MEMORANDUM 

'0: Chairman Hogcn 

From: MichaeI Gross, Associate General Counsel, General Law 

Date: October 22,2007 

Rc: Punca Tribc of Nebraska, site-specific gaming ordinance 

On July 23,2007, thc Ponca Trihc of Nebraska submitted an arncnded gaming 

ordinance for approval. The single arnendmcnc makes thc ordinance site specific by 

defining as "Indian lands" a piccc of lnnd in Carter Lakc, Iowa, tnkcn into crust in 

February 2003. With thc submission of its arncnded ordinance, the 'rribe suppIied a 

detailed submission contending that the Carter Lake land is restored lands within the 

meaning of 25 U.S.C. 3 2719(b)(l)(R)(iii).TThe Office of Gencral Counscl E~as rcviewcd 

in detail the 'l'ribc's submission, as well as supplemental material supplied hot11 by the 

Tribe and the State of Iowa. We cancl~ide that though the Ponca Tribe of Ncbrnska is 

irsclf n "rcstorcd" tribe, the factual circumstances surrounding the acquisition of the 

Carter Lakc land show that it was not taken into trust as part of [he Tribe's resroratisn, 

Accordingly, the Cartcr Lakc land is nor "restored lnnd." Wc chcrcfnrc recom~ncnd that 

you disapprove the ordinance. 

1 This is actually the Tribe's second such submission. 'I'he Tribe submitted the same sitcspecific ordinance in February 2006 but withdrew it in August 2006 in tile face of an impending 

disapproval. You were recused from that determination because the 'I'ribe was then represented by 

Faegse & Denson. The Tribe has retained Akin Gump to represent its interests in this submission. 

NRTlONAL HEADQUARTERS 1441 L 51 NW, SuRe 9100, Wa~hlngton DC 20005 TeI' 202 632 7003 Fax. 702 632 7066 W.NlGC.GOV 

REGIONAL OFFICES Portland, OR: Sacramento. CA: Phoen~x, AT, St. Paul, MN,Tulsa. OK 
THE LAND IN CARTER LAKE, IOWA 

Carter T,akc, Iowa, incorporated 1930, sits on 1,236 acrcs of land (approx.) in 

Pottawattamic County and is the only city in Iowa west of the Missouri Rivcr. 

(w~ryafcardake~~dhist~~~d.) The city is sunounded almost cornplerely by 

Omnho, Ncbraaka, and thc rivcr makes up its small southern boundary and separates it 

from Council Bluffs, lowa. Cartcr Lake's peculiar location is hest grasped visually. 

Figure 1 provides a map: 

rut CnrLcr 

Park 

Figure 1: Carter Lake, lowa. (Source: MapPuest Inc.) 

Back bcforc 1877, the Missouri Rivcr flowed around what is now the city and 

defined the bordcr bemeen Iowa and Nebraska. Ncrhrn.rkn o. louw, 143 1 J.S. 359,370 

(1 892); Arrhruark~ el. loaln, 406 1J.S. 1 17, 1 18 (1972). That year, howcvcr, chc Missouri 

flooded and abandoned its ox-how course for its present course, leaving the 323-acre 

I'onca uf Ncbraska, Chrtcr Lake lands opinion, p. 2 of 33 
Carter Lake - then called Cut-Off Lake - to cradle the city's northern end. (Set, ;rllc 

With the changc in the river's channcl, the Stacc of Nebraska claimed the land, 

arguing that the border between Nebraska and lowa moved along with the river. Thc 

Suprcrnc Court rcjectcd thc claim in 1892. lJndcr well-settlcd riparian law, it held that 

when a river or stream marks the boundary of property, the boundary moves with the 

river when thc river gradually changes its course through accretion. Whcn, however, a 

river cllangcs course by avulsion, when ir "suddenly abandons its old and seeks a new 

bed, such change nf channel works no change of boundary; ... the boundary remains as it 

was, in chc ccnter of thc old channcl, although no water may be flowing thcrein." 

JVch~a~rRa a. lorn, 143 U.S. at 360; Nehra~lu a. lom~a, 406 U.S. at 118. 

'J'he 1877 flood, the Court found, changed thc Missouri's course by avulsion, nor 

:~ccretion, n11d tf~us the boundary between the two statcs remaincd uncl~anged: 

[4]n 4 877, the river above Omaha, which had pursrred s course in the 

nature of an ox-bow, sriddenly cut through the neck of the bow and made 

fnr itsclf a new channcl. This docs not comc witflin the law of accrction, 

hut that of avulsion. 13y [Iris selcccion of a new channel thc boundary was 

not cliangcd, and ic remained as ir was prior to the avuIsion, the center 

linc of the old channel; ... unless the waters of the river returned to their 

former bed, [such center linc] became a fixed and unvarying boundary, no 

matter what might be rhc changes of the river in its new channel. 

Nrhrnskcd c. Inzln, 143 U.S. at 370. The Court thus charged the two states to designate a 

boundary consistent with its opinion, which they did hy compact, and Cartcr I,nke 

remains in Iowa codav. id; Nthrn.ckn v. Ioea~a, 406 U.S. at 118. 

On Scptemhcr 23, 1990, the Ponca of Nebraska purchased in fee approximately 

4.8 acres nf land in Cartcr T,;~ke, lowa, comn~only known as 1001 Avcnuc H, Caster 

Lakc, Iowa. Its legal description is: 

Pnnca of Nebraska, Carter I,alce lands opinion, p. 3 of 33 
I'arcel A-1 (West; Iowa Properry) 

A parccl of land being part of lots 20, 21, and 22, togcthcr with part of tlrc 

abandoncd railroad right-of-way located north of the existing Illinois 

Central spur track in said lots 21 and 22, a11 in the Auditor's subdivision of 

scction 21, township 75, range 44, West of the St" P.M., Pottnwattamie 

County, Iowa, said parcel described as follows: 

Dcginning at thc northwest corner of said lot 20; thcncc along thc 

northerly line of said lot 20, north 88" 28' 27" east, 69-05 fect; thence 

sourh 00" 18W.5" east, 228.93 feet; thence north 89" 36' 57'keast, 224.92 

fcct; thence north 00" 30' 42" west, 230.45 feet to a point on the northerly 

Iinc of said lot 22; thencc along said northcrly line and along said 

northerly extended eastcrly, north 89" 11728" cast, 221.33 feet to a point 

on the eastedy line of said abandoned rai t road right-of-way; thence along 

said casterly line and said easterly linc extended southerly, south 00" 48' 

32" cast, 579.95 fcct to a paint on the nartherIy tight-of-way linc af thc 

Illinois CcntraP Railroad; thencc along said nortflerly right-of-way linc she 

foIlowing six (6) courses: 

(1) South 89" 09' 18" west, 220.09 feet; 

(2) Norch 64' 27' 01" cast, 12.10 feet; 

(3) North 61" 31' 11" west, 126.58 feet; 

(4) North 46" 53' 25" west, 102.08 feet; 

(5) North 38" 46' 37" west, 146.92 feet; 

(6) North 50" 47' 5 1" wcst, 38.80 feet to a point on thc wcsterly I i nc 

of said Lot 20; thc~~cc along said wcstcrly line, nortIlOla 03' 32" 

wcst, 301.52 feet to the point of beginning. 

Said parcel of land contains an arca of 4.81 acrcs, more or Icss. 

(Trustees dced, rccosdcd at Book 100 Page 15532, Portawattamic County, Iowa.) 

Sl~ortly thereafter, on January 10, 20, the Tribe passed a resolution seeking to 

havc the Bureau of India!) Affairs placc the 1a11d into trust. 1131~ Tribc7s statcd intent was 

to place a hcalchcare facility on the land: 

WHEREAS: 'The property will be utilized to provide serviccs to our tribal 

rnembcrs, prirnnsily healch scrvjccs. Thosc sctvices ct~nsist of Indian 

1-Tcnlth Scrvicc 638 contractcd programs 2nd Rurcau of Indian Affairs P.L. 

93-638 cIEntract programs .... 

(Ponca 'I'ribe of Nebraska, rcsolution 00-01 .) 

Ponca of Nebra~ka, Career Lakc lands opinion, p. 4 of 33 
Thrcc months later, in April 2000, the Tribe negotiated a "Cooperation and 

Jurisdicrional Agreement" with the city of Carter Lake. The partics agreed that it would 

Sc to thcir mutual benefit for the Tribc to operate a medical clinic and a pharmacy on its 

land there. ("Cooperation and Jurisdictional Agreement," p. 1.) Among other things, the 

parties also agreed rhat chey would cxcrcisc concurrent jurisdiction over civil actions 

involving tribal members, that thcy would exercise joint powers of arrest, and that the 

Tribe would provide law enforcement on che land. In'. at 5 IT, ¶q[ Al, C; 9 111. 

