United States Department of the Interior 4. 

OFFICE OF THE SOLICITOR 

Washington, D.C. 20240 

MAY 1 2 4997 

Ms. Penny Coleman, Assistant General Counsel 

National Indian Gaming Commission 

1441 L Street, N.W., 9th Floor 

Washington, D.C. 20005 

Dear Ms. Coleman: 

On July 1, 1996 your office requested an opinion as to whether a restricted Indian allotment in 

the State of Kansas known as the Maria Christians Miami Reserve No. 35 falls within the 

statutory def~tion of "Indian lands" for purposes of the Indian Gaming Regulatory Act 

("IGRA"), 25 U.S.C. 8s 2701-21 (1988).' In a May 23, 1995, opinion, we determined that 

the Tribe did not exercise the necessary governmental powers over this land because the land 

was not owned by the Miami Tribe, the land had been erroneously allotted to non-members of 

the tribe and the Miami Tribe was compensated for this erroneous allotment, the owners of the 

restricted land were not members of the Tribe and the land was distant from the Tribe's land 

in Oklahoma. We concluded, therefore, that the land was not "Indian lands " under IGRA. 

Subsequent to our 1995 opinion, the district court in Miami Tribe of Oklahoma v. United 

States, 927 F. Supp. 1419 (D. Kan. 1996)@liami Tribe), determined that only lands within the 

Tribe's jurisdiction could qualiQ as "Indian lands" under IGRA. The court reviewed de novQ 

the legal determination by the Department that the tribe did not exercise governmental 

authority over the land. Id. at 1422. The court held that not only had the Miami Tribe 

relinquished its authority, but Congress abrogated the Tribe's governmental authority over the 

Kansas lands when the Tribe moved to Oklahoma and thus, the Miami Tribe did not retain 

jurisdiction over the allotment based on the tribal membership of either the original allottee or 

her heirs, who had not consented to membership. The court held that the record was devoid 

of evidence that the owners of Reserve No. 35 had consented to become members. Id. at 

IGRA allows Class I1 and IIl gaming on "Indian lands. " IGRA defines "Indian lands" as: 

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

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

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

individual subject to restriction by the United States against alienation and 

over which an Indian tribe exercises governmental power. 

25 U.S.C. $2703(4)(1996 Supp.). 
1428. The finding of the district court that the tribe abrogated jurisdiction over these lands 

confirms our conclusion that the Tribe had no jurisdiction at the time of our opinion in 1995. 

Since the historical background of the Tribe and the allotment are covered in our 1995 opinion 

and the 1996 district court decision in Miami Tribe, they need not be extensively reiterated. 

The court in Miami Tribe did not address whether an amendment to the Miami tribal 

constitution extending membership to the owners of the Maria Christiana allotment would 

extend the governmental authority of the Tribe over the allotment. 

The issue presented by your current request is whether the amendment to the Tribe's 

constitution, or any other changes in circumstances, brings the Maria Christiana parcel within 

the definition of "Indian lands" under IGRA such that the Tribe may now lawfully conduct 

gaming on the lands. For the reasons set forth below, we conclude that the Maria Christiana 

allo+ment does not cocstituts "Indian laads" under IGRA. The ordy aspcci of this situation 

that has changed is the membership status of the owners of the land. At the time of our first 

opinion, the constitutional changes in membership eligibility were proposed but not approved 

by the Secretary of Interior. The proposed Miami Constitution was approved by the Secretary 

on February 22, 1996, and the owners of the property became members of the Tribe 

thereafter. The Miami Tribe of Oklahoma did not exercise governmental powers over the land 

in 1995 and, in our opinion, the admission of the owners of the land into the Tribe is alone not 

sufficient evidence of tribal authority to bring the land within the definition of "Indian lands" 

under IGRA. 

As we noted in our earlier opinion, when the Western Miamis ceded their remaining lands in 

Kansas,* Congress directed the Secretary of the Interior to determine which individuals were 

entitled to share in the resulting funds and to specifically include in the determination those 

persons of Miami blood or descent who were the beneficiaries of the Act of June 12, 1858. 

Congress charged the Secretary to determine if, in the opinion of the Secretary of the Interior, 

these individuals were entitled to be included under treaty stipulations. 17 Stat. 631, 632. On 

February 1 1, 1873, the Secretary of the Interior forwarded to Congress a report from the 

Superintendent of Indian Affairs which determined that none of the individuals who had 

received an allotment pursuant to the June 12, 1858 Act were entitled to share in the proceeds 

from the sale of the Tribe's land in Kansas. The Commissioner determined that these 

individuals, though of Miami blood, had not been "recognized as Miamis, either by the tribe 

in Kansas or by those residing in Indiana." The report concluded that these individuals never 

joined the tribe in Kansas, and had claimed no benefits from the Tribe's annuities." H.R. 

