April 23,2008 

Via U. S. Mail and Facsimile 

A.D. Ellis, PrincipaI Chief 

Muscogee (Creek] Nation 

P.O. Box 580 

Hwy. 75, Loop 56 

OkmuIgee, OK 74447 

Fax: 91 8-732-7600 

Re: Holdenville Site Land Opinion 

Dear Principal Chief EIIis: 

On February 26,2007, the National Indian Gaming Commission (MGC) received 

a request for an Indian lands opinion hm the Muscogee (Creek) Nation (Nation). The 

Nation requested an opinion for the purposes of potential gaming under the Indian 

Gaming Regulatory Act (IGRA) on the proposed site. I conclude that these are Indian 

lands on which the Nation may conduct gaming. 

The Muscogee (Creek) Nation is a federally recognized Indian tribe1 and desires 

to conduct gaming on a 2.75 acre tract located in Hughes County, Oklahoma (Holdenville 

or site). The land is currently held in trust by the United States for the benefit of the 

 ati ion' and is legally described as follows: 

Lots One (1) through ThuTy-two (321, inclusive, in Block Twenty (20) of 

Capitol Heights Addition to Holdenville, Hughes County, Oklahoma, 

according to the recorded plat thereof, as to Surface 

The Nation purchased the parcel from the Holdenville School District on 

September 9, 1 985, and executed a Warranty Deed to the United States in order to p jace 

the parcel into trust.4 On September 11,1987, the Eand was accepted in trust by the 

Bureau of Indian Affairs of the United States Department of the ~nterior.~ The Hughes 

County Recorder's Office recorded the deed, proclaiming the parcel to be held in trust by 

the United States on behalf of the Nation on September 28, 1 987.6 

'See 72 Fed. Reg. 13648,13648 (2007). 

Warranty Deed from Muscogee (Creek) Nation, a federally recognized tribe, to the United States, as 

trustee (September 28, 1987) (on file with the NIGC). 

rd. " Id. 

5 Id. 

Id. 

NATTOMAL HEADQUARTERS 1441 st Nvd, Suite 9700. Washington. DC 20005 Tel: 202.632.7003 fax: 202.632.7066 WWW.NlGC.GOV 

REGIONAL oFnN Portland. OR: Sacramento. C4; Phoenix, AZ; St. Paul, MN: Tulsa. OK 
Applicable Law 

An Indian tribe may conduct gaming on lands that are determined to be 'Yndian 

lands" as defined under IGRA. See 25 U.S.C. $8 2703(4), 2710@) and (d). Ifthe lands in 

question are not within a present day reservation, then the tribe must show that it has 

jurisdiction over the land and that it exercises governmental power over the land. See 25 

U.S.C. 5 2703(4)@); 25 C.F.R. lj 502.12@). 

Under IGRA, the term "Indian lands" means: 

(A) All Iands 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 States 

against alienation and over which an Indian tribe exercises governmental power. 

See 25 U.S.C. 8 2703(4). Similarly, the NIGC regulations define hdian lands as: 

(a) Lands within the limits of an hdian reservation, or 

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

either, 

(1) Held in trust by the United State for the benefit of my Indian tribe or 

individual, or 

(2) Held by and Indian tribe or individud subject to restrictions by the 

United States against alienation. 

See 25 C.F.R. 5 502.12. 

Discussion 

The Nation's parcel is not within the boundaries of a reservation, so the Nation 

must prove that it has jurisdiction and exercises governmental power over the pmel. The 

Nation acquired the parcel prior to October 1, 1988, and it has been held in trust for the 

Nation since that timea7 Therefore, if the Nation exercises governmental power over the 

site, the HoldenviIle site will constitute hdian lands for the purpose of gaming. 

Before determining whether the Nation exercises governmental power over land, 

we must consider whether the Nation has jurisdiction over the Iand. The finding of 

jurisdiction is a ''thresh01d requirement" that must be completed before an examination of 

governmental power may occur. See Rhode Island v. Ilrarragamett Indian Tribe, 19 F. 3d 

685, 701-703 (1st Cir. 1994), cert. denied, 5 13 U.S. 919 (1 9941, superseded by statute as 

stated in Namgansebi Indian Tribe v. National Indian Gaming Commission, 158 F.3d 

I335 @.C.Cir. 1998) mrther citations omitted). Finding that a tribe has jurisdiction and 

exercises governmental power can occur in a myriad of ways. See Narragansett Indian 

Tribe, 19 F.3d at 701 -703; Miami Tribe of Oklahoma v. United States, 927 F. Supp. 1419, 

%us, 25 U.S.C. § 2719 is inapplicable to this decision. 
1423 (D.Kan. 1996) (Ikliami I); State a rel. Graves v. United States, 86 F. Supp. 2. 1094, 

1098 @.Kan. 2000), afldandmanded, Kansas v. United States, 249 F.3d 1223 (10th. 

Cir. 2001). 

