January 10,2014 

Leanne Walker-Grant, Chairperson 

23736 Sky Harbour Road 

Box 410 

Friant, CA 93626 

Re: Request for Indian lands legal opinion - 60 acre parcels 

Dear Chairperson Walker-Grant: 

This letter responds to the request of the Table Mountain Rancheria (Tribe) that 

the National Indian Gaming Commission Office of General Counsel (NIGC OGC) issue a 

legal opinion addressing whether 60 acres of land, not located within the boundaries of 

the Tribe's current day reservation but acquired into trust by the United States for the 

benefit of the Tribe, is eligible for gaming under the Indian Gaming Regulatory Act 

(IGRA).' Based on my review, it is my opinion that the land is contiguous to the Tribe's 

reservation as it existed on October 17, 1988, making it exempt from IGRA's general 

prohibition of gaming on after-acquired land. The Tribe also possesses jurisdiction and 

exercises governmental power over the lands. Therefore, the lands are eligible for gaming 

pursuant to IGRA. 

The Tribe requested a legal opinion concerning the 60-acre parcels of land located 

in the Fresno County, California, which are described as follows: 

Parcels 7, 8, and 9 of Parcel Map No. 3179, according to 

the amended map thereof recorded in Book 33 Page 21 and 

as amended in Book 34 Page 94 of parcel maps, Fresno 

County Records. 

The Bureau of Indian Affairs (BIA) confirmed that this land was accepted into trust on 

March 13,2007, and is identified as tribal tract number 551 T5393 in BIA docume~~ts. 

See Letter from Regional Director, Bureau of Indian Affairs - Pacific Regional Office, to 

Esther Dittler, Staff Attorney, NIGC (May 6,2013). 

' In this case, because the lands are already in trust and do not concern whether a specific area of land is a 

"reservation," the tribe may submit its request for an opinion to either the National Indian Gaming 

Commission or the Office of Indi'm Gaming. 25 C.F.R. 5 292.3(a). 

NATIONAL HEADQUARTERS 1441 L St. NW Suite 9100. Washington. DC 20005 Tel: 202.632.7003 Fax 202632.7066 VVWW.NIGE.GOV 

REGIONAL OFFICES Portland, OR: Sacramento. CA: Phoenix, AZ; St. Paul. MN;Tulsa OK 
Applicable Law 

Under the Indian Gaining Regulatory Act (IGRA), a tribe may engage in gaming 

only on Indian lands, 25 U.S.C. 55 2703(4), 2710; 25 C.F.R. 5 501.2, that are within such 

tribe's jurisdiction, 25 U.S.C. $5 2710(b)(l), 27lO(d)(l)(A)(i), 2710(d)(3)(A). Further, if 

the lald upon which gaining is contemplated is not within the liinits of a current 

reservation, the land qualifies as Indian lands only if the tribe exercises "governmental 

power" over those lands. 25 U.S.C. 5 2703(4)(B); 25 C.F.R. 5 502.12(b). IGRA defines 

Indian lands as: 

(A) all lands within the limits of any Indian reservation; and 

(B) any lands title to which is either held in trust by the United States for the 

benefit of any Indian tribe or individual or held by any Indian tribe or 

individual subject to restriction by the United State against alienation and over 

which an Indian tribe exercises governmental power. 

25 U.S.C. 5 2703(4). The NIGC's regulations further clarify the definition of Indian 

lands: 

Indian lands means: 

(a) Land within the limits of an Indian reservation; or 

(b) Land over which an Indian tribe exercises governmental power and that is 

either - 

(1) Held in trust by the United States for the benefit of any Indian tribe 

or individual; or 

(2) Held by an Indian tribe or individual subject to restriction by the 

United States against alienation. 

25 C.F.R. 5 502.12. 

Finally, Section 20 of IGRA prohibits gaming on lands accepted by the Secretary 

of the Interior into trust for the benefit of an Indian tribe after October 17, 1988, unless 

the land falls within certain statutory exemptions or exceptions. See 25 U.S.C. 5 2719. 

One exemption excludes lands which are "located within or contiguous to the boundaries 

of the reservation of the Indian tribe" on October 17, 1988 from the general prohibition of 

gaining on after-acquired trust lands. 25 U.S.C. 5 2719(a)(l). 

Regulations implementing Section 20 of IGRA were promulgated by the 

Department of Interior (Interior) in 25 C.F.R. part 292. Section 292.4 of the rermlations - 

in pertinent p&: 

For gaming to be allowed on newly acquired lands under the exceptions in 25 

U.S.C. 2719(a) of IGRA, the land must meet the location requirements in either 

paragraph (a) or paragraph (b) of this section. 
(a) If the tribe had a reservation on October 17, 1988 the lands must be located 

within or contiguous to the boundaries of the reservation. . . . 

