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January 20, 2009 

The Honorable Barry E. Snyder, Sr., President 

Seneca Nation of Indians 

12837 Route 438 

Irving, NY 14081 

Fax: (716) 532-6272 

Re: Seneca Nation of Indians’ Class III Gaming Ordinance 

Dear President Snyder: 

Before me for review pursuant to the Indian Gaming Regulatory Act (IGRA) is 

the Seneca Nation of Indians’ (Nation) Class III Gaming Ordinance as amended 

(ordinance), adopted by the Nation pursuant to Resolution number CN: S-07-16-08-02. 

25 U.S.C. § 2710(e). The Nation submitted the ordinance to the National Indian Gaming 

Commission (NIGC) on October 22, 2008. Aside from a few minor changes, the newly 

submitted ordinance is identical to the Nation’s previously approved ordinance, which I 

approved on July 2, 2007. Similar to the previous ordinance, the new ordinance is sitespecific and includes a legal description of the Nation’s Buffalo parcel in its Indian lands 

definition. For the reasons set forth herein, the Nation’s ordinance is hereby approved. 

The Nation’s new ordinance was submitted to me for my review and approval as a 

consequence of the decision in Citizens Against Casino Gambling v. Hogen. 2008 U.S. 

Dist. LEXIS 52395, 210 (W.D.N.Y. 2008) (CACGEC II), in which the United States 

District Court for the Western District of New York vacated my July 2, 2007 ordinance 

approval. In vacating my approval, the court found that the Buffalo Parcel constitutes 

after-acquired restricted fee lands subject to the general prohibition against gaming, 25 

U.S.C. § 2719, and that the parcel fails to satisfy the settlement of a land claim exception 

to the general prohibition. Therefore, the court concluded that the Buffalo Parcel is 

ineligible for gaming. Id. 
2

The July 8, 2008 CACGEC II decision places me in a difficult position. Since the 

July 2, 2007 approval, the NIGC’s analyses regarding Indian lands generally and lands 

held in restricted status in particular has undergone significant review, rethinking, and 

revisions. As explained in more detail below, the agency has concluded that its former 

understanding of restricted lands in the context of IGRA requires modification. Such a 

change of course leads me to review this new ordinance and the agency’s Indian lands 

analysis afresh. 

I wish to emphasize in so doing that I am mindful and respectful of the court's 

opinion and the proceedings before the Court. The Court found that my “conclusion that 

Congress intended the section 2719 prohibition to apply to all after-acquired land is a 

permissible construction of the statute.” CACGEC II at 103. The district court did not 

address the U.S. Department of the Interior’s recent regulatory interpretation of the scope 

of section 2719 of the IGRA. In light of such interpretation, I must exercise my statutory 

obligations consistent with the best reading of the law. 

Background

As you are aware, the Nation’s gaming ordinances, and my approval of those 

ordinances, have been the subject of much controversy, as well as two lawsuits. The first 

ordinance to be challenged, the “Class III Gaming Ordinance of 2002 as Amended,” was 

submitted by the Nation on November 25, 2002. The 2002 Ordinance’s definition of 

Nation lands was consistent with that of IGRA and was not specific as to which lands the 

Nation planned to game upon. Seneca Nation of Indians Class III Gaming Ordinance of 

2002 as Amended, § 4-1(u). I approved the 2002 Ordinance on November 26, 2002. My 

approval letter to the Nation advised that “the gaming ordinance is approved for gaming 

only on Indian lands, as defined in the IGRA, over which the Nation has jurisdiction.”

Letter from Phil Hogen, NIGC, to Cyrus Schindler, Seneca Nation of Indians at 1 

(November 26, 2002). 

In October 2005, the Nation purchased approximately nine acres of land in 

Buffalo, New York, with funds obtained pursuant to the Seneca Nation Settlement Act of 

1990 (SNSA), Pub. L. No. 101-503; 25 U.S.C. § 1774 et seq. Pursuant to the SNSA, the 

Nation notified the Secretary of the Interior (Secretary) of its purchase and its intent to 

hold the land in restricted fee. The Secretary did not object, and the land acquired 

restricted fee status in December 2005. The Nation announced its plans to build a gaming 

facility on the land shortly thereafter. 

On January 3, 2006, the Citizens Against Casino Gambling in Erie County 

(CACGEC) and various members of the Buffalo and New York State community filed 

suit in the U.S. District Court for the Western District of New York against the NIGC 

Chairman, the NIGC, the Secretary, and the U.S. Department of the Interior claiming, in 

part, that my approval of the Nation’s 2002 ordinance was arbitrary and capricious. The 

court held that because Nation’s compact with New York, which specifies the locations 

where the tribe can game, was submitted with the ordinance, I should have made a land 
3

determination for the as yet unselected site in Buffalo before approving the ordinance. On 

January 12, 2007, the court vacated my approval of the 2002 ordinance and remanded it 

to me with instructions that I determine whether the Buffalo Parcel is Indian lands within 

the meaning of IGRA. Citizens Against Casino Gambling in Erie Country v.

Kempthorne, 471 F. Supp. 2d 295, 329 (W.D.N.Y. 2007) (CACGEC I). 

Before I could act in accordance with the court’s January 12, 2007 decision, the 

Nation amended the 2002 Ordinance on June 9, 2007, and submitted the amendment to 

me for review on June 15, 2007. The amended ordinance included a definition of Nation 

Lands that included a legal description of the Nation’s gaming parcel in Buffalo, New 

York. Specifically, the new definition read: 

“Nation Lands” shall have the meaning found in 25 U.S.C. § 2703(4), and 

shall also include the Buffalo Parcel, which is the real property in Erie 

County held by the Seneca Nation of Indians and subject to restrictions by 

the United States against the alienation pursuant to Seneca Nation Land 

Claim Settlement Act, which is described as follows: 

The northern parcel (+/- 4.5 acres) is bounded to the North by 

Perry Street, to the East by Marvin Street, to the South by the 

former Fulton Street, and to the West by Michigan Street. 

The southern parcel (+/- 4.5 acres) is bounded to the North by the 

former Fulton Street, to the East by Marvin Street, to the South by 

South Park Street, and to the west by Michigan Street. 

Seneca Nation Class III Gaming Ordinance of 2007, § 4-1(u). 

I approved the amended ordinance on July 2, 2007. As part of the approval, I 

found that the Buffalo Parcel described in the definition of Nation lands was eligible for 

gaming because it met the definition of Indian lands for purposes of IGRA, was acquired 

pursuant to a settlement of a land claim, and was therefore excepted from the prohibition 

against gaming on lands taken into trust after October 17, 1988. Letter from Philip 

Hogen, NIGC, to Maurice John, Seneca Nation of Indians at 1 (July 2, 2007). 

My July 2, 2007 approval discussed IGRA’s general prohibition against gaming 

on lands acquired into trust after October 17, 1988. 25 U.S.C. § 2719. I explained that the 

agency interpreted section 2719 to “include land held by an Indian tribe in restricted fee” 

in spite of the fact that the explicit language of that section refers only to trust land. Id. at 

2. In support of the interpretation, I relied on and deferred to the Secretary’s previous 

determination that Congress did not intend to limit the restriction against gaming on after 

acquired land, or its exceptions, to only trust acquisitions. Id., citing, Letter from Gale 

Norton, DOI, to Cyrus Schindler, Seneca Nation of Indians at 7 (Nov. 12, 2002) (“I 

believe that lands held in restricted fee pursuant to an Act of Congress... must be subject 

to the requirements of section 20 of IGRA.”). 
4

After determining that the Buffalo Parcel qualified as Indian lands and that the 

general prohibition against gaming on after-acquired lands applied to land held in 

restricted status, I found that the Buffalo Parcel satisfied the “settlement of a land claim” 

exception. In doing so, I deferred to the earlier letter of the Secretary stating that land 

taken into restricted fee in Buffalo, New York, pursuant to the SNSA would meet the 

settlement of a land claim exception. Id. at 4-5, citing Letter from Gale Norton, DOI, to 

Cyrus Schindler, Seneca Nation of Indians at 7 (Nov. 12, 2002). Based on that analysis, I 

approved the Nation’s 2007 amended ordinance. 

Upon approval, CACGEC, with various community members and local 

government officials, filed a second lawsuit against the NIGC Chairman, the NIGC, the 

Secretary, and the DOI. The Plaintiffs once again argued that my decision to approve the 

Nation’s 2007 amended ordinance was arbitrary and capricious. On July 8, 2008, the 

United States District Court for the Western District of New York vacated my approval 

of the amended ordinance. CACGEC II at 210. The Court held that my determination that 

the Nation’s restricted fee lands constitute Indian lands for purposes of IGRA was 

correct. Id. at 169. Further, the Court held my “conclusion that Congress intended the 

section 20 [25 U.S.C. § 2719] prohibition to apply to all after-acquired land is a 

permissible construction of the statute.” Id. at 103. The Court also ruled, however, that 

the SNSA did not settle a land claim and, therefore, land purchased with SNSA funds did 

not meet the land claim settlement exception to the general prohibition against gaming on 

land acquired after October 17, 1988. Id. at 202-203. As a result, the court held that the 

Nation’s Buffalo Parcel is ineligible for gaming under IGRA and vacated the July 2, 2007 

ordinance approval. Id. at 210. 

On May 20, 2008, after the NIGC’s July 2, 2007 ordinance approval and before 

the Court’s July 8, 2008 order vacating the approval, the U.S. Department of the Interior 

(DOI) published initial regulations implementing 25 U.S.C. § 2719 (regulations). 73 F.R. 

29354 (May 20, 2008). In the preamble to the regulations, DOI explains that the 

prohibition against gaming on after-acquired land does not apply to lands held by a tribe 

pursuant to a restriction against alienation. 73 F.R. at 29355, 29376-77. Specifically, in 

the preamble, DOI stated that “[t]he omission of restricted fee from section 2719(a) is 

considered purposeful, because Congress referred to restricted fee lands elsewhere in 

IGRA, including at sections 2719 (a)(2)(A)(ii) and 2703(4)(B).” 73 F.R. 29355. 1 The 

regulations became effective on August 25, 2008. 

On July 22, 2008, subsequent to the publication of the initial regulations, the 

United States moved the district court to remand my July 2007 ordinance approval to 

allow me to consider the application of the regulations to the ordinance. In its motion, the 

United States informed the court that the Nation had submitted a new ordinance on 

July 16, 2008, which I would have to consider in light of the initial regulations if the 

remand was not granted. The district court denied the motion, holding in part that even in 

the absence of a remand, the NIGC will have the opportunity to review the new 

 

1

 DOI further discusses the reasons for this interpretation in a memorandum to the Secretary from the 

Solicitor. See January 18, 2008, Memorandum from David Bernhardt, Solicitor to Dirk Kempthorne, 

Secretary of the Interior, regarding Applicability of 25 U.S.C. § 2719 to Restricted fee lands.
5

regulations as part of the July 16, 2008 ordinance review and approval or disapproval. 

See Citizens Against Casino Gambling v. Hogen, 2008 U.S. Dist. LEXIS 67743, 33 

(W.D.N.Y. August 26, 2008). The Nation subsequently withdrew the July 16, 2008 

ordinance from my review, but submitted the present ordinance, which is identical to its 

immediate predecessor. 

Given DOI’s issuance of new regulations that are now in effect, its articulation 

regarding section 2719’s inapplicability to restricted fee land, and the NIGC’s intent to 

follow the regulations, including the interpretation that excludes restricted lands from the 

general prohibition of gaming on after acquired lands, I will proceed to review the new 

ordinance before me. 

Like its predecessor, the October 22, 2008 ordinance is site specific and includes 

a legal definition of the Buffalo Parcel. Ordinance at § 4.1(u). The Ordinance also now 

defines Settlement Act lands as, “the real property that is held by the Nation in restricted 

fee status and subject to restrictions by the United States against alienation pursuant to 

the Seneca Nation Land Claims Settlement Act.” Id. at § 4.1(bb). 

Based on recent changes in the interpretation of 25 U.S.C. § 2719, I approve the 

2008 ordinance, as amended. 

The Law

Review by a court of an agency interpretation is a two step analysis. Chevron v. 

Natural Resources Defense Council, 467 U.S. 837, 842 (1984) (“[w]hen a court reviews

an agency’s construction of the statute which it administers, it is confronted with two 

questions.”). In Chevron’s first step, the court must answer, “whether Congress has 

directly spoken to the precise question at issue.” Id. If the language of the statute is clear, 

the court and the agency must give effect to “the unambiguously expressed intent of 

Congress.” Id. If, however, the statute is “silent or ambiguous,” the court must invoke the 

second step of the Chevron analysis and determine whether the agency’s interpretation is 

“based on a reasonable construction of the statute.” Id. at 842-843. “In such a case, a 

court may not substitute its own construction of a statutory provision for a reasonable 

interpretation made by the administrator of an agency.” Id. at 844. 

An agency with authority to interpret a statute has the authority to change its 

interpretation, and a reinterpretation of a statute is “entitled to no less deference...simply 

because it has changed over time. On the contrary, the agency, to engage in informed rule 

making, must consider varying interpretations and the wisdom of its policy on an ongoing basis.” National Home Equity Mort. Ass’n v. Office of Thrift, 373 F.3d 1355, 1360 

(D.C. Cir. 2004) (quoting Chevron, 467 U.S. at 863-864). When an agency changes its 

interpretation, though, it “must provide a reasoned analysis for its change in course.” Id. 

