To: Philip N. Hogen, Chairman "jc 

From: Penny J. Coleman, Acting General Counsel 

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

Date: April 30,2009 

Introduction 

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

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

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

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

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

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

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

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

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

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

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

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

Tribe's restored lands claim. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tribe's restored status. Id. at 2. 

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

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

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

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

Legal Background 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

federal reeoeition. 

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

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

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

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

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

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

means: 

(a) Legislative termination; 

(b) Consistent historicaI written documentation from the Federal 

Government effectively stating that it no longer recognized a 

government-to-government relationship with the tribe or its 

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

relationship; or 

(c) Congressional restoration legislation that recognizes the existence 

of the previous government-to-government relationship. 

25 C.F.R. 4 292.9. 

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

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

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

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

In order to detemzine whether the Band meets the restoration exception 

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

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

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

of Iands to such restored tribe. 

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

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

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

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

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

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

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

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

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

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

consistent historical written documentation from the federal government effectively 

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

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

ANALYSIS 

We conclude that the Tribe has not provided consistent historical written 

documentation effectively stating that the federal government no longer recognized a 

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

end the government-to-government re1 ationship. 

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

evidence that the Tribe's government-torgovernment relationship was 

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

tribe 

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

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

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

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

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

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

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

Chiricahua and Warm Springs Apache Tribes whose aboriginal 

territory, as defined by the Indian Claims Commission and as 

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

of Arizona and New Mexico where the United States currently 

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

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

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

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

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

relationship with the Chricahua and Warm Springs Apache Tribes, 

as evidenced by treaties, negotiations with tribal leaders, provision 

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

actions maintained before the Indian Claims Commission, United 

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

United States Department of Interior Board of Indian Appeals. 

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

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

Chiricahua and/or Warm Spngs Apache Tribes as "Federally 

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

immunities and privileges available to other federally 

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

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

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

j) On or about August 16, 1976, the Commissioner of Indian Affairs 

formally approved the Constitution of the Fort Sill Apache Tribe, 

and thereafter the United States acknowledged the Fort Sill Apache 

Tribe to be a Federally Recognized Tribe, and has maintained a 

government-to-government relationship with the Fort Sill Apache 

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

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

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

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

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

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

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

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

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

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

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

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

for Defendant at 2. 

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

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

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

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

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

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

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

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

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

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

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

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

opinion's reasoning with this addition remains sound. 

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

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

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

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

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

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

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

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

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

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

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

constitute consistent historical written documentation from the federal government 

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

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

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

The United States does not acknowledge andlor recognize the Chiricahua 

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

as entities "acknowldged to have the immunities and privileges available 

to other federally acknowledged Indian tribes by virtue of their 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Apache Tribe provided in this case. 

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

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

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

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

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

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

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

federally recognized. These acts and ether documentation represents consistent written 

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

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

action to end the government-to-government relationship. 

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

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

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

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

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

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

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

that the Tribe was not restorsd. Id. 

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

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

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

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

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

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

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

Id. 

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

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

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

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

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

of consistent historical written documentation from the federal govanment effectively 

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

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

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

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

Conclusion 

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

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

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

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

restored tribe. Because the Agreement does not constitute historical written 

documentation from the federal government effectively stating that it no longer 

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

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

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

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

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

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

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