United States Department of the Interior 

0mCE OF THE SOLIrnOR 1 

W~hmgton. D.C. 20240 

In reply, piease a&ma to: 

Main hterior,Xoorn fdll,, .,, .. . . . . 

To: Carl f. mmm 

M%mr Samtky - hdian A$tXn 

Assaciate Solicit r, dim Aff& 

Subject: 

--: 

Porno of ~ppahaka 

v 

Indian hds Determinafion 

The Porno Zndlans of Upper &e hcheria (Tnie or Upper We) have a f-m- .... A. -- . -- - -trust mIMon p&gbeEare&e-md+e.In?eric~-@QX) on 6€km+ eSlm6- --- - 

oae mile so^& cf :bar R~ncfi~, The Tribe requesfuf an hdam lands apr.llocr to 

defermine &&er it canld con&ct gaming on &is Id if it k acquired ir: trust by the 

S-. The Tnie submitted Wrmatiolr an zhe mtod Id emtp~ion mdm 

Sdon 20 of Use Indian Gaming bgrdztory Ad (IGFitA3f25 V.S,C. 6 271 9). 'Xlna ld at 

kw (the "Parcel") is Ioca~ed in "Lake County, Cakifomi% dung mte Righay 20, We 

evd~ated~ the Tnie's submission ad deterxnined that athe land wodd XI within the 

-.-%~wd lads'' exceptioo to IGM's prohibition a*£ gamia&an trust land aqrxired 

der October 37,1988, if the Im& were acquired in, atby the Sw-. 

The Tnie cornprism the modern day descezldants of four p-conkct mid groups 

that occupied the Upper Lake m-&ory. The Tribe was mored tn, 1 983 as a m1t of 

Upper Xcok Porn0 Ass 'n v. %re, G75-0181 SW W.D. Cal.). The Tribe Smu& the suit 

alleging fhat &a Depmm~'s termination of the Fd4 relationslxp with it \v& 

unlawful and preaam bwuse the Depmmf bad faiIed to amply wit5 the rems of 

the California RmcPleria Act. (72 Stat. 6 3 9, as amended 78 Sut. 3 90'). The Stipulation 

for Enw of 3hEdpat among the parties and subsequent COWL Ordm established a 

pmcess for DO1 to accept back in mt title 20 psoper'y &at had bcm &i&butcd to kt 

rmidentj: of fie nncheria, holding #a?: "[t]he Secretary of the iaterior is rda a 

continuing abEg;f.tian to more to mst ~taBus Jmds . . . whenever pos&fe." Uppee rke 

Porno, supra. at 5. We Tfie orgd a new govmmt under the proesions of the 

Iniffm 'Reorgwizatim Act ir-20M. Their- Canstiwon was ~pp-~ved aft= ptra~~ed - - - -.-- - . 

negotiations with RIA. 

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The Tribe mbmitced &e following information in support of its. claim &at the 

parcel is restore& Legd Dsmiption off ropmy with maps, graphics aad amal photos; 

D&s Report an Hist~ry and, Terxit3r; DecZsation of Camella Johnson, Chairpersen; 
California Indian Legal Sewke.~ cnrrespondenm to BIA datd 1979, 1980, 1982 and 

1983 concerning a dispute about the Ranchezia Constihon and BIA2s xespns~ dated 

1987.2 998 md 200 1. 

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A?pli cable L3w 

(8) lands are taken into ~ust as p& of- 

(i) a settlement of a land claim, 

{ii-ii) the initial reservation ofm hdhzribe. . , or, 

(iii) the restoration of I an& hr ryl hdian ~b &at xs r~ord to Fedcml 

sccopnition. 

IGU d&nm "Xnctian lad? as: 

(A) aU lands within the limits of any Indian resmrion; md 

@) any lands title to which is dther held in bst by thc United States for the 

ben&t of any Indim i be or individual or held by my Indim tribe or 

individual subject to restriction by the United Stam against d~enatim- and 

over which xi hdian tri'be exercises govemmmtal power. 

Regnlatim )Lave Wer clarified t31e Indim lands definition: 

(11 Land within the lhis of an Indian arresmation: or 

@) hd over which an Indian bi aucises gsvmmtal power and 

that is either - 

(I) Weld in hst by United St&% for fhe benefit of my Indian fribs rlr 

individual; or 

(2) Held by arr hdrm b5be or kdividd subj& to m~&tiraah by the 

United Stats against a~ienafion. 

