MEMORANDUM FOR THE CHAIRWOMAN 

July 18,2013 

FROM: Heather L. Corson, Staff Attorney bL 

THROUGH: Eric Shepard, Acting General Counsel 

Jo-Ann M. Shyloski, Associate General Counsel 

CC: 

V 

Christinia Thomas, Acting Chief of Staff 

SUBJECT: Kialegee Tribal Town, Proposed Gaming Site on Neal Freeman Parcel 

This memorandum concludes a legal review of whether the land held in trust by 

the United States for Neal Ernest Freeman, a Muscogee Creek Nation member and a 

Kialegee Tribal Town member, in Wagoner County, Oklahoma, is Indian land eligible 

for gaming by the Kialegee Tribal Town (Kialegee or Tribe) under the Indian Gaming 

Regulatory Act (IGRA) and applicable regulations. As explained below, it is our opinion 

that the Neal Freeman parcel does not qualify as Kialegee's Indian lands eligible for 

gaming under IGRA because Kialegee does not have legal jurisdiction over the parcel for 

purposes of IGRA. The Department of the Interior ("Interior"), Office of the Solicitor, 

concurs with this opinion. 

I. BACKGROUND 

The Kialegee Tribal Town is a federally recognized tribe with headquarters in 

Wetumka, Oklahoma. On March 22,2013, the NIGC received the Tribe's 120-day 

notice of intent to license a new Class I1 gaming facility on Neal Freeman's property 

(Freeman parcel).' The Freeman Parcel is held in trust by the United States for Neal 

Ernest Freeman, an enrolled Kialegee member and an enrolled member of the Muscogee 

I The property is located in Wagoner County, Oklahoma. The legal description follows: 

A tract of land containing 11 acres, more or less, described as the SR NEl4 SEI4 

of Section 4-T17N-R15E less and except all minerals, together with the right of 

ingressiegress across 15 feet of S/2 SEl4 of Section 4-T17N-R15E and less & 

except the surface nine (9) acre tract described as the north 625 feet of the east 

627.264 feet of the SEI4 NEi4 SE/4 of Section E 4-T17N-R15E, Wagoner 

County. 

wnow~ nuo~uam~s 1441 LSt. NW, Suite 91W. Washington, DC 2WO5 Tel: 202.632.7003 Fax: 202.632.7066 www.alcc.cov 

REGIONAL OFFICES Portland. OR; Sacramento, CA; Phoenix. AZ St. Paul. MN; Tulsa. OK 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Paee2of 15 

(Creek) at ion.^ Documentation provided by the Muscogee (Creek) Nation indicates 

Neal Ernest Freeman's date of enrollment with the Muscogee (Creek) Nation as June 17, 

1981. Kialegee indicates that Neal Ernest Freeman was approved for membership in the 

Kialegee Tribal Town on June 4,2001. Kialegee Tribal members can also be citizens of 

the Muscogee (Creek) at ion.' 

The Freeman Parcel was originally part of the 1903 allotment of Simon Belcher, a 

Creek Nation member who was previously on the rolls of the Coweta c own.^ It is 

located within the area constituting the former, historic reservation of the Muscogee 

(Creek) ati ion.' When Simon Belcher died, the property was inherited in 1938 by his 

half brother, Major Freeman, a member of the Creek at ion (County Court of Wagoner 

County, Case No. 2473).6 When Major Freeman died in 1951, the property passed to his 

son Columbus Freeman, also a Creek Nation member (County Court of Tulsa County, 

Case No. 26,203)' Around 1952, as a result of a divorce decree, Columbus Freeman 

conveyed the property as a life estate to Rachel McGilbeny Freeman, also a Creek 

1ndian,8 with the remainder interest going to their children, including Neal re ern an.^ 

This 1953 deed states the property was held in restricted status, but it was not approved 

by the secretary.'' Nevertheless, the United States has treated the property as in trust or 

See May 3,2013, Letter from Mekko Tiger Hobia to BlAlOkmulgee Agency (Attachment A); June 20, 

2013, Muscogee (Creek) citizenship documents (Attachment B). 

See Constitution Muscogee (Creek) Nation; Title 7 of Muscogee Creek) Nation Code Annotated: 

Constitution and By-laws ofKiulegee Tribal Town. 

4 See April 26,2013, Memorandum from Field Solicitor, Tulsa, to Region Director, Eastern Oklahoma 

Region, BIA (''The subject property was a portion of the allotment of Simon Belcher, Full Blood Creek 

Indian. . . . Census Card No. 237 reflects that Simon Belcher was listed on the Dawes Roll of the Creek 

Nation as Creek No. 799 and that he was previously listed on the 1890 Roll of the Coweta Town."), 

attached to May 2,2013 Letter from Region Director, Eastern Oklahoma Region to NIGC Staff Attorney 

(Attachment C). See also Title Status Report 9080304705, Corrected, 411512013, TAAMS (Attachment D). 

5 See May 2,2013 Letter from Region Director, Eastern Oklahoma Region to NIGC Staff Anornev. 

6 See Title Status Report 9080304705, Corrected, 411 512013, TAAMS. 

The Kialegee Tribal Town contends that Rachel McGilherry Freeman, Neal Emest Freeman's mother, 

was a full-blood member of the Kialegee Tribal Town. The documents provided by Muscogee (Creek) 

Nation indicate she was enrolled as a Muscogee (Creek) citizen on May 21, 1981, and designates her town 

membership as Kialegee. However, Rachel's membershp is not a factor in our analysis given that the 

Freeman Parcel is part of the allotment of Creek Nation lands and an original allotment of Simon Belcher, a 

full-blood Creek Indian, who was previously listed on the 1890 roll of the Coweta Town. 

