May 1 9,2008 

Buford L. Roh, Tribal Chairman 

Poarch Band of Creek Incbans 

581 1 Jack Springs Road 

Atmorc, AL 36.502 

Dear Chhn Rolin: 

The Poarch Rand of Creek Indians (Band or Tribe) is conducting gaming at the TaUapoosa 

Entertment Center, which is located near the city of Montgomery, Alabama, on land 

taken into trust on March 25, 1995 cl'allapoosa Site). Thank you for your extraordinary 

patience as our office revie~vcd the question of the status of the Poarch Band's TaIlapoosa 

Site. I recope that this review was dtsruptive to the Tribe financially and for that J 

apologixc. However, I am happy to inform you that our review is concluded and that we 

continue to consider thc Tribe's Tallapoosa site to be Indian lands on whch the Tribe may 

conduct gaming. 

I recope that &IS decision, coming from me and at this time, is a bit unusual. However, 

the Department of the Interior is on the cusp of issuing its regulations interpreting parts of 

25 U.S.C. $271 9. Those regulations should provide extremely helpful guidancc far the 

Commission in the fume as it reviews the status of lands on whch ebes hope to conduct 

gaming. Aslung the Tribe to start over in light of the Department's regulations, however, 

wouId be sipficantly unfair and as such, I am persuaded that the Poarch Rand, which has 

worked tirelessIy over the past several ycars to assist us in our rcvicw of the *I+allapoosa site, 

should have our views now. Further, I am persuaded that, to the extent my cendusions 

might differ from the Department's regulations, this decision wiU not open thc Indian 

Gaming Rcplatr~ry Act (IGRA) to a number of far rangng and unexpected interpretations. 

Our review was prompted by a Noveinber 20,2003, letter from John ParkJr., Assistant 

Attornev General far thc State of Alabama, questioning whcrhcr the Band could lawfully 

conduct gaming on thc Tallapoosa Site. We rex-fewed numerous submissions from the tribe 

and thc record supporting the Rand's 1984 recognition by the Unitcd Statcs through the 

federal acknowlcctgernent process. As a result of our extensive revicw of the Tribc's 

submissions and the Deyartment of the Interior's records, 1 conclude that the TalIapoosa 

Site is part of "the restoration of lands for an Indian tribe restored to Federal recoption" 

witkin the meaning of the IC'rRrZ, 25 U.S.C. $ 271 9(b)(I)(B) (iir), and that gaming on the land 

is therefore pcrmissll~le. 

NAllONAL HEADQUARTER5 1441 C 51 NW. SuitP 9100, Wash~ngtnn. DC 2RW5 Tel 202 632 7003 Fax 1702 632 7066 WWW.NlGC.GOV 

REGIONAL OFFICE5 Portland OR, SacramenPo. CA, Phoenix. ,42, St Pacl. MN.Tulsa, OK 
The Unircd States recognized the l'oarch Band of Creek Indians in June 1984.49 Fed. Reg. 

24083 oune 11, 1984). At thc time, thc Band had no land base. Shortly after recoption, the 

Department of the Interior took into trust eight small parcels that together total some 229'/z 

acres and proclaimed them to be resenation land. 50 Fed. Reg. 45502 (Apr. 18, 1985). 

These parccls serve basic tribal functions - a school house, powwow grounds, a tribal 

addstration building, a gymnasium, a fire station, two small sites for tribal housing, and 

pasture lands for a tribal farm. Affidavit of Eddtc Tullrs, 1 8 (Mar. 25,2004). 

Given the location of these eight parcels, there are, as a practical matter, two reservations. 

*l%e larger consists of seven of the cight parcels - approximately 193% acres - and is located 

near Atmore, Escambia County, in the southwestern part of Alabama, northeast of Mobile. 

The smaller reservation consists of approximately 36 acres and is located in the central part 

of the state, near Wetumpka, Elmore County, just northeast of Montgomery and more than 

100 miles away from Atmore. As with so much of the geography relevant here, this is best 

conveyed visually. In Figme 1, below, the Amore reservation Iand appears in a cluster as 

parcels 1,2a, 2b, 3, 7, 8, and 9, wMe the Wetumpka reservation land appears as parcel 4 

Page 2 of 27 
' -4 , 

-.. 

ROYCE Al 

Figure i : Poarch Band trust lands (Source: Poarch Band surveys) 

On November 14, 1988, four years after recognition, the Tallapoosa Site, containing just 

under 13 acres, was donated to the Band in fee, in part because Creek burial mounds are 

located here. Tne Tallapoosa Site is located approximately 12 miles from the Wetumph 

reservation and appears on Figure 1 as tract 17. The legal description of the hd is: . . 

Commence at the SW comer of Section 27, T-17-N, R-19-E, Montgomeq 

County, Alabama and run EAST, 4340.49 feet; thence NORTEI, 1806.29 feet 

to a point on existing fence line and being the Point of Beginning; Thence 
continue along said fence line 589" 13'03"E, 136.34 feet; 'l'hence continue 

along said fence he S23"49'20"E, 62.92 feet; Thencc continue along sxid 

fence he N69"23'34"E, 219.92 feet to an existing iron pln; Thence continue 

along said fence line Nl7"23'26'W, 968.84 feet to an existing iron pin; 

Thence leaving said fence line N18"23YS"W, 503.62 feet to a point on the 

southeast edge of the Tallapoosa River; Thence along said edge 

S43O24'1 G"W, 61 8.01 feet; Thence leaving said edge S39O49'22"E, 150.00 

feet to a point on an eusting fence he; Thence along said fence line 

S26°J7'5VR, 374.05 feet; Thence continue along said fence line 

S3!J039'24"E, 198.60 feet; Thence continue along said fence he 

S17"38'017'E, 386.15 feet to the Point of Bepmg. All lying- in the E 1 /2 

Section 27, T-17-N, R-19-E, Montgomery County, Alabama, and containing 

12.86 acres more or less. 

Warranty Deed, Parccl 17 (Mar. 23, 1995). 

OnJuly 21, 7989, the Rand wrote to the Area Director of the Bureau of Inhan Aff&s 

askmg that the land be placed into trust. On March 23, 1995, after a deIay of nearly six years, 

BW's liastcrn Area Office took the land mto trust. Warranty Deed, Parcel 17 (M&. 23, 

1995). 

LEGAL ANALYSIS 

I. Indian lands, generally. 

IGkI permits gaming only on Indian lands, 25 U.S.C. Fjs 271 0@)(1), (2); 2710(d) (I), (Z), 

whch it dcfincs as: 

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

Q3) any lands title to which is either held in trust by the United States for the 

benefit of any Indian .tribe or indimdual or held by any Indmn tribe ox 

inhvidual subject to restriction by the United States against alienation and 

over which an Indian tnbe exercises governmental power. 

25 U.S.C. 5 2703(4). The Natlonal Indian Gaming Commission's implementing replatiofis 

clmfy : 

Tnchn lands means: 

(a) Land within the lirmts of an Indian reservauon; or 

(b) I~nd over wh~ch an In&an tribe exercises governmental power and 

that is eithcr - 

(1) Held in trust by the United States for the benefir of any Inchan 

tribe or inchvidual; ot 

(2) Held by an Indian tnbe or inclvidual sublect to restriction by rhe 

United States against ahenation. 
25 C.F.R. 5 502.22. I concIude that the Tallapoosa Site is "Indian lands" under these 

definitions. It is trust land over whck thc Rand exercises governmental power. 

k Trust land 

The TaIlapoosa Site is, without question, trust land. rlpin, the Band received thc land m fee 

as a gift in November 1988, and the BTA fmshed its fee-to-trust acquisition in March 1995. 

Warmnty Deed, Parcel 17 (Mar. 23,1995) 

B. Governmental power 

The Rand also exercises governmental power over the 'I'allaponsa Site. ?'his conclusion, 

however, is not as straightforward as simpIy noting that the United States holds the Site in 

trust for the Band. In order to exercise govcrnmenml powet aver its land, the Band, Iike any 

other government, must first have jurisdiction to do so. See, ce,. , Rhade Jshnd v. Nawagwn~ett 

Izdidn TP;;be, 19 F. 3d 685,701-703 (1" CC. 19941, re&. dtnied, 513 U.S. 919 (19941, sqcr~eded Ly

staf71te on other~pknndr, Navagansettt Jn&n T~be v. Natio~a/ Indian Gaming Commi~.n'o~r, 1 5 8 F.3d 

1335 P.C. Cir. 1998) (in addition to having jurisdrction, a tribe must exercise governmental 

power in order to triger VGRA]); State ex. re/ Gra~x.~ 7). United .rtde.r, 86 F. Supp 2d 1094 QJ. 

Kan. 2000), @d u7d mm~nded, Kaasus 11. tIJnifeB State-r, 243 I;. 3d 123 3 (I Oth Ck. 2003); Mzmi 

Tnh o/'0kiakoma a CTnifedState~, 5 P. Supp. 2d 1213, 1217-18 (D. Kan. 1998) (a tribe must 

have jurislction in order to be able to exercise governmental power); Miami ?%be of 

Okhhoma i~. UnifedStafes, 927 P. Supp. 1419, 1423 @. Kan. 1996) (a tribe must first have 

jurisdiction in osdcr to exercise governmental power for purposes of 25 U.S.C. TJ 270314)). 

1. Jurisdiction 

Tribes are presumed to possess jurisdiction within '"~ndan Countsy." So~th Dakota a Yankfon 

SiouU~ T~be, 522 U.S. 329 (1 998). Tndian tribes are "mvested with the right of sclf-government 

and jurisdiction over the persons and property withtn the knits of the territory they occupy, 

except so fxr as that jurisdction has been restrained and abridged by treaq or act of 

Congress." Menion 11. Jicad/d Apache Tribe, 455 U.S. 1 30, 140 (1 982). Moreover, "Indmn 

County" rcfers to land that is subject to she "primary jurisdiction ... [ofE the Federal 

Government and the Indian tribe inhabitmg it."' Ahka u. Native Vikqe of Ver~c~ie 7'ribal Go?) 7, 

522 U.S. 520,527 n.1 (1998). Thus, if the Tallapnosa Site is Indian ~ountry, the Band 

possesses )mis&cuon to exercise governmental authority there. 

