National Indian Gaming Commission 

In Re: 1 

) 

Wyandotte Nation Amended Gaming ) 

Ordinance ) 

) 

1 

) 

September 10,2004 

FINAL DECISION AND ORDER 

The Wyandotte Nation (Tribe) has waived its right to an administrative hearing and has 

requested a final agency decision with respect to its request for review and approval of an 

amendment (Ordinance Amendment) to its Tribal Gaming Ordinance. The Chairman of 

the National Indian Gaming Commission approved the Tribal Gaming Ordinance on June 

29, 1994. The Tribal Gaming Ordinance authorizes the Wyandotte Nation to conduct 

gaming within "Indian Country." Tribal Gaming Ordinance, Section 4(b). The 

Ordinance Amendment at issue adds a new definition to Section 2 of the Tribal Gaming 

Ordinance. This new definition defines Indian Country to include all Wyandotte Indian 

land including the Shriner ~ract', a parcel of land in Kansas City, Kansas, held in trust 

for the benefit of the Tribe. Wyandotte Nation Resolution No. 040709, July 9,2004. 

DECISION AND ORDER 

The Commission finds that the Tribe may not lawfi~lly game on the Shriner Tract and 

therefore disapproves the Ordinance Amendment. 

STATUTORY, PROCEDURAL, AND FACTUAL BACKGROUND 

On June 29,1994, the NiGC Chairman approved the Tribal Gaming Ordinance, which 

authorizes Class II gaming. The Tnial Gaming Ordinance does not identify any specific 

parcels of land upon which the Tribe may game. On June 20,2002, the Tribe submitted 

I "A tract of land in the Northwest Quarter of Section 10, Tounship 1 1, Range 25 Wyandotte County, 

Kansas situated in Kansas City, Kansas and more particularly described as: Beginning at the SW corner of 

Huron Place, as shown on the recorded plat of Wyandone City, in Kansas City, Kansas, tbence North 150 

feet; thence East 150 feet; thence South 150 feet; thence West 150 feet to the point of beginning, meaning 

and intending to describe a tract of land 150 feet square in the Southwest corner of Huron Place as shown 

on the recorded Plat of Wyandotte City, which is marked 'Church Lot7 thereon." 61 Fed. Reg. 114,29757- 

29758 (June 12,1996). 
an amended gaming ordinance specific to the Sllnner Tract property, The Tribe also 

submitted documentation supporting its claim that the Skriner Tract meets three separate 

exceptions to IGRA's general prohibition on gaming on lands acquired after October 17, 

1988. On August 27, 2002, the Tribe withdrew the amended ordinance to give the MGC 

more time to issue an Indian lands opinion. The Tribe later advised the NlGC that it did 

not plan to game on the Shriner Tract after all. 

On August 28,2003, the Tribe commenced gaming on the Shriner Tract. This parcel 

was taken into trust for the benefit of the Tribe on July 15, 1996. Because the Shriner 

Tract was taken into trust after October 17, 1988: for gaming to be legal under the IGRA, 

it must fall within one of IGRA's exceptions to the general prohibition on gaming on 

lands acquired into trust aAer October 17. 1988 for zaming to be legal under the IGRA. 

On September 2,2003, the Tribe advised the NlGC by letter that it had commenced 

gaming. The Tribe also resubmitted the supporting material from June 2002 and 

subsequently provided additional supportjng material and arguments. 

On March 24,2004, the NlGC Office of General Counsel (OGC) provided the Tribe with 

its written opinion that gaming is not legal on the Shriner Tract under the IGRA. On 

March 31,2004, the Tribe requested reconsideration of the March 24, 2004, opinion. 

On March 26,2004, the Tribe filed suit against the NlGC in US. District Court for the 

District of Columbia, challenging the March 24,2004, NlGC opinion. Complaint for 

Declaratory and Injuncti\~e Relief, Wyandoire Naiion v. Nat 'I. Indian Ganzing 

Commission, No. CV-04-0513 (D.D.C. March 26,2004). On April 2,2004, the Tribe 

filed a Motion For Leave to Amend Complaint For Declaratory and Injunctive Relief 

(Motion to Amend Complaint), seeking to add several Kansas State authorities as 

defendants. The D.C. District Court did not act on this motion but instead transferred the 

case to the U.S. District Court for the District of Kansas. Wyandotte Nation v. NIGC, No. 

CV-04-05 13 (D.D.C- April 2,2004)(0rder). On April 7,2004, the Kansas District Court 

granted the Tribe's Motion to Amend Complaint. Wyandotte Nation v. NIGC, No. CV04-051 3 (D.D.C. April 7,2004)(0rder Memorializing April 7,2004 Rulings). The NlGC 

moved to dismiss the action for lack of a final agency action, a prerequisite for the 

Court's subject matter jurisdiction. The Tribe did not oppose this motion, and on June I, 

2004, the District Court granted the MGC7s Motion to Dismiss. * Wyandutte Nation v. 

NIGC, et. a]., Case No. 04-2 140-JAR @.C. Kan. June I, 2004) (Order Granting Motion 

to Dismiss). 

The MGC granted the Tribe's request for reconsideration. Upon reconsideration, the 

OGC determined that some of the language in the March 24,2004 opinion was 

overbroad, and therefore revised the opinion. The March 24,2004 opinion was 

superceded by an OGC opinion dated July 19,2004. The conclusion remains the same. 