(quoting Motor Vehicle Mfrs. Ass’n of U.S. Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 

29, 57 (1983)). 
6

At issue in this decision is the Nation’s 2008 site-specific gaming ordinance. For 

me to approve the ordinance, the parcel at issue must constitute Indian lands for purposes 

of IGRA and the prohibition against gaming on after acquired lands, section 2719 of 

IGRA, must not apply. 

IGRA permits gaming only on Indian lands, 25 U.S.C. §§ 2710(b)(1), (2); 

2710(d)(1), (2), which it defines 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 States against alienation and 

over which an Indian tribe exercises governmental power. 

25 U.S.C. § 2703(4). The NIGC’s implementing regulations clarify the meaning of 

Indian lands as follows: 

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. § 502.12. 

 The DOI regulation governing the acquisition of land by the United States 

in trust for Indians and Indian tribes defines [t]rust land or land in trust status as, 

“land the title to which is held in trust by the United States for individual Indian 

or a tribe” 25 C.F.R. § 151.2(d). The regulation also defines [r]estricted land or 

land in restricted status as “land the title to which is held by an individual Indian 

or a tribe and which can only be alienated or encumbered by the owner with the 

approval of the Secretary . . .” 25 C.F.R. § 151.2(e). 

If the land meets IGRA’s definition of Indian lands, the next question is 

whether section 2719 applies. Section 2719 states that “gaming 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 certain exceptions apply. 

25 U.S.C. § 2719. 
7

As explained above, DOI issued initial regulations interpreting section 2719 on 

May 20, 2008. Those regulations went into effect on August 25, 2008. In the preamble 

to the regulations, DOI indicated its view of section 2719, explaining: 

The omission of restricted fee from section 2719(a) is considered 

purposeful, because Congress referred to restricted fee lands elsewhere in 

IGRA, including at sections 2719 (a)(2)(A)(ii) and 2703(4)(B). 

73 F.R. 29355. The NIGC concurs in DOI’s interpretation of section 2719 and it 

is applied in this instance. 

The Buffalo Parcel Is Restricted Fee Land

 

As noted above, the Nation’s 2008 site-specific ordinance includes in its 

definition of Indian lands a description of the Buffalo Parcel. As explained in my 

approval of the 2007 ordinance, the Buffalo Parcel qualifies as restricted fee lands. 

The restricted fee status of the Buffalo Parcel is the result of the SNSA. It settled 

disputes over certain leases between the Seneca Nation, the village of Salamanca, New 

York, and the United States, 25 U.S.C. § 1774(b), and appropriated $60,000,000 to the 

Nation. 25 U.S.C. § 1774d. In return, the Nation settled takings and other claims against 

the United States and agreed to offer new leases to the lessees. The SNSA allows the 

Nation to use settlement funds to acquire “land within the aboriginal area in New York or 

situated within or near proximity to former reservation lands.” 25 U.S.C. § 1774f(c). The 

SNSA then provides that land so acquired will be held in restricted fee.2

Here, DOI certified that according to the provisions of the SNSA, the Buffalo 

Parcel became restricted fee land by operation of law on December 2, 2005. Because DOI 

is the agency charged with administering the SNSA, see Passamaquoddy Tribe v. Maine, 

75 F.3d 784, 794 (D.Me. 1996), the NIGC defers to its determination that the land 

acquisition met the requirements of the SNSA to be taken into restricted fee. In addition 

to DOI’s certification, the U.S. District Court for the Western District of New York held 

that: “[t]he land in the City of Buffalo at issue in this case was purchased by the SNI in 

2005 and is held in ‘restricted fee’— i.e., it is subject to restriction by the United States 

against alienation.” CACGEC I at 304; CACGEC II at 91 (“The Buffalo Parcel’s status as 

restricted fee land is not in dispute.”). 

As restricted fee land, the Buffalo Parcel is held by the Nation subject to 

restriction by the United States against alienation and, therefore, conforms to the first 

requirement of IGRA’s Indian Lands definition. See 25 U.S.C. § 2703(4)(B). 

 

2

See 25 U.S.C. § 1774f(c) (“Unless the Secretary determines within 30 days after the comment 

period that such lands should not be subject to the provisions of section 2116 of the Revised 

Statutes (25 U.S.C. § 177), such lands shall be subject to the provisions of that Act [section] and 

shall be held in restricted fee status by the Seneca Nation.”) 
8

Jurisdiction and the Exercise of Governmental Power

The Nation also exercises governmental power over the Buffalo Parcel. This 

conclusion, however, is not as straightforward as simply noting that the Nation holds the 

land subject to restriction by the United States against alienation. In order to exercise 

governmental power over its land, the Nation must first have jurisdiction to do so. See, 

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

2000), aff’d and remanded, Kansas v. United States, 249 F. 3d 1213 (10th 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 Oklahoma v. United States, 927 F. 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. § 2703(4)). 

1. Jurisdiction 

The presumption of jurisdiction exists for any federally recognized tribe acting 

within the limits of Indian country. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 

329 (1998). This jurisdiction, an inherent sovereign power, can only be modified by a 

clear and explicit expression of Congress. See Yankton Sioux Tribe, 522 U.S. at 341; see 

also Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 140 (1982). 

Over time, the term Indian country has referred to lands upon which the federal 

government and the Indian tribe share primary jurisdiction. See CACGEC II, at 93, citing 

Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, 529 (1998). The term 

Indian country is defined by 18 U.S.C. § 1151 as follows: 

(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 communities 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. 

Although section 1151 defines Indian country for purposes of criminal 

jurisdiction, the definition has expanded to include civil jurisdiction, thus becoming the 

accepted general definition of Indian country. DeCoteau v. District County Court for the 
9

Tenth Judicial District, 420 U.S. 425, fn. 2 (1975); CACGEC II at 95. In its review of 18 

U.S.C. § 1151, the U.S. Supreme Court found that the statute contains two criteria that 

are necessary for land to constitute Indian country: (1) lands set aside for Indians and (2) 

federal superintendence of those lands. See Venetie, 522 U.S. at 527; CACGEC II at 95. 

Although for many the term “Indian country” may be perceived as synonymous 

with the reservation system, this perception is erroneous because the term is not so 

limited. Reservation status is not necessary for a finding of Indian country. See Oklahoma 

Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 

(1991) (“No precedent of this Court has ever drawn the distinction between tribal trust 

land and reservation that Oklahoma urges.”). In United States v. Roberts, 185 F.3d 1125 

(10th Cir. 1999), the Tenth Circuit found that “[o]fficial designation of reservation status 

is not necessary for the property to be treated as Indian Country under 18 U.S.C. § 1151,” 

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

under federal superintendence.” Id. at 1133, n.4. Thus, as long as the land in question is 

validly set apart for the use of the Indians and is under federal superintendence, that land 

can be considered “Indian Country.” Roberts, 185 F.3d at 1131, n.4. See also CACGEC 

II, at 126-127, 139-141 & 147. Accordingly, lands held in trust or pursuant to the United 

States’ restriction against alienation, allotments, and reservations may all be considered 

Indian country. See United States v. Sandoval, 231 U.S. 28 (1913) (restricted fee land as 

Indian Country); United States v. Pelican, 232 U.S. 442 (1914) (allotment as Indian 

Country); United States v. McGowan, 302 U.S. 535 (1938) (trust land as Indian Country). 

In the matter at hand, once the Secretary of the U.S. Department of the Interior 

allowed the Buffalo Parcel to pass into restricted fee pursuant to the SNSA, the land 

became Indian country within the meaning of 18 U.S.C. § 1151. The site was “validly set 

apart for the use of the Indians as such, under the superintendence of the Government.” 

Potawatomi, 498 U.S. at 511. The federal set-aside requirement is met by the SNSA’s 

requirement that land enter restricted fee unless the Secretary decides that the Nonintercourse Act should not apply to the land. Here, the Secretary made no such 

determination and the Nation’s land in Buffalo was set aside by the federal government 

for the Nation’s use. Because the SNSA subjects the land to the Non-intercourse Act, it 

also meets the government supervision requirement. In its Venetie decision, the U.S. 

Supreme Court discussed the holding of United States v. Sandoval, 231 U.S. 28 (1913), 

noting that although the Pueblo Indians’ land was owned in fee simple, Congress had 

enacted legislation with respect to the land ‘in the exercise of the government’s 

guardianship over the [Indian] tribes and their affairs,’ including [the Non-Intercourse 

Act]. Venetie, at 528 and n.4. This, according to the Supreme Court, met the 

superintendence requirement. 

Additionally, in CACGEC II, the district court found: “[T]hat Congress in 

enacting the SNSA, unambiguously intended that land purchased with SNSA funds and 

made subject to the Nonintercourse Act be set apart for the SNI’s use and placed under 

federal superintendence. In short, such land is Indian country over which the federal 

government and the SNI exercise primary jurisdiction.” CACGEC II at 97. Further, the 

Court held that “[t]he NIGC Chairman’s determination - that the Buffalo Parcel, 
10

purchased with SNSA funds and held in restricted fee status, is Indian country over 

which the SNI has jurisdiction – is entirely consistent with and gives effect to Congress’s 

expressed intent” and, thus, is in accordance with the law. Id. at 98. 

Accordingly, the Nation possesses jurisdiction to exercise governmental authority 

over the Buffalo Parcel. 

2. Exercise of Governmental Authority 

In order for the Buffalo Parcel to qualify as Indian lands under IGRA, the Nation 

must also exercise present-day, governmental authority over 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 NIGC 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 have provided useful guidance on the question of “exercise of 

governmental powers.” For example, governmental power involves “the presence of 

concrete manifestations of ... authority.” Narragansett Indian Tribe, 19 F.3d at 703. 

Examples of the presence of concrete manifestations of governmental authority include 

the establishment of a housing authority, administration of health care programs, job 

training, public safety, conservation, and other governmental programs. Id. 

Since acquiring the land in 2005, the Nation’s Marshal’s Office patrols and 

polices the Buffalo Parcel. The Nation has fenced the site to restrict access and posted 

signs indicating that site is subject to the Nation’s jurisdiction. The Nation has also 

enacted several ordinances and resolutions applying its laws to the Parcel. In addition to 

current exercises of governmental power, by operating and regulating gaming, which is a 

governmental function under IGRA, the Nation exercises governmental authority over 

the land. Because the land described in the 2008 ordinance is held in restricted fee and 

the Nation exercises governmental authority over it, the land meets IGRA’s Indian Lands

definition. See 25 U.S.C. § 2703(4). 

Section 2719 Prohibition

The determination of whether the Buffalo Parcel constitutes Indian lands, 

however, is not the end of the inquiry. Section 2719 of IGRA generally prohibits gaming 

on lands acquired in trust after October 17, 1988, unless certain exceptions apply. 

Because the Nation’s Buffalo Parcel was purchased in 2005, I must examine whether 

section 2719 prohibits the Nation from gaming on the parcel. 

I. NIGC’s authority to reinterpret Section 2719 

The first issue I must decide is whether the NIGC is bound by the agency’s 

previous interpretation of section 2719, my application of that interpretation to the 
11

Nation’s 2007 ordinance, and the district court’s well-reasoned ratification of that 

interpretation. Ultimately, I have concluded that the agency is not so bound. 

As explained above, new DOI initial regulations became effective on August 25, 

2008. The preamble of the regulations articulates DOI’s view that section 2719’s general 

prohibition only applies to trust land. As quoted above, the preamble states: “The 

omission of restricted fee from section 2719(a) is considered purposeful, because 

Congress referred to restricted fee lands elsewhere in IGRA, including at sections 2719 

(a)(2)(A)(ii) and 2703(4)(B).” 73 F.R. 29355. 

Moreover, the NIGC will follow the regulations and concurs in this interpretation, 

as it adheres to the explicit language of the statute. Congress has clearly spoken to the 

issue of section 2719’s application to lands held by a tribe subject to restriction by the 

United States against alienation. Section 2719 states as follows: 

Except as provided in subsection (b) of this section, gaming 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 . . . [certain exceptions 

are met.] 

25 U.S.C. § 2719. 

In reviewing the language of section 2719, it only references trust land acquired 

after October 17, 1988. It says nothing of land held by a tribe subject to restriction by the 

United States against alienation. As such, Congress made its intent clear and the issue can 

be resolved at step one of Chevron. 

Even if the language is ambiguous, though, DOI and NIGC’s interpretation is 

entitled to deference. The NIGC and DOI are each charged with specific duties under 

IGRA. When two or more agencies administer a statute and work together on its 

interpretation, the interpretation of each agency is granted Chevron deference. Individual 

References Servs. Group, Inc. v. Federal Trade Commission, 145 F. Supp. 2d 6, 23-24 

(D. D.C. 2001). 

As explained above, the Supreme Court, in Chevron, established a two-step 

process for determining whether an agency’s interpretation is entitled to deference. 

Chevron at 842-843. At step one, the court looks to whether Congress has clearly spoken 

on the issue. Id. at 842. If it hasn’t, and the statute is silent or ambiguous, the court must 

invoke step two of the Chevron analysis and determine whether the agency’s 

interpretation is based on a permissible construction of the statute. Id. at 843. When an 

agency charged with administering a statute interprets an ambiguity in the statute or fills 

a gap where Congress has been silent, the agency’s interpretation is controlling unless it 

is arbitrary, capricious, or contrary to the statute. Id. at 844. 

