June 30,2005 

Judith Kammins Albietz, Esq. 

Albietz & Samuels 

2001 "N" Street, Suite 100 

Sacramento, CA 958 14 

Dear Ms. Albeitz: 

On December 29,2004, you submitted on behalf of the Buena Vista Rancheria of 

Me-Wuk Indians ("~ribe")', a renewed request for an Indian lands determination. On 

May 17, 2000, a request for a determination had been submitted to the National Indian 

Gaming Commission (NIGC), but a final opinion was delayed due to a tribal leadership 

disp~te.~ We have determined that the lands on which the Tribe proposes to locate its 

gaming activities are "Indian lands" as defined in the Indian Gaming Regulatory Act 

(IGRA), and, therefore, the Tribe may legally conduct gaming on the land. 

The Buena Vista Rancheria of Me-Wuk Indians of California is a federallyrecognized Indian tribe. The Tribe has been listed by the Secretary of the Interior as a 

federally-recognized Indian tribe since 1985. See 30 Fed. Reg. 6,055-6,059. The Tribe 

occupies a small land base located approximately 40 miles southeast of Sacramento, 

California. The Tribe has occupied the area known as Buena Vista since at least 1817. 

Tribal members have continuously occupied the Rancheria from as early as 1905. The 

Rancheria was purchased in 1927 with money appropriated by the Acts of June 21, 1906 

(34 Stat. 325-328) and April 30, 1908 (35 Stat. 70-76). 

1 It is important to note that the Tribe, and the land they occupy are often referred to as "the Rancheria." 

For clarity, whenever possible, we have attempted to use the term "Tribe" when referring to the political 

entity and "Rancherian when referring to the Tnis land base. 

2 The MGC has already approved a site specific Tribal Gaming Odhance for the Ttibe which constitutes 

a recognition of the Rancheria as Indian lands. Further, a written Indian lands opinion is not required 

before a Tribe may conduct gaming However, the Tribe requested the O&ce of General Counsel to 

provide an opinion because of the controversy surrounding the proposed gaming operation. 
The Acts specifically provided: 

That the Secretary of Interior be, and he is hereby, authorized to 

expend not to exceed one hundred thousand dollars to purchase for 

the use of the Indians in California now residing on reservations 

which do not contain land suitable for cultivation, and for Indians 

who are not now upon reservation in said State . . . and mark the 

boundaries of such Indian reservation in the State of California as 

the Secretary of the Interior may deem proper. 

Act of June 21, 1906, Ch. 3504, 34 Stat. 323-333 (1906). On May 5, 1927, the United 

States acquired approximately 67.5 acres of land in Amador County, California, for the 

use of the Me-Wuk Indians settled at Buena Vista that is legally described as follows: 

Commencing at the Northeast comer of Section 19, Township 5 

North, Range 10 East, M.D.B. and M., thence running West along 

Section line 578 feet; thence at right angles South 5280 feet; 

thence at right angles East 578 feet; thence at right angles North 

5280 feet to a place of beginning. 

The Tribe has proposed to build a gaming facility within the Rancheria on an area 

of approximately 11.76 acres within the set-aside land. Specifically, the gaming facility 

will be constructed on a portion of the East 1/2 of Section 19, T. 5N., R. 10 E., 

M.D.B.&M., Amador County, California, further described as follows: 

Commencing at a found 1 and '/2 inch iron pipe with USIS Cap, 

monumenting the Northeast Corner of said Section 19, T.5 N., R. 

10 E., M.D.B.&M; thence S. 02"03'22" W. (formerly S. 

02'03'55" W.) a distance of 1546.50 feet, along the easterly line of 

said Section 19; thence leaving said easterly section line N. 

87"56'22" W. a distance of 47.00 feet, to the True Point of 

Beginning of this description; thence 02"03'38"W. a distance of 

950.50 feet, parallel with and 47.00 feet westerly fiom said 

easterly section line; thence N. 87"56'22" W. a distance of 166.00 

feet; thence S. 02"03'38" W a distance of 127.00 feet, parallel with 

said easterly section line; thence S. 88-54, 13" a distance of 330.50 

feet; thence N. 02'03'38" E. a distance of 1079.65 feet, parallel 

with said easterly section line; thence S. 89'47'35" E. A distance 

of 496.26 feet, to the True Point of Beginning. 