On Scpten~bcr 15, 2000, thc BIA Grcat Plains Kcgianal Dirccrar wrote to 

relevant state and local officials in Iowa and stated her "intent to accept the land into 

crust for the benefit af the Ponca Tribc of Nebraska." (1,etters from Cora L. Jones, Great 

Plains Rcgional Director, BIA, to Carter Lake Mayor, Iowa Governor, I'otrawartarnie 

County Supervisors, September 15,2000.) 'I'haugh neither Pnrtawattamie County nor 

the Statc of Iowa had responded to the Rcgional Director's previous, February 23, 2000 

notice that shc was considering the trust acquisition, both appealed her September 15 

dccisinn. They contendcd, in part, that the Tribc rcally intended tn usc the land for n 

casino and that thc Regional Director erred in not considering this usc. loz~o v. Gear 

Plains Rqeonml Ilirmtur, 38 I R IA 42,52 (2002). 

'The IBTA rejected the argzlrncnt, finding that the land "was purcl~asctl ... and is 

currcntlp uscd for health care facilities" and that any possible gaming use was 

speculative. The IBIA thus affirmed the Regional Director's dccision on August 7, 2002. 

Id 

111 Uecenlbcr 2002, the Tribe, rhe State of lows, and Pottawattarnie County 

apparently reachcd an agscemcnt that avoided further litigation, tllnugh we havc nu 

evidctlce to show it was reduced to a writing. Iowa agreed to forcgn litigation in Federal 

Punca of Nebraska, Carter Lakc lands opinion, p. S of 33 
district court, and the 'I'ribe agrecd that the land would bc used for rile provision of 

governmental services and not for gaming (Novcrnber 26,2002, e-mail from Michael 

Mason, Esq.; December 13,2002, letter from Jean M. Davis, Assistant Attorney General, 

to Michael Mason, Esq.) On Decernhcr 6,2002, the RIA puhlishcd in newspapers of 

gcncral circulation in thc Carter Lake area a "correctcd notice of intent to take land into 

crust." 'I'he language of that notice was prnvided by the Tribe's attorney, (November 24, 

2002, e-mail), and stated: 

Thc Regional Director of the: Great Plains, Bureau of Indian Affairs, 

United Statcs Department of the Interior has made a final determination 

that the IJnited States will accept: [formal description of the Carter Lake 

land], which is locatcd in the City of Carter Lakc, Iowa, in tllc name of 

the Unitcd Sratcs for thc bcncfit of the Ponca Tribe of Nebraska. The 

Unjtcd States shall acquire title no sooner than thirty days from 

Decernbelr 6,2002. This notice was published in accordance with 'I'itle 

25, Code of I2edesal Regulations, Seciton 151.1ZCb).. .. 

THE 'rJIT7ST ACQIIISI'TION OF 'THE CARTER LAKE IAAhlDS 

f {AS REEN NAMED FOR NON-GAMING RELATED PURPOSES, 

AS RI'QIIEKES (sic) BY 'I'HE PONCA 'T'RIB E AN 11 IIISCUSSE IT IN 

THE: SKPTEMEER 15,2000, IIECISION UNDER THI?: REGIONAJ, 

DIREC'1'ORS ANALYSIS OF 25 CFR 15 1.1 0(c). AS AN 

ACQIIISITION OCCI_JRRTNG AFTER OCTOBER 17,1988, ANY 

GAMING OR GAMING-RELATED ACTIVITIES ON THE 

CARTER LAKE LANDS ARR SPJBJECrI' TO 'I'HE TWO E'AR'F 

T)E'rERMJNA'I'ION IJNDER 25 U.S.C. SEC. 2719. IN MAKING I'1"S 

(sic) REQIJEST TO HAVR THE CARTER LAKE LANDS TAKEN 

INTO TRIJST, THE PONCA TRIBE HAS AGKNO\VI,EDGED 

TF-IAT THE IANDS ARE NOT ELIGIBLE FOR THE 

EXCEPTIONS UNDER 25 U.S.C. SEC. 27 lC)(b)( I)@). ?'F-IlI:IEE MAY 

BE NO GAMING OR GAMING-RELATED AGTJVI7'IHS ON 7'H E: 

LAN11 IJNLESS AND tIN'IIIZ, APPROVAI, IJNDER 'I'HE 

OC7'ORF:R 2001 CI-IF;CKI,IST FOR GAMING ACQlJISTTIONS, 

GAM TNG-RE 1,ATED ACQtJISITIONS AND TWO-I%RT 

13K'1'11:RMINAtI'IONS UNIJER SEC'l'lON 20 01: THE INIIIAN 

GAMING R EGIJI,ArrOKY AC'I' HAS I3 ERN OR'l'AINEI3. 

(Dcccmher 6, 2002, correctcd public notice. Emphasis in original.) 

Ponca of Nel-~raska, Carter Lake lands opinion, pa h of 33 
On January 28, 2003, following the publication of this corrected notice, thc Tribe 

executed ;1 deed conveying chc Casltcr Lnkc land to the United States, and the BIA 

finislicd the acquisition in February 2003. (January 28, 2003, warranty deed; February 

10, 2003, letter from Acting Regional Director, Great PIains Rcgion, RIA, to 

Supcrintcndcnt, Yan kton Agcncy.) 

'The Carter Lakc land is the land identified in the Ponca of Nebraska's amended 

gaming ordinance as "Indian lands," and it is the land whcre the Tribe now intends to 

offer gaming under the theory that the Carter Lake land is "restored land." 

LEGAL ANALYSIS 

1. Indian lands, generally. 

IGKA permits gaming only on Indian lands, 25 U.S.C. #S 2710/b)(1), (2); 

27 1 O(d)( 1 ), (21, which it defines as: 

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

(BJ any Innds title to which is either hcld in crust by the Unitcd States for 

chc bencfit of any Indian tribc or individual or hcld by any Indian tribe or 

individual subject to restriction by thc United States against alienation 

and over which an Indian tribe exercises governmental power. 

25 1J.S.C. 8 2703(4). 'rhc National Jndian Gaming Commission's irnplerne~lting . 

reguIations clarify: 

Indian lands means: 

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

(b) Land ovcr which an Indian tribc exerciscs governmental power 

:~nd that is either -- 

(1) 1-Ield in trust by the ll~~iccrl States far the benefit of any Indian 

tritlc or I~ldividual; or 

(2) T-Ield by an Indian tribe or individual subject to restriction by 

thc Unilccd States against alienation. 

Ponca of Nebraska, Cartcr Lake lands opinion, p. 7 of 33 
25 C.12.R. $502.12. It is the opinion of the Office of General Counsel that the Ponca nf 

Nebraska's land in Carter Lakc is "Indian Itmds" under thcsc definitions. It is crust land 

over which the 'f'ribc exercises governrnenral power, and thus it satisfies 5 502.1Z(h)(l). 

A. Trustland 

The Carter Lake land is, without question, now trust land. Again, thc Tribe 

purchased thc land in fee in 1999, and the DIA finished its fec-to-trust acquisition in 

February 2W3. (February 10, 2003, letter from Great. Plains Acting Regional Director to 

Superintendent, Yankcon Agency.) 

F3. Govcmmental Power 

Tl~c Cartcr Lakc land is also land over wl~ich the Ponca of Nebraska exe~cisc 

governmental power. In order ro exercise governmental powcr over land, a tribc, like any 

other gavernmcnt, must first havc jurisdiction co do so. <Tee, e.g, mode Islaad a. 

N~raganscrt I~~dim Tribe, 19 E'. 3d 685, 701-703 (1" CCir. 1994), fen'. denied? 513 1J.S. 919 

( 1 9941, sz~prr~~o'ed sfnf;r~t~ on o~her'~fyOf4fld.f ns sf& jn Narrzgnplsrtf Indjnvt Thbc u. 

~Yatintial I~~dian Gdrnhg C~rnmisss'ori, 158 1;.3d 1335 (D.C. Cir. 1998) (in addition to having 

jurisdiction, a tribe must exercisc governmental powcr in order tn trigger [IGRA]); Stnte 

rr, ~r!. Crmt.~v~ flbrirdSrafe.c, 86 F. Supp 2d 1094 ID. Kan. 20001, nfSnad~~rnd~~dcd~ 

Knnsns v. UtzitedXtate.~, 249 1:. 3d 1 2 13 (1 0"' Cir. 2001 ); Miami II'pihe of OA*in,'Iov?a v. United 

Sf7tt.q, 5 F. Supp Zd 1213, 1217-113 (D. Kan. 1908) (a tribe must have jurisdiction in order 

to hc ablc to cxcrcisc govcrnlncntal powcr); rlfrunlb Tm'h of Oi-l~horna el. Ihitr/jLffut~.c, (127 

F. Supp. 1419, 1423 (1). Kan. 1996) (a tribc must first havc jurjsdiccion in order co 

exercise governmental powcs for purposes of 25 L7.S.C. $ 2703(4)). 

