribe argues that it is "presently 

located" in Kansas because it exercises jurisdiction over the Huron Cemetery, located in 

Kansas. The Tribe argues that the existence of an inter-governmental agreement with 

Kansas City providing for the maintenance and security of the Huron Cemetery 

establishes this jurisdiction. 

The answer to this question turns on the scope and meaning of the term "presently 

located." To determine the scope of a statute, we look first to its language. Reves v. 

Ernst & Young, 507 U.S. 170,177 (1993). To ascertain the plain meaning of a statute, 

we look to the particular statutory language at issue, as well as the language and.design of 

the statute as a whole- Kmart Corn. v. Cartiex- Inc., 486 U.S. 281,291 (1988); (See also, 

U.S. v. Seminole Nation of Oklahoma, 321 F.3d 939,944 (10th Cir. 2002), "In 

interpreting a statute, the [Tenth Circuit] gives effect to a statute's unambiguous terms. 

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."). Furthermore, we must give the words of the statute "their ordinary, 

contemporary, common meaning, absent an indication Congress intended them to bear 

some different import." Williams v. Taylor, 529 U.S.420,432 (2000). 

4 We understand there are no reservations in the State ofOklahoma, as contemplated by the IGRA. 

Otherwise, the all encompassing Oklahoma exception in 25 U.S.C. 5 2719 (a)(2) would likely not exist. 
While tribes can be Iocated in more than one state (see e.g. the Navajo Nation which is 

located in three states or the Standing Rock Sioux Tribe which is located in two states), 

we believe the plain meaning of the term "presently located" is clear. It is not where the 

tribe happens to have an isolated tract of land. It plainly means where the tribe is 

currently to be found, ie., where the tribe physically resides. To determine where this is, 

we look to where the seat of tribal government is, and where the Tribe's population 

center is. The seat of the Wyandotte Tribal government and its population center is in 

Wyandotte, Oklahoma. We therefore find that the Tribe is presently Iocated in 

0klahoma.s 

We do not subscribe to the Tribe's argument that it is presently located in Kansas because 

jt exercises jurisdiction over the Huron Cemetery, located in Kansas. As stated by the 

Tenth Circuit, "[aJlthough the Huron Cemetery was reserved by the federal government 

in the 1855 treaty, it is uncontroverted that the reservation was made strictly for purposes 

of preserving the tract's status as a burial ground. It is further uncontroverted that, since 

the time of the 1855 treaty, the Huron Cemetery has not been used by the Wyandotte 

Tribe for purposes of residence. Rather, the tract, which is now separated by a significant 

distance fiom the actual reservation of the Wyandotte Tribe in Oklahoina, has 

consistently maintained its character as a public burial ground." Sac and Fox at 1 267. 

This plain reading of the statutory language is consistent with our reading of the whole of 

section 2719(a). The language of section 2719(a) evidences a Congressional intent to 

limit gaming to tribal reservations or, if no reservation exists, to areas within former 

reservations or last reservations where the tribe is located. This section of IGRA limits, 

not expands, the right to game. It is clear that Congress intended to allow some gaming 

to occur on lands acquired after enactment of the IGRA under this provision, but only 

contemplated gaming on newly acquired lands far fiom the current or prior reservation in 

very specific isolated circumstances. 

If a court were to find that the tenn "presently located" is ambiguous, the court would 

defer to the MGC's reasonable interpretation of the statutory language. U.S. v. Seminole 

Nation of Oklahoma 321 F.3d 939,944 (lo& Cir. 2002). The court would also look to 

the legislative history. The legislative history here does not support the Tribe's views. 

With respect to lands acquired after October 17,1988, tbe Select Committee on Indian 

Affairs stated, "[g]aming on newly acquired triial lands outside of reservations is not 

generally permitted dess the Secretary [of the Interior] determines that gaming would 

be in the tribe's best interest and would not be detrimental to the local community and the 

Governor of the affected State concurs in that determination." S. Rep. No. 446, I OO~ 

Congress, 2d Session 8 (1 988). 

