A federal judge has rejected the application of the Fort Sill Apache Tribe of Oklahoma for permission to operate a casino in New Mexico.
Judge Ellen S. Huvelle of the U.S. District Court of the District of Columbia upheld a decision by the National Indian Gaming Commission (NIGC) that the Oklahoma tribe is not eligible to offer gambling in New Mexico.
The Fort Sill Apaches are a federally recognized tribe that has land at Akela Flats, located 40 miles west of Las Cruces, New Mexico, and 18 miles east of Deming, New Mexico, off of Interstate 10. The tribe purchased the 30- acre site in 1998.
For years the Fort Sill Apache Tribe insisted they should be allowed to game at Akela Flats, but Judge Huvelle dismissed the tribe’s arguments.
The Southwest Ledger placed two calls to the tribe’s administration office on May 28; the phone rang 11 times, but no one answered and the call was not sent to voicemail, either. Similarly, the tribe did not immediately respond to a message left by The Associated Press after the judge issued her opinion on April 30.
However, tribal attorney Robert E. Prince of Lawton informed the Ledger on Saturday that the Fort Sill Apaches intend to appeal the verdict to the U.S. Court of Appeals for the District of Columbia Circuit. “We do not feel the decision was appropriate based on the history of the tribe,” he said.
INDIAN GAMING REGULATORY ACT
Congress enacted the Indian Gaming Regulatory Act (IGRA) in 1988 “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments,” Judge Huvelle related. The IGRA allows Native American tribes to conduct or permit “Class II” gambling (games of chance based off bingo) and “Class III” gaming activities (such as slots, roulette and blackjack) on eligible “Indian lands.”
The IGRA expressly prohibits gaming on “Indian land taken into trust” by the Secretary of the Interior after IG- RA’s effective date “unless the land borders an existing reservation or is within the last recognized reservation of a tribe that was landless at the time IGRA was enacted (unLess the tribe is in Oklahoma, in which case lands bordering [the tribe’s] former reservation are exempted as well).”
The prohibition is subject to two categories of exceptions, one of which is relevant to the Fort Sill Apache Tribe’s case, Judge Huvelle wrote. It “exempts lands taken into trust as part of the ‘settlement of a land claim,’ ‘the initial reservation of an Indian tribe acknowledged by the Secretary,’ or the ‘restoration of lands for an Indian tribe that is restored to federal recognition’.”
In an effort to open a gaming facility, the Oklahoma tribe sought to acquire land in trust on the KCA Reservation. In 1999, the U.S. Department of the Interior transferred trust title in a half-acre parcel on the KCA Reservation for the benefit of the Fort Sill Apache Tribe.
The Comanche Nation of Oklahoma sued the United States in 2005, challenging the land transfer as invalid because the government failed to seek Comanche approval beforehand. The Fort Sill Apache Tribe intervened in the lawsuit.
In 2007 the three parties entered into a settlement agreement in which the Fort Sill Apache Tribe agreed to withdraw and abandon any applications for property on the KCA Reservation. In exchange, the government agreed “to accept and timely process” the tribe’s application for a reservation proclamation on land held in trust for the tribe in Akela Flats, New Mexico, an area within the aboriginal lands of the Chiricahua Apaches.
The Fort Sill Apache Tribe was allowed to keep the 0.53- acre parcel at issue in the litigation. The parties also agreed that the Fort Sill Apache Tribe is the successor-in-interest to the Chiricahua Apaches, that the United States once maintained a government-to-government relationship with the Chiricahua Apaches, that the United States no longer recognized the Chiricahua Apaches, and that the United States maintains a government-to-government relationship with the Fort Sill Apaches.
FORT SILL APACHES TRY TO OPEN CASINO IN N.M.
After the Comanche litigation concluded, the Fort Sill Apache Tribe sought to open a gaming facility on its Akela Flats territory.