The Tribe primarily consisted of the Oliver family and their relatives. The tribal 

members who were on the land prior to the United States purchase are fiom the same 

family as those who continue to control the Rancheria today. 

In 1958, Congress enacted the California Rancheria Act, Pub. L. No. 85-671 

(1958), which authorized the termination of federal supervision and Indian status of many 
of the rancherias in the state. As a consequence of the enactment, the residents of the 

rancherias were no longer dealt with as tribes by the United States government. 

Additionally, the United States government terminated the trust status of the rancheria 

lands, including those of the Buena Vista Rancheria, and distributed the lands in fee to 

the adult Indian residents. P.L. 85-671, 72 Stat. 619 (1958) as amended by P.L. 88-419, 

78 Stat. 390 (1 964). On April 4, 1% 1, the Secretary of the Interior approved a plan for 

the distribution of assets of the Tribe. Under the distribution plan, the United States 

deeded approximately 67.5 acres of the Rancheria land to Louis and Annie Oliver as joint 

tenants. 

In 1979, Indian residents fiom the Rancheria joined Indians fiom sixteen other 

California Rancherias in a class action lawsuit to restore the reservation status of their 

land, asserting that their trust relationship had been illegally terminated under the 

Rancheria Act of 1958. See Hardwick v. United States, No. C-79-17 10 SW (N.D. Cal. 

Filed 1979). The plaintiffs sought, among other things, judicial recognition that "[tlhe 

Secretary of the Interior is under a duty to 'unterminate' each of the subject Rancherias, 

and . . . to hold the same in trust for the benefit of the Indians of the original Rancheria;" 

and firther that " [tlhe Secretary of the Interior is under a duty to treat all of the subject 

Rancherias as Indian reservations in all respects[.]" Hardwick, Complaint at 27. 

The litigation was ultimately settled. Settlement was achieved through stipulated 

judgment between the members of the class and the United States and then between the 

members of the class and the respective counties in which they lay. 

The first stipulation, which was between the members of the class and the United 

States and was approved by federal court order on December 22, 1983, provides, in 

relevant part, as follows: 

3. The status of the named individual plaintiffs and other 

class members of the seventeen Rancherias named and 

described in paragraph I as Indians under the laws of the 

United States shall be restored and confirmed. In restoring 

and confirming their status as Indians, said class members 

shall be relieved of Sections 2(d) [subjecting any property 

so distributed to taxation] and 10(b) [terminating services 

provided to Indians] of the California Rancheria Act and 

shall be deemed entitled to any of the benefits or services 

provided or performed by the United States for Indians 

because of their status as Indians, if otherwise qualified 

under applicable laws and regulations. 

4. The Secretary of the Interior shall recognize the Indian 

Tribes, Bands, Communities or groups of the seventeen 

rancherias listed in paragraph 1 as Indian entities with the 

same status as they possessed prior to distribution of the 

assets of these Rancherias under the California Rancheria 
Act, and said Tribes, Bands, Communities and groups shall 

be included on the Bureau of Indian AfFairs' Federal 

Register list of recognized tribal entities pursuant to 25 

CFR, Section 83.6(b). Said Tribes, Bands, Communities or 

groups of Indians shall be relieved &om the application of 

section II [revoking constitutions under the Indian 

Reorganization AC?] of the California Rancheria Act and 

shall be deemed entitled to any of the benefits or services 

provided or performed by the United States for Indian 

Tribes, Bands, Communities or groups because of their 

status as Indian Tribes, Bands, Communities or groups. 

10. The Secretary of the Interior, named individual 

plaintiffs, and other class members agree that the 

distribution plans for these Rancherias shall be of no 

mher force and effect and shall not be further 

implemented; however, this provision shall not affect any 

vested rights created thereunder. 

Hardwick, Stipulation and Order, Dec. 22, 1983. 

The stipulation with the United States left "for hrther proceedings" the question 

of whether to restore the former boundaries of the Rancherias. Id, Paragraph 5 at 4. 

