TO: 

MEMORANDUM 

P' 

George T. Skibine, Acting Chairman 

-' ,J 

THROUGH: Penny Coleman, Acting General Counsel t 

Michael Cross, Associate General Counsel for General Law@d 

CC: Elaine Trimble-Saiz, Director, Contracts Division 

FROM: Jeffrey Nelson, Senior Attorney Gdy3/ --?7 

/ 

DATE: Januay 7,201 0 

RE: Indian Lands -- Iowa Tribe of Oklahoma; Whitecloud Allotment 

This Indian lands opinion is prepared in response to the submission of a proposed 

management contract to the National Indian Gaming Commission ('NIGC") by the Iowa 

Tribe of Oklal~orna ("the Tribe"). Pursuant to the Indian Gaming Regulatory Act 

(TGRA"), the NTGC's regulations, and agency policy, the NIGC Chairman will not 

entertain approval of a proposed management contract unless the Tribe establishes that 

the gaming activities will be conducted on Indian lands eligible for gaming under IGRA. 

As further set forth in this document, the Tribe's proposed gaming site constitutes Indian 

lands upon whch the Tribe may conduct garning under IGRA. 

I. Background 

The Tribe's proposed casino complex-including a hotel, administration building, 

special event center, and several parking lots-is planned for construction on 

approximately 1 70 acres of fee and trust land in Lincoln County, Oklahoma, less than 30 

miles northwest of Oklahoma City and approximately five miles west of Chandler at U.S. 

Interstate 44 and State Highway 66. Currently, the Tribe plans to build the casino on 65 

acres of trust land known as Parcel 58-B of the Julia Whitecloud Allotment. There were 

once plans to use both Parcels 58-B and the adjacent Parcel 58-A (1 5 acres) for the casino 

development, but the Tribe has not yet been able to obtain Bureau of India11 Affairs 

("BIA") approval of a necessary transaction pertaining to Parcel 58-A. Therefore, the 

Tribe has revised the proposed scope of work in order to move fonvard with a casino to 

be constructed entire1 y within the 65-acre Parcel 5 8-B. 
Although the current gaming plans are limited to Parcel 58-B, this memorandum 

will analyze the Eands status of both Whitecloud Allotment parceIs in anticipation that the 

Tribe may wish to expand its gaming activities onto both parcels if the BIA approves the 

necessary transaction for development of Parcel 58-A. 

The legal land descriptions of the two trust parcels are: 

Parcel 58-A: 

W12 EJ2 W/2 NE/4 NW/4 and Wl2 W12 NE14 NWl4 of Sec 1 5-1 4N3EIM, Lincoln County, Oklahoma, consisting of 15 acres more or less. 

Parcel 58-B: 

E12 EJ2 Wl2 NE/4 NW/4 and E12 NEJ4 NWJ4 and SE14 NWl4 of Sec 15- 

14N-3EIM, Lincoln County, Oklahoma, consisting of 65 acres more or 

less. 

11. History of the Site 

On August 15, 1883, President Chester A. Arthur created a reservation for the 

Iowa Tribe in the Indian Territory (now Oklahoma). The full text of the executive order 

reads: 

It is hereby ordered that the following-described tract of country in the 

Indian Territory, viz: Commencing at the point where the Deep Fork of 

the Canadian River intersects the west boundary of the Sac and Fox 

Resewation; thence north along said west boundary to the south bank of 

the Cirnarron River; thence up said Cimarran River to the Indian meridian; 

thence south along said Indian meridian to the Deep Fork of the Canadian 

River; thence down said Deep Fork to the place of beginning, be, and the 

same hereby is, set apart for the permanent use and occupation of the Iowa 

and such other Indians as the Secretary of the Interior may see fit to locate 

thereon. 

Reprinted in 1 Indian Affairs: Laws and Treaties 843-44 (2d ed. Charles J. KappIer ed., 

Gov't Printing Office 1904). 

This now-former reservation is depicted on a Department of the Interior map 

titled "Indian Territory of Oklahoma," Bureau of Land Management {2d Rev. June 15, 

2005). 