It is the opinion of the OGC that the Tribe cannot lawfully game on the Shriner Tract 

pursuant to the IGRA. 

-- 

The case is stjH a live action as to the State of Kansas defendants. 

2 
On July 1272004, the NlGC received the Ordinance Amendment for review and approval 

by the NIGC pursuant to 25.u.s.c.~ 271 0. By letter dated July 23,2004, the Tribe 

waived its right to an administrative hearing and requested that the Commjssion issue a 

final decision on the record. We do not typically agree to forego the Chairman's issuance 

of an ordinance disapproval letter and any resultant appellate process. However, we do 

so in this case for several reasons: (I) the question of whether the Tribe may game on the 

Shriner Tract has been under review by the NlGC for some time; (2) the OGC has 

already issued its opinion regarding gaming on the Shrjner Tract; and (3) the Tribe is 

involved in active litigation regarding gaming on the Shrjner Tract. h this case, we 

believe it in the best interests of both the Commission and the Tribe to expeditiously 

resolve this matter. 

ANALY SlS 

Section 20 of the IGRA, 25 U.S.C. 9 271 9, generally prohibits gaming on lands acquired 

in trust after the enactment of IGRA on October 17, 1988, unless one of several 

exceptions apply. Accordingly, because the Shrjner Tract was taken into trust after 

October 17,1988, it is necessary to review the prohibition and its exceptions to determine 

whether the Tribe may conduct gaming on the Shriner Tract. 

The Tribe argues that three exceptions to the general prohibition on gaming on afieracquired lands apply to the Shsiner Tract. The Tribe argues that (1) the Shrjner Tract is 

within the Tribe's last reservation; (2) the Shnner Tract was taken into trust as part of a 

settIement of a land claim, and (3) the Shriner Tract was taken into trust as part of the 

restoration of their Iands. We address each of these arguments in turn. 

Last Reservation 

The Tnbe argues that the "last reservation exception" applies to the Shriner Tract. The 

"last reservation exception" provides that gaming may be conducted on lands acquired 

after October 17,1988, provided that the tribe had no reservation on October 17, 1988, 

and the lands are located in a state other than Oklahoma and are within the Indian tribe's 

last recognized reservation within the State or States within which such Indian tribe is 

presently located- 25 U.S.C. $271 9(a)(2)@). The first hvo parts of this exception are 

met: the Tribe had no reservation on October 17,1988; and the land is in Kansas, not in 

Oklahoma. We therefore turn our attention to the remaining question, whether the land 

at issue is within the tribe's last recognized reservation within the State within which the 

Tribe is presently located. 

To answer this question, we must first determine where the Tribe is presently located. 

The Tribe argues that it is presently located in Kansas, and that the Shriner Tract is within 

the Tribe's last recognized reservation in Kansas. The Tnbe argues that it is 'presently 

3 We understand there are no reservations in the State of Oklahoma, as contemplated by the IGRA. 

Otherwise, the all encompassing Oklahoma exception in 25 U.S.C. 5 271 9 (aX2) would likely not exist. 
located" in Kansas because it exercises jurisdiction over the Huron Cemetery, located in 

Kansas. The Tribe argues that the existence of an inter-governmental agreement with 

Kansas City providing for the maintenance and security of the Huron Cemetery 

establishes this jurisdiction. 

The answer to this question turns on the scope and meaning of the term "presently 

located." To determine the scope of a statute, we look first to its language. Reves v. 

Ernst & Young, 507 U.S. 170, 177 (1 993). To ascertain the plain meaning of a statute, 

we look to the particular statutory language at issue, as well as the language and design of 

the statute as a whole. Kmart Com. v. Cartier. lnc., 486 U.S. 281,291 (1 988); (See also, 

U.S. v. Seminole Nation of Oklahoma, 321 F.3d 939,944 (I 0th Cjr. 2002), "In 

interpreting a statute, the [Tenth Circuit] gives effect to a statute's unambiguous terms. 

In ascertaining the plain meaning of the statute, the court must look to the particular 

statutory language at issue, as well as the language and design of the statute as a 

whole."). Furthermore, we must give the words of the statute "their ordinary, 

contemporary, common meaning, absent an indication Congress intended them to bear 

some different import." _Williams v. Taylor, 529 U.S.420,432 (2000). 

While tribes can be located in more than one state (see e.g. the Navajo Nation which is 

located in three states or the Standing Rock Sioux Tribe which is located in two states), 

we believe the plain meaning of the term "presently located" is clear. It is not where the 

tribe happens to have an isolated tract of land. It plainly means where the tribe is 

currently to be found, i.e., where the tribe physically resides. To determine where this is, 

we look to where the seat of tribal government is, and where the Tribe's population 

center is. The seat of the Wyandotte Tribal govemment and its population center is in 

Wyandotte, Oklahoma. We therefore find that the Tribe is presentIy located in 

Oklahoma. 

