of the same arguments pressed here, and we concluded that the evidence
did not support a finding of contributory negligence. Contrary to the
government’s assertion, this court had before it and considered on the first
appeal all of the evidence on the issue of contributory negligence, and the
resulting mandate did not leave the matter open for reappraisal or
clarification by the district court. Thus, the lower court correctly refused
to reevaluate the issue on remand.

554 F.2d at 994. The same is true here: the Court of Appeals for the Tenth Circuit had
before it all of the available evidence considered by the district court supporting the
Tribe’s claim to jurisdiction over the Reserve and issued a ruling on those facts in a
manner that was not open to revision, much less reversal. Were the district court to
reverse itself and disagree with the ruling of the Court of Appeals for the Tenth Circuit, it
may not reevaluate the issue on remand.°

B. Recent Tribal membership cannot overcome Congress’ abrogation of Tribal
jurisdiction over the Reserve.

The courts in Miami I and Miami II did not address the question of whether
Tribal jurisdiction over the Reserve might arise from the actions taken by the Tribe to
extend membership to the present-day owners of the Reserve. The Miami I court left the
door open for the Tribe to resubmit its management contract to the NIGC with evidence
of the constitutional amendment and the current owners’ consent to Tribal jurisdiction.
In his 1997 Opinion, the Acting Solicitor found that these events did not provide enough
evidence of tribal jurisdiction to bring the Reserve within the definition of “Indian lands”
for the purposes of the IGRA. The Miami II court found “facially sound” the Tribe’s
contention that the subsequent actions established jurisdiction and required the federal
agencies to provide a better record on the jurisdiction issue.

1. The Tribe can determine its own membership.

An attribute of the sovereignty of an Indian tribe is its right to determine its own
membership. Montana v. U.S., 450 U.S. 544, 564 (1981) (“Indian tribes retain their
inherent power to determine tribal membership”); Santa Clara Pueblo v. Martinez, 436
U.S. 49, 72 n.32 (1978) (Indian tribe has “complete authority to determine tribal
membership except in specific instances.”); Martinez v. Southern Ute Tribe, 249 F.2d
915, 920 (10% Cir. 1957) (“‘a tribe has complete authority to determine all questions of its
own membership”); Smith v. Babbitt, 100 F.3d 556 (8" Cir. 1996), cert. denied sub nom.,
Feezor v. Babbitt, 522 U.S. 807 (1997) (Tribes’ retained sovereignty includes authority to
determine tribal membership). Further, tribal membership is a bilateral political

° The Acting Solicitor, in the 1997 Opinion, observed the following: “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.” 1997 Opinion at 2.

14


on equitable terms, by the chiefs of the Tribe, subject to appeal to the
agent, whose decision shall be final.

10 Stat. at 1094. Article 2 also provided that the lands not ceded to the United States
were reserved for use by the Tribe and that members could make selections of two
hundred acres each. The patents that would issue for these selected lands would be

subject to such restrictions respecting leases and alienation as the President or
Congress of the United States may impose; and the lands so patented shall not be
liable to levy, sale, execution, or forfeiture: Provided, That the legislature of a
State within which the ceded country may be hereafter embraced, may, with the
assent of Congress, remove these restrictions.®

Under the 1854 Treaty, the Indiana Miamis were not to receive any compensation
for lands in Kansas ceded by the Western Miamis, although payments required by the
Treaty of November 28, 1840, 7 Stat. 582, would go to the Indiana Miamis who were
identified on a list of 302 names. This list did not include the DeRome family; however,
the 1854 Treaty allowed the Indiana Miamis to add to the list. The Senate ratified the
1854 Treaty on August 4, 1854, with an amendment which limited the annuity roll of the
Indiana Miamis to only those individuals that were on the list of 302 names, “the increase
of the families of the persons” on that list, and those persons “added to said list by the
consent of the said Miami Indians of Indiana, obtained in council, according to the
custom of the Miami tribe of Indians.” 12 Op. Att’y Gen. 236, 242 (1867).

In the Act of June 12, 1858, 11 Stat. 329, Congress directed that 68 (later 73)
names be added to the list of 302 names; members of the DeRome family, including
Maria Christiana, were added at this time. The leaders of the Indiana Miamis opposed
the inclusion of these individuals. See H.R. Rep. No. 3852, 51* Cong., 2d Sess. (1891);
H.R. Exec. Doc. No. 23, 49" Cong., 1* Sess. at 14 (1886). The 1858 Act also directed
the Secretary to pay these individuals annuities for past years and to allot to each of them
200 acres to be taken from lands within the remaining Miami reservation. The Act of
March 3, 1859, 11 Stat. 430, authorized the Secretary to issue restricted patents for these
lands pursuant to the 1854 Treaty. The land, known as the Reserve, allotted by restricted

6 On February 1, 1865, the Kansas Legislature enacted the following legislation:
“{A]ll members of Indian tribes to whom lands have been granted by the United States, in
this State, and who have received patents therefore, are hereby authorized to sell or
convey the same by deed in fee simple, or to mortgage the same, with the like effect and
under the same restrictions and limitations as are provided by law for conveyances in
other cases. Kansas Laws 164-65 (1865). The Court of Appeals for the Tenth Circuit in
Miami III noted that in a March 1, 1872, Kansas Joint Resolution, Kansas removed
restrictions on the alienability of the Kansas Reserves (available through the Kansas State
Historical Society, 6425.SW 6" Avenue, Topeka, KS 66615). Miami III, 249 F.3d
atl230. By Act of January 23, 1873, 17 Stat. 417, Congress subsequently assented to the
Kansas legislature’s authorization of removal of restrictions against alienation on fee-
patented land, “in all cases in which the title has legally passed to citizens of the United
States other than Indians.”