Although the language of section 2719 is clear, the recent holding in CACGEC II

indicates that the section may be open to interpretation. The district court ruled that 
12

“Chairman Hogen's conclusion that Congress intended the section 20 prohibition to apply 

to all after-acquired land is a permissible construction of the statute.” CACGEC II at 177-

178. However, even if I was to agree with the court that section 2719’s language is not 

clear as to the application of the general prohibition, the new interpretation is superior 

and entitled to deference under step two of Chevron. 

II. Former Interpretation and Basis for Reviewing Prior Interpretation 

of Section 2719. 

As noted above, on May 20, 2008, DOI published initial regulations, which the 

NIGC intends to follow, implementing section 2719 of IGRA that became effective on 

August 25, 2008. Gaming on Trust Lands Acquired After October 17, 1988, 73 Fed. Reg. 

29354 (May 20, 2008); Gaming on Trust Lands Acquired After October 17, 1988; 

Correction, 73 Fed. Reg. 35579-35580. The regulations articulate the standards that DOI 

will follow in interpreting various exceptions to the gaming prohibitions contained in 

section 2719 of IGRA. 73 Fed. Reg. 29355. In particular, under the initial regulations, 

DOI interprets section 2719 to apply only to trust lands and establishes criteria necessary 

for meeting the “settlement of a land claim” exception. 73 Fed. Reg. 29355, 29376-77. 

Thus, DOI interprets the general prohibition as not encompassing lands held by a tribe 

subject to restriction by the United States against alienation. 

Previously, DOI and the NIGC applied the section 2719 prohibition to restricted 

lands because the agencies believed that doing otherwise would create a loophole 

allowing tribes to game on lands not intended by Congress. The NIGC and DOI reasoned 

that Congress intended to restrict gaming opportunities upon all Indian lands acquired 

after the date of the statute’s enactment unless one of the section 2719 exceptions 

applied. Letter from Philip N. Hogen, NIGC, to Maurice A. John, Seneca Nation of 

Indians at 4 (July 2, 2007); Letter from Secretary Gale Norton, DOI, to Cyrus Schindler, 

Seneca Nation of Indians at 7 (Nov. 12, 2002). Although section 2719 explicitly applies 

only to trust land acquired after October 19, 1988, and does not reference restricted land 

in its prohibition, DOI and the NIGC believed that a literal reading of section 2719 would 

conflict with Congress’s intent in drafting the prohibition. See United States v. Ron Pair 

Enters., Inc., 489 U.S. 235, 242 (1989) (“Where the literal interpretation of a statute will 

produce a result demonstrably at odds with the intent of the drafters...the intention of the 

drafters, rather than the strict language controls.”). This concern was also addressed by 

the District Court in CACGEC II, in which it applied similar reasoning and held the 

application of section 2719 to the Nation’s restricted fee land in Buffalo was a 

permissible interpretation of IGRA. CACGEC II at 177-178. We are satisfied that the 

new interpretation of section 2719 does not threaten to undermine IGRA or conflict with 

Congressional intent. 

First, this position on section 2719’s applicability to restricted land has a very 

limited effect because it presently only affects one tribe, the Seneca Nation. “Because 

Congress has plenary power over Indian affairs, see U.S. Const. Art. I, § 8, cl. 3, some 

explicit action by Congress (or the Executive, acting under delegated authority) must be 

taken to create or to recognize Indian country.” Alaska v. Native Village of Venetie, 522 
13

U.S. 520, 530, fn. 6 (1997). Unlike with trust land, Congress has not delegated general 

authority to the Executive to place land in restricted status. See 25 U.S.C. § 465. 

Therefore, the Secretary cannot allow land to go into restricted status unless authorized to 

do so by Congress. We know of only one Act that expressly permits the Secretary to 

create restricted fee land for a tribe, which is the SNSA. 25 U.S.C. § 1774 et seq. The Act 

authorizes the Nation to purchase land with funds appropriated under the SNSA. Unless 

the Secretary determines the land should not be subject to the restrictions of the NonIntercourse Act, 25 U.S.C. § 177, it shall be held by the Nation in restricted fee. 25 U.S.C 

§ 1774f(c). Because the SNSA is the only Act permitting the Secretary to accept land into 

restricted status for a tribe, the new interpretation has a very limited effect. 

Second, the NIGC has revisited its concern that a tribe may argue that offreservation property purchased in fee on the open market is restricted Indian land due to 

the application of the Non-intercourse Act or a tribal charter and, therefore, eligible for 

gaming. We are now satisfied that the prior interpretation failed to recognize that the 

Non-intercourse Act does not apply to off-reservation fee lands when such lands are not 

Indian country. Even if it did, such lands would likely fail to meet the requirements 

necessary to meet IGRA’s definition of Indian lands. 

The Department of the Interior has recently taken the position that the Nonintercourse Act does not apply to off reservation fee land purchased by a tribe in fee 

simple.3

 This position is similar to that advanced by the United States in its amicus brief 

for the case Leech Lake Band of Chippewa Indians v. Cass County, Minnesota, 108 F.3d 

820 (8th Cir. 1997). In Cass County, the Leech Lake Band of Chippewa Indians claimed 

that land the Band had purchased within the bounds of its reservation was not subject to 

taxation by the county. In its amicus brief to the 8

th Circuit Court of Appeals, the United 

States argued that the Non-intercourse Act applies to “all reservation lands held by a 

tribe, including land recently acquired in fee.” Cass County, 1997 U.S. Briefs 174, 14-15. 

In doing so, the United States suggested that off-reservation lands are not protected under 

the Non-intercourse Act and expanded on this premise by stating: “[T]his case is 

concerned only with tribally owned lands on a reservation, where the Act serves to 

protect the tribal land base.” Id. at 27, n. 13. The qualifying language in the brief, “on a 

reservation, where the Act serves to protect the tribal land base,” signifies that the 

litigating position of the United States is that the Non-intercourse Act’s Federal 

protections against alienation do not extend to off-reservation lands owned by a tribe in 

fee unless some extenuating circumstances exist. 

 

In its Cass County brief, the United States discussed the fact that the 1834 Act 

enacting the Non-Intercourse Act was intended to apply to “Indian Country,” as defined 

 

3

See January 18, 2009, M-30723 regarding Applicability of 25 U.S.C. § 2719 to Restricted fee lands; see 

also Letter of December 19, 2008 from George Skibine, Acting Deputy Assistant Secretary-Policy and 

Economic Development, to Carl Edwards, President of the Lac du Flambeau Band of Lake Superior 

Chippewa Indians of Wisconsin. Lac du Flambeau requested confirmation from DOI that it may convey a 

specific parcel of land purchased by the Tribe in fee simple and located off-reservation. DOI instructed the 

Tribe that Federal restrictions against alienation did not attach to the parcel when the Tribe purchased it and 

the Non-intercourse Act does not apply to the parcel. 
14

in section 1 of the Act. Id. citing Wilson v. Omaha Indian Tribe, 442 U.S. 653, 667-668 

(1979) (quoting H.R. Rep. No. 474, 23rd Cong., 1st Sess. 10 (1834)). The definition of 

“Indian Country” in section 1 of the 1834 Act was omitted from the Revised Statutes and 

“therefore repealed, and the scope of the term was left to judicial decisions until Congress 

enacted the current definition of Indian country in 18 U.S.C. § 1151.” Id. (citing Wilson, 

442 U.S. at 668 (citing Rev. Stat. § 5596 (1874 ed.)). Section 1151’s definition includes 

all lands within the boundaries of a reservation, dependent Indian communities, and all 

allotments to which the Indian titles have not been extinguished. See Solem v. Bartlett 

465 U.S. 463, 468 (1984). Thus, if off-reservation fee land purchased by a tribe does not 

otherwise meet one of the above categories of Indian country, the Non-intercourse Act 

does not apply, and there is no restriction against alienation on the land. 

The determination that the Non-intercourse Act does not apply to off reservation 

fee land acquired by a tribe outside of Indian country is in keeping with the district 

court’s finding in CACGEC II. See CACGEC II at 135-136.

 

However, even if off-reservation fee land possesses a restriction against alienation 

by operation of the Non-intercourse Act or a tribal charter, IGRA itself will likely prevent 

tribes from gaming on that land because to qualify as Indian lands, the tribe must 

exercise governmental power over the restricted land. In order to exercise governmental 

power, the tribe must have jurisdiction over the land. Tribes have jurisdiction over Indian 

country, which requires that the land in question be set aside by the federal government 

and be subject to federal superintendence. 

In most cases, it is unlikely that a tribe can show jurisdiction to exercise 

governmental power over off-reservation land it buys in fee on the open market. Tribes 

have jurisdiction within Indian country, see South Dakota v. Yankton Sioux Tribe, 522 

U.S. 329 (1998), but off-reservation fee land acquired on the open market generally will 

not qualify as Indian country. The definition of Indian country includes reservation land, 

dependent Indian communities, and Indian allotments. See 18 U.S.C. § 1151. This 

definition reflects the two criteria the Supreme Court has held necessary for a finding that 

lands constitute Indian country: lands set aside for Indians and federal superintendence of 

those lands. Venetie, 522 U.S. at 527; see also CACGEC II at 126-127, 139-141 & 147. 

Because restricted land may be interpreted as neither reservation nor Indian allotment 

land,4

 it is Indian country only if it is a dependent Indian community. See CACGEC II at 

126; cf Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 128 (1993); 

Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe, 498 U.S. 505, 511 

(1991)(rejecting distinction between tribal trust land and reservation). Like all parts of the 

Indian country definition, dependent Indian community requires federal set-aside and 

federal superintendence. Venetie at 530; CACGEC II at 126-141. To meet the federal setaside requirement, the Federal Government must take some action setting apart the land 

for the use of the Indians as such. Id. at fn. 5, quoting United States v. McGowan, 302 

 

4

See 25 C.F.R. § 151.2 (“Restricted land or land in restricted status means land the title to which is held by 

an individual Indian or a tribe and which can only be alienated or encumbered by the owner with the 

approval of the Secretary”). 
15

U.S. 535, 539 (1938) (“The Reno Colony has been validly set apart for the use of the 

Indians. It is under the superintendence of the Government. The Government retains title 

to the lands which it permits the Indians to occupy”). The federal set-aside requirement 

also “reflects the fact that because Congress has plenary power over Indian affairs, see

U.S. Const., Art. 1, § 8, cl. 3, some explicit action by Congress (or the executive, acting 

under delegated authority) must be taken to create or to recognize Indian country.” 

Venetie, 522 U.S. at 955, fn. 6. 

 The 10th Circuit in Buzzard v. Oklahoma Tax Commission, 992 F.2d 1073 (10th

Cir. 1993), expounded on the federal set-aside and federal superintendence requirements. 

In Buzzard, the United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) 

asserted that land it purchased in fee should be considered Indian country because both its 

tribal charter and the Non-intercourse Act require it to obtain the approval of the federal 

government before disposing of the land. Id. at 1075. While the 10th Circuit found that 

the Band must obtain the Secretary’s approval before alienating the land, it did not reach 

the question of whether the restriction against alienation was the result of the Band’s 

charter or the Non-intercourse Act. The court did make clear, though, that the restriction 

against alienation alone did not create Indian country. Id. at 1076. The Court found that 

although the United Keetoowah Band must obtain the Secretary’s approval before 

alienating the land, the Band had the right to obtain that land unilaterally and no action 

had been taken by the Federal Government indicating that it set aside the land for the 

Band’s use. Id. at 1076. The 10th Circuit reasoned “[a] restriction against alienation 

requiring government approval may show a desire to protect the UKB from unfair 

dispositions of its land...but it does not of itself indicate that the federal government 

intended the land to be set aside for the UKB’s use.” Id. (citation omitted). The 10th

Circuit, in analyzing the federal superintendence requirement, ruled: 

The federal government has not retained title to this land or indicated that 

it is prepared to exert jurisdiction over the land. At most it has agreed to 

approve transactions disposing the land. But the ability to veto a sale does 

not require the sort of active involvement that can be described as 

superintendence of the land. 

Id. 

The District Court in CACGEC II also looked to Buzzard to support its holding 

that the Nation’s Buffalo parcel met the first requirement, federal set aside, for a 

dependent Indian community. The Court noted that Buzzard did not reach the question of 

the applicability of the Non-intercourse Act to the United Keetoowah Band’s fee land, 

but settled the matter on the grounds that there was no federal set-aside, and thus no 

dependent Indian community. CACGEC II at 132-135. 

 

Accordingly, even if the Non-intercourse Act applies to off reservation land 

unilaterally purchased by a tribe, a tribe could not demonstrate federal set-aside or 

superintendence for such merely through a automatically applied restriction against 

alienation. Therefore, there will be no sudden dramatic increase in gaming eligible land if 
16

section 2719 applies only to trust land and Congress’s intent in drafting section 2719 may 

be implemented without taking an overly-restrictive view of the provision. 

