Earl Howe III, Chairman 

Ponca Tribe of Oklahoma 

20 White Eagle Drive 

Ponca City, OK 75601 

Re: Ponca Tribe of Oklahoma - Indian Lands Opinion 

Dear Chairman Howe: 

This letter responds to your September 9, 2014 request for a legal opinion on whether 

newly acquired lands, Trust Parcel #B-813-2011-2540, meets or will meet one of the Indian 

Gaming Regulatory Act exceptions to the prohibition of gaming on ttust lands acquired after 

1988. 

To assist with our analysis the Tribe provided the following materials: (1) the complaint 

filed in the Western District of Oklahoma on December 29, 2006; (2) the joint stipulation of 

settlement agreement and proposed order filed in the Western District of Oklahoma on October 

15, 201 O; and (3) the order regarding joint stipulation of settlement filed in the Western District 

of Oklahoma on October 20. 2010. 

Further information was required to perform a thorough analysis. We requested 

documentation from the Bureau oflndian Affairs Pawnee Agency in Pawnee, Oklahoma. 

After review, it is my opinion that Trust Parcel #B-813-2011-2540 is eligible for gaming 

pursuant to IGRA. The parcel is Indian lands as defined by IGRA, is within the Tribe's 

jmisdiction. and meets IGRA's settlement of a land claim exception to the general prohibition 

against gaming on land taken into ttust after October 17. 1988. 

Background 

In 2006 the Ponca Tribe of Oklahoma filed a lawsuit2 against the United States in the 

U.S. District Court for the Western District of Oklahoma. The purpose of litigation was to obtain 

an accounting of the federal government's management of Tribal trust assets, including property, 

under authorities such as: treaties, statutes, regulations, orders, or other directives. The suit 

invoked a right to an accounting as a beneficiary of the U.S.'s trusteeship.3 

1 25 U.S.C. § 2719(b)(l)(B)(i). The opinion was forwarded to the Solicitor's office and concurs with the opinion. 

Letter from Eric N. Shepard, Associate Solicitor - Indian Affairs, to Michael Hoenig, General Counsel - NIGC 

(January 19, 2017)(on file at NIGC). 2 Complaint, Ponca Tribe of Indians of Oklahoma v. United States, No. 06-01439 (W.D. Okla. Dec. 29, 2006). 3 Id1 I. 

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1 049 C Street NW, Mail Stop # 1621 Washington, DC 20240 Tel: 202.632.7003 Fax: 20'2.632.7066 

REGIONAL OFFICES Po1 tlnnd, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa, OK; Oklahoma City, OK 

WWW.NIGC.GOV 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 2of12 

The Tribe asse1ted it never received an accetmting of its trust assets held by the United 

States, and therefore could not state the damages incurred due to the federal government's 

mismanagement or waste of the Tribe's trust assets.4 The failure of accounting included an 

accounting for lands that may not have been allotted under Congress's application of prior 

allotment acts to the Ponca Tribe,

5 and title which may have remained with the Tribe.t'i The Tribe 

also asserted a diminution or loss of its property through p~llution. 7 The Tribe's causes of action 

included a Fifth Amendment taking claim under the United States Constitution for deprivation of 

its interests in its trust assets, which include "interests in lands, resources and funds that are held, 

and managed by the USA, or have been subject to the USA's trusteeship in the relatively recent 

past. Those interests were obtained variously by treaty, other agreements, or by congressional or 

administrative action."8 The Tribe based its claims

9 w1der the Administrative Procedures Act10 

and the American Indian Trust Fund Management Reform Act of 1994. 11 The Tribe also 

requested the court "order the USA to make whole, restore, replenish, reconstitute or repair the 

trust property wasted, lost or unaccounted for when the required accounting is completed."12 

On October 20, 2010, the district court adopted the Joint Stipulation of Settlement 

submitted by the parties. 13 The Order states that it is the: 

4 Jd ,2. 

final settlement of all claims, causes of action, obligations, or liabilities that 

