October 7,2008 

lrin U. S, Mail 

Daniel Beltran 

Chairman 

Lower Lake Ranchesia Roi Nation 

P.O. Box 3 162 

Santa Rosa, CA 95402 

Re: In re: The June 13,2008 disapproval of a gaming ordinance for the Lower 

Lake Ranchcria Koi Nation 

Dear Chairman Beltran: 

I enclose a copy of the National Indian Gaming Commission's decision regarding 

your appeal of my June 13,2008 disapproval of the Nation" gaming ordinance. 1 

apologize for the time it took us to make this decision. We did wish to accormnodate the 

Nation's request for an expedited determination but found we were unable to do so. 

Marry events overtook us, and the Commission's desire to thoroughly understand aII of 

the issues presented resulted in our taking more time to make this decision than we would 

have wished 

please contact Associate General Counsel, General 

Thank you, and 1 look forward to working with 

Chairman 

Enclosure 

cc: Michael Anderson, Esq. 

Michael Gross, Esq. 

hlAllONAL HEADQUARTERS 1 MI 1. St. Ni41, 5uite ?100, Wash~ng:on, DC 201705 rcl: 2@2.632.7[li?3 F,?r 7C12.63;' 7065 www.rrtcC.Gov 

REcloN~t O~F~CES P,3rt!ar;d 05; Saccarncn?o, CA; Phcr~i~x, AZ: St. Paul, h7N; i~llia. OK 
In re: 1 

1 

The June 13,2008 disapproval ) Find decision and order 

of a gaming ordinance 1 

for the Lower Lake Rancheria 1 October 7,2008 

Koi Nation 1 

1 

On appeal to the National Indian Gaming Commission (NIGC or Commission) 

from a disapproval of a gaming ordinance for the Lower Lake Rancheria Koi Nation 

(Nation) under 25 U.S.C. 5 271 O(b). 

Michael J. Anderson, Esq., for the Lower Lake Rancheria Koi Nation. 

Loretta Tuell, Esq., for the Lower Lake Rancheria Koi Nation. 

Matthew Kelly, Esq., for the Lower Lake Rancheria Koi Nation. 

John Hay, Esq., for the National Indian Gaming Commission's Chairman. 

DECISION AND ORDER 

After full review of the agency record and pleadings filed, the Com~nission finds 

and orders that: 

1. The Indian Gaming Regulatory Act (IGRA ), 25 U.S .C. 6 27 1 0(b), requires the 

NIGC Chairman to review and approve (or disapprove) tribal gaming ordinances. 

2. On March 17,2008, the Nation submitted a gaming ordinance for the Chairman's 

review and approval. 

3. The ordinance sought a determination from the Chairman that the Nation was a 

restored tribe within the meaning of 25 U.S.C. 5 2719(b)(l)(B)(iii). 

NATiONAL HEADQUARTERS Irl,?: L st. blW, ?il?O, W2silngton, I)C ?OC)fi5 Trf: 201.632.71!03 FLY 2D2.632 7066 WWW.NIGC.GOV 

REGIONAL OFFICES Por:land, 3R. Sacramrota, CA: pho~rl~x. AT; St. Paul, MP;;Tulsa. OK 
4. On June 18,2008, the Chairman disapproved the ordinance. He defend to a 

December 29, 2000 determination of the Assistant Secretary for Indian Affairs, 

which reaffirmed the government-to-government relationship between the Nation 

and the United States and found that the Nation had never been terminated. 

5. The Chaiman did so properly. Determinations about the governrnent-togovernment relationships between the United States and Indian tribes per se and 

without more are properly made by the Secretary of the Interfor and the Bureau of 

Indian Affairs. 

6. To the extent that the ordinance sought a restored lands determination within the 

meaning of 25 U.S.C. 4 2719(b)(I)(B)(iii), the matter was not ripe. The Nation is 

landless, and neither the ordinance nor any of the Nation's submissions identify 

any land that the Nation might be seeking to place into trust status. 

7. The Chairman's June T 8,2008, disapproval is affirmed. 

PROCEDURAL HISTORY AND FACTS 

Historically, the Lower Lake Rancheria Koi Nation (Nation), Koi meanins people 

of the water, lived on islands in the Clear Lake in what is now Lake County, California, 

and migrated seasonally to the California coast. See Ad~nit~isfrutive Rcord, ' Ex. 27, In 

the Matter of the Appeal of Lower Lake Rancheria Koi Nation (Nation), Hearing 

Transcript at X (August 1,2008). The "Puwis Tract" is located on the Northwest comer 

of the Clear Lake. For thousands of years, the Nation lived near the Purvis Tract. See 

Arhninistvntive Record, Ex. 9, Letter to Ada Deer, Assistant Secretary - Indian Affairs, 

from Polly Girvin, Council on California Indian Policy (Jun. 2 1, 1995). In that time, the 

Nation continued to assert its unique identity and maintain controI of its area. See 

Ach~zinistrative Record, Ex. 9. 