We do not subscribe to the Tribe's argument that it is presently located in Kansas because 

it exercises jurisdiction over the Huron Cemetery, located in Kansas. As stated by the 

Tenth Circuit, "[a]lthough the Huron Cemetery was reserved by the federal government 

in the 1855 treaty, it is uncontroverted that the reservation was made strictly for purposes 

of preserving the tract's status as a burial ground. It is further uncontroverted that, since 

the time of the 1855 treaty, the Huron Cemetery has not been used by the Wyandotte 

Tribe for purposes of residence. Rather, the tract, which is now separated by a significant 

distance fiom the actual reservation of the Wyandotte Tribe in Oklahoma, has 

consistently maintained its character as a public burial ground." Sac and Fox at 1267. 

This plain reading of the statutory language is consistent with our reading of the whole of 

section 2719(a). The language of section 2719(a) evidences a Congressional intent to 

limit gaming to tribal reservations or, if no reservation exists, to areas within former 

reservations or last reservations where the tribe is located. Thjs section of IGRA limits, 

not expands, the right to game. It is clear that Congress intended to allow some gaming 

to occur on lands acquired after enactment of the IGRA under this provision, but only 

contemplated gaming on newly acquired lands far fiom the current or prior reservation in 

very specific isolated circumstances. 
If a court were to find that the term "presently located7' is ambiguous, the court would 

defer to the NIGC's reasonable interpretation of the statutory language. U.S. v. Semi& 

Nation of Oklahoma, 321 F.3d 939,944 (1 oth Cir. 2002). The court would also look to 

the IegisIative history. The legislative history here does not support the Tribe's views. 

With respect to lands acquired after October 17,1988, the Select Committee on Indian 

Affairs stated, "[glaming on newly acquired tribal lands outside of reservations is not 

generally permitted unless the Secretary [of the Interior] determines that gaming would 

be in the tribe's best interest and would not be detrimental to the local community and the 

Governor of the affected State concurs in that determination." S. Rep. No. 446, 100'~ 

Gong-ess, 2d Session 8 (1 988). 

Because we find that the Tribe is not presently located in Kansas, we need not address the 

Tribe's other arguments in support of its contention that the Shnner Tract is within its last 

reservation.' 

Settlement of a Land Claim 

The Tnbe argues that the land claim settlement exception to the prohibition on gaming on 

lands acquired aAer 1988 applies to the Shnner Tract. This exception allows gaming on 

land taken into trust after 1988 as part of a settlement of a land claim. The Tnbe argues 

that the Tribe's ICC claims are land claims within the meaning of 25 U.S.C. 

4 2719(b)(I)(B)(i), and that the Shriner Tract was taken into trust as part of a settlement 

of those claims. (Tribe's September 2,2003, submission at 15-1 7). 

Specifically, the Tribe argues that, in Docket Nos. 139 and 141, the ICC held that the 

Tribe was granted recognized title to Royce Areas 53 and 54 by virtue of the Treaty of 

Greenville and the Treaty of Fort Industry, and that the ICC, as a precursor to evaluating 

damages, had to apportion interests in the areas among the various tribal signatories to 

these two treaties- (Tribe's September 2,2003, submission at 16). The Tribe argues that 

a claim requiring a determination of ownership of title to land is a "land dairn" within the 

meaning of 25 U.S.C. $27190(1)@)(ii).~ 

We note, however, that the Tenth Circuit Court of Appeals has held that the Huron Cemetery, adjacent to 

tbe SbTiner Tract, is not a reservation for purposes of the IGRA because it was not set aside for the Tribe to 

reside on. Sac and Fox Nation of Missouri v. Norton, 240 F. 3d. 3250,1267 (10th Ci. 2001; cert. denied, 

Wvandotte Nation v. Sac & Fox Nation, 534 U.S. 1078 (2002). 'Ihe court found tbat "IGRA's use of the 

phrase 'tbe reservation of the lndian tribe' in 25 U.S.C. 5 2719(a) suggests tbat Congress envisioned that 

each tribe would have only one reservation for gaming purposes." M. at 1267. Further, the court held, 

"IGRA specifically distinguished between tbe reservation of an Indian trii and lands held in trust for the 

mibe by the federal govrrnment. If the tern 'reservation' were to encompass all land held in trust by the 

government for lndian use (but not necessarily Indian residence), then presumably most, if not all, mxt 

lands would qualify as 'reservations.' In tum, all of those parcels could be used in the manner in which the 

Wyandotte Tribe seeks to use tbe Huron Cemetery and its surrounding tracts." Id. 

* The Tribe cites to no substantive authority to support this definition, onIy to cases discussing the Indian 

Canon of Construction, which provides that ambiguous statutes are to be construed liberally, with 

ambiguities resolved in favor of Indians. Brvan v. lrasca Countv. 426 U.S. 373,392 (1976). However, 
As stated above in our discussion of the "last reservation" exception, the interpretation of 

the Iand claim settlement exception must begin with the language of the provjsion itself. 

Reeves, 507 U.S. at 177. To ascertain the plain meaning of a statute, we look to the 

particular statutory language at issue, as well as the language and design of the statute as 

a whole. KMart Corp. 486 U.S. at 291; (See also, Seminole Nation of Oklahoma at 944 

("In interpreting a statute, the [Tenth Circuit] gives effect to a statute's unambiguous 

terms. In ascertaining the plain meaning of the statute, the court must look to the 

particular statutory language at issue, as well as the language and design of the statute as 

a whole."). Furthermore, we must give the words of the statute "their ordinary, 

contemporary, common meaning, absent an indication Congress intended them to bear . 

some different import." JViIliams, at 432. 