5 If a court were to fmd that the term "presently located" is ambiguous, the court would defer to the NIGC's 

reasonable interpretation of the statutory language. U.S. v. Seminole Nation of Oklahoma, 321 F.3d 939, 

944 (I 0th Cir. 2002). 
Because we find that the Tribe is not presently located in Kansas, we need not address the 

Tribe's other arguments in support of its contention that the Shriner Tract is within its last 

reser~ation.~ 

2. Settlement of a Land Claim 

The Tribe argues that the land claim settlement exception to the prohibition on gaming on 

lands acquired after 1988 applies to the Shiner Tract. This exception allows gaming on 

land taken into trust after 1988 as part of a settlement of a land claim. The Tnbe argues 

that the Tribe's JCC claims are land claims within the meaning of 25 U.S.C. 

tj 2719(b)(l)(B)(i), and that the Shriner Tract was taken into trust as part of a settlement 

of those claims. (Tribe's September 2,2003, submission at 15-17). 

Specifically, the Tribe argues that, in Docket Nos. 139 and 141, the ICC held that the 

Tribe was granted recognized title to Royce Areas 53 and 54 by virtue of the Treaty of 

Greenville and the Treaty of Fort Industry, and that the ICC, as a precursor to evaluating 

damages, had to apportion interests in the areas among the various tribal signatories to 

these two treaties. (Tribe's September 2,2003, submission at 16). The Tribe argues that 

a claim requiring a determination of ownership of title to land is a "land claim" within the 

meaning of 25 U.S.C. 5 27 19(b)(l)(~)(ii).~ 

As stated above in our discussion of the "last reservation" exception, the interpretation of 

the land claim settlement exception must begin with the language of the provision itself. 

Reeves, 507 U.S. at 177. To ascertain the plain meaning of a statute, we look to the 

particular statutory language at issue, as well as the language and design of the statute as 

a whole. KMart Corp. 486 U.S. at 291; (See also, Seminole Nation of Oklahoma at 944 

("In interpreting a statute, the [Tenth Circuit] gives effect to a statute's unambiguous . . 

terms. 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."). Furthermore, we must give the words of the statute*"their ordinary, 

We note, however, that tbe Tenth Circuit Comt of A@s has held that the Huron Cemetery, adjacent to 

the Shriner Tract, is not a reservation for purposes of the lGRA because it was not set aside for the Tni to 

reside on Sac and Fox Nation of Missam v. Norton, 240 F. 36 1250,1267 (10th Cir. 2001; cer~. denied, 

Wvandotte Nation v. Sac & Fox Nation, 534 U.S- 1078 (2002). The court found that "IGRA7s use of the 

phase 'the reservation of the Indian bi in 25 U.S.C. fj 2719(a) suggests that Congress envisioned that 

each mibe would have only one reservation for gaming purposes-" a at 1267. Further, the court held, 

"IGRA specifically distinguished between the resenration of an Indian lrii and lands beld in trust for the 

trii by the federal government If the tenn 'reservation' were to encompass all land held in trust by the 

government for Indian use (but not necessarily Indian residence), then presumably most, if not all, trust 

lands would qualify as 'rcservatio~~' In turn, all of those parcels could be used in the manner in which the 

Wyandotte Tribe seeks to use the Huron Cemetery and its surrounding tracts." Id. 

' The Tnbe cites to no substantive authority to support this definition, only to cases discussing the Indian 

Canon of Construction, which provides that ambiguous statutes me to be construed liberally, wjth 

ambiguities resolved in favor of Indians. Brvan v. Itasca Coun~,426 U.S. 373,392 (1976). However, 

because we find that the term "land claim" is unambiguous, we need not resort to any statutory construction 

aids, including the Indian Canons of Construction. 
contemporary, common meaning, absent an indication Congress intended them to bea~ 

some different import." -Williams, at 432. 

If the language of the land claim settlement provision is clear and unambiguous, then the 

plain meaning of the provision will apply and there is no need to turn to the legislative 

history of the provision or to traditional aids to statutory construction. Connecticut Nat. 

Bank v. Gemain, 503 U.S. 249,251 (1992); Sacramento Regional County Sanitation 

Dist. v. Reilly, 905 F.2d 1262, 1268(gth Cir. 1990). 