The Fort Sill Apache Tribe announced plans in February 2008 to open a temporary 11,000-square-foot casino on the land. In response, then-Gov. Bill Richardson ordered 50 state police to block roads to the tribe’s property.
The Acting General Counsel of the National Indian Gaming Commission (NIGC) sent a letter to the Tribe in 2008, stating her “preliminary view” that gaming at Akela Flats would violate the IGRA. Three months later the tribe withdrew its application. On that same day, the Acting General Counsel of the NIGC issued an advisory opinion concluding that gaming on Akela Flats was barred by the IGRA and that the Fort Sill Apache Tribe could not meet any of the law’s exceptions.
The next year, in April 2009, the tribe opened its 5,000 square-foot Apache Homelands facility off I-10,
which included a smoke shop, restaurant and a casino, and began gambling operations.
The NIGC became aware and issued a Notice of Violation on July 21, 2009, ordering the tribe to cease gaming activities or else face civil fines of up to $25,000 per day. However, the agency offered the tribe a deal: it would stay the fine if gaming ceased until resolution of the tribe’s appeal or any subsequent judicial review.
That took 11 years.
New Mexico’s Supreme Court, for example, rejected the tribe’s request in 2015 to order then-Gov. Susan Martinez to sign a gambling compact with the Fort Sill Apache Tribe.
Subsequently the tribe filed suit in Washington, D.C., against the NIGC, the Department of the Interior, the Assistant Secretary of Indian Affairs and the United States.
The NIGC consistently maintained that the Fort Sill Apache Tribe did not qualify under any of the exceptions in the Indian Gaming Regulatory Act (IGRA), enacted by Congress, which contains a general prohibition against tribes gaming on lands acquired after 1988.
The NIGC accepted the tribe’s claim that the federal government recognized both the Chiricahua Apaches and the Fort Sill Apache Tribe, but concluded the tribe failed to show that the government ever terminated its recognition of either tribe – a requirement of the IGRA exception.
Specifically, the NIGC rejected the tribe’s argument that imprisonment of the Chiricahua Apaches after Geronimo’s surrender in 1886 constituted a termination of the government-to-government relationship. The NIGC found that “the United States military forces’ decision to take the [Chiricahua Apaches] as prisoners of war indicate[ed] that the Tribe was still considered a hostile but separate and sovereign entity.”
NIGC, JUDGE REJECT ‘RESTORATION OF LANDS’
The NIGC also concluded that Akela Flats failed to meet another requirement of the restored lands exception: namely, that its acquisition be part of a “restoration of lands.”
The NIGC pointed out that:
• The tribe “focused its land acquisition efforts not in New Mexico but in Oklahoma,” where it made seven separate purchases prior to its purchase of Akela Flats. NIGC found the fact that the tribe paid more than $100,000 to buy seven parcels of land in Oklahoma before it purchased Akela Flats undercut any argument that “poverty and a difficult time with the land-into-trust process” prevented it from investing in Akela Flats sooner.
• The Fort Sill Apache Tribe “waited 23 years from recognition to acquire Akela Flats and request that it be placed into trust for gaming.” The tribe’s forced removal from their aboriginal territory, and subsequent settlement in Oklahoma, helps explain their lack of modern connections to Akela Flats, the NIGC acknowledged. That fact, alone, however, failed to explain why the tribe did not establish any connections to the land until much later, the agency declared. The tribe received new recognition in 1976 but failed to establish modern connections to Akela Flats as a trust parcel for another 23 years; instead, the tribe focused on obtaining trust land in Oklahoma.
• Although Akela Flats was historically significant to the tribe, the tribe lacked a modern connection to the land. The NIGC found that the tribe had no contact with the land until 1998, all major tribal government offices were located more than 540 miles away, and no tribal members lived on or near the land.
“Accordingly,” Judge Huvelle concluded, “the Court will uphold the NIGC’s ultimate conclusion that the Tribe was not eligible to game at Akela Flats pursuant to the IGRA’s restored lands exception.”