On February 13, 1 891, Congress enacted a statute, 26 Stat. 749, to ratify an 1 890 

agreement by which the Iowa Tribe agreed to '"relinquish to the United States all their 

right, title, claim and interest in and to and over" the Iowa Reservation, provided that 
"[elach and every member of said Iowa Tribe of Indians shall be entitled to select and 

locate upon said Reservation or tract of Country eighty acres of land which shall be 

allotted to such lndian in severalty." Id. at 754. The statute further stated: 

Upon the approval of the allotments provided for herein by the Secretary 

of the Interior, he shall cause patents to issue therefore in the name of the 

alIottees, which patents shall be of the Iegal effect and declare that the 

United States does and will hold the land thus allotted for tlte period of 

twenty-five years in tnlst for the sole use and benefit of the Indian to 

whom such allotment shall have been made, or in case of his or her 

decease, of his or her heirs or devisees according to the laws of the state or 

territory where such land is located, and that at the expiration of said 

period, the United States wilI convey the same by patent to said Indian or 

his heirs or devisees as aforesaid in fee, discharged of said trust and free of 

all incumbrance whatsoever. 

Id. at 755. 

In September 189 1, Julia Whitecloud, a member of the Iowa Tribe, was granted 

Allotment 58, comprising 80 acres. The NIGC has not been provided with a copy of the 

1891 patent, but this information is recorded in a BIA allotment record on file with the 

NIGC. Furthermore, the BLA has confinned that the Whitecloud Allotment is within the 

former historic reservation boundaries of the Iowa Tribe of Oklahoma. See Letter from 

Dart Deerinwater, BIA Southern Plains Regional Director, to Penny Coleman, NlGC 

Acting General Counsel (June 22,2009). 

Notwithstanding the fact that Congress originally designated a 25-year tmst 

period for Iowa Reservation allotments, the Whitecloud Allotment was subject to a 

number of trust period extensions and never lost its trust status. See Extension of the 

Tmst or Restricted Status of Certain Indian Lands, 25 C.F.R. ch. I App. (2007); E.O. 

2432 (Aug. 1, 1 91 61, repri-inted in 4 Indian Affairs: Laws and Treaties 1041 (Charles I. 

Kappler ed., Gov? Printing Office 1929) (1 0-year extension to E 926); E.O. 4435 (Apr. 

29, 19261, cited in 25 C.F.R. ch. I App. (2007) (1 0-year extension to 1936); E.O. 7206 

(Oct. 14, 19353, reprinted in 5 Indian Affairs: Laws and Treaties 678 (Charles J. Kappler 

ed., Gov7t Printing Office 1941) (I 0-year extension to 1946); E.O. 9659 (Nov. 21, 1945), 

reprintecl in 7 hdian Affairs: Laws and Treaties 1458 (Charles J. Kappler ed., Gov't 

Printing Office) (25-year extension to 1971); 33 Fed. Reg. 15,067 (Oct. 9, 1968) (5-year 

extension to 1976); 3 8 Fed. Reg. 34,463 (Dec. 14, 1973) (5-year extension to 198 1); 43 

Fed. Reg. 58,369 (Dec. 14, 1978) (5-year extension to 1986); 48 Fed. Reg. 34,026 (July 

27, 1983) (5-year extension to 199 1); 101 Pub. L. 301 8 3(a) (May 24, 1990) codified at 

25 U.S.C. 5 478- 1 (applying the indefinite trust period extension in the Indian 

Reorganization Act (25 U.S.C. Jj 462) to all trust parcels). 

Julia Whitecloud died in 1 942 (Probate #45 143-42). Her interest in Allotment 5 8 

was divided between five children and three grandchildren. On February 6, 1963, the 
Department of the Interior approved two trust deeds (on file with NIGC) that partitioned 

AIIotment 58 into Parcels 58-A and 58-B. 

A. Subsequent History of Parcel 58-A 

By means of the 1963 partition, the beneficial interest in Parcel 58-A was 

consolidated and transferred to Louis Kihega, one of Julia Whitecloud's sons. The trust 

deed for Parcel 58-A (copy on file) identifies the grantors and the grantee as "Indians of 

the Iowa Reservation.'" BIA tract history report for Parcel 58-A identifies Louis Kihega 

and nine of the eleven grantors as members of the Iowa Tribe. This report identifies the 

other two grantors as members of the Otoe-Missouria Tribe. 