("The court shall not include in any judgment entered pursuant to this stipulation any 

determination of whether or to what extent the boundaries of the Rancherias listed and 

described in paragraph 1 shall be restored and shall retain jurisdiction to resolve this issue 

in further proceedings herein."). 

In 1987, the members of the class fiom the Buena Vista Rancheria entered into 

another Hardwick Stipulation for Entry of Judgment regarding Amador County. The 

1987 Stipulation provides that: 

The original boundaries of the [Buena Vista Rancheria] as 

described in paragraph 2.B.1 above Exhibit A to the 

Stipulation for Entry of Judgment, filed herein on August 2, 

1983, and made the judgment of this Court on 

December 22, 1983, in Order Approving Entry of Final 

Judgment ] are hereby restored, and all land within these 

restored boundaries of the puena Vista Rancheria] is 

declared to be "Indian Countq." (emphasis in original) 

325 U.S.C. $461 et seq. 
Hardwick, Stipulation and Order (Amador County) Para. 2.C., at 4, May 14, 1987. 

Although the United States was not among the parties that signed the 1987 stipulation, 

which was primarily designed to resolve issues surrounding the payment of real property 

taxes to Amador Coun the 1987 Stipulation was accepted by the federal court and was 

entered as a judgrnent?Hmdwick, Stipulation and Judgment, filed May 14, 1987. The 

effect of the judgments was that all lands within the Rancheria boundaries, as they 

existed immediately prior to the illegal termination, were declared to be "Indian Country" 

as defined by 18 U. S.C. 5 1 15 1. Arnador County expressly agreed to treat the Rancheria 

like any other federally recognized Indian reservation. Thus, the Rancheria consists 

entirely of the original reservation land base of approximately 67.5 acres. 

Applicable Law 

The IGRA explicitly defines "Indian lands" as follows: 

(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. 5 2703 (4). 

NIGC regulations have further 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: Definitions 

Under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12382, 12388 (1 992). 

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

specifically providing that: 

4 While the United States, as defendant, did not sign the 1987 stipulation, it did however sign the 

underlying stipulation that restored the Tribe in 1983. In that stipllation the United States agreed and the 

Court held that it would not determine the boundaries of the Rancheria yet, but, "shall retain jurisdiction to 

resolve this issue in fbrther proceedings herein" The stipulated judgment that plaintiff and defendant 

Amador County finalized in 1987, was one of the "further proceedings" anticipated by the 1983 stipulation. 

For these reasons, the United States considers itself bound by bdh stipulations. 
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. 9 2701 (5). IGRA firrther clarifies the jurisdiction of Tribes as to the different 

class of gaming stating that; 

(1) 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 I11 gaming likewise state: 

(1) Class I11 gaming activities shall be lahl 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. § 2710(dXl)(A)(C). 

Analvsis 

The NIGC Oftice of General Counsel (OGC) has revised its analytic approach to 

Indian lands within reservation boundaries. The analysis used through the past few years 

included a two-part determination whenever an Indian lands questions was raised - OGC 

looked fust to determine whether the lands constituted Indian lands, OGC then looked to 

whether the tribe exercised jurisdiction over those lands. This two-part analysis was 

driven by the outcome in K-s v. United Stares, 86 F. Supp. 2d 1094 (D. Kan. 2000), 

afld 249 F.3d 121 3 (1 0& Cir. 2001)(Miami Ill). That Court held the NIGC's failure to 

focus on the threshold question of whether the tribe possessed jurisdiction over a tract of 

land rendered the ultimate conclusion arbitrary and capricious. Id. Despite this holding, 

the NIGC has concluded that, in some instances IGRA's preemptive effect negates the 

need for a complete jurisdictional analysis. IGRA specifically defines Indian lands as 

any '"llands within the limits of an Indian Reservation." This finding is a prerequisite for 

a tribe to be able to conduct gaming under IGRA. IGRA gives tribes the exclusive right 

to regulate gaming on Indian lands if the Indian lands in question are within "such tribe's 

jurisdiction." A tribe is presumed to have jurisdiction over its own reservation. 

