UKB’s lands encompassing the Gaming Site are not within the limits of an Indian
reservation within the meaning of IGRA.

B. Restricted Fee Land

If a site is not within an existing Indian reservation, it may still qualify as Indian
lands if it is trust or restricted fee land over which an Indian tribe exercises governmental
power. See 25 U.S.C. § 2703(4)(B); 25 C.F.R. § 502.12(b). There is no dispute that the
Gaming Site is not held in trust. Instead, the UKB argues that the Gaming Site is
restricted fee land—that it is “held by an Indian tribe . . . subject to restriction by the
United States against alienation and over which an Indian tribe exercises governmental
power.” 25 U.S.C. § 2703(4)(B). There are three necessary elements for a parcel to
qualify as Indian lands under this provision: (1) it must be held by an Indian tribe; (2) it
must be subject to restriction by the United States against alienation; and (3) the Indian
tribe must exercise governmental power over it. The third element consists of two
requirements: (a) the Indian tribe must have legal jurisdiction over the land; and (b) the
Indian tribe must actually exercise governmental power over it.

1. Indian Tribe

There is no dispute that the UKB is a federally recognized Indian tribe. See, e.g.,
Indian Entities Recognized and Eligible to Receive Services from the United States
Bureau of Indian Affairs, 73 Fed. Reg. 18,553, 18,556 (Apr. 4, 2008). Furthermore, the
deeds for the Gaming Site demonstrate that the lands are owned in fee by the UKB.
Therefore, the Gaming Site is held by an Indian tribe.

2. Subject to Restriction by the United States Against Alienation

Under the second element, the lands must be “subject to restriction by the United
States against alienation .. . .” 25 U.S.C. § 2703(4)(B). The warranty deed for the
Gaming Site does not contain an express restriction against alienation. On its face, the
deed conveyed the land in fee simple from the prior owner, a building supply company,
to the UKB. See Warranty Deed (Jan. 2, 1991). The UKB argues that the land is subject
to restriction through operation of two separate sources—the Nonintercourse Act, 25
U.S.C. § 177, and the UKB’s federal charter. See UKB Supplemental Brief (Sept. 28,
2009); Letter from Dallas Proctor, UKB Chief, to Montie Deer, NIGC Chairman (Feb.
25, 2002); Letter from William Rice, UKB Assistant Chief, for Jim Henson, UKB Chief,
to Bruce Babbitt, Secretary of Interior (undated; faxed to Montie Deer, NIGC Chairman,

on Sept. 8, 2000).

In the September 2000 Letter, the NIGC’s General Counsel stated that Buzzard
“unequivocally indicated” that lands purchased in fee by UKB are subject to a restraint
against alienation pursuant to 25 U.S.C. § 177 and by operation of the terms of the
UKB’s Secretarially approved corporate charter. The General Counsel also noted that
whether the Nonintercourse Act or the UKB’s charter create a restriction against
alienation “by the United States” sufficient to create “Indian lands” “is an exceedingly

13


Figure 1: Satellite image of the UKB’s tribal complex and vicinity in Tahlequah,
Oklahoma. ESRI ArcGIS online service.

There is no dispute that the Gaming Site is located within the exterior boundaries
of the former Cherokee Reservation or “original Cherokee territory” in Oklahoma. UKB
Opening Mem. at 11, ex. 11 (maps, Historical Atlas of Okla.); see also Cherokee
Nation’s Opening Mem. at 9-10. There is also no dispute that the Gaming Site was not
among the properties that were at issue in Buzzard v. Okla. Tax Comm’n, 992 F.2d 1073
(10th Cir. 1993). See UKB Opening Mem. at 12, ex. 12 (Okla. Tax Comm’n Response to
Plaintiff's Supplemental Brief, attaching property deeds at issue in Buzzard).

B. History of the Gaming Site

All of Cherokee County, including the Gaming Site, is within the exterior
boundaries of the former Cherokee Nation Reservation, created by the United States’
Treaty with the Western Cherokee, 7 Stat. 311 (May 6, 1828), and confirmed in the
Treaty of New Echota, 7 Stat. 478 (Dec. 29, 1835), which lands were granted to the Tribe
in fee simple. See generally, Memorandum from M. Sharon Blackwell, DOI Field
Solicitor, to DOI Associate Solicitor, re Cherokee Nation of Oklahoma — Trust
Acquisition of 15.99 acres, City of Catoosa, Oklahoma, for Gaming Purposes (Sept. 21,
1993) (discussing Cherokee Nation Reservation with reference to attached maps).


IV. Conclusion

On remand, it is our opinion that the UKB’s Gaming Site is not on Indian lands as
that term is defined by IGRA and the NIGC’s regulations. The federal government has
taken no action to set-aside these lands for the use of the UKB. In addition, the NIGC’s
past regulatory activities on the Gaming Site cannot create Indian Country. This analysis
must be reevaluated if the DOI accepts the Gaming Site into trust for the benefit of the
United Keetoowah Band.

The DOI, Office of the Solicitor, concurs with this opinion. Letter from Patrice H.
Kunesh, Deputy Solicitor—Division of Indian Affairs, to Lawrence S. Roberts, General
Counsel, NIGC (Jun. 16, 2011).

Indian Affairs, Decision of the Assistant Secretary — Indian Affairs (September 10, 2010)(reaffirming June
2009 decision regarding jurisdiction). Federal courts agree that when the Secretary of the Interior takes land
into trust for an Indian tribe, it meets the federal set aside and superintendence requirements to become
Indian Country. U.S. v. Roberts, 185 F.3d 1125, 1131 (10th Cir. 1999). Therefore, if the Gaming Site is
taken into trust by the United States, the UKB will have exclusive jurisdiction, and this opinion shall be
revisited. 3

17


United Keetoowah (April 4, 2000). The e-mail indicated that the NIGC would write to
the UKB and seek its analysis on the issue and the NIGC’s Office of General Counsel
then would be asked to write a lands opinion. The e-mail reiterated that “Our approval [of
UKB’s Gaming Ordinance] noted that they did not have Indian land and reminded them
that they had to have such land to engage in gaming.” Jd.