Plaintiff has asserted or could have asserted ... either in any administrative 

action or in a case in the United States District Courts or the United States Court 

of Federal Claims, relating in any way to any of the following issues: 

b. Defendants' alleged mismanagement of Plaintiffs non-monetary trust assets 

or resources, including but not limited to any claim or allegation that: 

i. Defendants failed to make Plaintiffs non-monetary trust assets or 

resources productive; 

ii. Defendants failed to obtain an appropriate return on, or appropriate 

consideration for, Plaintiffs non-monetary trust assets or resources; 

111. Defendants failed to record or collect, fully or timely, or at all, rents, 

fees, or royalties, or other payments for the transfer; sale, encumbrance, or 

use of Plaintiff's non-monetary trust assets or resources; 

s See 33 Stat 189, 217-281, Sec. 8 (I 904). 6 Complaint, supra note 2, , 32. 

7 Id. , 33. 

8 Id. 152. 

9 Id. ,, 54-83. 

IO 5 u.s.c. § 702. 11 Pub. Law No. 103-412, 108 Stat. 4239 (codified in scattered sections of25 U.S.C.). 12 Complaint, supra note 2, at 20. 

13 Order RegardLng Joint Stipulation of Settlement, Ponca Tribe oflndians of Oklahoma v. United States, No. 06-

1439 (W.D. Okla. Oct. 20, 2010). 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 3of12 

iv. Defendants failed to preserve, protect, safeguard, or maintain 

Plaintiffs non-monetary trust assets or resources; 

v. Defendants permitted the misuse or overuse of Plaintiff's nonmonetary 

trust assets or resources; 

vi. Defendants failed to manage Plaintiff's non-monetary trust assets or 

resources appropriately; 

vii. Defendants failed to enforce the terms of any permits, leases, or 

contracts for the transfer, sale, encumbrance, or use of Plaintiffs nonmonetary assets or resources; 

viii. Defendants failed to prevent trespass on Plaintiffs non-monetary trust 

assets or resources; 

x. Defendants transferred, sold, encumbered, allotted, managed, or used 

Plaintiff's non-monetary trust assets or resources (including but not limited 

to any of Plaintiffs lands or minerals), improperly or inappropriately; 

14 

In the settlement agreement the U.S. agreed to pay $1,030,000 to the Tribe. 15 Of that, 

$345,000.00 was to be held in trust with the U.S. Treasury for the sole purpose of purchasing 

land.16 The remaining $685,000.00 could be expended at the Tribe's discretion.17 

Utilizing the judgement award from the 2010 settlement, the Tribe purchased 100.040 

acres of land in Noble County, Oklahoma, on January 16, 2014.18 The U.S. Department of 

Interior, Bureau of Indian Affairs, Land Titles and Records Office (L TRO) recorded the deed, 

therefore taking the land into trust on April 4, 2014. 19 The LTRO recognizes the land purchased 

under document nwnber 039784.2° This is the land on which the Tribe wishes to conduct 

gaming. 

14 Id. at 1-3. 

IS Id. at 4. 

16 Id. at 11 . 17 Id at 10. 13 U.S. Department of the Interior, Bureau oflndian Affairs, Title Status Report 1 (2014); U.S. Department of the 

Interior, Bureau oflndian Affairs, Tract History Report l (2014); Tribal Resolution, Ponca Tribe of Oklahoma, 

Resolution No. 32-05032011(May3, 2011).; Dept. oflnterior Public Voucher for Purchases and Services Other 

Thank Personal, Purchase of Land (May 4, 2011 ); Bureau of Indian Affairs Transaction Sheet, Land Purchase (May 

9, 2011). 

19 U.S. Department of the Interior, Bureau of Indian Affairs, Land Titles and Records Office - Southern Plains, 

Deed (2014). 