In 1916, using funds from the Act of August 1, 1914 (38 Stat. 582), Congress 

purchased the Purvis Tract for the Nation. Jci. As purchased, the Punis Tract contained 

1 "Administrative Record" refers to the record of documents considered by the NIGC Chairman and 

supporting hls June 13,2008 decision disapproving the garnlng ordinance under 25 U.S.C. 5 2710(h). 

"Supplemental Record" refers to the rccord of documents subrn~tted to he full Comrmss~on 011 appeal. 
approxinrately 141 acres and was placed in trust for the Nation. Id. T1is site later became 

known as the Lower Lake Rancheria. 

In 1956, Congress sold all but 40 acres of the Rancheria to Lake County to build 

an airport. See Adnzinistrative Record, Ex. 23, Tab 3, Pub. L. 84-443, 70 Stat. 58 (1956). 

Congress gave the remaining 40 acres in fee simple to Harry Jolmson, a tribal member 

who had continuously used the land. See Administrative Record, Ex. 23, Tab 3. Proceeds 

of the sale went to the United States Treasury to be disbursed into a special account for 

California Indians. See Administrative Record, Ex. 9. 

For decades after, the Nation was displaced. See Administrnrive Record, Ex. 27, 

Hearing Transcript at 9. Tribal members suwived as agricultrlral workers on Iocal farms. 

Icl. Tribal leaders continued to contact the Federal government for assistance only to be 

turned away. 

On October 21, 1980, the Bureau of Indian Affairs (Bm) Office of Indian 

Services contacted the Bureau's Sacramento Area Director regarding the Nation's plight. 

See Administmtive Record, Ex. 6. The Ofice of Indian Services wanted to place the 

Lower Lake Rancheria Roi Nation on the list ~f federally recognized tribes. Id. The 

Nation had been left off the previous lists, so the Office of Indian Services requested 

approval to place them on the next one. Icl. Additionally, the Office of Indian Services 

requested that the approval "include [the] date restored." Id. But ten days later, the 

Sacramento Area Director objected. See Adrnini.~trcltive Recod, Ex. 6, Letter fkom the 

Sacramento Area Director, to Comrnissi~ner of Indian Affairs (Octobcr 3 1, 1980). In his 

letter, the Director stated that placing the Nation on the federally recognized list would 
harm the RIA'S current position in several lawsuits. See Adnzinistrative Record, Ex. 6. 

The letter stated: 

Attached is a status reporl for the eleven Rancherias. All of the 

Rancherias, except Lower Lake, are presently involved in litigation, and it 

is the position of this office and the Justice Department that inclusion of 

the eIeven wouId be a detriment to the legal positions being taken by the 

United States in the suits. 

Id. The Director included a memorandum on the BIA's position in the lawsuits and 

applied the same reasoning to the Nation. Id. Specifically, the status report indicated for 

the Lower Lake Nation that '"no tribal entity existed prior to termination." Id. 

With this statement from the Director, the issue of the Nation's status remained in 

limbo. The failure to include the Nation on the list of federally recognized tribes had 

lasting implications. Government officials and outside parties assumed that the Nation 

was terminated. See Administmtive Record, Ex. 23, Tab 1 1, letter from Roger WaSke, 

American Indian Policy Analyst for the Congressional Research Service, Library of 

Congress to Stephen Quesenberry, Director of Litigation for California Indian Legal 

Services (July 27, 1992). 

For example, the Council on California Indian Policy, an Advisory Council 

formed by an Act of Congress, was created to define which California tribes were 

terminated, recognized, or in a nebulous status that required further action. See 

Adminisfmtive Record, Ex. 27, Hearing Transcript at 3 1-32. Iil 1995, the CounciI argued 

for the Nation's inclusion in the Federal Acknowledgement Process (FAP) to Assistant 

Secretary Ada Deer. See Al-lmirzisfrativ~ Record, Ex. 9. Given the Nation" abse~lce hn~ 

the United States' list of federally recognized tribes, the Council argued to Assistant 

Secretary Deer that immediate action must be taken to rectify the Nation's situation. Id 
What is more, some government officials viewed the Nation as terminated and 

refused to provide services normalIy granted to federally recognized tribes. On November 

20, 1995, the BIA denied the Nation a $20,000.00 Tribal Government Planning Grant. 

See Administr~ntive Record, Ex. 2, Letter to Dino Beltran from Harold Brafford, Bureau 

of Jhdian Affairs (Nov. 20, 1995). The refusal letter explained that the Nation was not on 

the list of federally recognized tribes and tribal leaders should instead consider the FAP 

process. See Aclm inistmtive Record, Ex. 2. 

About one month later, the Department of Housing and Urban Development 

(HID) denied the Nation sewices normally received by federally recognized tribes. See 

Administrative RecorcE, Ex. 4, Letter to Dino Belhan, fiom Robert Barth, FTousing and 

Urban Development (Dec. 18, 1995). HUD claimed it must refuse the Nation those 

services because the Nation was "'not recognized as an Indian tribe." See Admini,~tmtive 

Record, Ex. 4. 