Subsection (b)(l)(B)(i) makes an exception to the no-gaming-on-after-acquired-lands rule 

for "lands [] taken into trust as part of a settlement of a land claim." This provision 

clearly requires that there be a claim for land, and that land be taken into trust as part of a 

settlement of that claim. It is clear and unambiguous. It means a claim made by a Tribe 

fox the return of land. To determine whether the Tribe's ICC claims were land claims 

requires an inquiry into the nature of the claim brought by the Tribe and the resulting 

award to the Tribe. The Tribe brought claims before the ICC and the Claims Court 

exclusively for money damages, not over title to land itself. Furthennore, the Tribe's 

award was limited to money damages. While the ICC may have evaluated whether the 

Tribe previously held title to the land, and had to assign interests among the various tribes 

to ascertain money damages, this does not transform the claim into a land claim. The 

claim was for money, not the land, and the evaluation undertaken by the court to arrive at 

the amount of money damages does not change that. Furthermore, Pub. L. 98-602 was 

merely a mechanism with which to distribute judgment funds awarded to the Tribe. 

Congress was fully aware of the ICC and the pre-existing process created for the tribes to 

bring claims against the United States when it enacted the IGRA. Congress could have 

included a broad exception to the gaming prohibition on lands taken into trust for 

property purchased with funds awarded by the ICC and the Claims Court; hawever, no 

such exception exists in the legislation. Instead, Congress chose to narrowly except lands 

taken into trust "as part of. . . a settlement of a land claim." 

To find that ICC money judgments fit within the plain language of the after-acquired 

lands exception would result in the exception swallowing the rule. The ICC handled 

large numbers of claims during its lifetime, and substantial relief was granted to many 

tribes. William C. Canby, Jr., American Indian Law at 267 (2nd Ed. 1988). Interpreting 

the land claim settlement exception to apply any time a tribe uses such monetary 

judgments to purchase Iand would open up the exception far beyond what was intended. 

Findly, the Department of the Interior 01) previously determined that the Tribe's land 

in Park City, Kansas, purchased with Pub. L. 98-602 hds, was not Iand within the 

meaning of the IGRA land claim settlement exception The DO1 Tulsa Field Solicitor, in 

an opinion dated February 19, 1993, concluded that: 

Public Law 98-602 which authorizes the expenditure of judgment funds 

awarded to the Tribe by the Indian Claims Commission and its successor 
forum, the United States Claims Court, for acquisition of lands to be taken 

into trust by the Secretary of the Interior, does not come within the 

meaning of [IGRA7s land claim settlement exception]. While the 

argument of the Tribe is cogent, we are mindful of the limitations on the 

jurisdiction of the Indian Claims Commission and the United States 

Claims Court to award money judgments based upon the fair market value 

of lands taken by the United States at the time of the taking and not land. 

25 U.S.C. $970-70v. Strictly speaking, settlements reached in cases 

before the Indian Claims Commission and the United States Claims Court 

are not land settlements wherein the parties assert competing claims to 

title to property, but rather are settlements of cIaims against the United 

States for money damages. 

Memorandum fiom M. Sharon Blackwell, Field Solicitor, Tulsa, to Area Director, 

Muskogee Area Office, BJA, February 19, 1993 at 1 1. We see no reason to 

depart fiom this interpretation. 

3. Restoration of Land 

Finally, the Tribe argues that the "restored lands" exception applies to the Shriner Tract. 

This analysis requires a two-part detemination: (1) that the Tribe is a "restored" tribe, 

and (2) that the Shriner Tract was taken into trust as part of a restoration of land. 25 

7J.S.C. §2719(b)(l)(B)(iii); See also, Grand Traverse Band v. United States Attorney for 

the Western District of Michigan, ("Grand Traverse Band II'), 198 F. Supp. 2d 920 

(W.D. Mich. 2002); aff d, 2004 FED App. 0151P (6& Cir. 2004). We agree that the Tribe 

is a restored tribe.' We therefore turn our attention to whether the Shriner Tract was 

taken into trust as part of a restoration of land. 

Federal courts, the United States Department of the Interior, and the NIGC have recently 

grappled with the concept of restoration of land, In so doing, they have established 

several guideposts for a restoration-of-land analysis. First, 'restored" and crestoration" 

must be given their plain, primary meanings- Grand Traverse Band 11 at 928 (W.D. Mich. 

