Floyd E. Leonard, Chief 

Miami Tribe of Oklahoma 

P.O. Box 1326 

Miami, Oklahoma 74355 

Clark D. Stewart, President 

Butler National Service Corporation 

8405 Melrose Drive 

Lenexa, Kansas 66214 

Dear Chief Leonard and Mr. Stewart: 

On April 4, 1995, the National Indian Gaming Commission 

(NIGC) affirmed the Chairman's disapproval of the management 

contract dated October 12, 1993, between the Miami Tribe of 

Oklahoma (Tribe) and Butler National Service corporation 

(I Ilk 4 (Butler), a Delaware corporation. This letter supplements that 

decision. 

On May 12, 1994, the NIGC requested an opinion from the 

Associate Solicitor, Division of Indian Affairs of the Department 

of the Interior, as to whether a restricted Indian allotment in 

the State of Kansas, known as the Maria Christiana Miami Reserve 

No. 35, falls within the statutory definition of "Indian lands" 

for purposes of the Indian Gaming Regulatory Act (IGRA). Because 

of the expertise of the Solicitor's Office in Indian lands 

questions, the NIGC defers to their opinions. 

On May 23, 1995, the Solicitor's Office provided the NIGC 

with an opinion (enclosed) stating that the Maria Christiana 

tract does not constitute "Indian lands1' for purposes of IGRA 

because the Tribe does not exercise governmental power over the 

tract. As a result of this determination, the management 

contract is also disapproved because the proposed gaming site 

does not qualify as Indian lands. 
If you have any questions regarding this supplemental 

decision, please feel free to contact our office at (202) 632- 

IW 7003. 

Sincerely yours, 

Harold A. Monteau 

Chairman 

cc: Kip Kubin, Esq. 

Payne & Jones 

11000 King, Suite 200 

P.O. Box 25625 

Overland Park, KS 66225-5625 

Enclosure 
05/23/95 16:29 --e202 219 1791 SOL/INDIAN . AFF' - S ~002/00~ - . . .- --- 

k 

HUU United States Department of the Interior 

OFFICE OF THE SOLIClTO R 

In reply, plelase address to: 

Main Interior, Room 6456 

MP,Y 2 3 1995 

Michael D. Cox, General Counsel 

National Indian Gaming Commission 

1850 M Street, NW, Suite 250 

Washington, D.C. 20036 

Dear Mr. COX; 

On ~ay 12, 1994 your office requested an opinion as to whether a 

restricted Indian allotment in the .State of Kanr~as known as the 

Maria ~hristiana Miami Resenre No. 35 falls within the statutory 

definition of "Indian landsn for purposes of the Indian .Gaming 

Regulatory Act (tfIGRAn), 25 U.S.C. 91 2701-21 (3 988) .' In order 

to respond to your request, we must determine whether .. the 

Christiana allotment in Kansas is subject ..tb thl2 jurisdictional' 

authority of the Tribe for purposes of ginming prlrauant to IGRA. , For the reasons set forth below, we conclude that: the' Christiana , , 

allotment does not constitute nIndian lands" for purposes of IGRA. 

' lyybi' Historical Backgrauad of the Miami Tribe 

in Kansas and of the Chrietiaaa Allobaent, 

.By ' the .Treaty 0.f June 5, 1854, 10 Stat. 1093, the Miami: Tribe 

agreed to' cede to the .United States most its remaining 500,000 

acres of land in Kansas Territory, except 70,640 ircres, which the 

Tribe reserved for its use, The United States agreed to pay the 

Tribe '$200,000 in 20 annual inotallments of $7,500 with the 

remaining $50,000 to be invested for the Trib:?. The . Treaty 

recognized two groups of Miami Indians: the Western' Miami, 

recognized as. the political, body of the Tribe; .and the 1ndiana 

' . ' 1- allows ~laee I1 and I11 gaming on "Indiim lands;u IGRA 

defines "Indian landsn as: 

(A) all. lands within the 'limits of . any Lndian 

reservation; and 

(B) ' any lands title to which is either held.in trust, by 

the United States for the benefit of .my Indian 

tribe or individual or held by any Indian tribe or 

individual subject to restriction: by t.he United 

States against alienation and over.which an Indian 

tribe exercises governmental power. 
05/23/95 16:29 .a202 219 1791 SOL/INDIAN AFF'S @003/00R -- . - --- ...___- 

