Letter to Principal Chief Floyd

Re: Muscogee (Creek) Nation — River Spirit Triangle ILO
May 14, 2019

Page 5 of 8

country rests with the Federal Government and the Indian tribe inhabiting it, and not with the
States.”?” Reservation land is one type of Indian country.”8 Additionally, land owned by the
federal government in trust for an Indian tribe is Indian country.”° Here, the Nation possess
jurisdiction over the River Spirit Triangle parcels because they were taken into trust for the
Nation in 2016, as demonstrated by the Warranty Deed.*°

Once jurisdiction is established, there are many ways and circumstances in which a tribe
might exercise governmental power over its land. For this reason, NIGC has not formulated a
uniform definition of “exercise of governmental power,” but instead decides whether it is present
in each case, based on all circumstances.*! The First Circuit Court of Appeals found that
satisfying the governmental power requirement depends “upon the presence of concrete
manifestations of [governmental] authority.”> It later reaffirmed it “is, not the achievement of
full-fledged self-governance, but merely movement in that direction” that is necessary to
demonstrate governmental power.*

When evaluating other cases, the NIGC has considered: (1) tribal development of the
land, including signage, fencing, roads, utilities, housing, offices, and retail spaces;** (2) tribal

reservation did not simply derive from the tribe’s power to exclude, but was an inherent power necessary to tribal
self-government and territorial management).

27 Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 527 n.1 (1998) (citing South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329, 343 (1998)); see also United Keetoowah Band of Cherokee Indians of Oklahoma v. U.S.
Dep't. of Hous.& Urban Dev., 567 F.3d 1235, 1240 n.5 (10th Cir. 2009) (stating, “While court jurisdiction is
complex, as a general matter, Indian tribes exercise court jurisdiction over Indian country—reservations, dependent
Indian communities, and Indian allotments.” (citations omitted)).

28 See 18 U.S.C. § 1151(a).

?° See U.S, v. Roberts, 185 F.3d. 1125, 1131 (10th Cir. 1999), cert. denied, 529 U.S. 1108 (2000).

3° General Warranty Deed, Tulsa County Clerk (December 3, 2003); see also, letter from BIA Eastern Oklahoma
Region to NIGC (May 24, 2018).

3! See National Indian Gaming Commission, Definitions Under the Indian Gaming Regulatory Act, 57 Fed. Reg.
12,382, 12,388 (Apr. 9, 1992).

32 Rhode Island, 19 F.3d 685, 703 (Ist Cir. 1994); see also Cheyenne River Sioux Tribe v. South Dakota, 830 F.
Supp. 523, 528 (D.S.D. 1993) aff'd 3 F.3d 273 (8th Cir. 1994) (examining the following attributes to determine
whether a tribe exercised governmental power over its trust lands: “(1) whether the areas are developed; (2) whether
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 or the State; and (5) other indicia as to who
exercises governmental power over those areas.”).

3 Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah), 853 F.3d 618, 626 (1st Cir. 2017), cert. denied, 138
S. Ct. 639, (2018), and cert. denied sub nom. Town of Aquinnah, Mass. v. Wampanoag Tribe of Gay Head
(Aquinnah), 138 S. Ct. 639 (2018).

*4 See Letter from Michael Hoenig, NIGC General Counsel, to Michael Hunter, Coyote Valley Band of Pomo
Indians of California Chairman, p. 10 (Oct. 30, 2017), available at
https://www.nige.gov/images/uploads/indianlands/2017.10.30_Iltr_re_Coyote_Valley_Band_of_Pomo_Indians_ILO
_Pine_Crest_Parcel_to_Tribe_Chairman_from_NIGC_GC.pdf (hereinafter “Coyote Valley Band ILO”);
Memorandum from NIGC Acting General Counsel to Montie Deer, NIGC Chair, p.7 (Aug. 5, 2002), available at
https://www.nige.gov/images/uploads/indianlands/2002.08.05%20Bear%20River%20Band%20ILO.pdf (hereinafter
“Bear River Band ILO”); and Memorandum from Jo-Ann Shyloski, NIGC Senior Attorney, to Philip Hogen, NIGC
Chair, p. 6 (Nov. 15, 2005), available at
https://www.nige.gov/images/uploads/indianlands/01_kiowatribefinalldsopn.pdf (hereinafter “Kiowa ILO”).