In the regulations, the term "contiguous" is defined as "two parcels of land having a 

coininon boundary notwithstanding the existence of non-navigational waters or a p~~blic 

road or right-of-way and includes parcels that touch at a point." 25 C.F.R. $ 292.2. 

As discussed below, the parcels qualify as Indian lands upon which the Tribe may 

conduct gaming because they are held in trust for the Tribe, the Tribe has jurisdiction 

over these parcels, the Tribe exercises present governmental power over these parcels, 

and the lands satisfy 25 U.S.C. 3 2719(a)(l) and Interior's regulations, 25 C.F.R. $ 

292.4(a). 

Jurisdiction and Exercise of Governmental Power 

For a tribe to be able to conduct gaming under IGRA on trust land not within the 

bounds of its reservation, the trust land on which it proposes to game must be land over 

which it has jurisdiction, 25 U.S.C. $5 2710(b)(l), 2710(d)(l)(A)(i), 2710(d)(3)(A), and 

exercises governmental power, 25 U.S.C. 3 2703(4)(B); 25 C.F.R. 3 502.12. In order to 

exercise governmental power over its land, the Tribe must first have jurisdiction to do so. 

See, e.g., Rhode Island v. Narragansett Indian Tribe, 19 F. 3d 685,701-703 (1" Cir. 

1994), cert. denied, 513 U.S. 919 (1994), superseded by statute on other grounds, 

Narragansett Indian Tribe v. National Indian Gaming Commission, 158 F.3d 1335 (D.C. 

Cir. 1998) (in addition to having jurisdiction, a tribe must exercise governmental power 

in order to trigger [IGRA]); State ex. rel. Graves v. United States, 86 F. Supp 2d 1094 (D. 

ICan. 2000), affd and remanded, Kansas v. United States, 249 F. 3d 1213 (10"' Cir. 

2001); Miami Tribe of Oklahoma v. United States, 5 F. Supp. 2d 1213, 1217-18 (D. Kan. 

1998) (a tribe must have jurisdiction in order to be able to exercise governmental power); 

Miami Tribe of Olzlahoma v. United States, 927 7. Supp. 1419, 1423 (D. Kan. 1996) (a 

tribe must first have jurisdiction in order to exercise governmental power for purposes of 

25 U.S.C. 5 2703(4)). 

1. Jurisdiction 

Generally speaking, an Indian tribe possesses jurisdiction "over both their 

members and their territory." California v. Cabazon Band ofMission Indians, 480 U.S. 

202, 207 (1987). It is well settled that a tribe retains primary jurisdiction over the land 

that the tribe inhabits if the land qualifies as Indian Country. See Olclahoma Tax Comm h 

v. Chickasaw Nation, 515 U.S. 450,458 (1995); Alaska v. Native Village of Venetie 

Tribal Gov't, 522 U.S. 520,527 n.1 (1998). Congress defined the term Indian Countv 

as: 

(a) All lands within the limits of an Indian reservation under the 

jurisdiction of the United State Government, notwithstanding the 

issuance of any patent, including rights of way running through the 

reservation, 
(b) All dependent Indian cominunities within the borders of the United States, 

whether within the original or subsequently acquired territories thereof, 

and within or without the limits of a state, and 

(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. 3 1151. "This definition applies to questions of both criminal and civil 

jurisdiction." Cabazon, 480 U.S. at 253 n.5. Thus, "lands owned by the federal 

government in trust for Indian tribes are Indian Country pursuant to 18 U.S.C. 5 1 151 ." 

United States v. Roberts, 185 F.3d 1125, 1131 (10th Cir. 1999). 

Here, once the United States took Parcels 7, 8, and 9 into trust for the benefit of 

the Tribe, the land became Indian Country within the meaning of 18 U.S.C. 5 1151. 

Accordingly, the Tribe has jurisdiction over Parcels 7, 8, and 9. 

2. Exercise of Govermnental Power 

In order for Parcels 7, 8, and 9 to be Indian lands within the meaning of IGRA, 

the Tribe must exercise present-day, governmental authority on the land. IGRA does not 

specify how a tribe exercises governmental authority, though there are many possible 

ways in many possible circumstances. For this reason, the Commission has not 

formulated a uniform definition of "exercise of governmental power" but rather decides 

that question in each case based upon all the circumstances. National Indian Gaming 

Commission: Definitions Under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12382, 

12388 (1992). 

The courts provide usell guidance. For example, governmental power involves 

"the presence of concrete manifestations of.. . authority." Narragansett Indian Tribe, 19 

F.3d at 703. Examples include the establishment of a housing authority, administration of 

health care programs, job training, public safety, conservation, and other governmental 

programs. Id. 