The Nation did receive one HtbD grant in the next year. On January 29, 1996, 

IWD approved a financial assistance award for social and economic development. See 

Aclministr~tive Record, Ex. 23, Tab 17. This grant, however, was approved with the 

specific intention that the Nation could begin the process of seeking its federal 

recogition. See Administrative Record, Ex. 27, Hearing Transcript at 1 1. In other words, 

HUD still considered the Nation unrecognized. 

In September 2000, the matter of the Nation's status came again before the BIA. 

The BM Superintendent of the Central California Agency wrote to the Regional Director 

abo~it the Nation. See Ahrinistrative Record, Ex. 9, Memorandum from BIA 

Superintendent of the Central California Agency, to the Regional Director (Sept. 14, 
2000). The Superintendent questioned the terminated status of the Nation, noting that 

Congress had treated it differently than other California tribes. He insisted that the BLA 

had wrongly concluded that the Nation was "terminated." Id. To correct the error, the 

Superintendent recommended administrative reaffirmation. Id. 

Specifically, he noted that Congress had not terminated the Nation's status the 

way it had other tribes in California. The Superintendent laid out the history of the Purvis 

Tract and its sale by Congress to Lake County for an airport. See Adnzinistrative Record, 

Ex. 9. In his letter, he carirefi~lly detailed the history of Congress's Lower Lake Rancheria 

Act. Icl. The Lower Lake Act, he noted, had terminated only the Nation's land rights. Id. 

Unlike tribes under the TiIlie Hardwick Act, the Nation's n~ernbers did not suffer 

termination of their federal status upon their receipt of any proceeds from the sale of their 

land. Id. He concluded that the Act was meant to terminate individual land rights and not 

tribal status rights, and the BTA was mng to treat the Nation as similarly situated to 

trihcs terminated under the Tillie Hardwick Act. Id. The S~rperintendent recommended 

reaffirmation of the Nation's status to remove confusion about its status. Id. 

The Nation received that reaffirrnation in the December 29,2000 letter of thenAssistant Secretary for Indian Affairs Kevin Gover. See Adm irristrntive Recard, Ex. 23, 

Tab 19, Letter to Daniel Beltran, from Assistant Secretary - Indian Affairs Kevin Gover 

(Dcc. 29,2000). In a memorandum issued that same day, Mr. Gover referred to the 

Lower Lakc Nation's plight as "an egregious oversight." See Administrative Record, Ex. 

13, Memorandum to Regional Directors, from Assistant Secretary - Indian Affairs Kevin 

Govcr (Dec. 29,2000). Additionally, the memorandum slated that: "Records of the BIA 

demonstrate that the Lower Lake Rancheria is presently considered terminated." I[/. The 
memorandum concluded that this was in error, and the Lower Lake Rancheria Act only 

terminated the status of land and not individuals. Id. Likewise, in his letter to the Nation, 

Mr. Gover called the previous Federal response to Lower Lake an "unfortunate 

omission." See Adniinistrative Record, Ex. 23, Tab 19. To correct the error, he reaffirmed 

the Nation's status. Id. But the Nation's battle did not end with this decision. 

Eight years later, the Nation finds itself before this Commission with the goal of 

achieving economic self-sufficiency. See Admi~~istrntive Record, Ex. 27, Hearing 

Transcript at 12. On February 25,2008, the Nation's attorney, Michael Anderson, 

requested an Indian lands decision from the National Indian Gaming Commission 

(NIGC). See Aclminist~-cltive Record, Ex. 20, Letter to Penny Coleman, from Michael J. 

Anderson (Feb. 25,2008). 

On March 17,2008, the Nation submitted a gaming ordinance. See Ad~rti~~istmfive 

Record, Ex. 17, Lower Lake Rancheria Koi Nation Gaming Ordinance of 2008 (Gaming 

Ordinance). This ordinance contained the following definition of "Indian tribe": 

"the Lower Lake Rancheria Koi Nation, a sovereign tribal entity: 

(1) listed on the Bureau of Indian Affairs' list of tribes recognized 

and cligible to receive services from the United States pursuant to 

the Federally Recognized Indian Nation List Act of 1994 (Pub. L. 

103-454,25 U.S.C. fi 479a-1) and entitled to all privileges and 

immuliities available to all federally recognized tribes; 

(2) whose government-to-government relationship with the Unitcd 

States, terminated through administrative acts of the Bureau of 

Indian Affairs, was reaffirmed by letter of Assistant SecretaryIndian Affairs Kevin Gover on December 29,2000; and 

(3) whose history of recognition, non-recognition, and reaffirmation 

qualifies the Nation as "restored" under section 271 9(b)(l)(B)(iii) 

of the Indian Gaming Regulatory Act ("IGM')." 
See Admirzistr-dive Record, Ex. 17, Gaming Ordinance 5 102(I). By this submission, the 

Nation sought a determination of its status as a "restored tribe." See Administrafive 

Record, Ex. 13, Letter to John Hay, from Michael Anderson, Re: Restored Nation 

Request of the Lower Lake Rancheria Koi Nation (April 4,2008). 