11~1~ . Miami, consisting of individual Miami Indian~ who remained in 

Indiana. Article 4 of the 1854 Treaty provided that no annuities 

or other -interest would be payable, without th~ coneent of the 

Miami of Indiana, to any pprson not listeci .on a corrected list of 

members agreed to by the Tribe and wit:nessed by Commissioner 

Manypenny. Treaty of June 5, 1854, 10 Stat. 1093. The corrected 

list contained the names of 302 individuals who were permitted to 

remain in Indiana when the Tribe moved west to Kanr:as Territory and 

who were to receive their proportionate individual shares of the 

annuities due the Tribe. & Id. 

In 1857, several families, who were descended f~.om Miami tribal 

members, including the Frederick DeRome family (th(? family of Maria 

Christiana UaRome) petitioned Congresa to add thttir names to the 

annuity rolls of the Indiana Miamis since they hiid been excluded 

from the original list of 302 eligible to 'reinair, in Indiana and 

receive.an annuity. The leaders of the Indiana Miamis opposed the 

inclusion of these individuals on the list: of eliqible recipients 

of the annuity payments. &Y.R. Rep. No. 3852, 51st Cong., 2d 

Sess. (1891); H.R. Exec. Doc. No. 23, 49th.Cong., 1st Sese. at 14 

186 ' Cor~gress directed the Secretary of the. Interior to pay 

annuities to these individuals and to place their names on the - - . . ~. annuity roll of the Indiana Miami. Act of June 12, 1858, 11 

Stat. 332. Congress further directed the Secretaq of the Interior 

to allot to each of these individuals 200 scres of land out. of the 

70,640 acres reserved to the Western Miamis by the Treaty of 

11 +rilr June 5, 1854. & 

In accordance with the Act, in October of 1858, the Secretary of 

.Interior paid to theee individuals 'a total amourkt equal to the . . 

'annuities that had not been. paid them irr the preceding yeara, 

totaling $18,370.89. The 68 names (5 more names were later added' 

for a total of 73) were then added to the roll of those Indiana. 

Miamis who. were eligible to receive ann~ities.~ See H.R. Misc. 

Doc. No. 83, 51st '~ong., 2d Sess. (1891) . Additior~ally, beginning 

in October of 1859, the Secretary of the Interior, as instructed, !. allotted to each of these 73 individuals 200 acres of land located . in Kansas (total. 14,533.38 acres) out of thla 70,64C, acres reserved, 

to the Miami Tribe by the .treaty of 1854. ,Yee H.R. Misc. Doc, No. 

83, 51st Cong., 2d SeSs. (1891) . 'The Maria Christiana tract was allotted from this reserved ,acreage 

in 1859. Although moat of the Christianii allotment eventually, 

passed out of the hands of the Indian heirs and tnerefore became 

Seg H.R. Exec. Dbc. No. 23, '49th.cong., 1st Sese. .at: 14 

( 18 8 6 1 . Among these are individuals from f amilie:: named Minnie, 

Bowers,. Harris, La Croix, and DeRome . The DeRome family rnehbers 

included, among others, a father, Frederick, his non-Indian wife, 

and their infant daughter Maria Christiana ReRome to whom an 

allotment waa given in Kansas. 
unrestricted, there remains a 35 acre tract that: has remained in 

restricted status administered by the RIA for the individual 

owners. 3 

. The 73 individuals added to the list by the Secretary of Interior 

continued to draw annuities at the deeignated placr~s in Indiana for 

a number of yeare from 1859 until 1867. On September 20, 1867, 

based on the protest of the Indiana Miamis, the Attorney General of 

the United States issued an opinion which held that the names of 

these 73 individuals were improperly added to the annuity roll of 

the Indiana Miamis, He reasoned that the addition of theae names 

violated the express terms of the 1854 treaty wh.~ch required the' 

consent of the ~ndiana Miamis before any additims to the roll 

could be made. Accordingly, in 1867 these individuals were dropped 

from the list of those entitled to receive share of bhe 

annuities. See 12 Op. .Atty. Gen. 236 (1867); $, Misc. Dac.. No. 

131, 53rd Cong., 3d Sesa. (1895). 