According to notations on the BIA tract history report, Louis Kihega married 

Eunice Whitehorn, a member of the Otoe-Missowia Tribe. In 1 974, the interest in Parcel 

58-A conveyed equally to huis's wife and two daughters, all three of whom were 

members of the Otoe-Missouria Tribe. In 198 1, the 1/3 interest held by Louis' wife 

conveyed to their two daughters, who already held '113 interests, giving a 1/2 interest to 

their daughter Lois Kihega Moon and a 1 I2 interest to their daughter Leora Marlene 

Kihega Echohawk. In 2003, the 1/2 interest held by Lois Kihega Moon conveyed to her 

son, James Moon Jr., a member of the Iowa Tribe. 

The beneficial interest in Parcel 58-A currmtly is held in equal parts by Leora 

Marlene Kihega Echohawk, a member of the Otoe-Missouria Tribe, and James Moon Jr., 

a member of the Iowa Tribe. The Iowa Tribe plans to buy the undivided 112 interest 

currently held by James Moon through trust-to-trust transfer, but it is this transaction that 

the BIA has yet to approve. The current status is that on .Tune 8,2007, James Moon 

executed a trust deed (copy on file) to convey his interest in Parcel 58-A to the United 

States in trust for the Iowa Tribe. That trust deed has been submitted to the BJA, but the 

BIA has not yet taken final agency action to accept it into trust. If the BTA accepts the 1/2 

interest into trust, the two land owners would be the Iowa Tribe and Ms. Echohawk. If 

that happens, the Iowa Tribe and Echohawk plan to enter a 25-year (renewable for 

another 25-year term) business lease with an enterprise arm of the Tribe (unexecuted 

draft on file). The parties are aware that the business lease also would have to be 

approved by the BIA before the Tribe's enterprise body could take possession of the land 

and expand the gaming facility thereon. 

B. Subsequent History of Parcel 58-B 

When Allotment 58 was partitioned in 1943, Louis FClhega and his wife 

transferred their inherited interests in Parcel 58-B to seven individuals, all of whom are 

identified as "Indians of the Iowa Resenration" on the trust deed (copy on file). A BIA 

tract history report for Parcel 58-B identifies Louis Kihega and six of the seven grantees 

as members of the Iowa Tribe. The other grantee, Frances Little Crow, is identified as a 

member of the Otae-Missouria Tribe. Since 1963, the interests in Parcel 58-B continued 

to fractionate, until more than 100 individuals owned undivided shares of the trust estate. 

These individuals were members of eleven different tribes, which included the Iowa 
Tribe, but also included the Otoe-Missouria Tribe, the Ponca Tribe, the Osage Tribe, the 

Kiowa Tribe, the Pawnee Nation, the Citizen Potawatomi Nation, the Chickasaw Nation, 

the Choctaw Nation, the Creek Nation, and the Sac & Fox Nation of Missouri. 

In order to advancc its goals for this site, the Iowa Tribe offered to buy the 

fractionated interests of the landowners, and from 2006 to 2008, the Department of the 

Interior approved 65 deeds to restricted Indian land whereby the individual owners of 

Parcel 58-B conveyed their trust interests to the United States in trust for the Iowa Tribe, 

giving the Iowa Tribe more than an 80% ownership interest, The tnbal memberships of 

the 65 grantors are as follows: 26 grantors are members of the Otoe-Missouria Tribe; 23 

grantors are members of the Iowa Tribe; 10 grantors are members of the Pawnee Tribe; 

three grantors are members of the Kiowa Tribe; two grantors are members of the Osage 

Nation; and one grantor is a member of the Muscogee (Creek) Nation. 