In essence, the Nation argued that it is a restored tribe within the meaning of 

IGRA, contrary to Mr. Gover's assertion in his December 2000 letter that the United 

States continually recognized the Nation. See Adnlinistmfive Record, Ex. 23, Tab 19. The 

Nation arged that DO1 had misinterpreted the Lower Lake Act Ramheria Act of 1956 

(70 Stat. 56, ametded 70 Stat. 595); that it was, in fact, terminated; and that the Nation's 

absence fforn the list of Federally recognized tribes, and later inclusion on the Iist, 

constituted restoration. See Federally Recognized Nations List Act of 1994 (List Act) (25 

U.S.C. 5$479a, 479a-1). 

Specifically, the Nation contended that Ah. Gover's letter restored the Nation's 

recognition. See Admitzisfrnfive Record, Ex. 16, Letter to John Hay, Staff Attorney from 

Michael J. Anderson, Anderson Tuell, Re: "Restored" Status of Lower Lake Rancheria 

Koi Nation (March 20, 2008). The Nation argued that Mr. Govet's reaffirmation was the 

same as "restoration" and that this conclusion would be generally consistent with case 

law. Ill. 

On June 13,2008, the NIGC Chairman disapproved the gaming ordinance on the 

ground that the Nation was not restored within the meaning of IGRA because it was 

never terminated. See Adnliwistrntive Record, Ex. 1, Letter to Daniel Beltran, Chairman 

of the Lower Lake Rancheria Koi Nation from Philip Hogen, NIGC Chairman (Junc 13, 

2008). The Chairman deferred to Assistant Secretary Gover's determination about the 
relationship between the Nation and the United States. Id. Specifically, he adopted Mr. 

Gover's finding that the Nation was not terminated the way that other California tribes 

were terminated under the Tillie Hardwick Act. Id. The Lower Lake Act only terminated 

the Nation's land rights and did not affect their tribal status rights. Id. This appeal 

followed. 

DISCUSSION 

This case arouses the Commission's sympathy. The Nation has obviousIy been 

poorly served by the Federal government. This is also an unusual case. 

Before the Commission is an appeal f?om the Chairman's June 13,2008 

disapproval of a gaming ordinance submitted by the Nation. Since its inception, the 

Commission's Chairman has approved hundreds of ordinances and amendments. But tl~e 

ordinance was not a typical ordinance authorizing gaming on the Nation's lands that 

tracked the requirements and language of IGRA. 

The ordinance was not a "site-specific" ordinance, one that identifies a specific 

parcel of land in its definition of lndiarz lands. The submission of a site-specific 

ordinance requires the Chairman to make an Indian lands determination as part of his 

review. That determination allows the Chairman to see whether all of the lands where an 

ordinance authorizes gaming are in fact eligible for gaming under IGRA. If an ordinance 

authorizes gaming on a parcel that is not Indian land within the meaning aCIGRA, or if it 

authorizes gaming on Indian lands ineligible for gaming under 25 U.S.C. $27 19, the 

Chainnan will disapprove it because it is inconsistent with the requirements of IGU. 

Though not routine. site-specific ordinances are not uncommon. 
Here, initially, the Nation wrote to the Office of General Counsel and requested a 

restored lands opinion. See Aciwzinistmtive Record, Ex. 20. Letter to Penny Coleman fiom 

Michael J. Anderson, Re: Request for Restored Lands Opinion (Feb. 25,2008). This 

refers to an analysis of one of the exceptions to IGRA's general prohibition against 

gaming on trust land acquired after October 17, 19&8,25 U.S.C. 5 27 19(a), when "lands 

are taken into hust as part of. . . the restoration of lands for an Indian tribe that is 

restored to Federal recognition." 25 U.S.C. 5 2719(b)(I)(B)(iii). Prompted by sitespecific ordinances, the Chairman has made Indian lands determinations involving the 

restored lands exception. Disapproval of Ponca Trihe of Nehrciskn Amended Gaming 

Orclinnnce (Oct. 22, 2007, rev 'd Dec. 3 1, 2007); Approv~~I of Cowlitz Irlclian Tribe's 

Ckr.~s 11 Gum ing Ordinance. (Nov. 22, 2005). See also In Re Snult Ste. Marie Trihe of 

Cltippc~va Jjtdicms, Re~.olufion No. 2006-1 01, amendment to Tribal Code ;tC 42.801, 

Gtming Or~lir~unce (Septenlber 1, 2006, direct commission decision on site-specific 

ordinance.) 

The Nation's March 2008 ordinance, however, was not site specific. As the 

Nation is landless, AcJ~~~ini.strntive Recot-d, Ex. 20, the ordinance contained no legaI 

description of a particular parcel of land. Instead the ordinance was of a different sort 

entirely. It contained the following defmition: 

the Lower Lake Rancheria Koi Nation, a sovereign tribal entity: 

(4) listed on the Bureau of Indian Affairs' Iist of tribes recognized 

and eligible to receive services From the United States pursuant to 

the Federally Recognized Indian Tribe List Act of 1994 (Pub. L. 