After these individuals were dropped from the annuity roll of the I Indiana Miami, Congress further instructed ' the Secretary of the . Interior to include these individuals on the rolls of the Miami 

Indians in Kansas if he found them entitled to be included. ,&g Act 

of March 3, 1873, 17 Stat. 631. 'However, the Secrecaxy of Interior 

found that the 73 individuals were not eligible tc~ be included on. 

the roll of the Western Miamis because they did not emigrate with 

qw' the Tribe but remained in Indiana. H,R. Rep. No. 3852, Slst 

Cong., 2d Sess. (1891). 

The Miami Tribe of Oklahoma 

In the Treaty of February 23, 1867, 15 Stat:. 513, the Miami Tribe 

was encouraged to move from Kansas to a xeservatiorl established at 

the Quapaw Agency where they would confederate with eeveral other 

tribes. The Miami Indians who remained in Kansas were to become 

- United States citizens and surrendek tribal memtlership if. they 

fulfilled certain conditions. Act of March 3, 1873, 17 Stat. 631. 

Seventy-two cribal, members elected to remove to Oklahoma, while 

those who remained in Kansas aevered their tribal relations. . ' 

The Western Miamis ceded their remaining land in Kaneas and 

:Congress directed the Secretary of Interior to cletermine which. 

The United.States; through the Bureau of Indian ~fsairs, has 

continued to probate this property. In an action co obtain title 

by adverse posseesion, the Discrict Court of Kansas partitioned the 

Maria Christiana'allotment and wanted clear title to 45 Acres of 

the allotment to Midwest Investment Properties, Inc. See Midwest 

Investment Pro~ertiee. Inc, v. Derorng,. No. 86-2497-0 (D. Kan., May . 3, 19893 . The Secretary of 'Interior is authorized to probate 

allotted Indian lands when the owner dies intestate. Se_e 25 U.S. C. 

§ 372. 
'11~' individuals were entitled to ahare in the 1.esulting funde, 

including: 

[TI hose persons of Miami blood or descent for whom 

provision was made by the third section of the act of 

June twelfth, eighteen hundred and f if ty-eighc, if. .in the 

opinior~ of the Secretary of the Interior the said Indians 

are entitled to be so included urider treaty stipulations. 

17 Stat. 6, 632. By letter dated E'ebruary 11, 1873, the 

Secretary of the ~nterior forwarded to Congress a report from the 

Superintendent of Indian affairs which det~mnined that none of the 

individuals who had received an allotment pursuant to the Juhe 12, 

1858 Act were entitled to share in the proceeds irom the sale of . the Tribe's land in Kansas. The Commi~s~~oner opined that theae 

individuals of Miami blood had not been trrecognized as Miamis, 

either by the tribe in Kansas'or by those residing in' Indiana, who . . . have never joined the tribe in Kansas, an8 until now have 

claimed no benefits from their annuities. " Se_e H.E . Exec. Doc. No., 

199, 42nd Cang., 3d Sess. (1873) . Marla Christiana DeRome had been 

included in this group and had received her allottnent despite the 

lack of tribal membership in either group. 

In addition to refusing to recognize these indiviciuals ae members 

of the Tribe or to share in the proceed8 from the :gale of lands, iri . 

Kansas, in 1891 the Western Miamis sued in the Unit:ed States Court 

of Claims, seeking reimbursement for their share of erroneous 

annuity payments made to the 73 individuals. The Tcibe also eought 

reimbursemenc for the. value of land erroneously allotted to these 

individuals in Kansas Territory, amounting to approximately 14,000 

' 

acres. The Court of Claims held that the .Westt?rn Miamis .were 

entitled to recover the amount, of money er.roneously paid as back 

annuities for the 93, ae well as the value of the ].and. allotted to 

these individuals. The Western Miami 1n.dians v . United States, 

Ct. Claims No. 1349, Jan. 9, 1891 in H.R. Misc. Dc.c. 'No. 83, 51st 

Coag., 2d Sees. (1891). In 1891 Congress appropriated $18,370.09 , 

to the Western Miami8 ta reimburse them for the annuities paid to 

thoee not entitled to them, Congress further directed the 

Secretary' of the Treasury 'to pay the Western Miami Indians ' 

$43,600.14 for 14,533 acres of land which were taken an'd 'allotted , . 

tb persona not entitled to the lands. 26 Stat. 1060. 

