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Case 1:08-cv-00317-RWR Document 10 Filed 03/03/2008 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Plaintiff,

BOARD OF COMMISSIONERS OF CHEROKEE )
)
COUNTY, KANSAS,
)
)
)
)
)
)
)
)
__________________________________________)

KEMPTHORNE, et al.,



Defendants.

v.

Case No. 1:08-cv-00317-RWR
Judge Richard W. Roberts

THE UNITED STATES’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

INTRODUCTION

Defendants, Dirk Kempthorne in his official capacity as Secretary of the Interior

(“Secretary”) and the United States Department of the Interior (“Interior”) (hereinafter

collectively referred to as the “Defendants”), hereby oppose the Motion for Preliminary

Injunction (“Motion”) filed February 25, 2008 (Docket #2) by the Board of Commissioners of

Cherokee County, Kansas (“Plaintiff”). Plaintiff claims it is entitled to an injunction because the

Defendants violated the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, and

the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f, by transferring a

portion of the Meh-No-Bah Allotment into trust on behalf of the Quapaw Tribe of Oklahoma

(“Quapaw Tribe”) thereby allowing the construction of a casino resort without the proper

environmental review. Mot. at 1. The Motion requests that the Court enjoin the Secretary from

proceeding on any further land transfers on behalf of the Quapaw Tribe related to the

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Case 1:08-cv-00317-RWR Document 10 Filed 03/03/2008 Page 2 of 15

development of the casino, and that the Secretary and those acting in concert with him be

enjoined from conducting any further construction activity on the property and from operating

the casino. Mot. at 2.

Plaintiff’s Motion must be denied because the injunctive relief it seeks is unavailable.

Plaintiff seeks to enjoin Defendants from engaging in the construction and operation of a casino,

something Defendants are simply not doing. /1

Defendants are not engaging in any ongoing

construction or development activity on the Meh-No-Bah Allotment; the Quapaw Tribe is the

entity doing so. However, the Quapaw Tribe is not before this Court, and therefore, the Court

lacks jurisdiction to enjoin the Tribe. Defendants also have no authority to regulate the

construction activities of the Tribe and, even if the United States had such authority and chose to

use it, construction of a casino is not unlawful.

Moreover, Plaintiff cannot show the requisite likelihood of success on the merits of either

of its two statutory claims. Any claims under IGRA are premature because no gaming has taken

place on the property. In addition, under the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, the

Court has no jurisdiction to hear claims seeking to divest the United States of title to the land it

holds in trust or restricted fee for the Quapaw Tribe, which is the relief Plaintiff ultimately seeks.

Compl. at 13. With respect to NEPA, any claim that the United States did not properly comply

with NEPA is necessarily tied to the major federal action that triggers NEPA, the transfer of the

Plaintiff also seeks to enjoin the United States from “proceeding with any further land
/1
acquisitions related to the development” of a gaming facility on the property. Mot. at 2. The
Quapaw Tribe currently has one application pending to have land taken into trust under the
Indian Land Consolidation Act (“ILCA”), 25 U.S.C. §§ 2201-2221, § 2204. The Secretary of the
Interior has agreed not to take any additional land into trust on behalf of the Quapaw Tribe during
the pendency of the present litigation. Ex. 3, Decl. of Majel Russell. Therefore, injunctive relief
is unnecessary.

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Case 1:08-cv-00317-RWR Document 10 Filed 03/03/2008 Page 3 of 15

land into trust or restricted fee. Since the land transfer process is complete, Plaintiff’s NEPA

claims are moot. Therefore, Plaintiff also fails to show a likelihood of success on the merits of

its claims. For these reasons and the other reasons set forth below, Plaintiff’s Motion should be

denied.

BACKGROUND

Plaintiff’s Motion centers around the construction and development of a casino/hotel

complex by the Quapaw Tribe in the northeastern corner of Oklahoma, where the State borders

Kansas and Missouri. Mem. in Supp. of Mot. at 3. The project consists of the construction of

the casino/hotel complex, infrastructure, and amenities on 85 acres of land in Oklahoma, surface

vehicle parking and a driveway on approximately 63 acres in Kansas, and an extension of the

driveway on approximately 30 acres in Missouri. /2

Ex. 1 at ¶ 2 (Exhibit 1(C) attached to

Plaintiff’s Memorandum). The land on which the gaming establishment will be located is, in its

entirety, a parcel of land in Oklahoma known as the Meh-No-Bah Allotment. Id. at ¶ 3. The

Quapaw Tribe acquired 5/6ths of the Meh-No-Bah Allotment in trust from its individual Indian

landowners through the Indian Land Consolidation Act (“ILCA”), 25 U.S.C. §§ 2201-2221; the

remaining 1/6th of the land, also acquired by the Tribe pursuant to ILCA, is held by the Tribe in

restricted fee. /3

Id. The Meh-No-

All 63 acres in Kansas, where Plaintiff is located, are owned by the Tribe in fee simple. As
/2
such, that parcel is subject to the State of Kansas’ jurisdiction.

Notably, the individual parcels making up the Meh-No-Bah Allotment were allotted to members
/3
of the Quapaw Tribe pursuant to an Act of the Quapaw National Council approved on March 23,
1893, and ratified and confirmed by the Act of March 2, 1895, 28 Stat. 876, 907. “‘Indian
Country’. . . means . . . (c) all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.” 18 U.S.C. § 1151(c).
Although Congress enacted Section 1151 as a guide to federal criminal jurisdiction, the Supreme

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Bah Allotment was acquired pursuant to five separate transactions. Exs. 2-6 (Exhibits . The first

two parcels each had a 1/4 undivided interest in the Allotment – for a total of a 1/2 undivided

interest – and were transferred from their individual Indian onwers into trust for the Tribe on

April 27, 2007. Exs. 2, 3. Two additional parcels were transferred from their individual Indian

owners into trust on May 18, 2007 and July 6, 2007, respectively, each with a 1/6 undivided

interest in the Meh-No-Bah Allotment, for a total of a 5/6 undivided interest in the Meh-No-Bah

Allotment. Exs. 4, 5. The final transaction, on July 10, 2007, involved the transfer of the parcel

with a 1/6 undivided interest in the Meh-No-Bah Allotment in restricted fee Indian land. /4

Ex. 6.



STANDARD OF REVIEW

Courts addressing a motion for a preliminary injunction should examine four factors: (1)

whether there is a substantial likelihood that the plaintiff will prevail on the merits; (2) whether

the plaintiff will be irreparably injured if an injunction is not granted; (3) whether an injunction

will substantially injure the other party; and (4) whether granting the injunction would further the

public interest. Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998) (citing

Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)).