20 Id 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 4of12 

Applicable Law 

IGRA permits an Indian tribe to "engage in, or license and regulate, gaming on Indian 

lands within such tribe's jurisdiction."21 The Act defines Indian lands to include land held in oust 

by the United States for a tribe over which that tribe exercises government authority.22 

NIGC regulations further clarify the definition of"Tndian lands," as: 

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

(b) Land over which an Indian tribe exercises govenunental power and 

that is either -

(I) 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.23 

However, IGRA also prohibits gaming on lands acquired in trust after October 17, 1988, 

unless the land meets one of the statutory exceptions to the geneml prohibition.24 Relevant to our 

discussion here, IGRA excepts land taken into trust as part of a settlement of a land claim from 

the prohibition.25 

In 2008, the Depa1tment of Interior developed regulations articulating standards for 

interpreting the exceptions to the general prohibition on after-acquired trust lands.26 For the 

settlement of a land claim exception, gaming may occur if the land at issue is: 

(b) Acquired under a settlement of a land claim that: 

(1) Is executed by the patties, which includes the United States, 

returns to the tribe all or part of the land claimed by the tribe, 

and resolves or extinguishes with finality the claims regarding 

the returned land.27 

21 25 U.S.C. § 2710(b)(l). 

22 25 U.S.C. § 2703(4). 

23 25 C.F.R. § 502.12. 

24 25 u.s.c. § 2719. 

25 25 u.s.c. § 2719(b)(l)(B)(i). 

26 Gaming on Trust Lands Acquired After October 17, 1988; Final Rule, 73 Fed. Reg. 29354-29380 (May 20, 

2008)(codified at 25 C.F.R. part 292). 27 25 C.F.R. § 292.5(b)(l). 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 5of12 

The preamble to the final rule provides "when a particular land claim otherwise meets the 

definition, whether for example the legal basis involves the impairment of title or other real 

property interest such as a lease, and the relief includes the return of land, conveyance of 

replacement land, or money for the purchase of other real property, the land claim may meet the 

requirements of this section as long as it is either subject to Congressional enactment or returns 

to the tribe all of the lands claimed by the tribe.28 

Interior's regulations also defined land claim: 

any claim by a tribe conceming the impairment of title or other real property 

interest or loss of possession that 

(1) 

(2) 

(3) 

Analysis 

Arises under the United States Constitution, FederaJ common law, 

Federal statute or treaty; 

Is in conflict with the right, or title or other real property interest 

claimed by an individual or entity (private, public or governmental); 

and 

Either accrued on or before October 17, 1988, or involves land held in 

trust or restricted fee for the tribe prior to October 17, 1988.29 

To determine if Trust Parcel #B-813-2011-2540 is land eligible for gaming under IGRA, 

we first determine ifit is Indian lands within the definition ofIGRA. If it is, and because the 

parcel was taken into trust after the enactment ofIGRA, we then must determine whether one of 

the exceptions to IGRA's after-acquired prohibition applies. 

Indian Lands 

I Trust Parcel #B-8 I 3-20 I 1-2540 Qualifies as "Indian lands" under IGRA 

IGRA defines Indian lands to include trust land over which a tribe exercises 

governmental power. 30 In other words, to determine if land qualifies as Indian lands we ask: 

whether title to the land is held in trust by the Unites States for the benefit of the Tribe; and if so 

whether the Tribe exercises governmental power over the land. 31 

2

H 73 Fed. Reg. 29354, 29359 (May 20, 2008)(addressing a comment suggesting that specific relief must be 

included in a claim to fall within the exception, the Department stated, "the regulations cannot dictate the terms ofa 

settlement or the relief a tribe may seek"). 29 25 C.F.R. § 292.2. 30 25 U.S.C. § 2703(4). 

31 25 U.S.C. § 2703(4)(8); 25 C.F.R. § 502.12. 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 6of12 

A. Trust Parcel #B-813-2011-2540 is trust land 

The Ponca parcel is held in trust by the U.S. for the benefit of the Tribe32 and was taken 

into trust by the Department of Interior April 4, 2014. 33 

B. The Tribe exercises governmental power over Trust Parcel #B-813-2011-2540 

For trust land to be considered Indian lands under IGRA, we next examine whether the 

Tribe exercises governmental power over the land.34 But before doing so, a tribe must possess 

jw·isdiction over the land.35 

1. Jurisdiction 

Tribes are presumed to have jurisdiction over their members and lands. The United States 

Supreme Court, in Merrion v. Jicarilla Apache Tribe, held that Indian tribes are "invested with 

the right of self-government and jurisdiction over the persons and property within the limits of 

the territory they occupy, except so far as that jurisdiction has been restrained and abridged by 

treaty or act of Congress. "36 There are no treaties or statutes applicable here that would limit the 

Tribe's jurisdiction. 