In summary, the Christiana allotment was provided to a non-member 

of the Miami tribe, whose deecendants .were likewise not af fotded 

tribal membership, It is located in western Kansas in an area , ceded by the Tribe to the United States when. the Tribe rembved to 

Indian territory, i.e., present day Oklahoma. The Miami Tribe is 

now located approximately 180 miles from the Chrietiana allstment. 

Tribal Jurisdiction under IGRA 

Gaming activi~iea on Indian lands are regulated pursuant to the 
05/23/95 16:31 -g202 219 1791 SOLIINDIAN AFF'S 

Qooo/oon 

-- .-- - 

*llW Indian Gaming Regulatory Act. "Indian landsn are not limited to 

those located within the boundaries of an Indian reservation. 

Congress also inclyded trust lands and lands heid by any Indian 

tribe .or individual subject to restriction by the United State~l 

against alienation, provided, that an Indian t.ribe "exercises 

governmental powerf1 over the land. IGW does not define the 

circumstances under which a tribe "exercises gov?rnrnental poweru 

over restricted land. The legislative hisrsory of the Act providce 

no guidance on this issue. 

Tribal Jurisdiction is generally limited tc, "Indian country, "4 but: 

in enacting TGRA, Congress limited gaming I:o "Indian landa, which 

is not synorlym~us wifh "Indian country. Congr~se has used the 

definition of "Indian countryu in nurneroua statutlze. See e,q. 16 

U.S.C. §# 3371.(c), 3377(c); 25 U.S.C. § 45Oh (al13); 25 U.S.C. 8 

1322 (a);' 25 U.S.C. S '1903. (10) ; 25 U.S.C. 6 3202 (8). 1GR~l.i use 

of the phrase ''Indian landsw rather'than M,I~idian countryI1 indycates 

that IGRA' s :i urisdictional reach is not identical to statutes which 

refer to "Indian country. lls 

Indian tribes are possessed of sovereignty over "tneir merirbere and 

In 194 8, Congress defined Indian countryM as follows 

Except as otherwise' provided in sectione: 1154 

and 1156 of this, title,, the term "Indian 

countryw, a's used in this chapter, means ' (a). 

all land, within the limits 'of any Indian 

reservation under the jurisdiction &: the ' 

United States Qovenunent, notwithstanding the 

isuuance of any patent., and, including 

rights -of -way running through the reserva t ion, 

(b) all dependent Indian commu_nities within 

the borders of the United States whether 

within the original or subsequently acquired 

territory thereof, and whether within or. 

without the limits of a state, and (c:, all 

Indian allotments, the Indi'an titles to which 

have not been extinguished, inclrlding 

rights-of-way running through the same. 

18 U.S.C.. 1 1151 (emphasis added). 

In 15 U.S.C. § 1175, 64. St,at. 1135, Ccngress enacted 

legislation which specifically prohibited .gambling devices in 

Indian country. Congress based the jurisd.ictiona1 reach of this 

law on the Indian country definition contained tit 18 U. 3. C. 8 1151. 

It is therefore evident that had Congrese incended IGRA to apply to' 

Indian-owned allotments without regard to the exercise of 

governmental authority, it could have similarly adoptedthe Section 

1151 definition of Indian country for t.he. I=. 
h 

.- 05/23/95 16:32 3'202 219 1791 SOLIINDIAN -... . AFF'S - @I - 007/000 .- 

qww' their territory." Nontana v. United States, 450 U.S. 544, 67 L. Ed. 

2d 493, 101 S. Ct. 1245 (1981). There'is a presum]>tion in favor of 

tribal jurisdiction over all land within reservations and over 

dependent Indian communitries. See Jndian Countrv, U.S.A., Inc. v. 

Oklahoma 829 F.2d 967 (10th Cir. 19871, ~ert. denied, ~ub nom., 

Oklahoma Tax Com. v. Muscosee (Creek1 Naticrn, 487 IJ. S. 1218, 101 L. 