The Iowa Tribe has entered a 25-year business lease with its casino enterprise 

body, renewable for another 25-year term (copy on file). Although there are other 

landowners, the Tribe is the sole lessor. This is allowed by 25 U.S .C. (j 22 1 8(b), which 

establishes the applicable percentage of owners who must consent to an allotment lease, 

depending on how many owners there are. The BIA's records indicate that there are still 

more than 20 owners of the allotment parcel, which means that only the owner(s) of a 

majority of the interests must consent. 25 U.S.C. 8 221 8(bj(1 )(D). Because the Tribe 

owns more than 80% of the interests, its consent is the only consent required. 

Accordingly, the BM approved the lease in December 2008. 

111. Applicable Law 

TGRA states that an Indian tribe may engage in gaming under ERA only on 

"Indian lands" that are "within such tribe's jurisdiction." 25 U.S.C. 6 2710(b)(1), (dS(1). 

Further, if the land upon which gaming is contemplated is not within the limits of a 

current Indian reservation, a tribe may conduct gaming only if it exercises "governmental 

power" over those lands. 25 U.S.C. 5 2703(4)(B); 25 C.F.R. $ 502. I2@). TGRA defines 

Indian lands as: 

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

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

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

individual subject to restriction by the United States against alienation and 

over which an Indian tribe exercises governmental power. 

25 U.S.C. $2703(4). The NGC" rreguIations further clarify the definition by 

providing that: 

Ittdian lands means: 

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

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

that is either- 
(1) Held in tmst by the United States for the benefit of any Indian 

tribe or individual; or 

(2) Held by an Indian tribe or individual subject to restriction by 

the United States against alienation. 

25 C.F.R. 9 502.12. 

Finally, IGRA prohibits gaming on Indian lands accepted by the Secretary of the 

Interior into trust for the benefit of an Indian tribe after October 17, 1988, unless the 

lands fall within certain statutory exceptions. See 25 U.S.C. 5 2719. 

IV. Analysis 

As discussed below, both parcels qualify as Indian lands upon which the Iowa 

Tribe may conduct gaming because they are hetd in trust for individual Indians and the 

Iowa Tribe; the Iowa Tribe has had long-standing legal jurisdiction over these parcels; 

the Iowa Tribe exercises present governmental power over these parcels; and to the 

extent that Section 2719 applies to the recent trust-to-tmst conveyances, the parcels 

qualify for the Oklahoma former reservation exception. 

A. Trust Status 

The proposed gaming sites are "lands title to which is . . . held in trust by the 

United States for the benef t of any Indian tribe or individual. . . . ." 25 U.S.C. 

tj 2703(4)(B). As detailed in Section II above, title to this allotment was held in trust by 

the United States for the benefit of Julia Whitecloud and her heirs from 1 891 until 2006- 

2008, when a majority of the undivided shares in Parcel 58-B were conveyed to the 

United States in tmst fox the Iowa Tribe. The remainder of interests (< 20%), continues to 

be held in trust for individual Whitecloud heirs. Currently, Parcel 58-A continues to be 

held in trust for two Whitecloud heirs, but the Iowa Tribe has requested the BLA to 

approve a trust conveyance whereby the United States would hold 50% of the undivided 

shares in trust for the Iowa Tribe. Because the definition of Indian lands includes lands 

that are held in trust both for tribes and individuals, the parcels currently qualify under 

this part of the analysis and will continue to qualify should the BIA approve the Parcel 

58-A trust conveyance to the Tribe. 

B. Legal Jurisdiction and Exercise of Governmental Power 

For a tribe to be able to conduct gaming, the land on which it proposes to game 

must be land over which the tribe possesses jurisdiction and exercises governmental 

power. 25 U.S.C. $5 2703(4)(B), 2710(b)(l), (d)(I). 

1. Jurisdiction 

Tribal jurisdiction is a threshold requirement to the exercise of governmental 

power. See e-g., Rhode Island v. Narrgunsett Inclian Tribe, 1 9 F.3d 685,701 -703 (1 st 
Cir. 19941, cerf. denied, 5 1 3 U.S. 9 1 9 (1 994), szaperseded hy statute as stated in 

Narragunsett Indian Tribe v. Nutio~taEIndicrn Gaming Commission, 158 F.3d 1335 (D.C. 

