Ponca Tribe faces familiar opponent in long-running quest for casino

Thursday, May 31, 2018

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

Ponca Tribe vows to defend 'sovereign land'

Long-delayed casino is subject of litigation again
By Kevin Abourezk
@Kevin_Abourezk

The state of Nebraska is joining its neighbors in Iowa in opposing plans for a tribal casino just outside its largest city.

Nebraska Attorney General Doug Peterson (R) on Wednesday announced a motion to intervene in a lawsuit against the National Indian Gaming Commission regarding its decision in November to approve a casino for the Ponca Tribe. A federal magistrate approved the request -- which was unopposed by the federal government -- on Thursday.

Peterson argued when the tribe requested to have the 4.8-acre parcel in Carter Lake in Iowa placed into trust in 2003 that it promised to use the land for a healthcare facility. Additionally, Peterson said federal law limits the tribe’s lands to Knox and Boyd counties in Nebraska, and both counties are more than 100 miles from Carter Lake, which lies just outside Omaha in Nebraska.

Even though Chief Standing Bear had to fight for his people's right to return to Nebraska in the late 1800s, the federal government terminated its relationship with the tribe in the 1960s. The slight was corrected when Congress restored the tribe to recognition in 1990.

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

Generally, land acquired after the passage of the Indian Gaming Regulatory Act in 1988 cannot be used for gaming but Section 20 of the law contains exceptions to that general rule. According to the NIGC, the "restored lands" exception applies to the Poncas.

“Local Iowa law enforcement has already expressed a concern that it will be unable to handle the increased activity generated by the casino,” Peterson said in a statement. “Since one cannot travel to or from Carter Lake without traveling through Nebraska, this means that Carter Lake’s gambling problem will become Nebraska’s gambling problem.”

Though Carter Lake is located in Iowa, it is physically surrounded by Nebraska due to the shifting nature of the Missouri River. It's less than a mile from Omaha’s Eppley Airfield, which sees more than 4 million passengers every year.

The city is also less than five minutes from downtown Omaha, a metropolitan region that's home to more than 900,000 people. The tribe currently operates a smoke shop on the land, which enjoys easy access to Interstate 29.

Ponca Chairman Larry Wright Jr. said the state of Nebraska’s decision to join the lawsuit against the tribe’s proposed casino won’t stop the tribe.

“We’re confident that the court will affirm the decision of the National Indian Gaming Commission that our tribe has the right to conduct gaming on our sovereign land,” he said in a statement. “Today’s announcement from the state of Nebraska will not stop the Ponca Tribe of Nebraska from developing our sovereign land in a way that allows us to better serve our members and provide a positive economic impact in the Carter Lake community.”

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The Ponca Tribe has 4,100 enrolled members, with nearly than half residing in the states of Iowa and Nebraska.

The NIGC initially approved the casino in 2007, but the states of Nebraska and Iowa and city of Council Bluffs challenged that decision. A federal judge eventually ruled that the NIGC lacked the authority to take action. But the 8th Circuit Court of Appeals reversed and gave the agency another chance to consider the matter.

The 8th Circuit said the NIGC should have taken the purported agreement with Iowa into account. But that agreement isn't valid and can't be used to stop the tribe from gaming under the restored lands exception in IGRA, the NIGC stated in its November decision.

“Despite having a second chance to consider the issue, the approval suffers from the same flaws raised by challengers in the 2007 case,” Peterson said on Wednesday

In addition to granting Nebraska's request to join a complaint initially filed by the city of Council Bluffs, a federal magistrate approved the state of Iowa's motion to intervene on Tuesday. The case is pending in the U.S. District Court for the Southern District of Iowa.

The Ponca Tribe is not currently participating in the case. Instead, the lawsuit names the Department of the Interior, the National Indian Gaming Commission and officials at both agencies as defendants.

On behalf of the federal defendants, the Department of Justice filed an answer to the complaint. The April 27 response rejects the city's claims for relief.

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)