If the language of the land claim settlement provision is clear and unambjguous, then the 

plain meaning of the provision will apply and there is no need to turn to the legislative 

history of the provision or to traditional aids to statutory construction. Connecticut Nat. 

Bank v. Germah, 503 U.S. 249,251 (1 992); Sacramento Regional County Sanitation 

Djst. v. Reilly, 905 F.2d 1262, l268(gth Cir. 1990). 

Subsection (b)(l)(B)(i) makes an exception to the no-gaming-on-after-acquired-lands rule 

for "'lands [] taken into trust as part of a settlement of a land claim." This provision 

requires that there be a claim for land, and that land be taken into trust as part of a 

settlement of that claim. Jt is clear and unambiguous. It means a claim made by a Tribe 

for the return of land. To determine whether the Tribe's ICC claims were Iand claims 

requires an inquiry into the nature of the claim brought by the Tribe and the resulting 

award to the Tribe. The Tribe brought claims before the ICC and the Claims Court 

exclusively for money damages, not over title to land itself. Furthermore, the Tribe's 

award was limited to money damages. While the ICC may have evaluated whether the 

Tribe previously held title to the land, and had to assign interests among the various tribes 

to ascertain money damages, this does not transform the cIaim into a land claim. The 

claim was for money, not the land, and the evaluation undertaken by the court to amve at 

the amount of money damages does not change that. Furthermore, Pub. L. 98-602 was 

merely a mechanism with which to distribute judgment funds awarded to the Tribe. 

Congress was hlly aware of the ICC and the pre-existing process created for the tribes to 

bring claims against the United States when it enacted the IGRA, Congress could have 

included a broad exception to the gaming prohibition on lands taken into trust for 

property purchased with funds awarded by the ICC and the Claims Court; however, no 

such exception exists in the legislation. Instead, Congress chose to narrowly except lands 

taken into trust "as part of. . . a settlement of a land claim." 

To find that ICC money judgments fit within the plain language of the after-acquired 

lands exception would result in the exception swallowing the rule. The ICC handled 

large numbers of claims during its lifetime, and substantial relief was granted to many 

because we find that the term "land claim" is unambiguous, we need not resort to any statutory construction 

aids, including the Indian Canons of Construction. 
tribes. William C. Canby, Jr., American Indian Law at 267 f2nd Ed. 1988). interpreting 

the land claim settlement exception to apply any time a tribe uses such monetary 

judgments to purchase land would open up the exception far beyond what was intended. 

Finally, our conclslsion is consistent with that of the Department of the lnterior (DOI) 

that previously determined that the Tribe's land in Park City, Kansas, purchased with 

Pub. L. 98-602 funds, was not land within the meaning of the IGRA land claim 

settlement exception. The DO1 Tulsa Field Solicitor, in an opinion dated February 19, 

1993, concluded that: 

Public Law 98-602 which authorizes the expenditure of judgment funds 

awarded to the Tribe by the Indian Claims Commission and its successor 

forum, the United States Claims Court, for acquisition of lands to be taken 

into trust by the Secretary of the Interior, does not come within the 

meaning of [IGRA's land claim settlement exception]. While the 

argument of the Tribe is cogent, we are mindhl of the limitations on the 

jurisdiction of the Indian Claims Commission and the United States 

Claims Court to award money judgments based upon the fair market value 

of lands taken by the United States at the time of the taking and not land. 

25 U.S.C. $570-70v. Strictly speaking, settlements reached in cases 

before the Indian Claims Commission and the United States Claims Court 

are not land settlements wherein the parties assert competing claims to 

title to property, but rather are settlements of claims against the United 

States for money damages. 

Memorandum from M- Sharon Blackwell, Field Solicitor, Tulsa, to Area Director, 

Muskogee Area Office, BIA, February 19,1993 at 1 1. We see no reason to 

depart from this interpretation. 

Restoration of Land . 

Finally, the Tribe argues that the "restored lands" exception applies to the Shriner Tract. 

This analysis requires a two-part determination: (1) that the Tnibe is a "restored" tribe, 

and (2) that the Shriner Tract was taken into trust as part of a restoration of land. 25 

U.S.C. $2719(b)(l)(B)(iii); See also, Grand Traverse Band v. United States Attornev for 

the Western District of Michj~an, ("Grand Traverse Band 11'3 198 F. Supp. 2d 920 

(W.D. Mich. 2002 ; ad, 2004 FED App. 0151P (6" Cir. 2004). We agree that the Tribe a is a restored tribe. We therefore turn our attention to whether the Shriner Tract was 

taken into trust as part of a restoration of land. 

Federal courts, the United States Department of the Interior, and the OGC have recently 

grappled with the concept of restoration of land. In so doing, they have established 

6 The Tribe was terminated by the Act ofAugust 1, 1956,70 Stat. 893, and was restored to federal 

recognition by the Wyandotte, Peoria, Ottawa and Modoc Tribes of Oklahoma: Restoration of Federal 

Senices Act, May 15,1978,25 U.S.C. $861,92 Stat. 246. 
several guideposts for a restoration-of-land analysis. First, "restored" and "restoration" 

must be given their plain, primary meanings. Grand Traverse Band I1 at 928 (W.D. Mich. 