Therefore. if the gaming is to occur within a tribe's reservation, under IGRA, we can 

presume that jurisdiction exists. 
OGC's new approach was outlined in our recent opinion regarding gaming on fee 

land at the White Earth Reservation in Minnesota (See Memorandum to NIGC Acting 

General Counsel Re: Tribal jurisdiction over gaming on fee land at White Earth 

Reservation, dated March 14, 2005). In that opinion, we opined that the State of 

Minnesota lacked jurisdiction over gaming on the White Earth Reservation because the 

gaming took place within the exterior boundaries of the reservation; the gaming was 

therefore Indian gaming under IGRA, which pre-empts state jurisdiction. As the White 

Earth Band was undisputedly the only tribe exercising jurisdiction over the land at White 

Earth, that Tribe met IGRA's requirement that it be the tribe with jurisdiction over the 

Indian lands at issue. As a result of our analysis on White Earth we have taken this 

opportunity to revisit and revise our analytic approach. 

It is still appropriate under the second 2703(B) definition of Indian lands to 

conduct a separate jurisdictional analysis when determining whether a tribe exercises 

governmental powers. This is because a necessary prerequisite to the exercise of 

governmental powers is the theoretical and inherent authority to exercise such power. 

However, with respect to the first definition of Indian lands - that the lands are within the 

reservation boundaries, we conclude that the preemptive effect of ZGRA eliminates the 

need for a separate jurisdictional analysis. 

The issue here is, therefore, whether a gaming operation conducted on the 

Rancheria would be on Indian lands. If the Rancheria is considered a reservation under 

the definition of Indian lands, the Tribe may game on those lands. 

1. IGRA Preempts The Field Of Gaming On Indian Lands 

Generally, there exists a presumption that federal law does not pre-empt State 

regulation, particularly in a field that States have traditionally occupied. See New York v. 

FERC, 535 U.S. 1, 17-18 (2002); Medtronic, Inc. v. Lohr, 5 18 U.S. 470, 485 (1996) 

(First, "[iln all pre-emption cases, and particlrlarly in those [where] Congress has 

legislated . . . in a field which the States have traditionally occupied, we start with the 

assumption that the historic police powers of the States were not to be superseded by the 

Federal Act unless that was the clear and manifest purpose of Congress".). The 

presumption against federal preemption disappears, however, in the face of Congress's 

"clear and manifest purpose" to the contrary. Rice v. ~ZU Fe Elevator Corp., 331 U.S. 

218, 230 (1947).' Such purpose is evidenced when the field of regulation has been 

' "Such a purpose may be evidenced in several ways. The scheme of federal regulation may be so 

pervasive as to make reasonable the inference that Congress leA no room for the States to supplement it. 

Pennsylvania R. Co. v. Public Service Commh, 250 U.S. 566,569; CloverleafButter Co. v. Patterson. 315 

U.S. 148. Or the Act of Con- may touch a field in which the federal intenst is so dominant that the 

federal system will be assumed to preclude enforcement of stale laws on the same subject. Hines v. 

Davidowih, 3 12 U.S. 52. Likewise, the object sought to be oMained by the federal law and the character of 

obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U.S. 

439; Charleston & K C. R. Co. v. Varnville Co., 237 U.S. 597; New York CentralR. Co. v. Winfield, 244 

U.S. 147; Napier v. Atlantic Coad Line R Co., 272 U.S. 605. Or the state policy may produce a result 

ix~~~tlsistent with the objective of the f&ral stah&. Hill v. Fforida, 325 U.S. 538. It is ohn a perplexing 
substantially occupied by federal authority for an extended period of time. United States 

v. Locke, 529 U. S. 89, 108 (2000); Flagg v. Yonkers S& Ass'n, 3% F.3d 178, 183 (2nl 

Cir. 2005). 