Ed. 2d 906, 108 S. Ct. 2870 (1988); see a190 De Ccteau v. District 

County Court. for Tenth Judicial Di~t ,, 420 U. S. 425, 43 L. Ed. 2d 

300, 95 S. Ct. 1082 (1975); California v. Cabazon Band of Mission 

Indiana, 480 U.S. 202, 94 L. Ed. 2d 244, 107 S. 33t. 1083 (1987) ; 

Blaaka.. ex rel. Yukon Flats School Diet, v. Native Villaue of 

Venetie, 856 F.2d 1384, 1390 (9th Cir. 1!188) . !:ee qenerallv F. 

Cohen, Handhook of Federal Indian Law at 229-59 it.982- ed. ) . 

The presumption of governmental power over off-re3ervation Indian 

country is doubtful when the. land in qutsstion LS not owned or 

occupied by tribal members and is far removed from the tribal 

community. & e.q. Oklahoma Tax Cornm'n v. Citizen Band 02 

Potawatomi Indians, 498 U.S. 505, 511 (1991) (u8uaL tax immunities 

apply to tribal trust land within original x'eservat ion boundaries) ; 

Oklahoma Tax Comfn v.. Sac and Fox Nation, 113 S. Ct. 1985, 1991 

(1993 ) . Indeed, in each of the foregoing cases tl~e Supreme Court 

applied the usual rules preempting state jur;iedict.ion over tribal 

activities on trust lands. Assertiion of tribal jurisdiction over 

individual restricted lots, such' as the christiarla allotment, on 

the other hand, is problematic when there is no longer a tribal 

~III#&' nexus to the lands or a political relationship with the owners of 

the 'lands. &g, F. Cohen, Bandbook of Federal Indian Lay at 346-48 

(1982 ed. (basis for tribal jurisdiction over allotments outside of 

reservations is tribal membership, or that a.llotments are clustered 

and thus pal-t of a dependent Indian community); and see also, 

Wilkinson, finerican Indians, The. and the Law at 87-93 (1987) . Congress did not simply call. far a determination of whether 'then 

land in, question is Indian country, it required a detsrminatian 

that such land is subject to a given tribe's governmental power. 

Tho Tribe' a Clai,p of Governmental Poweq 

Over the Christians Allotaent . 

The ~ribe contends that since its original jurisdlction aver the 

allotted lands has never been altered or diminished by the United 

States, it 'still retains its authority over the land and hence 

authority under IGRA. However, by the Act 'of March 7, 1873, the 

Miami Tribe ceded its remaining lands in Kansas to the United , 

States. The Tribe agreed to sell all its uniillotte6 and unoccupied 

land in ~ansas and that all Miamis who wanted to maintain tribal 

relations with the Tribe would remove to Indian co~ntry (presentday Oklahoma) . Thirty-three (33) Miamis agreed to reniain in Kansas 

on their allo~ted lands and took all necessary steps to .become U. S . citizens and henceforth their tribal relations were abolished. 17 

Stat. 3. 6321 H. R. Rep. No. 22, 47th Ccng,, 1st Seas. 
C 

05/23/95 16:33 '&?,(I2 219 1791 SOL/INDIAN AFF'S rm008/000 

-. .- 

IIW (1882) (the 33 Miamis wh~ stayed in Kansas have done all. that was 

required under the treaty to become citizens). The owners of the 

Christiana allotment likewise were not members of the Tribe. 

The Miami Tribe of Oklahoma no longer retains the exclusive use and 

benefit of the Christiana allotment since the land was allotted to 

individuals who were not members of the Tribe and because they 

severed the tribal relationship. The allotment; subsequently 

passed, through inheritance, to the heirs oE the original allottee, 

also nonmembers of the Tribe. Although the . Trikle initially had 

broad power co exclude others from the trihal land-base from which 

the ~hri'stianallotment was carved, this pc>wer was diminished when 

the land was allotted to Maria Christiana and her heir6 and severed 

when the Tribe voluntarily surrendered its authority over the land 

and moved to Oklahoma. &g Treaty with the Senec:a, Mixed Seneca 

and Shawnee, Ecc., 15 Stat. 513; and Act of arch 3, 1873, 17 .Stat. 

631. We note that while the Maria Christiana allotment has been 

considered Indian country for some purposes becausz of its history 

as an Indian allotment, there is no indication that the allotment 

is part of a dependent Indian community, or that' the Tribe has 

exercised jurisdiction over its members on the allotment. 25 

U.S.C. (5 1151; United States v. Sandoval, 231 U.S. 28, 47-48, ,34 S. 