2002); affd, 2004 FED App. 01 51P (6Ih Cir. 2004); Confederated Tribes of Coos, Lower 

Umpqua & Sjusllndjans v. Babbitt ("Coos'?, 1 16 F. Supp.2d 155, 161 (D.D.C. 

2000). In addition, to be "restored," lands need not have been restored pursuant to 

Congressional action or as part of a tribe's restoration to federal recognition. Grand 

Traverse Band of Ottawa and Chippewa lndians v. United States Attorney for the 

Western District of Michigan ("Grand Traverse Band It?, 46 F. Supp.2d 689,699 (W.D. 

Mich. 1999); Coos at 164. 

Nonetheless, there are limits to what constitutes restored lands. As the OGC stated in its 

opinion, requested by the court in Grand Traverse TI, "[W]e believe the phrase 

'restoration of lands7 is a difficult hurdle and may not necessarily be extended, for 

example, to any lands that the tribe conceivably once occupied throughout its history." 

Letter from Kevin K. Washburn, National lndian Gaming Commission General Counsel, 

to Honorable Douglas W. Hillman, Senior United States bistrict Judge, United States 

District Court (W.D. Michigan), Re: Whether the Turtle Creek Casino site [hjeld in trust 

[flor the benefit of the Grand Traverse Band of Ottawa and Chippewa Indians is exempt 

from the [IGRA's] general prohibition of gaming on lands acquired after October I 7, 

1988, dated August 3 I, 2003, p. 15 (NJGC GTB Opinion); see also Office of the 

Solicitor's Memorandum Re: Confederated Tribes of Coos, Lower Umpqua & Siuslaw 

lndians v. BabbA, p. 8. (Office of the Solicitor's Coos Opinion) ("It also seems clear 

that restored land does not mean any aboriginal land that the restored tribe ever 

occupied."). 

The courts in Coos and Grand Traverse Band I and II noted that some limitations might - be required on the term "restoration" to avoid a result that "any and all property acquired 

by restored tribes would be eligible for gaming." Coos at 164; Grand Traverse Band I at 

700; See also Grand Traverse Band II at 935 ("Given the plain meaning of the language, 

the term 'restoration7 may be read in numerous ways to place belatedly restored tribes in 

a comparable position to earlier recognized tribes while simultaneously limiting afteracquired property in some fashion") aff d, 2004 FED App. 01 5 1P (6~ Cir. 2004). All 

three courts proposed that land acquired after restoration be limited by "the factual 

cjrcumstances of the acquisition, the location of the acquisition, or the temporal 

relationship of the acquisition to the tribal restoration." 

The Associate Solicitor, Department of the Interior adopted a similar interpretation in his 

Coos Opinion on remand from the Coos court. "We believe [tlhat to apply [the] 

dictionary definition to the restored lands provision without temporal or geographic 

limitations would give restored tribes an unintended advantage over tribes who are bound 

to the limitations in JGRA that prohibit gaming on lands acquired after October 17, 1988. 

Moreover, we believe that, in examining the overall statutory scheme of lGRA, Congress 

intended some limitations on gaming on restored lands." Id- at 6. 

The Associate Solicitor further stated that: 
[Blecause IGRA provides certain temporal (i.e. the October 17, 

1958 limitation for reservation boundaries) and geographic 

limitations (j.e., land within or contiguous to the tribe's 

reservation) we cannot view 5 2719(b)(l)(B)(iii) to allow gaming 

on after-acquired lands with no limitations. Consequently, we do 

not use a dictionary definition of restored to include all lands 

"restored." It also seems clear that restored land does not mean 

any aboriginal land that the restored tribe ever occupied. Tribes 

that were not terminated and thereby not capable of being 

'restored' lost vast amounts of land and were forced to move all 

over the country such that their reservations on October 17,. 1988, 

are vastly different than their aboriginal land. 

In addjtion to the above referenced sources, we also consulted our restored lands opinions 

with regard to the Bear River Band of Rohnerville Rancheria, (See Memorandum from 

NlGC Acting General Counsel to NIGC Chairman Deer, Re: Whether gaming may take 

place on lands taken into trust afler October 17, 1988: by Bear River Band of Rohnerville 

Rancheria, dated August 5, 2003) (NIGC Rhonerville Opinion) and the Mechoopda 

Indian Tribe of the Chico Ranchena (& Memorandum from NGC Acting General 

Counsel to NlGC Chairman, Re: Whether gaming may take place on lands taken into 

trust after October 17, 1988, by the Mechoopda lndian Tribe of the Chico Rancheria, 

dated March 14,2003)(NIGC Mechoopda Opinion). 

In this case, these factors (factual circumstances, location and temporal relationship) and 

our review of agency and judicial precedent lead us to conclude that the Tribe's land 

acquisition is not a "restoration." 

Factual Circumstances of the Acquisition 

During 1994 and 1995, the Tribe negotiated to purchase several properties adjacent to the 

Huron Cemetery. In January 1996, the Tribe submitted an application to the BLA 

requesting that the United States accept title to certain parcels of real property located in 

Kansas City, KS, including the Shriner Tract, in trust for the Tribe. The Nation's trust 

application cited Pub. L. No. 98-602 as the statutory authority for the requested trust 

acquisition. On June 12, 1996, the BIA published in the Federal Register a Notice stating 

its intention to accept title to the Shriner Tract in trust for the Tribe. 