Whether land is Indian Countq- may be determined by reference to statutc. Though there 

have bcen severd dcfinjtions of Indan Counq over the long histon, of federal Indtan law, 

the definition accepted and commonTy used today is: 

(a) all land with the limits of any Inhan reservation.. ., 

@) all dependent In&m communities. . . , and 

(c) all Indian allotments , the Tndian titles to which have not been 

csnnpshcd.. .. 

I 8 U.S.C. $ I 15 1. Though by its terms, 5 1 151 applics to questions of criminal jruisdiction, it 

generally apphes to questions of civil jurisdiction as well. DeCofeatr a UzstP2ct Cn~ng Courfjr 

Tcntb]tfdz~~ff/Di~~f., 420 U.S. 425, 427, n. 2, (197.5). 

Page 5 of 2 7 
In i/cnefie, thc Court held that $ 11 51, enacted in 1948, codified a number of its earlier 

decisions concerning Inchan lands. In each of those decisions, the Court held that Indian 

Country was distinguished by two essential characteristics: it is land set aside by the federal 

gc)vcmment fox the use of In&an tribes, and thc land remains under federal supen~ision or 

superintcndence. Ve~efie~ 522 U.S. at 530 ("Section 1 I: 51 does not purport to alter this 

definition of Indian country, but mercly lists the three different categories of Inhan country 

mentioned in our prior cases. . ."). 

Thus, paragraph (a) of 18 U.S.C. $ 1 151 equates Indian Country and reservation Iand. It 

adopts Donns//y 11. United Sfafe~, 228 U.S. 243,269 (1 81 31, which held, "not surprisingly,'' that 

Inchan country includes lands xvithin formal reservations. Venttie, 522 U.S. at 528 n. 3, 530. 

Paragraph (b) equates Enhan Country and 'Qependent Indran communities." It adopts LTtzitecd 

,Statc~ a McC;owuw, 302 U.S. 535, 538-539 (1938) and CJni~edState-r v. ..Smdo~~/, 231 U.S. 28,46 

(1 913), which held that Indraa Country includes other Iands such as Pueblos or federally 

created colonies, not formally designated as reservations, that nonetheless possess the 

atwbutcs of federal set-aside and federal superintendence. Venetie, 522 U.S. at 528, 529-530. 

Finally, paragraph (c) equates Inchan Country and Inhan allotments where tide has not been 

cxtinGshed. It adopts ilniidJlalai a Peiicm, 232 U.S. 442, 449 (1914), whch held that 

inhvidual Indian allotments held in trust by the United States are Inhan Country because 

they "remain Inman lands set apart for 1ndians under governmental care." ~~me&e, 522 22.S. 

at 529, 530. 

Section 1151 does not, by its terms, address trust land such as the Talhpoosa Site. 

Nevertheless, several Supreme Court decisions hold that tribal trust lands are Indian 

County, even if they arc not part of a formal reservation. First and foremost, in Ok/whom~ 

Tax Lqomna Pa 1). Citiqen Rand Pof~watorni Xndi;.m Tn3e @'Oklohoma5 498 U.S. 505 (1 99 I), the 

Supremc Court concluded that lands held in tnzst by the Unitcd States for the Tribe were 

"validly set apart for the use of the Indians as such, under the superintendence of the 

C;ovemment," and, therefore, werc Indran Country. Id. at 51 1. As a consequence, the State 

did not have the authority to tax sales of goods to tribal members that occurred on those 

lands. The 130tawatumi Court specifically rejected the contention that tribal tmst land was not 

Inchan Countnr because it was not a reservation, noting that no "precedent of hs Court has 

ever drawn the distinction between tribal mst land and reservations that Okhhorna urges." 

Jd; see also Ok/~~l?owa Tax C'omm PI v. Chickasm Ncltion, 5 15 U.S. 450,452-453 and 13.2 (1 395) 

{treating tribal trust lands as Indian country); OH~bomu Tm Comm'n n Sac c9 Iqox Narion, 508 

U.S. 11 4, 123-125 (1933) (same); IJnifedSta~es v. John, 437 U.S. 634, 649 (1978) (observing 

that land "declared bv Congress to be held in trust by the Federal Government for the 

benefit of the . . . Inkans . . . [is A] 'reservation,' at least for the purposes of federal criminal 

jurisdiction"). 

Likewise, federa1 appellate courts unequivocaIlj~ hold that trust lands are Indian Country. In 

I lnzted Stgftj v- KO he7;r.q 1 85 F. 3d 1 1 25 (1 Oth Cir. f 9991, for example, the Tenth Circuit held 

that "official 'reservation' status is not hspositive and lands owned by the federal 

government in trust for Indian tribes arc Indan countw pursuant to [I 81 U.S.C. $ 1 1 51 ." Id 

ot 1131. Similarly, in Ian& n Rydw, 778 F. 2d 1092 (5" Clr. 1985), the Fifth Circuit held that 

lands held in trust for the ~oushatta Indmn Tribe of Louisiana werc Inban Counay, 

regardless of whether they wcrc procIaimed a seservaoon. Id at 1095. 

Page 6 of 27 
Further, not only do thc courts hold that trust land is Indian Country, they hold that trust 

land is In&an Country under 1 8 L7.S.C. 5 11 51 (a). For julislctional purposes, there 1s no 

distinction between rcsemation land and mst land. Again, in Pot~zvatomke, thc Supreme Court 

unambiguously held that mst land is "alidly set apart" and thus qualifies cr.r a ~sm~adion for 

juris&ctional pui-poses. J~otaw~atomie, 498 U.S. at 5 1 1 (emphasis added). A~rurd, John, 437 U.S. 

at 649. 

Appellate courts hold thc same. See, eg., I-JRI, Inc., 27. E~nrrimnme~tatal Protection ALqeny, 1 98 F. 3d 

1224, 1249 (1 OZh Cir. 2000) (following I'ofowatomi, '"ulnder Suprcme Court and Tenth Circuit 

precedent, trust lands . . . are Indian country"'); <~heyennc-A~@aho T+be~ a OkJahoma, 618 F.2d 

665, 668 (I oth Cir. 1980) (the court is "convinced that, baring possible specific exceptions to 

whch our attention is not hrccted, lands held in trust hy the United States for the 'l'ribes are 

Indian Country with thc meaning of 5 11 51 (a)"); United Sf& a Sobapy, 770 F. 2d 81 6, 

822-823 (9th Clr. 1985) (holding that trust lands are Indian Country and "amount to 

'reservation lands"' for purposes of jurisdction, follotving John). 

Here, then, once the United States took the Tallapoosa Site into mst for the benefit of the 

Umd, the land becamc "Indian Country" wirhin thc meaning of 18 U.S.C. $ 1151. The Site 

was "vahdly set apart for the use of the Indians as such, undcr the superintendence of the 

Government." Pota~uatomi, 488 U.S. at 51 1. Accordingly, the Band has jurisdiction to exercise 

,governmental authoriq at the Tdapoosa Site. 

2. Exercise of governmental authority 

In order for the Taflapoosa Site to be "Indmn lands" wih the meaning of IGRA, the Band 

must also exercise present-day, goverslmental authoriq on the land. How exactly a tribe does 

this IGRrl does not say, though there are many possible ways in many possible 

cir~stances. For this reason, NIGC has nor formulated a uniform definition of "exercise 

of governmental power," but rather decides that question in each case based upon all the 

circumstances. NationaI Indian Gaming C~]mrnission: ll Def it lit ion^ Unw'er fhe Indm Gaminx Re,p~htory 

s2cb, 57 Vcd. Reg. 12382, f 2388 (Apr. 9, 1992). 

The courts provide useful guidance. For example, governmental power involves "the 

presence of concrete manifestations of . . . authority." Nlaragan.reftJn&~n Tde, 19 F.3d at 

703. Examples rnclude thc establishment of a housing authority, adinmiseation of health 

care programs, job training, pubhc safety, conservadcln, and other governmental progams. 

Id Herc, the Band has exerc~sed, and it continues to exercise, governmental authority over 

the Tallapoosa Site in a variety of ways. 

"lie Band's Constitution extends the Rand's governmental jurischction to all of its lands, 

mcluding its trust lands: 

The jurisdction of the Poarck Rand of Crcek Tndians shall extend to aU lands 

now hcld in the name of the Band or which hereafter may bc acqulred for or 

by and he3d in thc name of the Poarch Rand of Creek Tndans. 
CJ70a~-fifufion ofthe Porn-ch Hand of' Creek Jndialil.~, Art. 111, $ 1. Similarly, the Rand's 

constitution gives thc rrihal council the authority to "[elstablish and enforce 

ordinances goverlvng the conduct and civil reIations of the residents within the 

territorial j jurisdiction of the Tribe. . . ." Constitution of thc Puanh Ratzd ofChreek 

Indiam, Xrt. IV, 4,7 k. In the exercise of that authori*, the Band's council has 

adopted a tribal code that, among other hgs, estabIishes a tribal court system. l'orcb 

Rand oj'Oreek Itzdba~s, Tribal Code, $ 3-1 -1 (a). 