2002); aff d, 2004 FED App. 01 5 1P (6a Cir. 2004); Confederated Tribes of Coos. Lower 

Umwua & Siuslaw Indians v. Babbitt ("Coos"), 1 16 F. Supp2d 155,161 (D.D.C. 

2000). In addition, to be "rest~red,~" lands need not have been restored pursuant to 

Congressional action or as part of a triie's restoration to federal recognition. Grand 

Traverse Band of Ottawa and Chip~ewa Indians v. United States Attornev for the 

Western District of Michinan ("Grand Traverse Band I"), 46 F. Supp2d 689,699 (WD. 

Mich. 1999); Coos at 164. 

Nonetheless, there are limits to what constitutes restored lands. As the MGC stated in its 

opinion, requested by the court in Grand Traverse a, "[Wle believe the phrase 

The Tribe wa~ terminated by the Act of August 1, 1956,70 Stat. 893, and was restored to federal 

recognition by the Wyandotte, Peoria, Ottawa and Modoc Tribes of Oklahoma: Restoration of Federal 

Services Act, May 15, 1978,25 U.S.C. 5 861,92 Stat. 246. 
'restoration of lands' is a difficult hurdle and may not necessarily be extended, for 

example, to any lands that the tribe conceivably once occupied throughout its history." 

Letter fiom Kevin K. Washburn, National Indian Gaming Commission General Counsel, 

to Honorable Douglas W. Hillman, Senior United States District Judge, United States 

District Court (W.D. Michigan), Re: Whether the Turtle Creek Casino site [hleld in trust 

[fJor the benefit of the Grand Traverse Band of Ottawa and Chippewa lndians is exempt 

from the [IGRA7s] general prohibition of gaming on lands acquired after October 17, 

1988, dated August 31,2001, p. 15 (NIGC GTB Opinion); see also Office of the 

Soljcito~'~ Memorandum Re: Confederated Tribes of Coos. Lower Umpsua & Siuslaw 

Indians v. Babbitt, p. 8. (Office of the Solicitor's Coos Opinion) ("It also seems clear 

that restored land does not mean any aboriginal land that the restored tribe ever 

occupied."). 

The courts in Coos and Grand Traverse Band I and II noted that some limitations might 

be required on the tern "restoration" to avoid a result that "any and all property acquired 

by restored tribes would be eligible for gaming." Coos at 164; Grand Traverse Band I at 

700; See also Grand Traverse Band Il at 935 ("Given the plain meaning of the language, 

the term 'restoration' may be read in numerous ways to place belatedly restored tribes in 

a comparabIe position to earlier recognized tribes while simultaneously limiting afteracquired property in some fashion") aff d, 2004 FED App. O151P (6Ih Cir. 2004). All 

three courts proposed that land acquired after restoration be limited by "the factual 

circumstances of the acquisition, the location of the acquisition, or the temporal 

relationship of the acquisition to the tribal restoration." Id. 

The Associate Solicitor, Department of the Intenor adopted a similar interpretation in his 

Coos Opinion on remand fiom the Coos court. "We believe [tlhat to apply [the] 

dictionary definition to the restored lands provision without temporal or geographic 

limitations would give restored tribes an unintended advantage over tribes who are bound 

to the limitations in IGRA that prohibit gaming on lands acquired after Octobex 17,1988. 

Moreover, we believe that, in examining the overall statutory scheme of IGRA, Congress 

intended some limitations on gaming on restored lands." &J. at 6. 

The Associate Solicitor further stated that: 

[Blecause IGRA provides certain temporal (i-e. the October 17, 

1988 limitation for resenration boundaries) and geographic 

limitations (i-e., land within or contiguous to the tribe's 

reservation) we cannot view 5 2719(b)(l)(B)(iii) to allow gaming 

on after-acquired lands with no limitations- Consequently, we do 

not use a dictionary definition of restored to include all lands 

"restored." It also seems clear that restored land does not mean 

any aboriginal land that the restored tribe ever occupied. Tribes 

that were not terminated and thereby not capable of being 

'restored' lost vast amounts of land and were forced to move all 

over the country such that their reservations on October 17,1988, 

are vastly different than their aboriginal land. 
- Id. at 8. 

