Memorandum 

To: Philip N. Hogen, Chairman 

Through: Penny J. Coleman, Acting General Counsel 

From: John R. Hay, Staff Attorney jFH " 

Date: September 6,2006 

Re: Gaming By the Big Sandy Rancheria on the McCabe Allotment 

On December 22, 2004, the Big Sandy Band of Western Mono Indians ("Tribe") 

submitted to the MGC a Request for Approval of Management Agreement between Big 

Sandy Entertainment Authority and QBS, LLC, regarding a proposed casino near Fresno, 

California. On April 19, 2005, the Tribe submitted documentation to support its assertion 

that the proposed casino site constituted "Indian lands" as defined by the Indian Gaming 

Regulatory Act ("IGRA").' In conjunction with the submission of a Management 

Agreement, the Tribe has requested that the NIGC provide an advisory legal opinion on 

whether the proposed casino location qualifies as Indian lands under IGRA. 

' The Tribe's submission included the following attachments: A Plan For The Distribution Of The Assets 

Of The Big Sandy (Auberry) Rancheria (Effective Date, March 5,1965); Stipulation for Entry of 

Judgment, San Joaquin or Big Sandy Band of Indians, et al. v. James Watt, et al. (March 25,1983); BIA, 

Title Status Report (November 12,2003); BIA, Tract History Report (February 10,2004); Trust Patent 

fiom the United States of America to Mary McCabe (March29,1920); BIA, 1933 California Roll Book 

(excerpt)(November, 1986); Letter fkom Sacramento Indian Agency (April 24, 1935); Tribal Resolution 

No. 84-1 (March 19, 1984); Declaration of Dan Lewis (March 28,2005); Deed to Restricted Indian Land 

Special Form (February 2, 1979); Lester McCabe, BIA Index and Heirship Card; Opinion of the Solicitor, 

Sampson Johns Allotment (September 26,1996); Declamlion of Shenil McCabe (Apnl7,2005); 

Declaration of Tribal Council Member, Phyllis Lewis (March 3 1,2005); Declaration of Tribal 

Administrator, Ric Contreras (March 3 1,2005); Tribal Council Resolution No. 0604-03, Affirming Tribal 

Government Jurisdiction Over Indian Lands Of The Tribe (June 12,2004); Pennit to Enter Trust Lands of 

the Tribe; Tribal Jurisdiction and Government Services Ordinance, Ordinance No. 1204-01 (December 30, 

2004); Map of McCabe Allotment; and Fresno County Assessor's Map, Book 138, Page 06 (June 25, 

2003). 
By letter dated September 9, 2005, the California Governor's OEce of Legal Affairs 

submitted its views on the Indian lands determination. The Tribe responded to the State's 

arguments by letter dated October 7,2005. 

By letter dated February 1, 2006, the Table Mountain Rancheria submitted its views on 

the Indian lands determination. The Tribe has not responded to that submission. 

The OEce of General Counsel has evaluated all of the information submitted and 

determined that the McCabe Allotment would qualifl as Indian lands under IGRA and, 

therefore, the Tribe may lawfully conduct gaming on this parcel. 

Background 

The Tribe is a federally recognized Indian tribe occupying the Big Sandy Rancheria near 

Auberry, California, approximately 35 miles northeast of Fresno. Pursuant to a tribalstate gaming compact with the State of California, the Tribe conducts class 11 and class 

III gaming in its reservation's Mono Winds Casino. The tribe is now developing a new 

gaming facility outside the boundaries of the reservation. 

The parcel of land the Tribe proposes to conduct gaming on is an Indian allotment 

(hereinafter, the "McCabe Allotment") that has been continuously held in trust since 

1920 for McCabe family mernbem2 The current allottee, tribal member Sherrill 

McCabe-Esteves, has been the sole beneficial owner of the McCabe allotment since 

1979. The Allotment is located 12 miles outside the Rancheria, in an unincorporated part 

of Fresno County. The allottee is leasing the parcel to the ~ribe.~ The lease has been 

submitted to the Bureau of Indian Affairs for review. 

The McCabe Allotment is a 40.82~ acre Indian allotment held in trust by the United 

States for the benefit of Big Sandy Rancheria tribal member Sherrill Anne McCabe (aka 

McCabe-Esteves). The McCabe Allotment was originally allotted out of the public 

domain to Mary McCabe, a member of the Tribe, in 1920 and immediately placed in 

trust. 

Applicable Law 

The IGRA explicitly defines "Indian lands" as follows: 

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

2 The parcel at issue is described as: The north half of Lot two of the northwest quarter d Section eighteen 

in Township eleven south of Range twenty-two east of the Mount Diablo Meridian, California, containing 

forty and eighty-two-hundredths acres. 