9 See Title Status Report 9080304705, Corrected, 411512013, TAAMS. 

10 February 2, 1953, Deed to Restrict Indian Land - Special Form, No. 4295 (Attachment E). 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page 3 of 15 

restricted status.'' Finally, in 1983, the Freeman Parcel was conveyed in its entirety to 

Neal Freeman solely, with a deed stating the property was held in trust by the United 

states.I2 The Interior Field Solicitor in Tulsa has determined that, because the Freeman 

Parcel has been treated as trust property since 1953 despite a deed unsigned by the 

Secretary of Interior, it is impliedly held in trust for Neal ree em an.'^ 

Along with its 120-day notice letter, Kialegee provided the February 24, 1983, 

deed conveying the property to Neal Freeman, several letters from the Tribe to Neal 

Freeman, and a letter from the Tribe to the Bureau of Indian Affairs (Attachment H).'~ 

As you recall, in 201 1, the Tribe proposed issuing a license for a gaming facility 

on another property in Broken Arrow, Oklahoma. OGC opined that the property did not 

qualify as Kialegee's Indian lands eligible for gaming because Kialegee had not 

established it had legal jurisdiction over it for purposes of IGRA.'~ 

Legal History of the Creek Nation. 

To better understand the legal jurisdiction over the Freeman Parcel and the 

relationship of the Muscogee (Creek) Nation and the Kialegee Tribal Town, a review of 

the legal history of the Creek Nation is necessary. The District Court for the District of 

Columbia has explained that "[tlhe Creek Nation has always been a confederacy of tribal 

towns."I6 According to the Interior Board of Indian Appeals, 

Prior to 1707, the Creek Nation occupied a large territory in what is now 

the States of Georgia, Alabama, and Florida. Between 1707 and 1773, 

tracts of this territory were ceded to Great Britain and the American 

colonies. Treaty cessions to the newly independent United States began in 

1790. The United States entered into thirteen treaties with the Creek 

I1 See July 3, 1968, Memorandum Re: Status of SE114 of Section 4, T17N, RISE from Field Solicitor, 

Muskogee to Muskogee Area Director (Attachment F); see also April 26,2013, Memorandum from Field 

Solicitor, Tulsa, to Region Director, Eastern Oklahoma Region, BIA ("The Bureau's subsequent 60-year 

exercise of federal superintendence over the property is, in our opinion, sufficient implied approval of the 

1953 deed to the United States in trust."). 

I' See February 24, 1983, Deed to Restricted Indian Land Special Form (Attachment G) 

I' See April 26, 2013, Memorandum from Field Solicitor, Tulsa, to Region Director, Eastern Oklahoma 

Region, BIA. 

14 OGC has requested the Tribe submit a legal analysis setting forth its basis for legal jurisdiction over the 

Freeman Parcel. At present, we are still awaiting the analysis. 

IS See May 25,2012, Letter from Chairwoman Stevens to Mekko Hobia and June 8,2012, Letter from 

Chairwoman Stevens to Mekko Hobia. 

16 Harjo v Kleppe, 420 F.Supp. 11 10, I1 18 (D.D.C. 1976). 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page 4 of 15 

Nation before 1833. Under the Creek Removal Treaty of March 24, 1832, 

7 Stat. 366, [a] portion of the Creek Nation. . . was removed to an area in 

the present State of ~klahoma." 

The historic Creek Nation that signed treaties prior to 1833 now exists as the Poarch 

Band of Creek Indians in Alabama, the Muscogee (Creek) Nation in Oklahoma, and 

several recognized tribal towns.'* 

In a pre-IGRA bingo case, the Tenth Circuit analyzed the legal history of the 

Muscogee (Creek) Nation, explaining that in 1832 "the Creeks ceded their eastern 

homelands to the United States, in exchange for lands west of the Mississippi ~iver."" 

In subsequent years, federal treaties and federal legislation pertaining to the Creek 

Reservation in Oklahoma were exclusively with the Muscogee (Creek) Nation, not the 

tribal towns. According to the Tenth Circuit, "[iln a subsequent treaty regarding these 

lands, the United States agreed to grant 'a patent, in fee simple, to the Creek nation."'20 In 

1866, the Creek Nation entered into another treaty with the United States, which 

"provided that the 'reduced. . . reservation' retained by the Creeks was 'forever set apart 

as a home for the Creek ati ion."'^' The Tenth Circuit held that "original treaty lands 

still held by the Creek Nation" were 'the purest form of Indian ~ountr~[.]"~~ Thus, the 

Tenth Circuit was clear that the Oklahoma lands held in fee by the Muscogee (Creek) 

Nation had been held by the Muscogee (Creek) Nation since its removal to Oklahoma. 