NIGC’s General Counsel wrote to the UKB and asked whether the Gaming Site
was on Indian lands under IGRA and the NIGC’s regulations. Letter from Kevin
Washburn, NIGC General Counsel, to Jim Henson, UKB Chief, re Indian lands inquiry
(May 25, 2000). The UKB replied with a letter providing the NIGC with a copy of the
license issued by the UKB to the Keetoowah Bingo facility and a list of NIGC-approved
gaming ordinances obtained from the NIGC’s website, which included the UKB. Letter
from Jim Henson, UKB Chief, to Kevin Washburn, NIGC General Counsel, re NIGC
Letter, 25 May 2000 (June 14, 2000). On August 19, 2000, the UKB submitted to the
NIGC a copy of an application to the DOI to have the Gaming Site placed into trust.
Letter from G. William Rice, UKB Assistant Chief, to Kevin Gover, DOI Assistant
Secretary — Indian Affairs, re Land Use Plan / Trust Request (Aug. 19, 2000).

Subsequently, the NIGC’s General Counsel issued the September 2000 Letter
concluding that the Gaming Site was not Indian lands under IGRA because the UKB did
not have the requisite jurisdiction over the site and therefore that the NIGC also lacked
jurisdiction. On February 15, 2001, the UKB sent the NIGC a letter that made several
statements and legal arguments in support of the position that the Gaming Site qualifies
as a “dependent Indian community” under 18 U.S.C. § 1151. Letter from Jimmie Lou
Whitekiller, UKB Tribal Secretary, to Kevin K. Washburn, NIGC General Counsel (Feb.
15, 2001). The letter requested reconsideration of the September 2000 Letter. Jd; see also
Notice to Whom It May Concern from Henry Dreadfulwater, UKB Gaming Commission
Chairman (Feb. 16, 2001). In February 2002, the UKB sent a letter to the NIGC
Chairman requesting that he direct NIGC staff to resume performance of their statutory
duties with regard to the UKB’s gaming facility. Letter from Dallas Proctor, UKB Chief,
to Montie Deer, NIGC Chairman (Feb. 25, 2002). This letter contained a legal analysis
supporting the UKB’s position that the Gaming Site is Indian lands by virtue of being
restricted fee land within the UKB’s jurisdiction and over which the UKB exercised
governmental power. Jd.

The NIGC did not grant the UKB’s requests to reconsider, nor did it change its
conclusion about its lack of jurisdiction. See Declaration of Penny J. Coleman, NIGC
Acting General Counsel (July 8, 2004). Since September 2000 through the present, the
NIGC’s contacts with the UKB have been very limited and have not dealt with the
regulation of the UKB’s ongoing gaming activities. For example, in April 2001, an NIGC
field investigator visited the Gaming Site simply to confirm that the gaming facility had
reopened. NIGC Field Investigator’s Site Visit Report re Confirm Gaming Activities
(April 20, 2001). In November 2001, the same investigator met with UKB tribal officials
in order to discuss an overpayment of prior fees and a potential refund. NIGC Field
Investigator’s Site Visit Report (Nov. 19, 2001). During this meeting, the investigator
“emphasized that because it is the NIGC’s opinion the Tribe was not within the NIGC’s


valorem property taxes on the gaming property.”). Although it admits to paying real
property taxes, the UKB raises the fact that it has never paid a tax to the State of
Oklahoma on the proceeds of its gaming operations. UKB Opening Mem. at 11-12, ex. 8
(Locust Aff.). The State counters that the Oklahoma Tax Code does not impose either a
sales tax or a use tax on the proceeds of casino operations. State’s Response at 4-5, ex.
24.

According to the UKB, it began to offer public bingo at the Gaming Site in 1986.
UKB Opening Mem. at 2, 11, ex. 8 (Locust Aff).4 The first evidence of any contact
between the NIGC and the UKB comes from late 1991. The NIGC’s enabling legislation
was enacted in 1988, but the three-member Commission was not fully seated until 1991.
In August of that year, the NIGC’s first promulgated regulation required all Class II
gaming operations “within the jurisdiction of the Commission [to] begin self-
administering the provisions of these regulations and [to] begin reporting and paying any
fees that are due to the Commission at the end of the third quarter of 1991 (Sept. 30).” 56
Fed. Reg. 40,702 (Aug. 15, 1991). Accordingly, the record contains references to an
annual fee payment remitted by the UKB to the NIGC by check dated December 2, 1991.
See Worksheet for Computing and Reporting Annual Fees Payable by Class II Gaming
Operations (“Revised 1990”); see also Letter from Anthony J. Hope, NIGC Chairman, to
United Keetoowah Bingo (June 22, 1992) (referencing prior UKB fee payment). This was
followed by regular quarterly fee worksheets and payments made by the UKB to the
NIGC for a number of years.

Thus it is evident that the NIGC became aware of, and began to regulate, the
UKB’s gaming operation by virtue of the UKB’s own action in remitting its first fee
payment to the NIGC. No regulatory action on the part of the federal government
identified which gaming operations were “within the jurisdiction of the Commission.”
Rather, each operation was to self-identify and send its own fee worksheets and payments
to the NIGC. That is exactly what happened with the UKB, and it was a reasonable
approach on the part of the new agency that each facility identifying itself as being
“within the jurisdiction of the Commission” by complying with the NIGC’s fee
regulation was in fact within the NIGC’s jurisdiction, unless or until determined
otherwise.

In 1993, Tim Harper, now the director of NIGC’s regional office in Tulsa, became
the first NIGC field representative in Oklahoma. Deposition of Tim Harper at 7-11, 140
(June 2, 2005). One of Mr. Harper’s first assignments was to visit all of the Indian
gaming operations in his geographical area in order to obtain some basic information
about the tribes and their gaming operations. /d. at 10-12, 23. For this purpose, NIGC
headquarters compiled a list of tribes that Mr. Harper was to visit, and it included the
UKB. /d. at 11. Around that same time, Mr. Harper informed headquarters staff that he
had heard or read about an issue concerning how the UKB Gaming Site might not be on
Indian lands or within Indian country. Jd. at 12-14, 19-23. Nevertheless, Mr. Harper was
told by someone in the headquarters office to go ahead and work with the UKB. Jd. at 28-
31. Therefore, he conducted his initial visit to the UKB Gaming Site and met there with

* We note that 1986 was about five years before the NIGC became operational.