The lease was submitted to the Pacific Regional Office of the Bureau of Indian Affairs on December 20, 

2004. 

4 The BIA trust status report indicates that this is a 40.82 acre parcel. However, a survey done by the Big 

Sandy Rancheria has found that this parcel is 48.20 acres. In all likelyhood this is simply a scriveners 

error, however, our opinion is limited to the legal description of the trust document 
(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). 

NIGC regulations have fkther clarified the Indian lands definition, providing that: 

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. Generally, lands that do not qualify as Indian lands under IGRA are 

subject to state gambling laws. See National Indian Gaming Commission: Dejnitions 

Under the Indian Gaming Regulatory Act, 57 Fed. Reg. 123 82, 12388 (1 992). 

Further, IGRA gives tribes the exclusive right to regulate gaming on Indian lands, 

specifically providing that: 

Indian tribes have the exclusive right to regulate gaming activity on Indian lands 

if the gaming activity is not specifically prohibited by Federal law and is 

conducted within a State which does not, as a matter of criminal law and public 

policy, prohibit such gaming activity. 

25 U.S.C. § 2701 (5). IGRA fbrther clarifies the jurisdiction of Tribes as to the different 

classes of gaming stating that: 

(I) Class I gaming on Indian lands is within the exclusive jurisdiction of the 

Indian tribes and shall not be subject to the provisions of this chapter. 

(2) Any class I1 gaming on Indian lands shall continue to be within the 

jurisdiction of the Indian tribes, but shall be subject to the provisions of this 

chapter. 

25 U.S.C. (5 2710(a)(1)(2). The requirements for Class 111 gaming likewise state: 

(1) Class 111 gaming activities shall be lawfbl on Indian lands only if such 

activities are-- 

(A) authorized by an ordinance or resolution that 

(i) is adopted by the governing body of the Indian tribe having 

jurisdiction over such lands . . . 
(C) conducted in conformance with a Tribal-State compact entered into by 

the Indian tribe and the State under paragraph (3) that is in effect. 

25 U.S.C. $271O(d)(l)(A)(C). 

Analysis 

The McCabe Allotment is not within the Big Sandy Rancheria; it is held in trust for the 

benefit of tribal member Sherrill McCabe. Therefore, the McCabe Allotment constitutes 

Indian lands if the Tribe possesses jurisdiction and exercises governmental authority over 

it. 

Jurisdiction 

As a general matter, tribes are presumed to possess tribal jurisdiction within "Indian 

country." See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998). The Supreme 

Court has stated that Indian tribes are "invested with the right of self-government and 

jurisdiction over the persons and property within the limits of the territory they occupy, 

except so far as that jurisdiction has been restrained and abridged by treaty or act of 

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

Historically, the term "Indian country" has been used to identify land that is subject to the 

"primary jurisdiction . . . [ofl the Federal Government and the Indian tribe inhabiting it." 

Alaska v. Native Wage of Venetie Tribal Gov 't, 522 U. S. 520, 527 n. 1 (1 998). The U. S. 

Code defines "Indian country" as: 

(a) all land within the limits of any Indian reservation.. . , 

(b) all dependent Indian communities.. . , and 

(c) all Indian allotments, the Indian titles to which have not been 

extinguished. . . . 

18 U. S.C. $ 1 15 1. See, e.g., United States v. Pelican, 232 U.S. 442, 449 (1 914) (Indian 

country includes individual Indian allotments held in trust by the United States because 

they "remain Indian lands set apart for Indians under governmental care"). 

This situation is similar to the Sampson Johns Allotment over which the Quinault Tribe 

possesses jurisdiction. In 1996, the Department of the Interior, Office of the Solicitor 

concluded that an Indian allotment, located off-reservation and created fiom the public 

domain, constituted Indian lands for the purposes of IGRA. See Opinion of the Solicitor, 

Sampson Johns Allotment (September 26, 1996). In that case, the allotment was owned 

by a member of the Quinault tribe and was located 12 miles from the Quinault 

reservation. The opinion concluded that the Quinault Tribe possessed jurisdiction over 

the lands. The opinion noted that a tribe would possess jurisdiction over lands within 

Indian country unless the "land in question is not owned or occupied by tribal members 

and is far removed from the tribal community." Id. 
Similar to the Sarnpson Johns Allotment, the McCabe Allotment is owned by a tribal 

member who is a descendent of the original allottee's family and the allotment has been 

held in trust continuously since 1920 and is located within 12 miles of the Tribe's 

Rancheria. Therefore, we can conclude that the Tribe has jurisdiction over the land. 

Exercise of Governmental Authority 

In order for the land to fit the definition of "Indian lands," we must decide whether the 

Tribe exercises governmental power over the parcel. See 25 U.S.C. 5 2703(4)(B); see 

also Narragansett Indian Tribe, 19 F.3d at 703. 