The United States District Court for the District of Columbia, in a case regarding 

which tribal entity has lawmaking power for the Muscogee (Creek) Nation, provided a 

comprehensive legal history of the Muscogee (Creek) at ion.^^ Many of the court's 

findings, included below, are significant to the jurisdiction question before us. The court 

found: 

On October 12, 1867, the Creeks adopted a constitution and a code of laws 

for the "Muskogee Nation." The constitution was modeled on American 

federalism, with executive, legislative, and judicial branches. Legislative 

power was lodged in a National Council, a bi-camera1 body in which each 

tribal town or "Talwa" was entitled to one delegate in the House of Kings 

17 Muscoger (Creek) Nation v. BIA, 13 IBIA 21 1 at 2-3 (1985). 18 See May 19,2008, Letter from NIGC Chairman to Poarch Band of Creek Indians Chairman at 12 

j9 Indian Country. USA. v. Oklahoma, 829 F.2d 967,971 (10th Cir. 1987) 

lo Id. at 971 

Id. at 974 

23 Harjo v Kleppr, 420 F. Supp. I 1 10 (D.D.C. 1976, am. 58 1 F.2d 949 (D.C. Cir. 1978). 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Paee 5 of 15 

and one in the House of Warriors, plus an additional delegate in the House 

of Warriors for every two hundred people.24 

Over the following decades, non-Indian settlement within the Oklahoma territory 

grew. As the court explained, 

By 1890, when the Oklahoma Temtory adjacent to the Indian Temtory 

was opened and a temtorial government created, the clamor for allotment 

had reached a new peak. . . . [Oln March 3, 1893, . . . Congress created a 

commission to negotiate with the Five [Civilized] Tribes [of Oklahoma] 

for the extinction of their communal titles and the eventual creation of a 

state. . . . During the next several years the Commission attempted to 

negotiate the dissolution of the tribes, but had minimal success . . .. [O]n 

June 28, 1898 Congress enacted the Curtis Act, which provided for forced 

allotments and the eventual termination of the tribal tenure without the 

Indians' consent. The Act incorporated the provisions of the tentative 

agreements with each of the . . . tribes, providing that if the agreement 

with any tribe was ratified by the tribe the provisions of the agreement 

would substitute for the more drastic allotment provisions of the Act. The 

Creeks did in fact reject their agreement, and the Curtis Act went into 

effect in their 

Section 30 of the Curtis Act provided for the allotment of "lands owned by the Muscogee 

or Creek Indians in the Indian Temtory to each citizen of said nati~n[.]'"~ The Curtis Act 

provided for the "principal chief of the Muscogee or Creek Nation. . . to deliver. . . a 

patent, conveying. . . all the right, title, and interest of the said nation in and to the 

land[.]"27 

The provisions of the Curtis Act were so drastic from the Creek point of 

view that they soon consented to a new agreement to supersede the one 

contained in section 30 of [the Curtis] Act[.] The new agreement was 

ratified by the tribe, and by the Congress in the Act of March 1, 1901,31 

Stat. 861 .28 

The Act of March 1, 1901, as amended, provided for allotment of "all lands 

belonging to the Creek tribe ofIndians in Indian Temtory, except town sites . . ."29 This 

" Id. at 1120. '' Id. at 1122. 

'' 30 Stat. 495, 514 (1898). 

" Id. 

'' Hnrjo v. Kleppe. 420 F. Supp. at 1124 

l9 32 Stat. 500 (1902)(emphasis added). 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page 6 of 15 

act further recognized "that until such time as the Creek national government was in fact 

dissolved, it would continue to function under the 1867 Constitution, as modified by this 

act and prior agreement^."^^ As the court explained, 

[Tlhe act's allotment scheme provided for commissions to carry out the 

appraisal and allotment of land, and that sale of town lots. The Principal 

Chief was to appoint certain members of the commissions or committees 

. . . [and] the deeds conveying the individual allotments to members of the 

tribe were to be signed and delivered by the Principal Chief on forms 

provided by the Secretary . . .. In sum, then, under the agreement the 

Creek government through its National Council retained its general 

authority for dealing with tribal affairs[.13' 

The district court further analyzed the federal legislation after the Act of 1901 

through the present, finding that Congress "has explicitly recognized and preserved the 

authority of the national legislature and the basic form of government established by the 

1867 con~titution."~~ TheD.C. Circuit Court of Appeals affirmed the district court's 

conclusion that "although a great deal of legislation had been passed involving the tribe 

and its government, 'the basic legal ffamework governing the management of Creek 

tribal affairs, financial and otherwise, is the Creek Constitution of 1867."'~' Additionally, 

the D.C. Circuit affirmed the district court's order that provided for a "referendum among 

all Creek adults on certain issues raised by a recently drafted proposed constitution for 

the tribe," the results of which were to be incorporated into a new constitution for the 

Creek ati ion.^^ 

In 1979, the Muscogee (Creek) Nation adopted a constitution that was approved 

by Interior in accordance with the Oklahoma Indian Welfare Act of 1936.25 U.S.C. 6 

501 et seq. Section 2 of the Muscogee (Creek) Nation's approved constitution affirms 

that the "political jurisdiction of The Muscogee (Creek) Nation shall be as it 

geographically appeared in 1900 which is based upon those Treaties entered into by the 

Muscogee (Creek) Nation and the United States of America[.]" 

B. Legal History of the Kialegee Tribal Town. 

30 Harjo v Kleppe, 420 F. Supp. at 1124. '' Id. at 1125. 

"Id. at 1143. 