In 1902, Congress provided for the allotment of these lands, with each Cherokee
citizen to receive an allotment in fee from the Cherokee Nation. 32 Stat. 716 (July 1,
1902). Each allotment was to include a smaller homestead parcel that was identified by a
separate homestead certificate and was to be nontaxable and inalienable during the
lifetime of the allottee, but not exceeding 21 years from the date of the certificate of
allotment. /d. § 13. Consequently, Department of Interior decisions and federal court
opinions refer to this territory as a “former reservation.” See United Keetoowah Band of
Cherokee Indians v. Director, Eastern Oklahoma Region, Bureau of Indian Affairs,
Decision of the Assistant Secretary — Indian A ffairs (June 24, 2009); Buzzard v.
Oklahoma Tax Comm’n., 992 F.2d 1073, 1076-77 (10th Cir.1993).

In 1905, a Cherokee citizen named Albert Payne received a homestead certificate
for 30 acres of land that included the future Gaming Site. Homestead Certificate to Albert
Payne (approved May 24, 1905). In 1908, Congress enacted a statute that removed
certain restrictions on the allotments and homesteads held by Cherokee citizens. 35 Stat.
312 (May 27, 1908). Pertinent to this analysis, the statute provided: “All lands, including
homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-
blood Indians having less than half Indian blood including minors shall be free from all
restrictions.” Jd. Albert Payne was recorded in the Dawes Rolls as a Cherokee citizen
(#14,315) of % Indian blood. Index to the Final Rolls of Citizens and Freedmen of the
Five Civilized Tribes in Indian Territory, Prepared by the Commission and
Commissioner to the Five Civilized Tribes and Approved by the Secretary of the Interior
at 326 (March 4, 1907). Therefore, the 1908 statute removed all restrictions on the Payne
homestead allotment. Three months later, Payne conveyed his 30-acre allotment in fee
simple to a woman named Emma Rinks of Tahlequah. A general warranty deed was
recorded by the Cherokee County Register of Deeds. General Warranty Deed between
Albert Payne and Emma Rinks (Aug. 24, 1908).

From 1908 to 1985, there were many conveyances of the future Gaming Site. See
Memorandum summarizing chain of title from Linda Anderson, Cherokee Nation
Paralegal, to Annette Jenkins, Cherokee Nation Director of Real Estate Services (Sept.
20, 2000). By 1986, the property was owned by Lakeway Building Supply, an Oklahoma
corporation. On June 20, 1986, the UKB signed a contract for purchase of the property.
The contract gave the UKB immediate possession and use of the property with monthly
installments to be paid toward the ultimate purchase price. Contract for Deed between
Lakeway Building Supply Inc. and the United Keetoowah Band of Cherokee Indians of
Oklahoma (June 20, 1986). By warranty deed signed on November 30, 1990, and
recorded by the Cherokee County Clerk on January 2, 1991, the UKB obtained fee simple
title to the site. Warranty Deed (Jan. 2, 1991). Since then, the UKB has owned the
Gaming Site in fee simple.

The UKB pays annual real property taxes for the Gaming Site to Cherokee
County. See Real Property Tax Invoices and Receipts between UKB and Cherokee
County (2003-2004); Affidavit of Erlene Luper, Cherokee County Assessor (Oct. 7,
2005); UKB’s Response at 7 (“The Keetoowah Cherokees admits that it has paid ad


them, even warning the UKB when a payment was late that the failure to pay could result
in a civil fine or be grounds for closure. See Letter from Philip N. Hogen, NIGC Vice
Chairman, to John Ross, UKB Chief (May 19, 1998); see also Letter from Cindy
Altimus, NIGC Administrative Officer, to Cliff Turk, United Keetoowah Bingo Manager
(May 17, 1995); Letter from Cindy Altimus, NIGC Compliance Coordinator, to Barbara
Turk, United Keetoowah Bingo (Jan. 13, 1997). Additionally, there is evidence indicating
that the UKB submitted annual independent audit reports to the NIGC as required by
NIGC regulations. Records of receipt for independent auditor reports for fiscal years
1995-1998 (transmitted by e-mail dated Sept. 30, 2004). The NIGC tracked the UKB’s
compliance with the various IGRA requirements and included the UKB in the NIGC’s
then-quarterly compliance report to the Secretary of Interior under Public Law No. 104-
134 (1996). See, e.g., Excerpt of NIGC Compliance Report (Sept. 30, 1996); Excerpt of
NIGC Compliance Report (Dec. 31, 1996); Excerpt of NIGC Compliance Report (March
31, 1997).

NIGC field representatives continued to have contact with UKB officials
concerning IGRA and NIGC requirements, including, among other things, submittal of
annual independent audit reports to the NIGC; obtaining fingerprints and completing
criminal history checks of key employees and primary management officials; and
conducting and submitting background investigations for key employees and primary
management officials.>

In early 2000, the issue of the Gaming Site’s status arose again. NIGC Field
Investigator Marci Pate received an anonymous telephone call alleging that the UKB’s
gaming operation was being managed without an approved management contract and that
the Gaming Site was not held in trust. See Memorandum from Marci Pate, NIGC Field
Investigator, to Tim Harper, NIGC Region Director, re Request for Status Determination
for United Keetoowah Band of Cherokees (Feb. 22, 2000). Ms. Pate then called the local
BIA office and confirmed that the Gaming Site was not in trust. Jd. Her memorandum
concluded by requesting a formal determination concerning the status of lands on which
the UKB was conducting gaming. /d. In turn, Mr. Harper wrote a memorandum to the
NIGC’s Washington headquarters office requesting a formal determination of the status
of the land prior to investigating the alleged violation of IGRA in order to “be clear that
our office has jurisdiction over gaming on this tract of land.” Memorandum from Tim
Harper, NIGC Region Director, to Alan Fedman, NIGC Director of Enforcement, re
Determination of Indian Land — Oklahoma (March 14, 2000).

In April 2000, Mr. Harper was instructed to obtain whatever information the local
BIA office had regarding the Gaming Site. E-mail from Richard Schiff to Tim Harper re

5 See Report from NIGC Field Representative Tim Harper re Compliance Meeting (Sept. 24, 1998); Report
from NIGC Field Investigator Marci Pate re Liaison / Introduce new FI Marci Pate (July 16, 1999);
Memorandum from Marci Pate, NIGC Field Investigator, to Alan Fedman, NIGC Director of Enforcement
re United Keetoowah Band of Cherokees of Oklahoma Voluntary Compliance — Evergreen (Nov. 29,
1999); NIGC Field Investigator’s Site Visit Summary Report from Marci Pate, NIGC Field Investigator, re
Compliance — Investigative Reports (Dec. 2, 1999); NIGC Field Investigator’s Site Visit Summary Report
from Marci Pate, NIGC Field Investigator, re Meeting Requested by Tribe (Dec. 30, 1999); see also NIGC
Record of Employee Fingerprint Processing for UKB (May 11, 2000, through Dec. 11, 2000).