Bonca of Nebraska, Carter I,nke lands opinion, p. X nf 33 
Tribes are presumed ra have jurisdiction over their memhcrs and lands. Indian 

tribes are "investsd with rhc right of self-government and jurisdiction ovcr chc persons 

and property within the limits of the territory they occupy, except so far as that 

jurisdiction has been restrained and abridged by treaty or act of Congress" ~JZ~rn'u;t/ u. 

Jic~rdh Apnche T7ih.4 455 U.S. 1 30, 140 (1 982); see ah, Unit8d States v. Wkth, 435 U. S . 

313,323 (1978). ?'here are no treaties or statutes applicable here that would Iirnit chc 

Tribe" .jurisdiction. 

Accordingly, when, as here, lands are heId in trust for a tribe off-reservation, thc 

analysis looks to whether the trihc is exercising governmcntal authority ovcr thc land. 

How cxactly a trihc docs this IGM does nor say, though there are many possible ways 

in many possible circumstances. For this reason, NIGC has nor formulated a uniform 

definition of "cxercisc of governmcntal powcr," but rather dccides that question in each 

case bascd upon a1 1 the circumstances. N~tional Ir~dian Gamilfg Cornmiwiott: Definitions 

Underthe Jndinr? Onmin<g Regrdczfol): Act, 57 Fed. Reg. 12382, 12388 (1992). 

Thc courts provjdc uscful guidance. 'Tl~c First Circuit foul~d that excscising 

gotternmental power invoIves "the presence of concrete manifestations of.. . authority." 

Nnrzpn.r~tt J??n'inn Tribe, 1 9 F.3d at 703. Examples include thc cstablisl~mcn t of a 

housing authority, administration of hcalth care programs, job training, ptlhljc safety, 

conservation, and other governmental programs. Id. Here, the Pnnca of Nchsaslra 

exercise govcrnmcntnl authority over the Cartcr Lalrc land in a varicty of concrctc w:rys: 

chrougl~ its constitution and legisladon, through an inter-governmental jurisdictional 

agreement-, and through the provision of gclvcrnmenral scrvices to its n~cmbcrs. 

'Thc tribal constittlcion cxtends the 'l'ribe's governmental jurisctiction to all of its 

trust lancls: 

I'onca of Nebraska, Carter I,ske lands opinion, p. 9 of 33 
The territorial jurisdiction of the Ponca Tribe of Nebraska under rhis 

Constitution shall extend to afI trust or tribal lands as described by metes 

and bounds in the Treaties heretofore ratified by chc Congress of thc 

Unitcd Scatcs of America and shall cover all future additions that are 

within or without said boundary lines that may be acquired by the Ponca 

'Tribe of Nebraska, or by the United States of America and held in trust 

for the Ponca Tribe of Nebraska or its members .... 

Ponm Trihc qf Nehra-rla Gonstit/~tio~l, Art I. 

Similarly, the Ponca Law and Order Code establishes a tribal court and gives 

jurisdiction ovcr all tribal lands, including crust land: 

The general jurisdiction OF the Tribal Court ... shall be alI territory of the 

Ponca Tribe of Nebraska, including ... those lands held in trust by the 

Ilnitcd States for the benefit of the Trihe and members of the Tribc .... 

Ponca Luw ad Ordw Code 4 4 1 -2- 1, 1 -4- 1. 

In April 2000, the tribc exercised this jurisdiction, entering into a government-togovernment "Caoperation and Jurisdictionnl Agreement" with thc city of Carter Lakc, 

Among othcr things, thc agreement gavc the pardes concurrent jurisdiction over civil 

actions arising on the land and involving tribal members, and it: gave tlrcm cancurrcnt 

criminnl jurisdiction ovcr offenses cornniittcd by tribal rnc~nbers or n~crnbcrs of othcr 

1:cderally recognized Indian tribes. (Cooperation and lurisdiction Agreement, 5 11, 

q[qt A1, R.) Furthcr, the parties have joint powcrs of arrest on the land, and the Tribe 

agreed to providc law enforccmcnc there. ld at $ II, VC; (i 111. 

13eyond this, the Tribe was only partially successfi~l in making healthcare 

availahlc on the: land. In 20, at n cost of $161,000, the Tribc placcd a small modular 

building and paved parking lot on thc land. The building was used to house a staff of 

four ta provide hcalth and social services. I:nr t~udgereasons, the Tribe discontinued 

chcsc scrviccs within n fcw ycars, but it still maintains offices there. 

Ponca of Nehraska, Carter Lake Iands opinion, p. 10 of 33 
'These things taken to~ether, then, are concrete manifestations of the Tsihc's 

exercise of govcrnrncntal authority in Carter Lakc. 

Indian Lands, generally: conclusion 

Given the foregoing, the I'onca Trihc of Nebraska exercises governmental 

aud~ority over its Carter Lake land; it has jurisdiction to exercise that authority; and the 

land is held in trust for the rribe hy the United States. The Carter Lake Iand, in short, is 

"Indian land" within the meaning of TGM. 25 U.S.C. 8 2703(4)(B). 

II. GAMING ON AFTER-ACQUIRED TRUST LAND 

Meeting thc definition of "Indian lands" does not finish the analysis, however. 

'The Unitcd States took the Cartcr Lake land into tmst in February 2003, and thus thc 

land falls within TGRA's general prohibition against gaming on trust Iand acquircd after 

October 17, 1988. 25 U.S.C. $ 2719(a). 'I'he quesrjan thus becomes whether the Cartcr 

Lake land mects any of chc exceptions in Ej 2719. The Tribe cantcnds that the land is 

restorecl land undcr 25 1J.S.C. 4 2719(b)(l)(R)(iii). It is the opinion of the Office of 

Gcncral Counsel that it is not. 'Though the I'onca Tribe of Nebraska was itself restored 

tn Federal recognition, rlle Iand 'was not restorcd to thc Tribc as part of that rcstoracjatl, 

and thus ehc land is not rcstured lands. 

To mect this "restored lancls" exception, a tsihc must bc an "'Indian tribe that is 

rcstorcd to Fcdcral recognition," and tile acquisition of the land illto trust must be part 

of a 'kestoratinn of lands" for the tribe. These terms are not defincd in IGRA or the 

NIGC's irnplcmenting regz~lations, but therc is precedent.. 

Ponca of Nebraska, Carter Lake lands opinion, p. 1 I of 33 
A. The Ponca Tribe of Nebraska was restored to Federal recognition 

'1'0 be an "Indian tribe that is restored to Federal recognirion," a tribe muss 

demonstrate n pcriod of recognition by the Ilnited States, a pcriod of nan-rccognition, 

and reinstatement of recognition by thc United States. Grmd 7i.m~~ BandofOtma1n 

and Chippmw Indians s. Thittd Stnrc.r Affirw~tt, 336 9.3 d 960, 969 (6'" Ci r. 2004). The 

Panca of Nebraskfi satisfy all tl~rcc conditions. 

1. Recognition by the United States 

The Panca arc cu1tumIly and linguistically related to the Osage, Kaw, Quapaw, 

and the Omaha, and together these tribes comprise the DI~egiha language group within 

the Siouan langaage family. Beth R. Ri tter, Pi~rrr'ng Tqgerhr the Pnncn Pmt: K~con,rrr~tr:rit~~~ 

tit Dt@/ri7 Miic7'l;rfil'n?~~ TO fht G~zral Plffi?~~, 22 GREAT PLAINS QUARTERLY, 271,272 (2002); 

Elizabeth S. Gmbsn-rirh and Beth K. Iiitter, The Portca Tribe ofNehrmbn: The Proct.c.s of 

Rcstorfirion of la I;rc?%ml/v Terminatd Trih, HUMAN ORGANIZATION, Spring 1992, at 3. 