III. New Interpretation 

Based on the above analysis, the NIGC concurs with DOI’s determination that 

section 2719 does not apply to restricted land. The explicit language of IGRA itself 

supports this new reading. The language of IGRA is plain and both the NIGC and DOI 

agree that Congress has clearly spoken on the issue of whether section 2719 applies to 

restricted land. As such, the issue should be settled at step one of the Chevron analysis. 

However, even if section 2719 is ambiguous, this new interpretation is entitled to 

deference under step two of Chevron. 

1. Chevron Step One 

The new interpretation of section 2719 adheres to the explicit language of the 

statute. Congress clearly spoke on the issue of whether section 2719 applies to restricted 

land. Where the language of a statute is plain, the “cardinal canon” of construction 

commands a court or agency to “presume that a legislature says in a statute what it means 

and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 

249, 253-254 (1992). This plain meaning canon has been applied to section 2719 in the 

past. See, Grand Traverse Band of Ottawa and Chippewa Indians v. Office of the U.S. 

Attorney for the Western District of Michigan, 369 F.3d 960, 965 (6th Cir. 2004), (“The 

IGRA does not define the words "restored" and "restoration" in the "restoration of lands" 

exception set forth at § 2719(b)(1)(B)(iii). Therefore, this Court must give the words 

‘their ordinary, contemporary, common meaning, absent an indication Congress intended 

them to bear some different import.’”); Confederated Tribes of Coos, Lower Umpqua & 

Siuslaw Indians v. Babbitt, 116 F. Supp.2d 155, 162 (D.D.C. 2000) (Applying plain 

meaning to section 2719’s restored lands exception.). Here, Congress said in IGRA that 

gaming is prohibited on “lands acquired by the Secretary in trust” after October 17, 1988. 

We must presume that by specifying lands acquired “in trust,” it meant lands acquired “in 

trust” and nothing more.5

 

Further, “where Congress borrows terms of art in which are accumulated the legal 

tradition and meaning of centuries of practice, it presumably knows and adopts the cluster 

of ideas that were attached to each borrowed word in the body of learning from which it 

was taken.” Wilkie v. Robbins, 127 S. Ct. 2588, 2605 (2007) quoting Morissette v. United 

 

5

 DOI and NIGC believe this is not one of those “rare” circumstances “where application of the statute as 

written will produce a result demonstrably at odds with its drafters’ intentions.” Demarest v. Manspeaker, 

498 U.S. 184. 190 (1991); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982). In reviewing a 

statute for the purpose of developing regulations, an agency will, just as a court must “start, as always, with 

the language of a statute,” Williams v. Taylor, 529 U.S. 420, 431 (2000). Congress’s intent is best 

evidenced by the statutory language that it chooses. United States v. Monsanto, 491 U.S. 600, 610 (1989). 

When the statutory text is clear, legislative history is irrelevant. See, e.g., United States v. Gonzales, 520 

U.S. 1, 6 (1997) (“Given the straightforward statutory command, there is no reason to resort to legislative 

history”). 
17

States, 342 U.S. 246, 263 (1952). Section 2719 prohibits gaming on “lands acquired by 

the Secretary in trust.” 25 U.S.C. § 2719. In this regard, the term, “in trust” is a term of 

art that has a specific meaning within the realm of federal Indian law. The DOI 

regulations governing the acquisition of land by the United States in trust for Indians and 

Indian tribes defines [t]rust land or land in trust status as, “land the title to which is held 

in trust by the United States for individual Indian or a tribe” 25 C.F.R. § 151.2(d). The 

regulation also defines [r]estricted land or land in restricted status as “land the title to 

which is held by an individual Indian or a tribe and which can only be alienated or 

encumbered by the owner with the approval of the Secretary . . .” 25 C.F.R. § 151.2(e). 

The regulation went into effect on October 20, 1980, prior to the passage of IGRA. See

45 F.R. 62034. As such, when Congress used the term “lands acquired by the Secretary in 

trust” it understood the meaning of the term and adopted trust as the term has always 

been used in Indian law. 

Several laws enacted by Congress demonstrate that not only are trust and 

restricted lands different, but that Congress generally understands this difference and uses 

the terms accordingly. See, e.g. 25 U.S.C. § 465 (“The Secretary of the Interior is

authorized, in his discretion, to acquire...any interest in lands...including trust or 

otherwise restricted allotments...”); 25 U.S.C. § 81 (defines “Indian lands” as land “held 

by the United States in trust for an Indian tribe or lands the title to which is held by an 

Indian tribe subject to a restriction by the United States against alienation.”); 25 U.S.C. 

§ 406 (pertaining to the sale of timber on “land in which there are trust or restricted 

Indian interests”); 25 U.S.C. § 407(d) (authorizing the Secretary of Interior to “charge 

purchasers of timber on Indian lands that are held by the United States in trust, or that are 

subject to restrictions against alienation or encumbrance imposed by the United States, 

for special services.”); 25 U.S.C. § 463e (“This section shall apply to tribal, trust, or 

otherwise restricted Indian allotments...”). Given Congress’s history of enacting 

legislation pertaining to trust and restricted land, it is evident that Congress in this context 

understood that the two types of Indian lands are not the same and intended to use the 

term “in trust” accordingly. 

Moreover, the section 2719 prohibition explicitly does not extend to restricted 

land, as evidenced by Congress’s separate use of the terms “trust” and “restricted status” 

or “land . . . subject to the restriction by the United States against alienation” elsewhere 

in IGRA. Compare 25 U.S.C. § 2719 with 25 U.S.C. §§ 2703(4)(B) and 

2719(a)(2)(A)(ii). Where “Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate inclusion or exclusion.” 

Russello v. United States, 464 U.S. 16, 23 (1983). The general prohibition found in 

section 2719 does not include restricted land, but other sections of IGRA do. For 

example, Congress referred to both categories of land elsewhere in section 2719 itself by 

providing that the general prohibition does not apply to Oklahoma lands belonging to an 

Indian tribe that had no reservation on October 17, 1988 and the land is “contiguous to 

other land held in trust or restricted status by the United States...” 25 U.S.C. 

§ 2719(a)(2)(A)(ii). IGRA’s definition of Indian lands also provides for lands held by the 

Secretary in trust for a tribe and lands held by the tribe “subject to restriction by the 
18

United States against alienation.” 25 U.S.C. § 2703(4)(B). Consequently, the use of the 

term restricted in some provisions of IGRA and not in others evinces Congressional 

intent to exclude it from the general prohibition. 

Based on the above analysis, the NIGC finds that the plain language of section 

2719 compels the agency to change its reading of the section’s applicability to restricted 

land. The plain meaning of the statute establishes that the prohibition against gaming on 

after acquired lands does not apply to restricted land. 

2. Chevron Step Two 

Upon further review, I conclude that to the extent the language is ambiguous, the 

new interpretation is superior and entitled to deference under step two of Chevron. The 

rules of statutory interpretation, as well as the Indian canon of construction, lead to the 

conclusion that Congress did not intend the section 2719 prohibition to apply to restricted 

land. 

Exceptions to a statute’s general policy are “sensibly read narrowly in order to 

preserve the primary operation of the [policy].” City of Edmonds v. Oxford House, Inc., 

514 U.S. 725, 731-32 (1995). The purpose of IGRA is to “promote tribal economic 

development, self sufficiency, and strong tribal governments through gaming.” 25 U.S.C. 

§ 2702(1). An exception to that policy must be construed narrowly. In, Grand Traverse 

Band of Ottawa and Chippewa Indians v. Office of the U.S. Attorney for the Western 

District of Michigan, 369 F.3d 960 (6th Cir. 2004), the Sixth Circuit held: 

Although § 2719 creates a presumptive bar against casino style gaming on 

Indian lands acquired after the enactment of IGRA, that bar should be 

construed narrowly (and the exceptions to the bar broadly) in order to be 

consistent with the purpose of the IGRA, which is to encourage gaming. 

Id. at 971. cf. City of Roseville v. Norton, 358 U.S. App. D.C. 282, 348 F.3d 1020, 1030-

32 (D.C. Cir. 2003) (holding that the “restoration of lands” exception should be 

interpreted broadly because the IGRA’s exceptions “embody policies counseling for a 

broader reading” due to the statute's general purpose of promoting tribal economic 

development and self-sufficiency; also applying the Indian canon of statutory 

construction to resolve any ambiguities in favor of a broad reading of the “restoration of 

lands” exception). Therefore, as section 2719 is an exception to IGRA’s stated policy, it 

must be interpreted narrowly. A narrow interpretation leads to the conclusion that the use 

of the term “lands acquired in trust by the Secretary” cannot be read to incorporate other 

types of land, such as land held by a tribe subject to a restriction by the United States 

against alienation. To do so would injure the primary operation of IGRA’s policy to 

promote tribal gaming. 

 Not only should any exceptions to IGRA’s general policy be read narrowly, but 

any ambiguous provision “must be interpreted...to carry out the statute's objectives.” 

In re Joint Eastern & Southern Dist. Asbestos Litigation, 1990 U.S. Dist. LEXIS 10891 
19

(S.D.N.Y. 1990). As discussed above, IGRA’s purpose or objective is to “promote tribal 

economic development, self sufficiency, and strong tribal governments through gaming.” 

25 U.S.C. § 2702(1). If section 2719 is ambiguous, it must be interpreted to carry out that 

objective. The new interpretation of section 2719 frees restricted land from section 

2719’s prohibition, thus promoting, rather than inhibiting, IGRA’s objective to encourage 

tribal economic development, self sufficiency, and strong government through gaming. 

Further, the Indian canon of construction reinforces the above interpretation. The 

canon requires that ambiguities in statutes passed for the benefit of Indians be interpreted 

liberally in favor of Indian tribes. Montana v. Blackfeet Tribe of Indians, 471 U.S. 

759,766 (1985); Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918). IGRA 

was enacted for the benefit of Indians and Indian tribes. The Act’s purpose is, in part, “to 

promote tribal economic development, self-sufficiency, and strong tribal governments” 

and “to ensure that the Indian tribe is the primary beneficiary of the gaming operation.” 

25 U.S.C. §§ 2702(2) and (3). See also City of Roseville v. Norton, 348 F.3d 1020, 1032 

(D.C. Cir. 2003) (“IGRA is designed to promote the economic viability of Indian 

Tribes...the Indian canon requires the court to resolve any doubt in favor of the tribe”); 

Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 730 (9th Cir. 2004) (“IGRA 

is undoubtedly a statute passed for the benefit of Indian tribes. IGRA’s declaration of 

policy...firmly places the statute in the category of legislation to which the Blackfeet

presumption applies); AT&T Corp. v. Coeur D'Alene Tribe, 295 F.3d 899, 918 (9th Cir. 

2002) (“because [IGRA] was enacted to benefit Indian tribes, the IGRA must be 

construed liberally in favor of the Native Americans.”) As such, a liberal interpretation of 

section 2719 in favor of the applicable gaming tribes is appropriate in this instance. An 

interpretation of section 2719 limiting its application to the type of land specified in the 

Act is clearly more favorable to Indian tribes than our previous interpretation, which 

expanded the prohibition’s application. The new interpretation creates more opportunity 

for Indian tribes to pursue gaming by loosening, if only very little, the restriction against 

gaming on after acquired property. 

 In CACGEC II, the district court expresses concern that interpreting section 2719 

to apply exclusively to trust land would contradict Congress’s intent in drafting the 

statute. CACGEC II at 175, citing, United States v. Ron Pair Enters., Inc., 489 U.S. 235, 

242 (1989) (“Where the literal interpretation of a statute will produce a result 

demonstrably at odds with the intent of the drafters...the intention of the drafters, rather 

than the strict language controls.”). The Court asserts: 

Courts "assume that Congress is aware of existing law when it passes 

legislation." Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990). As the 

[Indian Reorganization Act's] trust provision was the only legally 

recognized manner in which new land could be acquired for Indians when 

the IGRA was enacted, the section 20 prohibition was all-inclusive on its 

face... Given the existing state of the law and Congress's careful 

construction, the Court finds that Congress intended to prohibit gaming on 

all after-acquired land, unless one of the section 20 exceptions applies. 
20

Id. As discussed above, however, this interpretation does not conflict with Congress’s 

intent. Congress is the only entity with the authority to create restricted fee land. Unlike 

with trust land, it has not generally delegated its authority to create restricted land to the 

Secretary. Therefore, only Congress, or the Secretary acting pursuant to explicit 

authorization from Congress, can create restricted fee Indian land. As Congress was the 

only entity that could create restricted fee land, there was no need for it to include it in 

the section 2719 prohibition. Therefore, this interpretation does not contradict Congress’s 

intent. Going forward, if and when Congress enacts a law which allows a tribe to have 

restricted fee land, it intends for such land to be eligible for gaming under IGRA unless 

Congress explicitly provides to the contrary. 

 The NIGC and DOI believe that section 2719’s language is clear and limits the 

general prohibition to after acquired trust land. However, even if, as the CACGEC II 

court held, the provision is open to interpretation, the new reading of section 2719 is 

superior. It comports with the plain language of IGRA, resolves any ambiguity in favor of 

the tribes, as required by the Indian canon of construction, and promotes IGRA’s 

underlying policies and objectives. Regardless of whether section 2719’s application to 

restricted land is analyzed at step one of Chevron or step two, the new interpretation of 

IGRA is correct. Section 2719 does not apply to restricted land. 