Further, the Band's police have governmental offices within thc Rand's gaming fadty at the 

Site. Letter from Wdham R. Perry, Esq., Sonosky, Chambers, Sachse, Endreson & Perm, to 

Katherir~c I,. Zebell, Esq., NIGC (Nov. 2,2004). The Band provides law enforcement on the 

Site 24 hours a day. 'fie Rand is in the process of providing other governmcntd services, 

including additional law enforcement, through an agreement between the Band and the 

Montgomery County sheriff. Letter from William R. Perry, Esq., Sonosky, Chambers, 

Sachse, Ixndreson & Perry, to Phirip N. Hogen, Chairman, NIGC (Mar. 29,2004). Thc Band 

is also implementing plans for thc restoration of the burial mounds at the Site and has 

adopted a video monitoring system to protect the mounds from vandalism. Tuhs riff. 7 12. 

Further still, the Rand has adapted a Class II gaming orhance apphcable to the Site and has 

formcd a gaming commission to regulate the Band's Class 11 gaming operations there. Letter 

from Anthony J. Hope, NIGC Chairman, to Ed&e L. Tulhs, Tribal Chairman, Poarch Band 

of Creek Indians (rhug. 2,1993). Both the Band's gaming commission and police have 

offices within the Band's facility at the Site. Letter from Wilham R. Perry, Esq., Sonosky, 

Chambers, Sachsc, Endreson & Perry, IJ9 to Ihtherine L. ZebeU, Esq., NIGC, re: Poarch 

Rand of Creek Indians (Nov. 2,2004). 

Given the foregoing, then, the Band exercises governmental authority over the Tallapoosa 

Site; it has jmshction to exercise that authorit& and the land is heId in mst for the Rand by 

the United States. Xccordkgly, the Tallapoosa Site is Inchan land within the meaning of 

IGKA. 25 U.S.C. $2703(4)(B). 

11. GAMING ON AFTER-ACQUIRED TRUST UND 

Meeting the definition of "Indian lands" does not fish the analysis, however. The United 

States took the TalIapoosa Site into mst in March 1995, and thus the land falls wih 

TGRh's gencral prohrbition abpinst gaming on trust land acquired after October 17, 1988. 25 

U.S.C. 5 271 9(a). As such, the question bccornes whether the Tallapoosa Site meets any of 

the exceptions in 2719. It is our opinion that the Sitc is the "restored land" of a tribe itself 

restored to federal rccogni~on. 25 U.S.C. 

2719(b)(l)CB)(iii). 

To meet this exception, a tribe must be an "Indian tribe that is restored to Federal 

recafflftron," and the acqursition of the land into trust must bc part of a "restoration of 

1ands"for the tribe. These terms arc not defined in TGRA or the NTGC's impfementing 

regulations, but there is precedent. The plain, primary meaning of the terms should be used. 

Grand7?arlerse Rand of Ottawa and Ch@ewa Xndzans 7). Oficc of 'the IJ.5. Ati'ornyJor thc IF/. Dirt, of 

Mi~fi. (Gmnd TTCITI~.~ Jllj, 369 F.3d 960,967 (6th Cir. 20041, ofi 198 F. Supp 920,928 (w.D. 
Mlch. 2002); <,-onfederated 7'pz'he.r flCoos, Lwer Unpqzta & ,Cuiskaw 1ndim.r P. Bahb& (Coos), 1 1 6 F. 

Supp. 2d 155,161 (D.D.C. 2000). 

A. The Band has been restored to federal recognition 

To be an '71ndian tribe that is restored to Federal recognition," a tribe must demonstrate a 

period of recopition by thc United States, termination of that recognition, and 

reinstatement of recoption by the United States. Grmd Trawrse III? 369 F.3d at 967. The 

Band satisfies all three conditions. 

1. Reco.pitioa by the United States 

Ifi the first half of the 19'~ cenhtrp-, the Band was recopzed by the United States as E 

understand the term. 'l11e record demonstrates ths in ttvo dfferent, though equally 

sufficient, ways. First and foremost, the United States mated repeatedly with the Crcek 

Nauon. Second, separate and apart from any treaty-mahg, the record amply demonstrates a 

government-to-government relationshp between the United States and a tribal town 

founded by the Band's progenitors. That town, like other Creek towns, was an autonomous 

political entity with the hstoric Creek Nation. 

a. Treaties with the historic Greek Nation 

Ilor most of its history, the Creek Natjon was a confederacy. One hstorian describes the 

confederacy at the time of frrst I'uropean contAct in 1540 ths way: 

The Creek Nation was a confederacy - an alhance of separate and 

independent tribes that gradually became, over a long period, a single 

political organization. Through most of its history, however, the Gonfederacv 

was a dynamic institu~on, consandy chanpg in slze as tribes, for whatever 

reason, entered the alliance or left it. The evidence suggests that many more 

kgoups joined than withdrew. . . . 

BllZ Office of Pedcral Acknowledgement memorandum recommending federal recoption 

of Poarch Band of Creek Indians, p. 67 of 130 (Dec. 29, 1983)fCOFA rnerno7');Mich~e~D. 

Green, The Cneh: A I;iz'rica/ BibIioc:rap~ vii (1 979). Even in Colonial times, the center of 

political life for the Creeks was the town, whch exercised powers of broad self-government: 

The leading men of the town assembled everyday in council, either at the 

square or the chokofa. Here they made decisions mvolving war and peace, 

planting and hunting, disputes between citizens, the maintenance of order, 

the punishment of offenders, the care of the public bt~ilding and grounds, the 

ccremaniaIs and amusements. . . . 

An~ie Debo, The Road fo Dir@pemance; A Hi&y oftbe Creek Indi~ns, 1 2 (1 941). 

Rcgnning around 1780, the Band's direct, Geal ancestors migrated from a number of 

"Upper Creek" towns around the area of what is now Montgomery, Alabama, OFA memo, 

p. 4 of 130, and founded a tribal town on the Tensaw fiver m the southwestern part of the 

state, about 50 miles north of what is nov Mobile. UFA memo, pp. 3, 4 of 130. 'fie reasons 

(1979) ("11 treaty, including one between the United Stares and an Indian tribe, is essentially 

a contract betweed two soverep nations7'>; Worce~fer u. Georgia, 3 1 U.S. 51 5, 559 (1 832) 

("The constitution, by declaring treaties already made, as well as those to be made, to be the 

supreme law of the land, has adopted and sancuoned the previous treaties with the Indian 

nations, and consequently admits their rank among those powers who are capable of making 

treaties"); Un2tecdSta1es ?a Wasbin~ton, 898 F. Supp. 1453, 1458 n.7 (W.D. Wash. 1995), affdin 

paf;r, mt'd inpc6rt on ot!~er~gmnnd~, 157 F.3d 630 (gLh Cir. 1998) {treaty rights are "the result of 

the negotiation between two sovereigns, the United States and the Tribes"); NTUC Kun& 

Lrsndr Opinion at 3 (Oct. 12, 2004) ("Rased on the fact that the 1'nbe negotiated treaties with 

thc United Statcs it can clearly be stated that there existed a go~~emment-to-government 

relationship at one time"). 

Of course, one might reasonably suggest that wMe the United States certainIy recoped 

and treated with the Creek Nation, now largely in OkIahoma, it did not do so with the 

Poarch Band of Creek Indians, which &d not exist in the lgth century as such. In ths view, 

treating with the Creek Nation says nothing about treating with, recognizing, or having a 

govemment-to-government relationshp with the Band. The suggcstlon, however, dtaws a 

false hstinction. The Poarch Rand of Cteek Indians is janw what tile historic Creek Natron 

urn before removal - the Crceks in Alabama. This is a matter of historical fact, and treating 

with the historic Creek Nation says that there was oncc a govemment-to-government 

rela~onshry, with, and recoption by the United States of, the Band. 

Under the 1832 removal treaty, all of the remaining Cxcek lands east of the Mississippi hver 

were ceded to the United States, 7 Stat. 366 at Art. I, (see Figure I), and mbal rncmbers were 

dwected to relocate to In&an Territory. Jd at Art. XI. Despite the treaty's central purpose, it 

stopped short of mandating the immediate removal of all Greeks from Alabama, stating "this 

article shall nor be construed so as to compel any Creek In&an to emigrate, bat they shall be 

free to go or stav, as they please." Id at Aa. XII. 'fie treaT facilitated this construction by 

proding for the conveyance of hhidu~l fee lands to Creek leaden and heads of families 

who remaified in Alabama. Id. at Art. 11. 

The "Trail of Tears," he forced march of the Creeks tu the Inchan Territory, took place 

primarily between 1836 and 1837. By 1838, only a handful of Creeks remained in Alabama, 

among them the Band's forebears at Tensaw. 9FA memo, p. 86 uf 130. The community 

subsequentlv '"hifred within a small geographic area antd it settled permanently near 

present-day Atmore, 12labama." OF11 memo, p. 2 of 130. 

By accordkg the Band recogmition under the federal acknowledgement process, the 

Department of thc Interior concluded that the Rand, following thc removal of most Creeks, 

maintained a continuous and hstinct cultural, political, and social identity up to the current 

day. 25 C1.F.R. 5 83.7. The OFA memo finds: 

The Poarch Band of Creeks foms a comrnuniy distinct from other 

populations in thc area. Its members are descended from the historic Creck 

Nation, from a cornmumw within that nation whlch developed in the late 

18& Century. Thrs community developed into severaI Inhan settlements in 

Escambia County, ~Zlaharna, which form the Poarch Band of Creeks today. 

Page 1 l of 27 
OF11 memo, p. 5 of 130. Thcre is, in short, an unbroken historical line or connection 

benveen the hscoric Creek Nation in Alabama and the Band, and the Department of the 

Interior thus concluded that the Band is the successor to the Creek Nation: "[tlhe 

contemporary Poarch Rand of Creeks is a successor of the Creek Natlon of Alabama prior 

to its removal to Inhan Territory." OF11 memo, p. 2 of 130. Consequently, by treating with 

the Creek Nation in Alabama, the United States once had a government-to-government 

relationshp with, and once recopiacd, the Rand. 