103-454,25 U.S.C. 6 479a-I) and entitlsd to all privileges and 

immunities available to all federally recognized tribes; 

(5) whose government-to-government relationship with thc United 

Stales, terminated through administrative acts of the Bureau of 
Indian Affairs, was reaffirmed by letter of Assistant SecretaryIndian Affairs Kevin Gover on December 29,2000; and 

(6) who history of recognition, non-recognition, and reaffirmation 

qualifies the Tribe as "restored" under section 27 19(b)(I)(B)(iii) 

of the Indian Gaming Regulatory Act ("TGRA")." 

See Administrafive Record, Ex. 17, Gaming Ordinance 6 102(1). Fox lack of a better term, 

the ordinance is a "status-specific" or a "restored tribe-specific" ordinance, one that states 

that the Nation is a restored tribe under IGRA and could therefore later quaIify for 

IGRA's restored lands exception. See Administmtive Record, Ex. 1, Letter to Daniel 

Beltran, Chairman of the Lower Lake Rancheria Koi Nation from Philip Hogen, NTGC 

Chairman, p. 2 (June 13,2008). 

By its terms, the restored lands exception requires a muIti-part analysis. To be an 

"Indian tribe that is restored to Federal recognition,'" tribe must demonstrate a period of 

recognition by the United States, a termination of that recognition, and reinstatement of 

that recognition by the United States, Grand Traverse Ba~rcI of Ottawa and Chippewa 

Incliuns ty. Urzifed States Attorrrey, 369 F.3d 960, 967 (6th Cir, 2004). If a tribe is restored, 

then the land in question meets the restored land exception if it was taken into tnlst for 

the tribe as part of the tribe's restoration. Grund Truv~rse Band of Ottawa crnd Chijywwn 

lridians tt. United sf ate.^ Attorney, 198 F. Supp. 2d 920,935 (W.D. Mich. 20021, afl, 

369 F.3d 960 (6th Cir. 2004). That analysis requires consideration of the factual 

circumstances surrounding the trust acquisition, the location of the trust acquisition, and 

the temporal relationship of the trust acquisition to the tribal restoration. See, e-g., 

Confederc~tcd Tribes qf Cons. Lower Umpqlca R. Sizaskmv Irzdicicrns v. B~hhitt, 116 F. Supp. 

2d 155, 161-64 (D.D.C. 2000); Grar~rl Truverse, 198 F. Supp. 2d at 935; 111 Re Salllt Ste. 

~Worie Trihe; In Re K~~fglk Trihe qf California (restored lands opinion, October 12,2004). 
The Nation's March 2008 ordinance submission asked the Chairman to make only 

the restored tribe portion of that analysis and to leave for another day the question of 

whether land was restored as part of the Nation's restoration. As such, the Commission 

affirms the Chairman's decision because the ordinance was not ripe for determination. 

More than this, by asking onIy fox a restored tribe determination and divorcing 

that question from the remainder of the restored lands analysis, the Nation implicitly 

sougl~to attack the December 29,2000 determination of then-Assistant Secretary for 

Indian Affairs Kevin Gover. That determination reaffirmed the government-togovernment relationship between the United States and the Nation and found that the 

Nation had never been terminated. To make the positive determination that the Nation 

desired, the Chairman would have had to disagree with, or re-interpret, Mr. Gover's 

determination. Under IGRA, the Chairman can and will make determinations about the 

government-to-government relationship between the United States and an Indian tribe, 

but only as part of an actual restored lands determination. Determinations about the 

government-to-government relationship between the United States and an Indian tribe 

standing alone, outside of a restored lands determination, are the province of the 

Department of the Interior (DOT). As such, the Chairman properly deferred to Mr. 

Gover's determination and disapproved the March 2008 ordinance. 

A. The "restored tribe" determination 

The Nation contends that the Chairman has the power to approve its "Indian 

tribe" definition because he has the power generally to approve ordinances. See 

IP~ppIemerrial Record, Ex. 19, Letter to Michael Gross, Esq., National Indian Gaming 

Commission, from Michael J. Anderson, Re: Lower Lake Rancheria Koi Nation's 
Response to NIGC Follow-up Questions (August 7,2008). The Nation aIso contends that 

the determination to be made here is no different thm the usuaI determination that the 

NIGC and the DO1 both make when determining restored lands and is not a request for 

the Chairman to determine the Tribe's status. See Supplemental Record, Ex. 19. 

We agree that the Chairman unquestionably has the authority to approve gaming 

ordinances. 25 U.S.C. (i 2710. We also agree that the Chairman necessarily has the 

authority to make Indian lands determinations for site-specific ordinances, including 

those that implicate the restore lands exception. This is so because the plain and 

unambi~~ious language of IGRA requires it: 

The Chairman shall approve any tribal ordinance or resolution concerning 

the conduct, or regulation of Class I1 gaming on the Indian lands within 

the tribe's jurisdiction if such ordinance or resolution provides . . . . 

35 U.S.C. $ 27 IO(b)(2). By incorporating this language by reference for Class 111 gaming, 

IGRA requires the Chairmail make this same determination for a site-specific Class 111 

ordinances. 25 U.S.C. $ 2710(d)(l)(A)(ii). 