33 Harjo v. Andrus, 581 F.2d 949,951 (D.C. Cir. 1978). 

"Id. at 951-952,954. 
Memo to Chairwoman re Freeman Parcel 

July 18, 2013 

Paee 7 of 15 

The legal history of the Kialegee Tribal Town can now be explained in light of 

the Muscogee (Creek) Nation's legal history. In that regard, as the Harjo v. Andrus court 

described: 

[tlhe Creek Nation, historically and traditionally, is actually a confederacy 

of autonomous tribal towns, or Talwa, each with their own political 

organization and leadership. . . . Originally, there were four 'mother' 

towns, but the number was expanded by a transfer of town fires until, by 

the time of the adoption of the 1867 Constitution, there were 

approximately forty-four Talwa in existence. Tribal towns can also merge 

or dissolve, and there is at present some doubt as to the exact number of 

towns that are politically and socially active.35 

Under the 1867 Muskogee Nation's Constitution, each tribal town was entitled to 

delegates in the National ~ouncil?~ 

In 1936, Congress passed the Oklahoma Indian Welfare Act (OIWA), 25 U.S.C. 5 

501 et seq. Section three of OIWA allowed "any recognized tribe or band of Indians 

residing in Oklahoma . . . to organize for its common welfare and to adopt a constitution 

and bylaws, under such rules and regulations as the Secretary of the Interior may 

prescribe."37 In 1937, the Acting Solicitor for Interior concluded that the Creek Tribal 

Towns could organize as bands within the meaning of section three of OIWA, separate 

and distinct from the Muscogee (Creek) Nation. The Acting Solicitor stated that "the 

Creek towns can lay a substantial claim to the right to be considered as recognized 

bands" within the meaning of OIWA, explaining: 

That the Indians themselves recognized the existence of the Creek tribal 

towns i[s] clear from an examination of the constitution and laws of the 

Muscogee Nation. While providing that representation in the National 

Council shall be by towns, nowhere does it define the towns. In fact the 

Compiled Statutes of the Muscogee Nation nowhere provide for defining 

the boundaries of the towns. In other words, the towns are recognized as 

having an existence not derived from the constitution of the Muskogee 

Nation but in fact antedating and continuing alongside the constitution. 

Further evidence of this is provided . . . by other statutes ratifying 

agreements of consolidation between towns and ratifying adoptions into 

town membership.38 

36 1867 Muskogee Nation Constitution, Art. I, 5 2-3, see also Harjo v. Kleppe, 420 F.Supp. at 1120. 

37 25 U.S.C. § 503 

38 Memorandumfrom Acting Solicitor Frederic L. Kirgis to the Commissioner of Indian Affairs, p. 4 (July 

15, 1937) (internal citations omitted). 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Paee 8 of 15 

The Acting Solicitor opined that "it [was] possible to conclude that the towns are actually 

bands with a recognized exi~tence."~~ 

Three of the Creek Tribal Towns reorganized under OIWA, including Kialegee, 

which did so by ratifying a constitution in 1941. Unlike the Muscogee (Creek) Nation 

Constitution, the Kialegee's Constitution does not contain any provision setting forth the 

geographical jurisdiction of the Kialegee Tribal own.^' 

11. DISCUSSION 

IGRA's purpose is to establish an independent federal regulatory authority and 

federal standards for gaming on Indian lands.41 IGRA provides that an Indian tribe may 

engage in gaming under IGRA only on "Indian lands" that are "within such tribe's 

j~risdiction.'~~ Indian lands are 

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

(B) any lands title to which is either held in trust by the United States for 

the benefit of any Indian tribe or individual or held by any Indian tribe 

or individual subject to restriction by the United States against alienation 

and over which an Indian tribe exercises governmental power.43 

NIGC regulations have clarified the Indian lands definition, providing that: Indian lands 

means: (a) Land within the limits of an Indian reservation; or (b) land over which an 

Indian tribe exercises governmental power and that is either - (1) held in trust by the 

United States for the benefit of any Indian tribe or individual; or (2) held by an Indian 

tribe or individual subject to restriction by the United States against alienation." 

Indian Reservation 

If the Freeman Parcel is located within the limits of the Tribe's existing 

reservation, the land qualifies as Indian lands eligible for gaming pursuant to 25 U.S.C. 5 

39 Id., p. 5. 

40 See Constitution and By-laws of Kialegee Tribal Town. 

" 25 U.S.C. $2702(3) (2012). 

42 25 U.S.C. 5 2710(b)(l), (d)(l). 

25 U.S.C. 5 2703(4). 

25 C.F.R. 5 502.12. 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page9 of 15 

2703(4)(A). Whether the Freeman Parcel is Indian lands eligible for gaming by the 

Kialegee Tribal Town because it is within the limits of the Tribe's existing reservation 

requires an analysis similar to the one conducted for the Broken Arrow property.45 The 

NIGC has determined that Indian reservation in IGRA, 25 U.S.C. 5 2703(4), means only 

existing federal Indian reservation^.^^ Such determination is consistent with Interior 

regulations.47 

However, the Kialegee Tribal Town does not claim to have an existing 

reservation. Rather, the Tribe asserts that the Freeman Parcel is "part of a restricted 

allotment within the former Creek Reservation in Oklahoma . . . ."48 Interior states that 

the Freeman Parcel is located within the former, historic reservation of the Muscogee 

(Creek) at ion.^' Further, former NIGC Acting General Counsel opined that certain 

Muscogee (Creek) Nation trust lands were eligible for gaming by the Muscogee (Creek) 

Nation because they were located "within the Nation's former reservation 

boundarie~j.]"~~ Therefore, the Freeman Parcel cannot qualify as the Kialegee Tribal 

Town's existing reservation because it is located within a historic rather than existing 

reservation for purposes of IGRA. 