Togcthcr thcsc cribcs migrated from thc cast into the Grcat Plains and cvcntiially 

separated. 'l'he Ponca and the Omaha, being the last to split, settled together near what 

is now Ninhrara, Knox County, Nebraska. Accounts differ as to when that split occurrccl, 

some dating it as early as 1390 and athcrs as late as 1715. Grobsmith and Ritter, Thc 

Ponca Tribe, at 3-4, 

In any cvc~zt, t11c first dcfinitivcly Ponca villages itz thc Niubrnra area datc from 

about 17.50. Kittcr, Pi~(iqq Tag~the~; at 279. While most historic Ponca viIlages cluster in 

the Niohrarn area, villages have hccn found as far south as rhc confluctlcc of the PIattc 

and Missouri liivcrs south of Omaha in Nebraska; as far wcsc in Nebraska as Cherry 

C:ounty, ncar the confluence of the Niobrnrn and Snake Rivers; as far north and west 2s 

l-lughes Counry, South Dakota, east of Picrre: and as for nartls and cast as ISipescone, 

['onca of Nebraska, Carter 1,alre lands opinion, p, I2 of 33 
Minnesota. Kitter, Pieci~j~q To,qether, at 274; James H. Howard, Xvom Vil/nnrc ,Titcs ofrlrr 

Ponca, PLAINS ANTHROPOLOGIST 15, NO. 48,104-134 (1970). The range of the Ponca 

villages is best sE~own visually. Figure 2 providcs a map: 

- - 

...-,..,,-..--..-,-p-.-" ..... " ,-.-. I I 

p Mipation Route 

Cullural Kd 

Figure 2: Ponca rnigratlon and village sites. (Reproduced from Rltter, Pieclng Together 

the Ponca Past:, 22 GREAT PLAINS QUARTERLY, 271,274 (2002) 

On June 25, 181 7, following the War of 1812, rhc Ponca struck thc first of four 

treatics with the Uniccd States. This first treary forgave: any prior injuries or acts of 

hostifity that might have existed, renewed in perpctuiry the friendly rclatinns becwccn 

the two nations that cxistcd beforc the war, and placed chc Ponca under the protection 

of the United States. 7 Stat. 155 (1 81 7). 

Tn Junc 1825, the nations strtick n second trcaty. This onc again acknu\vlcdged 

the protection and suprcrnacy of the United Stares, and it permitted the United States to 

regulate commerce with the T'onca, which was ta be conducted exclusively with 

American citjzcns. 7 Stat. 247, Articles 1 - 4 (1825). This last was important, apparently, 

bccause the Ponca were activc traders and had rraded with both the Frcnch nnd the 

I'anca of Nebraska, Carter I,ake lands opinion, p, 13 of 33 
Spanish back into the Century. Each of those nations, at one time or another, tried 

to monopolize the Psnca trade. Ritter, Pien'n<q TogttAer, at 279. 

The I'onca ceded no land in either the 18 17 or the 1825 treaty. 'l'his changed, 

however, with the treaty of March 12, f 858. In that treaty, the Ponca cedcd "'a1 the lands 

now owned or claimed hy them, wherever situate," except for a reservation that was, 

rnorc ur less, a 25-mile square between the Niobrara and Ponca Rivers. The lbnca 

agreed to relocatc chcre wi~hin onc year. In consideration for thc land and for thc Ponca 

relocation, the United States agsced to pay various annuities and to provide money, over 

various periods of years, for the Poncns' subsistence -to purchase stock and agricultural 

implements, brcak up and fcncc land, build houses, cstablisb schools, build mills, ctc. 12 

Stat. 997, Articles I and II (1858). 

On March 10, 1865, the third rreaty was "supplerncntcd" with n fourth, by which 

tllc Ponca cedcd an additional 30,000 acrcs, and the United Stares returncd burial 

grounds and corn fields, various portions of townships around oltl village sites, and 

islands in thc Niabrara River. This rcsuItcd in a Ibonca reservation of some 96,000 acres. 

14 Scat. 075, Articles I and I1 (1865); Grobsrnid~ and Ritrcr, Thel'otzm at 5. 'These 

four treatiespn.~~ demonstrate rccognition of the Ponca by chc llnired Stares. 

Bcforc thc rnodcrn cra of Federal Indian law, one way thc llnitcd States 

recoffnizcd the governrncntal status of Indian tribes was by negotiating and entering into 

treaties with them. TYn.chi~tgton v. Wash k~~g:fnn Srfite (Ijltllrnc~cia/ P~TI~PP l;islrif~~g VP.CSCI 

As-v'n, 443 U.S. 658,675 (1979) ("A trcaty, including one between the United States and 

an Indian trihc, is essentially a contract hctween mrn sovereign nations."); I~~O~.TP.TIPT c?. 

Gtrofj$a, 31 U.S. 515,559 (1832) ("'121~ consdtucion, by cleclaring treatics alrcady illade, 

as well as cl~osc to be rnadc, to be rhe supreme law of the land, has adopted and 

Ponca of Nebraska, Caster Lake lands opinion, p. 14 of 33 
sanctioned rl~e prcviaus treaties with the Indian nations, and consequently admits their 

rank among those powers wIlo arc capable of making treaties.'"; I!nirtdSturt.r u. 

Washingtot?, 898 1;. Supp. 1453, 1458 n.7 (W.D. Wash. 1995), afd in par{, ml'd in pnfl on 

orherpunk, 157 F.3d 630 (9''' Cix. 1998) (treaty rights are "the result of the ncgotiacion 

hctwcen tsvo sovcrcigns, thc United States and the Tribes."); NfGC Krzrzllk 1,drd.r Opinio~r 

at 3 (Oct. 12, 2004) ("Based on the fact that the Tribe negotiated treaties with the 

IJnitcd Statcs it can clearly be stared that rhcre existed a govcrnmcnt-to-government 

relationship at one time"'). 

As of 1865, then, the Ponca Tribe was recognized by the Unircd Statcs. 

Thereafter, howevcr, the tribe split into the Ponca of Ncbraska (or Northcrn Ponca) and 

the I'onca of Oklahoma (or Southern Ponca). 'The question thus arises whethcr the 

United States recognized the Pnnca of Nebraska aftcr the split, and thc ansrvcr to ellat 

cluestion is "ycs." 

'I'hc split was the culmination of a sequence of events that began in 1868, when 

the IJnircd Srntcs struck the Fort 1,aramic trcnty with the Great Sioux Nation. 15 Stat. 

635 (1868). Incredibly, the land that crcaty set asidc for the Sioux included all of the 

Ponca reservation, 15 Stat 635, Article 11. This made the Pnnca intruders in their own 

homcs, and for cigllt years the more numerous and more powerful Sioux raided and 

at tacked them. I'onca Restoration ilcf etc. Ht?nrin<q OH S. 1 747 ef a/. R~OTP the S~nczfr SI!/PG~ 

Cnmmi~~c~ on InlJjnn Aflkn, 101" Congress, Zn~css. 221 (1990) (testimony of Dr. 

I? Iizal~cti~ S. Cisubstuith, professor, PJniversity of Nebraska, and sources citcd therein): 

(Hereafter, "l'oncta K~:storatintr Hmpr'n,q.") 'rl~e IJnited States\sducion to the problc~n it 

crearcd was to relocate thc Ponca. 

Poncn of Nebraska, Carter Lake. lands opinion, p. 15 of 33 
Congress appropriated money to do so in 1876, and in 1877, the government 

informed the Ponca chiefs that tElc tribe must relocate to chc Indian Tcrritary. Eight 

chiefs were sclected to visit and select a new reservation, but when they went, they 

found the land inhospitable and asked ra return home. 'X'he requcst was denied, but 

thcy returned anyway, journeying somc 500 miles in 40 days. Palem R~rtor~rion Heurin~ 

at 222. 

Aftcr denying repcared scquests by the Ponca to revcrsc its removal decision, 

and because the Ponca refused to go to the Indian Territory voluntarily, the government 

issued an order for removal on April 12,1877. Removal bcgn for some of chc Ponca on 

April 30, 1877, and for othcrs in May. The journey, knawn as the "Psncn 'l'sail of 'rears," 

was madc without adequate provision or preparation and encountered horrible weather. 

Many died, and rhe Ponca nrrivcd "discouraged, homcsick and hopeless ... on c11c Iands 

of strangers, in the middle of a hot summer, with no crops or prospects for any." Ponm 

Re~torntiou Henritigr 2 2 2-2 23. 

In carly 1879, Chief Standing Bear, wl~osc son had dicd and 11ad askcd to be 

buried in the Ponca homeland, set out for Nebraska with 66 others. Having reached the 

Omaha Tribe's reservation that spring, Standing Bear and his company wcrc nrrestcd by 

Gcncral Georgc Crook for rhe purposc of returning them to the Indian T'errieory. United 

8tare.r m. Re/. .St~~zdi~~~H~mt-v. Gooil., 25 F. Cas. 695, 686 (D. Ncb. 1879). With the 

support of many outraged citizens, including prominent attorneys and ncwspapcrmcn, 

Standing Rear applied for a writ of habeas corpus. Poncn Kcstoration I$PLJ~~??.~T, 223-224, 

Finding for the first time that Indians were "persons" undcr American law, and finding 

no lawfill grounds to relocatc Standing Bcar and his companions, District Court Judge 

Elmer S. Dundy ordered their frcedom. Stn~rdi~~g Rmr, 25 F. Cas. at 700-701. 