Put somewhat differently, the historic Creek Nation has greatly changed in form from the 

first half of the 19' century to today. The historic Creek Nation, politically organized around 

tribal towns, now exists as the Poarch Band of Creek Inhans in ~llabama, the Muskogee 

(Creek) Nation in Oklahoma, and recognized tribal towns - tribes with multi-branch 

governments established through tribal constitutions. See, eg., Consta't~~fiun of'fbe Pomh Rmzd of 

Cmek Indians, Art. IV (June 1, 1 985); Conslitufgbn of !be M14.rcugee (Creek.) Nurion, Arts. V - VI I 

(Feb. 18,2006). To suggest that the United States' recogrution of the historic Creek Nation 

is not recoption of the Band - or the hfuskogee (Creek) Nation for that matter - because 

the Rand is not identical in form to the hstoric Greek Nation is inconsistent with federal 

Indian policy generally and with case law. 

l'he federal govemmcnt's long-standmg policy is to encourage tribal self-govement, and 

numerous statutes, inc1ubg IGRA, embody hs pohcy. Iown MIA~Y~/ lm. Co. n hP/lanfe, 480 

U.S. 9,14 (1987); 25 U.S.C. $2702(1) f"The purpose of &IS chapter is to provide a statutory 

basis for the operation of gaming by In&an tribes as a means of promoting tribal economic 

development, sclf-sufficiency, and strong mbal governments"). Federal law has thus 

cons~stently rccognrzed and protected ths right of self-government. See, e.~., .Ymfa c/ma 

P~deblo u. Martineg 436 U.S. 49, 55-56. 'fie right of self-government, of necessity, lncludcs the 

abhty of a tribe to make changes to the form and structure of its government, and ths 

abihq mo is recoped in federal law. See, e.g., 25 C.F.R. Parts 81 and 82 (procedures for 

Secretarial elections governing adoption, amendment or revocation of tribal constitutions, 

ctc.). 

Any self-governing entity will change in form and composition over tune, and this is 

pa~cularly true of the Indian tribes, who over the past centuries have also had such changes 

thrust upon them bv federal law. Sipficandy, none of these changes m form or 

rcorganlzations are in any way inconsistent with federal recoption. 

Reflecung federal policies, a congressionally created confederated or 

consohdated tribe can be comprised of different tribes presently occupyq 

the same reservation, such as thc Wind River Tribes (Shoshone and 

Arapaho). Or tribes may confederate for political purposes, forming 

governmental entities such as the Minnesob Chppewa Tribes or the Central 

Council of the 'hgt Pr Haida Indian Tribes, which have received federal 

recognition, m addtion to their constituent tribes. Under thc hdan 

Reorganization 12ct of 1934, Indians living on any given reservation were 

allo~ved to organize into federally recognized tribes, whcther or not they were 

linguistically, cultusally, or polincally nnited.. . . Other federally rccopzed 

entities represent fragments of previously umfied peoples. Thc great Sioux 

nation, for example, was divided by federal law into geographically separated 
and independently recognized tribes in order to weaker1 the Sioux rmlitdy. 

Other groups, such as the Oneida, the Cherokee, and the Choctaw are 

recopzcd as multiple separate nations, because some members moved to 

new tcrritoaes as part of the fcderal removal process in the nineteenth 

century and others refused to leave ancestral homelands. 

Coben 'J- Hund/7ook oJ'Fedtrak Indian Lw ("Cohen"), 302 121 at 137 (2005 ed.). To 

sugest, then, that the reco,gmtion of the historic Creek Nation does not also apply 

to the Band because of the change in form and composition over time is inconsistent 

-with the fundamental policy of encowagmg tribal self-government. 

It is also inconsistent with the Sixth Circuit's decision in Grad Tra?~e~~e IT. There, the 

court determined that the Grand Traverse Band of Ottawa and Chippewa Inbns 

met the plain-language, thsee-part test for a restored tribe set out above. In so doing, 

the court made no distincuon betwcen today's Grand Traverse Band and the 

combined Ottawa and Chpewa nations, whom the United States awegated solely 

for the purposes of negotiating the 1836 Treaty of Washngton (and which was 

subsequently d~ssolved by the 1855 Treaty of Detroit). Id at 962 n. 2. 

'Ihc Grand Traverse Rand was, the court found, the successot to the Ottawa and 

Chippewa, and it described the Grand Traverse Band's relationshp to its predecessor 

and to the United Shtes th~s way: 

The Band is a federally recognized Indian tribe presently maintaming a 

government-to-government relationshp with the United States. The Rand 

previously maintained a governrnent-to-governrnmt relationslap with the 

United States From 1795 until 1872, and is a successor to a series of treaties 

with the United States in 1795,1815, 1836 and 1855. 

Id at 961. In short, the court Found that because the Grand Traverse Band was the 

successor to che Ottawa and Chppewa, and because the United Statcs treated with 

the Ottawa and Chippewa, the Grand Traverse Rand was once recoped by the 

United States. The change in form of the be - from the &sagregation of the 

Ottawa and Chippcwa in 1855 to the present day Grand Traverse - was immateriak 

The &strict court appropriately looked to the hctionary definitions of 

"restore" and "restoration," which indude the folloq meanings: to give 

back, return, make restitution, reinstatement, renewal, and reestzb1ishtnent. 

'I%e court then correctly hcld that the Band clearly was a "restored tribe" 

under these dehtions. Thc Band had treaties with the United States and a 

prior reIationship with the Secretary of the Interior at least as far back as 

1795. Until 1872, the Secretary had treated the Band as a recognized trihe. 

Id at 967. (Internal citations omitted.) 

So too here. There is no Icgal significance to the change in form over time from the 

histonc Creek Nation to the Poarch Rand of Creek Indians, its successor. The Band 

Page 13 of 27 
had treaties with the United States as f~r back as 1790 and, therefore, was once 

recoped by the Unitcd States. 

b. Relationship with the town at Tensaw 

Even if one does not accept the United States' treaties with the historic Creek Nation as a 

basis for finding a period of recognition for the Rand, a separate, equally sufficient basis 

appears in the record. The United States had a government-to-govcmment relationshrp with 

the town at Tensaw founded by the Band's forebears. The record shows this not through 

treaty but rather through "the empirical inhcia of recognition, namely, a kontmuing political 

relationship with the group, such as by provihg services through the Bureau of Indian 

Affairs."%mnd 7>~9v~re 111at 968, rktin~ Cohen at 6 (1982). 

~lgain, the town at Tensaw, like Creek towns generally, was autonomous with the Creek 

Nation. Benjamin Hawkins, U.S. Agent to the Creek Nation from 1795 to 1826, appears to 

have had many interactions with thc Rand's ancestral community. He is described as a 

"prolific correspondent and journalist," and he provided "the first sipficant direct accounts 

of the hstory and activities of the ancestors of the present Poarch Rand of Creeks.. . ." OFA 

rncrno, p. 72 of 130. Hawkins referred to a "community of half-bloods in Tensaw" as an 

autonomous town \vih the Creek Nation, and was "personally fad= with several halfbloods there with whom he had wnrlung relations." OFrl memo, p. 64 of 130. Haxvkins7s 

sicpificance, howcver, was not merely as an observer. It was through Hawkins that the 

Lrnited States had a government-to-government relationship with the Tensaw town. 

The Bureau of Indian Affairs was established in 1824 by ahmustrative directive OF thenSecre~q ofWar, John C. Calhoun. H.R. Doc. No. 19-146 (1824). That office was created 

without congressional authority and lacked formal control over Indian agents. COHEN, $ 

103[4]p] at p. 56. nus, in 1832, Congress created the position of Commissioner of Indran 

Affairs, 4 Stat. 5454 (July 9, 1832), to supervise "all matters arising out of In&an relations." Id. 

at 6 1. Tkc BIA was transferred to the Department of the Interior in 1849.9 Stat. 395 

(~mh 3, 18491, md@d at 25 U.S.C. s$ 1-2. Prior to the creation of the BLA, then, 

rehtlonshps between the United Stares and the Indian mbes was conducted through War 

Department or presidential agents and commissioners such as Hawkms. 

Hawhns, living among the Creeks at Tensaw, sometimes dealt with them individuauy rather 

zhan governmentally. He was '>personally familiar with several haIf-bloods there 114th whom 

he had worlung relations." OF11 memo, p. 64 of 130. In his writings, he mentions several 

half-blood ancestors of the Poarch Band by name, and places "certain of its [Tensaw's] 

principal members as ~rignally from the Upper Creek country." OFA memo, p. 72 of 130. 

FIe refers to Tensaw as the "Creek half-blood colony," wrihg that "many of the half bloods 

were raised with a high degree of Creek customs and world -i+w, and identified more as 

Creek than white." Td 

SIawhs also, however, dealt with the 'Tensaw community as an autonomous political entity. 

This occurred most notably during the Creek War of 1813-14, when the Band's forebears at 

T'ensaw broke ties with the Creek Nation and formed an alhance with the United States 

rnilitaq against the I-Iostilc Creeks. Members of the Band fought as a separate unit alongside 

the Unitcd States military at thc battle of Rumt Corn: 

Page 14 of 27 
Having procured arms and ammunition in Pensacoh, the hosdes started 

back to the Nation, and wcre met by a 180-man force of whtes under 

Colonel James CaUer to the Nation, md half-bloods under Captain Dixon 

Bailey, David Tate, and James Cornens at Bumt Corn. 