Settlement of a Land Claim 

I have also reviewed the ordinance under the settlement of a land claim exception. 

I realize that to do so is unorthodox. Typically, if I have one basis for approval, I do not 

look to others. Furthermore, the district court in CACGEC II has already decided the 

inapplicability of the settlement of a land claim exception for the Buffalo site. See 

CACGEC II, at 201-202. The NIGC is bound by that decision unless it is overturned on 

appeal. 

I review this ordinance, therefore, for two reasons. First, this review was 

conducted pursuant to the new DOI regulations, which are now in effect and which the 

NIGC intends to follow. These new regulations provide a reasonable interpretation of the 

settlement of a land claim exception. Second, I conclude that deciding both alternatives 

for approving the ordinance saves NIGC resources. Every decision I have made on the 

ordinances to date has been the subject of litigation. I expect that today’s decision will 

also be challenged. I also expect that if a challenge to the restricted fee interpretation is 

successful, the Nation will once again submit a site specific ordinance claiming that it is 

able to game on the Buffalo Site in accordance with 25 C.F.R. § 292.5. 

While I believe that the Seneca Nation’s restricted fee lands do not fall within the 

provisions of section 2719, had Congress determined that restricted fee lands should be 

subject to the same prohibitions set forth in section 2719 for lands acquired in trust, the 

Buffalo acquisition would fall within section 2719’s “settlement of a land claim” 

exception to the section 2719 prohibition. 
21

 DOI has taken the position that the SNSA meets section 2719’s settlement of a 

land claim exception pursuant to the new regulations. As DOI is the agency tasked with 

administering the SNSA, see Passamaquoddy Tribe v. Maine, 75 F.3d 784, 794 (D.Me. 

1996), the NIGC agrees with its analysis that the SNSA meets the settlement of a land 

claim exception under the new regulation, as conveyed to the NIGC. January 18, 2009 

Letter from David Bernhardt, Solicitor, DOI, to Penny Coleman, Acting General 

Counsel, NIGC. 

In addition, I also note that although the district court, in CACGEC II, decided 

that the SNSA did not settle a claim against the United States, the initial regulations make 

no such requirement. The regulation provides that the “settlement of a land claim” 

exception applies if the land at issue is: 

 [a]cquired under a settlement of a land claim that resolves or extinguishes with 

finality the tribe’s land claim in whole or in part, thereby resulting in the 

alienation or loss of some or all of the lands claimed by the tribe, in legislation 

enacted by Congress. 

25 C.F.R. § 292.5(a). The regulation defines “land claim” as: 

 any claim by a tribe concerning the impairment of title or other real property 

 interest or loss of possession that: 

(1) Arises under the United States Constitution, Federal common law, 

Federal statute or treaty; 

(2) Is in conflict with the right, or title or other property interest claimed 

by an individual or entity (private, public, or governmental); and 

(3) Either accrued on or before October 17, 1988, or involves lands held in 

trust or restricted fee for the tribe prior to October 17, 1988. 

25 C.F.R. § 292.2. 

 As the initial DOI regulations make clear, a settlement of a land claim for 

purposes of the exception can be any claim by a tribe regardless of who the claim 

is against, providing it otherwise meets the requirements of section 292.2 and 

292.5(a). As such, the SNSA would meet the requirements of section 2719’s 

settlement of a land claim exception under the new regulations.

Conclusion

For the reasons set forth above, 25 U.S.C. § 2719’s general prohibition 

against gaming on after-acquired lands does not apply to restricted land. As such, 

gaming on the Nation’s Buffalo Parcel, located on restricted fee land over which 

the Nation has jurisdiction and exercises governmental power, is not precluded by 

IGRA. The Nation’s 2008 Class III Gaming Ordinance, as amended is hereby 

approved. 
22

If you have any questions, please feel free to contact me. 

Sincerely, 

Philip N. Hogen 

Chairman 
Seneca Nation of Indians '4 J7 

c',~;? 

President - Maurice A. John, Sr. Treasurer - Kevin W. Seneca 

Clerk - Jacqueline Bowen 

P.O. BOX 231 12837 ROUTE 438 

SALAMANCA, NEW YORK 14779 : IWmG, WE W Y ORK 1408 1 

Tel. (716) 945-1790 Tel. (716) 532-4900 

FAX (716) 945-0150 FAX (716) 532-6272 

AT THE SPECIAL SESSION OF COUNCIL OF THE 

SENECA NATION OF JNDIANS HELD ON JULY 16, 

2008, AT THE G.R. PEUMMER BULDING ON THE 

ALLEGANY WIAN TERRITORY, SALAMANCA. 

NEW YORK 14779 

CN: S-07-16-08-02 

EXECUTIVES PRESENT: PRESIDENT MAURICE A. JOHN 

CLERK JACQUELINE L. BOWEN 

TREASURER KEVIN W. SENECA 

AMENDING THE DEFTNITIONS SECTTON OF THE SENECA NATION OF INDIANS CLASS TI1 

GAMING; ORDINANCE/ APPROVAL 

MOTION: by Rovena Abrams, seconded by Linda Doxtator, that the Nation's Council approves the 

folIowing: 

WHEREAS, the Indian Gaming Regulatory Act of 1988 ("IGRA'"), 25 U.S.C. 45 2701 -2721, 

requires an approved gaming ordinance as a condition of engaging in gaming 

activities on Indian lands; and 

WHEREAS, the Nation's Council previously adopted and enacted the Seneca Nation of Indians 

Class 111 Gaming Ordinance, ("Gaming Ordinance"), which was approved by the 

Chairman of the National Indian Gaming Commission ("NIGC"); and 

WHEREAS, the Gaming Ordinance was subsequentIy amended, with the most recent amendment 

having been approved by the Chairman of the NlGC on July 2,2007; and 

WHEREAS, on July 8, 2008, the United States District Court for the Western Distnct of New 

York in Citizens Against Casino Gambling in Erie County v. Kemptlaorne vacated the 

Nation's July 2,2007 Amended Gaming Ordinance that defined gaming eligible Iands 

to include lands in Buffalo, New York ("Buffalo Parcel"} on the ground that even 

though the Buffalo Parcel was held in restricted fee and constituted "Indian lands," 

the land was not eligible for gaming in accordance with Section 20 of IGRA because 

the Parcel did not, in the Judge's view, satisfy the "settlement of a land cIairn" 

exception in Section 20; and 
AMENDING THE DEFINITIONS SECTION OF THE SENECA NATION OF INDWS CLASS 

111 GAMING ORDENANCE/ APPROVAL 

SPECIAL SESSION OF COUNCIL 

JULY 16,2008 

PAGE 2 

WHEREAS, the Nation is of the view that the above referenced decision is erroneous on a number 

of grounds; and 

WHEREAS, after the case was submitted to the Court but before issuance of the decision, the 

Department of the Interior announced as a part of a formal rule-making that it 

interpreted Section 20 of IGRA to not encompass land held by an Indian tribe in 

restricted fee status; and 

WFEREAS, this important change in position by the Department of the Interior represents an 

independent basis upon which the Nation's Ordinance with respect to the Buffalo 

Parcel should be reconsidered and ultimately approved - a basis that has thus far not 

been sufficientIy considered or analyzed by the Chairman, 

WHEREAS, in order to most promote judicial economy and to permit the Chairman to analyze and 

apply this new development in the law and agency viewpoint in the first instance and 

to determine its relevance to the Nation's land at issue here, the Nation believes it is 

advisable to amend its Gaming Ordinance to reflect the restricted fee status of the 

Nation's lands; and 

NOW THEREFORE BE IT 

RESOLVED, that Section 4.1 of the Gaming Ordinance is hereby amended by the following: 

(i) subsection (u) is amended to specifically reference lands held in "restricted fee 

status" and to add "Settlement Act Lands" within the definition of Nation Lands so 

that it reads as follows: 

(u) "Nation Lands" shall have the meaning found in 25 U.S.C. $ 2703(4), 

including Settlement Act Lands, such as the Buffalo Parcel, which is the reaI 

property in Erie County held by the Seneca Nation of hdians in restricted fee 

status and subject to restrictions by the United States against alienation 

pursuant to Seneca Nation Land Claims Settlement Act, which is described as 

folIows: 

and 

The northern parcel (+/- 4.5 acres] is bounded to the North by 

Perry Street, to the East by Marvin Street, to the South by the 

former Fulton Street, and to the West by Michigan Street. 

The southern parcel (+/- 4.5 acres) is bounded to the North by the 

former Fulon Street, to the East by Marvin Street, to the South by 

South Park Street, and to the West by Michigan Street. 

(ii) subsection fib) is re-designated as subsection (cc), and a new subsection (bh) is 

hereby added to define Settlement Act Lands as follows: 
AMENDING THE DEFINlTlONS SECTION OF THE SENECA NATION OF INDIANS CLASS 

I11 GAMING ORDINANCE/ APPROVAL 

SPECIAL SESSION OF COUNCIL 

JULY 16,2008 

PAGE 3 

(bb) "Settlement Act Lands" shall mean the real property that is held by the 

Nation in restricted fee status and subject to restrictions by the United States 

against alienation pursuant to the Seneca Nation Land Claims Settlement Act. 

AND BE IT FURTHER 

RESOLVED, that the Council authorizes President Maurice A. John, Sr. to exercise his discretion to 

submit the foregoing amendments to the Chairman of the NIGC for his review and 

anticipated approval if the President determines that such amended ordinance is 

necessary for the continued lawfw1 operations of any of the Nation's gaming facilities. 

AND BE IT FURTHER 

RESOLVED, That the Council authorizes President Maurice A. John, Sr. to withdraw the foregoing 

amendments from consideration by the NIGC, should such amendments he submitted, 

if the United States takes such action in the above referenced case to cause the July 2, 

2007 Amended Ordinance to be reconsidered, remanded, or otherwise returned to the 

NIGC to undertake a new analysis of the Amended Ordinance in light of the United 

States' change in position regarding the applicabiIity of Section 20 to restricted fee 

lands. 

AND BE IT FURTHER 

RESOLVED, That the foregoing amendments to the Gaming Ordinance shall become effective 

immediately upon approval of the Chairman of the NTGC. 

ALL IN FAVOR MOTION CARRIED 

CERTIFICATION 

I hereby certify the foregoing extract is a true and correct copy from the minutes of the Special 

Session of Council of the Seneca Nation of Indians held on July 16, 2008, on the Allegany Indian Tenitory, 

original of which is on file in the Clerk's Office of the Seneca Nation of Indians. 

JN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused the seal to be affixed 

at the G.R. Plummer Building, on the Alfegany Territory, on the 16Ih day of July 2008. 

{SEAL) 
GENERAL PROVISIONS 

SECTION 1 - SHORT TITLE 

This Law may be cited as the "Seneca Nation of Indians Class 111 Gaming Ordinance". 

SECTION 2 - DECJARATION OF TRIBAL POLICY 

21 It is the policy of the Seneca Nation of Indians, hereinafter referred to as "Nation": 

(a) That the Nation shall have the sole proprietary interest in and responsibility for 

the conduct of any Nation Gaming Operation; 

(b) That all gaming operations on Nation Lands shall be conducted by the Nation, 

through employees of the Nation or its Management Contractors only; 

(c) That it is the objective of this L.aw to provide revenue to promote (i) Nation 

economic development and self-sufficiency and (ii) the health, education, and welfare of 

Nation members; and 

(dl That the gaming activities provided for by this Law on lands of the Nation shall 

be conducted in conformance with the requirements of this Law, the Nation-State 

Gaming Compact Between the Seneca Nation of Indians and the State of New York, the 

Indian Gaming Regulatory Act of 1988,25 U.S.C. $5 2701, et seq., and National Indian 

Gaming Commission regulations. 

SECTION 3 - FINDINGS 

31 The Tribal Council finds that - 

(a) Class TI1 gaming may be conducted on lands of the Nation by reason of the fact 

that the Nation and the State of New York have entered into a gaming compact pursuant 

to the Indian Gaming Regulatory Act, 25 U.S.C. $8 2701, et seq. 

SECTION 4 - DEFINITIONS 

$4-1 For the purpose of this Law, the following definitions shaII apply: 

(a) "Act" shall mean the Indian Gaming Regulatory Act, 25 U.S.C. 93 2701, et seq 

@) "Appendix" shall mean an appendix to the Compact. "Appendices" shall mean 

more than one Appendix. 
(c) "Applicant" shall mean any person who completes an application with the Nation 

for a gaming license. 

(d) "Chairman" shall mean the Chairman of the National Indian Garning Commission 

or his or her designee. 

(e) "Cheating" shall mean operating or playing in a game in a manner in violation of 

the written or commonly understood rules of the game, with the intent to create for 

himselflherself at someone in privity with Rimher an advantage over and above the 

chance of the game. 

(0 "Class PI1 Gaming" shall have the meaning found in 25 U.S.C. $2703(8). 

(g) "Class I11 Gaming Key Employee" shaH mean those employees designated in the 

gaming operations pursuant to 25 C.F.R. 6 502.14, and as defined in Section l(f) of the 

Compact. 

(h] "Class 111 Gaming Primary Management Official" shall mean those employees 

designated in the gaming operations pursuant to 25 C.F.R. 6 502.19. 