Pnnca of Nebraska, Carter 1,ake lands opinion, p, 16 of 33 
The treatment of the Ponca and Judge Dundy's decision receivcd national 

attention* In 1880, a committee was nppointcd by the Senate to invcsrigatc, and jt made 

a rcport to President Hayes in 1881 condemning the government's rnismanagemenr of 

Ponca affairs. Powco RCJ~OPR~~OPI Hemhgs, 225-226. 

In an Act of March 2, 1889, Congress made some reparation for giving the Ponca 

reservarion to the Sioux Nation. It provided rhat Ponca members "now occupying s part 

of the old Pnnca Kescrvacion, within the limits of the said Great Sioux Rcscrvatian ...'" 

were to be allotccd Iand there. 25 Stat. 892. IJnder this authority, 27,236 acres were 

allotted to 168 people. H. REP. No. 2076, Providin,q for the Division of thp Tkkl Assers ofthre 

Ponr~ Tribe ofhTdtic~e A?rtm>ans of h'ebrcaska Arnofig the rjfetnhn c$tJfc Tdt, 87'" Cong., 2d 

Sess. at p. 15 (1962) ("H. Rep. 2076'"); S. Rep. No. 1623, Pmviddnnq for~hp IlivgSdopl offht~lr 

Tt-ihlal As.wt.s of the Ponm TPP'he of 11Tativf Amcrici2ns ofN~hmi.rrEa Amorg fib Jfcmbcrs of th/rp 

Tdv3 catldfor Other I'U?~OSCS, 87"' Cong., 2d Sess. at p. 14 (1 962) ("S. Rep. 1623.'") From 

this point forward, thc Northern Ponca were established in Nebraska. 

Th~c thc Unitcd States rccognizcd chc Ponca af Nebraska, as distinct from the 

13011ca of Oklalloma and the Ponca before 1868, is evident from the tribe's reorganization 

under rhe Indian Reorganization Act. In the modern era of Indian law, Federal 

recognition of an Indian tribc requires both a legat basis for recognition, i.e. 

Congressional or executive action, and some empirical indicia of recognition, namely, a 

1' continuing political relationship with the group ...." Grand Travcrs~, 369 I;. 3d at 968, 

quotiq Cohc n, Handbook of Fed~~flk It~dim Law, at 6 ( 1 982); rlfashpee 7'n'h~ o. ,Scr uf the 

Inrehat-, 820 F'.Zcl480,484 (Iqt Cir. 1987). Roth criteria are met here. 

Among its vnrious provisions, the Indian Rcorga~~ization Act of 1934 grants any 

Indian tribc the right to adopt a constitution, which must be done by majority vote ar a 

Poncn of Nebrask~, Carter 1,ake lands opinion, p. 17 of 33 
special cIecrion called for the purpose and which must then he approved by the 

Secretary of the Interior: 

Any Indian tribc shall have the right co organize for its common welfare, 

and may adopt an appropriate constitution and bylaws, and any 

amendments thereto, which shall become effective whcn - 

(1) ratified by a majority vote of the adult members of the tribe or tribes 

at a special election authorized and called by the Secretary under such 

rules and regulations as the Sccrctary may prescribe; and 

(2) approved by the Secretary pursuant to subsection (d) of this secrian. 

25 17.S,C. 1$476(a). Thc Act likewisc permits chc Secretary to issuc, upon petition, a 

charter of incorpuration to a tribe. 25 U.S.C. 4 477. 

'The IRA itself, in short, provides both a lcgal basis for the IJnitcd States' 

rccngnition of an Indian tribc and a basis for :I continuing political relationship with thc 

tribc. Under the IRA, a tribe may adopt a constitution or corpnrare charter, or both, 

recogni7,e-d by the lJniced States, and the approval by the Secrcrary of the Intcrior is rttc 

hcginning of Federal supervision of the tribe's lcgal affairs. Subsequent tribal elections 

under a tribal consrirutjon, for example, fire subject to Federal regulation. 25 C.F.R. 

The I'onca of Nchraska approved a constitution and by-laws on I;ebruary 29, 

1'136, and these were approved by thc Secretary of thc Interior five wccks larer on April 

3. H. Rcp. 2076 at 11; S. Rcp. 1623 at 11. A corporacc charter for tl~e IJonca 'Tribe of 

Native: Americans of Nebraska was ratificd on August 15, 1936. H. Rep. 2076 at 11; S. 

Kcp, I623 nt 11. From 1936 fomtard, then, until termination in 19G6, the IJnitcd Statcs 

tccognizcd the Ponca of Ncbraska. 

Poncn of Nebraska, Carter Lake lands opinion, p. 18 of 33 
2. Termination or non-recognition by the United States 

The second condition for dcmanstrating, that a tribe is restored to Federal 

recognitio~~ is thc loss of prim recognition by the United States. Such a loss may occur 

through Iegislative action - e.g, hy statute or treaty- or by administrative action. Grown 

2002); Srirdt Ste. rl!ckrje Tribe $Lakt Sr~phr Ch+pma Indians v. Ihiftd S'~~res, 7 X F. Sup p. 

2d 699, 70.5-07 (W.D. Mich. 1999), vacatedon orhergmilnds, 288 F.3d 910 (6Ih Cir. 2002). 

The Ponca of Nebraska lost Federal recognition forty years ago, after the passage of a 

termination act, 25 I1.S.C. S5971 - 980. 

During thc mid-20th Century, the "Terminacisn Era," Congress promoted an end 

to the crust relationship between the United States and the Indian tribes and aimed 

instead ar assimilation; 

It is tlrc policy of Congress, as rapidly as possible, to make the Indians 

within the territorial limits of the United States subject to the same laws 

and entitfed to the same privileges and responsibilities as arc npplicahlc 

to othcr citizens of the llnited States, to cnd their status as wards of thc 

United Statcs and to grant them all of the rights and prcrogativcs 

pcrtainir~g to American citizenship. 

On Septembcr 23, 1958, the I'onca of Nebraska adopted a resolurion and petition 

noting that only ei~ht adult members participated in the last rcgulnr tribal ctcctjon - 

Ilcld in Novembcr 1949, with none hcld becwcen then and 1958 - and that only 23 aduIt 

Indians, nut all of then1 Ponca, resided on the rescrvadnn. H. Rep. 2076 at 9: S. TZep. 

162.3 ar 9. The resolution and petition rhcn sought 

the Durcau of 111dian Affairs, rhc county commissioner [sic] of Knox 

C:ounty [Nebraska], and the State of Nebraska to cooperate with us in the 

Ponca nf Nebraska, Carter Lake lands opinion, p. 19 of 33 
development of a program leading to disposal of property owned by the 

Ponca Tribc and the rlistribution of proceeds and 3ny other assets of the 

of rhe Ponca Tribc to those members who may be determined ro be 

entitled to participate in such distribution. We further petition that the 

Congress of the United Srates enact Iegislation to accompIish the 

purposes of this program, developed pursuant to rhc petition, and to 

dissolve the corporation known as the Ponca Tribc of Nativc Americans 

of Nchraska. 

13. Rep. 2076 at 10; S. Rep. 1623 at 9. 

On September 17,1959, the Knox County Rnard of Supervisors adopted a 

resolution "favoring the incroductio~l and passage in the U.S. Congress of a proposal [sic] 

legislative bill providing for emancipation of the Pmca Tribc of Native Americans of 

Nchraska ..,." PI. Rep. 2076 at 10; S. Rcp. 1623 at TO. 

In April 1962, Idatlo's Senator Churcl~ introduced S. 3174, a hill "to provide fot 

the division of the rribal assets of the Ponca Tribe of Native Amcricnns of Ncbraska 

nrnong thc mcmbers :~nd to tcrminatc Federal supervision and control over the tribe." S. 

Rep. 1623 at 1. Enacted on September 5, 1962, this act provided, in brief, for thc 

Secretary of the Interior first to establish a roll of tribal members and then to distribute 

all tribal assets, bot11 personal property and real property (including trust land), to those 

mcmbers. Members were also eligible tn select and purchase as much as five acres of 

land for a homcsitc. Any lands not so selectccl would bc sold at auction. 25 U.S.C. 

5s 971- 075. 

At the time, 691.1 1 acres af land werc hcld in trust for the 'Tribc hy thc Unitctl 

Staccs, and 2,180.39 acrcs of aIIottcd trust land -all that remained in Ponca hands after 

c11e allotment of 27,236 acres in 1889 - werc held in fractionated ownership. An 

additionill 152.5 acrcs was owlled by the lJnitcrl States. S. Rcp. 1623 at 14-15; H. Rep. 