Court has applied this definition to questions of federal civil jurisdiction and tribal jurisdiction.
California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208 (1987); DeCoteau v. Dist.
County Court for Tenth Judicial Dist., 420 U.S. 425, 427 n.2 (1975). Therefore, although the
Quapaw Tribe acquired possession of the allotments pursuant to ILCA in 2007, the individual
parcels have always been Indian land and Indian Country.

The title of restricted fee land is held by the Indian tribe with specific federally-imposed
/4
restrictions on its use and/or disposition. As the Supreme Court noted in Oklahoma Tax
Commission v. United States, “[t]he power of Congress over ‘trust’ and ‘restricted’ lands is the
same and in practice the terms have been used interchangeably.” Okla. Tax Comm’n v. United
States, 319 U.S. 598, 618-19 (1943) (citation omitted).

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These factors are interrelated and must be balanced against each other. Id.

ARGUMENT

Plaintiff fails to make a sufficient showing on any of the elements required to justify a

preliminary injunction, and its motion should be denied.

A.

Plaintiff cannot show a substantial likelihood of success on the merits.

1.

The United States is not the proper party to enjoin.

Plaintiff seeks to enjoin the Secretary, “and all those acting in concert with him,” from

performing any further construction on the property and from operating the casino “until the

Secretary has complied with . . . NEPA.” Mot. at 2. The Defendants are not engaging in any

construction on the property; the Quapaw Tribe is doing so. Therefore, if the Court were going

to enjoin construction activities on the Meh-No-Bah Allotment, it would have to enjoin the

Quapaw Tribe, not the United States. However, the Quapaw Tribe is not a party to this case and

cannot be joined by the Plaintiff because it has sovereign immunity from suit. Okla. Tax

Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (“Indian

tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their

members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent

a clear waiver by the tribe or congressional abrogation.”) (citations omitted).

Although the United States does hold the Meh-No-Bah Allotment in trust and restricted

fee for the Quapaw Tribe, the Tribe is a domestic dependent nation with inherent sovereign

authority of its members and territories. As such, once the Meh-No-Bah Allotment was

transferred in trust and restricted fee, the United States has no role in regulating construction

activities on it, unless Congress establishes such a regulatory role. Plaintiff fails to identify

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legislation providing the United States with such a regulatory role. The United States only has a

role in transferring the land, pursuant to ILCA, and in regulating the gaming operation through

IGRA. At this point, no gaming is being conducted and there is no federal law which provides

the United States with the authority to regulate a Tribe’s ability to engage in construction on its

land.

Moreover, the construction is not illegal and the United States has no authority to stop the

Quapaw Tribe, a quasi-sovereign entity, from engaging in lawful activity on its land. The fact

that the United States has set aside the Meh-No-Bah Allotment as trust and restricted fee Indian

lands on behalf of the Quapaw Tribe does not endow the United States with the authority to halt

the lawful activities of the Tribe on that land. /5

“In addition to broad authority over intramural

matters such as membership, tribes retain sovereign authority to regulate economic activity

within their own territory.” Nat’l Labor Relations Bd. v. Pueblo of San Juan, 276 F.3d 1186,

1192-93 (10th Cir. 2002) (citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982);

Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-53

(1980)).

2.

The QTA bars Plaintiff’s NEPA claims.

Plaintiff also cannot show a substantial likelihood of prevailing on the merits of its claims

that the Secretary violated NEPA when acquiring the Meh-No-Bah Allotment. Plaintiff

challenges the Secretary’s decisions regarding the acquisition of the Meh-No-Bah Allotment,

As stated earlier, the portion of the Tribe’s property that lies in Cherokee County, Kansas, where
/5
Plaintiff is located – the site of the proposed parking lot – is owned by the Tribe in fee simple, so
the United States lacks any connection to that portion of the land. The State of Kansas regulates
that portion.

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claiming that the Secretary violated NEPA in the acquisition process. Compl. ¶¶ 1, 17, 22, 23,

38, 43; Mem. in Supp. of Mot. at 21-26, 28-34. Plaintiff is attempting to invalidate these land

acquisition transactions by asserting that the Secretary failed to comply with NEPA. Compl. at

11-13.

If Plaintiff were to prevail, the remedy in effect would nullify the Secretary’s decision to

acquire the allotment in trust or restricted fee for the Tribe. However, the QTA prohibits suits

challenging the United States’ title in trust or restricted fee Indian lands. See Neighbors for

Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-62 (10th Cir. 2004) (citing United States v.

Mottaz, 476 U.S. 834, 843 (1986)). The QTA waives the United States’ sovereign immunity for

suits to adjudicate disputed title to lands, but explicitly states that the waiver does not apply to

trust or restricted Indian lands. 28 U.S.C. § 2409a(a). For a suit to be prohibited under the QTA,

a plaintiff need not explicitly characterize its action as one seeking to quiet title in Indian lands;

rather, the relevant factor is the nature of relief sought. See Neighbors, 379 F.3d at 961-62

(action seeking declaratory judgment that trust acquisition of Indian lands was null and void

barred by the QTA). /6

Therefore, Plaintiff’s characterization of its suit as one challenging,

pursuant to the APA, alleged violations of NEPA is immaterial, as is the fact that Plaintiff does

not claim any adverse ownership interest in the property. It is the impact of the relief sought that

dictates the applicability of the QTA. See Neighbors, 379 F.3d at 961-62; Metro. Water Dist. of

S. Cal. v. United States, 830 F.2d 139, 143 (9th Cir. 1987) (“Although MWD may not be seeking

A plaintiff cannot avoid the impact of the Quiet Title Act by characterizing his claim as falling
/6
under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Block v. North Dakota ex rel. Bd.
of Univ. & Sch. Lands, 461 U.S. 273, 286 n.22 (1983); see also Alaska v. Babbitt, 182 F.3d 672,
674 (9th Cir. 1999); Ducheneaux v. Sec’y of Interior, 837 F.2d 340, 342 (8th Cir. 1988); Florida
v. U.S. Dep’t of Interior, 768 F.2d 1248, 1254-55 (11th Cir. 1985).

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to quiet title to the land in itself, it seeks a determination of the boundaries of the Reservation.

The effect of a successful challenge would be to quiet title in others than the Tribe.”).

The Eleventh Circuit has considered precisely this question and held that the QTA

forecloses judicial review of the Secretary’s decision to take land into trust for Indians once that

land is in trust. See Florida v. U.S. Dep’t of Interior, 768 F.2d 1248, 1248-55 (11th Cir. 1985).