25 C.F.R. 
Lands Acquired in T~T by the Secremy After Ocrobm 7 7,1988 

Under Section 27 I9(a) of IGRk, gaming is phiiited on lmds acquired &a 

O~tobw 17,1988: unless the lands fall wi&k mcptions listed m 25 13.S.C. f) 274 9@). .. . - SuEsmdm f 5) of S sctim 27 19@X I)@) mas bc analyzed to &mine, first, wherher 

the Tribe is *'sestostd" and, second, whether the: parcel IS taka into ttlls as part of'a 

'"restontion" of laads to he Tribe. 

The key terns, '%for& ad 'k.estomtion,'' are no1 defined in IGU. Nor are 

$Imq defined in the various federal regalations is4 by DO1 stnd the NIGC to implmmt 

TEU. 

In &md Tmuerss Bmd gf &ma and ChIi,pm Indim v. U. S Aftomey, 198 

F. Srsfap. 2d 920 W.D. Mi&. 2002h nrd 369 F.3d 960 ~6~' Cir. 20041, the U.S. District 

Court for the Wwrm Dimkt of Mic&g;lza hdd rhar both '?res~ed" and '?estorahon" 

sfiould be @vm their ordinary dictimary meaning. Then that marig should be applied 

:a the Band's history and ckwtmca to see if it is sestored. 73c: Qxrt did so and 

mncluded: 

In sum, the undisputed histmy of €he Bmd's treatis with the United 

Stabs and its prior relationship to the Secretary and the BIA demonstrates 

the Band was reco-mized md &t?$ with by the United Stares . . . 0dy 

in 1872 was tbe relatiomhq administtatively temitmted by tHie BW. This 

... . histmy-ofreco~ition by~&-~pm--thmugh treatie (mdktmical . 

admmistmtion by fie Secretary], s&sequent t.rithr%mwd of recognition, 

and yet later .r~acla?owledgment by the Smtsry - fik sqw-ly within 

the dicGanaxy defmitions of 'Yestore" and 1s rtasombly consrmed as a 

process of reorarim af ~5bd recornition. The pl&~ language of 

subsection (b)(l)@) therefore suggests hat this Band is so red. 

me history of the Pmo of Upper Lake Tnie is similar. It negotiated a mQ 

wilh he Unikd Smtes in 185 1, d&ough &c United States sen at^ never mtifid it nor any 

tb.f the ei~hteen treaties nqptiated with Caiifmnia nrilres. Bu: treaties neh't be ratified to 

ev5dmce recognition. See, XIGC Cowlirz Opinion ar 5 ~'Bease treaty negotiations clln 

only Eke ?lace bmeer, sovereign entities, the Federal Gavtmmenr's effm ro sip a land 

ctssian @my w4& &e Cuwlitz Trhe is evidence: of a gevmmt-to-government 

rdarims'nip the Tribe and constinrta F&& mogai1ion.'3. See, -h'JeC Cowdifz 

Opinion a? 5n3 ('me B fn came ra t'4c same canclusion, determini~g nhat rk I 855 ha5 

zegot~ations represmtd 'ummbigums Mesat achowiwlgmt=llr.'"3; Wla~cesrer v. 

Georgia, 3 1 V.S. S! 5,559 (1 S32)[:The C~nstlrutioa by declaring maties already mde, 
as well as those to be: made . . . with tbe Indian nations . . . adnits ~elr rank among rhose 

powers who ae capable of making treaties."), 

Moreover, in 1905 and 1 908, Con- enadd legislahn appropfiating money to 

. . . - . pwche.pwpmy f~r.Indim.. .3AeMrl80fice Appropriahan.-4ct.c1f.1~0~ appn)pnated . . .. . .. -.- - .- .5 1 00,000.00 and authorized the Bureau of Indian Afrairs to to: 

Purchae for the use of &e Indians of California now 

residing on mations which does nor cooain lad 

suitable 'Fm dtiva~on., and for Indians who are rnot now 

upon restmattom in said Stare, suitable cram or p~cels nf 

land, watet, and warn rights in said Statc . . . as the 

Secretary of the interior may deem proper. 

