Two states battle NIGC over Ponca Tribe's casino

Law

Tuesday, September 16, 2008

A federal judge on Monday took the unusual step of allowing two states to sue the federal government over a proposed tribal gaming facility.

The Ponca Tribe plans to build a casino on five acres of trust land in Iowa. Due to a shift in the Missouri River, the only way to reach the site by vehicle is through Nebraska.

That means both states have a stake in the matter, according to Judge Charles R. Wolle. Over the objections of the Bush administration, he refused to dismiss Nebraska's lawsuit against the casino.

But Nebraska won't be pursuing its claims alone, as Wolle consolidated the suit with another one filed by the state of Iowa. A trial is scheduled for October 29 in the federal courthouse in Des Moines, Iowa.

"The court recognized that Nebraska has an intense interest in what happens on land that can only be accessed by roads in our state," Nebraska attorney general Jon Bruning said in a statement yesterday.

Bruning's partner in the case will be Iowa attorney general Tom Miller, who joined the battle late last month. The two states are contesting a National Indian Gaming Commission decision that has stirred passions on both sides of the border.

The Ponca Tribe's land in Carter Lake, Iowa, was placed in trust in 2003, long after the passage of the Indian Gaming Regulatory Act of 1988. The date is important because the law generally bars gaming on newly acquired lands unless certain exceptions are met.

The tribe, in fact, did not have gaming in mind when it submitted its land-into-trust application to the Bureau of Indian Affairs. Plans originally called for a health care facility.

But even though the tribe changed its mind, the NIGC begrudgingly concluded that the site met one of IGRA's exceptions because the Poncas were restored to federal recognition by an act of Congress. Still, the agency took issue with the way the matter unfolded.

"Without a consequence for those who boldly promise whatever suits them, we are concerned by the tarnish the Ponca's actions may have on the credibility and good faith of other tribes that attempt to have land taken into trust," the agency said in a December 31, 2007, decision.

It's not unusual for the NIGC to be sued over land determinations. But the Ponca case is the first time in the history of IGRA that two states will be allowed to fight the agency in one court.

Ponca headquarters are in Niobara, Nebraska, nearly 200 miles from Carter Lake, Iowa. In restoring the tribe to recognition, Congress defined the tribe's service area to include Carter Lake and other parts of Iowa.

The tribe could pursue a casino in Nebraska but would be limited to Class II gaming. The state has refused to negotiate a Class III compact and voters have repeatedly rejected constitutional amendments to expand gaming.

Iowa is more attractive because all forms of Class III gaming are legal. Three commercial casinos operate just across the river from Carter Lake in the city of Council Bluffs, raising fears of tribal competition.

Wolle allowed Council Bluffs to join the Nebraska-Iowa case. Officials in Pottawattamie County, Iowa, have passed a resolution in favor of the case but have not formally voted to join the fight.