In addition to the above referenced sources, we also consulted our restored lands opinions 

with regard to the Bear River Band of Rohnerville Rancheria, & Memorandum fiom 

NlGC Acting General Counsel to NIGC Chairman Deer, Re: Whether gaming may take 

place on lands taken into trust alter October 17, 1988, by Bear River Band of Rohnerville 

Rancheria, dated August 5, 2003) (NIGC Rhonerville Opinion) and the Mechoopda 

hdian Tribe of the Chico Rancheria (& Memorandum from NIGC Acting General 

Counsel to NIGC Chairman, Re: Whether gaming may take place on lands taken into 

trust after October 17, 1988, by the Mechoopda Indian Tribe of the Chico Rancheria, 

dated March 14,2003)0\nGC Mechoopda Opinion). 

In this case, these factors (factual circumstances, location and temporal relationship) and 

our review of agency and judicial precedent lead us to conclude that the Tribe's land 

acquisition is not a "restoration." 

A. Factual Circumstances of the Acquisition 

During 1994 and 1995, the Tribe negotiated to purchase several properties adjacent to the 

Huron Cemetery. In January 1996, the Tribe submitted an application to the BIA 

requesting that the United States accept title to certain parcels of real property located in 

Kansas City, KS, including the Shriner Tract, in trust for the Tribe. The Nation's trust 

application cited Pub. L. No. 98-602 as the statutory authority for the requested trust 

acquisition. On June 12, 1996, the BIA published in the Federal Register a Notice stating 

its intention to accept title to the Shriner Tract in trust for the Tribe. 

On July 12,1996, the State of Kansas and four (4) Indian tribes in Kansas filed suit 

against the Assistant Secretary seeking to enjoin the trust acquisition of the Shrlner Tract. 

Plaintiffs argued that (i) Pub. L. No 98-602 was not a mandatory trust acquisition and the 

Secretary's determination to accept title to the Shriner Tract in trust for the Nation was 

arbitrary and capricious because the Secretary did not consider the factors enumerated in 

25 C3.R Part 15 1, and (ii) was in violation of Federal law because the Secretary did not 

require compliance with certain Federal statutes, including the National Environmental 

Policy Act. Plaintiffs also contended that the Secretary's determination that the Huron 

Cemetery constituted an Indian reservation of the Nation was arbitrary and capricious and 

inconsistent with applicable law. Although an injunction was entered against the United 

States on July 12,1996, the Nation took an emergency appeal to the Tenth Circuit, and 

on July 15,1996, the Tenth Circuit vacated the July 12 injunction. The United States 

accepted title to the Shriner Tract in trust for the benefit of the Nation on July 15, 1996. 

B. Location-Geomphical Proximitv and Historical Nexus 

The Tribe emphasizes that the most significant evidence demonstrating that lands can be 

considered "restored lands" is the physical location of the land, and that both the Grand 

Traverse I and Coos courts ruled that "[p]lacement within a prior reservation is 
significant evidence that the land may be considered in some sense restored." Tribe's 

September 2,2003, Submission at 13. See Grand Traverse 1,46 F., Supp. 2d at 702; and 

Coos, 1 16 F. Supp. 2d at 164 (quoting Grand Traverse I). The Tribe also quotes language 

from Grand Traverse I that "any lands taken into trust that are located within the areas 

historically occupied by the tribes are properly considered to be lands taken into trust as 

part of the restoration of lands under 4 2719." Tribe's September 2,2003, Submission at 

13; Grand Traverse I at 701. The Tribe argues that the Shriner Tract satisfies the 

"location" prong because it is within the Tribe's prior reservation in the State of Kansas. 

Tribe's September 2,2003 Submission at 13. 

We agree that the physical location of the land is significant. The parcel at issue on 

which the Tribe proposes to game is located in Kansas City, Kansas. However, the seat 

of the Wyandotte Tribal government, its present trust lands, and its population center are 

in Wyandotte, Oklahoma, a distance of approximately 175 miles fiom Kansas City. Also 

in Wyandotte, Oklahoma are the Tribe's Turtle Stop Convenience Store, Turtle Tot 

Learning Center, a Seniors Program, and educational assistance programs. In 1993, the 

Tribe completed an expansion of the tribal complex, which includes administrative 

ofices, new classrooms for the Turtle Tots Learning Center, as well as a Library and 

Heritage Center. See Tribe's web site at ~mm...wyandot.org . It is clear that the Shriner 

Tract is sited far fiom where the Tribe is actually located in Wyandotte, Oklahoma. 