32 U.S. Department of the Interior, Bureau oflndian Affairs, Land Titles and Records Office - Southern Plains, 

Deed (2014). 

·

13 U.S. Deparnnent of the Interior, Bureau oflndian Affairs, Title Status Report I (2014); U.S. Department of the 

Interior, Bureau oflndian Affairs, Tract History Report 1 (2014). 34 25 U.S.C. § 2703(4)(B); 25 C.F.R. § 502.12(b). 

Js See 25 U.S.C. §§ 2710(b)(l), 2710(d)(3)(A)( " an Indian tribe may engage in, or license and regulate class II [and 

IH] gaming on lndian lands within such tribe's jurisdiction"); 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 Indian Tribe, 19 F.3d 685, 70 l-703 

(1st Cir. 1994), superseded by statute, 25 US.C. § 1708(b), as stated in Narragansett Indian Tribe v. National 

Indian Gaming Commission, 158 F.3d 1335 (D.C. Cir. l998) ("In addition to having jurisdiction, a tribe must 

exercise govenunental power in order to trigger [IGRA]"); Miami Tribe of Oklahoma v. United Stares, 5 F. Supp. 2d 

1213, 1217-18 (D. Kan. 1998) (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) (a tribe must first have jurisdiction in order 

to exercise govenunental power for purposes of25 U.S.C. § 2703(4)). 36 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 140 (1982); see also United States v. Wheeler, 435 U.S. 313, 

323 (1978); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987). 
Letter to Chai1man Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 7of12 

Moreover, it is well established that a tribe retains primary criminal jurisdiction over the 

land it inhabits if the land qualifies as " Indian country,"

37 and trust land, such as the Parcel at 

issue here, qualifies as one type of Indian country.38 Because neither IGRA nor the NIGC 

regulations spells out what constitutes a tribe's jurisdiction over its lands, the NIGC has 

frequently used the "Indian country" statutory test, codified at 18 U. S.C. § 1151, as guidance 

when evaluating whether a tribe has jurisdiction over its Indian lands under IGRA.39 

Accordingly, because the land is trust land, the Tribe possesses jurisdiction over 

the Parcel and, therefore, has jurisdiction to exercise governmental power over the Parcel, as 

required by IGRA's Indian lands' definition.40 

2. Governmental Power 

Having determined the Tribe has jurisdiction over the parcel, we now look to find if it 

exercises governmental power over the land.41 A tribe may exercise governmental power in a 

variety of manners. For this reason, the NIGC has not formulated a uniform definition of the 

"exercise of governmental power," but instead decides whether it is present on a case-by-case 

analysis, based upon the circumstances.42 

Governmental power may involve "the presence of concrete manifestations of ... 

authority."43 Examples of governmental power include the establishment of a housing authority, 

administration of health care programs. job training, public safety, conservation, and other 

governmental programs.

44 

37 "Indian coUJ"ltry" is a statutory jurisdictional test for determining federal criminal jurisdiction over Indian lands, 

and is defined in 18 U.S.C. § 1151 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." 

38 See United States v. Roberts, t85 F.3d 1125, 1131 (10th Cir. 1999) ("'[r]eservation's status is not dispositive and 

lands owned by the federal government in trust for Indian tribes are Indian Country pursuant to 18 U.S.C. § 1151 "); 

see also Cohen, Handbook of Federal Indian Law, § 3.04[2][cJ, 192-93 (201 2) (noting that the Supreme Court has 

held " that tribal trust land is the equivalent of a reservation and thus Indian Country"). 

39 See, e.g., NIGC's Pinoleville Band of Pomo Indians Opinion, Sept. 24, 2015, pp. 11-12; NIGC's Quapaw Tribe of 

Indians of Oklahoma Opinion, Nov. 21 , 2014, p. 6; NlGC's Table Mountain Rancheria Opinion, Sept. 6, 2006, pp. 

4-5. 

40 25 U.S.C. §§ 2710(b)(I), 2710(d)(l)(A)(i), 2710(d)(3)(A). 