In addition, to the reservation's status as former rather than existing for purposes 

of IGRA, the entity associated with the former reservation is the Muscogee (Creek) 

Nation and not the Kialegee Tribal Town. Thus, the Kialegee Tribal Town cannot claim 

that the Freeman Parcel qualifies as Indian lands because it is within its reservation 

boundaries if those reservation boundaries belong to another tribal entity. 

65 See May 25,2012, Letter from Chairwoman Stevens to Mekko Tiger Hobia; May 24,2012, 

Memorandum Re: Kialegee Tribal Town Proposed Gaming Site in Broken Arrow, Oklahoma, from NIGC 

Office of General Counsel to Chairwoman Stevens. 

46 See July 21, 201 11, Letter from Chairwoman Stevens to Chief Wickliffe adopting July 18.201 1, 

Memorandum Re: United Keetoowah Band of Cherokee Indians fromNIGC Off~ce of General Counsel to 

Chairwoman Stevens at 11-13. 

47 See 25 C.F.R. 9 292.2. 

48 See March 4,20 13, Letter from Mekko Hobia to Chairwoman Stevens. 

49 See May 2,2013, Letter from Region Director, Eastern Oklahoma Region to NIGC Staff Attorney. 

50 See January 6,2009, Letter regarding Twin Hills and Kellyville sites from Acting General Counsel 

Penny Coleman to Principal Chief A.D. Ellis. Notwithstanding these references to the Creek Nation's 

territory as a 'former reservation' for purposes of IGRA, this memorandum expresses no opinion on 

whether the Muscogee (Creek) Nation still holds certain lands that are considered to be an infonnal 

reservation under other statutes. The Tenth Circuit in Indian Counhy. U.S.A. v Oklnhoma, expressly 

declined to decide whether the exterior boundaries of the 1866 CreekNation treaty territory have been 

disestablished. 829 F.2d 967 (10th Cir. 1987). 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page 10 of 15 

Accordingly, as with the Broken Arrow property, the Freeman Parcel does not 

constitute Indian lands as an existing federa1 Indian reservation under 25 U.S.C. 5 

2703(4)(A) or NIGC regulations, 25 C.F.R. 502.12(a). 

Trust or Restricted Fee Land 

"Indian lands" also includes lands "held in trust by the United States for the 

benefit of any . . . individual" or "held by any. . . individual subject to restriction by the 

United States against alienation over which an Indian tribe exercises governmental 

power."5' The Interior Solicitor's Office has concluded that the Freeman Parcel "is held 

in trust by the United States for Neal Ernest Freeman" because "the property has been 

treated since 1953 as either trust or restricted property."52 Specifically, among other 

actions, the deed for the 1983 conveyance to Neal Freeman states that the property 

conveyed to him is held in trust by the United States for his benefit. Thus, based on the 

Bureau of Indian Affairs' sixty years of federal superintendence over the property, the 

Field Solicitor concluded there was sufficient implied approval of the 1953 deed to the 

United States in trust.53 

As such, the Freeman Parcel satisfies the first step of qualifying as Indian lands 

pursuant to 25 U.S.C. 5 2703(4)(B) because the land is held by the United States in trust 

for an individual Indian. 

Legal Jurisdiction and Exercise of Governmental Power Over the Parcel 

When a tribe asserts that a parcel of land qualifies as Indian lands due to its status 

as trust land, the tribe must establish that it possesses legal jurisdiction over the land and 

exercises governmental power over the land. The exercise of governmental power is the 

second element for qualifying as Indian lands pursuant to 25 U.S.C. 5 2703(4)(~).~~ 

Both the NIGC and the courts have concluded that the first requirement is a showing of 

tribal jurisdiction, which is a threshold requirement to the exercise of governmental 

power.55 Therefore, first an examination of whether the Kialegee Tribal Town possesses 

" 25 U.S.C. 5 2703(4)(B); 25 C.F.R. 5 502.12(b). 

52 See April 26,2013, Memorandum from Field Solicitor, Tulsa, to Region Director, Eastern Oklahoma 

Region, BIA. 

53 See Id. 

*' 25 U.S.C. 8 2703(4)(B); 25 C.F.R. 5 502.12(b). 

I5 See 25 U.S.C. $8 2710(b)(l), 2710(d)(3)(A)( "an Indian tribe may engage in, or license and regulate class 

I1 [and 1111 gaming on Indian lands within such tribe's jurisdiction" (emphasis added)); Kansas v. United 

States, 249 F.3d 1213, 1229 (10th Cir. 2001)( "before a sovereign may exercise governmental power over 

land, the sovereign, in its sovereign capacity, must have jurisdiction over that land"); Rhode Island v. 

Narragansett lndian Tribe, 19 F.3d 685,701-703 (1st Cir. 1994), superseded by staiute, 25 U.S.C. 5 

1708(b), as stated in Narragansett Indian Tribe v. National lndian 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. 2d 1213, 1217-18 (D. Kan. 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page 11 of 15 

legal jurisdiction over the Freeman Parcel is required prior to considering whether the 

Kialegee Tribal Town exercises government power over it. 