In Grand Traverse and Rhonerville, the land at issue was located either near the tribal 

center or near tribal programs. In Grand Traverse, the site was located in the same area 

as a tribal housing development and an 80-acre youth camp. NIGC GTB Opinion at 1. In 

Rhonerville, the parcel at issue was six miles fiom the Rhonerville Tribe's original 

Rancheria, whose boundaries had been re-established. NGC Rhonerville Opinion at 2. 

In Mechoopda, the parcel was located approximately 10 miles from the Tribe's original 

Rancheria, which it occupied immediately prior to termination, and which was located in 

what is now the center of the city of Chico, California. MGC Mechoopda Opinion at 1 

and 9. While we do not, in this opinion, establish a standard for determining what is a 

reasonable distance for purposes of the restoration of lands analysis, we do not believe a 

distance of 175 miles between the parcel and the tribal center is close enough to establish 

a geographical connection. 

We also look to the historical nexus between the Tribe and the parcel at issue. In Grand 

Traverse, we found that restoration was shown by the "Band's substantial evidence 

tending to establish that the.. .site has been important to the tribe throughout its history 

and remained so immediately on resumption of federal recognition." NIGC GTB Opinion 

at 15. We further stated, "At the time of termination, Band members lived not far from 

the [parcel at issue]. For most of the Band's recorded history, it has lived and worked in 

[the general area of the parcel at issuer. Id. at 18. Finally, it was significant to the 

NIGC GTB Opinion that the land had 'been at the heart of the Band's culture throughout 

history.. ." @. at 19. 

In Coos, the Associate Solicitor found that the land had a geographic nexus to the Coos 

and that the Coos were not seeking to game on far-flung land. Associate Solicitor Coos 
Opinion at 13. The Associate Solicitor further found it relevant that the Coos had a 

presence in the area of the parcel at issue at the time of termination. Id. In concluding 

that the parcel at issue was restored land, the Associate Solicitor stated that he considered 

that the Coos were "seeking to game on land which has been historically tied to the 

Tribes and has a close geographic proximity to the Tribes." Id. at 14. 

LTI Mechoopda, we found that the parcel at issue had cultural and historical significance to 

the Mechoopda Indians. Three buttes with historical significance were located one mile 

fiom the parcel. These buttes figured prominently in a tribal myth. In addition, an 

historjc trail linking several tribal villages crossed the parcel. Furthermore, several 

Mechoopda villages were located in close proximity to the parcel. NlGC Mechoopda 

Opinion at 10-1 1. 

IJI Rhonerville, we found that the tribe had a longstanding historical and cultural 

connection to the parcel at issue. The parcel was located within one mile of two 

aboriginal villages and two major tribal trails. It was located within three miles of five 

aboriginal villages. Also within three or four miles fiom the parcel was the site of a 

mythic flood in a tribal story telling. Furthermore, the parcel was located 6 miles from 

the tribe's original Ranchena, which was purchased by the United States for the 

Rhonerville Indians in 191 0. The Rhonexville Tribe was terminated in 1962, and the 

Rancheria was divided and distributed to individual Indians. At the time the Rancheria 

boundaries were re-established in 1983, there were still 6 acres in individual Indian 

ownership. We found that, based on this infomation, the area had historical and cultural 

significance to the Tribe. It was also important to our determination that tribal members 

resided on the original Rancheria at the time of termination. Rhonerville Opinion at 10. 

In contrast, we do not find that the Tribe has a sufficient historical nexus to the Shriner 

Tract to qualifjr it as restored land. As evidenced by the information submitted by the 

Tribe, the Tribe was transient for much of its history. In the first part of the 16007s, the 

tribe resided in Canada- It then moved to We Huron in what is the present State of 

Michigan. In the early 1 7007s, the Tribe moved south and into the present State of Ohio 

and western Pennsylvania. Beginning in 1795, the Tribe began ceding land to the United 

States. In 1842 the United States granted the Tribe an unspecified area of land located 

west of the Mississippi River. The Tribe negotiated to purchase land from the Shawnee 

Tribe near Westport, Missouri. The Shawnee did not honor their agreement with the 

Tribe, and at the end of 1843, the Tribe entered into an agreement with the Delaware to 

acquire land in the Kansas Territory, which includes the parcel at issue. The Tnk 

occupied this land until the beginning of 1855, when it ceded the land to the United 

States. 

