MEMORANDUM TO THE CHAIR

THROUGH: Michael Hoenig, General Counsel

 Sharon M. Avery, Associate General Counsel

FROM: Austin Badger, Senior Attorney 

DATE: May 13, 2022 

SUBJECT: Big Sandy Rancheria of Western Mono Indians of California – (McCabe

Allotment) Indian Lands Opinion 

On April 12, 2022, the Big Sandy Rancheria of Western Mono Indians of California submitted to 

the NIGC a request for approval of an amended gaming ordinance.1 Amendments to the gaming 

ordinance include specifying that gaming is authorized on “the north half of Lot two of the 

northwest quarter of Section 18, Township 11 South, Range 22 East, Mount Diablo meridian, in 

Fresno County, California, being the original allotment of Mary McCabe, Sac-120...” (McCabe 

Allotment). This Memorandum addresses whether the McCabe Allotment qualifies as Indian 

lands under the Indian Gaming Regulatory Act on which the Tribe may conduct gaming. 

On September 6, 2006, the Office of General Counsel opined that the McCabe Allotment 

qualified as Indian lands eligible for gaming by the Tribe. At that time, the McCabe Allotment 

was held in trust by the United States for the benefit of Big Sandy Rancheria tribal member 

Sherrill Anne Esteves. Ms. Esteves passed away on June 18, 2019, and pursuant to a decision of 

the Probate Hearings Division of the Department of the Interior’s Office of Hearings and 

Appeals, all of her interest in the land will pass to her daughter Carolyn Lee.2 The Tribe 

 

1

 The Tribe provided additional information concerning the McCabe Allotment on February 21 

and 25, 2022. The Tribe’s submission included: Declaration of Elizabeth Kipp, Chairperson of 

the Tribal Council of the Big Sandy Band of Western Mono Indians (February 11, 2022) (“Kipp 

Declaration”), “The Public Domain Allotment of Mary McCabe and the Big Sandy Rancheria: A 

Preliminary Historical Report,” G. Russell Overton (February 25, 2022) (“Overton Report”), and 

“Tribal Jurisdiction over McCabe Allotment,” Peebles Kidder Bergin & Robinson, LLP 

(February 25, 2022). 2 “In the Matter of the Estate of: Sherrill Anne Esteves,” Decision, Probate T000169570 

(formerly P0001695701P) (April 22, 2022). The Decision is final unless a petition for rehearing 

is timely filed within 30 days.
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therefore requests our opinion as to whether the McCabe Allotment continues to qualify as 

Indian lands eligible for gaming by the Tribe as currently held for the beneficial interest of the 

estate, as potentially held for the beneficial interest of Big Sandy Rancheria tribal member 

Carolyn Lee, and as potentially held for the beneficial interest of the Tribe should Carolyn Lee

and the Tribe complete a trust-to-trust transfer to the Tribe. After reviewing the status of the 

McCabe Allotment and the effect of these potential transfers of beneficial interest, we have 

determined that under each scenario the land continues to qualify as Indian lands under IGRA on 

which the Tribe may lawfully conduct gaming. The Department of the Interior Solicitor’s Office 

has reviewed this legal opinion and concurs.

Background

The McCabe Allotment was originally allotted out of the public domain to Mary McCabe, a 

“Mono Indian,” in 1920 and immediately placed into trust. The McCabe Allotment is currently 

held in trust by the United States for the benefit of the estate of tribal member Sherrill Anne 

Esteves. The original heirs to the estate were Big Sandy Rancheria tribal member Carolyn Lee

and Lone Pine Paiute-Shoshone tribal member Edward Esteves. The decision concluding the 

probate process determined that Edward Esteves renounced his interest in the parcel in favor of 

Carolyn Lee. The Tribe has further indicated that Carolyn Lee and the Tribe intend to complete a 

trust-to-trust transfer which would cause the McCabe Allotment to be held in trust by the United 

States solely for the benefit of the Tribe.