In Florida, the State filed a suit under the APA challenging the Secretary’s decision to take land

into trust for the Seminole Tribe. Id. at 1250. The State argued that the QTA did not bar its suit

because the suit was not a quiet title action: the State did not seek to quiet title to the land at

issue, nor did it assert any property interest in the land. The Eleventh Circuit rejected the

argument and held that the QTA barred the State’s claim:

Although technically the suit in the instant case is not one to quiet
title, we conclude that Congress’ decision to exempt Indian lands
from the waiver of sovereign immunity impliedly forbids the relief
sought here. . . . Here, the appellants seek an order divesting the
United States of its title to land held for the benefit of an Indian
tribe. . . . Congress chose to preclude an adverse claimant from
divesting the United States’ title to Indian lands held in trust. It
would be anomalous to allow others, whose interest might be less
than that of an adverse claimant, to divest the sovereign of title to
Indian trust lands. Hence we conclude that the APA waiver of
immunity is inapplicable in this instance.

Id. at 1254; see also Shawnee Trail Conservancy v. U.S. Dep’t of Agric., 222 F.3d 383, 386-88

(7th Cir. 2000) (holding that the QTA barred the plaintiffs from bringing an APA challenge to

the Forest Service’s decision to close certain lands covered by the alleged easements, even

though the plaintiffs sought only to challenge the closure of the lands and did not seek to quiet

title to the lands), cert. denied, 531 U.S. 1074 (2001); Shivwits Band of Paiute Indians v. Utah,

185 F. Supp. 2d 1245, 1249-52 (D. Utah 2002) (holding that the QTA prohibited the plaintiffs

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from challenging a trust acquisition), aff’d, 428 F.3d 966 (10th Cir. 2005).

Plaintiff cannot circumvent the terms of the QTA by crafting its allegations as APA

claims asserting a violation of administrative procedure, NEPA, or any other statute. Therefore,

Plaintiff’s attempt to invalidate these land transfers by claiming that the Secretary failed to

comply with NEPA is barred by the QTA.

3.

Plaintiff’s NEPA claims are moot.

Plaintiff also cannot show a substantial likelihood of success on the merits with respect to

its claim that the Secretary violated NEPA. Compl. ¶¶ 1, 17, 22, 23, 38, 43; Mem. in Supp. of

Mot. at 21-25, 28-34. With regard to any NEPA analysis that was performed before the lands

were transferred to the Tribe, Plaintiff’s NEPA claims are moot because the federal actions that

triggered NEPA compliance, the transactions through which the Meh-No-Bah Allotment was

acquired, have already been completed. “A claim that the defendants violated the NEPA is moot

when the action complained of has been completed and no effective relief is available.” Karst

Envtl. Educ. & Prot., Inc. v. U.S. Envtl. Prot. Agency, 403 F. Supp. 2d 74, 82 (D.D.C. 2005)

(citing Fund for Animals v. U.S. Bureau of Land Mgmt., 357 F. Supp. 2d 225, 230 (D.D.C.

2004)), aff’d, 475 F.3d 1291 (D.C. Cir. 2007). Here, the actions complained of – the transfer of

the Meh-No-Bah Allotment – have been completed and cannot be reversed. For the same reason,

no meaningful relief is available to Plaintiff:

[A]ny claim seeking to re-examine issues unique to the trust
acquisition is moot because the court is without authority to
provide any relief. “When events occur that prevent the . . . court
from granting any effective relief, an issue is moot.” Casad v.
United States Dep’t of Health & Human Servcs., 301 F.3d 1247,
1254 (10th Cir. 2002). Assuming for the sake of argument the
district court considered the merits of [Plaintiff’s] various claims

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and concluded the Secretary had not complied with the National
Environmental Policy Act or the trust acquisition regulations, the
district court could theoretically order the Secretary to now
consider the appropriate factors. The district court, however, has no
power to divest the United States of the property and [Plaintiff]
does not allege the Secretary has power to reconsider its decision.
Requiring the Secretary to re-examine its trust acquisition decision
would not provide [Plaintiff] with any meaningful relief and would
be a waste of agency resources – not to mention the judicial
resources that would be consumed in evaluating the sufficiency of
the Secretary’s initial considerations. Since the Secretary has
acquired title to the property, the issue is moot.

Neighbors, 379 F.3d at 965. Plaintiff’s contention that it would receive some kind of meaningful

relief if the Secretary were required to revisit the decision to transfer the undivided interests in

the Meh-No-Bah Allotment to the Tribe is false.

4.

Plaintiff’s IGRA claims are not ripe for review.

Plaintiff also characterizes the transfer of undivided interests as violating IGRA. Mem. in

Supp. of Mot. at 18-21. IGRA has nothing to do with land acquisition or transfer. Indeed, the

Secretary has no authority to acquire or transfer land pursuant to IGRA. Therefore, at the time

the Meh-No-Bah Allotment was transferred to the Quapaw Tribe, no IGRA review was necessary

because land acquisition and transfer does not implicate IGRA.

Furthermore, there has been and is no violation of IGRA because gaming is not occurring

on the property. IGRA prescribes rules governing the operation of gaming by Indian tribes. See

Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 462 (D.C. Cir. 2007);

City of Roseville v. Norton, 348 F.3d 1020, 1024 (D.C. Cir. 2003). Together with 18 U.S.C. §

1166, IGRA creates a scheme of civil and criminal actions that may be used to prevent and

punish Indian gaming that does not conform to IGRA’s prescriptions. See United States v. Santa

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Ynez Band of Chumash Mission Indians, 983 F. Supp. 1317, 1320 (C.D. Cal. 1997). When no

gaming has taken place, however, there can be no violation. The act of transferring land pursuant

to ILCA does not violate IGRA and the mere construction of a casino building or facility does

not violate IGRA.

For these reasons, Plaintiff’s contention that the Secretary has violated IGRA by

transferring the undivided interests in the Meh-No-Bah Allotment is misdirected and any IGRA

claims are unripe for review. Accordingly, Plaintiff has not shown a substantial likelihood of

prevailing on its claim of an IGRA violation by the Secretary.

5.

The Section 151 regulations are irrelevant.

The land acquisition provision of the Indian Reorganization Act, 25 U.S.C. § 465, and its

regulations, 25 C.F.R. Part 151, are irrelevant. All of the parcels of land were acquired pursuant

to ILCA, not the IRA. As such, the IRA and its regulations do not apply.