2076 at 15. 

Ponca of Nebraska, Carter Lake lands opinion, p. 20 of 33 

and any policy of unilatera1 termination of Federal relations with any Indian nation." 25 

u.s.c. g zsor (0. 

On October 11, 1989, Senators Exon and Kerry, both of Nebraska, introduced S. 

1747, the "Ponca Restoration Act." S. REP. 101-330,l)roviditrg for f;'lc Restoration of 

F~dcrad Recq?~ition to the hncd Tn3e of Nebraska, mndfor Other Pulposes, 10 1" Cong., 2"" 

Sess. (1990). ("S. Rep. 101-330.") 'The legislative history dearly and ttnambiguously 

states the purpose of the bill: "to restore Federal recognition to the Northern Ponca 

Tribe of Indians in the State of Nebraska." S, Rep. 101-330 at 1. 

Signed into law on October 31, 1990, the Ponca Restoration Act, 25 U.S.C. $5 983 

- 983h, did exactly that: "T;ederaI recognition is hereby exrcnded to the Ponca 'I'ribe of 

Nebraska." 25 I.J.S.C. B 9S3a. The Act also states: 

All rights and privikges of thc T'rihe which may have bccn abrogated or 

diminished before thc date of enactment of this Act by reason of any 

provision of Public Law 87-429 [25 U.S.C. $9 47 1 - 9801 are hereby 

rcstored and such law shall no longer apply with rcspecr. to the Tribe or 

the members. 

25 1J.S.C 983b(n). 

In sum, over its history, thc Ponca Tribe of Nebraska was recognized by the 

IJnited States, lost this recognition, and was reinstated to Federal recognitic)n. Thcrcforc 

tl~c Tribc is an "Indian tribe that is rcstored to Federal rccognition" within the meaning 

of 25 U.S.C. 3 2719(b)(l)(R)(iii). 

R. Land taken into trust as part of the restoration 

Given rhnc thc Poncn "rribc of Nehsaslin is a, scscorccl trihc, its land in Carter 

Lake, Iowa, only satisfies the rcquiremel~ts of 8 2719(h)(l)(B)(iii) if it was taken into 

trust as part of thc 'I'rihe" rcsltoration. Nothing in lGRh reql~ircs thnt chis be done hy 

Congressional action or in thc vcry same transactioll that restorcd the Tribc. Lallds may 

Ponca of Nelrrilska, Carter I,ake lands opinion, p. 22 of 33 
be restored to a tribe through the administrative fee-to-trust process. Grn~ld Trrre)emt 

RnndofOfr~wn andChippewa Indiram v. U~jfttedSf~t~s Atomty, 198 1;. Supp. 2d 920, 935-36 

(W.D. Mich. 2002), a-d, 369 F.3d 960 (6"' Cis. 2004); Confiderartd T7jhe~ of COOS, I>OWPT 

IJmpgrm &Sircslnw 1tmdim.r v. Rabhirt, 116 F. Supp. 2d 155, 161-64 (D.D.C. 200); Grd 

Tmvt7:ct Band of Ottawa and C,$pm!a Idi'csus v. Ilnittd kTtutes Atfomef,!, 46 F . Su p p. 2d 689, 

699-700 (W.D. Mich. 1 999). 

Still, not every tnlst acquisition far a restorcd tribe mects this exception. There 

must be some limicing condition - something that ties the trust acquisition to, or shows 

it to be a part of, rhc tribe's restoration. Gmnd Triuerse, 198 F. Supp. 2d 920 at 935. 

Accordingly, both thc NIGC and the courts that have considered the qucstion find thc 

necessary limiting condition in the factual circumstances of the tnlsr acquisition, the 

location of the trust acquisition, and thc temporal relationship of tllc trrist acquisition to 

the tribal restoration. See, e-R., Coos, E 16 E'. Supp. Zd at 164; Grand Truvme, I98 F. Supp2d at 935; I?/ Rr ,kdf St(. Mad6 Tribe of Chippesc~ Indians, Resoiritian No. 2006-181, 

am~?~dment to Trib111 Cod@ 5 42.801, Gdming Ordit~mirt (rescored lands opinion, Sepcc m ber 

1, 2006); IH Re Kawsb Tibe ofCnI$-omia, (restored lands opinion, October 12, 20043. Mere, 

whik the Tribe has historical and modern tics to the Cartcr Lake land, and while thc 

trust acquisition process at least bcgan not long after the 'l'ribe" restoration, the facts 

surrounding the acquisition show conclusively that the Carter 1,akc land was not 

rcstorcd land. 

1. 'I'he Tribe's ties to Carter take, Iowa. 

The l'sihe has historical and nlodcrn ties to its Carter Lalcc land and to thc 

surrounding area that weigh in favor a finding that the land is restored. 

Pnncs of Nebraska, Carter Lake lands opinion, p. 23 of 33 
a. Historic ties. 

Scholars have identified the aboriginal territory of the Ponca, and it includcs 

Carter Lake. The eastern boundary of the Ponca territory was, approximately, the 

Missotiri River, and the southern boundary was the Platte River. Figure 2, above, for 

examplc, shows that w11ile most Ponca villages wcrc concentrated around what is now 

Niobrasa, Nebraska, I'onca villages have heen found as far north and east as Pipestone, 

Minnesota, and almost as far south as the Plattc, futthcr sautl~ in Nebraska than presentday Omaha, which surrounds Carter Lake. Ritter, Piecing Together1 at 274. 

SchoEass have a! so written: 

Thc eastern boundary of thc Ponca tcrricory ran p.o~~gh<v from the from the 

wcst bank of the Missouri, opposite thc prescnt-day Sioux Cfty, Iowa, 

down to the mouth of the of the PFatte River .... The North Pfatte River 

formed the southernmost boundary of the Poncas. Directly south of that 

houndary lived t11c Pawncc, who traditionally huntcd to tl~c south .... 

Joseplt I-I. Cash and Gcrald W. WoIff, The PO?^ Pmpk (1975). And see, James 1-1. 

Howard, I(& Ponca Tde, 130-1 31 (1965) (noting that the eastern boundary of chc Pnnca 

territory "was a line cxrcnding south to thc PIattc Rivcr from a placc on thc Missouri 

called Ni-a~qatsatsca,' and the "southern boundary of the Ponca domain was the Platte 

(North Platte wcst of the fork)"). 

As x rough markcr, howcver, thc A4issouri River was not an impassable boundary. 

Living menwry - in the form of deposition testimony from Psnca eldcrs in 1912 in 

support of a claim hcforc Indian Claims Commission, Olnahz Tdc v. I!?rifciiStu.fe~, No. 

2 1,002 (191 1-1912) - is consistent with the writings of the scholars. It establisl~es the 

130ncn territory, their travels and their hunts east of the A4issnuri and south to the Plnttc. 

For examplc, 1,ouis TJc Roy, agc 70 in 1912, I-Ioward, Know/ Irflfqe Sifts, ac 114, 

testified as to boundaries: 

Ponca of Nebraska, Carter Lake lands opinion, p. 24 of 33 
They commence east of Omaha city on the other side of the River 

Wasabte (Black Rear's Den). From there thcy went to Pipestone, and 

from Pipestone to Choteau Creek* From there they went up whcrc Crow 

Clrcck Agcncy is, somewhere ncar chcre. From there thcy went to what 

they call "Dry wood" or "Dry timbcr." From there they went to what 

they call "Fork of the Missouri." 'rhen the crossed and went south. Prom 

there they went over ro the South of the I'latte River. Thcy followed the 

Platte River cast and went down as far as the mouth of the Plattc. From 

rhcre thcy went to Ponca City - where Ponca City now is. 

(LC Roy OLC 191 235.) 

Similarly, ChieFYellow Horse, brother of Chief Standing near and himself 67 in 1912, 

tcstificd: 

Even in my time I knew that they went as far [south] as the Flatte and as 

far cast as the old Ponca village and even across tE~c Missouri Rivcr to kill 

decr, buffalo, and clk. 

(Yellow Horsc, OLC 191 2:146). 

b. Modern ties 

TIE tribc has modern ties to the Carter Lake land. 'P'he'l'sibe had a direct 

relationsl~ip with the Carter Lake land itself before it was taken into tnlst. The tribe 

purchased thc Iand in fcc in Novcmber 1998. In 2000, it finishcd negotiating and then 

cxccutcd the jurisdiction and cooperation agreement: with thc City of Carter Lake. The 

'I'rihe also erected a small modular building on thc Iand and paved the attendant parking 

Iot. Tl~c rsihc houscd a staff in thc building to provide health services and social 

services. 'l'hough the tribe ceased those services hecause these was not enough money to 

fwd them, ir nonetheless still maintains an office thcre. 