Applicable Law

IGRA 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 restriction by the United States against alienation and 

over which an Indian tribe exercises governmental power.3

NIGC regulations further clarify the 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 

 3 25 U.S.C. § 2703(4).
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(2) Held by an Indian tribe or individual subject to restriction by the 

United States against alienation.4

Analysis

The McCabe Allotment is not within the Big Sandy Rancheria. It is currently held in trust for the 

benefit of the estate of tribal member Sherrill Anne Esteves. To conduct gaming on trust lands 

located outside the exterior boundaries of its reservation, IGRA requires a tribe to exercise 

governmental power over those trust lands. Therefore, the McCabe Allotment constitutes Indian 

lands if the Tribe exercises governmental power over it. To exercise governmental power over its 

trust lands, a tribe must first possess jurisdiction over those lands.5

Jurisdiction

Tribes are presumed to possess jurisdiction within “Indian country.”6 Trust land, such as the 

McCabe Allotment, is “Indian country.”7 And, in Opinion of the Solicitor, Sampson Johns 

Allotment (September 26, 1996), Interior opined that a tribe would possess jurisdiction over a 

tribal member’s allotment unless the “land in question is not owned or occupied by tribal 

members and is far removed from the tribal community.”

Here, the McCabe Allotment is held in trust for the estate of tribal member Sherrill Ann Esteves

and is located within 12 miles of the Tribe’s reservation.8 The Tribe, therefore, has jurisdiction 

over the McCabe Allotment for IGRA gaming purposes.

Our conclusion with respect to jurisdiction would not change should beneficial ownership of the 

McCabe Allotment transfer to Carolyn Lee or to the Tribe.

Governmental Power

There are many possible ways and circumstances in which a tribe might exercise governmental 

power over its land. For this reason, the NIGC has not formulated a uniform definition of 

“exercise of governmental power,” but instead decides whether it is present in each case, based 

 4 25 C.F.R. § 502.12.

5 Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 at 701-703 (1st Cir. 1993) (IGRA 

requires a threshold showing by tribe that it possesses jurisdiction over the lands to satisfy the 

Act’s “having jurisdiction” prong).

6 “Indian country” is defined in 18 U.S.C. § 1151 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.” 

7 See United States v. Roberts, 185 F.3d 1125, 1131 (10th Cir. 1999) (“’[r]eservation’ status is 

not dispositive and lands owned by the federal government in trust for Indian tribes are Indian 

Country pursuant to 18 U.S.C. § 1151”). 

8 The Tribe has also provided documentation supporting the conclusion that the heirs (Frank 

McCabe, Lester McCabe, and Sherrill Ann Esteves (nee McCabe)) of the original allottee, Mary 

McCabe, have “all identified as Western Mono members of the Big Sandy Rancheria.” See 

Overton Report, p. 31.
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upon all the circumstances.9 As noted by the First Circuit, the exercise of governmental power is 

“not the achievement of full-fledged self-governance, but merely movement in that direction.”10

Here, the Tribe’s Constitution provides that the Tribe has jurisdiction over any allotment of a 

tribal member. The Tribe provides governmental services to off-reservation Indian allotments 

owned or occupied by tribal members including the McCabe Allotment and other allotments in 

the surrounding area.11 The Tribe requires 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.

12 The Tribe has therefore demonstrated that it 

exercises governmental power over the McCabe Allotment.

Our conclusion with respect to governmental power would not change should beneficial 

ownership of the McCabe Allotment transfer to Carolyn Lee or to the Tribe.

Conclusion

Based upon the foregoing analysis, the statutory language of IGRA, and NIGC and Interior 

regulations, the McCabe Allotment as currently held by the estate of Sherrill Anne Esteves 

constitutes Indian lands eligible for gaming by the Tribe under the Indian Gaming Regulatory 

Act. Our conclusion with respect to such eligibility for gaming by the Tribe would not change 

should the beneficial ownership of the McCabe Allotment transfer to Carolyn Lee or to the 

Tribe. The Department of the Interior, Office of the Solicitor concurs with this opinion.

 9 National Indian Gaming Commission: Definitions under the Indian Gaming Regulatory Act, 57 

Fed. Reg. 12382, 12388 (1992).

10 Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah), 853 F.3d 618, 626 (1st Cir. 

2017).

11 Kipp Declaration, p. 8. 12 Kipp Declaration, p. 3.