MEMORANDUM
TO: Tracie Stevens, Chairwoman

FROM: Lawrence S. Roberts, General Counsel te: Ove @
Jo-Ann M. Shyloski, Associate General Counsel—Litigation & Enforcement yee

Dawn Sturdevant Baum, Staff Attorney TeP>~
DATE: July 18, 2011

RE: United Keetoowah Band of Cherokee Indians;
Gaming site in Tahlequah, Oklahoma

This memorandum concludes a legal review of whether a gaming facility owned
and operated by the United Keetoowah Band of Cherokee Indians in Oklahoma (“United
Keetoowah Band” or “UKB”) is on Indian lands as defined by the Indian Gaming
Regulatory Act (“IGRA”) and National Indian Gaming Commission (“NIGC”)
regulations. This matter was remanded to the NIGC for review by the federal district
court in United Keetoowah Band of Cherokee Indians in Okla. v. Oklahoma, No. 04-340,
2006 U.S. Dist. LEXIS 97268 (E.D. Okla. Jan. 26, 2006).

The gaming facility once was called Keetoowah Bingo but is now called the
Keetoowah Cherokee Casino. See http://www.keetoowahgaming.com/. The gaming
facility is located at 2450 South Muskogee Avenue in Tahlequah, Oklahoma (“the
Gaming Site’).

As explained below, it is our opinion that the Gaming Site does not qualify as
Indian lands under IGRA. Therefore, the NIGC does not have jurisdiction to regulate the
gaming activities that take place there. The Department of the Interior (“DOI”), Office of
the Solicitor, concurs with this opinion.


Ill. Legal Analysis

IGRA created the NIGC and vested it with certain powers of regulatory oversight
and enforcement. See, e.g., 25 U.S.C. §§ 2706(b)(1) (monitor Class II gaming on Indian
lands); 2706(b)(2) (inspect and examine all premises located on Indian lands on which
Class II gaming is conducted); 2713 (levy civil fines and closure orders); 2717 (collect
NIGC fees from Class II or Class III activities regulated by IGRA). Not surprisingly,
IGRA limits the NIGC’s authority to regulate gaming activities to those that take place on
Indian lands.’ Consequently, the NIGC lacks jurisdiction over any such activities that
take place on lands that do not constitute “Indian lands.” IGRA defines Indian lands 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 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.

25 U.S.C. § 2703(4). The NIGC’s regulations clarify that definition, stating:

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

(6) 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.

25 C.F.R. § 502.12.

A. Indian Reservation

The UKB does not argue that it has a current reservation and the DOI has
confirmed that it does not. See Letter from Martin Steinmetz, Acting Field Solicitor, to
Kevin Washburn, NIGC General Counsel (Aug. 10, 2000). Rather, the UKB argues that
the Gaming Site qualifies as Indian lands because it is within the boundaries of the former
Cherokee Reservation. UKB Opening Mem. at 23-24 (“It is undisputed that the
Keetoowah Cherokee gaming facility occupies fee land within the boundaries of the
former Cherokee Reservation.”); UKB Response Mem. at 30-32. The UKB argues that

” Specifically, under IGRA, an Indian tribe may engage in Class II gaming only “on Indian lands within
such tribe’s jurisdiction.” 25 U.S.C. § 2710(b)(1). Similarly, IGRA states that “Class III gaming activities
shall be lawful on Indian lands only if such activities are—(A) authorized by an ordinance or resolution
that—(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands . . . . 25
U.S.C. § 2710(d)(1)(A(i).

11


jurisdiction, [she] was unable to comment on the Tribe’s gaming issues.” Jd. There is
evidence in the record that until 2002, the NIGC continued to assist the UKB obtain FBI
criminal history checks on its key employees and primary management officials by
forwarding fingerprint cards from the UKB to the FBI and in turn sending the FBI
criminal history reports to the UKB—a service that the NIGC offers to all gaming tribes.
See E-mail chain between Tim Harper, NIGC Region Director; Cindy Altimus, NIGC
Field Investigator; Marci Pate, NIGC Field Investigator; and Sharon Stivers, NIGC
Administrative Assistant (July 30, 2002). But this activity was in the nature of
administrative technical assistance rather than regulation; and in any case, it ceased
around July 2002.

On April 12, 2006, the UKB submitted a new application to the BIA to have the
Gaming Site taken into trust. The United Keetoowah Band of Cherokee Indians in
Oklahoma, Land Into Trust Application on 2.03 Acre Parcel Located in Tahlequah,
Cherokee County, State of Oklahoma, For the Purpose of Gaming Under 25 U.S.C.

§ 2719, Section 20 (April 12, 2006). On May 1, 2007, the BIA Regional Office wrote to
the Cherokee Nation, the State of Oklahoma, Cherokee County, and other branches of
state and local government in order to invite comment on the proposed acquisition. Letter
from Jeanette Hanna, BIA Regional Director, to the Honorable Chadwick Smith,
Cherokee Nation Principal Chief (May 1, 2007); Letter from Jeanette Hanna, BIA
Regional Director, to the Honorable Brad Henry, Governor of Oklahoma (May 1, 2007);
Letter from Jeanette Hanna, BIA Regional Director, to the Board of County
Commissioners, Cherokee County (May 1, 2007). The Cherokee Nation submitted a
response with exhibits. Letter from Chad Smith, Cherokee Nation Principal Chief, and
Diane Hammons, Cherokee Nation Acting General Counsel, to Jeanette Hanna, BIA
Regional Director (received June 18, 2007). The UKB’s April 2006 Gaming Site trust
application remains pending with the Director of the BIA and the Assistant-Secretary of
Indian Affairs’ (AS-IA) Office of Indian Gaming.°

