FEB - I I996 

Hans Walker, Jr. 

1813 H. Street, N.W. 

Suite 800 

Washington, D.C. 20006 

Dear Mr. Walker: 

This responds to the November 6, 1335, appeal of the decision of 

the Chairman of the National Inclian Gamincj Comniission (tJTC;C) 

disapproving the Native Villacje of Barrow's tri ha1 gamincj ortlinancc 

35-01. We have concl~icled that the Plative Villaye of Barrow 

(Village) does not have Tndian lancls on which it can conduct tribal 

qami ng. Therefore, the V i 1 1 (lge s appea 1 i s tleni ucl . 

'Ilkl*w.lr On January 11, 1395, the PJ;~tive Villc~cje of f3nrrow s~thmittecl for 

approva 1 a tr i ba 1 qam i nrj o1-(1 i nance . I V i 1 1 I ' 5 :;ti bm i 55 i ion 

included a 12 month lease, from .Jantlary 1, 1335, to Jan~~ary 1, 

1336, between the Native Village of Barrow ancl Arnolrl Rrower, Sr. 

The lease was not sicjned hy the Village. Tt was not approved by 

the Bureau of Indian Affairs (RTA) . Nothinr) in the record 

indicates any kind of tribal approval of ttic ledse. A second lease 

between Jostliia Nashajrnik ancl the Vi 1 larje is sicjned by Plashnknik: and 

Arnold Brower. The lease recltes that it is for 12 months b11t the 

dates are listed as November 11, 1394, througl~ November 11, 1939. 

It was also not approved hy the RTA ancl there is no indication of 

tribal approval of the lease. 

The third enclosure to the Jant~ary 11 s~~bmission was the 

Constitution ancl By-I,aws of the Native Village of Rarrow. Rr-ticle 

3, Section 1 provides: 

Choice of Governincj Body-At genera I meet i nq fol lol..!incj 

the acceptance of this Corist ittrt ion, the Vi 1 laqc 

membership shal 1 decide r~~tlat kind of cjoverninrj hocly it 

wishc?s to set up t.o :;peak ;~nd i~ct for t.llc \' i l 1 acje ancl to 

use the powers of t.he Vi 1 1 acjc. I t t.l>ere i s a rjoverni ncj 

body already sct 1 in tlie ! 1 j t t.11~ time this 

Const i tut ion i s acce~)t:c!(l, ttlt* nicnil)c?r:;I~ i 1, 11iit y tlcc icle to 

keep that govern i ncj t~otly, 01- i t. mils ct~oo:sc! ;I ncr.1 form of 

government. 

'1 z vi*F* ' 

- - - - 144 1 L STREET. N W STH FLOOR WASHINGTON D C 20005 TEL 202 632 7003 FAX 202 632-7066 - -- - --- . - - - - - - -- - 
Section 4 of Article 3 provides: 

Record and Report of Village Decisions-A record shall he 

made and kept of all the rules made under sections 1, 2, 

and 3 of this Article, which record shall be called the 

Record of Organization of the Native Village of Barrow. 

Copies of this record shall be given to the teacher or 

other representative of the Office of Indian Affairs 

serving the Village. There shall he put in the record 

the names of all persons chosen to be officers of the 

Village. 

No copy of a Record of Organization \/as provided. 

The powers of the Village are described in Article 4, Section 1, of 

the Constitution as follows: 

To do all thincjs for the common cjood whict~ it has clone or 

has had the right t-o do in the past and which are not 

against Federal law and such Territorial law as may 

apply - 

To deal with the Federal and Territorial Governments on 

matters which interest the Village, to stop any yiviny or 

taking away of Village lands or other property without 

its. consent, and to get legal aid, as set forth in the 

act ,of June 18, 1934. 

To control the i~se by members or nonmembers of any 

reserve set aside by the Federal Government for the 

Village and to keep order in the reserve. 

To guard and to foster native life, arts and possessions 

and native customs not against. law. 