41 See 25 U.S.C. § 2703( 4)(B); 25 C.F.R. § 502.12(b)(l ); see also, Narragansell lndian Tribe, 19 F.3d at 703. 

42 National Indian Gaming Commission: Definitions under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12382, 

12388 (1992). . 43 Narragansett Indian Tribe, 19 F.3d at 70 I, 703 (First Circuit guidance on finding an exercise of governmental 

power). 

a4 Id. 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 8of12 

The Tribe provided several examples of its exercise of governmental power over Trust 

Parcel #B-813-2011-2540: 1) the Tribe re-fenced the land; 2) the Tribe entered into a 

cooperative agreement/declaration with the City of Perry, Oklahoma, in support of the Tribe's 

jurisdiction over the land; 3) the state of Oklahoma requested and entered into a cooperative 

agreement with the Tribe so that the two governments may work cooperatively regarding bum 

bans.45 

Based on the above examples the Tribe manifests its governmental authority on the land, 

and exercises governmental power over Trust Parcel #B-813-2011-2540. Accordingly, the trust 

lands, comprising Trust Parcel #B-813-2011-2540, qualify as Indian lands within the meaning of 

IGRA and NIGC regulations.46 

Now that the land is established as Indian landv, the next step is to determine if the land 

is eligible for gaming under IGRA. 

Exception to General Prohibition on Acquired Lands after October 17. 1988 

As discussed above, IGRA frohibits gaming on newly acquired lands after October 17, 

1988, unless an exception applies.4 Although the Tribe's land is located in Oklahoma, the parcel 

does not fall within the boundaries of the Tribe's former reservation48 nor is it contiguous to 

other land held in trust for the Tribe.

49 I therefore look to the exceptions to the prohibitionspecifically, the settlement of a land claim exception. so 

I. Trust Parcel #B-813-2011-2540 Satisfies IGRA's Settlement of a Land Claim 

Exception 

IGRA permits a tribe to game on land taken into trust after October 17, 1988, if the land 

was taken into trust as part of the settlement of a land claim. 51 This requires the settlement: 1) be 

executed by the parties, which includes the United States, 2) retwns to the tribe all or part of the 

land claimed br the tribe, and 3) resolves or extinguishes with finality the claims regarding the 

returned land. 5 Trust Parcel #B-813-2011-2540 was taken into trust as part of a settlement of a 

land claim and meets IGRA's exception. 

45 Letter from Deanna Hartley-Kelso, Legal Counsel to the Ponca Tribe of Indians of Oklahoma, to Mar)r ModrichAlvarado, NIGC staff attorney (July 27, 2016)(on file with the NIGC). 46 25 U.S.C. § 2703(4)(B); 25 C.F.R. § 502.12. 

41 25 U.S.C. § 2719. o1-s Id. 

49 Id. 50 25 U.S.C. §2719(b)(a)(B)(i). 51 25 U.S.C. § 2719(b)(l)(B)(i). 51 25 C.F.R. § 292.5(b)(l). 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 9of12 

A. Land Claim 

Preliminarily, we must determine if the Tribe's claim is a land claim under IGRA. 

Interior regulations define land claim as, relevant to our discussion here, "any claim by a tribe 

concerning the impairment of title or other real property interest or loss of possession" that 

"arises under ... federal common law," is "in conflict" with the claimed interest, and either 

"accrued on or before" IGRA's enactment. 53 

The Tribe's 2006 complaint bases its request for an accounting of its trust assets, 

including non-monetary assets, on, among other things, a loss of property or use of property54 

and loss of the Tribe's ability to use or benefit from the natural resources appurtenant to the 

lands. 55 The claim is thus based on loss of possession and impairment of title and thereby 

satisfies the first pron~ of the Interior's land clairn definition. The Tribe's claims arise under 

federal common law,5 federal statutes, specifically the Administrative Procedures Act and the 

American Indian Trust Fund Management Reform Act of 1994,57 and the U.S. Constitution;58 

thus satisfying the second requirement of the definition of land claim. The Tribe claims the loss 

of prope1ty conflicts with their treaty rights, rights of possession, and rights to an accounting. 59 

And finally, the claims - some based on Congress's 1904 decision to allot Ponca lands60 and 

others based on lands acquired through treaty or treaty litigation61- accrued well before IGRA's 

enactment. Accordingly, Ponca's 2006 complaint meets the regulatory definition of a land 

claim. 

