US appeals court urged by Iowa and Nebraska to reverse tribal casino approval

Iowa and Nebraska state representatives told a federal appeals court Tuesday that a tribal casino on the border of both states should not have been approved by the federal government because the site purchased by the Ponca Tribe does not qualify as an Indian gaming establishment.

Iowa Assistant Attorney General John Lundquist told the St. Louis-based Eighth Circuit that the question for the three-judge panel is whether Congress created an exception in federal Indian gaming law that allowed Prairie Flower Casino on Iowa land acquired by Nebraska’s Ponca Tribe far beyond its historic reservation. Lundquist argued that it did not, Courthouse News Service reports.

Mary Gabrielle Sprague, a lawyer for the U.S. Justice Department, told the judges that when the statute is read in its entirety and in the context of related Indian lands regulation, it’s clear that Congress intended to make an exception that permitted the casino.

The Ponca Tribe of Nebraska purchased the 4.8-acre site in Carter Lake, Iowa, in 1999, and originally planned to build a health clinic for tribal members there. Eighteen years later, the tribe instead got permission from the National Indian Gaming Commission to build a casino. The city of Council Bluffs, Carter Lake’s neighbor, filed suit in federal court to block the casino, and was joined by Nebraska and Iowa as intervenors.

The states and Council Bluffs claim the Poncas’ Carter Lake land was not eligible for federal designation as “restored lands” under the 1990 Ponca Restoration Act, in which Congress allowed the Ponca to expand their lands to compensate for the loss of the tribe’s historic reservation. The plaintiffs argue that the Ponca Restoration Act limited the tribe to adding land in only two specified Nebraska counties – Boyd and Knox — 100 miles from Carter Lake.

U.S. District Judge Stephanie Rose in Des Moines ruled in 2019 against the plaintiffs, whose appeal was heard by the Eighth Circuit on Tuesday. While the case was before the district court in 2018, the tribe constructed and opened a gaming facility, Prairie Flower, on the Carter Lake parcel.

“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,” Lundquist said.

The Justice Department’s attorney said the court should look at the issue more broadly. “When you look at where that land was expected to be taken into trust,” Sprague said, the statute “defines a large service area of 16 counties where the Ponca people live. Congress did not want to move the Ponca people back to their historic reservation in Boyd and Knox counties. They thought that would be a recipe for disaster. So they instead expressed clear intent to allow the Ponca people to remain living where they were living and to provide services to them.”