Ct. 1, 6-7, 58 L.Ed. 107 (1913); state of Alaeka v Native Yillau~ 

of Ven~tie, R56 F.2d 1384, 1390-91 (9th Cir. 1988) : United States 

v. Azure, 801 F.2d 336, 338-39 (8th Cir.1986) .' 

On its. 'tribal land base in Oklahoma, the Miami Tribe exercises 

governmental au.thority in the areas of housi.ng and Ilelf are, descent 

and distribution, cultural development and some educ:atianprograms. 

Miami Tribe of Oklahoma Resolution No. 95-18, De.=ember 6, 1994; 

The ancestors of the current Chrietiana landowners severed 

their tribal relations, as reflected by their exclusion from the 

rolls of Indiana Miamis.and from the rolls of the Western Miamis. 

We note that the .names of these individuals. are listed on. the 

January 1, 1859 annuity roll of the .Miami Indians but not on the 

later 1891 roll taken in Oklahoma. See Annuity Pay roll for 

Western Miami Tribe of Indiana, June 12, 1891. 

Although BIA superintendence over [.he allcltment has been 

continuoug, federal supervision in this case does nc~t indicate that 

the'land-owners are recognized ae members of an Indian tribe. It 

merely evidences the continued reetricte~l status of the land 

because the restrictions are not personal but run with the land to 

successors. &g 25 U.S.C. § .372; powlintr & Miami Inv. Co. v. 

United States-, 233 U-S, 528, 58 L. Ed. 1080, 34 S. Ct. 659 (19141, 

Because the land-owners are not members of a feder.illy recognized 

tribe, the BIA has administered the land bec:ause of it0 restricted 

status, not based on the tribal status of the land-owners. 
SOL/INDIAN AFF'S QOO~/OO~ .- .-. 

~~' Miami Tribe of Oklahoma Resolution No. 95-13. There is no evidence 

that the Tribe exercises any of theae powexas over l.he distant Maria 

Chri~tiana allotment. Although Lhe Tribe' s actims in writing a 

letter to halt further trespassing on the Christi~~na allotment and 

constructing a fence on the property indicate that the Tribe 

purports to poases6 some authority over the Chrisciana allotment, 

there is no indication that the Tribe exercises zivil regulatory 

governmental powers over the Christiana allotment:, such as those 

exercised over its tribal land base in ~klahoma.~ Thus, given the 

absence of t.ribal ownership or inhabitation by t:!;ibal members of 

the Christiana allotment, the Miami Tribela governmental authority 

over its "members and . . . territoryo in Kansaa is nonexistent. 

In our opinion, the jurisdiction of the Miami Tlibe of Oklahoma 

over the Maria Christiana Miami Reserve No. 35 ia *lot establiahed. 

This is evidenced by the events and decisions wh~ch required the 

UniLed States to compemate the Tribe for the band improperly 

allotted to these individuals, the Tribef s refusal to allow the 

owners of the Christiana allotment to share in the proceeds from 

the sale of the tribal property in Kansas and the distance of the 

Christiana allotment from tribal headquartara in Oklahoma. 

Bkcauae the Christiana allotment is: 1) not owned by the Tribe or 

tribal members; 2 1 not part of a dependent Indian community; and 3) 

distant (280 miles) from the location of the tribal community in 

~wII*~,~ Oklahoma, we conclude that the Miami Tribe of Oklahoma does not 

e~ercise'governmental powers over it. It xs thu8 not Indian land 

as defined by IGRA. 

If you have any further. questions in this regard, please contact 

Troy 'Woodward at (202) 208-6526. 

Robert T. Ander.3on 

Associate SolSc itor 

Division of Indian Affaire 

At least one fede'ral court of appeals has noted that land8 

need not necessarily be located within a t.ribels reservation to 

c.onstitute "Indian landan for purposes of IGRA. Chevenne..Rivar 

Sioux Tribe v. South Dakota, 3 F.3d 273 (8th Cir. 3.993) (the lands 

in question wore Indian trust lands located outside the.boundaries 

of the Tribe's reservation). The court did not, howtrver, reach the 

question of whether the lands were "Indian landsh as defined by 

IGRA, since thexe were material disputed -£acts before the district 

court.