In an April 10, 1335, memorandi~m, the Acting Associate Solicitor, 

Division of Indian Affairs, Department of the Interior, stated 

that: 

whether Barrow exercises cjovernmental power over the 

townsite allotment is unclear. An assertion of tribal 

jurisdiction over i ndividi~al restricted lots would he 

doubtful if there were no clear tribal nexus to the 

individual restricted lands. The village has the bllrden 

of establishinq that it satisfies the statutory 

requirements, including the fact that it exercises 

governmental authority over the lot. The exercise of 

governmental authority can not be inferred merely from 

the fact that the lot is within the village. 

The Acting Associate Solicitor also contacted the Office of the 

Regional Solicitor in Alaska and the BIA. Neither office could 

provide further information showing that the Village exercises 

governmental power over the land in question. The Reqional 

Solicitor's Office further stated that the Village does not own any 

~II~ trust or restricted land. As a result, t-he Acting Associate 
Solicitor concluded that the land in question is held by an 

individual and subject to restriction by the United States against 

rw' alienation but that he co11ld not conclude, based on the information 

before him, that the Village exercises qovernmental power over the 

land. 

Based on the Associate Solicitorls determination that the Villaye 

did not establish that it held Indian lands on which it could 

conduct gaming and two other technical requirements, the Chairman 

of the National Indian Gaming Commission disapproved the Village's 

gaming ordinance on April 11, 1995. 

On July 7, 1995, the Village submitted an amended gaming ordinance 

which cured the two technical problems mentioned above. The 

Village also submitted evidence which the Village alleged 

establishes it exercises governmental authorities over the two 

leased lots which appear to be a townsite lot and a Native 

allotment. The evidence included 1) a Memorandum of Agreement 

Between the Ukpeagvik Inupiat Corporation and Native Vi 1 lage of 

Barrow dated June 23, 1934; 2) Graphs establishing annllal 

expenditures on subsistence activities and hoirseholcl consumption of 

subsistence foods; 3) a May 30, 1395, letter to Ilans Walker from 

Price Leavitt, Grants Administrator listing services which are 

provided including Real Estate ancl Wildlife Management; 4) Native 

Village of Barrow IRA Tribal Government Resolution 35-23, Dog 

Control Law; 5) Native Villdcjc of Harrow IRA Tribal Government 

Resol~~tion 95-24, A1 1 Terrain Vclhic:le and Snol.~mohi lc 1,aw; 6) F~uhlic 

I,,,,~~,~ 1,and Order 324; and 7) Cl~ror~olorjic~~l Otitline of Events Relating to 

the Proposed Reservation for the rJiit.iVe Villarjc of Barrow Alaska. 

On October 5, 1995, the NIGC Chairman disapproved the Vi llacjels 

ordinance, once again relying on the Associate Solicitor's April 10 

memorandum. There was no reference to the seven doctiments 

submitted by the Vil lacje or t-o the Vi llacje's accompanying 

memorandum. 

On November 6, 1995, the Villaqe appealed the Chairman's 

disapproval of the Village's gamincj ordinance. The Village alleges 

that the NIGC failed to consider the new evidence it provided with 

its July 7, 1995, si~bmission of a new gaming ordinance. The appeal 

contained two additional documents, a Barrow Community Profile and 

an October 30, 1995, Affidavit of Charles flopson with two deeds 

attached (These deeds ai-e not for t-he lcinds !.!hich were leased) . The Barrow Community Profile indic:at.es that the: City of Barrow is 

incorporated under state law CIS a first class city and that it has 

a municipal cjovernment consist.incj of a city council and mayor, 

Donald Lonq, as well as other city offices. 

The Associate Solicitor, Ilivision of Inclian Affairs, was once again 

contacted for an opinion on whetl~er the Village had established 

that there are Indian lancls on which thc Village could qame. 

Because the Department of the Interior has the special expertise 
and information necessary to make such decisions, the NIGC 

traditionally defers to the Department on the cjuestion of the 

,,, existence of Indian lancls. However, we were informally advised 

that the Department would not provide the NIGC with any further 

assistance on the question of Indian lands held by the Village. 

ANALYSIS 

The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 

(1988) (IGRA) requires that Indian gaming be condt~cted on "Tndian 

lands. It IGRA defines "Indian lands" as: 

(A) all lands within the limits of any Indian 

reservation; and 

(B) any land 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 States against 

alienation and over which an Indian tribe exercises 

qovernmental power. 