Plaintiff’s first argument is that a statute must contain an exemption from the IRA and its

regulations. Mem. in Supp. of Mot. at 26. There is simply no legal support for the argument that

the IRA applies to all acquisitions unless the statute contains an exemption. There are numerous

statutes that provide the Secretary with the ability to acquire land into trust or restricted fee; the

IRA is simply one of those statutes, but it is not the only statute. For example, there are specific

settlement acts that provide distinct authority for the Secretary to acquire land. See, e.g. Pokagon

Restoration Act, 25 U.S.C. § 1300j-5. In this instance, ILCA provides the Secretary with the

specific authority to transfer existing Indian lands into trust or restricted fee.

Plaintiff next argues that Section 2202 of ILCA requires the application of the IRA and its

regulations to land transfers. The purpose of Section 2202 is to amend the IRA, 25 U.S.C. § 465,

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to extend its provisions to all tribes, regardless of whether those tribes were organized under the

IRA. See H.R. Rep. 97-908, 1982 U.S.C.C.A.N. 4415, 4416 (1982). Prior to this amendment, it

was unclear whether tribes that chose not to organize under the IRA could use the IRA’s land

acquisition authority. In passing ILCA, Congress amended the IRA to clarify this issue.

Furthermore, Congress also provided that nothing in Section 2202 supercedes or amends any

specific acts regarding the acquisition of land for Indians in any specific tribe, reservation or

state. Id.

Plaintiff’s simply misapprehend the IRA and its application. The IRA does not apply to

trust-to-trust or restricted fee-to-trust land transfers under ILCA and, therefore, the IRA and its

regulations are irrelevant.

B.

Plaintiff is not entitled to injunctive relief because it has failed to show sufficient
harm.

Plaintiff improperly seeks extraordinary relief from this Court without demonstrating that

it will suffer irreparable harm absent an injunction. Contrary to the requirement that a plaintiff

show that it will suffer an injury that is “both certain and great” and “of such imminence that

there is a ‘clear and present’ need for equitable relief to prevent irreparable harm,” Wisc. Gas Co.

v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985), Plaintiff suggests only irrelevant harms stemming

from lawful activity and speculative harms that might result from the denial of the requested

relief. For example, Plaintiff complains that the Tribe is using a County road “to bring heavy

equipment and materials onto the construction site.” Mem. in Supp. of Mot. at 36. As described

above, however, the construction activity occurring on the property is entirely lawful, and

Plaintiff cannot claim any legitimate injury stemming from the Tribe’s lawful activity. All of the

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other injuries Plaintiff cites involve traffic-related maintenance and public safety costs that would

not occur unless and until the casino becomes operational. The physical construction of the

casino resort may be largely complete, but IGRA imposes a variety of regulations and

requirements that must be complied with before Indian gaming may occur, see, e.g., 25 U.S.C. §§

2710, 2719, and the facility is by no means ready to open its doors. The harms Plaintiff identifies

from allowing the Tribe’s lawful construction activities to continue are not sufficiently great,

imminent, or irreparable to warrant the extreme remedy of an injunction.

Moreover, Plaintiff has delayed bringing this action until the resort is near completion.

Delay by a plaintiff in seeking injunctive relief is probative of a lack of irreparable hardship to

the plaintiff. In Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213-14 (9th Cir.

1984), the Court held that a delay in seeking a preliminary injunction is a factor to be considered

in weighing the propriety of relief. The court quoted from Gillette Company v. Ed Pinaud, Inc.,

178 F. Supp. 618, 622 (S.D.N.Y. 1959), stating that “[a] preliminary injunction is sought upon

the theory that there is an urgent need for speedy action to protect the plaintiff’s rights. By

sleeping on its rights a plaintiff demonstrates the lack of need for speedy action.” Lydo

Enterprises, 745 F.2d at 1213-14. In Oakland Tribune, Inc. v. Chronicle Publishing Company,

762 F.2d 1374 (9th Cir. 1985), the court again noted that a delay in seeking a preliminary

injunction “implies a lack of urgency, and irreparable harm.” Id. at 1377; see also Quince

Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989) (delay in seeking

injunction indicates absence of irreparable harm and is a relevant factor to include in balance);

Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (plaintiff’s delay in seeking relief

indicates “reduced need for such drastic, speedy action” as an injunction); Scott-Blanton v.

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Universal City Studios Prods. LLLP, 495 F. Supp. 2d 74, 80 (D.D.C. 2007) (delay in bringing

motion for injunction weighs against finding of irreparable harm). Here, Plaintiff had inquiry

notice of the construction activity and of the Quapaw Tribe’s anticipated use of the facility, but

waited until construction was largely complete to bring this lawsuit.

C.


An injunction would harm the United States and does not serve the public interest.

Because the United States has no statutory authority to regulate or halt lawful

construction activity engaged in by the Tribe, granting the injunction sought by Plaintiff would

place the United States in the untenable position of being held responsible for stopping lawful

activity over which it has no authority. /7

As a result, to order an injunction would harm both the

United States and the public interest. Accordingly, the third and fourth factors that a court

should consider when addressing a motion for a preliminary injunction mitigate in favor of

denying Plaintiff’s motion.

CONCLUSION

For the foregoing reasons, and particularly due to Plaintiff’s failure to meet its burden to

show likelihood of success on the merits, the Court should deny Plaintiff’s request for the

extraordinary relief of a preliminary injunction.

Dated: March 3, 2008

Respectfully submitted,

RONALD J. TENPAS
Assistant Attorney General
United States Department of Justice
Environment and Natural Resources Division



/s/

Furthermore, an injunction would cause financial harm to the Tribe, which has invested millions
/7
of dollars in building a facility that is now approximately 80 percent complete.

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Case 1:08-cv-00317-RWR Document 10 Filed 03/03/2008 Page 15 of 15

GINA L. ALLERY
D.C. Bar No. 485903

AMY S. TRYON
Attorneys
United States Department of Justice
Environment and Natural Resources Division
Indian Resources Section
P.O. Box 44378
L’Enfant Plaza Station
Washington, D.C. 20026-4378
(202) 305-0261



OF COUNSEL:
MARIA WISEMAN
United States Department of the Interior
Office of the Solicitor
Washington, D.C.

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Exhibit 1

12/21/2007 IL:55 FAX

Case 1:08-cv-00317-RWR Document 10-2 Filed 03/03/2008 Page 2 of 3
~001

United States Department of the Interior

OFFICE OF "I’FIE SECRETARY

Washington, DC 20240

DEC 0 21}07

The Honorable Pat Roberts
United States Senate
Washington, D.C. 200510

Dear Senator Roberts:

Thank you for your letter of October 24, 2007, requesting our review of an October 18,
2007, letter from the Board of County Commissioners of Cherokee County, Kansas
(Board). In that letter, the Board asks several questions regarding tbe proposed
Downstream Casino and Hotel to be operated by the Quapaw Indian Tribe of Oklahoma
(Tribe).

ll~e proposed project will consist era casino/hotel complex, infrastructure ’and other
amenities on approximately g5 acres in Oklahoma, surface vehicle parking and an access
driveway on approximately 63 acres in Kansas, and an extension of the access driveway
on approximately 30 acres in Missouri.