Floyd E. Leonard, Chief
Miami Tribe of Oklahoma
202 South Eight Tribes Trail
P.O. Box 1326

Miami, OK 74355

Kip Kubin, Esq.

Bottaro, McCormick, Morefield & Kubin, L.C.
4700 Belleview, Suite 404

Kansas City, MO 64112

Counsel for Miami Tribe

Christopher J. Reedy, Esq.

Wehrman & Colantuono, LLC

4601 College Boulevard, Suite 280

Leawood, KS 66211

Counsel for Butler National Corp. and Clark D. Stewart

18


2. The Indian canon of interpretation

If it is determined that the language of a statutory provision is ambiguous,® federal
courts have an obligation to construe statutes enacted for the benefit of Indians “liberally
in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Montana
v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985); United States v. 162 MegaMania
Gambling Devices, 231 F.3d 713, 718 (10th Cir. 2000); NLRB v. Pueblo of San Juan,
276 F.3d 1186, 1194-5 (10" Cir. 2002). Indeed, as the Court of Appeals for the District
of Columbia has ruled, “if [an ambiguous law] can reasonably be construed as the Tribe
would have it construed, it must be construed that way.” Muscogee (Creek) Nation v.
Hodel, 851 F.2d 1439, 1445 (D.C. Cir. 1988) (emphasis in original).

But the courts are not entirely in agreement as to the effect of this rule of
construction on interpretations by a federal agency like the DOI or by the NIGC.
Compare Ramah Chapter of the Navajo Nation v. Lujan, 112 F.3d 1455 (10" Cir. 1997)
(canon of construction of liberal interpretation tramps agency interpretations) with
Chugach Alaska Corp. v. Lujan, 915 F.2d 454 (9" Cir. 1990) (deference due expert
agencies makes application of canons of construction inappropriate). Very limited
authority exists in the legislative history of the IGRA for applying this canon of
construction. See 134 Cong. Rec. H8153 (daily ed. Sept. 26, 1988) (Rep. Udall, IGRA’s
primary House sponsor, calling on courts to apply “the Supreme Court's time-honoring
tule of construction that any ambiguities in legislation enacted for the benefit of Indians
will be construed in their favor.”)

TV. METHOD OF ANALYSIS

This discussion will focus solely on the question of the Tribe’s jurisdiction over
the Reserve. The Court of Appeals for the Tenth Circuit instructed that the inquiry focus
on the intent and purpose of Congress concerning the present-day status of the Reserve.
In examining this question, the DOI had the benefit of reviewing the pleadings and
opinions in the litigation over this Reserve and each of the parties had ample opportunity
to develop and refine its legal and factual positions. Thus, the DOI was able to review
information or submissions from the United States Department of Justice, the State of
Kansas, and the Tribe. The DOI also reviewed expert reports and other documents and
materials recently submitted by the State of Kansas and attorneys for the Tribe.

8 Provisions of the IGRA have been found ambiguous by the Court of Appeals for
the Tenth Circuit in this case. Kansas v. United States, 249 F.3d 1213, 1228 (10" Cir.
2001) (noting that the “IGRA sheds little light on the question of whether under the
[circumstances of the case] the tract constitutes “Indian lands”), and in Sac and Fox
Nation of Missouri v. Norton, 240 F.3d 1250 (10" Cir. 2001) (noting that the IGRA does
not define the term, “reservation;” therefore, Chevron deference would apply to any
Commission construction of that term).



The Western Miamis ceded their remaining land in Kansas and Congress directed
the Secretary of the Interior to determine which individuals were entitled to share in the
resulting funds, including “those persons of Miami blood or descent for whom provision
was made by the third section of the act of [June 12, 1858], if in the opinion of the
Secretary of the Interior the said Indians are entitled to be so included under treaty
stipulations.” 17 Stat. 631, 632.

By letter dated February 11, 1873, the Secretary of the Interior forwarded to
Congress a report from the Superintendent of Indian Affairs that determined that none of
the individuals who had received an allotment pursuant to the 1858 Act were entitled to
share in the proceeds from the sale of the Tribe’s land in Kansas. The Commissioner
opined that these individuals had not been “recognized as Miamis, either by the tribe in
Kansas or by those residing in Indiana, who . . . have never joined the tribe in Kansas,
and until now have claimed no benefits from their annuities.” See J.R. Exec. Doc. No.
199, 42"! Cong., 3d Sess. (1873). Maria Christiana DeRome had been included in this
group and had received her allotment despite the lack of tribal membership in either

group.

In 1882, the Attorney General opined that only those Miamis who moved to
Kansas were entitled to receive allotments or proceeds from the sale of the allotments, 17
Op. Att’y Gen. 410, 412 (1882), and that the 1858 Act [adding the DeRome family to the
list of persons receiving allotments] was “virtually repealed.” Id. at 415. The Western
Miamis petitioned Congress in 1884, asking that the Western Miamis be reimbursed for
the money and lands taken from them and given to the 73 individuals on the 1858 list.
H.R. Rep. No. 3852, 51 Cong., 2d Sess. at 2 (1891). Following referral from Congress,
the Court of Claims concluded that the Western Miamis were entitled to recover the
amount of money erroneously paid as back annuities for the 73 individuals, as well as the
value of the land allotted to those individuals. See The Western Miami Indians v. United
States, Ct. Cl. No. 1349, Jan. 9, 1891, in H.R. Misc. Doc. No. 83, 51 Cong., 2d Sess.
(1891). In 1892, the United States compensated the Western Miami, 281 F.2d at 212
(citing 26 Stat. 1000), and provided additional compensation in 1960 when the Western
Miami sought payment of interest on the compensation. Id.