53 25 C.F.R. § 292.2. 

54 Complaint, supra note 2, ,, 32, 33, 52. 

SS Id 

56 /d.1MJ 54-69; See also, Otoe-Missouria Tribe of Oklahoma v. Kempthome, No. CIV-06-1436-C, 2008 WL 

5205191, at *5 (W.D. Okla. Dec. IO, 2008) abrogated on other grounds by Gilmore v. Weatherford, 694 F.3d 1160 

(lOth Cir. 2012)(where Tribe demanded accounting of certain non-monetary assets held by the U.S., the court said, 

"arguments regarding the lack ofa discrete duty lacks merit .. the obligations of the United States to the Indian 

tribes in general, and Plaintiff in particular, are well established. lt is clear that the United States acts as a trustee for 

Plaintiff and that at least some of the corpus of the trust is non-monetary. Whether the duty to account for the nonmonetary assets held in trust arises from statute or common law, it does exist"). 

57 Complaint, supra note 2, 1154-83. 58 Id. 152. 59 id. 

60 ld.1MJ 31-32. 61 id1I,17, 18, 19. 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 10of12 

B. 20 I 0 Settlement Order is an I GRA Settlement of a Land Claim 

For Trust Parcel #B-813-2011-2540 to be eligible for gaming under the settlement of a 

land claim exception it must have been taken into trust as part of a land claim settlement.62 This 

requires the land be acquired under a land claim 1) executed by the parties, which includes the 

United States, 2) that returns to the tribe all or part of the land claimed by the tribe, and 3) that 

resolves or extinguishes with finality the claims regarding the returned land.63 The Ponca's 2006 

complaint set forth a land claim. In 2010, the Westem U.S. District Court of Oklahoma issued 

an order settling Ponca's claims against the United States. We must dete1mine if this 2010 order 

meets the regulatory requirements. 

DO I's first criterion states that settlement of a land claim must be executed by the parties, 

including the United States.64 In this instance, both parties, the Tribe and the United States, 

submitted a joint stipulation of settlement and proposed order to the court. 65 Both parties 

executed the agreement, thereby consenting to its teims. The court then issued its Order 

Regarding Joint Stipulation of Settlement, approving and entering the parties' joint stipulation.66 

The " ... Joint Stipulation of Settlement is the result of compromise and settlement between the 

parties."67 The Ponca settlement meets the first requirement. 

The second condition requires that land must be returned to the tribe. 68 The Department's 

preamble to its final rule provides guidance, as n~ that a settlement of a land claim 

exception does not necessarily require an award of land6 because ''the regulations cannot dictate 

... the relief a tribe may seek."70 This position aligns with the court in Wyandotte Nation v. Nat 'l. 

Indian Gaming Comm 'n. 

71 There, the court admonished the NTGC for focusing its lands claim 

analysis - made before Interior provided guidance with its regulations - on "the remedy sought 

by a tribe rather than the substantive claim itself."72 In Wyandotte, the Tribe purchased the land 

in question with funds obtained from an Indian Claims Commission settlement, which the court 

found to meet IGRA's settlement of a land claim exception.73 

62 25 u.s.c. § 2719(b)(l)(b)(i). 63 25 C.F.R. § 292.S(b)(l). 64 25 C.F.R. § 292.5(b)(l). 65 Order Regarding Joint Stipulation of Settlement, supra note 13. 

66 Id. 

67 Id. at 1. 

68 25 C.F.R. § 292.S(b)(l). 69 73 Fed. Reg. 29354, 29359 (May 20, 2008)((addressing a suggestion that a settlement require a return of or 

acquisition of land to which a tribe has a historical connection: "the regulations cannot dictate the tenns of a 

settlement") and (addressing a comment suggesting that specific relief must be included in a claim to fall within the 

exception, the Department stated, ''the regulations carmot dictate the tenns of a settlement")). 70 Id. (addressing a c01mnent suggesting that specific relief must be included in a claim to fall within the exception). 71 437 F. Supp. 2d 1193 (D. Kan. 2006). 72 Id. at 1209 ("The plain meaning of 'land claim' does not limit such claim to one for the return ofland, but, rather, 

includes an assertion of an existing right to the land." Id. at 1208.). 