IGRA is silent as to how NIGC is to decide whether a tribe exercises governmental 

power. Furthermore, the manifestation of governmental power can differ dramatically 

depending upon the circumstances. For this reason 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. See National Indian Gaming Commission: 

DeJinitions [Jnder the Indian Gaming Regulatory Act, 57 Fed. Reg. 12382, 12388 (1992). 

Case law and NIGC opinions provide some guidance. The First Circuit in Narragansett 

Indian Tribe found that satisfling this requirement depends "upon the presence of 

concrete manifestations of [governmental] authority." Narragansett Indian Tribe, 19 F .3d 

at 703. Such examples include the establishment of a housing authority, administration 

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

programs. Id 

In Cheyenne River Sioux Tribe v. State of South Dakota, 830 F. Supp. 523 (D.S.D. 1993), 

afd 3 F.3d 273 (8& Cir. 1993), the court stated that several factors might be relevant to a 

determination of whether off-reservation trust lands constitute Indian lands. The factors 

were: 

(1) Whether the areas are developed; 

(2) Whether the tribal members reside in those areas; 

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

(4) Whether law enforcement on the lands in question is provided by the 

Tribe; and 

(5) Other indicia as to who exercises governmental power over those areas. 

Id at 528. The Court did not opine regarding the weight given any factor or whether the 

absence or presence of one factor was determinative. 

In this case, the Tribe's Constitution provides that the Tribe has jurisdiction over any 

allotment of a tribal member. The Tribe provides governmental services to offreservation Indian allotments owned or occupied by tribal members including the 

McCabe allotment and other allotments in the surrounding area. According to the Tribe, 

such services have included, for example, tribally and HUD fbnded housing services, 
housing and facility maintenance, social, welfare and property maintenance services 

(including food and meal delivery, home repair, refuse removal, etc.). 

The McCabe Allotment is largely vacant and undeveloped. However, the Tribe provides 

some governmental services to the allotment, including site inspection by tribal police 

officers, fence repair, maintenance, inspections for unauthorized grazing, and general 

supervision. The Tribe provided a sworn statement from Ric Contreras, Big Sandy Tribal 

Administrator, recounting a recent situation where a tribal employee noticed signs that 

cattle had been illegally grazing on the land. The Tribe took action to seal-off possible 

entries that cattle may have used to gain access to the property. 

The Tribe has submitted a sworn statement from Sherrill McCabe, the allottee, stating 

that the "Tribe provides governmental services and benefits to the McCabe Allotment, 

including inspection by Big Sandy tribal patrol officers, fence repair, maintenance, 

monitoring for un-permitted grazing, and general supervision." 

The Tribe submitted a sworn statement fiom Dan Lewis, a tribal security officer, stating 

that he "made regular visits to and inspections of the McCabe Allotment" for the purpose 

of looking out for "trespassers, squatters and any damage to or removal of objects from 

the land." 

The Tribe has submitted copies of resolutions to show that it exercises jurisdiction over 

off-reservation Indian allotments. Tribal Council Resolution #0604-03, adopted June 12, 

2004, requires that all off-reservation trust allotments display a sign stating: "NO 

TRESPASSING: PROPERTY UNDER JURISDICTION OF BIG SANDY 

RANCHERIA TRDBAL GOVERNMENT. ENTRANCE ONLY BY PERMISSION OF 

TRIBAL GOVERNMENT." (emphasis in original). According to the Tribe, these 

warning signs have been placed on the McCabe allotment. 

According to the Tribe, in December of 2004, it began requiring non-Tribal visitors, such 

as contractors, surveyors, and others, to obtain a permit before entering off-reservation 

Indian allotments to conduct work on behalf of the Tribe or a tribal member allottee. 

These actions identified above are concrete manifestations of the Tribe's exercise of 

governmental authority over the allotment. 

Conclusion 

In our opinion, the McCabe trust allotment constitutes Indian lands under the Indian 

Gaming Regulatory Act. Therefore, the Big Sandy Rancheria may conduct Class II and 

111 gaming activities on the land. It is important to note that this is an advisory opinion 

The State of Womia argues that the Tribe must exercise historical and exclusive jurisdiction to qualify 

as Indian lands under IGRA. This is an incorrect statement of law. At least since prior to the enactment of 

IGRA, the Tribe had the authority to exercise jurisdiction. In the speclfc circumstances described here, 

nothing more is required. Additionally, there is no requirement that the Tribe exercise governmental power 

over a historically sigmficant period of time. 
issued by the Office of General Counsel and not a final agency action. The Department 

of the Interior, Office of the Solicitor concurs with this opinion.