B. Subsequent History

1. Tribal actions

More recently, the Tribe engaged in several activities intended to demonstrate
that it uses its alleged jurisdiction to exert governmental powers over the Reserve. Tribal
Resolution 93-12 (Jan. 5, 1993) expressly reaffirmed the Tribe’s governmental
jurisdiction over the Reserve. In Tribal Resolution 94-48 (August 3, 1994), the Tribe
requested assistance from the Bureau of Indian Affairs (BIA) concerming the escheat to
the Tribe of interests in the Reserve. Tribal Resolution 95-13 (December 6, 1994)
enacted a code governing the descent and distribution of trust or restricted lands over
which the Tribe has jurisdiction and specifically included the Reserve. Tribal Resolution
95-48 (May 9, 1995) set out the terms by which the Tribe purportedly agreed to accept a


fee patent dated, December 15, 1859, to Maria Christiana DeRome was indisputably
inside the Tribe’s Kansas reservation.

These individuals drew annuities at the designated places in Indiana from 1859
until 1867. The Appropriations Act of March 2, 1867, 14 Stat. 492, 502, 515, authorized
appropriations for the Indiana Miamis “as may be, upon the opinion of the Attorney
General, legally entitled to the same, under the provisions of the treaty with said Indians
of June 5, 1854 and Senate amendments thereto, regardless of any subsequent
legislation.”

In 1867, the United States Attorney General issued an opinion stating that the
names of the 73 individuals had been improperly added to the annuity roll, as the names
had been added without the consent of the Indiana Miamis. 12 Op. Att’y Gen. 236
(1867); S. Misc. Doc. No. 131, 53 Cong., 3d Sess. (1895). The Attorney General
reasoned that the 1867 Appropriations Act directed him to disregard “subsequent
legislation,” that is, any legislation enacted after the 1854 Treaty and its Senate
amendment dated August 4, 1854. This “subsequent legislation” included the Act of
June 12, 1858, which added the DeRome family to its list of 302 names.

Thus, any future annuity roll would include, and subsequent annuities would be
designated for, only those Indiana Miamis who were either on the list of 302 names, part
of “the increase of the families of persons” on the list of 302 names, or added with the
consent of the Indiana Miamis, notwithstanding the Act of June 12, 1858. As noted
earlier, the Indiana Miamis had already objected to the inclusion of these individuals, so
the DeRome family would no longer be included on the annuity rolls.

After these individuals were dropped from the annuity roll of the Indiana Miamis,
Congress instructed the Secretary of the Interior to include these individuals on the rolls
of the Miami Indians in Kansas if he found them entitled to be included. See Act of
March 3, 1873, 17 Stat. 631. However, the Secretary of the Interior found that the 73
individuals were not eligible to be included on the roll of the Western Miamis because
they remained in Indiana instead of emigrating. See H.R. Rep. No. 3852, 51“ Cong,, 2d
Sess. (1891).’

The United States and the Miami Tribe entered the Treaty of February 23, 1867,
15 Stat. 513, in which the Miamis would move from Kansas to Oklahoma. Those
Miamis who remained in Kansas could become United States citizens and surrender
tribal membership after fulfilling certain conditions. Act of March 3, 1873, 17 Stat. 631.

7 The Tribe disputes whether the DeRome family failed to emigrate from Indiana
to Kansas. The Tribe has alleged that the DeRomes were in Kansas at the time of the
allotment, but may have retumed to Indiana, then returned again to Kansas. The Tribe
has also alleged that the burial sites of Maria Christiana’s brothers and sisters are located
in the vicinity of the Reserve, although the burial site of Maria Christiana DeRome is
unknown.


1. APPLICABLE LAW

A. The Indian Gaming Regulatory Act (IGRA)

In the IGRA, Congress designed a comprehensive statutory scheme for the
conduct of gaming activities on Indian lands. Congressional findings indicate the
following:

[T]he establishment of independent Federal regulatory authority for
gaming on Indian lands, the establishment of Federal standards for gaming
on Indian lands, and the establishment of a National Indian Gaming
Commission are necessary to meet congressional concerns regarding
gaming and to protect such gaming as a means of generating tribal
revenue.

25 U.S.C. § 2702(3). On the basis of these findings and to fulfill several statutory
responsibilities, Congress established the NIGC and gave it jurisdiction to regulate
several aspects of Indian gaming. 25 U.S.C. § 2704(a). That authority includes the
review of management contracts that are defined as “any contract ... between an Indian
tribe and a contractor ... if such contract or agreement provides for the management of all
or part of a gaming operation.” 25 C.F.R. § 502.15.

For tribes to conduct gaming under the IGRA, such gaming must be conducted on
“Indian lands” over which the Tribe has jurisdiction, as defined by the IGRA. The IGRA
defines “Indian lands” as follows:

(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.A. § 2703(4).

B. Statutory Interpretation

1. Deference to agency construction

The legal analysis of the IGRA must occur within the framework of principles of
statutory interpretation. An agency must give effect to the unambiguous intent of
Congress, although it must take a different approach in circumstances where the statute is
susceptible to more than one meaning. See Chevron U.S.A. v. Natural Res. Def. Council,
467 U.S. 837, 843-45 (1984). Under such circumstances, the agency must utilize its
specialized expertise and attempt to apply the statute in a rational manner.


