Ponca Tribe Denied Casino Rights Near Eppley

OMAHA WORLD HEARLD - November 29, 2008

By Tom Shaw - World-Hearld Staff Writer

A U.S. District Court judge said the Ponca Tribe of Nebraska is bound by its 2002 agreement with the State of Iowa to have no gambling on the 5 acres it owns in Carter Lake.

The ruling reverses the decision of a federal commission to allow the tribe to open and operate a casino near Omaha's Eppley Airfield.

When the tribe switched gears last year and gained permission to gamble on land once announced for a health clinic, the States of Iowa and Nebraska joined forces with the City of Council Bluffs to stop the plan.

Council Bluffs opposed it because of the proximity of the tribal land to existing casinos in that city. The State of Iowa wanted to protect the gambling operations that are licensed and taxed by the state, in the Bluffs and elsewhere.

Nebraska contended that a casino in Carter Lake would have negative economic and social effects on Nebraskans. That's because Carter Lake, though in Iowa, sits on the Nebraska side of the Missouri River.

The federal government could appeal the ruling, but it would have an uphill climb, Dick Wade, the city attorney for Council Bluffs, said Saturday.

He noted that Charles Wolle, U.S. District Court judge for the Southern District of Iowa, did not give the federal agencies or the tribe the option of sorting out how to get the project back on track. Instead, Wade said, the judge ruled emphatically that the commission's actions are void because the 2002 agreement is binding.

"It definitely puts the States of Iowa and Nebraska in the driver's seat," Wade said of the ruling. "It definitely makes it difficult for (the federal government) to challenge the determination of the lower court judge."

In 2002, Iowa agreed not to challenge the tribe's plan to develop the land, because the Poncas stated it would be used for public health purposes, "not for gaming activities."

Later, attorneys for both the federal government and the tribe argued that the agreement with Iowa was not legally binding but instead was merely a notice of the tribe's intentions.

Nebraska Attorney General Jon Bruning called the ruling "the best possible outcome" for casino opponents.

Bruning also predicted it would be hard for the federal government to win an appeal, because the judge found the National Indian Gaming Commission wrong on multiple points.

It was unclear Saturday whether there would be an appeal. An attorney representing the federal government in the case could not be reached Saturday. Ponca Tribal Chairman Larry Wright did not return a call seeking comment.

The Iowa Attorney General's Office said it was "very pleased" the judge agreed with the states' position that the Ponca Tribe committed itself six years ago to not building a casino on the land.

The ruling also was hailed by the anti-casino group Gambling With the Good Life.

Wolle heard the case in Des Moines at the end of October and issued his decision Friday.

The Poncas bought the land in 1999. It sits not far from Abbott Drive, the main route from the airport to downtown Omaha.

After the agreement on the property's use was reached in 2002, the U.S. Department of the Interior placed the Ponca land in trust so it could be developed as a health clinic. The department did not rule on any gambling matters because gambling was not any part of the proposal.

But last year, the tribe did seek to use the land for gambling. The tribe took the matter to the National Indian Gaming Commission rather than to the Interior Department, and the commission said the property qualified for "restored land" status and could be used for gambling.

The States of Iowa and Nebraska successfully argued that the Interior Department had to make the gambling determination.

Wolle said at a hearing in Des Moines that he was "very troubled" that the tribe skipped the Interior Department and went instead to the commission. He equated the action to someone with a court case looking around for the most favorable judge.

Ponca leaders say, and argued in court, that the tribe simply changed its mind on how to use the land. As a result, an attorney for the federal government argued, the gambling commission was within its jurisdiction to decide the gambling question.

However, Wolle ruled that the National Indian Gaming Commission "was unreasoned and arbitrary in holding that the Ponca Tribe was not bound by its agreement with Iowa to have no gaming on its Carter Lake site."

The judge also ruled that the gambling commission acted outside its authority when it granted the tribe permission to place a casino on the land.