The Board’s Hrst question is whether the land on which tim gaming estabt/sim~ent will be
located has been taken into trust fbr the Tribe. The gaming establishment will be located
on the Mah-No-Bah allotment. The land ha.,; been acquired in trust through the Indian
Land ConsoLidation Apt (ILCA), except for an undivided 1/6 interest which is the subject
of a trust application pending before the Eastern Oklahoma Regional Director of the
Bureau of Indian Affairs (B[A) under 25 CFR Part 151.

The Board’s second question relates to the application of the Indian Gaming Regulatory
Act (IGRA) to the parcel on which the gaming establishment will be located, along with
whether IGRA ’also impaeta the non-gaming parcels in Kansas and Missouri. The BIA
"has informed the National Indian Gaming Commission (NIG-C) that the gaming
establishment will be located within the former reservation of the Quapaw Tribe in
Oklahoma (copy enclosed). We are not aware of an NIGC opinion on whether the
gaming parcel in Oklahoma qualifies as "Indian lands" under IGRA, It is our position
that IGRA does not require the proposed parking lot in Kansas to be taken into trust as no
gaming activities will be conducted thereon.

The Board’s third question relates to compliance with the requiremenm of the National
Environmental Policy Act (NEPA). The BIA did not complete either an environmental
assessment (EA) or an environmental impact statement (EIS) for this project because it
determined that one is not required for the ILCA acquisitions, tlowever, the BIA will
comply with NEPA requirements for the pending acquisition of the I/6 interest in the
Meh-No-Bah "allotment.

12/2L/2007 It:55 FAX

Case 1:08-cv-00317-RWR Document 10-2 Filed 03/03/2008 Page 3 of 3
~002

The Board’s last question is whether the Trib~ has enterexl into a managemeat contract
for this casino. Our understanding is that the Tribe intends to manage the gaming
establishment itself rather than retain a management company.

We hope that this letter addresses the Board’s conem-ns. Thank you for your interest in
this important issue.

Sincerely,

Enclosure

Assistant Secretary - Indian Affairs

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 1 of 21

Exhibit 2

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 2 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BOARD OF COMMISSIONERS OF CHEROKEE
COUNTY, KANSAS,

Plaintiff,

KEMPTHORNE, et al.,

Defendants.

Case No. 1:08-cv-00317-RWR
Judge Richard W. Roberts

Declaration of Gina L. Allerv

l, Gina L. Allery, declare as follows:

I.

I am a trial attorney with the Unites States Department of Justice, Environmental

and Natural Resources Division/Indian Resources Section. I am licensed to practice law in the

District of Columbia.

2.

Attached hereto as Exhibits 2(A)-(E) are true and correct copies of the deeds for

the transfer of land from the Individual Indian landowners of the Meh-No-Bah Allotment to the

Quapaw Indian Tribe.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge, information and belief. Executed this 3rd d}y of March 2008.

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 3 of 21

Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
Indian Resources Section
P.O. Box 44378
L’Enfant Plaza Station
Washington, D.C. 20026-4378
(202) 305-0261

2

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 4 of 21

Exhibit 2(A)

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 5 of 21

5-544~"

k~y
ILCP

AIIo’~tee: S~ ~xhlblt ’A’
Tract No: 8~ F~xh~bR W
Tran. NO. 920-10~0003-07

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

DEED TO RESTRICTED INDIAN LAND

THIS iNDENTURE Made and entered into this ,47 day of

2007, by and between:

Yannah F. Stephenson ID # 920U002967, hair of allottee, a married woman dealing with her

own separate property on which she does not reside, residing at Broken Arrow, Oklahoma. party of the
first part,

And the
part:

USA in TnJ-.~t for the Qual~a~ Tribe of Indians of O~hg_ma

patty of the second

WITNE$SETH, That said party of the first part. for consideration of nine4housand five-hundred dollars
and not100 ($9,500.O0).

In hand paid, the receipt of which Is hereby acknowledged, does hereby grant, bargain, sell, and
convey unto said party of the second part the following described real astate and premises situated on
lands located within the Quapaw Tribe of Ok~ahema’s judadic~onsl boundary, to-wit:

See attached Exhibit ’A’ for undMded interests,
Legal descriptions and considere~ons
A~t located within the Indian Meridian.

This conveyance is made pursuant to the prov~lons of the Indian Land Consolldatidn Act Amendments
of 2000, Publlo Law 106462 (114 Star,, 1992). as amended by the Amedcen Indian probate Reform
Act of 2004, Public Law 108-374 (118 ~-’tat., 1773). All revenue from said land interest(s) is
encumbered by the United States of Amedca until the purohase price has been rapaid or the
encumbrance is released by the Secretary.

Together with ~1 impl~vements [hereon and the appurtenances thereunto belonging,

And the said party ot the first part, for herself and her heJrs, executors, and administrators, does hereby
covenant, promise, and agree to and with the said party oftbe second part, its successors and assigns,
that she will forever warrant and defend the said premises against the claJras of all persons, claiming or
to claim by, through, or under herself only.

To have and to hold said described premises unto the said party of [he second pad, its successors,
exeout.ors, administrators, and assigns, forever,

IN WtTNE~ES WHEREOF, That said par~ of the first part has set her hand and seal the day and
year ~rst above w~itten.

WITNESSES:

[SEAL]

[SEAL]

| L ED

EASTERN OKLAHOMA

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 6 of 21

Acknowledgements must be in accordance with the forms presented by the State in which the land is
situated.

STATE OF Oldahorna ")

COUNTY OF ~D-/~C~ u.’~- . I

BE , , EMEM ER O. on thi, d.yo, Ap:

the undersigned, a ___N t P~ in and for the County’and State aforesaid,

Yanneh F. Stephen,90

, A.D. 2007 before
personally epp~red

to me personalS," known te be the identical person who executed ~ within instrument of writing, and
such person duly acknowledge the execution of the same.