On July 12,1996, the State of Kansas and four (4) lndian tribes in Kansas filed suit 

against the Assistant Secretary seeking to enjoin the trust acquisition of the Shriner Tract. 

Plaintiffs argued that (i) Pub. L. No 98-602 was not a mandatory trust acquisition and the 

Secretary's determination to accept title to the Shriner Tract in trust for the Nation was 

arbitrary and capricious because the Secretary did not consider the factors enumerated in 

25 C.F.R. Part 15 1, and (ii) was in violation of Federal law because the Secretary did not 

require compliance with certain Federal statutes, including the National Environmental 
Policy Act. Plaintiffs also contended that the Secretary's determination that the Huron 

Cemetery constituted an lndian reservation of the Nation was arbjtrarymd capricious and 

inconsistent with applicable law. Although an injunction was entered against the United 

States on July 12,1996, the Nation took an emergency appeal to the Tenth Circuit, and 

on July 15, 1996, the Tenth Circuit vacated the July 12 injunction. The United States 

accepted title to the Shrjner Tract in trust for the benefit of the Nation on July f 5, 1996. 

Location-Geoeraphical Proximity and Historical Nexus 

The Tribe emphasizes that the most significant evidence demonstrating that lands can be 

considered "restored lands7' is the physical location of the land, and that both the Grand 

Traverse T and Coos courts ruled that "[pllacement within a prior reservation is 

significant evidence that the land may be considered in some sense restored." Tribe's 

September 2,2003, Submission at 13. See Grand Traverse 1,46 F., Supp. 2d at 702; and 

Coos, 11 6 F. Supp. 2d at 164 (quoting Grand Traverse 1). The Tribe also quotes language 

fiom Grand Traverse I that "any lands taken into trust that are located within the areas 

historically occupied by the tribes are properly considered to be lands taken into trust as 

part of the restoration of lands under 5 271 9." Tribe's September 2,2003, Submission at 

13; Grand Traverse I at 701. The Tribe argues that the Shn'ner Tract satisfies the 

"location" prong because it is within the Tribe's prior reservation in the State of Kansas. 

Tribe's September 2,2003 Submission at 13. 

We agree that the physical location of the land is significant. The parcel at issue on 

which the Tribe proposes to game is located in Kansas City, Kansas. However, the seat 

of the Wyandotte Tribal government, its present trust lands, and its population center are 

in Wyandotte, Oklahoma, a distance of approximately 175 miles from Kansas City. AIso 

in Wyandotte, ,Oklahoma are the Tribe's Turtle Stop Convenience Store, Turtle Tot 

Learning Center, a Seniors Program, and educational assistance programs. In 1993, the 

Tribe completed an expansion of the tribal complex, which includes administrative 

offices, new classrooms for the Turtle Tots Learning Center, as well as a Library and 

Heritage Center. See Tribe's web site at ~w~:.~wandot.org. It is clear that the Shiner 

Tract is sited far fiom where the Tribe is actually located in Wyandotte, Oklahoma. 

In Grand Traverse and Rhonerville, the land at issue was located either near the tribal 

center or near tribal programs. In Grand Traverse, the site was located in the same area 

as a tribal housing development and an 80-acre youth camp. MGC GTB Opinion at 1. In 

Rhonerville, the parcel at issue was six miles from the Rhonerville Tribe's original 

Rancheria, whose boundaries had been re-established. NIGC Rhonerville Opinion at 2. 

In Mechoopda, the parcel was located approximately 10 miles from the Tribe's original 

Rancheria, which it occupied immediately prior to termination, and which was located in 

. what is now the center of the city of Chico, California. NlGC Mechoopda Opinion at 1 

and 9. While we do not, in this opinion, establish a standard for determining what is a 

reasonable distance for purposes of the restoration of lands analysis, we do not believe a 

distance of 175 miles between the parcel and the tribal center is close enough to estabIish 

a geographical connection. 
We also look to the historical nexus behveen the Tribe and the parcel at issue. In Grand 

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

tending to establish that the.. .site has been important to the tribe throughout its history 

and remained so immediately on resumption of federal recognition." NGC GTB Opinion 

at 15. We further stated, "At the time of termination, Band members lived not far from 

the [parcel at issue]. For most of the Band's recorded history, it has lived and worked in 

[the general area of the parcel at issue]". fd. at 18. Finally, it was significant to the 

NlGC GTB Opinion that the land had "been at the heart of the Band's culture thoughout 

history.. ." a. at 19. 

In Coos, the Associate Solicitor found that the land had a geographic nexus to the Coos 

and that the Coos were not seeking to game on far-flung land. Associate Solicitor Coos 

Opinion at 13. The Associate Solicitor further found it relevant that the Coos had a 

presence in the area of the parcel at issue at the time of termination. a. In concluding 

that the parcel at issue was restored land, the Associate Solicitor stated that he considered 

that the Coos were "seeking to game on land which has been historically tied to the 

Tribes and has a close geographic proximity to the Tribes." Id. at 14. 

In Mechoopda, we found that the parcel at issue had cultural and historical significance to 

the Mechoopda Indians. Three buttes with hjstoncal significance were located one mile 

from the parcel. These buttes figured prominently in a tribal myth. In addition, an 

historic trail linking several tribal villages crossed the parcel. Furthermore, several 

Mechoopda villages were located in close proximity to the parcel. NIGC Mechoopda 

Opinion at 10-1 1. 