Again, IGRA only authorizes the Chairman to approve a site-specific ordinance if 

it authorizes gaming on Indim Ecinds, as IGM defines the term. Without confirmation 

that the site-specific ordinance autl~orizes gaming on Indian lands eligible for gaming, the 

Chairman would have to disapprove the ordinance. To approve a site-specific ordinance 

that permitted gaming on ineIigible lands would authorize a tribe to violate IGRA. Cf: 

A T&T Corp. v. Coczir D illetle Tribe, 295 F.3d 899.908 (9th Cir. 2002) ("'the statutory 

framework suffices to demonstrate that the NIGC must consider the legality of Class 111 

gaming before approving . . . resoIutions, ordinances, and management contracts . . . ."); 
Minrni Tribe of Oklakonrn 1). United Sfates, 927 F. Supp. 141 9, 1422 (D. Kan. 1496) 

(NIGC has authority to determine '"ndian lands"). 

We Iikewise agree that both the Chairman and the Department of the Interior can 

make restored lands determinations. We believe that the now-expired memorandum of 

understanding between the DO1 Office of the Solicitor and the NIGC Ofice of General 

Counsel sets out the appropriate division of responsibility. In essence, DO1 would be 

primarily responsible for the Indian lands detemination when the Secretary of the 

Interior is considering a fee-to-trust acquisition or when a tribe and state submit a Class 

PIT compact. The NIGC would be primarily responsible for detemlnations when land is 

already in trust and a tribe requests the Chaiman to approve a either management 

contract, site-specific ordinance, or when there is a question regarding the propriety of 

existing or proposed tribal gaming operations on trust lands. 25 U.S.C. 96 2710(b), 271 1, 

2713. 

We do not agree, however, that the determination the Nation sought here is 

identical to determinations made for restored lands, and we believe the Chairman was 

requested to determine the Nation's status vis-'a-vis the United States. The record shows 

that the Nation sought a determination that it was a "restored tribe," separate and apart 

from any consideration of restored land. 

The Nation followed the submission of its ordinance with evidence for its claim 

as a '~cstorad tribe." See Ahilzistmtive Record, Ex. 13, Letter to John Hay, from 

Michael J. Anderson, Re: Restore Tribe Recluest of Lower Lake Rancheria Koi Nation 

(April 4,2008). The Nation argued that this evidence showed a "de faeto termination" 

and that "in 2000, AS-TA Gover restored that recognized status." Id. Its attorneys 
continued to send supporting evidence and arguments for this position throughout the 

Chairman's 90-day review of the ordinance. See Admirzistrcrtive Record, Ex. 9, Letter to 

John Hay, from Michael J. Anderson, Re: "Restored" Status of Lower Lake Rancheria 

Koi Nation (June 2,2008) ("Lower Lake's prior de facto terminated status qualifies it to 

be considered a "restored tribe3'for purposes of the Indian Gaming Regulatory Act."). 

In this appeal, the Nation continues the argument, contending that the Chairman's 

decision was substantively erroneous. Specifically, the Nation argues that the Chairman's 

decision to disapprove the ordinance was wrong because the evidence shows that it is 

'Yestored." See Aclministrafive Record, Ex. 23, Brief to the Commission from Michael J. 

Anderson, Loretta A. Tuell, and Matthew J. Kelly, Re: Appeal to the National Indian 

Gaming Commission of the Chairman's Disapproval of the Lower Lake Ranchetia Koi 

Nation Gaming Ordinance of 2008 (July 15,2008). The appeal states: 

The Chairman's disapproval of Lower Lake's Gaming Ordinance 

acknowledged that Lower Lake was a federally recognized t1-ibe at the 

time the Lower Lake Act was enacted in 1956, and that it is today a 

federally recognized tribe, What the Chairman claims Lower Lake did not 

demonstrate was a period of non-recognition, without which there "cannot 

be a restoration as contemplated by IGRA." Based on both the evidentiary 

material demonstrating such non-recognition and on the analysis 

submitted by Lower Lake, the Chainnan's conclusion is cIearly erroneous 

and should be reversed by the fill Commission. 

In later briefings, the Nation admitted that it felt assured that the Chaim~an would 

deal with the substantive issue of its status as a "restored tribe" and thus it "decided 

against withdrawing or amending its gaming ordinance and proceeding to completion 

with the NIGC review." See Alchinisfrative Record, Ex. 28, Letter to Michael Cross, 

Esq., from Michael 9. Anderson, Re: Lower Lake Rancheria Koi Nation's Response to 
NIGC Fallow-up Questions (Au~mst 6,2008). In brief, the Nation stated that it requested 

a determination of "restored tribe" status from the Chairman due to: 

The NIGC's competence in reviewing such matters; the NIGC's history of 

prior legal opinions addressing restored tribe issues; and the specific 

regulatory timetables allowing prompt review of tribal ordinances. 

Iff. 

As such, while the restored tribe determination the Nation sought would be the 

same exercise undertaken in a restored lands analysis, the Nation's sought a restored tribe 

determination separate and apart from any restored lands analysis. There are no lands at 

issue here. The Nation is landless, Administrative Record, Ex. 20, and neither the March 

2008 ordinance nor any of the Nation's submissions identify any land that the Nation 

might be seeking to place into trust status. It was not possible for the Chairman to have 

made a restored lands determination, and the Nation could not have requested one, 

because the Chairman couId not have addressed one of the essential questions in the 

restored lands analysis: whether land was taken into trust as part of the Nation's 

restoration. 