Indian affairs has a long history of Federal authority taking precedence over State 

jurisdiction. See Rice v. Ohan, 324 U.S. 786, 789 (1945) (citing Worcester v. Georgrb, 6 

Pet. 5 15; 1 Stat. 469; 4 Stat. 729). As recently expressed by the U.S. Court of Appeals 

for the Ninth Circuit: 

The policy of leaving Indians free fiom State jurisdiction is deeply rooted in 

our Nation's history. Rice v. Olson, 324 U.S. 786, 789 (1945). In 

determining the extent of State jurisdiction over Indians, State laws are not 

applicable to tribal Indians on an Indian reservation except where Congress 

has expressly intended that State laws shall apply. McCI& v. Ariz. State 

Ti Corn h, 41 1 U. S. 164, 170-71 (1 973). If faced with two reasonable 

constructions of Congress's intent, this Court resolves the matter in favor of 

the Indians. Id at 174. 

Gobin v. Smhish County, 330 F.3d 909 (9 Cir. 2002), cert. hied 538 U.S. 908 (2003). 

IGRA is an heir to this history. The legislative history ofthe Act incorporates this 

history. The Senate Report on S. 555, which became IGRA, states: 

It is a long- and well-established principle of Federal-Indian law as expressed 

in the United States constitution, reflected in Federal statutes, and articulated 

in decisions of the Supreme Court, that unless authorized by an act of 

Congress, the jurisdiction of State governments and the application of state 

laws do not extend to Indian lands. In modern times, even when Congress 

has enacted laws to allow a limited application of State law on Indian lands, 

the Congress has required the consent of tribal governments before State 

jufkdktion can be extended to tribal lands. 

S.Rep. No.446, 100' Cong., 2d Sess. 6 (1 988), reprinted in 1988 U.S.C.C. A.N. 3071,3075. 

More explicitly, IGRA's legislative history shows clear Congressional intent that the Act 

be preemptive. The Senate Report declares: 

S. 555 is intended to expressly preempt the field in the governance of gaming 

activities on Indian lands. Consequently, Federal courts should not balance 

question whether Congress has precluded state action or by the choice of selective regulatory measures has 

left the police power of the Stabes mdishubed ex* to the extent that state and fedRl;al regulations collide. 

Townsendv. Yeomans, 301 U.S. 441; Kelly v. Washington, 302 U.S. 1; South Carolina Highway Dept. v. 

Bumwell Bros., 303 U.S. 177; Uhion Brokerage Co. v. Jensen, 322 US. 202; Rice v. Sam Fe Elevator 

Corp., 33 1 U.S, at 230. 
competing Federal, State, and tribal interests to determine the extent to which 

various gaming activities are allowed. 

Id. at 3076. 

Case law also acknowledges IGRA's preemptive effect. The U.S. Court of Appeals 

for the Eighth Circuit, in which the White Earth reservation falls, has directly addressed this 

question. In Gaming COT. of Amerim v. Dorsey & Whtney, 88 F. 3d 536 (8& Cir. 19%), 

the Eighth Circuit held that IGRA completely preempted state law where the dispute-a 

management company's suit against a tnis legal representatives-arose fiom the tribe's 

issuance of gaming licenses, which is covered by IGRA "Examination ofthe text and 

structure of IGRq its legislative history, and its jurisdictional framework likewise indicates 

that Congress intended it complaely preempt state law," the court ruled. Id at 544. 

Likewise in Missouri ex rel. fixon v. Coeur DYlene Tribe, 164 F.3d 1 102 (8" Cir. 1999), 

the Eighth Circuit held that the question of whether an activity is pre-empted by IGRA is 

determined by whether it occurs on Indian lands: 

As our opinion in Dorsey explained at length, the IGRA established a 

comprehensive regulatory regime for tribal gaming activities on Indian 

lands. B& the Impage of the statute and its legidative history refer only 

to gannirtg on Isrrkign bn&&. See, e.g., 25 U.S.C. 270 1; S. Rep. No. 100- 

446, reprinted in 1988 U.S.C.C. A.N. 3071,3071 -3083. The Indians' longstanding rights and interests in controlling activities on their tribal lands, 

and the States' correspondingly limited power to regulate activities on 

tribal lands except as authorized by Congress, are core principles 

underlying the IGRA that necessarily he the scope of its preemptive 

force. 