Generally speaking, an Indian tribe possesses legal jurisdiction "over both their 

members and their It is well settled that a tribe retains primary jurisdiction 

over land that the tribe inhabits if the land qualifies as Indian c~untry.~' Congress 

defined the term 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 . . . ."" Although this definition 

applies directly only to federal criminal jurisdiction, the courts have also generally 

applied this definition to questions of civil juri~diction.~~ TheOffice of General Counsel 

has opined that "[tlhe context of IGRA's prescriptions as to jurisdiction-that land be 

within 'such tribe's jurisdiction' and ordinances adopted by 'the Indian tribe having 

jurisdiction over such lands'-indicates that Congress intended that gaming on any 

specific parcel of Indian lands not be conducted by any Indian tribe, but only by the 

specific tribe or tribes with jurisdiction over that land."60 

The Freeman Parcel is Indian country, because it is an allotment, to which the 

Indian title has not been extingui~hed.~' Still, the question remains whether the Kialegee 

Tribal Town is the tribe that "inhabits" this Indian country and thereby has legal 

jurisdiction over it. As described above, the Freeman Parcel is held in trust for Neal 

199X)(a tribe must have jurisdiction in order to exercise governmental power); Miami Tribe of Oklahoma v. 

UnitedStates, 927 F. Supp. 1419, 1423 (D. Kan. 1996) ("the NIGC implicitly decided that in order to 

exercise governmental power for purposes of 25 U.S.C. 5 2703(4), a tribe must fnst have jurisdiction over 

the land). 

Sb California v. Cabazon Band ofMission Indians, 480 U.S. 202,207 (1987); see also United States v. 

Mazurie, 419 U.S. 544,557 (1975) ("Indian tribes within 'Indian countryv=' are a good deal more than 

'private, voluntary organizations"'). 

"See Oklahoma Tax Comm 'n v. Chickasaw Nation, 5 15 U.S. 450,458 (1995) (tribe and its members not 

subject to state tax within Indian country); Alaska v. Native Village of Venetie Tribal Gov %, 522 U.S. 520, 

527 n.1 (1998); United Keetoowah Band ofCherokee Indians of Oklahoma v. United States Dept. of 

Housing and Urban Development, 567 F.3d 1235, 1240 n.5 (10th Cir. 2009) ("[Als a general matter, Indian 

tribes exercise court jurisdiction over Indian country - reservations, dependent Indian communities, and 

Indian allotments"); Indian Country, U.S.A. v. Oklahoma, 829 F.2d 967,973 (10th Cir. 1987) ("Numerous 

cases confum the principle that the Indian country classification is the benchmark for approaching the 

allocation of federal, tribal, and state authority with respect to Indians and Indian lands"). 

18U.S.C. 5 1151. 59 Venetie, 522 U.S. at 527. 

60 See March 14,2005, Memorandum from NIGC Attorney to NIGC Acting General Counsel re: White 

Earth Band of Chippewa Indians at 10; June 30,2005, Letter from Acting General Counsel to Judith 

Kammins Albietz, Attorney for Buena Vista Rancheria of Me-Wuk Indians at 12; September 27,2005, 

Letter from Acting General Counsel to Pyramid Lake Paiute Tribe Chairwoman at 5. 

18 U.S.C. 5 1151(c). 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Paee 12 of 15 

Freeman, a Kialegee Tribal Town member as of June 4,2001, as well as a citizen of the 

Muscogee (Creek) Nation since 1981. Further, as mentioned previously, the Freeman 

Parcel is part of the allotment of Simon Belcher, Creek Indian and member of the Creek 

Nation, who was previously listed on the 1890 Coweta Town ~011.~~ 

The first question is whether the Kialegee Tribal Town or the Muskogee (Creek) 

Nation possesses legal jurisdiction over the Freeman Parcel. The legal history of the 

Muskogee (Creek) Nation and the Creek tribal towns demonstrates that, as a matter of 

federal law and pursuant to the Muskogee (Creek) Nation's Constitution, the Muskogee 

(Creek) Nation has legal jurisdiction over the Freeman Parcel. Prior to allotment, federal 

treaties vested title in the land to the Muskogee (Creek) at ion.^' The courts have 

affirmed that title to these lands vested in the Muskogee (Creek) at ion.'^ 

Consistent with this recognized title, a subsequent federal treaty conveyed title to 

part of the reservation from the Muskogee (Creek) Nation to the United Later, 

federal law provided for allotments within the Creek Reservation to be made by the 

Principal Chief of the Muskogee (Creek) ati ion.^' The Muskogee (Creek) Nation 

62 See April 26, 2013, Memorandum fromField Solicitor, Tulsa, to Region Director, Eastern Oklahoma 

Region, BIA. 

63 Treaty of 1833, 7 Stat. 417, Art. II-IV, ("The United States will grant a patent in fee simple to the Creek 

nation of Indians for the land assigned said nation by this treaty or convention . . . and the right thus 

guaranteed by the United States shall be continued to said tribe of Indians, so long as they shall exist as a 

nation, and continue to occupy the country hereby assigned them. . . . It is hereby mutually understood and 

agreed between the parties to this treaty, that the land assigned to the Muskogee Indians by the second 

article thereof, shall be taken and considered the property of the whole Muskogee or Creek nation.. ."); 

Treaty of 1856,l l Stat. 699, Art. 11, IV, XV, ("The following shall constitute and remain the boundaries of 

the Creek country. . ..""Creeks . . . shall be secured in the unrestricted right of self-government, and fill1 

jurisdiction over persons and property, within [its] respective limits."), Treaty of 1866, 14 Stat. 785, Art. 