° In the context of a UKB trust application for a different parcel in Cherokee County (the 76-acre
“Community Services Parcel”), the AS-IA disavowed the position that the Cherokee Nation has exclusive
jurisdiction over trust and restricted lands within the former Cherokee reservation. United Keetoowah Band
of Cherokee Indians v. Director, Eastern Oklahoma Region, Bureau of Indian Affairs, Decision of the
Assistant Secretary — Indian Affairs (June 24, 2009). Subsequently, the AS-IA issued another decision in
that matter withdrawing portions of the June 24, 2009 decision relating to the UKB as a successor in
interest to the historic Cherokee Nation. United Keetoowah Band of Cherokee Indians v. Director, Eastern
Oklahoma Region, Bureau of Indian Affairs, Decision of the Assistant Secretary — Indian Affairs (Sept. 10,
2010). But AS-IA’s recent decision specifically reaffirmed that part of the June 2009 decision regarding
whether a trust acquisition for the UKB would create conflicting jurisdiction. Jd. The June 2009 decision
held that “[t]he UKB would have exclusive jurisdiction over land that the United States holds in trust for
the Band.” United Keetoowah Band of Cherokee Indians v. Director, Eastern Oklahoma Region, Bureau of
Indian Affairs, Decision of the Assistant Secretary — Indian Affairs (June 24, 2009). On May 24, 2011, the
Bureau of Indian Affairs, Acting Regional Director issued a decision to acquire 76 acres of land into trust
for the United Keetoowah Band. That 76 acre parcel is not at issue here.

10


tribal officials. Jd. at 23. He visited the UKB at least a couple more times from 1993 to
1999, either at the UKB’s request or to check on compliance issues. /d. at 40-41. See also
Affidavit of Tim Harper (Oct. 28, 2005) (Cherokee Nation Response ex. 22). We have
found no evidence that anyone at the NIGC made any specific determination during 1992
or 1993 that the Gaming Site was on Indian lands. Rather, consistent with the explanation
provided above, it appears that Mr. Harper was directed to treat the UKB’s gaming
operation as being on Indian lands because the UKB had identified its gaming facility as
within the NIGC’s jurisdiction.

In November 1994, the UKB submitted a request to the NIGC to review and
approve a tribal gaming ordinance. Harold Monteau, then Chairman of the NIGC,
subsequently approved the UKB’s tribal gaming ordinance. Letter from Harold A.
Monteau, NIGC Chairman, to John Ross, UKB Chief (March 22, 1995). The gaming
ordinance contained no information about any specific site, and the NIGC Chairman was
careful to make clear that the ordinance approval was not tantamount to approval of
gaming activities on any particular site. As to the issue of Indian lands, the NIGC
Chairman wrote in the approval letter:

It is important to note that the gaming ordinance is approved for gaming
only on Indian lands as defined in the IGRA. At the current time, it is the
understanding of the NIGC that the Band does not have any lands that
meet that definition. Therefore, until such time as it is determined that the
Band holds lands that meet the definition in the IGRA, the Band is not
authorized to conduct class II or class III gaming.

Thank you for submitting the ordinance of the Band for review and
approval. The NIGC staff and I look forward to working with you and the
Band in implementing the IGRA once the Band acquires Indian lands.

Id.

This approval is the most definitive finding made by the NIGC about the Indian
lands status of the Gaming Site and the UKB’s authority to conduct gaming there. The
approval was an explicit finding by the NIGC Chairman in an agency action authorized
and made reviewable by statute, 25 U.S.C. §§ 2705(a)(3), 2714, and it set forth the
agency’s view that the UKB had no Indian lands. Until that changed, the UKB was not
authorized to conduct Class II or Class III gaming. 25 U.S.C. §§ 2710(b)(1)(B),
2710(d)(1)(A)(iii). The Chairman’s finding was not appealed to the full Commission or to
a federal district court.

However, it also was not followed—not by the UKB or the NIGC. The record
shows that the UKB continued to conduct gaming activities on the Gaming Site and
continued to send fee payments to the NIGC. See, e.g., Quarterly Statement from United
Keetoowah Bingo (March 31, 1995); Quarterly Statement from United Keetoowah Bingo
(June 30, 1995); Quarterly Statement from United Keetoowah Bingo (Sept. 30, 1995).
The NIGC continued to accept the UKB’s fee payments and wrote to the UKB about


A. Location of the Gaming Site

The Gaming Site is located at 2450 South Muskogee Avenue (U.S. Highway 62)
in the City of Tahlequah, Cherokee County, Oklahoma. The legal land description is:

A tract of land lying in and being a part of the S4 NE% SE% SW% anda
part of the N% SE% SE% SW% of Section 4, Twp. 16 N, Rge. 22 E,
Cherokee County, Oklahoma, more particularly described as follows, to-
wit: Beginning at a point 175.0 feet South of the North boundary and
131.0 feet East of the West boundary of said SY NE% SE% SW; thence
S 2° - 56' W, 159.8 feet; thence N 89° - 12' W, 24.8 feet; thence S 3° - 30'
W, 171.4 feet to a point 175.0 feet South of the North boundary of said
N% SE% SE% SW; thence S 89° - 49' E, 384.32 feet to a point on the
West boundary of U.S. Highway No. 62; thence N S° - 25' W, along the
West boundary of U.S. Highway No. 62, 332.0 feet; thence N 89° - 49' W,
309.55 feet to the Point of Beginning. Containing 2.63 acres.

Warranty Deed (Jan. 2, 1991); Memorandum from Tim Harper, NIGC Region
Director, to Rick Schiff, NIGC Deputy Chief of Staff, re United Keetoowah Land
Issue (May 1, 2000); UKB Opening Mem. at 36.

In addition to operating a gaming facility on the Gaming Site, the United
Keetoowah Band uses the parcel and contiguous tracts’ as a tribal complex, which
includes the tribal government headquarters, administrative offices, tribal tag office, tribal
court system, legal assistance office, tribal realty department, tribal law enforcement
office, tribal newspaper, public information office, and the tribal community garden.
UKB Opening Mem. at 11, ex. 8 (Affidavit of Charles Locust (“Locust Aff.”)).