We conclude from the record that the essence of the Nation's request here, though 

it takes the form of an ordinance approval, was an attempt to reverse or otherwise 

interpret Mr. Cover's December 29,2000 determination. Again, that determination 

reaffirmed the government-to-government relationship between the United States and the 

Nation and found that the Nation had never been terminated. See Ad~ninistmtive Recorcl, 

Ex. 23, Tab 19. 

In his December 29,2000 memorandum to the Alaska and Pacific Region 

Directors, Mr. Gover noted that the BIA had "officiaIIy overlooked" a number of tribes, 
including the Nation, "even though their government-to-government relationship with the 

United States was never terminated." See Administmtivs Record, Ex. 23, Tab 4. As such, 

Mr. Gover's letter of that same date reaffirmed the relationship between the two 

governments. See Admirzistrutive Record, Ex, 23, Tab 4. 

The Chairman, in his disapproval af the Nation's gaming ordinance, explicitly 

relied upon that finding: "If there has been no termination or period of non-recognition, 

then there cannot be a restoration." See Administrative Record, Ex. 23, Tab 1. The 

Nation argues on appeal, however, that Chairman was wrong to interpret Mr. Gover's 

lcttcr this way. Reduced to its essentials, the Nation's argument is that Mr. Gover's letter 

shows that it was terminated, and the Chairman was wrong to decide otl~envise. The 

Nation cannot advance this argument against the Chairman's June 2008 decision, 

however, without also calling into question Mr. Gover's earlier detemination. 

We do not believe that this is the proper forum to reconsider Mr. Gover's 

determination or, for that matter, that the Commission is the proper agency to do so in 

these circumstances. Determination of the existence of a government-to-government 

relationship between the United States and an Indim tribeper se and without more is the 

province of the Secretary of the Interior and the Bureau of Indian Affairs. The Federal 

Acknowledgement Process exists precisely to make such a determination in the first 

instance. 25 C.F.R. part 53. As it turned out here, Mr. Gover determined that the Nation 

did not need to go through the Federal Acknowledgement Process because he believed 

that the Nation's government-to-government relationship with the United States never 

ended: 

The Indian tribes mentioned above should not be required to go through 

the Federal acknowledgement process outIined in the Federal Register 
[sic] at 25 GFR Part 83 ("acknowledgement regulation") because their 

government-to-government relationship continued. The acknowledgement 

regulation does not apply to Indian tribes whose government-togovement regulation was never severed." 

See Achinistrutivc Record, Ex. 23, Tab 4. We note that Mr. Gover could have decided 

that the Nation needed to go through the Federal Acknowledgment Process. Had he done 

so, we very much doubt that the Nation would seek redress from the NIGC, nor would it 

be appropriate for it to do so. We do not believe that redress for the decision Mr. Gover 

made is properly sought here either. 

Again, IGRA gives to the Chairman the authority to make Indian lands 

determinations that are necessary to the approval of gaming ordinances, 25 U.S.C. 

5 2710(b), the approval management contracts, 25 U.S.C, Ej 271 1, the bringing 

enforcement of actions, 25 W.S.C. ji 2713, or making any necessary determination of 

jurisdiction. This is so because IGRA applies only on Indian lands and limits the 

Commission's jurisdiction to Indian Iands. 25 U,S.C. 5 2710(b). The Chairman will make 

a restored tribe determination when presented with circumstances requiring a complete 

restored lands determination. In the absence of land, such could not have been the case 

here. Accordingly, the Chairman properly deferred to Mr. Gover's determination and 

disapproved the Nation's March 2008 gaming ordinance. 

B. Ripeness 

Even if we were to construe the Nation's request far the approvaI of its ordinance 

to be a request for a restored Iands determination, the Chairman properly disapproved the 

ordinance because the matter was not ripe. 

For a matter to be ripe, it must be 1) fit for a decision and 2) cause hardship by its 

failure to be considered on review. Ahhott Laboratories v. Gardnei; 387 U.S. 136, 1 48-9 
(1967), overnkled on other grouncls as stnfed in Caljfuno v. Sanders, 430 U.S. 99 (1977); 

see Principal Life Ins. Co. v. Robinson, 394 F.3d 665,670 (9th Cir. 2005); see aalso 

Ga~dner I?. Toil& Goods Ass 'IT, 387 U.S. 167 (1967); see also Toilet Goods Association, 

Inc. v. Garclner, 3 87 U.S. 1 5 8 (1 967). The ripeness doctnne is meant to avoid premature 

review based on injuries that are merely speculative and may never truly occur. Hawaii 

Coztnty Green Pa@) Y. Clinton, 124 F.Supp.2d 1 173, 1 1 94 (D. Hawaii 2000). 