IN TESTIMONY WHEREOF, I have hen=unto subsoribed my I;~ne and affixed my seal on the day and
year last herelnabova written. I x) --,

My Commission numbec O t t~ 1 3 &, I 7

UNITED STATES

DEPARTMENT OF THE INTERIOR

Bureau of Indian Aff~Jr.~

Miami Agency

Mtamt, Oktahoma 74055

................... Notan/~ublic

(title)

**llll I~ Jlll~l

The wfthTn deed is hereby approved: Pursuant wffh authorfty dele£rated by 209 DM 8, 230 DM 1,3 IAM
4.1, and t~e Muskogee Area Addendum g801 2 31AM 4 Issued/,(~24/1999,~

L

DoCuM£NT NO~
EASTERN OKLAHOMA
TITLE SERVICES OFFICE

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 7 of 21

~,iA RES

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 8 of 21

Exhibit 2(B)

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 9 of 21

.,~tottee: See Exhibit ’A’
Tract No: See Fxhlb~t "A’
TrzJL No. 920-100002-07

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIR8

DEED TO RESTRICTED INDIAN LAND

THIS INDENTURE Made and entered into this ~ day of_~ 2007, byand betwsan:

George R. McWatters Jr. ID # g20U002968, hair of allottee, a married man dealir~J with his own

eep~ate plopQrty on which he does not reside, residing at Quapaw, Oklahoma, party of the first part,

And the
part:

USA in Trust for the QuaDaw Tribe of Indians of Oklahoma

party of the second

WiTNESSETH, That said party of the first part, for consideration of nlne-thmts~nd five--hund,%’d dollars
and no/100 ($9,500.00).

In hand paid, the re~ip~ of which iS hereby acknowledged, does hereby grant, bargain, sell, and
convey unto said party of the second part the following de’~cribod real estate and premises situated on
lands located within the Quapaw Tribe of Oklahoma’s jurisdictional boundary, to-wit:

See attached Exhibit ’A" for undivided interests,
Legal descriptions and considerations
All locate~ within the Indian Medd[an.

Thi.~ ecmveyance is made pursuant to the provisions of the It~dian Land Consolidation Act.~llendments
of 2000, Public Law 106~t62 (114 $tat_, 1992), as amended by the American Indian Probate Reform
Act of 2004, Public Law 108-374 (118 Star,, 1773), All revenue from said land Interest(s) is
encumbered by the United States of America until the purchase price has been repaid or the
encumbrance is released by the F.,ecretary.

Together wi~l all imprew~ments thereon and the appurtenances thereunto belonging.

And the said party of the first part, for himself and his hairs, executors, and administrators, does hereby
covenant, promise, and agree to and with the said party of the second pat, its successors and assigns,
that he wig forever warrant and defend the said premfees against the claims of all persons, claiming or
to claim by, through, or under himself only,

To have and to hold said described premises unto the said party of the =econd part, its successors,
executors, administrators, end assigns, forever,

IN WITNESSES WHEREOF, That said party of the first part has s~t his hand and seal the day and year
first above wrlltan.

[SEAL]

[SFAI ]

| LE

EASTERN OKLAHOMA

;]~ v]l tlv$;:ll LOOU9 lnr

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 10 of 21

Acknowledgements must be in accordance wfth the terms presented by the 8tate in whic4q the land is
situated.
~TATE OF OF, to-J~,9,~ __)
COUNTY OF t3~. )
BE IT REMEMBERED, Thatonthls ,..~"7"~r~" daycf ~’{")~, ~ ....
the undersigned, a Notary Pubiic In and for the County and ~tate aforesaid, personally appeared

A.D. 2007 before

) $$,

@e0rqe R. McWaRors Jr.

to me personally known to be the identical person who executed the within Instrument of wfi’dng, and
such person duly acknowledge the execution of the same,

IN TESTIMONY WHEREOF, ] have hereunto subscribed my name and affixed my ~al on the day and
year iast herelnabovc wdtten.

~).{2.J£b [X.~, ~ X -~ f ~

r~y com=mm~ expires: q "&- O9 ........
My Commission nomber."~r.~l & I 3 I~ 1’7

UNITED STATES

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Miami Agency

Miami, Oldahoma 74055

The within deed is hereby approved: Pursuant with authority delegated by 209 DM 8,230 DM 1,3 L/M~
4,1, and the Muskogee Area A~dendum 9901 2 31AM 4 issue~6/24/19~.

~I~ 8

ntl~ .......

# ¯

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 11 of 21

¯ .r0

i-.~9

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 12 of 21

Exhibit 2(C)

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 13 of 21

F~X ,~0, @IB5427202

lLCf’

Ailott~: Bee E~ibiI ’A’
Tn~l No: 6ee E~lbJI ’A’
Tra~. No. g2(~10-0022~O7

U/~TED~TATE5

OP, PARTMENT OF THE I~R
BUREAUOP|I~)IANAFFAIR$

DEED TO RESTRIErED INDIAN LAND

TH~ INDENTUR@, Made and entered Into ~ls ~ day of ~J/_.~, 2007, b~’ and bsbvee~;

Jqn C~bed I~[augh, ID # ~QSUQ1(IO20, hair of ,Itottee, ~ s~ia n’~n deat~g with h~

s~p~rat¢ property oq which he ~oas pot reside, residing at Blue~cket~ Oidehorr~, p~ of the fll~! part,

And Ihe
p=r~:

U~A I~ TPaa¢ for ~ QUa~w Tdbe of l~lans of Ok~hon-~

, pa~ty of the ~e~ond

WITHESsETI6, Th~ said p~liy of the I1r~ part, for ~r~ml~W~l of eix-thousand threa-t~Jndmd fi’-,Ir I.¥.
three dollars and ~13 ~iO0 ($l~,333,33).

II~ hand l~id, Ihe r~tpI of Which i~= I~|reby ack~, do~s hereby grant, bargain, sell arid
convey ~o said !~ ly oft,he ~nd part the fotlow’~ "dsso’-ibad i’eai ~iato and pnm’~ ~Ituated on
k~n~ ~ed ~thin ~ Q~apaw T~b~ of O~k~homa’s ju~dic.tional b<~mda~’, to-wit:

~e =ttech~l ExPdbit °A’ !or cff’~dlvtdod Interests,
I-eg~ de=crlpti~is and considerations
All kx:ated within the It’,diem Meridian.

Ttlis coqveya~ce Is rla~e p~st,tam to the prOvisia~ls of be ~ Land Car~.~lidatiog Act Am~drnants
oi’ 2o~0, pub!k: Law 108-462 (114 Star., 1992), a=. =met’~’d by the Areedr.,an Indian Probate R~form
Act of 2004, Publk t.aw loB~374 (1t6 St’at, 1773)~ M mvent~ [rom said-land Interest(s) Is
etl~red by the Ur~d Staiz~ o~ A,,Tmrloa ~ the pur~ase price ha= been mt~IId Or the
~mbr~n~ t~ reie~sed ’by the $ect~taP~.