3 The State has produced two additional deeds that conveyed three small tracts to the UKB. State
Opening Mem. at 11, ex. 2, 3. Using satellite image and mapping software, we have determined
that these three small tracts are contiguous to the Gaming Site. See Figure 1, below. Nothing in the
administrative record or from the collective knowledge of the NIGC’s field staff suggests that the
UKB is conducting gaming operations on the three contiguous tracts. Moreover, it appears that the
United Keetoowah Band conveyed the western contiguous tract to Wal-Mart about 15 years ago.
Warranty Deed from United Keetoowah Enterprises Inc. for and in behalf of United Keetoowah
Band of Cherokees in Oklahoma, to Wal-Mart Stores Inc. (Nov. 7, 1995). Therefore, the analysis
and conclusions in this memorandum are limited to the 2.63-acre Gaming Site.


difficult question,” but concluded that “we need not reach this difficult question.”
September 2000 Letter at 4. We agree with the former General Counsel’s approach
because, for the reasons set forth below, UKB lacks legal jurisdiction to exercise
governmental power over the Gaming Site.

3. The Indian Tribe Must Have Jurisdiction and Exercise
Governmental Power Over the Land.

A site may qualify as Indian lands if it is trust or restricted fee lands over which
an Indian tribe exercises governmental power. See 25 U.S.C. § 2703(4)(B); 25 C.F.R.
§ 502.12(b). Tribal jurisdiction is a threshold requirement to the exercise of governmental
power as required by IGRA’s definition of Indian lands. See e.g., Rhode Island v.
Narragansett Indian Tribe, 19 F.3d 685, 701-703 (1st Cir. 1994), cert. denied, 513 U.S.
919 (1994), superseded by statute 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. 2d 1213, 1217-18 (D. Kan. 1998)
(Miami If) (a tribe must have jurisdiction in order to exercise governmental power);
Miami Tribe of Oklahoma v. United States, 927 F. Supp. 1419, 1423 (D. Kan. 1996)
(Miami J) (“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. rel. Graves v. United States, 86 F. Supp. 2d 1094 (D. Kan. 2000), aff'd and remanded
sub nom., Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001). Importantly, the
Tenth Circuit requires that “before a sovereign may exercise governmental power over
land, the sovereign, in its sovereign capacity, must have jurisdiction over that land.”
Kansas v. United States, 249 F.3d 1213, 1229 (10th Cir. 2001). This interpretation is
consistent with IGRA’s language limiting the applicability of its key provisions to “[a]ny
Indian tribe having jurisdiction over Indian lands,” or to “Indian lands within such tribe’s
jurisdiction.” 25 U.S.C. §§ 2710(d)(3)(A), 2710(b)(1)); see also Narragansett Indian
Tribe, 19 F.3d at 701-703. Therefore, whether the UKB possesses jurisdiction over the
Gaming Site is a threshold question.

Generally speaking, an Indian tribe possesses jurisdiction over land that the tribe
inhabits if the land qualifies as “Indian country.” See Alaska v. Native Village of Venetie
Tribal Gov't, 522 U.S. 520, 527 n.1 (1998); United Keetoowah Band of Cherokee Indians
of Oklahoma v. United States Dept. of Housing and Urban Development, No. 08-7025,
slip op. at 11 n.5 (10th Cir. June 5, 2009) (“{A]s a general matter, Indian tribes exercise
court jurisdiction over Indian country—reservations, dependent Indian communities, and
Indian allotments.”). Congress defined the term Jndian 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. § 1151. This definition, found in the criminal code, “generally applies to questions
of civil jurisdiction[.]” Venetie, 522 U.S. at 527.

Relying on Venetie, the UKB asserts that the Gaming Site constitutes Indian
country if it is subject to federal set-aside and superintendence. Venetie interpreted the


power for the benefit of the UKB. Thus, the requirement of federal set-aside has not been
met.

Further, we note that NIGC’s regulatory activities described in Section II(B)
cannot independently create Indian country. While Congress has granted the Department
of the Interior and other federal agencies broad authority regarding tribal lands, the
NIGC’s regulatory authority is limited to “Indian lands” as defined by IGRA. 25 U.S.C. §
2703(4). IGRA, by its terms, applies only to gaming on Indian lands. See, e.g., 25 U.S.C.
§ 2710(a)(2) (“any class II gaming on Indian lands shall continue to be within the
jurisdiction of the Indian tribes, but shall be subject to the provisions of this chapter”); 25
U.S.C. § 2710(b)(1) (requiring approved tribal gaming ordinance for the conduct of Class
II gaming on Indian lands); id. (requiring tribal licensure of each gaming facility on
Indian lands); 25 U.S.C. § 2710(b)(4)(A) (permitting licensure of individually owned
gaming on Indian lands); 25 U.S.C. § 2710(d)(1) (requiring approved tribal gaming
ordinance for the conduct of Class III gaming on Indian lands); 25 U.S.C. §
2710(d)(3)(A) (requiring a tribal-state compact for Class III gaming on Indian lands);
Sen. Rep. 100-446 at p. A-1. (IGRA “is the outgrowth of several years of discussions and
negotiations between gaming tribes, States, the gaming industry, the administration, and
the Congress, in an attempt to formulate a system for regulating gaming on Indian
lands”).

Likewise, the powers IGRA grants the Commission and the Chairwoman extend
only as far as Indian lands extend. See, e.g., 25 U.S.C. § 2705(a)(3) (power to approve
tribal gaming ordinances for gaming on Indian land); 25 U.S.C. § 2705(a)(4) (power to
approve management contracts for gaming on Indian lands); 25 U.S.C. § 2713
(enforcement power for violations of IGRA, NIGC regulations, or tribal gaming
ordinances); 25 U.S.C. § 2706(b)(1), (2), (4) (powers to monitor gaming, inspect
premises, and demand access to records for Class II gaming on Indian lands); 25 U.S.C.
§ 2702(3)(“The purpose of this Act is ... to declare that the establishment of independent
Federal regulatory authority for gaming on Indian lands, the establishment of Federal
standards for gaming on Indian lands, and the establishment of a National Indian Gaming
Commission are necessary to meet congressional concerns regarding gaming...”). In
short, in the absence of Indian lands, IGRA grants neither the Commission nor the
Chairwoman any jurisdiction to exercise regulatory authority over the Gaming Site. The
NIGC only has authority to regulate existing Indian lands; it does not have authority to
decide to regulate lands not otherwise eligible for gaming under IGRA. Accordingly, the
NIGC’s past actions cannot and do not create Indian lands or Indian country.