The Tribe occupied the Shriner Tract area for a very brief time (late 1843 to early 1855- 

only 1 1 full years). The cases discussed above do not support a finding that this short 

time period qualifies as an historical nexus. In all of the cases that have analyzed the 

restored lands question, there was a significant, longstanding historical connection to the 

land-sometimes even an ancient connection. We are not prepared to find that 

occupation of land for a period of 11 years, despite that significant roots were put down, 
rises to the level of an historical conr~ection.~ We believe that, if we were to so find, we 

would conceivably be bound to find that the Tribe also had an historical nexus to 

Michigan, Ohio, Pennsylvania and Missouri, and that if land were taken into trust in 

those locations, the Tribe could game there. As we said in our Grand Traverse Opinion, 

"[W]e believe the phrase 'restoration of lands' is a difficult hurdle and may not 

necessarily be extended, for example, to any lands that the tribe conceivably once 

occupied throughout its history." NlGC GTB Opinion, p. 15. 

Furthermore, the Tribe has not shown that it had a presence in the area of the Shrjner 

Tract upon termination. According to the Tribe's submission, it left Kansas in 1855 

when it ceded the lands to the United States. The Tribe's status was terminated in 1956. 

Act of August 1,1956,70 Stat. 893. Therefore, more than 100 years elapsed between the 

time the Tribe left the lands, and the Tribe was terminated. In Grand Traverse, Coos, 

Mechoopda, and Rhonerville, it was important to the determination of restored lands that 

the tribes in those cases had a presence on the lands upon termination. 

C. Temporal Relationship of Acquisition to the Tribal Restoration 

The Tribe argues that the temporal relationship of the acquisition to the Tribe's 

restoration is similar to the timelines in the other cases applying the restored lands 

exception. Tribe's September 2,2003, Submission at 14. The Tribe points particularly to 

the temporal relationship in the Grand Traverse case. Id. at 14-15. The Tribe emphasizes 

that in both its case and the Grand Traverse case, it took years from the time of 

restoration for approval of a tribal constitution, which was a necessary precursor for any 

trust acquisition. The Tribe fbrther argues that in both cases, the subject trust acquisitions 

were the first meaninghl acquisitions after restoration, and both were part of a concerted 

effort to acquire trust lands as part of an economic development program. Finally the 

Tribe argues that in both cases, the subject lands were previously ceded to the United 

States by treaty. Id. 

We see several distinctions between the temporal relationship in Grand Traverse and that 

here. First, with respect to the issue of the tribal constitution, it was noted in Grand 

Traverse, II that the Secretary of the Department of Interior would not take land into trust 

on behalf of the Grand Traverse Band until its constitution had been approved. Grand 

Traverse I1 at 936, affd, 2004 FEDApp. 01 5 1P (6& Cir. 2004). The Band's constitution 

was approved in 1988, and the subject property was taken into trust in 1989. Therefore, 

the court found that, "as a matter of timing, the acquisition of the [subject property] was 

part of the first systemic effort to restore tnial lands." &J. Here, the Tnie has provided 

no evidence that it was required to have an approved constitution prior to the acquisition 

of land in trust. In fact, the Tribe's constitution was approved in 1985, yet the United 

9 The Tni argues that the land qualifies as restored because it is within the Tnbe's prior reservation. The 

Tnk argues that the land is within its prior reservation because the land was reservation land of the 

Delaware Indian Nation, and when the Tni acquired it, the agreement provided that the Wyandotte Tni 

"shall take no better right or interest in and to said lands than is now vested in the Delaware Nation of 

Indians." 9 Stat. 337. See also page 3, herein. Even if the land could be considered reservation land 

because it was- reservation land of the Delaware, the land does not meet the historical nexus prong, as 

explained above. 
States took land into trust for the Tribe in 1979 and 1984. It is upon this land that the 

Tribe resides in Wyandotte, Oklahoma. 

The Grand Traverse LI court further found the absence of any substantial restoration of 

lands preceding the property at issue to be important. ]d. at 937, aff d, 2004 FED App. 