OPrZ memo, p. 75 of 130. Under the command of Dixon Rdey, the half-blood unit also 

fought with the tnihtaxy commander of the regon, General Ferdinand Claibome, in the 

battle of Fort Mims, wherc the Hostile Creeks overran the defenders and Ned almost all of 

the refugees. Id 

This alhance was actively sought and encawaged by the United States government. just two 

weeks after Fort Muns, Hawkins sent letters to 'public offices in that quarter," zit. to Creek 

towns at Fort Stoddert and Tensaw, seehng dtary allies. OFA memo, p. 77 of 130. He 

wrote, "drrecting the half-breeds there to unite with their white brethren and that the people 

in the fork of the Alabama should gut themselves into the best situation they could to resist 

an attack." Id, quoiitlg Ltcrr, Jolrrnair and Writq~ of Rcnjcdmin Hawkifif, Vo/. li, 1802- I R 16.664 

(C.L. Grant, ed. 1980). rip, Creek towns lrke Tcnsaw made decisions ahout a wide variety 

uE their own affairs, including "decisions involving war and peace. . . ." A?,@ Debo, The Road to 

LIs.r@peu~mzce: A Hisfo7y offbe Cmek Indzon~, ? 2 (1 942). As such, Hawbns's letter to Tensaw 

was not only a suggestion for how the town could best defend itself. It was also a selfinterested request from the agent of the United States pTemment to tlhc Tensaw 

gal-ernrnent for a dtq allrance. 

One consequence of Tensaw's choosing to break with the hostile faction of the Creek 

Nation and ally itself with the United States durmg the Creek War is that it mcreased the 

estrangement that already existed between the half-blood community and other Creeks. The 

town's decision semed "to place the pro-American half-blood community of former Upper 

Tom Creeks into hrghlight, contraposing them with the hosde or anti-American faction....'" 

OFA memo, p. 74 of 130. The friction is evident from this description: 

The white and half-blood settlcrnents in and around the Nation began 

bracing themscIves for an all-out attack by the hwdes, who by llugust had 

worked thernsclvcs into a reliffous fervor under the promise of cxpclllng the 

whites and redeeming their pristine aboqmal state. 

OFA memo, p. 75 of f 30. Further, in a June 23, 1813 Ietter to General Ferdinand Claiborne, 

Harry Toulrnin, a local judge, acknowledged the half-bloods' estrangement from the hostile 

Creeks and described the reaction in the Tensaw area: 

The half-breeds, however, do not hk fit to trust themselves with them [the 

hostiles] or to embark m their rncasures. They have fled and have left behind 

them their crops & other propcrv. I visited them yesterday. ?'hey are in 

confusion and d~strcss. Not less so are my white neighbors on Tensaw. 
The 1814 Treaty of I:ortJackson, entered into between the Creek Nation and the Unitcd 

States at the end of the Creek War, recoped the Tensaw ahmce with the Unitcd States 

and rcwarcled the Tensaw Crceks with land grants and phced them under the protection of 

the United States: 

Provided, nevertheless, that where any possession of any chitfor wwmor of'fhe 

Creek Nation, who rhaii ha^ been f~endij to fhe Unitd .~i~ti?~- d~ring the war, and 

taken an active part therein, shall be within the territory ceded by these 

articles to the United States, eve9 JHL-~ person shdl be enfi~Ieed to a nsm~ata'on of land 

wathig the sazd ftnito y of one mike sqpare, to include Fus improvements as ncar the 

center thereof as may be, which shall inure to the said chef or warrior, and 

his descendants, so long as he or they shall continue to occupy thc same, 

who shall bc protected by and subject to the laws of the United States: but 

upon fl~e voluntzry abandonment thereof, by such possessor or his 

dcscendants, the right of occupancy or possession of said lands shaEl devolve 

to the United States and be identified with the nght of property ceded 

hereby. 

7 Stat. 120, Art. I. Finphasis added.) Ry contrast, there were massive land cessions required 

of the Creek Nation - approximately half of what is today the State of Alabama. (See I'ipre 

1 -1 

Given the forepmg, the record demonstrates a government-to-government relationshp 

between the United States and thc Rand's forebears at Tensaw. The United States, through 

its agent to the Creeks, sought a military alliance with the Tensaw town. Having succeeded in 

formifig an &ancc agamst the Hosde Creeks, the 1814 Treaty of Fort Jackson rewarded 

&ed Creeks with land and the protection of the United States. In view of this relationshp, 

the United States recoped Tensaw as an autonomous enti9 separate and apart from the 

historic Creek Nation. 

The second condttion for demonstrating that a tribe is restored to Federal recognition is the 

termination of prior recognition by the United States. Such a loss may occw through 

Icgslative action - e.8, by statute or treaty - or by administrative action. Grand Traverse JIJ, 

169 F.3d at 968-72; TOMACa Norton, 193 F. sipp. 2d 182,193-94 (I3.D.C. 2002); .Yd Sle. 

Mu~e Tribe qfI~ke S~penw Cb$pewcn IPP~II~S I). United Stde.r, 78 F. Supp .2d 639,705-07 (W. D. 

Mich. 1 9991, vacated on other~roirkndr, 288 F.3d 9 10 (G'~ Cir. 20112). The Rand lust its rccognitlon 

by the United Statcs as early as 1837, under the terms of a treaty with tkc histonc Creek 

Nation, recognition it did not regain until 1984. 

Ap, the 1814 Treaq of Foa jackson provided the Tcnsaw Creeks, and other allied Creeks, 

with land grants and placed them under the protection of tl~e United States. 7 Sbt. 120, Art. 

1. Thc 1832 removal treaty provided for cession of all rernaiaing Creek lands east of the 

Mississippi Rfvcr, 7 Stat. 366 at Art. I; removal of most, but not aN, Creeks, Id. at Xrr. XIT; a 

general land grant for the Creeks in the Inchan Terrioq, Id at An-. XIV; and conveyance of 

lands to Cceck leaders and heads of fadies who remained in Alabama, Id at r2e. 11, among 

them the Band's forebears at Tensaw. 0FA memo, pp. 3,5 of 130. 

Page 16 of 27 
However, fox the community of the Band's ancestors \vho rcmained, the 1832 Treaty 

explicitly terminated federal protection of their lands after fivc years, or bv 1837, if they 

chose to remain in Alabama: 

l%e United Stares engage to survey the [ceded] land as soon as the same can 

be conveniently done, after the ratification of ths treaty, and when the same 

is surveyed to allow ninety principal Chiefs of the Creek tribe to select one 

section each, and every other hexd of a Creek family to select one half 

section each, which tracts shdl be reserved from sale for their use for &c 

term of five veaxs.. . . 

At the end of fivc years, all the Creeks entided to these selections, and 

desirous of remaining, shall receive patents therefore in fee simple, from the 

United States. 

7 Stat. 366, Art. 2, 4. 

-fl~e Band's forebears, of course, remained. "Most of the fades in the (Tematv] community 

acquired title to thelx lands after the cession of this area to the United States under the 1814 

Treaty of Fort Jackson and most rcmained after the Creek Nation was removed to Indian 

'l'erritory in the 1830's." OFrZ memo, p. 5 of 130. As a practical matter, federal protection of 

the Rand's hd ahcady disintegrated by 1837, the stated time that federal protection was to 

expire. OFA mcmo, p. 85 of 130. The Band then "shfted widm a srnalI geographc area 

until it settled permanently near present-day Atmore, Alabama." OFA mcmo, p. 2 of 130. 

In short, by its terms, the 1832 treaty ended fedcral recoption of he Rand in 1837. Most 

Creeks tverc removed to the Indian Territory, and federal protection for those who remained 

expired at a time certain. The record bcars this reading out. From 1837 fonvard, the Umted 

States disclaimed rehtionship of any lund with the Creeks in Alabama. 

For example, for many years, an annual report was published by the Commissioner of Zndan 

Affairs whch summarized, on a state-by-state (or territory-by-territory) basis, the activities of 

thc federal government with respect to all recow,ed tribes. This report, caIled the Annual 

Report of the Commissioner of Indian Affairs (Annual Report), described both the 

implementation of federal Indian policp and the general conditions of each recopxcd tribe. 

During the 1840's, the Annual Reports noted the dimkishmg number of Creeks ~emaining 

m Alabama. Anrz14a/Wo7;rof the Cornmis~-ione~.ofl~~~unA~ 1845-46 at 1 (Nov. 21, 1845). By 

1849, the removal of the Creeks was deemed essentially complcte, and the Commissioner 

reported that from the next year forward, the Creeks who rcmained in Alabama were to be 

lc ft alone: 

CVithm the last year, forty-four of the fcw Creek Indians rernaimg in 

Alabama, and five hundred and foq-stven Choctaws from the State of 

hfississippi, have removed to the country of their brethren west, leaving 

almut two thousand five hundred of the latter people still east of the 

Page 17 of 27 
Mrssissippl kver, nom-ithstanhg the great exertions and thc large 

expendtures that have been made for some years past in endeavoring to 

effect their emigration. These Indans were made citizens by the laws of the 

S~ates where they are, and the effort to remove them was an obligatton 

voluntarily assumed by the government for their benefit and the advantage of 

those States. Ncw arrangements have been adopted for a final effort to effect 

that oblcct, which it is hoped d be attended with success. Aljthaf cars be 

indud-cd 10 go :oJpmbabb be nmowd wi3bin noth her year, at the end of which a// fiflhe~ 

pro~c~diqy and expenses ~honM ire rmimtd, ad sho~e fhml shaY then remuin bc 

pemitted to do JO in the qz~iet cyymeellt of their a$fs as hiiyens. 

Annl~d Rqori+ offj~e Cbmmzssiuner ofl~dian Afairr at 948 (Nov. 30, 1 849). (Emphasis addcd.) 

Subsequent Annual Reports reflect an uninterrupted absence of federal involvement over a 

span of many vcars. Creeks outside of Oklahoma are rarely mentioned. In the 1856 Annual 

Report, for exampZe, there is only a passing reference to the sale of 34 sections of Creek 

Indians lands, presumably fee lands okpalty set aside in the 1832 removal treaty. In the 

3 87 1 Annual Report, there is a passing reference to '"omc indigent Creeks ternriming in 

Xabama . . . ." 13$ol;r o/'rjre Comm8's.riintae~- of'lndian Af2-3, 1 856 at 1 9 (Nov. 22, 1 856); Report nfthe 

~mmission~r~~ndia~~~iiP:r, 1871 at 576 (N\iov. 15, 1871). 