XI1 and XIV (reaffirming prior treaty provisions not inconsistent with the 1866 Treaty). 

M Indian Country. U.S.A. v. Okluhomu, 829 F.2d 967,971,974 (10th Cir. 1987). 

63 Treaty of 1866, 14 Stat. 785, Art. I11 ("In compliance with the desire of the United States to locate other 

Indians and freedmen thereon, the Creeks hereby cede and convey to the United States, to be sold to and 

used as homes for such other civilized Indians as the United States may choose to settle thereon, the west 

half of their entire domain, to be divided by a line rnnning north and south; the eastem half of said Creek 

lands, being retained by them shall, except as herein otherwise stipulated, be forever set apart as a home 

for said Creek Nation.") 

66 Act of March 1, 1901, 31 Stat. 861, $5 3,23 ("All lands of said tribe . . . shall be allotted among the 

citizens of the bibe by said commission . . .. Immediately after the ratification of this agreement by 

Congress and the tribe, the Secretary of the Interior shall furnish the principal chief with blank deeds 

necessary for all conveyances herein provided for, and the principal chief shall thereupon proceed to 

execute in due form and deliver to each citizen who has selected or may hereafter select his allotment, 

which is not contested, a deed conveying to him all right, title, and interest of the Creek Nation and of all 

other citizens in and to the lands embraced in his allotment certificate, and such other lands as may have 

been selected by him for equalization of his allotment."); see also Harjo v. Kleppe, 420 F.Supp. 11 10, 1125 

(D.D.C. 1976). 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page 13 of 15 

continued to be the subject of federal legislation.67 Every federal treaty or law relating to 

the Freeman Parcel recognizes the Muskogee (Creek) Nation's authority. Moreover, the 

Kialegee Tribal Town has not submitted any evidence that federal or Muskogee (Creek) 

law establishes Kialegee jurisdiction over the Freeman 

This is not to say that the Muskogee (Creek) Nation has exclusive jurisdiction 

over all Indian lands within the former reservation. The Thlopthlocco Creek Tribal Town 

has 19 parcels of trust land within the former reservation over which it exercises 

jurisdi~tion.~~ Thus, the Kialegee Tribal Town would have exclusive jurisdiction over any 

land that the United States holds in trust for the Kialegee Tribal Town. 

The title history of the Freeman Parcel further demonstrates the jurisdiction of the 

Muskogee (Creek) Nation over it and an absence of Kialegee jurisdiction. The Freeman 

Parcel is part of a larger Indian allotment that was allotted in 1903 pursuant to federal law 

from the Creek Nation to Simon Belcher. Simon Belcher was listed on the Dawes Roll of 

the Creek Nation as Creek No. 799 and was previously listed on the 1890 Roll of the 

Coweta c own.^' When the land was allotted, it was given to a member of the Muskogee 

(Creek) Nation rather than a member of the Kialegee Tribal Town. 

"Act of 1970, 84 Stat. 1091. 

Because the Muskogee (Creek) Nation is a confederation of tribal towns, as an internal tribal matter the 

Muskogee (Creek) Nation and the federally recognized Tribal Towns could allocate jurisdiction among 

them over Indian lands within the former reservation. For example, the Minnesota Chippewa Tribe's 

Constitution allocates jurisdiction among the Tribe and member Bands, expressly providing that each Band 

or Reservation Business Committee has broad authority over their respective reservations. See Article VI, 

Revised Constitution and By-Laws of the Minnesota Chippewa Tribe, Minnesota. 

69 It appears that the Depaltment of the Interior had originally contemplated that the reorganized Tribal 

Towns would be assigned separate parcels under the OIWA. Alabama-Quassarte Tribal Town v United 

States, 2010 U.S. Dist. LEXIS 100450 at *7 (E.D. Okla., September 21, 2010)(finding correspondence 

from Interior reflects an intent by DO1 to purchase land for use of the Alabama-Quassarte Tribal Town and 

that the DOI's Land Field Agent's recommendation was "to provide these lands to 'the landless Indians of 

the Alabama-Quassarte Tribal Town."'); Muscogee (Creek) Nation v. Muskogee Area Director, 35 IBIA 27 

(2000) (finding that "[tlhe materials before the Board indicate that the lands in the Hanna Project were 

initially intended to benefit the Kialegee Tribal Town, and that the lands in the Wetumka Project were 

initially intended to benefit the Alabama-Quassarte Tribal Town," but that title to all of the lands at issue 

was taken in trust for the Creek Nation until Interior assigned the land to a tribe or band under OIWA). One 

Tribal Town, the Thlopthlocco Tribal Town, has trust land within the boundaries of the former Creek 

reservation. Crowe & Dunlevy, P.C., v. Stidham, 640 F.3d 1140, 1143 (10th Cir. 2011). As to those trust 

lands, it is clear that the United States has set them aside for that specific tribe, confirming jurisdiction in 

that tribe suitable for purposes of gaming regulation as contemplated by the Secretary. See Jnne 24,2009, 

Decision of the Assistant Secretary - Indian Affairs in United Keetoowah Band of Cherokee Indians v. 