2. 'I%e timing of the Carter Lake trust acquisition. 

This factor tno could weigh in favor of a finding that thc Carrcr Jde land is 

rcsrored land. Thcrc wcrc total of 13 years txxween Congress's restoration of the Tribc 

:~nd the acquisition of thc Carter I,ake Iand into trust, but the Tribe did not acquire 

Ponca of Nebraska, Carter Lake lands opinion, p. 25 of 33 
within that rime a significant land base separate and apart from Carter Lake. In fact, 

what it did acquire: reprcsents only a fraction of what it could acquire under its 

restoration act and of what its Congressionally ~nandaced economic plan call for. 

In In Re IYrzrslt*l"te. Mmic 7'pr'b~ of l;h$prn~~ Iwn'inns, above, for example, the NIGC 

found that a parcel of land that that tribe acquircd in 2000 was not restored lands 

because of the great length time that passed between the tribe's recognition and the 

2000 acquisition and hccause of thc large amount of other propcrty thc tribe Elad 

othenvisc acquircd in that tirne. Specifically, there were 28 years between the Sault Ste. 

Marie tribe's restoration and the trust acquisition. Further, 

the Trihc I~ad its first rescrvatinn parcel by 1975, and tllrce reservation 

parcels bv I984 as we11 as an additional 184.21 acres in trust. '17hese 

parccls were taken into trust three and nine years after 'Tribal restoration, 

I3y the time rhc St, Tgnace parccl was placed into trust in 2000, the Tribc 

had acquired 50 pnrcels totaling ncarly another 1000 acrcs into trust. 

Thcsc trust parcels have givcn [chc 'rribe] significant acreage devoted to 

member housing, comlnunity services, and economic development that 

might Getter he dctcrmined part of the 'I'rihes first systematic effort to 

restore its land base. 

In Re Sort/t St(. Ahnt Tribe r?fC/I;'ppm?& l?rAnfrs, rcstorcd lands opinion at p. 16. 

Accordingly, the NIGC found that thc 2000 parcel was not restored lands. 

Here, there was no such long passage of rime and there were no significant 

intervening land accluisitions. The 'Tribe owned in crust only an office building in 

Lincoln, Nebraska (Ponca Tribe of Nebraska resolution 96-101) and approximately 150 

acrcs in Ninhmra, Nebraska, for a community building and bison grazing land. 

(Submission, p. 24; May 27 and June 22, 2003 trust decds). 'rliaugh C:ongress restorcd 

the Ponca of Nebraska in 1990, che Tribe only had n constirution approved in 1994. 

(1)onca Tribc of Nebraska resolution 00-01 1. The 'Tribc purchased the Carter Lake laild 

in September 1999, only five years later, and ir filed its application to take tlic Carter 

Ponca of Nebraska, Carter Lake lands opinion, p. 26 of 33 
Lakc land into trust in January 2000. The trust acquisition would have been complete in 

Septcmher 2000, but for the litigation with Pottawatan~ic County and the Stacc of Iowa, 

which postponed the acquisition to the beginning of 2003. 

Accordingly, the timing of the Carter Lake acquisition weighs in favor of a 

finding of rcstorcd lands. 

3. Factual circumstances surrounding the trust acquisition. 

Notwithstanding the foregoing two factors, howevcr, thc facts immediately 

surrounding the trust acquisition shew that the Carter Lake land is not restored land. 

To begin with, the Tribe did not contemplate n gaming use for the land when ic 

applied to have rllc land takcn into trust. Instead, the Tribe sought to have thc land 

taken into trust so that it might place a healthcare facility on the land: 

WHl3REI:AS: Thc property will he utilized to provide serviccs ta our tribal 

members, primarily l~caltlz serviccs. Thosc scsvices consist of 111dian 

IlcaIth Service 638 contracted programs and Ruseau of Indian Affairs P.L. 

93-638 contract programs .... 

(l'onca Tribc of Nebraska, resolution OCl-01.) 7'11is is nor to slrggcsr that a tribe's 

representations of usc in a fee-to-trust appIication will he determinative. Rather, this is 

one fact atnong many otl-lers that speaks to the circurnsrances st~rtounding the trust 

acquisition. 

Next, the State of Iowa and I'otcawatornic County challenged the September 15, 

2000 decision of the HTA Great Plains Regional Jlirecror to cake the Carter Lakc land 

into trust. Tl~cy :rppedcd to thc InlA and contended, in part, that thc Tribe rcaliy 

intendcrl to use the land for a casino and that the Rcgional Director errcd in not 

considesi~>g this use. Tnscln e). Grmf P/nin.s Rqioanl Djscrfnu; 38 IRIA 42, 52 (2002). In its 

brief before the EBIA, thc Tribe again rcpresentcd that the land would not he uscd fot 

Ponca of Nebraska, Carcer Lake lands opinion, p. 27 of 33 
gaming hut "is to be used for administrative services, including health care, and for 

hcalth care facilities.'"(loaw v. Grmr Pkbns Xe,giot~ Dinctor, Rrief of Ponca Tribc of 

Nebraska, April 30, 2001, p. 4.) 

On August 7,2002, the IRIA decided in favor of the Tribe, finding that thc land 

"was pvrchascd ... and is currently used for health care facilities" and that any possible 

gaming use was speculative. The IRIA rh~ls affirmed the Regional Director's dccision on 

August 7,202. Id 

Rather than continuing to litigate, attorneys for the Tribe and the State reached 

an agrecment - acknowledged in writing, hut never formally memorialized - under 

which Iowa agreed to forego litigation in FcdcraE court, and the Tribc agreed that the 

Carter 1,akc land would not be used for gaming. (November 26,2002, e-mail, from 

MichacE Mason, Esq.; 1)ecembcr 12, 2002, lettcr from Jean M. Davis, Assistant Atcorncv 

General, to Mictiael Mason, Esq.) 

Accordingly, on Novcrnber 26, 2002, the Tribe's then-attorney sent an c-mail to 

thc BIA rcqricsting chat a notice of intcnt to take thc Cartcr Lake land into trust bc 

published as soon as possible, (November 26, 2002, e-mail from Michael Mason.) He' 

requested further that the notice contain the following languagc, which was substantially 

identical to what was cventuaIly published: 

'I'he trtist acquisition of the Carter Lake lands has been made for nongaming related purposes, as requested by the Ponca Trihc and discussed 

in the September 15, 2000, dccision under the Regional Director's 

analysis of 25 CPR 151.10(c). As an acquisicial~ occurring after Octobcr 

17, 1988, any gaming or gaming-related activities on PIIC Carter Lakc 

lands are subject ca the 'I'tvo-Past Determination under 25 I1.S.C. sec. 

2711). In making its request to have the Carter 1,ake lands taken into 

trust, che Ponca Tribc has ncknowlcdged that the lands are not cligihlc 

fur the exceptions uncler 25 U.S.C. sec. 2719(R)(l)(B). 'There may be no 

gaming or gaming-rclated activities on the land unless anti until approval 

under thc October 2001 Checklist for Gaming Acquisitions, GamingPonca of Nebraska, Carter Lake lands opinion, p. 28 of 33 
Related Acquisitions and Two-Part Determinations Under Section 20 of 

the Indian Gaming Kegularory Act has been obtained. 

(Novernhcr 26,2002, c-mail, from Michael Mason, Esq.) 

On Dccernher 3,2002, the Regional Director published in a newspaper of 

general circulation in Carter I,akc a notice of intent to cake the Carter 1,ake land into 

trust but omi~ted this additional language. On Dccemher (1, DL4 published a "corrccted 

notice of intent to take land into trusc" this time including the language. CDccemher 6, 

2002, correctcd pubIic noticc.) An inccrnal BIA c-mail noting rhc incorrect publication 

described the additional language as fallows: 

'The attached Notice of Pntcat was published in the Council nluffs, Iowa, 

newspaper yesterday, Deccrnbcr 2 [sic, Dcccmbcr 31, 2002. you will rccall 

that rhc last paragraph in the Notice was a compromise reached by the 

Ponca 'rribc and the Statc of Iowa as well as Pottawatornie County, Iowa. 

The Solicitor's office had no problem including the appended paragraph. 

IF we did not inelride the last paragraph, Inwa would 11ave litigated tl~e 

matter in Federal Court. Also, the last paragraph was agreed upon hy thc 

Ponca's attorney.. .. 

(December 3, 2002, c-mad from 'I'im Lake to various RIA recipients.) 