Cir. 1998) ("In addition to having jurisdiction, a tribe must exercise govmcntal power 

in order to trigger [IGRA]"); Miami Trihe of Oklahoma v. United States, 5 F. Supp. 2d 

1 2 13, 12 27-1 8 (D. Kan. 1998) (Mami 10 (a tribe must have jurisdiction in order to be 

able to exercise governmental power); Miami Tribe qf Oklahoma v. United States, 927 F. 

Supp. 1419, 1423 ID. Kan. 1996) (Miami 4 ("the NEGC implicitly decided that in order 

to exercise govemrnentaE power for purposes of 25 U.S.C. 3 2703(4), a tribe must first 

have jurisdiction over the land'") State ex. re!. Graves v. United States, 86 F. Supp. 2d 

1094 (D. Kan. 2000), aff'd and remanded sub prom., Kansas v. United States, 249 F.3d 

12 13 (1 0th Cir. 2001). This interpretation is consistent with IGRA's language limiting the 

applicability of its key provisions to "[alny Indian tribe having jurisdiction over Indian 

lands," or to "Indian lands within such tribe's jurisdiction." 25 U.S.C. $5 2710(d)(3)(A), 

27 1 O(b )(I)); see also Narragansett Indian Tribe, 1 9 F.3d at 70 1-703. Therefore, whether 

the Tribe possesses jurisdiction over the trust parcels is a threshold question. 

Generally speaking, an Tndian tribe possess jurisdiction over land that the tribe 

inhabits if the land qualifies as "Indian country." See Alaska v. Nntive Village of Venefie 

Tribal GOY 'f, 522 U.S. 520,527 n.1 (1 998); United Keetoowah Band of Clterokee Indians 

of Oklahoma v. United States Dept. of Horising and Urban Development, No. 08-7025, 

slip op. at P 1 n.5 (1 0th Cir. June 5,2009) ("[Als a general matter, Indian tribes exercise 

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

Indian allotments."). Congress defined the term Indian county as: "(a) all land within the 

limits of any Indian reservation . . . , (b) all dependent Indian communities . . . , and (c) 

a11 Indian aIlotments, the Indian titles to which have not been extinguished . . . ." 18 

U.S.C. 5 1 1 5 I . Although this definition applies directly only to federal criminal 

jurisdiction, the courts have also generally applied this definition to questions of civil 

jurisdiction. Venetie, 522 U.S. at 527. 

The subject parcels are Indian country, because they are "Indian allotments, the 

hdian titles to which have not been extinguished." 1 8 UPS .C. Ij 1 15 1 (c). Still, the 

question remains whether the Iowa Tribe, in particular, is the tribe that "inhabits" this 

Indian country and thereby has jurisdiction over it. As detailed above in Section TI, not 

every Whitecloud heir who owns an undivided share of the trust parcels is a member of 

the Iowa Tribe. In fact, 50% of the undivided interests in Parcel 58-A currently is held by 

a member of the Otoe-Missousia Tribe, and the parties have no plans to change that 

aspect of the ownership status-rather, the Tribe is planning to enter a lease with her. 

With regard to Parcel 58-B, the Iowa Tribe itself now holds more than 80% of the 

undivided interests in the land, but the minority interests are held by members of multiple 

tribes. 

We are not aware of any federal case law that establishes whether a tribe 

maintains exclusive tribal jurisdiction over a former-reservation allotment granted to a 

member of that tribe when ownership of the allotment is later inherited in part by 

members of other tribes. After consulting with the DOI, the opinion of this office is that a 

tribe that had a reservation subject to alIotment maintains exclusive tribal jurisdiction 
ovcr trust or restricted fee allotments granted to its members within its reservation unless 

the United States transfers jurisdiction over the land to another tribe through legislation 

or hy trust deed. An inquiry into a: tribe's jurisdiction focuses principally on 

congressional intent and purpose. Kansas v. United States, 249 F.3d 12 13, 1229 (1 0th 

Cir. 2001). Congress has the power to create or eliminate tribal rights, and in the absence 

of congessional action, "[aln Indian tribe retains only those aspects of sovereignty not 

withdrawn by treaty or statute." Id. It would he difficult 20 square this legal underpinning 

with a decision that an Indian tribe atltomatically gains jurisdiction over new lands when 

one of its members inherits an ownership interest in an existing trust parcel under another 

tribc's jurisdiction, or that by the same operation the tribe of the original allottee could 

lose exclusive jurisdiction over an allotment taken from its own reservation. Moreover, 

such a system wouId exacerbate the jurisdictional morass of checkerboarding that 

currently exists because of the federal government's allotment policies and would greatly 

hinder a tribe's ability to do any long-term planning and governance concerning the 

allotted lands within its jurisdiction. 