Further, express and implied disclaimers of any federal xelationshp with thc Band continued 

into the 2oth century. Ongoing efforts by canccrned indimduals to gain federal assistance for 

the Band were repeatedly rcbuffed by federal officials. For example, in 1906, an attorney 

wrote to President Roosevclt seehg federal help for the Creek Indians m Alabama. The 

Acting Commissioner of Indian Affaits, to whom the letter had been forwarded, responded: 

this Office knows of no band of Indans located in the southern part of 

Alabama. It is possible, of course, that there are persons of Indhn or part 

Inhn blood located in Alabama, as there are in many other States, but these 

people are in no way connected with the tribes of Creeks, Chickasaws and 

Cherokees that are located in the Inchan Territory. The Creeks, Chickasaws 

and Cherokees that are now in the Indian Territoiy located there many years 

ago by virtue of treaties made befiveen their leaders and the United States, 

and thc individual mernbcrs of such tribes &at may have elected to and did 

remain cast of the hhsissippi River when she gcneml emigration of the tnbes 

took placc, surrendered any right to share in the property of the tribes as at 

present consntuted in the Indan Territory. Sz~h Indians as mq befoxnd in 

so~them A/ahama ut thepment lime are the desceladunfs ofthose who chose lo remaan 

there ralher fhun ern&-w$e to what ir now the Indiun Tem'tuy, and so fm as thi.r Ofice is 

~~.oncem.ned are ntiyen.r of the Shte and m entided to no ~onsicderurion not dm to other 

citi7tn.r who mq bc ~~'khite hJood. 

I .etter from Acting Commissioner of Indian Affairs to John D. Beck 1-2 Oec. 31, 1906). 

(Emphasis addcd.) 

In 1931, an Episcopal clergyman who was worlung among the Creek near rttmore, Alabama, 

wrote to the Commissioner of Indian Affairs seelung land and protection for "a small tkhe 

Page 18 of 27 
of Indians located near here." Letter from Rev. Edgar Van W. Edwatds to Charles J. 

Rhoads, Commissioner of Indm Affairs (Sept. 19, 1931). The Assistant Commissioner of 

Indian Affairs tephed that since 1912, "we have had little or nothing to do with any Creek 

Indzans in Alabama," and concluded that the federal government is "not in a position to 

grant the relief requested." Letter from Henry J. Scattergood, rlssistanc Commiss~oner of 

Indian Affairs to Rex?. Edgar Van W. Edwards (Sept. 25, 1931). 

A sdr letter, written by the same Episcopalian minister to the BLA in 1936, also sought 

fcderal assistance for the Band. The Comrmssioner of Indwn ilifairs responded, "[tlhere 1s 

reason to doubt whether this Office has authority to assume jurisdiction over the affairs of 

the Indians of Alabama.. .," and he indicated &at the BL.1 "would have to refuse all help on 

the basis of information now available." Lettcr from John Collier, Commissioner of Indian 

Affairs, to Rev. Edgar Van W. Edwards (hpr. 21,1936). 

Chrrespondence in 1938 from the BIA's Director of Education, Willard W. Beatty, also 

revcds an unwillingness to provide any assistance to the Rand: 

Wc have given a great deal of thought to the status of the Inhan group near 

rltmore sincc my vislt to you early thrs spring. In general, the Office appears 

to take the same position toward these Indians hat 1 expressed to you on the 

last day of my visit: that if m&hr befdr wier fir thefedernl'cpo~~emmenf nof to in~edere. 

Any attempt on the part of the government to develop reserved lands or te 

raise the educational standards through the payment of tuition would tend to 

relieve the local cormnuniq of any feeling of responsibhty for this goup of 

Indians as citizens. 

Letter from WilIard W. Beatty, Dlrector of Education, RIA to Rev. Edwin Edwards, (May 

27,1938).(Emphasis added.) 

That same year, Mr. Beatty wrote to the Episcopal Missionary in New York, urging the 

Church to assist the Indians in Alabama because thc federal government could not, stating 

[tlherc are no tribal Indian reserves in Alabama, and while many of these 

Inhans were given individual pieces of property by the fedeml government 

many years ago, most of this land has been sold. . . . Special I<pis/cation woaM be 

req~ircd ro enable the Idan Office to nssume ay reqo~sihkity .. fir lhksc.z$ and a 

careful consideration of the situation and the growing assimilation of the 

group by the surroundmg community raises serious questions as to the 

advisabihty of the fedeml government stcpping in. 

Letter from Willard W. Beattp, Director of Education, BEll to Theodora Wade, National 

Co~mul of Protestant Episcopal Church (May 27,1338). (Emphasis added.) 

W~th each request for assistance during this period for the Creek Indans in Alabama, the 

fcderal government hsclaimed any relat~~nship with the Pozrch Rand in Alabama and 

communicated that the educational and other needs of the Rand had to hc met through nonFederal sources. The Band's former Chairman, Eddie L. Tub, recollects that 
[qrorn 1964 until the Tribe gained federal recognition in 1984, the federal 

government did not provide to Poarch Creek or its members the programs, 

benefits and services that the government provided to tribes that were 

federally tecoped and their members. For exmplc, during this period the 

Bureau of Inhan Affairs provided no funds to the Tribe, and no semlces to 

our people, for any purpose. Lkcwise, our tribal members received no health 

care semiccs from Indian Health Scrvice . . . and no funding from HUD for 

purposes of establishing or implementing a Tribal housing program. While 

the Administration for Narive Americans (ANA) provided the tribe with a 

small amount of grant funds in thls period, those were specifically hted to 

tasks relating to our efforts to gain federal. recoption . . . . 

Supplcmental r2ffidavit of Eddic L. Tullis at 7 2 (May 26,2005). He concludes by 

summafixing that "the ?'r~be and tribal members received no funds appropriated by 

Congress for purposes of serving federally recognized tribes during the period from 1964 

und recoption in 1984" and notes that "this pattern by the federal government of not 

treating Foarch Creek as it treated all federally recoped tribes extended back to the he of 

removal in the 1840's." Id. 

Given the foregoing, the Band, while oncc recopzed by the United Stares, lost federal 

recopitinn under the terms of the 1832 trcaty removing the Creeks to Oklahom and 

ending federd superintendence over the Creeks in Alabama m 1837. Recognition of the 

Rand wfis then absent well into the 20"' Cennuy. 

3. Reinstatement of recognition 

Finally, a tribe with a history of governmental recognition, withdrawal of recognition and 

then reinstatement of recoption has been "restored" under IGRA, whether the 

reinstatement of recognition was achieved through Congressional action, the admin1strati~-e 

fedcral acknowledgment process, or administrative recoption. Grmd Trawr~t 111, 369 F.3d 

at 967, 369-72; lone Indim 1~ndx Opinion (Scpt. 1 9,2006.) 

Here, the Department of the Interior issued a final determination in June 1984 recoping 

the Rand. 49 Fed. Reg. 24083 (June 11, 1384). In th~s determination, Interior expressly found 

that "the contemporary Poarch Band of Creeks is a successor ofthe Creek Nation of 

Alabama prior to its rcrnoval to Indian territory [Oklahoma]," and that the Poarch Band of 

Creeks were those Creeks who "remained in Alabama after the Creek removal of the 

1 830's ...." Id. 

In sum, over its history, the Poarch Band of Creek Indmns was recognized by treaty and by 

rmlitary dance with the United States, last this recognition by treaty and federal action, and 

was reinstated to federal recognition through thc federal acknowledgement process. 

'Therefore, the Band is a "tnbe that is restored to Federal recoptian" within the meaning of 

25 U.S.C. 5 2719(b)(Z)(U)(iii). 
B. The Tallapoosa Size was taken into trust as part of the Band's restoration 

Given that the Band is a restored tribe, the Tallapoosa Site only satisfies the requirements of 

$27 19@)(1) (B)(iii) ~f it was taken into trust as part of the Band's restomtlon. Notlung in 

IGRA requires that thls be done hy Congressional action or in thc very same transaction that 

restored the Tribe. Lands may be sestorcd to a tribc though the adrmnistrative fee-to-trust 

process. Grand Trarvrre and $ON~~O lrnd Chqpewa Indians a Ilnrted Sfatei Atforncy, 1 9 8 F. 

Supp. 2d 920, 935-36 (W.D. Mich. 2002jrGrand Traverse II"), 4'4 Grazd Tr~aterre III; 

Confederded T+hes of Coos, Lower I Tqqua c.? Siaslaav 1ndiwn.r n Babbitt, 1 16 F. Supp. 2d 1 55, 1 6 1 - 

64 (D.D .c. 2000);.~rd Trarerse Band of Otfawca ond Ch$jew~~ Ind~un~ a Uniled States /litormy, 

46 F. Supp. 2d 689,699-700 (W.D. ~i&. 1999)))CiOrand Ttxverse 1'7. 

Sdl, not every trust acquisition for a restorcd tribe meets his exception. There must be 

some limiting conhtron - somedung that tics the trust acquisition to, or shows it to bc a part 

of, the tribe's restoration. G~and Truzjerst. JT, 1 9 8 F. Supp. 2d 920 at 935. This avoids d~c result 

that "any and all property acquired by restored tribes would be eliffblc for pming." Coos, 

1 I6 F. Supp. 2d at 164; Gmnd 7h1re1.e I, 46 F. Supp. 2d at 700. 

Accordingly, both the NIGC md the courts that haw cons~dcred the question find the 

necessary hiting conhtion in the factual crrcurnstances of the trust acquisition, the location 

of the tmst acquisition, and the temporal relatlonshp of the mst acquisition to the tribal 

restoration. See, e.g., Coos,ll(, F. Supp. 2d at 164; Grand Trmerse II, I98 F. Supp. 2d at 935; JTI 

lie ,Sa~dIt ,Ue, Marie Tribe of-Chppewo Indkan~, Resohtion JLTu. 2006- 10 1, fimendmenf to Tribal Code J7 

42.801, G~dmkn~q Ordzname (restored lands opinion, September 2,2006); Tn Re Kamk Tn3e Of 

Ca/+mia (restored Tands opinion, Octobcr 12, 2004). 

