Eighth Circuit gives green light to contested Iowa casino

ST. LOUIS (CN) —The Eighth Circuit ruled Monday that a Nebraska Native American tribe’s planned casino in Iowa can go forward, affirming that a 1990 law enabling them to conduct business in the state does not exclude gambling. 

The federal appeals court’s unanimous decision, penned by Donald Trump-appointed U.S. Circuit Judge Steven Colloton, detailed its findings that the Ponca Restoration Act, passed in 1990 as part of the Ponca Tribe of Nebraska’s re-recognition by the federal government, allows a parcel of land purchased by the tribe in the Iowa city of Carter Lake to be considered restored land without restrictions on the tribe’s ability to conduct gaming there. 

“Congress has shown that it knows how to limit a tribe’s ability to conduct gaming on its land when it wishes to do so,” Colloton wrote. “The Ponca Restoration Act, by contrast, contains no language limiting gaming or the ‘restoration of lands’ for the Tribe.” 

The Nebraska tribe is one of two federally recognized Ponca Tribes, having regained that status with the passage of the Act after 24 years of derecognition by the federal government between 1966 and 1990. An 1858 treaty guaranteed the Ponca a permanent reservation, but the same land was later included in a treaty with the Lakota/Sioux, and the Ponca were soon targeted for removal from their historic lands to Oklahoma in 1877.

The Ponca Restoration Act granted tribe members access to services available to federally recognized tribes, and granted services typically only given to members living on reservations to Ponca living in 15 counties across Nebraska, Iowa and South Dakota. 

Disputes over the land in Carter Lake have been ongoing in some form since its purchase by the tribe in 1999, when the state of Iowa sought to prevent the Bureau of Indian Affairs from taking the 4.8 acres in trust for the tribe’s benefit. 

That litigation was terminated and the land was put into trust after a 2002 agreement between Iowa and the Ponca in which the tribe promised not to conduct gambling on the land. They instead planned to build a clinic for tribal members. 

The issue returned in 2007 when the tribe sought authorization from the National Indian Gaming Commission to conduct gaming on the land. After a series of appeals, including a first trip to the Eighth Circuit, the tribe received permission from the commission in 2017 only to face a new lawsuit from the nearby Iowa city of Council Bluffs.

The city, soon joined by Iowa and Nebraska as intervenors, argued that the land was not eligible for designation as “restored Lands” under the Ponca Restoration Act and therefore could not be used for gambling. 

“The court need not look any farther than the language used in the Restoration Act to find the answer: Knox and Boyd counties in Nebraska are the only geographic areas specifically identified in the [Ponca Restoration Act] as areas where the secretary can take land into trust for the benefit of the tribe," Iowa Assistant Attorney General John Lundquist said at oral arguments in April. The land in question lies about 100 miles from those counties. 

Colloton wrote that the Eighth Circuit's three-judge panel, comprised of himself and fellow Republican-appointed U.S. Circuit Judges Lavenski Smith and Ralph Erickson, took a view closer to the Department of Justice’s contention that the Act allows lands well beyond Knox and Boyd counties to be restored to the Ponca, and that a restored-lands exception for gambling applies to that property.

“That Congress specified a geographic area in which the secretary is required to accept land for the tribe under the Ponca Restoration Act does not mean that only land within that area can be part of the restoration of lands for the tribe. Lands expressly granted to a tribe in the tribe’s restoration act may be the 'paradigm' of restored lands, but lands acquired for a tribe through means other than a restoration act also can qualify," Colloton wrote.

“That [the Act] calls for the acquisition of restored lands in Knox and Boyd counties does not mean that the secretary lacks authority to restore lands elsewhere,” he added. 

Representatives of the Department of the Interior declined to comment on the case, as did the Nebraska Attorney General's Office and the Iowa Attorney General's Office.

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