Ponca Tribe faces roadblock with lawsuit challenging restoration of homelands

Friday, December 15, 2017

The descendants of Ponca Chief Standing Bear are once again facing opposition to plans for a casino on their restored homelands.

The city of Council Bluffs, Iowa, made good on a threat to sue the Department of the Interior and the National Indian Gaming Commission for paving the way for the long-delayed project. A complaint was filed in federal court on Wednesday, claiming the Ponca Tribe can't use its lands or a casino.

Although the city acknowledges the tribe was a victim of the federal government's disastrous termination policy, and was later restored to recognition through the Ponca Restoration Act, the lawsuit alleges the land does not meet the definition of "restored lands" under the Indian Gaming Regulatory Act.

The NIGC, in a November 14 decision, concluded otherwise, reaching the same conclusion the agency made in 2007. But the tribe never got to break ground because the city went to court.

"As was true of its 2007 decision, the 2017 decision issued by the NIGC, with the concurrence of DOI, is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with applicable law, including the fact that it is contrary to and exceeds the express terms of the Congressional mandate in the Ponca Restoration Act and the IGRA," the new complaint reads.

A 10-foot tall, bronze statue of Ponca Chief Standing Bear was erected October 15, 2017, along a plaza leading to the Nebraska State Capitol in Lincoln. In 1879, Standing Bear convinced a federal judge to allow him to return to his homelands in northeast Nebraska, a decision that is today considered an important civil rights victory for Native Americans. Photo by Kevin Abourezk

Generally, land acquired after 1988 can't be used for a casino. But Section 20 of IGRA contains an exception that applies to tribes, like the Poncas, whose federal recognition was restored by Congress.

The Poncas, whose ancestors had to fight to return to, and stay in their homelands in the late 1800s, won back their federal status in 1990, two years after IGRA became law.

The tribe subsequently acquired a 4.8-acre parcel in Carter Lake. As the lawsuit states, a casino there poses a major threat to three non-Indian gaming facilities that are operating in Council Bluffs, located just across the Missouri River.

The city receives $3 million a year in taxes from those facilities every year, the complaint admits. Another $8 million in charitable contributions flow to Council Bluffs every year, it adds.

"The racing and gaming facilities also draw millions of visitors to Council Bluffs each year," the lawsuit states. "Council Bluffs files this action in order to protect the well-being of its citizens, the charitable contributions benefiting its citizen, its tourism industry, and the fees and taxes it receives from state-licensed racing and gaming facilities."

The site in Carter Lake is also less than a mile from a major airport that sees more than 4 million passengers every year. The city of Omaha, Nebraska, a metropolitan region that's home to more than 900,000 people, is just a few minutes away.

An aerial view of Carter Lake, Iowa, shows the location of the Ponca Smoke Signals Shop, a tobacco shop operated by the Ponca Tribe on its trust land in the city. The Eppley Airfield in Omaha, Nebraska, can be seen at the top. Image: Google Earth

The lawsuit names Secretary Ryan Zinke of DOI, the NIGC and the two NIGC officials who signed the Ponca Tribe's decision as defendants. The Ponca Tribe is not named as a defendant and, generally, cannot be sued with its consent due to sovereign immunity.

NIGC Chairman Jonodev Chaudhuri and Vice Chair Kathryn Isom-Clause signed the November 14 decision without the vote of Commissioner E. Sequoyah Simermeyer. Under IGRA, two commissioners are legally able issue a final decision.

"The commission recognizes that all tribes have unique histories that must be considered on a case-by-case basis when making these decisions," Chairman Chaudhuri said in a news release at the time.

Chaudhuri, who is a citizen of the Muscogee (Creek) Nation, and Isom-Clause, who is from the Pueblo of Taos, are Democratic picks to the NIGC -- both were named during the administration of former president Barack Obama. Simermeyer is a Republican appointee, though he also was named during the Obama era. He hails from the Coharie Tribe but also has heritage from the Navajo Nation.

Under IGRA, no more than two commissioners can be of the same political party.

The law authorizes each commissioner to serve a three-year term. Chaudhuri's term runs through May 2018, Isom-Clause's runs through March 2019 and Simermeyer's runs through November 2018.

Despite the change of power to a Republican president, the NIGC operates "independent of political factors," Chaudhuri said over the summer when Indianz.Com asked about the arrival of Donald Trump in Washington, D.C.

"Our terms are statutory terms that don't track the administration's terms," Chaudhuri added.

"That allow us to focus first and foremost on the regulation of Indian gaming and supporting an industry that is so important, not to just Indian Country, but to the general public," he said.

Ponca Tribe on YouTube: Casino Announcement

The tribe celebrated after securing the decision from the NIGC. In an announcement posted on YouTube, Chairman Larry Wright Jr., said revenues from a gaming facility will help fund programs and services.

Wright reaffirmed that message as the tribe moves forward with a $26 million health care facility in Omaha. The existing Fred LeRoy Health and Wellness Center is located in an aging building.

"It means everything to us when we look at that revenue and how it affects the services that we provide for our people,” Wright told Indianz.Com

“When you talk about revenue that is generated from the casino and where it goes to, it’s not going to stakeholders in other states,” he added. “It’s not going to dividends. It’s going back into programs and services for our people."

“Our funding goes to those places, and that goes right back into the communities that we’re in," Wright said.

National Indian Gaming Commission Documents:
November 14, 2017 Decision | December 31, 2007 Decision

8th Circuit Court of Appeals Decision:
Nebraska v. Department of Interior (October 19, 2010)