Exec. Doc. No. 199, 42nd Cong., 3d Sess. (1873). Maria Christiana DeRome had been 

The allotment of the Tribe's land in Kansas to individual Indians was done to facilitate 

the assimilation of Indians into mainstream society and was intended to weaken tribal governments 

by breaking up the commonly held land-base of the Tribe. F.Cohen, Handbook of Federal 

Indian Law 98-99 (1982). 
included in this group and had received her allotment despite the lack of tribal membership in 

either group. 

The Miami Tribe refused to recognize these individuals as members of the Tribe or to allow 

them to share in the proceeds from the sale of the Kansas lands. Additionally, in 1891 the 

Western Miamis sued the United States in the Court of Claims, seeking reimbursement for 

erroneous annuity payments made to the 73 individuals. The Tribe also sought reimbursement 

from the United States for the land erroneously allotted to these individuals in Kansas 

Territory, amounting to approximately 14,000 acres. The Court of Claims held that the 

Western Miamis were entitled to recover the amount of money erroneously paid as annuities 

for the 73, as well as the value of the land allotted to the individuals. See H.R.Report No. 

3852, 51st Cong., 2d Sess. (1891) (setting forth the Court of Claims decision in Westem 

I.IZizz Indians v. United States). In 1891 Congress appropriated funds to compensate the 

Western Miamis for the annuities paid to those not entitled to them and directed the Secretary 

of the Treasury to pay the Western Miami Indians for their land that was allotted to persons 

not entitled to the lands. See 26 Stat. 1000. 

In construing the provision of the IGRA that relates to an Indian tribe exercising governmental 

authority over trust or restricted land, the district court in Cheyenne River Sioux Tribe v. 

South Dakota, 830 F. Supp. 523 (1993), aff'd, 3 F.3d 273 (8th Cir. 1993), suggested factors 

to consider in making the determination regarding whether land is Indian lands under IGRA. 

The court noted that where a dispute relates to whether, under IGRA, a tribe exercises 

governmental power over certain locations, these factors provide indicia regarding who 

exercises governmental power. The court indicated that the determination regarding tribal 

governmental power would require evidence regarding: 

(1) whether the areas are developed; (2) whether 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 Tribe or 

the State; and (5) other indicia as to who exercises governmental power over 

those areas. 

- Id. 

In the case of the Maria Christiana allotment, the land was originally allotted in 1859 to a 

nonmember of the Tribe. It is some distance from the Tribe's headquarters. Until the 

adjoining landowner recently provided the Tribe with access, it was inaccessible. It remains 

undeveloped. No member of the Tribe resides on the land. Until very recently, there had 

been no tribal oversight. The heirs of the original allottee were not members of the Tribe until 

1996 when they were adopted because of their ownership interest in the land. The Miami 

Tribe of Oklahoma agreed by treaty to move to Oklahoma and cede its interest in this land. 

The Miami Tribe of Oklahoma did not allege governmental power over the land in the early 

1990's and there is no agreement by local jurisdictions that the Tribe has civil and regulatory 
jurisdiction over the land. Finally, the Miami Tribe of Oklahoma twice received 

compensation from the United States based on the loss of this land. The initial payment 

compensated the Tribe for the land; the second payment compensated the Tribe for unpaid 

interest on the initial payment. Considering all these circumstances leads us to the 

conclusion that the Miami Tribe does not exercise governmental powers over the Maria 

Christiania Reserve No. 35 within the meaning of IGRA. 

If you have any further questions on this matter, please contact Troy Woodward at (202) 

208-6526. 

Sincerely, - f 

Edward B. Co 

Acting Solicitor 

. cc: 

Chief Floyd E. Leonard 

202 South Eight Tribes Trail 

P.O. Box 1326 

Miami, OK 74355 

Kip A. Kubin, Esquire 

Payne & Jones, Chartered 

Commerce Terrace, College Boulevard at King 

1 loo0 King 

P.O. Box 25625 

Overland Park, KS 66225-8182 

Philip E. Thompson 

Thompson Associates 

2307 Thornlcnoll Drive, Suite 100 

Foa Washington, MD 20744 

Clark D. Stewart 

Butler National Corporation 

1546 East Spruce Road 

Olathe, KS 66061