Because the Gaming Site was not set aside by the federal government, it is not
Indian country. Accordingly, the Gaming Site does not constitute “Indian lands” under
IGRA because the UKB currently lacks jurisdiction over the Gaming Site.®

* The Assistant Secretary—Indian Affairs has explained that if he takes such a parcel into trust, it will come
within the UKB’s exclusive jurisdiction. United Keetoowah Band of Cherokee Indians v. Director, Eastern
Oklahoma Region, Bureau of Indian Affairs, Decision of the Assistant Secretary — Indian Affairs (June 24,
2009)( “The UKB would have exclusive jurisdiction over land that the United States holds in trust for the
Band.”); United Keetoowah Band of Cherokee Indians v. Director, Eastern Oklahoma Region, Bureau of

16


¢ Evidence indicating the status of the UKB’s trust application, id. at 11;

¢ Documents and analysis regarding whether the gaming site is within the
boundaries of the “original Cherokee territory” in Oklahoma, and if so, evidence
as to whether the Cherokee Nation has been “consulted” regarding the UKB’s
trust application and the results of that consultation, id.;

¢ Evidence regarding whether the UKB has exercised governmental power over the
gaming site, id.;

e Evidence showing the exact nature and extent of federal regulation over the
UKB’s gaming activities that took place during the entire period of such
regulation, id. at 13;

¢ Documentation of the UKB’s tax payments to the State if they were made, and if
not, documentation showing why they were not paid, including any collection
notices, id. at 12; and

e Documents showing whether the Gaming Site is the same property as the land at
issue in Buzzard v. Oklahoma Tax Comm'n, 992 F.2d 1073 (10th Cir. 1993), id.

Upon commencing its review on remand, the NIGC provided notice to five
entities: the United Keetoowah Band; the Cherokee Nation; the State of Oklahoma;
Cherokee County, Oklahoma; and the City of Tahlequah, Oklahoma. Letter from Penny
Coleman, NIGC Acting General Counsel, to potentially interested parties (Nov. 28,
2007). Specifically, the NIGC established a briefing schedule to allow the submittal and
exchange of opening memoranda, responses, and replies, all with supporting
documentation. /d. That briefing schedule was twice extended, first at the request of the
UKB and then the State of Oklahoma. Letters from Jeffrey Nelson, NIGC Senior
Attorney, to interested parties (Jan. 29, 2008; May 29, 2008). The NIGC received
opening, response, and reply briefs, all with supporting materials, from the United
Keetoowah Band, the Cherokee Nation, and the State of Oklahoma. Later, the NIGC
requested supplemental briefing on whether the Gaming Site was “subject to restriction
by the United States against alienation” as that phrase is used within IGRA’s definition of
Indian lands. Letter from Penny Coleman, NIGC Acting General Counsel, to interested
parties (July 31, 2009). The NIGC received supplemental briefs addressing this issue
from the UKB, the Cherokee Nation, and the State of Oklahoma.

In addition, the NIGC reviewed its own files at both its headquarters and Tulsa
region offices, compiling all documents in its possession concerning the UKB’s Gaming
Site. Finally, the NIGC contacted the Bureau of Indian Affairs and obtained a copy of the
administrative record concerning the UKB’s trust application.

IL. Facts

We have compiled and reviewed a thorough administrative record, including all
documents submitted during the briefing schedule and all other information in the
NIGC’s possession regarding the UKB’s Gaming Site.


I. Procedural Background

In September 2000, the General Counsel of the NIGC wrote an Indian lands
opinion concerning the Gaming Site. Letter from Kevin K. Washburn, NIGC General
Counsel, to Jim Henson, UKB Chief (Sept. 29, 2000) (“the September 2000 Letter”).

Mr. Washburn concluded that the UKB’s gaming activity is not subject to IGRA because
the UKB lacked the requisite legal jurisdiction over the Gaming Site for it to qualify as
Indian lands. /d. at 4-6. The UKB challenged the September 2000 Letter in federal
district court.' The district court found that because the NIGC “took definite action” to
stop regulating the UKB’s gaming operation in accordance with the conclusion in the
September 2000 Letter, the September 2000 Letter constituted a reviewable final agency
action. United Keetoowah Band, No. 04-340 at 7 n.4, 10.

The district court set aside the September 2000 Letter as arbitrary and capricious
under the Administrative Procedures Act because the NIGC failed to consider important
aspects in reaching its conclusion. Jd. at 10-14. For example, the court determined that
when the NIGC has exercised some sort of regulation over a site for some time, the
Indian lands determination must go beyond the basic analysis to include consideration of
the facts surrounding the past regulation. Jd. at 12. The court concluded that the
administrative record supporting the September 2000 Letter lacked information relating
to the early regulation of the gaming site by the NIGC. Further, the September 2000
Letter failed to give any explanation as to the past regulation of the UKB’s gaming
activities, “including whether the NIGC had, in fact, prior to 2000, ever made any
determination that the [Gaming Site] Land was ‘Indian land’ and if it had not, why the
NIGC made the decision to regulate Plaintiff's gaming on the land.” Id.

In setting aside the September 2000 Letter and remanding the matter to the NIGC,
the court ordered the NIGC to “investigate, compile a complete record and consider all
relevant factors before making its final determination of whether the [Gaming Site] Land
is ‘Indian land’ as that term is defined by ‘IGRA.”” Id. at 14.” According to the court’s
order, a complete administrative record in this case should contain, but not be limited to,
the following:

' The NIGC’s position in that lawsuit was—and continues to be—that stand-alone legal opinions from the
NIGC’s Office of General Counsel are not agency actions at all, much less final agency actions subject to
judicial review under IGRA, 25 U.S.C. § 2714, or the Administrative Procedures Act (“APA”), 5 U.S.C.

§ 704. See Miami Tribe of Okla. v. United States, 198 F. App’x 686, 689-91 (10th Cir. 2006); County of
Amador v. United States Dept. of the Interior, No. 07-527, 2007 U.S. Dist. LEXIS 95715, at *10-18 (ED.
Cal. Dec. 13, 2007); Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F. Supp. 2d
295, 327-28 (W.D.N.Y. 2007); Wyandotte Nation v. NIGC, 437 F. Supp. 2d 1193, 1201 (D. Kan. 2006);
Cheyenne-Arapaho Gaming Comm’n v. United States, No. 04-1184, slip op. at 5-9 (W.D. Okla. Dec. 4,
2006); Cheyenne-Arapaho Gaming Comm'n v. NIGC, 214 F. Supp. 2d 1155, 1167-72 (N.D. Okla. 2002).