Tc~e~er v~ ~ imp;ovemenls there~n and the appurteflance~ thereunto belonging.

t~e sakl party of Ihe fuel part, for hJm~ and hie helps, ex:ecu~r~, and e~Inls~’~or,J, does herel~

cov~r~ant, pfoml~, a~d agree to and wl~ the =aid par;’/of t~. second p~t, I~ =ucce~m:~ and assigns,
th~ I~ ~ forev~ w=,’r=~ and ~k=fend ~ s~ld pr"~’~s agmnst the (cid:128)~n’B of ~ p~lY,~,s, d~m, tog or
t~ ~!~ by~ ti~ough, ~,r ~f~der h~!l’ only.

To t’~ve and to hold s~ld ~,t~rlbed praises u~tothe saU pady of the ~ pert, IIis su~esso~,
~X~u~, edrntnlsttalor~,and =ssigos, forever.

IN WITHE,.SSES WHEREOF, That i~w:l ~ o( ~ f~t I~rt ~s set his hand and s~al ~= day end y~=
/k~t aboVe Wrllten.

..... ----------- [~I

[~.~.)

L

7..

I~AST~N OKLAHOP,~

T!TL~ ,~RVICE$ OFFICF

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 14 of 21

Acknowledgements ,~nu~ be ~n ~ordance w~th ~e forms i~’e~nte~ by the ~t~e In which the I~nd is
eituated.

BE IT REMEMBERE 3. l’hat’o~ th~ ~ d,~y of~ A.D, ~ bsfore
1Pro ut~ffarsigne¢l, ~ ~.~ II1 end for ff.,e ~ and Stats ~foresaid, per~oflatly appea~ed
, Jan Colt~rt K tlo~ ............
t~ me per~Onaly kno~’n to i~e the idenffcal pemcm wl’~ e<_xeculed the wilhm iniitrum-enl d writlnlil, end
such persoft dUly il~,lowledge file exe~n of ~ same.

,

IN TESTIMONY WHEREOF, I have hemurtto s~ub~ my r~rr/~.and ~d my seal on ~ne day and
year la~ h~elnabov~ wdttan,

/

.

(t~tle)

ii1,,,,,,,,, ,

\ 2k!

~/lll~lilfllll*tll~’l

UN~r~ ~TATES

DEPARTMENT OF THE INTERIOR

~un~u of Indian Affairs

Miami .~gen~

M~amL ~¢rw 74055’

The ~n deed ~ her¢r~y approved; P~ua~ ~ ~li~rity de.legated by 20G DM B. 230 DM 1,3 IAM
4.1, wld ff~e M~jskegee ~ Adde~tl.lll1900’I 2 3IAM 4 L~ 6.~2~1 gg9.

F| L

TITLE S EP~VI~E.~ OFFIOE

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 15 of 21

t,
0

U~
F"

0

©

0,..

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 16 of 21

Exhibit 2(D)

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 17 of 21

,’~..,.~46

I[GP

Ktottee: See 5amibit ’A’
TraCt Nu: See ~xhibit ’A’
Tren. NO. 920.10.0029-07

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

D ED TO RESTUDieD ,ND

THIS INDENTURE, Made and entered into this [Q’~’ day of --~"J[-V--’ 2007, by end between:

Bobbie Rae Staff. ID # 926U001716, heir of allottee, a single woman dealing with her own

.~eparate p~oporty on whid~ she do~s not reside, residing at Oklahoma City. Oklahoma. party of the first
pa~t.

And the
part:

USA in Trust fQr ~t.# OqBPPW Td~ qf Indians of Oklahoma

palty of the second

WITNE.SSETH, That said party of the first part, for consideration of six-thousand three-hundred thirty-
three dollars and 33J100 ($6,333.33)

In han~ paid, the’receipt of which is hereby acknowledged, edaa hereby grant, bargain, sell. and
convey unto said party of the second part the following described real estate and promises situated on
lands (Dueled within the Quapaw Tribe of Oklahoma’s jud~i~onal boundary, to-vAt:

¯ Sea attached Exhibit ’A’ for undivided interests,
Legal dascrtp~ons and considerations
All fonated within the Indian Meridian.

This conveyance is made pursuant to the provisions of the Indian Land Con~’~olklatlon Aot Amendments
of 2000, Public Law 106-462 (114 Slat, 1992), as amended by the American Indian Probate f~torm
Act of 2004, Public Law 108-374 (118 ,~tat., 1773). AII revenue from said land interest(s) is
encumbered by the United States of America until the purchase pri(:~ has been repaid or the
enc~Jmbren{x-~ l~ rele,~.’ced by the Sw, l’~ry,

Together with all improvements thereon and the appurtenances thereunto belonging.

And the said pad~ of the first part, for herself and her heirs, executors, and administrators, does hereby
covenant, premise, and agree to and with the said party of the seoond part, its surfs and assigns,
that she vail forever warrant and defend the said premises against the claims of all persons, r.,laimIng or
to claim by, through, or under herseff only.

To have and to hold said described premises unto the said party of the second part. its successors.
executors, administrators, and assigns, forever.

IN WITNESSES WHEREOF, That sal’~ party of the nrst part has set her hand and seat the day and
year first above written.

WITNESSES:

/Bobble Rae S’tarr - Y

[Se.AL]

. [SEALJ

[S~Aq

[SEAL]

-l L E

EASTERN OKLAHOMA
TJT/E ~ERVICE8 OFFICE

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 18 of 21

Acknowledgements must be in accordance with the forms pre.sented by the State in which the land is
situated,

STATE- OF

) aS,
/

-- l

COUNTY OF /’’h~4-t>~,, ’~f.
BE IT PJEMEMBERED, That on this ~J~ dayof ,-~, c ~ ~A. ,A.D. 2007 before
the undersl0ned, a Notary Public in and for the County and State ~foret~ld, pet~sonally appeared
to me personalty known to be the identical person who executed the within instrument of writing, and
such p~rson duly acknowledge the execution of ~e same.

Bobble Rae Start

IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my seal on the day and
year last hereinebove wr~en.

Notary Public
(title)

U

CommiSsion expires: ~ - ~,-~ ~

My
My Commission number: C}~ ~":~/’m,

UNITED STATES

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affaim

Miami Agency

Miaml, Oklahoroa 74055

The within deed is hereby approved: Pursuant with authority delegated by ZOO DM 1,20g DM 8, 230
DM 1, 3 IAM 4.1, and Muskogee Area Addendum g901 to 3 1AM 4 issued 6122/1999.