United States Department of the Interior

OFFICE OF THE SOLICITOR
Washington, D.C. 20240

IN REPLY REFER TO:

Penny J. Coleman, Esq. ocT 31 2002

Acting General Counsel

National Indian Gaming Commission
1441 L Street, NW (Suite 9100)
Washington, DC 20005

Re: Whether the Maria Christiana Reserve No. 35 is “Indian lands”
for Purposes of Gaming under the Indian Gaming Regulatory Act?

Dear Ms. Coleman:

I am writing to you regarding whether the Maria Christiana Reserve No. 35
(Reserve), a restricted Indian allotment located in the State of Kansas (State), constitutes
“Indian lands” under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-
2721. As you know, this issue has been litigated several times with three district court
decisions and a court of appeals decision.

In the last round of litigation over our opinion issued on November 10, 1998,
(1998 Opinion) to the National Indian Gaming Commission (NIGC), the Department of
Interior (DOI) acknowledged that it did not completely address whether the jurisdiction
of the Miami Tribe of Oklahoma (Tribe) existed, thereby enabling the Tribe to exercise
governmental authority over the Reserve. The 1998 Opinion set forth in part our analysis
of whether the Reserve constituted “Indian lands” as defined by the IGRA as “any lands
title to which is . . . 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).

While the DOI agreed to address this issue in its briefings before the courts, given
the strong language in the opinion of the Court of Appeals for the Tenth Circuit that
Congress abrogated the Tribe’s jurisdiction long ago, we believe this remaining issue has
been decided. We nevertheless issue this opinion to assist in the NIGC’s review of the
management contract submitted for re-approval by the Tribe and the Butler National
Service Corporation (Butler) and to ensure a complete record of this decision. Thus, for
the following reasons, we find that the Tribe does not possess jurisdiction over the
Reserve and, therefore, the Reserve is not “Indian lands” for purposes of gaming under
the IGRA.

I. PROCEDURAL BACKGROUND

In Miami Tribe of Oklahoma v. United States, 927 F. Supp 1419 (D. Kan. 1996)
(Miami D), the Tribe sought judicial review of the NIGC’s disapprggat@h WPOS of ABH ZEL

Ws



[including Reserve No. 35], and awarded interest on the 1891 payments.
The court in [Miami Tribe I] concluded from this series of events that the
Tribe has unmistakably relinquished its jurisdiction over the Reserve.
Moreover, in 1873, Congress expressly abrogated the Tribe’s jurisdiction
[over its former lands in Kansas], which was effective no later than 1924
when any members of the Tribe remaining in Kansas — and their heirs —
became naturalized citizens.

249 F.3d at 1230-31, citing Kansas v. U.S., 86 F. Supp. at 1095-96.

The Court of Appeals for the Tenth Circuit affirmed these conclusions and went
on further to hold:

Because the Tribe did not appeal Miami Tribe I, the district court’s
findings and conclusions regarding the status of the tract, including its
construction of the relevant legislation and treaties, are now res judicata
and we need not revisit them here. ... Notably, none of the Defendants
have ever challenged Miami Tribe I’s findings and conclusions regarding
the status of the tract. Rather, they rely solely on the Tribe’s activities
subsequent to Miami Tribe I to claim tribal jurisdiction over the tract —
namely (1) the Tribe’s adoption of the tract’s twenty-plus owners into the
Tribe, (2) those owners’ consent to tribal jurisdiction pursuant to a lease
with the Tribe, and (3) the Tribe’s recent development of the tract. None
of these recent events, however, alters the conclusion that Congress
abrogated the Tribe’s jurisdiction over the tract long ago, and has done
nothing since to change the status of the tract. An Indian tribe’s
jurisdiction derives from the will of Congress, not from the consent of fee
owners pursuant to a lease under which the lessee acts. We conclude that
the State of Kansas has a substantial likelihood of success on the merits of
this cause.

249 F.3d at 1230-31.

The Court of Appeals for the Tenth Circuit affirmed the preliminary injunction
issued by the district court and remanded the matter for further proceedings. This
decision was not appealed.

In this circuit, the doctrines of res judicata and collateral estoppel bar litigation on
issues that could have been, but were not raised previously in state court litigation. Reed
v. McKune, 298 F.3d 946 (10" Cir., 2002). In this case, the Court of Appeals for the
Tenth Circuit looked to Kansas law and observed that an issue is res judicata when there
is “concurrence” of four conditions: (1) identity in the things sued for, (2) identity of
the cause of action, (3) identity of persons and parties to the action, and (4) identity in the
quality of the persons for or against whom the claim is made. Id. at 950 (citations
omitted). The Court of Appeals for the Tenth Circuit found all of these conditions to be
present in the instant case.

12


V. LEGAL ANALYSIS

Analysis of the “Indian lands” definition is not necessary if the Tribe does not
possess the requisite jurisdiction over the Reserve. “Tribal jurisdiction” is a threshold
requirement to the exercise of governmental power. See, e.g., Rhode Island v.
Narragansett Indian Tribe, 19 F.3d 685, 701-703 (Ist Cir. 1994), cert. denied, 513 U.S.
919 (1994), superseded by statute as stated in Narragansett Indian Tribe v. National
Indian Gaming Comm’n, 158 F.3d 1335 (D.C. Cir. 1998); Miami II, 5 F. Supp. 2d 1213,
1217-18 (D. Kan. 1998); (A tribe must have jurisdiction in order to be able to exercise
governmental power); Miami I, 927 F. Supp. 1419, 1423 (D. Kan. 1996) (NIGC
implicitly decided that in order to exercise governmental power for purposes of 25 U.S.C.
§ 2703(4), a tribe must first have jurisdiction over the land.) This interpretation is
consistent with IGRA’s language limiting the applicability of its key provisions to lands
over which a tribe has jurisdiction. 25 U.S.C. §§ 2703(7)(D); 2710(a)(1), (a)(2), (b)(1),
(b)(4)(A), & (d)(1)(A)(i); and 2713(d); see also Narragansett Indian Tribe, 19 F.3d at
701-703.