0) "Class III Gaming Service Enterprise" means an entity or individual. other than a 

CIass III Gaming Employee, that provides CIass Ill1 Gaming services, Class 111 Gaming 

supplies or Class I11 Gaming equipment to a Nation Gaming Operation. 

(j) "Collateral Agreement'" shall mean any contract, whether or not in writing, that is 

related, either directly or indirectly, to a Management Contract, or to any rights, duties, or 

obligations created between the Nation (or any of its members, entities, or organizations) 

and a Management Contractor or subcontractor (or any person or entity related to a 

Management Contractor or subcontractor). 

(k) "Council" sl~all mean the Tribal Council as described in Section I of the 

Constitution of the Seneca Nation of Indians. 

(1) "Gaming Facility" means those portions of a structure in which the Nation 

conducts Class I11 Gaming pursuant to this Compact. For purposes of this definition, a 

Gaming Facility shall be deemed to include only those areas of a structure that the Nation 

uses for Class IHT Gaming operations. Notwithstanding the foregoing, no areas of a 

structure excIusiveIy used for Class I or Class II gaming or for non-gaming activities 

shall be considered part of a Gaming Facility. 

(m) "Gaming License" shall mean the permit granted by the Nation to an applicant for 

employment with a gaming operation, 

{n) "Gross Gaming Revenues" shall mean the total amount of money wagered less 

amounts paid out to winners or for prizes. 
(0) "In privity with" shall mean one who acts jointly with another or as an accessory 

before the fact to an act committed by the other or as a co-conspirator with the other. 

(p) "Management Contract" shall mean any contract, subcontract, or Collateral 

Agreement between the Nation and a contractor or between a contractor and a 

subcontractor if such contract or agreement provides for the management of a11 or part of 

a gaming operation. 

(q) "Management Contractor" shall mean the person or entity holding a contract 

entered into pursuant to 25 U.S.C. rj 2711. 

(r) 'Minor" shall mean a person less than eighteen (1 8) years of age. 

(s) "Nation" means the Seneca Nation of Indians. 

(t) 'Wation Gaming Operation" shall mean the enterprise, business or entity operated 

or authorized by the Nation to operate or conduct any form of Class 111 gaming on Nation 

Lands pursuant to the Compact; provided, however, that the Compact shall apply to 

operations of such enterprise, business or activity only to the extent that such operations 

are directly related to Class 111 Gaming undertaken by the Nation pursuant to the 

Compact. 

(u) "Nation Lands" shall have the meaning found in 25 U.S.C. (i 2703(4), including 

Settlement Act Lands, such as the Buffalo Parcel, which is the real property in Erie 

County held by the Seneca Nation of Indians in restricted fee status and subject to 

restrictions by the United States against alienation pursuant to Seneca Nation Land 

Claims Settlement Act, which is described as follows: 

The northern parcel I+/- 4.5 acres) is bounded to the North by Perry Street, 

to the East by Marvin Street, to the South by the former Fulton Street, and 

to the West by Michigan Street. 

The southern parcel (+I- 4.5 acres) is bounded to the North by the former Fulton 

Street, to the East by Marvin Street, to the South by South Park Street, and to the 

West by Michigan Street. 

(vj 'Wet revenues" shall have the meaning as set forth in 25 C.F.R. 9 502.16. 

(w) "NIGC" shall mean the National Indian Gaming Commission estabIished 

pursuant to the Act. 

(x) "Person" shall mean any individuaI, firm, partnership, corporation, company, or 

association. 

(y} "Person having management responsibility for a Management Contract" shall 

mean the person designated in the Management Contract as having management 

responsibility for the gaining operation, or a portion thereof. 
(z) "Secretary" means the Secretary of the Interior. 

(aa) "Seneca Gaming Authority" or "SGA" shall mean the entity established by the 

Nation responsible for regulating Class 111 Gaming undertaken by the Nation pursuant to 

the Compact. 

(bb) "Settlement Act Lands" shall mean the real property that is held by the Nation in 

restricted fee status and subject to restrictions by the United States against alienation 

pursuant to the Seneca Nation Land Claims Settlement Act. 

(cc) "State Gaming Officials" or "SGO" means the officials designated by the State to 

fulfill the State's responsibiIity to ensure Nation Gaming Operation and SGA compliance 

with the terms of the Compact. 

SECTION 5 - SENECA GAMING AUTHORITY 

-1 The Council of the Nation establishes the Seneca Gaming Authority (SGA) for the 

purpose of regulating Class III gaming conducted on Nation Lands. 

(a) The SGA is recognized as a governmental arm of the Nation and shall perform an 

essential governmental function which is hereby designated to the SGA by the Nation 

Council. Commissioners and employees of the SGA shall be recognized as performing 

said essentiaI governmental functions on behalf of the Nation. 

(b) The SGA shall be comprised of five (5) commissioners to be selected by the 

Council. 

(c) A vote of at least three commissioners shall constitute a valid vote (quorum) by 

the SGA. 

{d) The commissioners shall have a staggered tenn of employment with three (3) of 

the commissioners having an initial term of four (4) years and two (2) of the 

commissioners having a term of two (2) years. Compensation for the commissioners 

shall be established by the Council. RemovaE of a commissioner shall be for cause which 

shall be defined by resolution of the Council. 

(e) The commissioners shalI have the experience in the gaming industry and the 

education that will enable them to immediately regulate the Nation's gaming enterprises. 

(0 The hnds for the operation of the SGA shall be appropriated from the general 

fund of the Nation. 

(g) The SGA shall be the exclusive regulatory body for the Nation Gaming 

Operations' activities and operations conducted in a Gaming Facility pursuant to the 
Compact. The SGA shall have unrestricted access to all aspects of the Nation Gaming 

Operations. 

95-2 The SGA shaII have responsibility for the on-site regulation of Class I11 Gaming 

undertaken by the Nation pursuant to the Compact. The purpose of the SGA is regulatory, not 

managerial. The SGA will conduct oversight to ensure compliance with the Nation laws, the 

Compact and its Appendices, the Act, NIGC regulations, and, if applicable, State laws and 

regulations. The SGA will serve as the licensing authority for individuals employed in the 

Nation Gaming Operation and will administer an effective program for background 

investigations as part of the licensing process, consistent with the Compact and its Appendices. 

The SGA will also have a role in monitoring compliance with the internal control standards for 

the Nation Gaming Operation and in tracking revenues. In order to carry out its regulatory 

duties, the SGA shall have unrestricted access to all areas of the Nation Gaming Operation and to 

all records. The SGA shall have clear authority to take enforcement actions, including 

suspension or revocation of an individual gaming license, when appropriate. 

65-3 The Nation recognizes the importance of an independent SGA in maintaining a wellregulated gaming operation. The SGA shall be and act independently and autonomously from 

the Nation Council in all matters within its purview. No prior or subsequent review by the 

Nation Council of any actions of the SGA shall he required or permitted except as otherwise 

explicitly provided in this Law. 'Fa avoid potential conflicts of interest between the operation 

and regulation of the Gaming Facility, the Nation hereby finds that, at a minimum: 

(a) No member of the Nation Council may serve on the SGA; 

(b) No member directly related to or living with any Nation Council member may 

serve on the SGA; 

(c) SGA commissioners are prohibited from gambling in Nation Gaming Operations; 

and 

(d) SGA commissioners are prohibited from accepting complimentary items from the 

Nation Gaming Operations. 

55-4 SGA positions shall be filled by appointment by the Nation Council. Nominees for 

positions on the SGA must satisfy the suitability standards set forth for Class 111 Gaming 

Employees. Such background investigation shall be performed under the direction of the Nation 

Council or designated official, and as consistent with the Compact and its Appendices. 

$5-5 The SGA shaIl have the power and responsibility to: 

Ca) administer the provisions of this Law; 

(b) conduct or cause background investigations to he conducted on all employees of 

the Nation Gaming Operation; 
(c) issue and renew gaming licenses as provided in this hw and consistent with the 

Compact and its Appendices, id in any regulation which may be promulgated by the 

SGA; 

Id) obtain and process fingerprints, or designate a law enforcement agency to obtain 

and process fingerprints; 

(e) revoke, suspend, or condition a gaming license or deny an application for a 

license for violation of applicable law or Law regulating gaming, or conviction of any 

offense involving a gaming related crime or moral turpitude; 

( coIIect fees and interest as provided for in this LAW; 

(g assess and collect penalties provided for in this Law; 

(h) adjust the respective amounts of the annual license fees, provided that such fees 

shall not be increased retroactively; 

(i) audit or cause to be audited expenditures, receipts, and reports of a licensee 

responsible for managing a Nation Gaming Operation; 

Cj) review, on demand, such books and records and inspect the premises and 

operations of licensees as it deems necessary for the enforcement of this Law; 

(k) draw up such foms as it deems necessary; 

0) ensure compliance with the Compact and its Appendices, and all Nation, State, 

and Federal laws, rules and regulations regarding Indian gaming; 

(m) investigate any suspicion of wrongdoing associated with any gaming activities; 

(n] comply with any and all reporting requirements under Nation law, the Act, the 

Compact and its Appendices, NIGC regulations, and any other applicable law; 

(0) promulgate and issue rules and regulations regarding the conduct of CIass 111 

gaming, including compliance with the Compact and its Appendices, Nation law, the Act, 

and NIGC regulations. 

(p) promulgate and issue regulations on the levying of any fees and/or taxes 

associated with gaming license applications; 

(q) promulgate and issue regulations on the Ievying of fines andlor suspension or 

revocation of gaming licenses for violations of this law, the Compact and its 

Appendices, or any other Tribal, State, or NlGC regulations; 
(r) to approve Nation Gaming Operation policies and procedures so as to ensure 

compliance with this Law, the Compact and its Appendices, the Act, NIGC regulations, 

or any other applicable law; 

Is) institute such legal proceedings in the name of the Nation in a court of competent 

jurisdiction as it deems necessary for the enforcement of this Law; 

(t) conduct hearings provided for in this Law; 

(u) deposit all fees, penalties, and interest collected under authority of this Law into 

an account to the credit of the Nation; 

(v) maintain a correct and full accounting of all fees, penalties, and interest received 

under authority of this Law, and provide a monthly record of that accounting; 

(w) perform such other duties the SGA deems necessary to properly and fully perfem 

its duties and responsibilities under this Law, the Compact and its Appendices, the Act, 

NIGC regulations, and any other applicable law; and 

(x) administer, enforce, and interpret the provisions of the Seneca Nation of Fndians 

Class I1 Gaming Law of 1994 and any amendments thereto or replacements thereof. 

$5-6 The SGA shall ensure that all records and information obtained as a result of an 

employee background investigation shall remain confidentia1 and shall not be disclosed to 

persons who are not directly involved in the licensing process. Under no circumstances shall: 

information obtained during the course of an employee background investigation be disclosed to 

members of management, human resource personnel or others employed by the Nation Gaming 

Operation. This Section does not apply to requests for such information or records from any 

Tribal, Federal or state law enforcement or regulatory agency, or for the use of such infomation 

or records by the SGA and staff in the performance of their officiaI duties. 

$5-7 The following persons are not eligible to serve on the SGA Nation Council members, 

while serving as such; employees of the Nation Gaming Operation, while serving as, such; 

gaming contractors (including any principal of a management or other contracting company); 

persons directly related to any of the above; persons ineligible to be employees; persons 

convicted of a felony of embezzlement, of theft, or of any other money-related crime or honesty 

related crime (such as fraud). The Nation Council shall require a criminal history check with 

appropriate law enforcement agencies and shall review this criminal history report and make an 

appropriate suitability determination before appointing an individual to a position on the SGA. 

$5-8 The independence of the SGA is essential to a well-regulated gaming operation. For that 

reason, SGA commissioners may only be removed from office by the Nation Council prior to the 

expiration of their respective terms for neglect of duty, misconduct, malfeasance, or other acts 

that would render a member of the SGA unquaIified for hidher position. Any allegations of 

neglect of duty, misconduct, malfeasance, or other acts that would render him or her unqualified 

for hidher position must be substantiated by a preponderance of the evidence. SGA 
commissioners wilI be given an opportunity to provide evidence rebutting the grounds for their 

proposed removal before the removal is considered. A vote of the Nation Council on the validity 

of the removal shall be final and not subject to further appeal. A wrongful removal shall entitle 

the affected SGA commissioner to compensation for expenses incurred in an appeal and any pay 

withheld. 

$5-9 A vote of at least 3 members of the SGA shall constitute a valid vote (quorum) by the 

SGA. 

$5-1C) SGA commissioners shall be compensated at a level determined by the Nation Council. 

This compensation shaIl be included in the Nation Gaming Operation's annual estimated budget, 

and shall be approved by the Nation Council. 

SECTION 6 - GAMES AUTHORIZED 

6- The Nation shall have the sole proprietary interest in and responsibility for the conduct of 

any gaming operation. 

$6-2 The Nation shall conduct only those Class 111 games specifically Iisted in Appendix A of 

the Compact, in accordance with the specifications set forth in Appendices A and B. 

SECTION 7 - GAMING LICENSES REQUIRlED 

71 A separate gaming license is required for: 

(a) each person having a Management Contract; 

(b) each Class III Gaming Key Employee, Class TI1 Gaming Primary Management 

Official, Class 111 Gaming Employee, and Non-Class I11 Gaming Employee of the 

Nation's Gaming Operation (collectively referred to as "employees"); 

(c) each Class 111 Gaming Service Enterprise, each Non-Class 111 Gaming Enterprise, 

and each Nation Gaming Operation on Nation Lands at which Class I11 gaming is 

conducted. 