34 Stat. 325. 

Pursuant to this atrthrizatiaq the United S tatw puschasd and ser aside the IJIJpper 

Lake Rancherja for the Tibe* Legal title to the land remained in the United Stam, 

alf3xougfi it was achowledged &it the United States held the property in trrrst for the 

benefit of the Upper IAe Porno. Additionally, in 1935, the Secretary approved 

Canstihltionn adopted and ratified under the Indian fZe&-@ni!!ta'on Act. The Constimion 

was mad4 in 1941. The United States rnakt&ixaed n government-to-governend 

relatiow with the Tribe until 1958 when Congress inrriared a termnation pollcy and 

enact4 Fubric Law 85471 (72 Stat. 619). Known as the California Rancheria Act, tks 

act authorized r&aahg L?e federal tntsteahip an the Upper Me Rmcberia and 40 

- - otkm-.hch&w .with the: .$we -ofXalifornia, -4Xstf'b-f ~-kackcria- land 

pusuttxtt: to the act ta the reslihts awdad the Tribe landiess, even though indi4Ekxal 

memb~s retained some lots in fee. 

In 1975, members of thG Tn%e join& other Icdian comilluniw goup to &dlmge 

the Act for illegally ~vithdmwiag recognition and terminating their memuan. 331 1979, 

the Federal defendants enter& inlo a StipuIa%ion fbr Entry of Judgment with the per,ries in 

fne UppwLaX-e hmo lifigafian, In the Stipulation the Deparhnent mndd that the 

Ramheria had never been Iawfidfy tevaninatad and, therefore, the boundaria of the 

Rancheria siil! exi std, even though the Tribe as z~n entity no longer owned any af it, anand 

agreed to putdish a Federal Regster notice saying the United States maintained a 

governrramt-to-governmenf relationship with the Tribe. subseqm~ Cow Order hdd 

the Secretary "is under a crgnCinuing ~Sligatim TO restore to msx staw Imds af the Upper 

Lake bcheria . . . whenem possible," The Cow wrote "[i]t is the hrmx of this 

j~dpe~f that maximum flexibility be d%ow& in wotking out the administrative details 

of st ~tstomfion" and my lads within Ibt Rancheria bonndmies acquired m the future 

'hay be s~snlf ar1 y restared to scarus." Upper Luke Porno, mpm, at p. 7. 

7Iie Pomo of Uwer Lake had been recognized by the fdd goverm~t: 

tertniraated, md again rernL@z& I%e the Grand Traverse Band. The Tribe qudi5a as 
"an Xn&m mbe &at is re-stared to Fedmal mgniniofn" under 25 U.S.C. 

$ 271 9@h))(l)(B>(iii). 

Ratoration of hndf 

*"*. .-... . .- . . - .. ". -...- . - . ......*...*- - * -. .- ---. ..-.... ,.. . 

Having mnclndd that the Tribe is a restored tribe under IGRA, &e next quarim 

is wh&m aust aq~Worn of the pweel would be 'land taken info teust m a pm of. . . the ramtion of lands for an Indim rribe that is reSn0re-d to Fdaai rcmgrbhon." 

25 U.S.C. 2719(b]{l)(B)(iiif. 

Feded cow and the DO1 have grappled 4th the concept of land restoration. 

Guidepars I~OW exist for restoration-o f-land analysis, "Rmtored" and "'restoranor." must 

be gvm their plain dictionary meanings. ''RafdYmds need not havc been resored 

pmulult to Ccrngr~sional &ion or as pa of a tribe's restoration to fdmd rsc;ogaition 

Gmnd Travvse Band of Onma md Chippewa Indians v. U. 5. Artomq ("Grund 

T~merse Bmtd 1'): 46 F. 5yp. 26 689,599 (W.D. Mich. I 999); Grand Trmeme Bd of 

Ottawa and Chippewa 1~Wm v. L: S. Atlorney, 198 F- Sup. 26 420,928,925 5'Grcrnd 

Traverse Band LI ';E(W.D. Mich 2002), @d 369 F. 3d 960 (db Cir. 2004). Confederated 

Tn'hes of CQOJ, SDwr Urnpgua & SIirslaw XAdim v. Bobbit: T'Coos '3 1 1 5 F. Suq. 2.d 

I 53, 161, 164 (D.D.C. 2000). The lenpge of Section 271 9@)(1)(B){iii)--%xtoration 

of lands m Mim m%e that is restored to Fedal rea;o@~on"'-"1mp14es a pcess 

rather h a tsgreddc rransactio~ and most 9sswdly does nor limit restoration to a single 

event," Ckmd Traverse Bd LT at 936; Grmd T~naperse Bmd f gt 701. The Trrie's 

pmhg ahiniskative fee-m-trwc process tmrfm 25 C.F.R. Part 1 S 1 can restore Ian&. 