A. The principle of res judicata requires a finding of no Tribal jurisdiction over the
Reserve.

A review of the opinions in this matter demonstrates that the courts have left no
room for a finding that the Tribe possesses jurisdiction over the Reserve. The Court of
Appeals for the Tenth Circuit affirmed the Miami I district court’s opinion that the Tribe
did not have the requisite jurisdiction:

The difficulty with the Government’s position is that the district court in
Miami Tribe I thoroughly analyzed the question of the Tribe’s jurisdiction
over the tract based upon the United States’ treatment of the tract. The
court concluded that no lawful basis existed to suggest the Tribe presently
had jurisdiction over the tract. Miami Tribe I, 927 F. Supp. at 1424-27...
Rather, Congress years ago “unambiguously intended to abrogate the
Tribe’s authority of its lands in Kansas and move the Tribe to new lands in
Oklahoma.”

249 F.3d at 1230-31. In addition, the Court of Appeals for the Tenth Circuit included a
summary of the findings and conclusions of the Miami I district court opinion:

The Reserve is located inside the original boundaries of the Tribe’s
reservation in Kansas. In 1873, the Tribe agreed to sell its unallotted
lands in Kansas; Congress legislated the purchases of the lands in 1882.

In 1884, the Tribe sought reimbursement for the land allotted to, among
others, Maria Christiana DeRome. In essence, the Tribe claimed that the
Maria Christiana allotment should be treated as unallotted land and sold to
the United States. The Court of Claims agreed and compensated the Tribe
for the land in 1891. The Court of Claims concluded that . . . 1858
legislation had unlawfully taken funds and land designated for the Tribe

ll


one percent undivided interest in the Reserve from heir-owner Earline Smith Downs,
although this transaction was never completed.

The Tribe has assumed the physical maintenance of the property and has taken
steps to discourage trespass on the Reserve. Activities observed during a site visit in
1998 by DOI personnel included the operation of an “outreach center” in a mobile home
building on the property and the presence of a construction trailer. The Tribe has issued
a license to a Tribal member to operate a smoke shop on the Reserve. Water, telephone,
and electricity services are available on the Reserve. Tribal Police regularly travel to
Kansas to conduct surveillance of the Reserve.

Although neither Maria Christiana DeRome nor her heirs elected to move with
the Tribe to Oklahoma, the Tribe proposed to amend its constitution in 1996 to authorize
membership specifically for the heirs of Maria Christiana DeRome:

(f) Any person of Miami Indian blood and/or blood descendent thereof,
who relocated to Kansas, who has been issued restricted land patents to
land within the Miami Reservation in Kansas territory as stipulated under
the second Article of the treaty with the Miami, dated June 5", 1854, and
approved by the third section of an Act of Congress dated June 12", 1858,
or any persons listed in the La Cygne Journal, in 1871, whose names
appear as an Indian headright, who makes application, may be admitted to
membership in the Miami Tribe of Oklahoma.

The constitutional amendment was approved by Tribal election and submitted to
DOI. The Secretary of the Interior approved the amended constitution on January 18,
1996. Numerous heirs of Maria Christiana DeRome were later granted tribal
membership when the Tribe passed an ordinance approving their membership. In
addition, the heirs specifically consented to tribal jurisdiction in leasing the Reserve to
the Tribe.

2. Bureau of Indian Affairs actions

The BIA has issued letters regarding the status of the Reserve. In 1974, the BIA
Acting Director, Office of Trust Responsibilities, notified the Anadarko Area Director by
letter of his conclusion that the Reserve remained in restricted fee status and under the
jurisdiction of the BIA. The Realty Specialist, BLA Miami Agency, informed the Tribal
chief in a 1993 letter that the Reserve was held in restricted status, would be subject to
the escheat provisions of the Indian Land Consolidation Act of 1983, and other tribes had
not challenged the jurisdiction of the Tribe. In a 1994 letter, the Superintendent, BIA
Miami Agency, noted that the Reserve was held in trust/restricted title by the United
States. The BIA has also continued to administer probates of the Reserve. See Brief of
Amici, Bureau of Indian Affairs, U.S. Department of Interior, filed in The Matter of

Estate of James Dallas McHenry, Deceased Miami of Oklahoma, IP OK 274 P 93.


exercises governmental power over the Reserve, without first determining the
jurisdictional basis for that power, as putting “the cart before the horse.” 249 F.3d at
1229.

The Court of Appeals for the Tenth Circuit discussed the actions undertaken by
the Tribe to demonstrate the existence of jurisdiction and the exercise of governmental
power over the Reserve.

None of these recent events, however, alters the conclusion that Congress
abrogated the Tribe’s jurisdiction over the tract long ago, and has done
nothing since to change the status of the tract. An Indian tribe’s
jurisdiction derives from the will of Congress, not from the consent of the
fee owners pursuant to a lease under which the lessee acts.

Id. at 1230-31. The Court of Appeals for the Tenth Circuit remanded for further
proceedings consistent with its opinion.’ The Federal Defendants moved the district
court to vacate the NIGC’s approval of the management contract and remand the matter
to the agencies. On June 24, 2002, the district court remanded the matter for “further
proceedings not inconsistent with the [district court’s] opinion and Tenth Circuit’s
decision.” 2002 U.S. Dist. LEXIS 12392. After evaluating this matter on remand, as
more fully discussed herein, I find that the courts have decided this matter and left no
room for a contrary conclusion.