On 1)ccember 13, 2002, Jean M. Davis, an Iowa Assistant Attorney General, 

wrotc a confirming letter to the 'Tribe's attorney, stating: 

AS you arc aware, thc Corrected Notice of Intent to take Land in Trust 

was published in the Coilncil Bluffs Dai;!ll NofpnPulirl. The correctcd Pt~blic 

Notice niakcs clcar that that lands to be taking into trust in this case will 

be takcn for non-gaming related purposes. 'Thc corrected Public Noticc 

also contains the acknowledgement by the I1onca Tribe of Nebraska that 

che lands are not cligible for any of the exceptions found under 25 U.S.C. 

sec. 2719(hH1)(13). 

This corrccrcd Public Noticc is col~sistent [wicf~] your rcpeated 

representations to me and to Pottawatcarnie County, nude on behalf of 

the I'onca 'l'rihe of Nebraska, that the Tribc intends to use the lands for 

thc puspose stated in the original application, not for gaming activities. 

Rased upon our ngrccnlcnt that thc lands will be used in a manner 

consistent with thc original application and thc corrected IJublic Notice 

and not fnr gaming purposes, you have requested that the Stace of Iowa 

Yonca of Nebraska, Carter Lake Lands opinion, p. 29 of 33 
and Pottawatamie County forego judicial review and further appeals. 

Inasmuch as the corrccted Public notice now filed in this case contains 

the non-gaming purpose restriction to which wc have agrced, the Stutc of 

Iowa has agreed not to pursue judicial rcview or further appeals of the 

final dccision of the United States department of the Interior in this case. 

(December 13, 2002, letter from Jean M. Davis.) 'rhe trust acquisition of the Carter 

Lake land followcd in February 2003. (January 28, 2003, warranty decd; February 10, 

2003, letter from Acting Regional: Director, Great Plains Region, BTA, to 

Supcrinrendent, Yankton Agency.) 

In and of themselves, these facts are determinative. They culminate in the 

language of the corrccted notice, and they unambiguously indicate that at rhc time of 

rhc acquisition, no one involved intended tl~c Cartes Lake land to bc used for gaming or, 

more importantly, to be restored land. Only the opposite appears. Every government 

involved in the acquisition regarded the Carter 1,ake land as land that was not rcstorcd 

within tllc tncaning of 25 17.S.C. $ 2719db)(l)(B)(iii), a charactcrisation that the 'l'tibe 

has not, until now, disputed. 

The Tribe contcnds that the abovc facts arc not properly considcrcd here 

because they do not surround clle trust acquisition. Rather, the 'I'ribc contends, these 

facts all ]lost dare the acquisition of the Cnrrer Lake lands, which occurred upon thc 

Scptcrnhcr 15,2000 decision of thc Rcgional Dircccnr. This is not pcrsuasivc. 'I'he trust 

acquisition was not, in fact, cnrnplete on that dace. 

Thcre are n number of ways to scc chis. First. and forcmosc, the record shows that 

the Itcgisnal T3ircctor's dccision to take the Carter Lake land into trust was not final on 

September 15. 21300. 13y its own terms, the decision statcs chat ir may he appcaled ro the 

IRTA within 30 days, and "if no appcal is timely filcd, thir dcciskon reyi// beco~nefi~~elfor'rh 

Uep~lirm~~t of/he Zrrttriornt the cxpiratio~r of tha nflpe~lpcrkod" (Scptern her 1 5, 2000, 

Ponca of Nebraska, Chrter Lake lands opinion, p. 30 of 33 
Letters from Cora L, Jones, Great Plains Regional Director, RIA, ro Carter Lake Mayor, 

Iowa Governor, Portawattarnic County Supervisors.) (Emphasis added.) 

The State of Iowa and Pottawattamie County in fact did appeal to the IIEIA, 

which did not render its decision until August 2002. That is the earliest datc in which 

the trust acquisition might be final because then and only then could an action on the 

decision he heard in Federal district court. Prior to that, the suit would have been stayud 

or dismissed under the doctrine of primary jurisdiction. Rcifer v. Cooper, 507 U.S. 258, 

268 (1993); Grand Trmcrse Bnand, 46 F. Supp. Zd at 706 (primary jurisdiction doctrine 

permits Federal courts to stay or dismiss actions over which they l~avc jurisdiction 

pcnding scmlution of issucs within thc special compctcncc of an administrativc agency.) 

I'hc earliest, thcn, that thc decision was final was in August 2002. 

Another indication chat the final decision did not occur in Scprcmbcr 2000 is 

found in Department of the Intcrior land-into-trust regulations. Before land may bc 

taken into trust, these regulations require thc publication of a notice, either in the 

J;edrrc;~IRcgi~ct~p. or in a newspaper of gcneral circulation, stating that "a final agcncy 

dcterrnination to take land into crust has been made and that the Secretary shall acquire 

title in the name of the United States no sooner than 30 days aftcr the notice is 

puhlishcd." 25 U.S.C. 8 15 1.12(b). That notice was published herc fox the first time on 

Ijccernber 3, 2002, ant1 the deed transferring the Carter Lake land to the IJnited States 

in trust for the trihc was not executed until early 2003. 

With the exception of thc Tribe's statements of intent as to the use of the Carter 

Lakc land, both co the 131A and bcfore thc 1131A, all of the abovc events surrtwnd tllc 

taking of thc Cartcr Lakc [and into trust in the latter half of 2002 and early 2003. They 

are, therefore, properly considered here. 

I1onca of Ncbraska, Carter Lake lands opinion, p, 31 of 33 
That said, d~e 'I'ribe also coiltends in various ways that the limiting language of 

the corrected notice can of itself have no legal effect. It contcnds that ncither the 

corrected noticc nor the apparcnt settlernc~~t agreemene with the State of Iowa was 

authorized by the tribal government. It contends that in any event, an ngrcement 

limiting the use of the Carccr Lake lands would reqvirc approval by the Secretary under 

25 U.S.C. 4 81. In sum, it contends that none of the usual mechanisms for limiting uses 

of land - a deed restriction or covcnant nr a binding se~rlcment agrccmcnt - arc prcsent 

hcrc. Whethcr or not that is so, it is, ultimately, irrelevant to the determination here. 

As to the settlement agreement, thc NIGC Chairman need take no position on 

whether thc notice was propcrly authorized by thc tribal government or whed~er therc 

was a binding settlement agreement betwecn the Tribe and the State of Iowa. It 

cerrninly appcars from thc facts in the record chat both the Sratc of Iowa and thc BIA 

regional office bclicved that thc tribal attorney had the apparent authority to act on 

hehalf of the 'I'ribe. Ic appears as well that Iowa did not pursuc litigation further because 

it struck nn agreement with the Tribc that the Cartcs Lake land would anIy bc used for 

gaming under a 2-pare dctcrmination. If that agreement was never valid or binding, 

Iowa, prcsurnably, is still free to seek judicial review of the IRTA's decision. 'I'hat action, 

presumably, could also address rhc applicability of 25 U.S.C. $ 81 and thc determination 

by the Secretary that that law requires. In passing, it should be noted that cherc does not 

appear to he any evidencc in the record of such a dctern~inntion aftcr the Trihe cntcrerf 

into a separatc 1999 settlement agrecrnent with thc City of Lincoln, Nebraska, that 

prol~ibited gambling on rhe Tribe's trust lands there. (~SCP May 19, 1999 letter from 

Chairman Fred LcRoy to Mayor of Lincoln; May 28, 1999 intergovernmental agreement 

regarding csibaI Iand.) 

I'onca of Nebraska, Carter Lake lands opinion, p. 32 of 33 
He all of that as it may, thc question is whether the Carter Lake land is or is not 

restored land, given the facts that surround the trust acquisition. Thc question is not 

whcthcr the notice, or any alleged agscernent based upon it, is legally enforceable or 

whether there is a legally binding document restricting the use of the Carter Lake land 

in such a way ns that thc Iand must pcrforce ccasc to be restored lands under IGRA. The 

facts surrounding the trust acquisition, as set out above and detailed in the corrected 

notice of intent to take land into trust, demonstrate that the Cartcr Lakc land was not 

part of a restoration of thc Tribe's lands at the time it was taken into trust. 

Given all of the foregoing, it is the opinion of the Office of the General Counsel 

that tllc land in Cartcr Lakc, Iowa, though "Indian lands" within the meaning of IGKA, 

is not restored land undcr 25 U.S.C. 9 2719(b)(f){B)(iii). Gaming is therefore not 

permissible on the Carter Lake land undcr IGRA. Thc Department of the Intcrior, 

Office of the Solicitor, concurs in this analysis. 

Disnpprr~vc the ardinnnce. 

Pnncn of Nebraska, Carter Lake lands opinion, p. 33 of 33