Letter to Principal Chief Floyd

Re: Muscogee (Creek) Nation — River Spirit Triangle ILO
May 14, 2019

Page 8 of 8

Moreover, this advisory legal opinion is not binding upon the NIGC Chair, who may opt to
exercise his or her prosecutorial discretion to disregard the opinion, or the full National Indian
Gaming Commission, which is free to disagree with the opinion in any action that comes before
it. In sum, this advisory legal opinion does not constitute agency action or final agency action for
purposes of review in federal district court.

If you have any questions, please contact Suzanne Nunn at (202) 632-7003 or
Suzanne_Nunn@NIGC.gov.

Sincerely,

Mn 2 ——
Michael Hoenig
General Counsel

ce: Chris Ray, Chairman of Gaming Operations Authority Board (coachcray@gmail.com)
Yonne Tiger, Attorney (ytiger@campbelltiger.com)


Letter to Principal Chief Floyd

Re: Muscogee (Creek) Nation — River Spirit Triangle ILO
May 14, 2019

Page 4 of 8

and the State of Oklahoma lacked criminal jurisdiction to prosecute a member of the Nation.'®
Accordingly, the “former” or “historic” modifiers commonly applied to the Nation’s reservation
or territory may no longer be appropriate. We recognize, however, that Oklahoma filed a petition
for Certiorari with the United States Supreme Court challenging this ruling, and the United
States has filed an Amicus brief taking the position that the ruling in Murphy should be
reversed.'? The parties have filed their responsive briefs, and the case has been set for oral
argument on November 27, 2018.

If Murphy is affirmed, the parcels are within the limits of the Nation’s reservation.” In a
letter from the Eastern Oklahoma Region of the BIA, the Acting Regional Director states that the
“River Spirit Triangle Parcels are located within the boundaries of the current or former
reservation of the Muscogee (Creek) Nation.”?! The River Spirit Triangle parcels would then
qualify as “all lands within the limits of any Indian reservation,”?”

2. Ifnot within the Nation’s reservation, the River Spirit Triangle parcels are Indian
lands because they are held in trust and the Nation exercises governmental power
over the parcels.

Even if Murphy is reversed, though, the River Spirit Triangle parcels are still Indian lands
because they are held in trust by the United States for the benefit of the Nation and the Nation
exercises governmental power over the parcels.”> The parcels were taken into trust on September
30, 2016. As for government power, a tribe must first possess jurisdiction over the land before
it can exercise governmental power.”> An Indian tribe possesses jurisdiction “over both [its]
members and [its] territory.”?6 “Generally speaking, primary jurisdiction over land that is Indian

'8 See Murphy v. Royal, 875 F.3d at 948-966.

” See Brief for the United States as Amicus Curiae Supporting Petitioner, Carpenter v. Murphy, No. 17-1107 (U.S.
July 30, 2018) 2018 WL 3642789.

2 See 25 U.S.C. § 2703(4)(A).

?! Letter from BIA Eastern Oklahoma Region to NIGC (May 24, 2018) (the letter included an aerial map of the
parcels as located within the boundaries of the reservation; inset to the map, indicates the location of the River Spirit
Triangle parcels).