I. FACTUAL BACKGROUND

A. Statutory History

Most of the history of the Reserve is reviewed in detail in Miami I and need not
be repeated here in its entirety. For purposes of this analysis, the first key event was the
Treaty of June 5, 1854, 10 Stat. 1093, which identified two groups of Miami Indians:
the Western Miamis who had emigrated to Kansas’ and those who remained in Indiana
(Indiana Miamis). Article 2 of the 1854 Treaty implicitly reserved jurisdiction to the
Tribe with respect to certain civil issues.

When selections are so made, or attempted to be made, as to produce
injury to, or controversies between, individuals, which cannot be settled
by the parties, the matters of difficulty shall be investigated and decided

4 It should be noted that neither the district court nor the Court of Appeals for the
Tenth Circuit addressed whether the State had standing to seek review of a gaming
management contract, nor did the Courts discuss the basis for the NIGC to revisit the
issue of the Reserve’s status in the context of a management contract review, in light of
the stipulation and agreement that was signed in the settlement of Miami II.

5 As discussed infra, the present-day Miami Tribe of Oklahoma consists of Western
Miamis who moved to Oklahoma under the terms of a subsequent treaty.


relationship, Masayesva v. Zah, 792 F. Supp. 1178, 1181 (D. Ariz. 1992), and a tribe
exercises retained sovereignty over Indians who consent to be tribal members. Duro v.
Reina, 495 U.S. 676 (1990).

As we noted in Section II.B.1 of this Opinion, the Tribe amended its Constitution
in 1996 to authorize membership specifically for the heirs of Maria Christiana DeRome.
That amendment was approved by Tribal election and by the Secretary of the Interior on
January 18, 1996.'° The heirs of Maria Christiana DeRome, after becoming tribal
members, specifically consented to tribal jurisdiction in their lease with the Tribe for the
Reserve dated September 30, 1998:

“The undersigned Indians being members of the Miami Tribe of Oklahoma
consent to the Jurisdiction and governing powers of the Miami Tribe of
Oklahoma over all real property held in Indian Country by the undersigned
Indians including undersigned Indians’ interests in Maria Christiana Miami
Reserve No. 35.”

Thus, the Tribe exercised its inherent power to determine its own membership
when it extended tribal membership to the Reserve owners; the Reserve owners
specifically submitted to Tribal jurisdiction in the lease agreement. However, tribal
jurisdiction cannot extend to the Reserve, but only to Tribal owners/members of the
Reserve, because Congress abrogated Tribal jurisdiction over the Reserve. The Tribe
asserts that it has jurisdiction over Indian Country which includes restricted Indian
allotments. Because the Reserve owners are now members and this Reserve is a
restricted Indian allotment, the Tribe believes it now has jurisdiction. This argument
does appear “facially sound” as the Miami II court noted. But we cannot infer solely on
the basis of the restricted status of a parcel that jurisdiction necessarily inures particularly
in light of a Congressional abrogation.'' The Tribe cannot by its unilateral actions
override the intent of Congress as expressed in numerous Acts.

0 Pursuant to the Oklahoma Indian Welfare Act (OIWA) of 1936, 25 U.S.C. §§
501-510, the Tribe adopted its Constitution and By-laws that were ratified by the
Secretary of the Interior on January 6, 1938. The Constitution enabled the Tribal
governing body to enact measures necessary to exercise jurisdiction over territory and
members. In the OIWA, Congress intended to reestablish the Oklahoma tribes and
provide for the establishment of tribal governments.

nT The Court in Mustang Production Co. v. Harrison, 94 F.3d 1382 (10" Cir. 1996),
upon which the Tribes relies for its conclusion, noted that Congress had not divested the
Cheyenne-Arapaho Tribe of jurisdiction over the tribal member trust allotment. Thus,
Mustang Production is distinguishable and does not support the Tribe’s conclusion.

15


land and the United States shall be a necessary party to the proceedings. Any
conveyance ordered by the court in such proceedings will be made in unrestricted
fee simple to non-Indian grantees and in a restricted fee to Indian grantees.

96 Stat. 1645.

This legislation does not address the Miami Tribe’s authority over the Reserve or
subject the partitioning or distribution actions to the Miami tribal courts. The legislation
does not repeal the prior 1873 Act, or any prior Act, even though it references the statute
under which Maria Christiana DeRome received her allotment. We find that in enacting
this special legislation Congress did not restore the Tribe’s jurisdiction. And this
legislation was enacted eight years prior to the holding of the Court of Appeals for the
Tenth Circuit that Congress had “done nothing” to reverse its abrogation of tribal
jurisdiction.

As discussed above, the Miami I district court and the Court of Appeals for the
Tenth Circuit concluded that Congress specifically abrogated the Tribe’s jurisdiction
over the Reserve. Having so acted, Congress would have to take a subsequent action to
reinstate Tribal jurisdiction. The Tribe cannot, through its unilateral actions, override
congressional intent and disturb that which Congress has made clear.

VI. | CONCLUSION

The Court of Appeals for the Tenth Circuit in Miami III affirmed the Miami I
district court’s opinion that Congress abrogated the Tribe’s jurisdiction over the Reserve
and noted that Congress has not acted since Miami I to overturn that decision. I
conclude that the Reserve does not constitute “Indian lands” within the jurisdiction of the
Tribe for purposes of the IGRA.

Sincerely,

William G.
Solicitor

cc Melanie D. Caro, Esq.
Assistant United States Attorney, District of Kansas
500 State Avenue, Suite 360
Kansas City, KS 66101

Brian R. Johnson. Esq.