01 51P (6Ih Cir. 2004). Here, the Tribe had a substantial restoration of land preceding the 

Shriner Tract. In fact, three parcels of Iand were restored, one within one year and two 

within six years of tribal restoration. 

The Tribe was restored to federal recognition in 1978. The following year, Iand was 

taken into trust in Wyandotte, Oklahoma for the Tribe. Noteworthy is a memorandum 

fiom the BL4 Superintendent of the Miami Agency to the BIA Area Director, Muskogee 

Area Office, dated November 13,1978, regarding the Tribe's request to have land taken 

into trust. The memorandum states, "The Wyandotte tribe was recently reinstated and 

recognized by the United States Government as Indians and, more recently, acquired a 

Iand base with desires of purchasing additional land adjacent and elsewhere." It hrther 

states, "The Wyandotte tribe will use their land as a base for tribal economic 

development.. .." The trust deed for these 1 -5 acres is dated June 8, 1979. 

Five years later, in 1984, two additional parcels of land, one 3.8 acres, the other 189acres 

were taken into trust for the Tribe. With respect to the 189 acres, the BLA Muskogee 

Area Director stated in a June 3,1980, letter to the United States General Services 

Administration, "l have [dletemined and hereby certify that subject property is located 

within the boundary of the former reservation of the Wyandotte Tribe of Oklahoma.. . ." 

We do not agree with the Tribe that the Shriner Tract was the first meaningful 

acquisition. Certainly the Oklahoma land acquisitions, coming on the heels of tribal 

restoration, and comprising the land upon which the Tribe currently resides, are nothing 

if not meaningful. The Oklahoma land acquisitions have a strong temporal relationship 

to tribal restoration, and therefore may more appropriately be considered the Tribe's 

restored lands. These lands were taken into trust within one and six years of tribal 

restoration, and were noted by the BIA for being both a land base for the Tribe and within 

the Tribe's former reservation. 

The Shriner Tract, on the other hand, was acquired in trust in 1996, a period of 18 years 

fiom the Tribe's restoration in 1978. In Grand Traverse and Mechoo* the period 

between restoration and acquisition was 9 years (with the approval of the constitution a 

requirement in Grand Traverse). In Rhonenille, 10 years elapsed between restoration 

and acquisition. In Coos, the period between restoration and acquisition was 14 years. 

It could be argued that the difference between 14 and 18 years is small. This difference 

might not be significant if the Tribe met the other factors. However, we cannot find that 

the land is restored based solely on an 1 &year passage of time. Perhaps if the Tribe met 

the other factors, we might be willing to push the outer limits of what has previously been 

considered an acceptable delay. However, that is not the case here. Furthermore7 here, 

the Tribe acquired land upon which it currently resides within one and six years of 
restoration. We conclude that, if any land is to be considered restored, it is this 

intervening land. 

Finally, the Tribe argues that in both Grand Traverse and its case, the subject lands were 

previously ceded to the United States by treaty. The relevant language from Grand 

Traverse If is as follows; 'me Band has introduced substantial and uncontradicted 

evidence that the parcel is located in an area of historical and cultural significance to the 

Band that was previously ceded to the United States." Grand Traverse II at 937, aff d, 

2004 FED App. 0151P (6" Cir. 2004). Our reading of this language suggests th'at the 

previously ceded land must be in an area of historical and cultural significance to be 

considered restored. As discussed above, the Shriner Tract, which the Tribe occupied for 

some 1 I years, does not qualify as historically significant. Therefore, the fact that the 

land was ceded, without the historical connection, does not warrant a finding of 

restoration. 

VI. Conclusion 

As discussed above, the Shriner Tract does not meet any of the exceptions to the lGRA 

prohibition on gaming on lands acquired after October 17,1988. Therefore, the Tribe 

may not lawhlly game on the Shriner Tract. Gaming on the Shriner Tract subjects the 

Tribe to enforcement action by the Chairman of the NIGC. 

'O We acknowledge that the Mechoopda Tni had acquired intervening land. However, that land was 

purchased to address the housing needs of its members, but was an almond orchard located m a flood plain 

and unsuitable for housing. In the Wyandotte's case, the land they purchased is where the hial 

headquarters is located, and is where the Tribe could game if it chose.