SECTION 8 - APPLICATION FOR GAMING LICENSES 

1 Each person having a Management Contract, each Class I11 Gaming Key Employee and 

Class 111 Gaming Primary Management Official whether employed by the Management 

Contractor or directly by the Nation, and all other employees shall complete an application for an 

initial gaming license or renewal of an existing gaming license for each Gaming Facility on an 

application form prescribed by the SGA. The application shall set forth: 

(a) the name under which the applicant transacts or intends to transact business on 

Nation Lands; and 
(b) the location of the Gaming Facility for which the gaming license is sought; and 

(c) the application shaII be signed by the applicant if a natural person, or, in the case 

of an association or partnership, by a member or partner thereof, or in the case of a 

corporation, by executive offices thereof, or by some other person specifically authorized 

by the corporation to sign the application, in which case written evidence of the 

signatory's authority shall be attached. The applicant shall provide evidence of authority 

of the sipatory or any other representative to act for and bind the applicant. If any 

change is made in that authority, the SGA shall be immediately informed in writing and, 

until that information is filed with the SGA, any action of the representative shall he 

presumed to be that of the applicant. 

$8-2 Each application shall be accompanied by payment of the appropriate annual license fee, 

and an appropriate fee to coves the cost of the background investigation conducted pursuant to 

Section 1 l below. 

$8-3 The Management Contractor shall file along with the application an organizational chart 

of its management organization and job descriptions of the employees of the Nation Gaming 

Operation. The chart shaI1 identify which employees are or will be the Class 111 Gaming Primary 

Management Officials and the Class III Gaming Key Employees of the Nation Gaming 

Operation. 

$8-4 An application for a gaming Iicense shalE include: 

(a) a description of the place, facility, or location on Nation Lands where the 

applicant will operate a gaming operation or provide Class I11 Gaming related service, 

Class 111 Gaming related supplies or Class I11 Gaming related equipment to the Nation 

Gaming Operation, or where the applicant will be employed. 

@) the following privacy notice prescribed by 25 C.F.R. 5 556.2: 

In compliance with the Privacy Act of 1974, the following information is 

provided: Solicitation of the information on this form is authorized by 25 U.S.C. 

2701, et seq. The purpose of the requested information is to determine the 

eligibility of individuals to be employed in a gaming operation. The information 

will be used by NIGC members and staff who have need for the information in 

the performance of their official duties. The information may be disclosed to 

appropriate Federal, Tribal, State, local, or foreign law enforcement and 

regulatory agencies when relevant to civil, criminal or regulatory investigations or 

prosecutions or when pursuant to a requirement by the Nation or the NIGC in 

connection with the hiring or firing of an employee, the issuance or revocation of 

a gaming license, or investigations of activities while associated with a Nation or 

a gaming operation. Failure to consent to the disclosures indicated in this notice 

will result in the Nation's being unable to hire you in a empIoyee position. The 

disclosure of your Social Security Number (SSN) is voluntary. However, failure 

to suppIy a SSN may result in errors in processing your application. 
(c) the following notice regarding false statements are prescribed by 25 C.F.R. 

556.3: 

"A false statement on any part of your application may be grounds for not hiring 

you, or for firing you after you begin work. Also, you may be punished by fine or 

imprisonment (U.S. Code, 'Title 1 8, Section I00 I)." 

(d) the following background investigation information from each employee and each 

Class 111 Gaming Key Employee and Class I11 Gaming Primary Management Official: 

(1) fulI name, other names used (oral or written), social security number(s), 

birth date, place of birth, citizenship, gender, all languages (spoken or written); 

(2) currently and for the previous ten (10) years: business and employment 

positions held, ownership interests in those businesses, business and residence 

addresses, and drivers license numbers; 

(3) the names and current addresses of at least five (5) personal references, 

including one personal reference who was acquainted with the applicant during 

each period of residence listed under paragraph {d)(2) of this Section; 

(4) current business and residence telephone numbers; 

(5) a description of any existing and previous business relationships with 

Indian tribes, including ownership interests in those businesses; 

(6) a description of any existing and previous business relationships with the 

gaming industry generally, including ownership interests in these businesses; 

(7) the name and address of any Iicensing or repPatory agency with which the 

person has filed an application for a license or pennit related to gaming, whether 

or not such license or permit was granted; 

(8) for each felony for which there is an ongoing prosecution or a conviction, 

the charge, the name and address of the court involved, and the date and 

disposition if any; 

(9) for each misdemeanor conviction or on-going misdemeanor prosecution 

(excluding minor traffic violations), within ten (10) years of the date of the 

application, the name and address of the court involved and the date and 

disposition; 

(10) for each criminal charge (excluding minor traffic charges) whether or not 

there is a conviction, if such criminal charge is within ten (10) years of the date of 

the application and is not otherwise listed pursuant to paragraph (d)(8) or (dj(9) of 
this Section, the criminal charge, the name and address of the court involved, and 

the date and disposition; 

(11) the name and address of any licensing or regulatory agency with which the 

applicant has filed an application for an occupational license or permit, whether or 

not such license or permit was granted; 

(12) a current photograph; 

(13) a complete history of the applicant's educational background, including 

the names of any colleges, universities, trade or vocational schools, and high 

schools attended; 

(14) fingerprints of the applicant to be taken by the Seneca Nation department 

of law enforcement a state or federal law enforcement agency, for a criminal 

history check. A criminal history check will include a check of criminal history 

records information maintained by the Federal Bureau of Investigation to 

25 C.F.R. 8 522.2(h); 

(15) a statement authorizing law enforcement agencies and prior employers to 

release information and respond to questions relating to the applicant's records. 

(16) all applicants are required to submit to a drug screening test and, if 

employed, random screening tests thereafter; 

(17) any other information that is requited by the Compact or its Appendices; 

and 

(18) any other information the SGA deems relevant. 

g8-5 Each applicant for a gaming license who has or will have a contract with the Nation to 

manage a Nation Gaming Operation shall state whether or not helshe already has a Management 

Contract to operate any Indian or non-Indian gaming operation and, if so, a description of the 

location of each such operation. 

98-6 A Managemen2 Contractor's application shall include information required by 25 U.S.C. 

# 2710(d) and 25 C.F.R. 5 537.1. 

$8-7 Existing employee shaIl be notified in writing that they shall either; 

(a) complete a new appIication form that contains the Privacy Act notice described in 

Section 8-4(b) above; or 

(b) sign a statement that contains the Privacy Act notice described in Section 8-4 @) 

above and consent to the routine uses described in that notice. 
$8-8 When a Class III Gaming Key Employee or Class JII Gaming Primary Management 

Official begins work at a Nation Gaming Operation the SGA shall forward a copy of the person's 

completed application for a gaming license to the NIGC. 

SECTION 9 - QUALIFICATIONS FOR GAMING LICENSES 

89-1 The SGA may issue or renew a gaming license to an applicant who submits a proper and 

completed application and pays the appropriate annual Iicense fee consistent with the Compact 

and its Appendices. 

59-2 Subject to the requirement of payment of annual license fees and the requirements 

contained in the Compact and its Appendices, each gaming license shall be valid for two (2) 

years from the date of issuance, provided that, in the discretion of the SGA, a gaming license 

may be granted for a term to nm concurrently with the term of a Management Contract. 

$9-3 A gaming license may not be assigned or transferred and is valid only for use by the 

person in whose name it is issued and at the Nation Gaming Operation for which it is issued. A 

gaming Iicense shall be conspicuousIy displayed at all times at the Nation Gaming Operation for 

which issued. 

$9-4 Final decisions as to whether a gaming license shall be issued, suspended, or revoked 

shall be made in accordance with Appendices C, D, and E. 

SECTION 10 - GAMING LICENSE FEES 

5 10-1 The annual fee for each gaming license issued pursuant to this Law shall be set by 

regulations promulgated by the SGA. In setting the license fee the SGA shall take into 

consideration the following items: 

(1) cost of the background investigation; 

(2) administrative cost to the SGA; and 

(3) the applicant's status as Management Contractor, Class 111 Gaming Primary 

Management Official, Class 111 Gaming Key Employee or employee; 

$10-2 The. SGA may waive the annual fee on a case-by-case basis. 

SECTION I1 - BACKGROUND INVESTIGATIONS 

$11-1 As provided in Appendix C, the SGA shall conduct, or cause to be conducted, a 

background investigation of each applicant for a position which is designated as a Class 111 

Gaming Key Employee or Class 111 Gaming Primary Management Official sufficient lo make a 

quaIification determination under Section 9 above and paragraph 6 of Appendix C. This shall 

include verification of information submitted by the applicant. The background investigation 

will also document all potentiaI probIem areas noted, and any disqualifying information. In 
conducting the investigation, the SGA shaI1 keep confidential the identity of each person 

interviewed in the course of the investigation. 

51 1-2 The procedures set forth in Appendix C regarding background investigations axe made 

applicable here by reference. 

$1 1-3 The SGA shall review a person's prior activities, criminal record, if any, and reputation, 

habits and associations to make a finding concerning the eligibility of a Class 111 Gaming Key 

Employee or CIass I11 Gaming Primary Management Official for employment in a Nation 

Gaming Operation. If the SGA determines that employment of the person poses a threat to the 

public interest or to the effective regulation of gaming, or creates or enhances dangers of 

unsuitable, unfair, or illegal practices and methods and activities in the conduct of gaming, a 

Nation Gaming Operation shaII not employ that person in a Class TI1 Gaming Key Employee or 

Class 111 Gaming Primary Management Official position, 

8 11-4 Investigative Reports. 

(a) The SGA shall prepare or cause to be prepared, and forward to the NTGC an 

investigative report summarizing each background investigation of a Class I11 Gaming 

Key Employee or CIass 111 Gaming Primary Management Official that the Nation intends 

to employ. 

(b) The SGA shall forward an investigative report to the NIGC within sixty (60) days 

after a Class 111 Gaming Key Employee or Class 111 Gaming Primary Management 

Official begins work or within sixty (60) days of the approval of this Law by the NIGC. 

(c) Each investigative report shall include the following: 

(1) the steps taken in conducting the background investigation; 

(2) the resuIts obtained; 

(3) the conclusions reached; and 

(4) the basis for those conclusions. 

(d) The SGA shall submit to the NIGC, aIong with the investigative report, a 

summary of the SGA's qualification determination made under Section 9 above and 

paragraph ti of Appendix C. 

(e) if a gaming Iicense is not issued to an applicant, the SGA: 

(I) shall notify the NIGC; and 
(2) may forward copies of its qualification determination and investigative 

report (if any) to the NTGC for inclusion in the Indian Gaming Individuals 

Records System. 

(f) With respect to Class IT1 Gaming Key Employees and CIass I11 Gaming Primary 

Management OfficiaIs, the SGA shall retain applications for gaming licenses and reports 

(if any) of background investigations for inspection by the Chairman or his or her 

designees for no less than three (3) years hm the date of termination of employment. 

(g) A Nation Gaming Operation shall not employ as a Class 111 Gaming Key 

Employee or Class I11 Gaming Primary Management Official a person who does not have 

a gaming license ninety (90) days after a license application has been submitted. 

$11-5 Granting a Gaming License 

(a) If, within a thirty (31)) day period after the NlGC notifies the SGA that it has no 

objection to the issuance of a gaming license pursuant to a license application filed by a 

Class III Gaming Key Employee or a Class I11 Gaming Primary Management Official for 

whom the SGA has provided an application and investigative report to the NIGC, the 

SGA may issue a license to such applicant. 

@) If, within the thirty (30) day period described in Subsection (a) above, the NEGC 

provides the SGA with a statement itemizing objections to the issuance of a gaming 

license to a Class III Gaming Key Employee or to a Class 111 Gaming Primary 

Management Official application, the SGA shall reconsider the application, taking into 

account the objections itemized by the NTGC. The SGA shall make the final decision 

whether to issue a gaming license to such applicant, consistent with the Compact and its 

Appendices. 

5 11-6 Garning License Suspension 

If, after the issuance of a gaming license, the SGA receives from the NIGC reliable information 

indicating that a Class I11 Gaming Key Employee or a Class I11 Gaming Primary Manasrnent 

Official is not eligible for employment under Section 9 of this Law, the Nation shall suspend 

such license and shall notify in writing the licensee of the suspension and the proposed 

revocation. 

SECTION 12 - USE OF NET 

$12-1 Net revenues from gaming permitted under this Law shall only be expended for one or 

more of the following purposes: 

(a) to fund the Nation's government operations or programs; 

(b) to provide for the general weIfare of the Nation and its members; 
(c) to promote economic development; 

(d) to donate to charitable organizations; or 

(e) to support operations of Iocal governmenta1 agencies. 

$12-2 If the Council elects to make per capita payments to tribaI members, it shall authorize 

such payments only upon approval of a plan submitted to the Secretary pursuant to 25 U.S.C. 5 

27 1 O(b)(3). 