Assistant Attorney General

Office of the Attorney General, State of Kansas
120 S.W. 10" Avenue, 2TM Floor

Topeka, KS 66612-1597

17


As a result of this remand, the DOI conducted an inquiry into the issue of the
Tribe’s exercise of governmental power. The Associate Solicitor determined, as a matter
of fact and law, that the Tribe’s exercise of governmental power was enough to satisfy
the requirement in 25 U.S.C. § 2703(4) and that the Reserve was “Indian lands” of the
Tribe.

Consistent with the NIGC’s policy in 1998,” the NIGC adopted the Associate
Solicitor’s opinion. Based upon this advice, the Tribe and NIGC settled Miami II with a
“Stipulation and Agreement” filed on January 15, 1999, that the NIGC Chairman would
treat the Reserve as “Indian lands” for the purpose of his review and approval or
disapproval of the gaming management contract between the Tribe and Butler. In
exchange, the Tribe agreed to dismissal with prejudice of its claim.

Pursuant to this stipulation, the Chairman of the NIGC began another review of
the proposed management contract between the Tribe and Butler and the necessary
background investigations were conducted. Based upon such review and investigation,
the NIGC Chairman determined that the contract met the requirements for approval
under 25 U.S.C. § 2711 and that the persons with a financial interest in, or management
responsibility for, the contract were suitable. Treating the Reserve as “Indian lands”
pursuant to the Miami II stipulation, the Chairman approved the management contract
on January 7, 2000.

Meanwhile, the State filed suit under the Administrative Procedure Act (APA), 5
U.S.C. §§ 701, et seq. against the United States, various agencies and officials
challenging the 1998 Opinion that the Reserve constituted “Indian lands” and seeking a
preliminary and permanent injunction against facilitating any gaming on the Reserve.
Kansas v. United States, 86 F. Supp. 2d 1094 (D. Kan. 2000), aff'd 249 F.3d 1213 (10
Cir. 2001) (Miami II). The United States moved to dismiss the case and objected to the
State’s Motion for a Temporary Restraining Order (TRO). The Miami III district court
concluded that the NIGC’s “Indian land determination was undertaken in an arbitrary and
frivolous manner,” 86 F. Supp. 2d at 1099, and that the NIGC did not address the
threshold issue of whether the Tribe had jurisdiction over the Reserve. Id. at 1098.

The district court denied the United States’ Motion to Dismiss and granted the
preliminary injunction’ from which the United States sought interlocutory appeal to the
Court of Appeals for the Tenth Circuit. The Court of Appeals for the Tenth Circuit
subsequently characterized the NIGC’s conduct in determining whether the Tribe

2 In February 2000, the NIGC and the DOI executed a Memorandum of
Understanding (MOU) that provided for a collaborative process in the development of
legal opinions relating to “Indian lands.” The MOU alters the prior NIGC practice of
requesting DOI to determine “Indian land” matters under the IGRA and deferring to such
determinations.

3 The State filed a Motion for TRO and withdrew it. The State later renewed its
Motion for TRO. At the hearing on the TRO, the district court decided to treat the TRO
as a request for a Preliminary Injunction.


management contract between the Tribe and Butler. The Tribe appealed the initial
disapproval of the contract and the NIGC affirmed the disapproval on April 4, 1995. On
June 9, 1995, the NIGC supplemented its decision with the May 23, 1995, opinion of the
Associate Solicitor, Division of Indian Affairs (1995 Opinion).

In his 1995 opinion, the Associate Solicitor concluded that the Tribe did not
exercise the requisite governmental powers over the Reserve; thus it was not “Indian
lands” as defined by the IGRA. The Miami I court thoroughly reviewed the history of
the Reserve and determined that Congress had expressly abrogated the Tribe’s
jurisdiction over the Reserve. Id. at 1426. The court further noted that, after the NIGC’s
decision in the case, the Tribe amended its constitution, enabling it to approve
membership of the current Reserve owners. The court left the door open for the Tribe to
resubmit its management contract to the NIGC with evidence of the constitutional
amendment and the current owners’ consent to Tribal jurisdiction.’ The court did not
opine, however, on whether the NIGC would approve the management contract with this
new information. Id. at 1429 n.8.

The Tribe did not appeal this decision. Instead, the Tribe resubmitted the
management contract and the NIGC again sought an opinion from our office. In a second
opinion dated May 12, 1997, the Acting Solicitor found that the changes made by the
Tribe did not provide enough evidence of tribal jurisdiction to bring the Reserve within
the definition of “Indian lands” for the purposes of the IGRA. The NIGC adopted this
opinion and disapproved the management contract. The Tribe again sought judicial
review of the NIGC Chairman’s disapproval, given the circumstances of the
constitutional amendment and the new membership status of the owners of the Reserve.

In Miami Tribe of Oklahoma v. United States, 5 F. Supp. 2d 1213 (D. Kan. 1998)

(Miami ID, the Court was faced with the Tribe’s “facially sound” contention that it had
established jurisdiction by the actions it had taken. Id. at 1218. The court made clear the
following:

If jurisdiction were established, based on these subsequent events, the
court would find that the history of the parcel, at least that part dealing
with the cession of the land and the Tribe’s receipt of compensation is
irrelevant; the only inquiry under the statutory definition of “Indian
Lands” would be whether the tribe exercises--in the present--
governmental power over the land.

Id. The court reversed the Chairman’s disapproval of the management contract and
remanded the case to the NIGC to provide a better record, particularly with regard to
factors that would illuminate the issue of whether or not the Tribe is “actually and
concretely” exercising governmental power over the Reserve. Id. at 1219.