In Rhonerville, we found that the tribe had a longstanding historicaI and cultural 

connection to the parcel at issue. The parcel was located within one mile of two 

aborigjnal villages and two major tribal trails. It was located within three miles of five 

aboriginal villages. Also within three or four miles fiom the parcel was the site of a 

mythic flood in a tribal story telling. Furthermore, the parcel was located 6 miles from 

the tribe's original Rancheria, which was purchased by the United States for the 

Rhonerville Indians in 191 0. The Rhonerville Tribe was terminated in 1962, and the 

Rancheria was divided and distributed to individual hdians. At the time the Rancheria 

boundaries were re-established in 1983, there were still 6 acres in individual Indian 

ownership. We found that, based on this information, the area had historical and cultural 

significance to the Tribe. It was also important to our determination that tribal members 

resided on the original Rancheria at the time of termination. Rhonerville Opinion at 10. 

In contrast, we do not find that the Tribe has a sufficient historical nexus to the Shriner 

Tract to qualify it as restored land. As evidenced by the information submitted by the 

Tribe, the Tribe was transient for much of its history. In the first part of the 1600's, the 

tribe resided in Canada. It then moved to Lake Huron in what is the present State of 

Michigan. In the early 1700's, the Tribe moved south and into the present State of Ohio 

and western Pennsylvania. Beginning in 1795, the Tribe began ceding land to the United 

States. In 1842 the United States granted the Tribe an unspecified area of land located 

west of the Mississippi River. The Tribe negotiated to purchase land fiom the Shawnee 
Tribe near Westport, Missouri. The Shawnee did not honor their agreement with the 

Tribe, and at the end of 1843, the Tribe entered,into an agreement with the Delaware to 

acquire land in the Kansas Temtory, which includes the parcel at issue. The Tnbe 

occupied this land until the beginning of 1855, when it ceded the land to the United 

States. 

The Tribe occupied the Shriner Tract area for a very brief time (late 1843 to early 1855- 

only 11 full years). The cases discussed above do not support a finding that this short 

time period qualifies as an historical nexus. In all of the cases that have analyzed the 

restored Iands question, there was a significant, longstanding historical connection to the 

land-sometimes even an ancient connection. We are not prepared to find that 

occupation of land for a period of I I years, despite that significant roots were put down, 

rises to the level of an historical c~nnection.~ We believe that, if we were to so find, we 

would conceivably be bound to find that the Tribe also had an historjcal nexus to 

Michigan, Ohio, Pennsylvania and Missouri, and that if land were taken into trust in 

those locations, the Tribe could game there. As we said in our Grand Traverse Opinion, 

"[Wle believe the phrase 'restoration of lands' is a difficult hurdle and may not 

necessarily be extended, for example, to any lands that the tribe conceivably once 

occupied throughout its history." NIGC GTB Opinion, p. 15. 

Furthermore, the Tribe has not shown that it had a presence in the area of the Shriner 

Tract upon termination. According to the Tribe's submission, it left Kansas in 1855 

when it ceded the lands to the United States. The Tribe's status was terminated in 1956. 

Act of August 1, 1956,70 Stat. 893. Therefore, more than I00 years elapsed between the 

time the Tribe left the Iands, and the Tribe was terminated. In Grand Traverse, Coos, 

Mechoopda, and Rhonerville, it was important to the determination of restored lands that 

the tribes in those cases had a presence on the lands upon termination. 

Temporal Relationship of Acquisition to the Tribal Restoration 

The Tribe argues that the temporal relationship of the acquisition to the Tribe's 

restoration is similar to the timelines in the other cases applying the restored lands 

exception. Tribe's September 2,2003, Submission at 14. The Tribe points particularly to 

the temporal relationship in the Grand Traverse case. Id. at 14-15. The Tribe emphasizes 

that in both its case and the Grand Traverse case, it took years from the time of 

restoration for approval of a tribal constitution, which was a necessary precursor for any 

trust acquisition. The Tribe further argues that in both cases, the subject trust acquisitions 

were the first meaningful acquisitions after restoration, and both were part of a concerted 

effort to acquire trust Iands as part of an economic development program. Finally the 

7 The Tni argues that the la~d qualifies as restored because it is within tbe Tribe's prior reservation The 

Tni argues that the land is within its prior reservation because the land xvas reservation land of the 

Delaware Indian Nation, and when the Tribe acquired it, the agreement provided that the Wyandotte Tni 

"shall take no better right or interest in and to said lands than is now vested in the Delaware Nation of 

Indians." 9 Stat. 337. See also page 3, herein. Even if the Iand could be considered reservation land 

because it was reservation land of the Delaware, the land does not meet the historical nexus prong, as 

explained above. 
Tribe argues that in both cases, the subject lands were previously ceded to the Uni-ted 

States by treaty. Jd. 

