The Ponca Tribe of Nebraska’s new Prairie Flower Casino has survived the latest legal attempt to shut it down.
The National Indian Gaming Commission ruled this week that the tribe was within its rights to build the casino on a 4.8-acre parcel of land in Carter Lake, Iowa. The Poncas purchased the land in 1999 and opened the casino last fall, following a decadelong legal battle with the City of Council Bluffs and the States of Iowa and Nebraska.
Iowa and Council Bluffs have been concerned that the Ponca gambling parlor would poach customers from the three state-regulated Bluffs casinos, costing tax and charity money. Nebraska has fought to prevent casinos within the state’s borders, as well as in the small Iowa municipality just north of downtown Omaha.
At the heart of the debate is how the parcel of land in Carter Lake is designated.
The Poncas’ historical lands were in northern Nebraska, near Niobrara, but the federal government withdrew its recognition of the tribe in 1962, then restored it in 1990.
The three governments argued that the 1988 federal legislation that governs Indian gambling facilities doesn’t permit the tribe to build on the Carter Lake property. That legislation provided for tribes recognized after the passage of the Indian gambling law to build casinos on “restored lands” recognized by the federal government. The Poncas disagreed with Nebraska, Iowa and Council Bluffs over whether the Carter Lake property met the definition of restored lands.
The commission ruled that the tribe could build in Carter Lake even though the tribe’s attorney told Council Bluffs officials in 2002 that the Poncas intended to build a medical clinic, not a casino, on the property. The tribe said the attorney lacked authority to make such an agreement.
“And it is no matter that the Tribe did not contemplate a gaming use for the parcel when it applied to have it taken into trust,” the commission said in its 14-page ruling this week. “Intended use of a parcel and representations are not proper considerations for a restored lands analysis.”
It’s the third time the commission has sided with the tribe on the Carter Lake casino.
The first decision, in 2007, was overturned by a federal court after a lawsuit by Council Bluffs and the two states against the Indian Gaming Commission and the U.S. Interior Department, which oversees the commission.
After a lengthy review, the commission in November 2017 reaffirmed its original decision, prompting a second lawsuit a few weeks later by the same three governments.
The Poncas went ahead with construction, and the casino opened Nov. 1. The Prairie Flower is named for the daughter of the renowned Ponca chief, Standing Bear. She died during the tribe’s forced removal from Nebraska to Oklahoma.
This week’s decision follows a ruling issued March 26 by Judge Stephanie Rose of the Southern District Court of Iowa.
That decision dismissed requests from both sides for a summary judgment in their favor but directed the commission to reconsider its earlier decision, factoring in the purported 2002 agreement between the Ponca Tribe’s attorney and Council Bluffs.
The three governments have appealed the ruling and sought to close the casino while the commission considered the ruling.
The tribe was quick to claim victory. In a statement issued Thursday, the Poncas described the commission’s decision as “a major blow for the plaintiffs.”
“The National Indian Gaming Commission reaffirmed what we have known to be true for over a decade: The Ponca Tribe of Nebraska has the right to operate Prairie Flower Casino on their tribal land in Carter Lake, Iowa,” James Meggesto, an attorney representing the tribe, said via the statement.
Keith Miller, a Drake University law professor who specializes in gambling law, said the decision isn’t quite the end of the road in the long-running lawsuit.
But he characterized it as a definite smaller win for the Poncas.
“The tribe declaring victory is premature, because this is going to go forward,” Miller said Thursday. “The fact that (the commission) affirmed puts the tribe in a stronger position, and puts the burden on the city and the states.”
Nebraska Attorney General Doug Peterson noted that the last time a federal court ordered the commission to review its decision on the case, it took seven years to reconsider it.
This time, it took barely a month.
“The decision was reached with no input from the affected parties, with no accountability to the elected branches of government, and with several of the same legal errors that have plagued the NIGC’s past work in this case,” Peterson said in a statement released Thursday. “Ultimately, this issue will be decided by the federal courts.”