. A" 

,- -, -Re wurts in Coos and Gmffd Traverse $and 1 and I1 wid that. smmlirmmtio~ . . . - 

might be required on the term 'Zestoration" ro avoid 2 result ht Y$ny and all pmp~ 

acquired by restored tribes would be ebgibfe for gaming." Coos 164 Cmd T.~me 

Band I at: 700; sea alsD Gand Trmerse Band11 at 934935 ("Given the plain rneaniw of 

the Ianpge. the tm "omtion' may be read m nmerow ways to place belzt~l:, 

rwtored tribes in a comparable position 'to w1iw recognized tribes while simultaneously 

limiting &t~-aqud propmTy in some f&on9, efd? 369 F43d 960 [6* Cir. 2004j. 

All tkee wplm pposed that land a+& a#= a&~iiaejon be limited hy '?he factuai 

cip~u~tances of the acquisiticn, lfie location of the acquisition, or the temporal 

sela~omhip of the aquisitlon to the tribal mtoat3011,'Yd 

FactrraI Circedmsrances offhe Acquisition 

The two tracts that make up the Pace1 mere acqurred on Decmbea 27,2205, md 

January 8, 2006, by the mino rnanagmenc company contracting wit? Me Tribe. W%ie 

this acquisi~on is 35 years after being restored by the Upper hk- Porno case, '*be Tribe 

zips that this delay was caused by PSle RIA, which mhed to re-acknowfecige fbe 

Tribe's 1935 md 7941 Clomimtioa. Indd, the etnraal Cdiftrma Agency of the BM 

purport& 10 ZmpoMly mamd the ~ovexnment-fo-govmen~ relatiorship m'f& fie- 
Tribe from 1997 until 2004 whw ?he Tribe elected officers der a newly adopted 

Constitution. 

As medon& above, &a f nbe is Iandlws, although certain members of the Tribe 

-- .- &I1o~.so~s-~o$~w~~.%e.~~Brjaalh&~a. Forfhc:Tfibe.toa~ra~ifs-godof.. - 

restoring its 1md bme it Wen8 one mile beyond the bowdxies of the original Ranchena 

with the assi~~ce of privarc investors. Eventuai returns an &at hvment shared by 

the Tribe *It allow it to funher rmore its land base. as intended by ~e Court In the 

Uplpevhke Porno me. 

The Tribe made sevd attempts to aapke other lmd dunng the last 23 ym it 

has been restored, but lacked legal adoriv to do so acmxdi_rlg to fie BZA. 16 was not 

until 2005, after the Tribe had iiu new Constitution ratified, that it could pmw with 

inwtors to rmcquire property. The Tribe imediateIy applid to hiwe the Pxcd taken 

in to trust in 2006 and the application is pending. b~d with the restored former 

hcheria was not available so they tho* a sire one mile south 2nd a half mile from the 

aibai headquarters. Acquisition of the Pxcef for @rag purposes has the suppft of be 

local and mnpwsional delegation A Memormdum of Understanding has been exemzed 

with the muay govment to address issues such w gming impact co!itq. 

Courts have held that *kesfmation'' dates a taking back or bdng put in a former 

po$ition. Coos at 162. It means 'Yeacquire&" Id. ('The 'restoration of lands' couid be 

construed to mean just tha?; the tribe would Be placed back in its fmer position by 

reacquiring lands.") In my mt, 'kwaration" ddoes nor me= simply "acquired." We 

&erefore must iwk further hr in&cis that the hi! acquisition in mme way restores To 

-tt.leT~a>ewh~tir~~w1yfid,. . -.- - --- .. . - . - . . . 

bcrrrioa and ininor?: 

As mm-tiontd previously, the Pzcel is located one mile mu& ofthe o~@mI 

Reservation boundaries as it existed immediately prior to he termination under rhe 