The opinion that the Iowa Tribe maintains its original tribal jurisdiction over the 

fractionated Whitecloud AlIotment is supported-albeit indirectly-by several cases. In 

DcCoteau v. Dist. Couny Court for the Tenth J~lclzcial Dist., 420 U.S. 425 (1 9751, the 

U.S. Supreme Court determined that the Lake Traverse Indian Reservation in South 

Dakota was disestablished by act of Congress. Id. at 445. Although the opinion concerned 

Indian conduct on the ceded, nun-Indian lands within the former reservation, the Court 

noted in dicta that: "It is common ground here that Indian conduct occurring on the trust 

allotments [within the former reservation] is beyond the State's jurisdiction, being instead 

the proper concern of hbal or federal authorities." Id at 428. Consistent with that 

language. the Court later stated: "[TJhe tribe and the [U.S.] Government were satisfied 

that retention of allotments would provide an adequate fulcrum for tribal affairs. In such a 

situation, exclusive tribal and federal jurisdiction is limited to the retained allotments." 

Id. at 446 (citing 18 U.S.C. 5 1 15 1 (c); United States v. Pelican, 232 U.S. 442 (1 914)). It 

went unstated in the opinion, but from context it seems clear that the Court was referring 

to exclusive tnbal jurisdiction of the Sisseton-Wahpeton Tribe for which the Lake 

Traverse Indian Reservation was created and whose members received the allotments, 

without regard to the possibility that through inheritance, the allotments could eventually 

be owned in whole or in part by members of other tribes. 

Similarly, in Mustang Production Co. v. Harrison, 94 F.3d 13 82 (1 0th Cir. 1996), 

the Tenth Circuit held that even aRer Congress disestablished the Cheyenne-Arapaho 

Tribes' reservation in Oklahoma, "the allotted lands were set aside for the use of the 

Tndians, remaining part of Indian country. . . over which the Tribes have civil 

jurisdiction." Id. at 1386. As in DeCoteau, the court in M~~~turag did not address whether 

the Cheyenne and Arapaho Tribes for which the reservation was created would lose or 

share jurisdiction with another tribe if an allotted parcel came to be held by a member or 

members of different tribes. 

The Tenth Circuit's opinion in Pittsburg & Midway Coal Mining Co. v. 

Watchman, 52 F.3d 153 E (10th Cir. 1995) contains a pronouncement that is in line with 
its subsequent holding in Mustang: "[Wle believe the Navajo Nation has the authority to 

apply its Business Activities tax to the source gains from the 47% portion of the South 

McKint cy Mine that lies within the [off-reservation] individual Navajo trust allotments." 

Id. at 1542 n.11. This language demonstrates the court's view that the Navajo Nation 

holds civil jurisdiction over trust allotments held by members of the Navajo Nation; but 

Iike the other cases, it does not address what the outcome would he if the trust allotments 

came to be held by members of different tribes. 

The position that the Iowa Tribe maintains exclusive jurisdiction over the nowfractionated Whitecloud Allotment is not undermined by the Maria Christiana line of 

agency opinions and cases holding that the Miami Tribe of Oklahoma does not have 

jurisdiction over the Maria Christiana AIIotment. The facts behind the Maria Christiana 

Allotment have at least three significant differences. First, the Maria Christiana 

AIIotnlent was granted by Congress to an individual of Indian descent, but not a member 

of any tribe. Miami Tribe v. United States, 927 F. Supp. 1419, 1427 (D. Kan. 1996). 