' Tn leasing the Reserve to the Tribe, the owners/new members specifically consented to Tribal
jurisdiction.


The doctrine of collateral estoppel prevents a second litigation of the same issues
between the same parties or those in privity with the parties. Under Kansas law, the
conditions require the following: (1) a prior judgment on the merits which determined
the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed
by the pleadings and judgment; (2) the parties must be the same or in privity; (3) the
issue litigated must have been determined and necessary to support the judgment. Id.
(citation omitted). These conditions also appear to be present in this matter.

The related doctrine of the “law of the case” also has applicability here. This
doctrine provides that where the judgment from which relief is sought was the subject of
appellate review, the lower court is bound, under the law of the case, by the court of
appeals’ prior ruling and may not deviate from the appellate decision. Corex Corp. v.
United States, 638 F.2d 119, 122 (9" Cir. 1981) (“When a case has been decided by an
appellate court and remanded, the court to which it is remanded must proceed in
accordance with the mandate and such law of the case as was established by the appellate
court.”), citing Firth v. United States, 554 F.2d 990, 993 (9th Cir. 1977).

The Corex court of appeals reversed a trial court’s grant of a new trial under Rule
60(b) of the Federal Rules of Civil Procedure based upon the ground that new evidence
had been discovered. However, since the “new” evidence concerned events that had
occurred after the end of the trial, the Corex court held that it was not new evidence for
the purposes of Rule 60(b). The Court of Appeals for the Federal Circuit noted that
courts uniformly adhere to this view. Halas v. Quigg, 914 F.2d 270 (Fed. Cir. 1990).

Although the district court in this case is free to consider “intervening
circumstances” not previously known to the court and can reopen to modify the
judgment, it may do so only in a manner that is consistent with the original ruling or that
does not change the opinion in any material respect. See nn. 22-23 Wright, Miller &
Kane, Federal Practice and Procedure § 2873. In its decision to remand, the district court
instructed that further proceedings were not to be inconsistent with its previous opinions
or those of the Court of Appeals for the Tenth Circuit. A DOI opinion concluding that
the Tribe possesses jurisdiction over the Reserve would contradict the opinion of the
Court of Appeals for the Tenth Circuit in Miami III. By suggesting that the district court
should reverse its previous finding of no jurisdiction, such an opinion would require the
district court to change in a very material aspect the decision of the Court of Appeals for
the Tenth Circuit. The district court does not have this authority, much less the DOI. See
Corex, 638 F.2d 119; Firth, 554 F.2d 990.

The situation in Firth is closely analogous to the one which was before the district
court. In that personal injury case, the district court on remand applied the mandate of
the court of appeals as to certain facts at issue, even though it disagreed with the court of
appeals. The defendant-government appealed, contending that the district court
improperly construed the mandate. The court of appeals disagreed:

Our prior decision and mandate in this case, whether correct or in error,
was based on a thorough review of all of the evidence and consideration

13


2. Congress exercised its plenary power over Indian matters when it
abrogated Tribal jurisdiction over the Reserve and has taken no
subsequent action to reinstate that jurisdiction.

The Supreme Court has held that Congress may impose limits on tribal
sovereignty. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978); Talton v. Mayes,
163 U.S. 376, 384 (1896). However, such limits cannot be imposed unless Congress
makes its intent to limit sovereignty clear. See, e.g., Fletcher v. United States, 116 F.3d
1315, 1327 (10% Cir. 1997). In this case, through treaties, statutes and compensation paid
to the Western Miamis for annuities paid and the value of lands allotted to Maria
Christiana DeRome, Congress clearly abrogated the Tribe’s jurisdiction over the Reserve.

The Miami I court also concluded that:

even if Maria Christiana DeRome was a member of the tribe by fiat of
Congress, that membership (as well as the membership of her heirs) ended in
1867. Any jurisdiction stemming from Maria Christiana DeRome’s abbreviated
membership ended in either 1884, when it was unmistakably relinquished or in
1924, when Congress’ abrogation became indisputably effective.

927 F. Supp. at 1427.

As we have noted previously, the Court of Appeals for the Tenth Circuit
concluded that the history points to the unmistakable conclusion that the Tribe’s
jurisdiction has been abrogated. But what is most problematic for the Tribe is that the
Court of Appeals for the Tenth Circuit emphatically stated that Congress has done
nothing subsequently to reinstate the Tribe’s jurisdiction over the Reserve. The Tribe has
not provided any relevant arguments to counter the prior abrogation.

The Tribe has alleged that Pub.L. 97-344, 96 Stat. 1645 (Oct. 15, 1982), as
amended by Pub.L. 97-428, 96 Stat. 2268 (Jan. 8, 1983), would support restoration of the
Tribe’s jurisdiction. This legislation was enacted to partition the Reserve because the
tangled restricted and non-restricted fractional interests in the Reserve made it
unmarketable and the Secretary could only partition “trust”, not restricted, lands. See
S.R. 97-107, 97" Cong., 1* Sess. 4-5 (1981). The relevant section of Pub.L. 97-344
provides:

[A]ny owner of an interest in the following lands ... (3) the east half, southwest
quarter, section 13, township 19 south, range 24 east, sixth principal meridian,
Kansas, containing 80 acres and known as the Maria Christiana Miami Allotment,
lands derived from a patent under Act of March 3, 1859 (11 Stat. 430) may
commence an action in the United States District Court for Kansas to partition
the same in kind or for the sale of such land in accordance with the laws of the
State of Kansas .... For the purposes of such action, the Indian owners shall be
regarded as vested with an unrestricted fee simple title to their interests in the

16