To satisfy the first part of the test, an issue must be ready for final review because 

no other administrative proceeding is contemplated. Id. at 149. A claim is fit for review if 

the issues presented are primarily legal questions that do not require greater factuaI 

development. Enon Corp. v. Heinze, 32 F.3d 1399, 1404 (9th Cir 1994). Specifically, a 

decision-maker must avoid a situation where an agency's future actions could render 

review of a current issue or request unnecessary. Olrio Forestq? Ass 'I? I>. Sierra Cluh, 523 

U.S. 726,732-33 (1 988). 

To satisfy the second part of the test, a petitioner must show that judicial review is 

now appropriate because the issue has a direct and immediate impact on it. Abbotf 

Lahoratori-ics, 3 87 U.S. at 152. In other words, the harm must not be speculative. Hawaii 

Cu~nfy Green Pnro~, 124 F.Supp.2d at 1 194. Specifically, failure to decide the issue must 

create "adverse consequenccs" that leave the petitioner without a means to redress the 

gievance later. Toilet Good Ass 'n, 387 U.S. at 164-5. 

The matter here satisfies neither part of the test for ripeness. As to the first part, a 

future determination by the BIA, taking land into trust for the Nation may very well 

render any decision on the merits now unnecessary. One such possibility is that the 

Nation seeks to take Eand into trust, but the BIA will only do so for non-gaming purposes. 
Should that prevent IGRA gaming on the land, then any decision here concerning the 

Nation's restored tribe status is moat. Likewise, the BIA may decIine to take land into 

trust. That too would render a decision here moot. 

Similarly, as discussed above, DOI will make a determination on the status of 

Indian lands if it takes lands into trust for a tribe. Should DO1 take land into trust for the 

Nation for gaming purposes, it would include a "restored tribe" analysis as part of a 

"restored 1ands"detemination. Because DO1 is free to make an independent decision on 

the tribe's status, this would render any decision on the merits of this case moot if the two 

agencies arrived at the same conclusion. Ohio Forcstv Ass 'tz, 523 U.S. at 732-33. If the 

agencies disagreed, the Nation wor~ld be faced with inconsistent decisions, and we do not 

scc how the Nation would benefit from the legal uncertainty that that would create. 

Further, the absence of land here indicates the need for greater iactual 

developnlent of the issues. E-=on Corp., 32 F.3d at 1404. Without knowing what land is 

at issue or how the Nation came by it, it is impossible for any decision-maker to 

determine now whether the Iand was restored to the Nation as part of the Nation's 

restoration. It is, again, impossible to make the restored lands determination now. 

Tn this vein, the Nation argues that the Chaiman can make a "restored tribe" 

decision under the test set out in Grand Trm~erse Band, 198 F.Supp 2d. at 927, without 

any Iand hecause the two parts of the test can be accomplished separately. See 

Administrative Record, Ex. 28 at 4-5. We do not agree. It is true that finding a "restored 

tribe" is a threshold question for a restored lands analysis and a failure to find such ends 

the inquiry. Spe Acl~~ii~~istrative Record, Ex. 28 at 5. But the "restored tribe" test is only 

the beginning of the inquiry. Tlre fact-finder that positively determines that a tribe is 
"restored" must continue on to the next phase of inquiry and determine the land's status. 

198 F. Supp.2d at 927. Because the "restored tribe" portion of the test was only 

conceived in connection with the determination of the land's status, It cannot be divorced 

entirely from its mate for the sake of convenience. Thus, again, the Commission cannot 

reach the merits of the Nation's request without land at issue. 

As to the second criterion for ripeness, the Nation cannot show an immediate and 

direct hardship caused by the Commission's failure to review this issue. Any harm 

presented is speculative for the Nation's status remains the same. The Nation does point 

out that uncertainty is an obstacle to economic deveIoprnent under IGRA, but it appears 

that that uncertainty flows more from the absence of land on which to develop a casino 

than it does the from Commission's not reviewing Mr. Gover's earlier decision. 

Further, t11c Nation can seek to review that decision before DOI or a court. Hawaii 

Cordncv Green Party, 124 F.Supp.2d at 1 194. The Nation is also free to find land, take 

that land into trust, and seek a complete restored lands determination at that time, or even 

afterward, Even in the absence of any decision here, the Nation still has multiple avenues 

of redress. Moreover, the absence of any determination here does not impugn any of the 

substantive arguments that the tribe would make in any of those circumstances. 

Accordingly, the Chaim~an's decision to disapprove the ordinance is affirmed. 

CONCLUSION 

Given all of the foregoing, the Chairman's June 13,2008 disapproval of the 

gaming ordinance is affirmed. 
It is so ordered by the NATIONAL INDIAN GAMING COMMISSION on this 

Norman H. DesRosiers 

Vice Chairman 
Certificate of Service 

I certify that this Commission final decision and order was sent by facsimile transmission 

and certified U.S. mail, return receipt requested, on the 7th of October. 2008 to: 

MichaeI J. Anderson, Esq. 

Anderson Tuell LLP 

300 Independence Ave. SE 

Washington, D.C. 20003 

Fax: (202) 543-7716 

Daniel Beltran 

Lower Lake Rancheria Koi Nation 

P.O. Box 3 162 

Santa Rosa, CA 95402