Second, the Miami Tribe objected to the grant of allotments to non-members and 

eventually received cash payments (plus interest) for the divestitures. Id. at 1426. 

Therefore, the district court stated: "This court has no diMicuIty concluding from this 

series of events that plaintiff [Miami Tribe] unmistakably relinquished its jurisdiction 

over Reserve No. 35 [the Maria Chsistiana Allotment]." Id. (footnote omitted). And third, 

the applicable treaties and legislation regarding the Miami Tribe clearly contemplated 

that the Miami Tribe would move from its reservation in Kansas (location of the Maria 

Christiana Allotment) to Oklahoma, which it did. Id. In contrast to those facts, the 

allotment in this inquiry was granted to a member of the tribe seeking to exercise 

jurisdiction; the Iowa Tribe has always treated the parcel as being under its jurisdiction; 

the legislation that allotted lands within the Iowa Tribe5 s reservation did not contemplate 

that the Iowa Tribe would move away; and indeed the Iowa Tribe did not move from its 

Oklahoma land base when its reservation was allotted. For these reasons, the present 

issuc is distinguishable fiom the line of cases concerning the Maria Christiana Allorrnent. 

TIzerefore, it is this of.fice7s opinion that the Iowa Tribe maintains exclusive tribal 

jurisdiction over the Whitecloud Allotment. 

2. Governmental Power 

The next question is whether the Tribe exercises govemmental power over the 

Whitecloud Allotment. See 25 U.S.C. 5 2703(4)(B$; see also Rhude Island Y. 

hrarr-cgunsett I'nclinn Tribe, 19 F.3d 685,703 (1st Cir. 1994). 

IC;RA is silent as to how NTGC is to decide whether a tribe exercises 

governmental power over lands at issue. Furthemore, the manifestation of governmental 

power can differ dramatically depending upon the circumstances. For this reason, the 

NIGC has net formulated a uniform definition of exercise ofgovernmental power, but 

rather decides that question in each case based upon all the circumstances. See National 

Indian Gaming Commission: Definitions Under the Indian Gaming Regulatory Act, 57 

Fed. Reg. 12382, 12388 (1992). 
CaseEaw provides some guidance. The First Circuit in Narragansett hdian Trihe 

found that satisfyng this requirement depends "upon the presence of concrcte 

manifestations of [governmental] authority."]. 9 F.3d at 703. Such examples include the 

establishment of a housing authority, administration of health care programs, job training, 

public safety, conservation, and other governmental programs. Id. 

In Cheyenne River Sioux Tribe v. State of South Dakota, 830 F. Supp. 523, 528 

(D.S.D. 19931, af'd, 3 F.3d 273 (8th Cir. 19931, the court stated that several factors 

might be relevant to a determination of whether a tribe exercises governmental power 

over subject lands for purposes of IGRA. The factors were: 

(1) Whether the areas are developed; 

(2) Whether the tribal members reside in those areas; 

(3) Whether any governmental services are provided and by whom; 

(4) Whether law enforcement on the lands in question is provided by 

the Tnb~; and 

(5) Other indicia as to who exercises governmental. power over those 

areas. 

In this matter, the Tribe has identified several actions that demonstrate its present 

exercise of governmental power over the planned casino site, which is currently used for 

residential purposes. Specifically, the following actions are significant: 

(1) The Iowa Tribe provides (apparently rather extensive) law enforcement 

senices en the site through the Iowa Tribal Police Department, as 

evidenced by a sample of tribal police reports and affiliated tribal police 

documents provided to the NJGC by the Tribe; 

(2) The Tribe exercises criminal jurisdiction over the site, as evidenced by an 

Tewa Tribal Court pleading (criminal complaint) involving incidents on 

Parcel 58-A provided to the NIGC by the Tribe; and 

(3) State law enforcement officials and prosecuting attorneys from 

surrounding jurisdictions recognize the Iowa Tribe's jurisdiction and 

lawful exercise of governmental power, as evidenced by a sample of 

police reports provided to the NIGC by the Tribe. 