, o0ro,o, oo,o: /y oo7

L
0400038

EASTERN OKLAHOMA
TITLE SERVICES OFFICE

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 19 of 21

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 20 of 21

Exhibit 2(E)

Case 1:08-cv-00317-RWR Document 10-3 Filed 03/03/2008 Page 21 of 21

N0, 106

L ED
07 0 [00034
DOCUMENT NO...__.__.
EASTERN OKLAHOMA

JUt I 2OO7

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

TITLE SERVICE8 OFFICE

DEED TO RESTRICTED INDIAN LAND

THiS INDENTURE, M~de arid entered in~ this t0 d~ of July, 2007, by ar..d bcb~vCen the Se~etzrv of the Ir, terior on ~of t~.

Estate of Billy Lew~ Urquhart, aka Biflv Louis Umaha~. an Indian of the Creel< Nal~n in the .State of Oklahoma, party of the first pad, does
hereby trar~.~fer and convey purst~nt to 25 United States Code ~ 2204 (1) to the Que~aw Tribe of Indi~,ns of.Q.kLahom8. P. Q. Box 765.
Qu=aDaw. OId2haFna 74363, of said rescrvat~n, party of the second pad:

WITNESSETH, That whereas the lands bereJnafter described were allo~ed to Dr tnhe~ted by the said pE~ty of’r.he ~s~ part urger the
prov~ons of legisla~on by Congress pursuant to which said lands am instal(ted or held in bust by the United Stat~s for the benefit of said
grantor and are not subject to t~ion; nor to aliana~on or ~lcumbrance without the oonsent of the Secretary of the Interior, and whec’eas the
said p~’~, of ~ seco~ party t:,~ng an Indian Tr~b~ desires tO acquire said h~i~n described lends st~bject to th~ @ame o~aditbrs., ~¢tkms,
and limitations as to taxation, allanation, or encumbrance as now rest ~ere against;

NOW, THEREFORE, for and in Consideration of the sum of $6,333.33 (SIx thousand three hundred thir~y~htee debars arcd

htee cents); the receipt of which sum is hereby a(;know~ged, the ,said party of the fie~ part dose hereby tnanSfer, set over, end convey to end
unto the said party of the second part all dght, ~tle, and interest of .’;aid par~ of the f~rst part in and to ~e lands and premises situated in t:~
Oounty of Ottawa, S~ate of Oklahoma, denodbed as:

11~ k, terest in the 8E~.4NW¼ of Sect}on 17, Township 29 North, Range 26 Esst of the
Indian Mendian, Ottawa County, oklahoma, containing 40.0 aores, more or less.

ogether with all the improvements thereon arid the appurtenances tJ~exeunto belong~’}g, subject to the express condiffon that the execution of
his deed by the party ~ parties hereto or i~s approval by the Sesretar:/of the Interior shell not operate in any manner to remove m*0, of the
restn~ns now rest~ agaLr~t said lands, otto re~ove any m.,st or other ~nd~ons ~mposed up~ said land as expressed ~ the o~r~ trust
,~r any other patent ~sued thers~re, or any part the~, it being distin~tly understood and agreed that the scope and intent of this deed is
~irnp~y to transfer and convey such right, ttt~, and tntemst as the party of the first pad; now has in sueh lands to the said patty of the enoond
.~art ~Jbjeet to the ~itions, rsatdct}ons, and Iirn~at~ons as now rest there a~ta~nst in the hands of the party of the first part.

TO HAVE AND TO HOLD SAID above-d~..,gbed heirs, ~tots, a(~’tltnisttalm’s, and assigns unto the said patty of the sacond

:s heirs, execu~rs, admi~rs, and a..[email protected] f~rever.

IN W~NESSE$ WHEF~EOF, 3"hat s~ic~ party Of the first p~t has hereuath ~ her b~nd and eeal tl~ day alnd ye~ ~ above verltten.

,q-ATE OF OKLAHOMA

)
)sa.

~ng 8JJpe~ndent, Miami .~ancy, on behal~ of the Est~e

BE IT REMEMBE~D, Thatonthi~ t0~yofJuly, A.D.2OOTbefotetheanderslgned, a N~r,,,Publ~c in and for the County

nd State aforesaid, person~y appeared M~ry Moss. Actm~ Subertht~ndant~Miemi Aaancv to me p~orrally known to be the iden~ca]
person who executed the wlthin instnJrnent of’,witing’, and such pa~On duly acknoMedge the eXeeu’do~ of the same.

IN TESTIMONY WHEREOF, I have hereunto subsa~bed my name and aflfxed my seal on the day and year ~ hereinabove writ~n.

ty Commission expires: .

DEPARTMENT OF THE ~N IP.[~JOR

Bureau ~ Indan Affairs

¯ UN~TE~ ~TATIES

M~rni Agency
M~mi, Oldah~

"pprevad pursuant to authority delegated by 200 DMI, 209 DM 8, 230 DM 1, 3 IAM 4.1, and Muskogee Area Addendum 9901 ~o 3 IAM 4
sued 8/22.t ~ 999.

, (--

~
Ac.titg Sul~rlnteddent

Case 1:08-cv-00317-RWR Document 10-4 Filed 03/03/2008 Page 1 of 3

Case 1:08-cv-00317-RWR Document 10-4 Filed 03/03/2008 Page 2 of 3

Case 1:08-cv-00317-RWR Document 10-4 Filed 03/03/2008 Page 3 of 3

Case 1:08-cv-00317-RWR Document 10-5 Filed 03/03/2008 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

Plaintiff,

BOARD OF COMMISSIONERS OF
CHEROKEE COUNTY, KANSAS

)
)
)
)
)
)
)
)
)
)
)
__________________________________________)

DIRK KEMPTHORNE, et al.,

Defendants.

v.

Certificate of Service

Case No. 1:08-cv-00317-RWR
Judge Richard W. Roberts

I hereby certify that on March 3, 2008, I electronically filed the foregoing UNITED

STATES’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION with the Clerk of the District Court using its CM/ECF system, which notified the
following CM/ECF participant:

Jonathan Abram

HOGAN & HARTSON L.L.P.

555 13th Street, NW

Washington, DC 20004-1109

(202) 637-5600

Fax: (202) 637-5910

Email: [email protected]

/s/

Gina L. Allery
Trial Attorney
United States Department of Justice
Environment and Natural Resources
Division
Indian Resources Section
P.O. Box 44378
L’Enfant Plaza Station
Washington, D.C. 20026-4378
(202) 305-0261
[email protected]

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