73 Id at 1196. 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 11of12 

Similar to the tribe in Wyandotte, here, the Ponca 2010 settlement order may not have 

supplied specific lands to the Tribe, but it indeed provided $345,000 to be used in the purchase 

of land to replace the loss of lands asserted in the clairn.74 In total the court ordered the U.S. to 

pay over one million dollars to settle "all claims, causes of action, obligations, or liabilities that 

Plaintiff has asserted or could have asserted."75 Under the settlement terms the United States paid 

the Tribe one million thirty thousand dollars ($1 ,030,000.00).76 Of this award $345,000 was 

mandated to be used for the purchase ofland and the remaining award ($685,000) to be used at 

the Tribe's discretion. 77 These claims include all the iterations of loss of land the Tribe 

asserted, 78 including claims that, "Defendants transferred, sold, encumbered, allotted, managed, 

or used Plaintiff's non-monetary trust assets or resomces (including but not limited to any of 

Plaintiffs lands or minerals), improperly or inappropriately."79 This settlement was intended to 

compensate the tribe for its loss of land, in essence, returning the land. Thereby, the Ponca 

settlement meets the regulation's second requirement. 

The final criterion is that the settlement resolves or extinguishes with finality the claims 

regarding the returned land. 80 The 2010 settlement order is a "full, complete, and final settlement 

of aJJ claims, causes of action, obligations, or liabilities [the Tribe] has asserted or could have 

asserted. "

81 As stated above, the order outlines with specificity all the land claims or loss of 

property the parties settled. 82 In consideration for the payment of money, Tribe releases the U.S. 

from "all claims, causes of action, obligations, or liabilities [the Tribe] has asserted or could have 

asserted" as set forth earlier in the order, including all land claims.

83 Further, the order 

encompasses the parties' agreement to dismiss the case.84 The terms of the 2010 settlement make 

clear that it is a resolution and extinguishment with finality of all the Tribe's land claims. 

Having met all the above conditions, the Tribe's 2010 settlement order is a settlement of 

a land claim under IGRA. Thus, the purchase of Trust Parcel #B-813-2011-2540 withjudgment 

funds from this settlement qualifies the parcel as eligible for gaming under IGRA's settlement of 

a land claim exception.85 

74 Order Regarding Joint Stipulation of Settlement, supra note l 3, at 11-l 2. 

75 Id. at 1-2. 

76 Id. 12. 77 Id. 9W 5. 

78 Id. at 2-4. 79 Id. at 4. 80 25 C.F.R. § 292.5(b)(l). 

81 Order Regarding Joint Stipulation of Settlement, supra note 13, at 1-2. 82 Id. at 2-4. 83 Id. at 4-5. 84 Id. at 12-13. 85 25 U.S.C. § 2719 (b)(l)(i). 
Letter to Chairman Howe 

Re: Ponca Tribe of Okla. - ILO 

January 25, 2017 

Page 12of12 

Conclusion 

For the above reasons, it is my opinion that Trust Parcel #B-813-2011-2540 is Indian 

lands within the Tribe's jurisdiction and qualifies for the settlement of a land claim exception to 

the general prohibition against gaming on land taken into trust after October 17, 1988. 

Please be advised this legal opinion is advisory in nature only and that it may be 

superseded, reversed, revised, or reconsidered by a subsequent General Counsel at a later 

date. Moreover, this advisory legal opinion is not binding upon the NIGC Chainnan, who may 

opt to exercise his prosecutorial discretion to disregard the opinion, or the NIGC Commission, 

which is free to disagree with the opinion in any action that comes before it. In sum, this 

advisory legal opinion does not constitute agency action or final agency action for purposes of 

review in federal district court. 

If you have any further questions, you may contact Mary Modrich-Alvarado, Staff 

Attorney, at (202) 632-7003. 

Sincerely, 

Michael Hoenig 

General Counsel