25 U.S.C. § 2703 (4) (1394 Supp.) (emphasis added). 

The NIGC traditionally defers to the expertise of the Clepartnient of 

the Interior on the existence of Intlian lancls. Thus, we are guided 

by the Acting Associate's April 10, 1335, lecjal opinion and the 

opinion of the Solicitor of the Department of the Interior, i~llll&,M ldlf M-36975, which discusses the extent of triha 1 ji~risdiction over 

Alaska Native allotments and i ndividilal Native townsite lots. (The 

Department of the Interior is hound by the pilblished opinion of the 

Solicitor unless overturned by the Solicitor, Deputy Secretary, or 

the Secretary. 209 DM 3.2A(ll).) 

The Solicitor, in his opinion, conclildes that the Native Villages 

in Alaska will not be able to establish that they exercise 

jurisdiction over Alaska Native allotments and individual townsite 

lots. He states that: 

Most allotments in Alaska have been issiied pi~rsi~ant to 

the Alaska Native Allotment Act of 1306, although there 

are a few allotments issued tinder the General Allotment 

Act. Although Alaska Native allotments are held in fee 

by the allottee subject to restrictions against 

alienation, we have already noted that the distinction 

between restricted fee and trust allotments is not 

significant for our purposes. 

A number of facts, however, do disting~lish Alaska Native 

allotments from most allotments in the contiquous 46. 

First, the stattlte cloes not makc tribdl memt,ership a 

criteria for receivi nq an a1 lotnient, pi-ol~ilbly because in 
1906, Congress was not considering the Alaska Native 

allotments in a tribal context. This makes Alaska Native 

allotments more like Indian homestead allotments, rather 

than those issued pursilant to the General Allotment Act 

or other tribe-specific allotment acts. Second, Alaska 

Native allotments were not carved out of any reservation. 

While we consider this factor insignificant for federal 

jurisdictional purposes, we believe it has at least some 

significance in determining questions of tribal 

authority. Third, the statt~te specifically provides that 

the allotment "shall be deemed the homestead of the 

allottee and his heirs." Again, while not a controlling 

factor as such, the lanquage makes the Alaska Native 

Allotment Act appear more similar to a general Indian 

homestead act rather than a tribal or reservation related 

allotment act. 

We wish to make clear that Alaska Native allotments, like 

other Indian a1 lotment-s, rema i n under federa 1 

superintendency and si~hject to federal protection while 

in restricted status. Thiis, we concli~cle that Conqress 

has not divested the Federal government of its 

jurisdictional authority over such lands, and they are 

Indian country. 

llowever, after examining the statute and circ~~mstances 

related to Alaska allotments, we are not convinced that 

any specific villages or qroilps can clairn ji~risdictional 

authority over allotment parcels. As we noted above, 

particularly in the absence of a tribal territorial base 

(e.g., a reservation) , there is little or no basis for an 

Alaska village clainiinq territorial jurisdiction over an 

Alaska Native allotment. 

One other category of indivitlual Native landholdings in 

restricted status is that of Native restricted fee 

townsite lots. It is our understandinq that there are 

over 3,800 of these lots. To a limited extent, deeds to 

individual townsite lots are still beinq issued to 

Natives subject to statiitory restrictions on alienation, 

pursuant to the former 43 U. S.C. § 733. In People of 

South Naknek v. Bristol B$y Boroiic~h, 466 F. Siipp. 870 (D. 

Alaska 1979), the coiirt held that for purposes of federal 

court jurisdiction, the restricted Native townsite lots 

have the same status as allotments. 

Our analysis and conclusions concerning potential tribal 

jurisdiction over these lots are the same as those set 

forth above with respect to Native allotments, with one 

possible exception. If individual restricted townsite 

lots properly are treated as allotments for piirposes of 

section 1151, they woiild he Indian coiintry. Those 
restricted lots lociited in one of the 27 Native villages 

receiving fee title to i~noccupiecl townsi te lots could 

conceivably be affected if the vill.arje qualifies as a 

tribe and if the area qualifies as a dependent 1ndi.an 

community. Even so, an assertion of tribal jurisdiction 

over individual restricted lots woiild be doubtful if 

there were no clear tribal nexus to the indivi-dual 

restricted lands. 