At the same time, in response to overly narrow interpretations, several courts have noted 

that Section 2719 should be read broadly. It is possible to adopt a reasonably limted 

construction of the exception while rejecting: overly narrow interpretations. Courts have 

alrcady indrcated instances in which the interpretation was unduly narrow. Rose~i/ke v. Non'on, 

348 F.3d 1020, 1027 (I1.C. Cir. 2003) (rejecting the Secretary's interpretation of '?retoration 

of Iands7' to "he strictly lmtcd to land consumting a tribe's reservation immediately before 

federal recognition was terminated'); Coo.(, 116 1:. Supp. 2d at 164 (rejecting the Secretary's 

requirement that an act of Congress restoring the mbe to federal recoption must explicitly 

provide for the restorcd lands). 

1. Factual circumstances surrounding the trust acquisition 

In 1984, when the Band repined its feder~l rccoffliticln, it was landless. The Band requested 

that thc BM take several. parcels into mst for its benefit. Memorandum from Rill D. Ott, 

Area Director, Eastern Area Office to Acting Assistant Secretary - Indian Affairs, re: 

Request for Reservation Proclamation - Pomch Rand of Creek Indians of Alabama (Feb. 12, 

1985). The Eastern Office Area Dircctor forwarded the request to the Acting Assistant 

Secretary - Inchan 11 ffairs, noting: 

It is recorninended that favorable actlon be taken on the Poarch Band 

resolution with two exceptions. (lfter a close review of the total enrollment, 

land area, and the location of the primal~ portion of the Poarch Rand of 

Page 2 1 of 27 
Indims, X feel it would not be in the best interests of the Bureau of In&an 

ilffalr~ and thc United States Government to create one-acre rcsen-ations in 

Monrr~c County, Alabama, and Escamhia County, Florida. Those plots were 

taken into trust at the request of the Tribe; however, the plots arc not in the 

immediate proliirmty 05 the major Poarch holdings. 

I am, therefore, recommending reservation status be granted for those 

holdings in I<lrnore County and Escambia County, Alabama. 

It is noted that the Poarch Band holdings m Ehore County [Wetumpka] 

consists of apprnrdmately 36 acres which is a site of particular hstoncal 

sipficance to the Tribe. Although there is no sipficant population of 

Poarch Rand Indians in that immediate area, I am including that site in my 

recommendation since Reservation status will provide the Poarch Rand with 

additional jurisdictional control. 

Xccordmgly, on April 12,1985, BM declared eight parcels, amounting to approximately 

229% acres, to be rescrvatlon land. SO Fed. Reg. 1 5502-03 (Apr. 12, 1985). Agam, seven of 

the parcels were located in Escmbia County, Alabama. Figure 1, pxrcels 1,2a,2b, 3.7, 8, 

and 9. The eighth, the Wemmpka site, was over 100 miles away in Elmore County. Figure 1, 

parcel 4. 

Another two parcels, totaling 1 acre each, were taken into trust in 1984, and a parcel of 10.9 

acres was taken into trust in 1989. Letter from WirIiam R. Perry, Esq., Sonosky, Chambers, 

Sachse, Endreson & Perry to Andrea Lord, Esq. NIGC ouly 18,2007)). 

On November 14,1988, rhe TaUapoosa Site, known to have txo Crcek hurial mounds, was 

donated to the Rand. The Site is located between Wetumpka and Atmore, but is closer to 

the former (appromately 12 rmles) than to the lattcr (approximately 1 I0 miles). Figure I, 

parcel 27. 

The Band asked the RIA to take the Tallapuosa Site, and two others, into trust on July 27, 

1989. Ixtter Erom Ciclo I. Gibson, Planning Director, Poarch Rand of Creek Indians to B.D. 

Qtt, Area Director, Bureau of Indran Affairs ('July 27, 1989). The Eastern Ofiicc Area 

Director requlred additional information before doing so: 

In regard to Parcel 17, whch is located a distance from the main reservation 

and is not included in your current Comprehensive Tribal and Cornmunrty 

Development Plan, the application will be held in abeyance pending 

additional jusnfication for Trust Status. 

Letter from R.D. Ott, Eastern Office Area Director, to Ed&e Tullis, Chairman, Poarch Band 

of Crcek Indians (Aug. 7, 1989). 

Accor&ngl~, the Band commissioned a report of the TalIapoosa Site by Dr. Diane Si1vj.a. a 

locaI expert in archaeology and anthropology. 1,etter from Chairman Eddic L. Tullis, to R.D. 

Page 22 of 27 
Ott, Eastern Office Area Director (June 1, 1990). Dr. Silvia's study conhcd that a portion 

of the Site contained hvo hstoricallv and culturally sipficant Creek burial mounds and the 

aboriginal Creck village of Kolumi. Diane E. Silvia, PhD, Report on thc Cultural Sipficance 

of the Poarch Band of Creek In&ans7 Parcel 17, Montgomery County, Ahbama. 

On the basis of hs report, the Bh4 concluded that the Site "is probably sipficanP and 

"may be important to the Tribe culturally." Letter from B.D. Ott, Eastern Office Area 

Director, to Eddie Tullis, Chairman, Poarch Band of Creek In&ms (Oct. 22, 1990). 

However, 3111 completed the trust acquisition of the TaIlapoosa Site only on March 23, 

1995 - a five-year delay. Warranty deed (March 23, 1995). 

In the interim, RIA took five more sites totaling just under 133 acres in trust for the Band, 

all in 1992. Lettcr from W&am R. Perry, Esq., Sonosky, Chambers, Sachse, Endreson & 

Perry, tu Andrea Lord, Esq., NIGC Cjuly 18,2007). The nand thus had approximately 242 

acres in trust when it applied to have the Site placed into trust and approximateIy 375% acres 

ia trust when the TaUapoosa Site acquisition was complete. 

These facts suggest that thc Tallapoosa Sitc is restored land, for they show that the Site was 

part of the Band's "first systemaBc effort to restore tribal lands." Grmd Tra~~erse IT,198 F. 

Supp. 2d at 936. Of course, at first, Area Director Ott referenced the Band's systematic plan 

for restoring its land base, the Comprehensir~e Tribal and Cornmumty DeveIopment Phn, 

and noted that the Tallapoosa Site was not in it. 

Ho*lvcver, the Tallapoosa Site contains an ancestral Creek dhgc and burials, and, 

importantly, was known to be associated with the Upper Creeks from whom the Poarch 

descend. The Sitc was donated to the Band in order to transfer the land into tribal 

ownership. At the time, the Band was newly restored, had limited funds, took the donation 

of culturally significant lands when offered only 4 years after restoration, and requested 

withrn a year dmt the land be put into trust. This was consistent with the Rand's trust land 

acquisition gods of fostering economic development, self-determination, and cultural 

survival though cultural preservation and relqgous activities. Tullis Aff. 77 5-6. In addmon, 

the Tribe requested that the Tallapoosa Site be takcn into trust before many of the other 

parcels that were accepted into trust on its behalf, and the United States had determined that 

the land should be taken into trust five years before it acted to do so. 

Even though, then, the Tallapoosa Site was not part of the Hand's initial development plan, 

the BLA nevertheless took thc fortuitous acquisition into trust while taking other land into 

trust in furtherance of that plan. Acquisition of the TaLlapoosa Slte was thus part of the 

Band's first systematic effort to restore tribal Iands. 

2. Location of the Tntst Acquisition 

'I'he location of a trust acquisition is "arguably the most important" component of the 

restnrcd lands factors. Wyandotte, 437 F. Supp. 2d at 1214. What is significant here is a tribe's 

historical and modem ties to the land. Id at 121 6 (court "agrees with the NIGC that in order 

to evaluate this issue fuIly, the agency must evaluate the present circumstances of the Tribe 

and its relationship with the land at issue"). 

Page 23 of 27 
The Tallapoosa Site is only 12 miles fiom the Band's Wetumpka reservation. CommonIy 

known as 'FIickory Ground," Wetumph was the last governmental center of the Creek 

Nation before the Nation's removal westward in thc 1830's. Lester from Roger Sumner 

Rabh, Regional Solicitor, DO1 Southeast Regional Office, to Michael Cox, Gencrd Counsel, 

NIGC (Aug. 3, 1995). Wetumpka was also "the sitc of the Creek Nation's sacred fire, the 

ashes of which were transported to and rekindled at Hickory Ground in the present State of 

Oklahoma. The Hickory Ground in Alabama was also the site of a tradmg pas$ an inn, an 

Indian ball cnurt, and a horse racing track where gaming frequently occurred." Id 

Accordmgly, Wctumpka was sad to be "of particular historical significance" to the Rand by 

the Eastern Office Area Director when recommending hat it be proclaimed a reservation. 

Letter from Bill U. Ott to Acting Assistant Secretary - InAan Affairs re: Request for 

Reservation Proclamation (Feb. 12, 1985). 