22 See 25 U.S.C. § 2703(4)(A).

3 See 25 U.S.C. § 2703(4)(B).

24 See, Warranty Deed, Tulsa County Clerk (September 30, 2016).

25 U.S.C. § 2710(b)(1) (stating, “An Indian tribe may engage in, or license and regulate, class II gaming on
Indians lands with such tribe’s jurisdiction,” if the tribe meets other criteria.); 25 U.S.C. § 2710(d)(1)(A)(i) (stating,
“Class III gaming activities shall be lawful 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 ” and meets other criteria); 25 U.S.C. § 2710(d)(3)(A) (stating, “Any Indian tribe having jurisdiction over the
Indian Jands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State
in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact
governing the conduct of gaming activities ....”); see also, Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685,
701-03 (Ist Cir, 1994) (citing Sections 2710(d)(3)(A) and 2710(b)(1) of IGRA as creating IGRA’s jurisdictional
requirement), cert, denied, 513 U.S. 919 (1994), superseded by statute as stated in Narragansett Indian Tribe v.
Nat'l Indian Gaming Comm’n, 158 F.3d 1335 (D.C. Cir. 1998).

?6 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987); see also Merrion v. Jicarilla Apache
Tribe, 455 U.S. 130 (1982) (concluding a tribe’s authority to tax non-Indians who conducted business on the tribe’s


Letter to Principal Chief Floyd

Re: Muscogee (Creek) Nation ~ River Spirit Triangle ILO
May 14, 2019

Page 6 of 8

supervision of the land, including law enforcement, monitoring for trespassers, maintenance,
environmental regulation, and historic preservation;* (3) governmental agreements pertaining to
the land, including memoranda of understanding with local governments, utility agreements, and
Housing and Urban Development funded housing services; (4) tribal constitutions and
ordinances extending jurisdiction to the lands and controlling the use of the land, including
hunting, fishing, and gaming;°” and (5) providing tribal governmental services or programs,
including healthcare, residential, cultural, and educational services on the land.3*

Here, the Nation has shown concrete manifestations of its exercise of governmental
power over the River Spirit Triangle parcels. The property perimeter is secured by fencing and a
gate.*° Signs are posted throughout the parcels that read “Private Property No Trespassing By
Order of the Muscogee (Creek) Nation.” Additional posted signs read “The Muscogee Creek
Nation prohibits persons from carrying firearms or concealed weapons while on the premises. No
alcohol allowed on premises.” The Nation adopted ordinances prohibiting criminal trespass
over its lands." And the Lighthorse Tribal Police department patrols the River Spirit Triangle
parcels.” In addition, the Nation’s constitution states that the jurisdiction of the Nation “shall be
as it geographically appeared in 1900 which is based upon those Treaties entered into by
[Nation] and the United States of America.”

Based on the above examples, the Nation clearly demonstrates concrete manifestations of
governmental authority over lands under its jurisdiction, including the River Spirit Triangle
parcels. Therefore, regardless of the outcome of Murphy, it is my opinion that the parcels are
Indian lands pursuant to IGRA as either land within the Nation’s reservation or trust land over
which the Nation exercises governmental authority.

B. The Nation has jurisdiction over the River Spirit Triangle parcels.

Whether the River Spirit Triangle parcels are within the Nation’s reservation or land held
in trust over which the Nation exercises governmental authority, the parcels are within the
Nation’s jurisdiction as required by 25 U.S.C. § 2710.4 As stated above, “primary jurisdiction

° See Coyote Valley Band ILO at p. 10; Bear River Band ILO at p.7; Kiowa ILO at p. 6; and Memorandum from
John Hay, NIGC Staff Attorney, to Philip Hogen, NIGC Chair, p. 6 (Sept. 6, 2006), available at
https://www.nigc.gov/images/uploads/indianlands/bigsandyrancheriaflo.pdf (hereinafter “Big Sandy Rancheria
ILO”);

36 See Coyote Valley Band ILO at p. 10; and Bear River Band ILO at p.7.

°7 See Coyote Valley Band ILO at p. 10; Bear River Band ILO p.7; Kiowa ILO at p. 6; and Big Sandy Rancheria
ILO at pp. 5-6.