For the past twenty years, the tribal police have been patrolling the parcels to 

protect the cultural sites and water storage facility. See Letter from George Skibine, 

Attorney for Table Mountain Rancheria, Dentons US LLP, to Eric Shepard, Acting 

General Counsel, NIGC (June 24,2013). Further, the Tribe located and currently 

maintains a 500,000 gallon drinking water tank on the parcels. Additionally, for the past 

thirteen years, the lands have been the location of the Tribe's annual pow-wow. The lands 

are also used for various other cultural events each year. Finally, there are also tribal 

cultural sites that the Tribe maintains and protects on the parcels. 

Based on the foregoing, the Tribe exercises governmental power over Parcels 7, 

8, and 9. Accordingly, Parcels 7,8, and 9, are Indian lands within the meaning of IGRA. 

25 U.S.C. 5 2703(4)(B). 
Application of 25 U.S.C. 5 2719 

A determination of whether Parcels 7, 8, and 9 qualify as Indian lands is not the 

end of the inquiry. IGRA generally prohibits gaming on lands acquired in trust after 

October 17, 1998, unless one of the statute's exemptions or exceptions can apply. 25 

U.S.C. $2719. Accordingly, for lands taken into trust after October 17, 1988, it is 

necessary to review the prohibition and its exemptions and exceptions to determine 

whether a tribe can conduct gaming on such lands. 

Section 2719 states: 

...g aming regulated by this chapter shall not be conducted on lands acquired by 

the Secretary in trust for the benefit of an Indian tribe after October 17, 1988, unless - 

(1) such lands are located within or contiguous to the boundaries of the 

reservation of the Indian tribe on October 17, 1988. 

25 U.S.C. $ 2719(a) and (a)(l). It is my opinion that the prohibition does not apply 

because the lands are located contiguous to the boundaries of the Tribe's reservation as it 

existed on October 17, 1988. 25 U.S.C. $ 2719(a)(l). 

As set forth above, the Interior enacted regulations interpreting Section 2719 of 

IGRA. As to the exemption set forth in 2719(a)(l), Interior regulations mandate that for 

gaming to be allowed on newly acquired lands under such exemption, the land must meet 

certain location requirements depending upon whether the tribe had a reservation on 

October 17, 1988. 25 C.F.R. § 292.4. "If the tribe had a reservation on October 17, 1988, 

the lands must be located within or contiguous to the boundaries of the reservation." Id. 

at (a). Interior regulations define contiguous as, "two parcels of land having a common 

boundary notwithstanding the existence of non-navigable waters or a public road or rightof-way and includes parcels that touch at a point." 25 C.F.R. § 292.2. 

The BIA confirmed that the boundaries to the Tribe's reservation were restored in 

1961. See E-mail from Carmen Facio, Regional Realty Officer, Bureau of Indian Affairs 

-Pacific Regional Office, to Esther Dittler, Staff Attorney, NIGC (July 10,2013). 

Parcels 7, 8, and 9 are separated from the reservation's west boundary, as it existed on 

October 17, 1988, by Sky Harbor Drive. Id. Maps attained from Fresno County, indicate 

that Sky Harbor Drive is a public road. See Assessor's Map Bk. 300-Pg. 35. Further, 

maps provided by the BIA and the Tribe demonstrate that Parcels 7, 8, and 9 are only 

separated from the reservation's west boundary by Sky Harbor Drive. See Table 

Mountain Rancheria Record of Survey, Map of Tract No. 1833; Table Mountain (551) 

Ver. 2 (June 12,2013). As such, the lands satisfy the definition of contiguous. 

Further, in 2006 the DO1 Pacific Southwest Regional Solicitor prepared an 

endorsement and comments that concluded that the lands are contiguous to the Tribe's 

reservation. See Solicitor's Endorsanent/Comments, fromDaniel G. Shillito, Regional 
Solicitor - Sacramento, CA (March 27, 2006). The BIA notes that the Solicitor, in its 

March 27,2006, letter, previously found that this land was contiguous to the Tribe's 

reservation for land acquisition purposes. See Letter from Regional Director, Bureau of 

Indian Affairs - Pacific Regional Office, to Esther Dittler, Staff Attorney, NIGC (May 6, 

2013). Consequently, Parcels 7, 8, and 9 are contiguous to the Tribe's reservation as it 

existed on October 17, 1988, and the 5 2719 prohibition does not apply. 

Conclusion 

Based upon my review of the materials submitted by the Tribe and obtained from 

the BIA, it is my opinion that the parcels described above are Indian lands eligible for 

gaming under IGRA. Because the parcels are contiguous to the Tribe's original 

reservation, the general prohibition against gaining on lands acquired after October 17, 

1988, does not apply. The Department of the Interior - Ofice of the Solicitor concurs 

with this opinion. 

Sincerely, 

Eric Shepard 

Acting General Counsel