We see several distinctions between the temporal relationship in Grand Traverse and that 

here. First, with respect to the issue of the tribal constitution, it was noted in Grand 

Traverse Il that the Secretary of the Department of Interior would not take land into trust 

on behalf of the Grand Traverse Band until its constitution had been approved. Grand 

Traverse I1 at 936, affd, 2004 FED App. 01 51P (61h Cir. 2004). The Rand's constitution 

was approved in 1988, and the subject property was taken into trust in 1989. Therefore, 

the court found that, "as a matter of timing, the acquisition of the [subject property] was 

part of the first systemic effort to restore tnbal lands." Jd. Here, the Tribe has provided 

no evidence that it was required to have an approved constitution prior to the acquisition 

of land in trust. In fact, the Tribe's constitution was approved in 3985, yet the United 

States took land into trust for the Tribe in 1979 and 1984. It is upon this land that the 

Tribe resides in Wyandotte, Oklahoma. 

The Grand Traverse U court further found the absence of any substantial restoration of 

lands preceding the property at issue to be important. Id. at 937, aff d, 2004 FED App. 

0151P (6Ih Cir. 2004). Here, the Tribe had a substantial restoration of land preceding the 

Shriner Tract. h fact, three parcels of land were restored, one within one year and two 

within six years of tribal restoration. 

The Tribe was restored to federal recognition in 1978. The following year, land was 

taken into trust in Wyandotte, Oklahoma for the Tnbe. Noteworthy is a memorandum 

from the BIA Superintendent of the Miami Agency to the BIA Area Director, Muskogee 

Area Office, dated November 13, 1978, regarding the Tribe's request to have land taken 

into trust. The memorandum states, "The Wyandotte tribe was recently reinstated and 

recognized by the United States Government as Indians and, more recently, acquired a 

land base with desires of purchasing additional Iand adjacent and elsewhere." It further 

states, "The Wyandotte tribe will use their land as a base for tribal economic 

development.. .." The trust deed for these 1.5 acres is dated June 8, 1979. 

Five years later, in 1984, two additional parcels of Iand, one 3.8 acres, the other 189 acres 

were taken into trust for the Tribe. With respect to the 189 acres, the BLA Muskogee 

Area Director stated in a June 3,1980, letter to the United States General Services 

Administration, "I have [dletermined and hereby certify that subject property is located 

within the boundary of the former reservation of the Wyandotte Tribe of Oklahoma.. .." 

We do not agree with the Tribe that the Shriner Tract was the first meaningful 

acquisition. Certainly the Oklahoma land acquisitions, coming on the heels of tribal 

restoration, and comprising the Iand upon which the Tribe currently resides, are nothing 

if not meaningfbl. The Oklahoma land acquisitions have a strong temporal relationship 

to tribal restoration, and therefore may more appropriately be considered the Tribe's 

restored lands. These lands were taken into trust within one and six years of tribal 

restoration, and were noted by the BIA for being both a land base for the Tribe and within 

the Tribe's former reservation. 
The Shriner Tract, on the other hand, was acquired in trust in 1996, a penod of 18 years 

from the Tribe's restoration in 1978. In Grand Traverse and Mechoopda, the penod 

between restoration and acquisition was 9 years (with the approval of the constitution a 

requirement in Grand Traverse). In Rhonerville, 10 years elapsed between restoration 

and acquisition. In Coos, the period behveen restoration and acquisition was 14 years. 

It could be argued that the difference between 14 and 18 years is small. This difference 

might not be significant if the Tribe met the other factors. However, we cannot find that 

the land is restored based solely on an 18-year passage of time. Perhaps if the Tribe met 

the other factors, we might be willing to push the outer limits of what has previously been 

considered an acceptable delay. However: that is not the case here. Furthermore, here, 

the Tribe acquired land upon which it currently resides within one and six years of 

restoration. We conclude that, if any land is to be considered restored, it is this 

intervening land. 

Finally, the Tribe argues that in both Grand Traverse and its case, the subject lands were 

previously ceded to the United States by treaty. The relevant language from Grand 

Traverse 11 is as follows; "The Band has introduced substantial and uncontradicted 

evidence that the parcel is located in an area of historical and cultural significance to the 

Band that was previously ceded to the United States." Grand Traverse II at 937, aff d, 

2004 FED App. 01 51P (6Ih Cir. 2004). Our reading of this language suggests that the 

previously ceded land must be in an area of historical and cultural significance to be 

considered restored. As discussed above, the Shriner Tract, which the Tribe occupied for 

some 11 years, does not qualify as historically significant. Therefore, the fact that the 

land was ceded, without the historical connection, does not warrant a finding of 

restoration. 

Section 2719(a) of the IGRA provides that gaming shall not be conducted on lands 

acquired by the Secretary in trust for the benefit of an Indian tribe after October 17,1988, 

unless certain exceptions are met. The Shriner Tract was acquired in trust after October 

17, 1988. As discussed above, the Shriner Tract does not meet any of the exceptions to 

the JGRA prohibition on gaming on lands acquired after October 17, 1988. Therefore, 

the Tribe may not Jawfblly game on the Shriner Tract. Consequently, we must 

disapprove the Ordinance Amendment in as much as it defines Indian Country to include 

8 We acknowledge that the Mechoopda Tni had acquired intervening land. However, that land was 

purchased to address the housing needs of its members, but was an almond orchard located in a flood plain 

and unsuitable for housing. In the Wyandotte's case, the land they purchased is where the tribal 

headquarters is located, and is where the Tribe could game if it chose. 
the Shriner Tract. 

lONAL INDLAN GAMING COMMISSION. 

i 

Cloyce V.khoney Chairman Commissioner Commissioner