Jurisdiction 

The presumption of jurisdiction exists for any federally recognized tribe acting 

within the limits of 'Tndian Country." See South Dakota v. Ya&on Sioux Tribe, 522 U.S. 

329 (1 998). This jurisdiction, an inherent sovereign power, can onIy be modified by a 

clear and explicit expression of Congress. See Y~nkton Sioux Tribe, 522 U.S. at 34 1 ; see 

also Mewion v. JicapiIla Apache Tribe, 455 W.S. 130, 140 (1982). 

Over time, the term "Indian Counw ' has referred to lmds upon which the federal 

government and the Indian tribe that owns the land share primary jurisdiction. See Alaska 

v. hrative Village of Venetie Tribal Cov't, 522 U.S. 520,529 (1998). The term "Indian 

Countrf' is defined by I 8 U.S.C. 5 1 15 1 as follows: 

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

jurisdiction of the United State Government, notwithstanding the 

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

reservation, 

(b) All dependent Indian cornunities 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 includjng sights of way running through the same. 

In its review of 1 8 U. S .C. 9 1 1 5 1, the Venetie court found that the statute contains two of 

the indicia previously used to determine what lands constitute "Man Country": (1) 

lands set aside for Indians and (2) Federal superintendence of those lands. See Venetie, 

522 U.S. at 527. In Venetie, the court observed that Section 1 15 1 reflects the two criteria 

the Supreme Court previously held necessary for a finding of "hdian Country." 522 U.S. 

at 527. Further, reservation status is not necessary for a finding of '"Indian ~ountry."' 

The Tenth Circuit found that "[olfficid designation of reservation status is not 

necessary for the property to be treated as Indian Country under 18 U.S.C. 5 1 15 1," 

rather, "it is enough that the property has been vaIidly set aside for the use of the Indians, 

under federal superintendence." United States v. Roberts, 185 F.3d 1125, 1133, n.4 (10th 

Cir. 1999). Further, 'keservation status is not dispositive and lands owned by the federal 

government in trust for Indian tribes are Indian Country pursuant to 1 8 U.S .C. 5 1 1 5 1 ." 

Roberts, 185 F.3d at I 130. Thus, as long as the land in question is in trust, the courts 

make no distinction between the types of trust lands that can be considered "Indian 

8 See Oklahoma Tax Comm 'n v. Citizen Band Potawotomi Indian Tribe ofOklahoma, 498 U.S. 505,511 

(1 99 1) ('No precedent of this Court has ever drawn the distinction between tribal hst land and reservation 

that Oklahoma urges.") 
Country." Roberts, 185 F.3d at 1 13 1, n.4. Accordingly, lands held in trust, fee simple 

restricted status, allotments and reservations are a11 considered "'Indian ~ountr~."~ 

In ~s case, the Federal government placed the parcel into trust en behalf of the 

Nation prior to October 17, 1988.'' Such an act qualifies as setting it aside for the Nation. 

Superintendence can be seen when the federal government appears to act "as a guardian" 

for the lands and take some active invoIvement. See venebie, 522 U.S. at 532; see also 

Roberts, 185 F.3d at 1134. In the instant case, the language of the deed, and its 

acceptance by the BIA, indicates superintendence. The acceptance of the deed by the BIA 

marks an active acceptance of the role as trustee and all duties that encompass the 

responsibility. Therefore, the Nation's trust parcel constitutes Indian Country, and the 

Nation is presumed to have jurisdiction over it. 

However, it is not enough to find that the parcel in question is definable as 

"Indian Countrf' which reflects the Nation's jurisdiction, IGRA also requires a finding 

of '"exercise of governmental authority" for the parcel to qualify as "Indian lands" for 

purposes of gaming. See 25 U.S.C. 8 2703(4); see also NawagansettIndian Tribe, 19 

E.3d at 703. 

Governmental Power 

IGRA is silent as to how a tribe exercises governmental power and its Iegislative 

history does not illuminate the meaning of "govemental power.'Tee Kamas, 249 F.3d 

at 1228; Miami Tribe of OkZahorna: @, 927 E. Supp. at 1423. AIthough Congress did not 

address, courts have stated that an assertion of theoretical jurisdiction is not sufficient and 

mast be accompanied by "concrete manifestations of that authority." Narragansett Indian 

Tribe, 19 F.3d at 703. The establishment of programs such as a housing authority to 

participate in federal programs and interact with federal agencies is evidence of selfgovernance. Id. Obtaining state status for purposes of the Clean Water Act and having 

"substantial governmental duties and powers" to implement the Act indicates an exercise 

of governmental authority. Id. The administration of health care programs, job training, 

education, community services and pubIic safety are examples of the exercise of 

governmental power. Id. 

There is no uniform set of proofs by which a tribe may show active exercise of 

governmental power. Therefore, the NGC decides this issue on a case-by-case basis. See 

National Indian Gaming Commission: Defznitions Under the Indian Gaming Regulato~y 

Act, 57 Fed. Reg. 12382, 12388 (1992). 