Although the Banas members and main affrlrations were with Atmore, Alabama, at the tiine 

of removal, OF11 memo, p. 3 of 130, the Rand has both fadal and tribal ties to the 

TaLlapoosa and Wetumpb area. Located on che southeast bank of the Tallapoosa hver in 

Montgomery County, Alabama, near the confluence of the Coosa and Tdhpoosa Rivers, the 

Tallapoosa Site lics in the center of an area that was cxclusivel~~ Iands of the hstoric Creek 

Narion from aboriffnal times until removal. Figure 1; rind .ref Aug 27,2004 affidavit of 

University of Auburn Professor of Anthropology John Cother at T( 12 ("mhe Tallapoosa 

Site currently owned by the Poarch Band of Creek Indians is within what was once the 

historic Creek town of Kolomi. Kolomi was geogtaphcally a central area of the Creek 

Nation in htoac times - and could by no means be viewed as a fringe area within the 18'~ 

and 19'~ century Creek Nationa7). 

Of equaI importance is the fact that members of the Poarch Rand trace their heage directly 

from thc Upper Crecks and their villages, includ~ng Kolomi, along the drainage o[ the Coosa 

and Tallapoosa Rivers m northeastern Alabama within an area ceded to the United States by 

the 1814 Treaty of 1;ort Jackson. I;icgure I; Cottier Aff. at 7 7. Tt was known to the public that 

the Tallapoosa Site contains two aboriginal Creek earthen burial mounds, and the previous 

land owner was aware of their mportance and prevented uncontrolled excavation or fdng 

activities that would cbsturb the site. Silvia report at 2. 

I<ven after relocahg south to Tensaw and Atmore, the Band continued to maintain its 

connection to Wetumpka. Many of the Rand's ancestors were political leaders, such as 

Alexander McGAvray-, who stayed connected to Hickory Ground (Wetumpka) and the 

rcgon through their participation in govemmenta1 matters. OFA memo, pp. 16,69-73. 

Indeed, Alexander McGlZlivrap was a signatory to the Treaty of New York, and he was 

accompanied on his trip by his nephews, LachIan Durant and David Tate, also Poarch Band 

forebears. OFA memo, p. 16,71 of 130. Many of thc Band's ancestors also had bnd 

holdngs in both the Tensaw regon and in the Upper Creek towns. OFA memo, pp. 70-72 

of 130. The lands were cornrnody used for hunting, tra* and farming. 

'I'he Powch Band also has important modem ties to the area, other than through its 

affiliation with thc historic Creek Nations. The Band's Historical Preservation Officer, for 

cxamplc, protects and preserves the burial mounds located on the TalIapoosa site and from 

there g-ashcrs plants used 1n traditional Creek ceremonies as the plants are not available on 

the Atmore resen-auon. Dccl. of Robert 'I'hrower (Mar. 22,2007). It is in view of such tics 

Page 24 of 27 
that the BLh's Division of Trust Services found the Tallapoosa Site to be "probably 

sipficant" and "may be important to the Tribe culturall~~.'' Letter from I'astern O fficc Area 

Director to Eddie Tullis, Chairman, Poarch 13md of Creek Indians (Oct. 22, 1990). 

Given these facts, there is a nexus between the Poarch Band and the Tallapoosa Site 

consistent with that found in our previous opinions. Past in&cators of a connection we have 

examined include how significant the land is to the tribe, whether the gaming site is with a 

former rescn~ation or ceded lands of the tribe, and whether thc land is ncar to a tribal center 

or tribal programs. 

First, we have looked at the sigmficance of the gaming slre and nearby uca to the tribe. In 

Grand Trarrerre, we found that restoration was shown by the "Band's substantial evidence 

tcnding ta establish that the.. .site has heen important to the tube throughout its history and 

remained so immedmtely on resump tion of federal recoptlon." MGC Grmd Trmwrre 

Opinion at 15. The Grand Traverse Band had lived and worked near the Turtle Creek site 

from the timc of its first recorded history, Id at 18, and the land had '%been at the heart of 

the Band's culture throughout hstory.. ." Id at 19. Additionallv, the Gos tribes were 

"seeking to game on Iand which has been htstorically tied to the Tribes and has a close 

geographic proximitr: to the Tribes." DO1 Coos Opinion at 14. 

Here, the Site is at the core of the Creek Nation's former territory and is additionaNy the site 

of an ancestral Poarch Band village. In adhtion, the Tallapoosa Site was known to contain 

Creek burial mounds. Several other Inchan lands opinions have mentioned as a consideration 

that the local community had known for years the land was closeIy tied to that tribe. NJGC 

Grand Trare~se Opinion at 1 8-1 9; DOI Coos Opinion at 13. 

Beyond containing bukaI mounds and an ancestral \dlage ~tself, thc Tallapoosa Site is also 

ncar the spiritually important site of the former Creek sacred firc at Wetumpka, 12 miles 

away. Previous positive opinions hax~e found a nexus when the proposed gaming site was 

near ancestral villages and religious sites. 

In our fi4ecboopda opinion, three buttes that figured prominently in a tribal myth were located 

one mile from the parcel, a histonc trail linking several tribal villages crossed the parcel, and 

several Mechoopda vdlages were located in close proximity to the site. NTGCMechoopdn 

Opinion at 1 0-1 1. In our Rohne1^~dfIe opinon, the parcel was located within one mile of two 

aboriginal villages and two major tribal trds and was within three miles of five aboripal 

villages. hTIGC Rohnerrd/e Opinion at 11. Also, the site of a mythic flood in tribal lore was 

wih three or four miles from the Rohnerville site. 

We have also examined whether the proposed gaming land is within a former resewation or 

1:md ceded to the United Statcs by treaty. Both the Grand Trwven-e I and Coos courts held that 

"[pllacement mitkrn a prior resewation is significant evidence that the land may be 

considercd in some sense restored." See Gmnd Trnv~se 1,46 F. Supp. 2d at 702; and <,>us, 1 1 G 

I;. Supp. 2d at 164. rl historical nexus has also been found when the gaming site was ceded 

to the United States via treaty. NJGC SaatLf Ste. hfune Opizion at 1 1 - 1 2. In Grmd Tmmw 11, 

the Court held that the lands lay with counties that had previously been ceded bv the tribe 

to the Unitcd States. 198 F. Supp. 2d nt 936. Thc Sndr Ste. Mane Tribe was one of a number 

of separately recopzed Chppewa bands that ceded lands m the Treaty with the Ottawa, 

Page 22 of 27 
Etc., Mar. 28, 1836 (7 Stfit. 491). Herc, the TaIlapoosa Site was ceded to the United States by 

thc Creek Confederacy m 1814 as a result of the war against the Hostile Creeks. 

Next, the NIGC has tnken into consideration the proximity of the land in cluestion to the 

tribal center, programs, and rnembershp. The Tdapoosa Site is only 12 miIes from a 

portion of thc Poarch reservation. Many of our previous positive opinions have dealt with 

smaller distances. IVIGC' hhnenrilke Opinion (6 miles horn oripal xanchena); NSCC Mtcboopda 

Opzniola (1 0 miles from original rancheria). 

Accordingly, the facts show that the Rand has stsong hstonczl and modern ties to the 

Tallapoosa Site. %hose ries are sufficient to show that the Site is land restored to the Band. 

3. Temporal relationship of the trust acquisition to tribal restoration 

Finally, there is the question of whether the thing of the acquisition of the Site supports a 

conclusion that the land is restored. A-pin, when the Rand repined recogmtlon in 1984, it 

had no land base at all. In late 1984, eight small parcels mounting to approximately 229% 

acres were taken into mst and made the Atmore and LVetumpka reservation. These 

acquisitions constituted the begmmg of the Band's plan to reestablish a post-recognition 

land base. 

As discussed above, the acquisition of the Tallapoosa site occurred in the middle of the timc 

frame to re-establish a hnd base. Again, the Band's fee acquisition of thc Tallapoosa Slte 

occurred in 1988, only four years after the Rand's restoration to federal recoption, when it 

was donatcd to the Rand by a local private owner. In 1989, one year later, within five years 

of restoratnon, che Hand applicd to the RIA to have the Site taken into trust. When the 

Eastern Office Area Director sought more infoimation, the Band provided the report of Dr. 

Silva in 1390, six years after restoration. Letter from R.D. Ott, Eastern Office Area Director, 

to Edclie Tullis, Chairman, Poarch Band af Creek Indians uune 1,1990). 

Pot whatever reasons, it took an additional four years for the BIA to cornpletc the 

Tallaponsa trust acquisition. In the meantime, it took five more sites tothg just under 133 

acrcs in trust for the Rand, dl in 1992. Letter from Willram R. Perry, Esq., Sonosky, 

Chambers, Sachse, Endreson & Perry, tu Andrea Lord, Esq., NIGC (July 18,2007). Thc 

acquisition of the Tallapoosa Sitc, then, was contemporaneous with the trust acquisitions for 

the Rand that occurred after the proclamation of its initial reservations. Accordingly, the 

timing supports a findrng that the Site acquisition was part of a larger process of restoring 

lands for the Band. 

111. Conclusion 

Given all of the foregoing, and in hght of tlhc factual circumstances of the TaIlapoosa 

acquisition, thc Band's modem and IistolicaI connections to it, and the tirning of the 

acq~usiuon in the middle of the Eand's efforts to acqlllre other lands, the Tallapoosa Site xs 

"rcstored lands." 11s the Band is a "restored tribe," the Tallapoosa Site is Indian land that 

falls withn the exception of 25 U.S.C. 6 271 9(b) (1) (R)(iii) and is eligble for @ng 

notwithstanding its acquisition after the effective date of TGRA. 

Page 26 of 27 
Thank you for patience on this mamr. For me, the stam of the Tallapoosa Site is resolved 

and we will continue to regulate the Bds facility 

Sincerely, /-- -, >'- 

Philip N. Hogen 

Chairman 

Cc: W&am Perry, Sonsob, Chambers, Sachse, Endreson &Perry 

Aurene Martin, Ietan Consulting 

Cindy Altimus, Region Director 

Carl Artman, Assistam Secretary - Indian Affain 

Edith Blackwell, Acring Associare Solicitor 

George Skikine, Director, Office of Indian Gaming 

Troy King, Attorney General, State of Alabama