SECTION 13 - RECORDS AND REPORTS 

613-1 A Nation Gaming Operation shaI1 keep permanent books of account or records, including 

inventory records of gaming supplies, sufficient to establish the amount of gross and net income, 

deductions and expenses, receipts and disbursements, and other information required in any 

financial statement, report, or other accounting prepared pursuant lo the Compact and its 

Appendices, the Act and NIGC regulations. 

$13-2 No later than the thirtieth (30th) day of each month, each gaming operator sha11 provide, 

in a report form prescribed by the SGA, a statement of gross revenues, assemble gross revenue 

and net revenues received or collected at each Nation Gaming Operation during the immediate 

preceding month. 

4 13-3 The Nation Gaming Operation shall maintain, in a climate controlled place secure from 

theft, loss, or destruction, adequate records of its business and accounting operations. The 

Nation Gaming Operation shall make the records available to the SGA, the SGO, and NIGC 

officials upon request. The Nation Gaming Operation shall retain the records for not less than 

seven (7) years. The records shall include, but not be limited to, the records identified in 

Appendix B. 

$13-4 The Nation Gaming Operations shall also comply with the relevant provision of the 

Compact and its Appendices relating to reports and records. 

SECTION 24 - ANNUAL AUDIT 

$14-1 The SGA shall cause to be, conducted, at least annually, an independent audit of the 

books and records of each Nation Gaming Operation. 

(a) Audit Standards. The Nation shall engage an independent certified public 

accountant, licensed in New York to provide an annual audit of the financial statements 

of each gaming operation on Nation Lands. Such financial statements shall be prepared 

in accordance with generaIIy accepted accounting principles and the audit(s) shall be 

conducted in accordance with generally accepted auditing standards. AuditCs) of the 

gaming operation required under this Section may be conducted in conjunction with any 

other independent audit of the Nation, provided that the requirements set forth in NlGC 

regulations are met. 
(c) Copies of Audit Reports. The Nation shall submit to the SGA and the NIGC a 

copy of the audit report(s) and management letter(s) setting forth the results of each 

annual audit within one hundred twenty (120) days after the end of each fiscal year of the 

gaming operation(s) resulting from the audit(s) conducted pursuant to Subsection (a) 

above. 

(c) Relationship of Audited Firancia1 Statements to Fee Assessment Reports. The 

Nation shall reconcile its quarterly fee assessment reports, submitted under 25 C.F.R. Part 

5 14, with its audited financial statements and make available such reconciliation upon 

request by the NIGG's authorized representative. 

9 14-2 All gaming related contracts that result in purchases of supplies, services, or concessians 

for more than Twenty Five Thousand ($25,000) Dollars in any year (except contracts for 

professional legal or accounting services) shall be specifically included within the scope of the 

audit conducted pursuant to this Section. 

SECTION 15 - GROSS GAMING REVENUES 

515-1 The Gross Gaming Revenues derived from gaming operations are Nation funds and are to 

be expended as authorized by the Nation. 

SECTION 16 - VIOLATIONS 

81 6-1 No person shall operate or conduct any gaming activity in a gaming operation within the 

exterior boundaries of Nation Lands without a gaming license issued by the SGA as required by 

this Law or the Compact and its Appendices 

$16-2 No person shall knowingly submit false or misleading information to the NIGC, the 

Nation or the SGA in response to any provision of the Act, NTGC regulations, or a Nation Law 

or resolution that the Chairman has approved under parts 522 or 523 in Title ZS C.F.R. 

5 16-3 (a) No Management Contractor shall fail to account fully for all moneys received or 

collected in connection with gaming activities or to file any report required by the 

Management Contract. 

(b) A gaming operation shall allow an authorized representative of the NlGC or an 

authorized SGA official to enter or inspect a gaming operation pursuant to 25 C.F.R. 5s 

571.5 or 571 -6, or of Nation Law or resolution approved by the Chairman under parts 522 

or 523 in Title 25 C.F.R. 

4 16-4 No person under the age of eighteen (18) years shall be employed by a gaming operation 

or shall athenvise be permitted to participate in any gaming activities. 
916-5 No person shall engage in cheating (as that term is defined in $4-l(e} of this Law) in any 

gaming activity or engage in any fraudulent conduct affecting either the Nation or a customer of 

a gaming operation. 

5 1 6-6 No person, including security department personnel, shall possess, or be permitted to 

possess any firearm within any Gaming Facility without the prior express written consent of both 

the Nation Law Enforcement Agency and the State, except for duly authorized personnel of each. 

The SGA shall post in a conspicuous location at every entrance to each Gaming Facility, a sign 

stating: "No person shall possess any firearm within this Gaming Facility." 

g1A-7 Any person who is in gsivity with a person who violates this Law shalI be deemed to be 

in violation of this Lnw to the same extent as the violator, and shall be treated accordingly. 

(j 16-8 No person, whether playing in or conducting any gaming activity authorized under this 

Law, shall: 

(a) use bogus or counterfeit cards, or substitute or use any game cards that have been 

tampered with; 

@) employ or have on one's person any cheating device to facilitate cheating in any 

gaming activity; or 

(c) knowingly cause, aid, abet, or conspire with another person or cause any person to 

violate any provision of this Law or any rule adopted under this LAW. 

9 16-9 The Nation shall construct, maintain and operate a Gaming Facility in a manner that 

adequately protects the environment and the public health and safety. 

SECTION 17 - NOTICE OF VIOLATION 

$1 7-1 The SGA may issue a notice of violation 20 any person for violation of any provision of 

this Law. 

3 17-2 A notice of violation shall contain: 

(a) a citation to the Law provision that has been or is being violated; 

@) a description of the circumstances surrounding the violation, set forth in common 

and concise language; 

(c) measures required to correct the violation; 

(dl a statement that the violation must be corrected within five (5) calendar days from 

the date the notice was issued; 

(e) a statement of the alleged violator's rights of appeal; and 
(9 the amount of civil fines that the alleged violator must pay pursuant to Section 19, 

below. 

SECTION 18 - VIOUTION PENALTIES 

$1 8-1 In issuing a notice of violation under Section 17 of this Law, the SGA may: 

(a) impose a civil fine not to exceed Five Hundred ($500) DolIars for each violation 

and, if such violation is a continuing one, for each day, that the violation occurs; andlor 

@) impose a penalty of One Hundred ($100) Dollars per day for failure to submit to 

the Commission any report required under this Law when it is due, and One Thousand 

($1,000) Dollars per day for failure to file any such report after three-day notice and 

demand. 

Fj 18-2 How assessments are made. 

The SGA shall review each notice of violation to determine whether a civil fine will be assessed, 

the amount of the fine, and in the case of a continuing vioIatian, whether such daily violation 

will be deemed a separate violation for purposes of the total civil fine assessed. 

8 18-3 Procedure for assessment of a civil fine: 

(a) within five (5) caIendar days after service of a notice of violation, the alleged 

violator shall submit written information about the violation and any corrective measures 

undertaken to the SGA, The SGA shall consider any information so submitted in 

determining the facts surrounding the violation sad the amount of the civil fine; 

@) the SGA shall serve a copy of the proposed assessment on the alleged violator 

within ten (10) calendar days after the notice of violation was issued, when practicable; 

and 

(c) the SGA may review and reassess any civil fine if necessary to consider facts that 

were not reasonably available on the date of issuance of the proposed assessment. 

5 18-4 Final assessment: 

Ca) if the alleged violator fails to request a hearing as provided in Section 20 of this 

Law, the proposed civil fine assessment shall become a final order of the SGA. 

(b] civil fines assessed under this Section shall be paid by the person assessed and 

shall not be treated as an operating expense of the gaming operation; and 

(c) the SGA shall transfer civil fines paid under this JAW to a SGA account. 
SECTION 19 - ENFORCEMENT 

$19-1 The SGA shaII take any one or a combination of the following actions with respect to any 

person who violates any provision of this Law: 

(a) suspend or revoke any gaming license issued by the SGA; or 

(b) bring an action in a court of competent jurisdiction for imposition of one or more 

of the following sanctions: 

(1) seizure of any gaming apparatus, proceeds, or other property of a licensee 

connected with the gaming activities engaged in by the licensee; 

(2) collection of any unpaid fees, interest, penalties, and of any civil fines 

unpaid after thirty (30) calendar days; or 

(3) execution on any nonexempt property of a vioIator located within the 

exterior boundaries of Nation Lands. 

$19-2 Civil actions may be brought by the SGA pursuant to this Law in any Court of competent 

jurisdiction to enforce the imposition of any and all sanctions provided for under this Law. 

9 19-3 Before taking any action authorized in 8 17 and $18 of this Law, the 5GA shall. use its 

best efforts to notify the alleged violator, in person or by letter delivered to hidher last known 

address, of the charges against himher, and allow the alleged violator an opportunity for a 

prompt hearing. If the alleged violator fails to respond, or cannot be found, the SGA may 

proceed with a hearing notwithstanding, and take such action as it deems appropriate. Said 

notice of the alleged violation shall be served at Ieast three (3) business days prior to the hearing. 

519-4 Every person who applies for a gaming license and accepts such license thereby 

acknowledges the civil enforcement jurisdiction and authority of the SGA under this Law to 

order an execution on his/her nonexempt property, the suspension or termination of hidher 

further conduct of gaming activities and the seizure of hislher gaming equipment or proceeds or 

other property, upon a proper finding of the SGA or the court that the person has violated a 

provision of this Law, despite Iack of actual notice, provided that the SGA has used its best 

efforts to notify the person, in person or by letter delivered to hisher last known address. 

SECTION 20 - HEARINGS AND APPEALS 

920-1 This Section provides procedures for appeals to the SGA regarding: 

(a) violation; and 

@) civil fines assessed by the Commission in this Law; and 

(c) the denial or revocation of gaming licenses; 
(d) the Commission shall promulgate regulations regarding procedures. 

$20-2 The SGA shall hold a hearing on the denial or proposed revocation of a gaming license 

held by an employee after it has suspended such license pursuant to this Law, the Compact and 

its Appendices, and 25 C.F.R. 3 558.5. The Licensee shall be notified by the SGA of the time 

and place for hearing. After the hearing, the SGA shall decide to issue, revoke, or reinstate the 

gaming license. The SGA shalI notify the NIGC of its decision and provide all other notices 

required by the Compact and its Appendices. 

820-3 Any person aggrieved by a decision made or action taken by the SGA pursuant to this 

section may petition the SGA for review. Such petition shaI1 specifically set forth the reasons for 

aggrievernent and be filed with the SGA no later than thirty (30) business days after the SGA's 

decision or action. The SGA shall set the matter for hearing no Eater than thirty (30) business 

days and no sooner than three (3) business days after receipt of the petition, and may, upon 

establishing that it has jurisdiction, affirm, modify, reverse andlor vacate the SGA order. 

SECTION 21 - SERVICE 

$21-1 The Council hereby designates the President of the Nation as agent for service of process 

of any official determination, order, or notice of violation. 

SECTION 22 - lU3SOLUTIQN OF DISPUTES BETWEEN THE GAMING PUBLIC AND 

THE NATION OR THE MANAGEMENT CONTRACTOR 

$22-1 The resolution of claims involving disputes relating to a patron's entitlement to a game 

prize are to be governed by the procedures set forth in Appendix 1. 

$22-2 The resolution of claims involving demands or liability for bodily injury and property 

damages arising out of or relating to the operation of the Gaming Facilities, are to be governed 

by the procedures set forth in Appendix H. 

SECTION 23 - APPLICABLE LAW 

3-23-1 A11 controversies involving contracts relating to gaming entered into under the authority 

of the Council or business arm thereof on Nation Lands shall be resolved, as appropriate, in 

accordance with: 

(a) the choice of law provision contained in the contract or agreement; 

(b) the Indian Gaming Regulatory Act; 

(c) NIGC regulations; andlor 

Id) Seneca laws and customs within the judicial system of the Seneca Nation. 
SECTION 24 - SEVERABILITY PROVISION 

$24-1 If any provision of this Law or the application thereof to any person or circumstance is 

held invalid, the invalidity shall not affect other provisions or applications of Law which can be 

given effect without the invalid provisions or application, and, 20 this end, the provisions of this 

Law are severable. 

SECTION 25 - EFlFJECTIVE DATEMPEAL 

$5 1-1 This Law shall be effective immediately upon approval by the Chairman of the NIGC. 

SECTION 26 - MANAGEMENT CONTRACTOR/CONTRACT PROVISIONS 

$26-1 Any or a11 references or procedures applicable to Management Contractors or contracts 

becomes effective upon adoption by Council of any Management Contract. 

SECTION 27 - MINIMUM INTERNAL CONTROL STANDARDS 

827- 1 The Nation acknowledges its obligation to adopt and implement Minimum Internal 

Control Standards (MICS) for the operation of its gaming operation no less stringent than those 

found in the regulations of the NlGC at 25 C.F.R. Part 542. The Nation's MICS shall be set out 

in separate segulations to be promulgated by the SGA. 

SECTION 28 - PROHIBITION AGAINST INDIVIDUALLY OWNED CLASS 111 

GAMING 

$28-1 No license shall be issued by the SGA for individually owned Class 111 Gaming 

operat ions. 

SECTION 29 - CONJ%ICT OF JAWS 

829-1 Where this Law conflicts with the Compact and its Appendices, the Compact and the 

Appendices shall prevail provided that they are no less stringent than the Act, NIGC regulations 

and this Law.