Director, Eastern Oklahoma Region at 6; see also September 10,2010 Decision of the Assistant 

Secretary-Indian Affairs in United Keetoowah Band of Cherokee Indians v. Director, Eastem Oklahoma 

Region at 3, n.1. 

70 See April 26, 2013, Memorandum from Field Solicitor, Tulsa, to Region Director, Eastern Oklahoma 

Region, BIA. 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page 14 of 1 5 

Further, the Freeman Parcel is located within the temtorv the federal government 

and the Muskogee (Creek) Nation described as belonging to the~uskogee (Creek) 

Nation. In federal treaties with the Muskogee (Creek) Nation, in the 1867 Muskogee - 

(Creek) Nation Constitution and laws, and in the present 1979 Constitution of the 

Muskogee (Creek) Nation approved by Interior, the temtory of the Muskogee (Creek) 

Nation described encompasses the Freeman arce el.^' Therefore, it is clear that the 

federal government and the Muskogee (Creek) Nation view the Freeman Parcel as falling 

within the temtory of the Muskogee (Creek) Nation. 

The second question is whether the status of Neal Freeman as a Kialegee Tribal 

Town member creates the requisite legal jurisdiction of the Kialegee Tribal Town over 

the parcel. Neal Freeman became a Kialegee member on June 4,2001 and was 

previously and is still a Muscogee (Creek) Nation citizen since June 17, 1981. When the 

parcel was conveyed to Neal Freeman on February 24,1983, he was a citizen of the 

Muscogee (Creek) ati ion.^^ Therefore, the question before us is whether Neal 

Freeman's change in tribal membership subsequent to the conveyance of this parcel to 

him impacted Muscogee (Creek) Nation's legal jurisdiction over it. 

As the NIGC determined in the Kialegee's request for reconsideration of the 

Broken Arrow property, a change in the membership status of an allottee does not alter 

the legal jurisdiction of the allotment.73 Tenth Circuit case law rejects the proposition 

that enrollment of a landowner into a tribe confers jurisdiction over his or her land upon 

that tribe.74 Moreover, an NIGC Office of General Counsel legal opinion regarding the 

Iowa Tribe of Oklahoma concluded that an allotment remained within the jurisdiction of 

the Iowa Tribe even though some of the owners who inherited interests in the property 

were members of another tribe.75 Here, Neal Freeman became a Kialegee member in 

7' See 1867 Constitution, Art. IV, 5 1 ('The Muskogee Nation shall be divided into six (6) districts, and 

each district shall be furnished with a judge, a prosecuting attorney and a company of light horsemen."); 

1979 Constitntion, Art I, 5 2 ("The political jurisdiction of The Muscogee (Creek) Nation shall be as it 

geographically appeared in 1900 which is based upon those Treaties entered into by the Muscogee (Creek) 

Nation and the United States of America[.]). 

72 See June 20,2013, Muscogee (Creek) citizenship documents; January 7, 1983, Order for Removal of 

Restrictions Conditional. 

73 See genera& June 8,2012, Letter from Chairwoman Stevens to Mekko Hobia. 

74 See Miami Tribe of Okla. v. U.S., 656 F.3d 1 129, 1 145 (10th Cir. 201 i)(fmding that the Trihe's adoption 

of landowners as tribal members did not form a basis for tribal jurisdiction and noting that "[tlhe case law 

does not support the proposition that adoption of landowner by a tribe confers jurisdiction."), citing United 

States v. Mazur-ir, 419 U.S. 544 (1975); see also Kansas v. US, 249 F.3d 1213,1230-31 (IOthCir. 2001) 

(fmding that the Tribe's adoption of a tract's owners into the tribe did not alter the fact that the tribe did not 

have jurisdiction over the tract). 

75 See January 7,2010, Memorandum Re: Iowa Tribe of Oklahoma, Whitecloud Allotment from the NIGC 

Office of General Counsel to the Acting Chairman at 6 - 9 (finding tribal jurisdiction over allotments does 
Memo to Chairwoman re Freeman Parcel 

July 18,2013 

Page 15 of 15 

2001 and remains a Muscogee Creek Nation member. Therefore, the enrollment of Neal 

Freeman into the Kialegee Tribal Town in 2001 does not change tribal jurisdiction over 

the Freeman Parcel. 

Therefore, we opine the Muscogee (Creek) Nation, not the Kialegee Tribal Town, 

maintains legal jurisdiction over the Freeman parcel. Accordingly, because the Kialegee 

lack jurisdiction over the Freeman Parcel, the parcel is not Indian lands eligible for 

gaming under IGRA by the Kialegee Tribal Town. 

111. CONCLUSION 

For all of the above reasons, it is our opinion that the Freeman Parcel is held by 

the United States in trust for an individual Indian but it is not within the Kialegee Tribal - 

Town's legal jurisdiction. Because the Tribe has not demonstrated legal jurisdiction, we 

need not reach the subsequent issue of whether Kialegee exercises government power 

over the Freeman Parcel. Accordingly, the Neal Freeman parcel is not eligible for 

gaming under IGRA by the Kialegee Tribal Town. The Interior Office of Solicitor 

concurs with this opinion. 

not change simply based on an allottee's tribal membership without Congress's clear and plain intent to 

modify tribal jurisdiction, even over allotted trust land on a former reservation).