*8 See Coyote Valley Band ILO at p. 10; Bear River Band ILO, p.7; and Big Sandy Rancheria ILO at pp. 5-6.

* Photographs of the River Spirit Triangle parcels, provided via email from Yonne Tiger, Attorney at Campbell
Tiger, to Suzanne Nunn, NIGC Staff Attorney (July 25, 2018).

Td.

41 See Muscogee (Creek) Nation Tribal Code, Title 14 Crimes and Punishments, § 2-406 — Criminal Trespass.

42 Id.

+3 Muscogee (Creek) Nation Constitution, art. I, § 2 (1979) (available at http://www.creeksupremecourt.com/men-
constitution).

425 U.S.C. § 2710(b)(1), (AIAG).


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May 14, 2019
Via First Class Mail and Email

James R. Floyd

Principal Chief

Muscogee (Creek) Nation
P.O. Box 580

Okmulgee, OK 74447-0580
jfloyd@men-nsn.gov

Re: — Muscogee (Creek) Nation ~ Indian Lands Opinion River Spirit Triangle Parcels
Dear Principal Chief Floyd:

By letter dated April 23, 2018, you requested on behalf of the Muscogee (Creek) Nation
an Indian lands opinion from the National Indian Gaming Commission’s Office of General
Counsel regarding parcels of property referred to as the “River Spirit Triangle.”! More
specifically, the Nation asks whether certain tribal lands held in trust, upon which the Nation
intends to conduct gaming, fall within the definition of “Indian Lands” under IGRA.? To assist
with our analysis, the Nation has provided us with maps of the parcels, a general warranty deed
of the parcels, including legal descriptions, and photographs of the parcels.

As detailed below, it is my opinion that the parcels of land are Indian Lands within the
Nation’s jurisdiction and eligible for gaming pursuant to the Indian Gaming Regulatory Act.
Although taken into trust after October 17, 1988, the River Spirit Triangle parcels are eligible for
gaming because they are located within the boundaries of the Nation’s current or former
reservation. *

Background
The warranty deed describes the River Spirit Triangle parcels as:

“Tract A”

Letter from Principal Chief James R Floyd on behalf of the Muscogee (Creek) Nation, to Jonodev Chaudhuri,
Chairman, NIGC (April 23, 2018) with attachments.

225 U.S.C. § 2701 et. seq.

325 U.S.C. § 2703(4); see, e.g. 25 C.F.R. § 502.12; 25 C.F.R. § 292.2.

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Street NW, Mail Stop # 1621 Washington, DC 20240 Tel: 202.632.7003 Fax: 202.632.7066

REGIONAL OFFICES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa OK; Oklahoma City, OK
WWW.NIGC.GOV


Letter to Principal Chief Floyd

Re: Muscogee (Creek) Nation ~ River Spirit Triangle ILO
May 14, 2019

Page 7 of 8

over land that is Indian country rests with the Federal Government and the Indian tribe inhabiting
it, and not with the States.”*> Reservation land is one type of Indian country,*° and land owned
by the federal government in trust for an Indian tribe is another form of Indian country.’”
Accordingly, for purposes of Section 2710, the Nation is the tribe that has jurisdiction over the
parcels because the parcels are within the Nation’s reservation** or because the parcels are held
in trust for the Nation,’ as opposed to another tribe.

Cc. The River Spirit Triangle parcels are eligible for gaming under 25 U.S.C. § 2719.

Lastly, the River Spirit Triangle parcels are eligible for gaming because they qualify for
an exception to IGRA’s general prohibition of gaming on lands taken into trust after October 17,
1988. The River Spirit Triangle parcels are either within the Nation’s reservation as it existed on
October 17, 1988 (if Murphy is affirmed),°° or the River Spirit Triangle parcels are located
within Oklahoma and within the Nation’s former reservation (if Murphy is reversed).5! Under
either exception, the River Spirit Triangle parcels are eligible for gaming under IGRA.