Cdif~mirt Randheria ACL 

Restored Imds may include o ff-reswvatioa p~fceis, however, there must he 

inacia that nhc 'tmd has in some respects bm recognized as having a sif;nificwt relst~on 

to the Tn3e. Grand Tr~ve~sa Band X at 702. In Grand Travme III. the corn hdd that the 

lands at issue were restored bwause they lav rvithin counties that had previously beer! 

ceded by the tribe ra the Sni td States. Grand Trmers~ Band &P al936. This ruling was 

wnsistent uith its opinion in Grand Trmerse I, in which the court stated that the land's 

location "with a pfim ramion is g@fiant evidmce that the Iznd may be 

considered in same sense rwmed," Id. Xf the site has been important to the tribe 

tnroughout its )listmy and .pern&n& so imdiatdy on rmption of federal recognitran, 

then &at is further evidmce it rs restored. The Parcel is Iocated in the mtddle of t9c area 

used by the Porno people for Yhousmds of years. Accordins 10 De, Davis's "'Himy and 

Territory of the Hahatol el Poma of Upper Lake,'?he subjm property is located "am 
neaby or paiphd - it is central . . . [to the] aboriginal territorq. . . . cmually within the 

saud f &tory . . . as practiced in their religr on, located at Coyote's mythc village of 

Maiyi; it is less than a mile from the Ghost Dace Rodhome? . . . is exactly az the 

junctioa of fim long-distance intmbd mils. . . two miles &am Bloody Island were the 

Indim .wse mssacred by the U,S, Military . . . .cm~ally~witbin.the Cle;fr.hke Ian, . . . .. 

Resmgsn as desctibd in the 165 H maty {which was never ratifid) and rt IS 0.91 miles 

fmm thc mefery ofthe madem Upper Lake Rmchaia." Id. at p. 227. 

Given the close proximity to the original Ranchcriq the ava.rlable historid 

kf~mation. and the archaeological evidence, we mc1udt thwe is dstanrjld eVidmce 

the site has been important to t)le Tribe hughout ib hismy and remained so 

immediately on resumption of fed& recopition. 

Temporal Relatiomhip of Acguisifion to the Tpibal hhraiion 

DO1 opined in the Coos case, =pi, the a fobtrt~n-yea irlapse bewm r uibe's 

testoration md &e aq~sition of land did not foredose a hding the hid was restored. 

('The ma passage of time &odd not be determinative" md 'rhe Tfib quickly 

acqW the %anad its soon as it was wailable d within a rammble amount of time rfter 

being MO&), E,&&se, tbe NiCrC in its Mechoapda lands apizitioka fournd that a nineyear lapse between restoration and acquisition was m6cimt *?emporn1 relatinnship." (At 

the time Phe ,Mechoopda Emds opinion was issued, the land had not yet $em #ken in to 

trust, Mch is the situation here.). 

As mentioned ahver:, the Tribe was restored in 1 9 83 but had no legal or fmcial 

abiIEty to purchase land until, 2805. ?"nc Parcel was acquired by izs business pmm 

immediately afrer the Tribe was leplly capable. The Tribe applied to have the Pa~cel 

t&m in to trust imedirttdy after the pmchase. These circumstances cvidcnce a strong 

ternpara1 relationsip. 

The Pomo Indians of the tipper Me Ranchda is a restored Tribe WI& ;a 

hstoricd comecrion to the Parcel, Acquisition was WII~ 8 reasonable amount of time, 

@Yen the May in obtaimng Icgnl wthority to do so. TGW p&ts tribes to conduct 

gaming on !ndiaa lands Cf rhey have jmisdictian aver those lands and exercise 

govmmt power. Governmental authority will be exercised mce the fee-to-lmst 

p~s5 is complete. The Tribe has entered into a Mmormdum of Vnsl~tding 

[MOL? with the Lake Cow govmmmt addressing civil jhdidon md dme1opmen~ 

o:' &e property. The Tribe and thein: business patmm have post4 'Xo T~spMnjf%gm 

md exclude private kdividu& hm the property. Moreover, &c prospectrve 

&dopmcnt of a gming ordinance md the regdahon of the proporred gaming oopmation 

me indicators of &the exercise of governmental power. If tbe Secretary accepts the IL?~ 

&TO tpa39t, ir will qualify as Indim lands under IGFL4. Then the Tnie may conduct 
gaming, The National Indian Gdag Commissim, Office of Gerrml Coumd, mncm 

with this opinion. 

If you have any questions abst this mattm please do not hesitate to contact ne o: 

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