As an aid for making such determinations, the folIowing factors are often used to 

assist in the analysis: 

- 

9 See United States v. Sandoval, 23 1 U.S. 28 ( 1 9 1 3) (fee restricted land as Indian Counlxy); United Statm v. 

Pelicurz, 232 U.S. 442 (1 9 14) (allotment as Inhan Country); United States v. McGowan, 302 U.S. 535 

(1938) (trust land as Indian Cwnby). 

'O See Supra Note I. 
(I) Whether the areas are deveIoped; 

(2) Whether tribal members reside in the areas; 

(3) Whether any governmental services are provided and by whom; 

(4) Whether the tribe is providing law enforcement; 

(53 Other indicia indicating a tribal exercise of governmental power. 

See Cheyenne River Sioux Tribe v. South Dakota, 830 F. Supp. 523,528 (1 993). 

The First Circuit Court opined that a formidable Iist of tribal programs affecting a 

parcel provided adequate proof of exercise of governmental power over that particular 

parcel. Nawagansetf, 19 F.3d at 703. Among the programs Iisted were the folIowing: 

HUD programs, health services programs, status as state for EPA cleanup, and public 

safety, community service and job training programs. Id. 

As to the Holdenville site, the Nation provided proof of development in regards to 

the parcel. A concrete building and parlcing lot occupy the space while the remaining 

space is taken up by a playground. See Letter from Kasey McKenzie, Assistant Attorney 

General to Rebecca Chapman, NIGC Staff Attorney of 9/20/2007 at 2. The building on 

the parcel houses the retaiI store and ofices for tribal governmental service progmns. Id. 

The Nation issues licenses for the coIlection of sales tax and the sale of cigarettes at a 

retail store located on the parcel. See Letter from A.D. Ellis, Principal Chief of the 

Muscogee (Creek) Nation to Phil Hogen, Chairman of the National Indian Gaming 

Commission of 2/20/2007 at 2. The existence of the store and the use of the building for 

numerous govmental programs indicate that the parcel is developed and used to 

provide govem.menta1 services, which are criteria set forth in Cheyenne River Sioux. 

The Nation also provided proof that tribal members reside in the area and use the 

site. Currently, 1,022 tribal members live in Holdenville and 3,986 members reside in 

Hughes County where the parcel is located. See Letter bm Kasey McKenzie, Assistant 

Attorney General to Rebecca Chapman, NIGC Staff Attorney of 9/20/2007 at 1. Tribal 

members live anywhere hrn a few miles away to right next to the site. Id. A11 of these 

members have access to the tribal governmental services provided on the site. The 

evidence indicates that the site is located within the tribal community and that community 

remains active on and around the site. This evidence satisfies the second criteria of 

Cheyenne River Sioux. 

The Nation has also provided a list of programs that take place on the Hodlenville 

site. See Letter from Kasey McKenzie, Assistant Attorney General to Rebecca Chapman, 

NGC Staff Attorney of 9/20/2007 at 1-2. The provision of governmental services is yet 

another indication of an exercise of governmental power. Cheyenne River Sioux, 83 0 

F.Supp. at 528. Currently, the Nation has a facility use agreement with the Indian 

Community of HoldenviIle for community development programs located on the site. Id. 

at 3. The Nation conducts housing, health, enrollment and veteran's sewices out of the 

concrete building on this site. See Letter from Kasey McKenzie, Assistant Attorney 

General to Rebecca Chapman, NIGC Staff Attorney of 912012007 at 1-2. An after-school 

language program also operates on the site, and the Nation directly operates a child 
development program on the site. Id. This activity is indicative of the Nation providing 

governmental services on the site in fulfillment of the third criteria of Cheyenne River 

Sioux. 

In addition, the Nation provided evidence of a law enforcement presence on the 

site. The Nation's police force responds to calls and patrols the area surrounding the site. 

See Letter from A.D. Ellis, Principal Chief of the Muscogee (Creek) Nation to Phil 

Hogen, Chairman of the National Indian Gaming Commission of 2/20/2007 at 3. Such 

evidence indicates an exercise of governmental power kough the use of law 

enforcement sewices to the site. In light of the above examples, the Nation actively 

exercises governmental authority over the site. 

As a consequence, given its jurisdiction and exercise of govementa1 authority 

over the site, I conclude that the Nation's parcel can be considered "Indian lands" for the 

purposes of gaming. 

Conclusion 

The parcel at issue is a pre-198 8 trust acquisition over which the Nation exercises 

jurisdiction and governmental power. Therefore, I conclude that the site is Indian lands 

for the purpose of gaming. The Department of the Interior, Office of the Solicitor, 

concurs with this result. 

This opinion is advisory only and does not constitute find agency action subject 

to review in federal distnct court. If you have any questions, Rebecca Chapmzin, Staff 

Attorney, is assigned to this matter. 

Sincerely, 

T-TC~ - 

Penny J. CoIeman 

Acting General Counsel 

cc: Tim Harper, Region V Director 

Drew Edmondson, Attorney General for the State of Oklah~m