Governmental Jurisdiction of Alaska Native Vil-layes Over Lands and 

Members, M-36975, Sol. Op. 110, pp. 128-130 (January 11, 1333). 

Based on the Solicitor's opinion, the Acting Associate Solicitor 

concluded that the land in question was not Indian land because the 

Village does not have jurisdiction over the land. We defer to that 

conclusion. 

Furthermore, to the extent that the Village claims that it is in 

fact exercising present (lay governmental powers over such land, we 

conclude that the Village has not provided sufficient evidence to 

establish its exercise of governmenta 1 powers. The Villaye 

provided additional doc~~nientat.ion with its Jtily -7, 1335, sii1)mission 

and its November 6, 1395, appeal. This doc~lmentation essentially 

purports to establish what aiithorities are presently-exercised over 

the lands. It completely fails to esta12lish any ongoing power 

which was exercised over time. It also fails to est-ah1 isti any 

clear present day exercise of nt~thority over t.he Idnd. 

""I*' The Community Profile establishes that Barrow is a municipal ity 

incorporated under the auspices of the State of Alaska with its own 

city government. Such city governments are typically not related 

in any way to tribal governments and nothincj in the documentation 

indicates otherwise. The offices of the mayor and city cotlnci 1 are 

entities separate f ronl the Vi 1 laqe qovernnient . The municipa 1 i ty 

apparently provides the police anrl fire services to the Iantls 

within the city 1 imits, ant1 the Planni ncj ancl Zonlncj Commission 

operates under the North Slope Roro~igh. 

The May 30, 1935, letter, which references real estate and wildlife 

manaqement services, provides no description of such services and 

fails to establish that any silch services are related to the 

restricted lots in cluestion. The only reference to any direct 

dealings with lands is the Affidavit of Charles tiopson which 

indicates that he keeps 1-he lcln<l records. 'I'tii s f tinct ion, however, 

is a Federal Government. funct.ion which was contracted to the 

Village presumably to keep track of land records over which the 

Federal Government exercises aut-hority. It fai 1s to establ ish that 

the Villaqe exercises inclependent authority. 

A June 23, 1995, Memorandiim of Acjreement (MOA) between the 

Ilkpearjvik Intipiat Corporat-ion and t.he V i 1 lacjc sinii larly fai 1s to 

establish any independent tri13~11 atithori t.y over lands. The MOA 
specifically limits any kind of tribal atlthority to limited 

hunting, fishing and trapping jiirisdiction over village corporate 

lands for one year. This agreement has expired, and the village 

corporate lands are not the same lands as the restricted lots. 

. . 

The villabe also passed two resolutions, Resolution 95-23: Dog 

Control Law, and Resolution 95-24: All Terrain Vehicle and 

Snowmobile Law. While providing some limited evidence of asserted 

jurisdiction over the lands, the resolution numbers indicate that 

they were only just passed in 1395 which weighs against their 

probative value as evidence of the Vil.lagefs exercise of 

governmental power. 

The two leases provide no evidence supporting a determination that 

the Village exercises governmental powers. They were not properly 

entered into. One was not signed by any tribal representative. 

Neither are supported by tribal resolutions or some other 

indication that they were approved by the Village's governing body. 

One has expired while the other may have expired depending on 

whether you rely on the lease lanqt~aqe indicatincj that the term of 

the lease is for 12 montlls or t~nt i 1 1999. Neither was approved by 

the BIA. 

Finally, the Village's constiti~tional authority over lands appears 

limited. There are two references to the Villaqe's land based 

authority. Article 4, Sectinn 1, atlthorizes the Villaqe to stop 

giving and taking away of Village lands or other property without 

,I 4w1 I* its consent, a power which does not appear relevant here. It 

further authorizes the tribal government to control the use of any 

reserve set aside by the Federal government ancl to keep order over 

the reserve. No reserve was ever set aside for the Village. 

Therefore, this authority was never implemented. Consequent1 y, the 

people of the Village, through their constitutional deleqdtion of 

authority, did not grant expansive tribal authority over their 

individual lands. 

For all of the forgoing reasons, the Village's appeal is denied. 

_-- -- -- 

n 'I'om Foley, C:ommiss i ner 

-- - 

mmissioner 

I----