? The United States and the State of Oklahoma appealed the district court’s order. The United States did not
pursue its appeal after a court-ordered mediation process failed to produce a settlement, but the State of
Oklahoma did. The Tenth Circuit dismissed the State’s appeal for lack of jurisdiction, finding that the
remand order was not a final order subject to appeal. United Keetoowah Band of Cherokee Indians in Okla.
v. United States, No. 06-7033 (10th Cir. Sept. 6, 2007).


the NIGC has interpreted the term Indian reservation in IGRA to include former
reservations. To support this argument, the UKB relies on a NIGC memorandum
concerning the White Earth Reservation, characterizing that memorandum as an analysis
of gaming on fee land within the boundaries of the “former” White Earth Reservation. Id.
at 23. That memorandum, however, does not interpret Jndian reservation to include
former reservations. See Memorandum from Cindy Shaw, NIGC Staff Attorney, to NIGC
Acting General Counsel (March 14, 2005) (“White Earth Memorandum”). Rather, the
White Earth Memorandum concerns an existing reservation. It states that although the
White Earth Reservation was diminished and subjected to allotment by an act of
Congress, the Reservation was not disestablished. Id. at 3 (“The Nelson Act...
diminished the White Earth Reservation. . . . [But the] Minnesota Supreme Court held
that the remaining 32 of the original 36 townships on the reservation were not
disestablished.”). The term former reservation is nowhere used in the memorandum.

To the contrary, Indian reservation in 25 U.S.C. § 2703(4) refers only to existing
federal Indian reservations. Cf Citizens Exposing Truth About Casino v. Kempthorne,
492 F. 3d 460, 470-71 (D.C. Cir. 2007) (IGRA refers only to federal, not state,
reservations). Interpreting the term to include former reservations would significantly
expand lands eligible for gaming. That Congress did not intend this interpretation is
supported by the language of IGRA itself, which specifically distinguishes between
reservations existing on the date of IGRA’s enactment and former reservations in
Oklahoma. Compare 25 U.S.C. § 2719(b)(1) with id. § 2719(b)(2)(A)(i).

Furthermore, the DOI recently issued regulations defining the term reservation in
IGRA as:

(1) Land set aside by the United States by final ratified treaty, agreement,
Executive Order, Proclamation, Secretarial Order or Federal statute for the
tribe, notwithstanding the issuance of any patent;

(2) Land of Indian colonies and rancherias (including rancherias restored
by judicial action) set aside by the United States for the permanent
settlement of the Indians as its homeland;

(3) Land acquired by the United States to reorganize adult Indians
pursuant to statute; or

(4) Land acquired by a tribe through a grant from a sovereign, including
pueblo lands, which is subject to a Federal restriction against alienation.

25 CFR. § 292.2.

The regulations contain a separate definition of former reservation, which is
defined to mean “lands in Oklahoma that are within the exterior boundaries of the last
reservation that was established by treaty, Executive Order, or Secretarial Order for an
Oklahoma tribe.” /d. These terms have distinct meanings in the context of both tribal
lands in Oklahoma and gaming on those lands under IGRA. In the present matter, the


term dependent Indian community to refer “to a limited category of Indian lands that are
neither reservations nor allotments, and that satisfy two requirements—first, they 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.” /d. at 527. For the reasons set forth
above in Section III. A., the Gaming Site does not constitute Indian country under 25
U.S.C. § 1151(a). Further, the UKB does not assert that the land constitutes Indian
country pursuant to 25 U.S.C. § 1151(c). Cf UKB Response Mem. at 6 (“The Keetoowah
Cherokees has not argued that the property at issue here fits nicely within a pre-conceived
notion of Indian Country under § 1151.”). According to the UKB, it only has jurisdiction
if the Gaming Site is subject to a federal set-aside and federal superintendence, i.e., if the
Gaming Site is a dependent Indian community. Venetie, 522 U.S. at 530-31 (1998); UKB
Opening Mem. at 16-20; UKB Response Mem. at 5-13; UKB Supplemental Mem. at 3-7.
In our opinion, the Gaming Site is not subject to a federal set-aside. Accordingly, we
need not reach the issue of whether the Gaming Site is subject to federal superintendence.

Federal set-aside requires a federal action “indicating that it set aside the land for
the use by the UKB.” Buzzard, 922 F.2d at 1076. It is federal action, not tribal
government action, that is required. “[B]ecause Congress has plenary power over Indian
affairs, see U.S. CONST.. art. I, § 8, cl. 3, some explicit action by Congress (or the
executive, acting under delegated authority) must be taken to create or to recognize
Indian country.” Venetie, 522 U.S. 531 at n.6.

The UKB argues that the federal action to set aside the Gaming Site here comes in
the form of the Non-intercourse Act and the UKB’s charter. That argument has been
considered and rejected by the Tenth Circuit. Buzzard, 922 F.2d at 1076 (“No action has
been taken by the federal government indicating that it set aside the land for use by the
UKB.”). Like the lands at issue in Buzzard, the restriction against alienation imposed by
the Non-intercourse Act and by operation of the of UKB’s corporate charter,

may show a desire to protect the UKB from unfair disposition of its land,
but does not of itself indicate that the federal government intended the
land to be set aside for the UKB’s use. . . . If the restriction against
alienation were sufficient to make any land purchased by the UKB Indian
country, the UKB could remove land from state jurisdiction and force the
federal government to exert jurisdiction over that land without either
sovereign having any voice in the matter. Nothing in ...the cases
concerning trust land indicates that the Supreme Court intended for Indian
tribes to have such unilateral power to create Indian country.

Buzzard, 922 F.2d at 1076-77; see also Kansas v. United States, 249 F.3d 1213, 1218-19
(10th Cir. 2001) (tribe’s unilateral actions adopting property owners into the tribe and
then leasing and developing their land did not restore the parcel to tribe’s jurisdiction).
Further, we disagree with the UKB’s contention that NIGC’s past regulatory actions or
BIA’s loan guarantee serve to satisfy the federal set-aside requirement. UKB Opening
Mem. at 16-20. Congress has authorized the Secretary of the Department of the Interior,
not NIGC, to set-aside lands for Indian tribes, and the Secretary has not yet exercised that