Conclusion

Based upon the foregoing analysis, it is my opinion that the River Spirit Triangle parcels
are Indian lands within the Nation’s jurisdiction and are eligible for gaming under IGRA because
they qualify for the current or former reservation exceptions to the general prohibition against
gaming on land taken into trust after October 17, 1988. The Department of Interior, Office of the
Solicitor, concurs with this opinion.

Please be advised that this legal opinion is advisory in nature only and that it may be
superseded, reversed, revised, or reconsidered by a subsequent General Counsel at a later date.

‘5 Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 527 n.1 (1998) (citing South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329, 343 (1998)); see also United Keetoowah Band of Cherokee Indians of Oklahoma v. U.S.
Dep't. of Hous.& Urban Dey., 567 F.3d 1235, 1240 n.5 (10th Cir. 2009) (stating, “While court jurisdiction is
complex, as a general matter, Indian tribes exercise court jurisdiction over Indian country—reservations, dependent
Indian communities, and Indian allotments.” (citations omitted)).

46 See 18 U.S.C. § 1151(a).

7 See U.S. v. Roberts, 185 F.3d. 1125, 1131 (10th Cir. 1999), cert. denied, 529 U.S. 1108 (2000).

48 See e.g., Letter from Michael Hoenig, NIGC General Counsel, to Leona L. Williams, Pinoleville Pomo Nation
Chairperson, pp. 11-12 (Sept. 28, 2015) available at
https://www.nige.gov/images/uploads/indianlands/20150928 _Pinoleville Pomo_Nation_Indian_Lands_Opinion.pdf
(concluding that a tribe had jurisdiction over parcel for purposes of 25 U.S.C. § 2710 because the land was located
within the tribe’s reservation).

*® See e.g., Letter from Penny Coleman, NIGC Acting General Counsel, to A.D. Ellis, Muscogee (Creek) Nation
Principal Chief, p. 4 (Apr. 23, 2008) available at

https://www.nige. gov/images/uploads/indianlands/Holdenville%20Site%20Land%200pinion%204%2023%2008.pd
f (concluding that a parcel held in trust for the Nation constituted Indian Country and the Nation was presumed to
have jurisdiction over it).

5025 U.S.C. § 2719(a)(1).

5125 U.S.C. § 2719(a)(2).

* Letter from May 6, 2019, Department of Interior Office of the Solicitor to Michael Hoening, General Counsel,
NIGC (May 6, 2019).


Letter to Principal Chief Floyd

Re: Muscogee (Creek) Nation — River Spirit Triangle ILO
May 14, 2019

Page 2 of 8

A tract of land that is part of the Northeast Quarter (NE/4) of Section Eighteen (18),
Township Eighteen (18) North, Range Thirteen (13) East of the Indian Base and
Meridian, Tulsa County, State of Oklahoma, according to the U.S. Government Survey
thereof...

“Tract B”

A tract of land that is part of the Northeast Quarter (NE/4) of Section Eighteen (18),
Township Eighteen (18) North, Range Thirteen (13) East of the Indian Meridian, Tulsa
County, State of Oklahoma, according to the U.S. Government Survey thereof...

The Nation acquired the parcels that make up the River Spirit Triangle in fee simple title
on December 3, 2003.4 The parcels, which consist of approximately 16.98 acres, were taken into
trust by the Department of the Interior on September 30, 2016.5

The exterior boundaries of the last territory established by treaty for the Muscogee
(Creek) Nation are described in the Treaty with the Creeks from 1833,° subject to the reduction
described in the Treaty with the Creeks from 1866.” In 1866, the Creek Nation signed its last
treaty with the United States government and ceded the western half of its territory to the U.S.
for the settlement of other tribes in Oklahoma.*® The remainder of the Nation’s territory — “the
eastern half” — includes all of Creek, Hughes, Okfuskee, and Okmulgee Counties, along with
portions of Mayes, McIntosh, Muskogee, Okfuskee, Rogers, Seminole, Tulsa, and Wagoner
Counties in Oklahoma.? The River Spirit Triangle parcels are located in Tulsa County.