These actions constitute "concrete manifestations of governmental authority" over 

the mtecleud Allotment. Therefore, the Tribe exercises governmental power over the 

site, and the site is Indian lands as defined by IGRA. 
C. After-Acquired Lands Prohibition 

IGRA's general prohibition against gaming on after-acquired lands states: 

"Except as provided in subsection (b) of this section, gaming regulated by this chaptcr 

shall not be conducted on lands acquired by the Secretary in trust for the benefit of an 

Indian tribe after October 17, 1988, unless . . . [providing exceptions]."' 25 U.S.C. 

8 2719. In this case, the Iowa Tribe obtained its trust interest in Parcel 58-B in 2006- 

2008, and the Tribe is still petitioning the BIA to approve its trust interest in Parcel 58-A. 

Therefore, there is an argument that the lands were or will be "acquired by the Secretary 

in trust for the benefit of an Indian tribe aRar October 17, 1988." However, the afteracquired Iands provision of IGRA is open to interpretation. In an earlier memorandum, 

the NIGC's Office of General Counsel considered a situation where the trust interest in 

an allotment was transfmred on May 10,2000, fmm a member of the Kiowa Tribe to the 

Kiowa Tribe itself. In that memorandum, we stated: "Because the property at issue has 

remained in trust, on behalf of a Kiowa tribal members [sic] and then on behalf of the 

Kiowa Tribe, the prohibition against Indian gamins on parcels acquired in trust after 

October 17, 1988 and the exceptions thereto set forth in 25 U.S.C. 6 2719 do not apply." 

Memorandum fiom Jo-Ann M. Shyloski, Senior Attorney, to Philip N. Hogen, Chairman, 

re: Kiowa Indian Tribe of Oklahoma - Gaming Site at n.1 (Nov. 15,2005). 

It may be that the after-acqui-sed lands prohibition should not apply where the 

trust acquisition does not transfer jurisdiction from one tribe to another. In this case, the 

Iowa Tribe has maintained jruisdiction over the proposed gaming site since well before 

IGRA's enactment in I 988. Recently, the Tribe has obtained trust-to-trust transfers that 

give the Tribe itself a significant trust interest in the land. Not all of these trust-to-tmst 

transfers occurred between the Tribe and its members-in fact, a majority occurred 

between the Tribe and members of other tribes. But because the Iowa Tribe maintained 

jurisdiction ovet this land despite partial ownership by members of other tribes, these 

trust-to-trust transfers made no changes to tribal jurisdiction over the land. Therefore, 

there would be no congressional or public policy purpose served by applying the afterac.quired lands prohibition. 

In any case, even if the conveyances from members of other tribes to the Iowa 

Tribe trigger the general prohibition in Section 271 9, then the Tribe stilI would not be 

prohibited from gaming on the site, because the Iowa Tribe qualifies for a Section 27 1 9 

exception. IGRA creates an exception to the after-acquired lands prohibition for an 

"Indian tribe [that] has no reservation on October 1 7, 1988, and-(A) such lands are 

located in Oklahoma and+i) are within the boundaries of the Indian tribe's former 

reservation, as defined by the Secretary[.]" 25 U.S.C. 5 2319(a)(2)(A)(i). The Iowa Tribe 

had no reservation on October 17, 1988; the subject lands are located in Oklahoma; and 

the BIA has confirmed that the site is within the boundaries of the Indian tribe's former 

reservation. See Letter from Dan Deerinwater, BTA Southern Plains Regional Director, to 

Penny Coleman, NIGC Acting General Counsel (June 22,2009). Therefore, whether we 

consider Section 27 19 to be triggered or not, the Iowa Tribe may lawfully conduct 

gaming activities on the Whitecloud Allotment. 
V. Conclusion 

The proposed casino site is located on Indian lands upon which the Iowa Tribe 

may conduct gaming under IGRA. Therefore, the Chairman of the NIGC may approve 

the proposed management contract, assuming all other requirements are met. 

The Department of the Interior, Office of the Solicitor, concurs in this opinion. 

See Letter from Edith R. Blackwell, DO1 Associate Solicitor - Division of Indian Affairs, 

to Penny Coleman, NIGC Acting General Counsel @ec. 18,2009).