Applicable Law

IGRA permits an Indian tribe to “engage in, or license and regulate, gaming on Indian
lands within such Tribe’s jurisdiction.”!° The Act defines “Indian lands” 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

‘ General Warranty Deed, Tulsa County Clerk (December 3, 2003).

$ Warranty Deed, Tulsa County Clerk (September 30, 2016); see also, Letter from Acting Regional Director, Bureau
of Indian Affairs, Eastern Oklahoma Region, to Suzanne Nunn, NIGC Staff Attorney (May 24, 2018) (on file with
NIGC).

© Treaty with the Creeks, Feb. 14, 1833, 7 Stat. 417, 1833 WL 4533.

7 Treaty with the Creeks, art. III, June 14, 1866, 14 Stat. 785, 1866 WL 18777.

Sid.

° See Charles Robert Goins & Danney Goble, HISTORICAL ATLAS OF OKLAHOMA, 99 (Univ. of Okla. Press, 4th ed.
2006) (depicting the Oklahoma Indian Territory circa 1889); see also Muscogee (Creek) Nation, Eleven County
Tribal Jurisdiction Map (Jan. 2012), available at
http://mengis.com/images/stories/maps/MCN_JURISDICTION_2016.pdf.

"0.25 U.S.C. $§ 2710(b)(1), 2710(d)(1)(A)(i), 2710(d)(3)(A).


Letter to Principal Chief Floyd

Re: Muscogee (Creek) Nation — River Spirit Triangle ILO
May 14, 2019

Page 3 of 8

restriction by the United States against alienation and over which an Indian tribe
exercises governmental power.!!

NIGC regulations, interpreting IGRA, provide 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. |”

IGRA generally prohibits gaming on lands taken into trust by the Secretary of the Interior
for the benefit of an Indian tribe after October 17, 1988.' IGRA identifies specific exceptions to
this general prohibition.'* One exception is if the land is located within or contiguous to the
boundaries of a tribe’s reservation as it existed on October 17, 1988.'5 Another exception is if the
Indian tribe had no reservation as of October 17, 1988, the land is located in Oklahoma, and
either the land is within the boundaries of the tribe’s former reservation, as defined by the
Secretary, or the land is contiguous to other land that is held in trust or restricted status for the
tribe in Oklahoma. '°

Analysis

To determine whether the River Spirit Triangle parcels qualify as gaming eligible land
under IGRA, it is necessary to examine whether the land constitutes “Indian lands” as defined by
IGRA and NIGC regulations. IGRA defines “Indian lands” to include lands within a reservation
and also trust land over which a tribe exercises governmental power.

A. Indian lands:

1. The River Spirit Triangle parcels are Indian lands because they are within the
boundaries of the Nation’s reservation.

Recently, the Tenth Circuit Court of Appeals decided the case of Murphy v. Royal.'’ The
Tenth Circuit held the historic Creek Reservation was not disestablished by federal legislation
and federal agency actions, therefore, land within the reservation was considered Indian Country

125 U.S.C. § 2703(4).

1225 CFR. § 502.12.

13.25 U.S.C. § 2719(a).

1425 U.S.C, § 2719(a)(1-2), (b)(1-3).

‘5 25 U.S.C. § 2719(a)(1); see also 25 C.F.R. § 292.4(a) (Department of the Interior regulations for newly acquired
lands under the exceptions in 25 U.S.C. § 2719(a)).

16 25 U.S.C. § 2719(a)(2); see also 25 C.F.R. § 292.4(b); see also 25 C.F.R. § 292.4(b)..

” See Murphy v. Royal, 875 F.3d 896 (10th Cir., 2017), cert. granted, 138 S.Ct. 2026 (May 21, 2018)(No. 17-1107).
The case is now captioned Carpenter v. Murphy after a party substitution.