Id at 1108. In short, the court ruled States7 powers are pre-empted where IGRA applies, and 

IGRA applies on Indian lands.7 

In Coew d 'Alene Tribe v. I&o, 842 F.Supp. 1268 @. Idaho 1 994)- #d 5 1 F.3d 

876 (9" Cir. 1995)- cert. denied 5 16 U.S. 9 16 (1995)- rehearing denied 5 16 U.S. 1018 

(1995), the federal district court reasoned that IGRA allows state gaming regulations to 

apply on an Indian reservation. The authority of the state to conduct gaming was not 

absolute, however. Rather, the scope of State regulation was to be determined by 

6See also Additional Views of Mr. Evans, S.Rep. No. 446, lOdh Cong., 2d Ses. 36 (1988) ("F'i, this bill 

should be construed as an explicit ofthe seld of gaming in Indian Ca~nhy."). ' There is some case law to the CorThe federal dishict Cmn fw the Eastern District of Washington 

held in 1996 that IGRA did not prevent the State of Washington from conducting the state Wery on lands 

within the Yakama Indian Reservation Confederated Tribes and Bands of the Yakuma Indian Nation v. 

Lowry, %8 F. Supp. 53 1 (E. D. Wash 1997) (order granting motion to dismiss; %8 F. Supp. 538 

(E.D.Wash. 1997) (Onh denying motion for reconsideration); vacated 176 F.3d 467 (9* Cir. 1999). That 

decision was vacated by the Ninth Circuit in 1999, howwer, albeit on the grounds that the State was 

immune from the Tribe's suit based on the State's Eleventh Amendment sovereign immunity. Because the 

action was "so clearly barredn by the Eleventh Amedment, the Ninth Circuit deemed it inappropriate to 

determine "the more complex issues" raised by the case. 
negotiated compacts between tribes and the States, the court held. The state lottery was 

Class I11 gaming, the court said. Id. Lacking compacts, neither the tribes nor, more to 

the point, the State could conduct a lottery on the reservations, the court concluded. This 

reasoning confirms IGRA's preemptive character, allowing state regulation only under 

IGRA's provisions. 

Accordingly, since IGRA is preemptive as to gaming on Indian lands, our analysis 

of the legality of Indian gaming starts and stops when we answer the question - Is this 

gaming on Indian lands? 

2. The Rancheria is a Reservation 

Because the Rancheria is a reservation under the IGRA definition of Indian lands, 

we conclude that the Tribe may conduct gaming on it. 

It is well established that Rancheriris are "for all practical purposes" reservations. 

See Solicitor's Opinion, M-28958 (April 26, 1939), 1 Op Sol. On Idan Afairs 891 

(U.S.D.I. 1979). The Buena Vista Rancheria has a history similar to that of the 

Pinoleville Indian Community. The Pinoleville Rancheria was terminated according to 

the Rancheria Act and subsequently restored in the Hardwick settlement stipulations. 

Governing Council of Pinoleville Idan Community v. Mendocino County, 668 4. Supp. 

1042, 1043-1044 (N.D. Cal. 1988). In Pinoleville the Rancheria challenged a County 

imposed moratorium on new industrial uses on the Rancheria. The court considered the 

effect of the Hadwick judgments on the Tribal Council's power to regulate, and 

determined that "the clear and hndamental intent of the judgment [wasj to restore all 

land within the original Rancheria as Indian Country and Mendocino Country's express 

undertaking [was] to treat the entire Rancheria as reservation[.] Id at 1046 (emphasis in 

original). The court held that the Tribal Council had the authority to zone non-Indian fee 

land within the boundaries of the Rancheria. Id. at 1045. The court also cited a letter 

from the Bureau of Indian Affairs which stated: "lilt is our opinion that the Pinoleville 

Indian Community has the authority to enact an ordinance which restricts land use by 

anyone within their exterior boundaries when such use has been deemed detrimental to 

the health or welfare of the Pinoleville Indian Community. B.I.A. letter at 1 (emphasis in 

original)." Id at 1042. Thus, Rancherias restored by the Hardwick stipulated judgments 

are treated by the County and the Bureau of Indian Affairs like any other Indian 

rese~ation.~ 

Numerous other courts have also concluded that rancherias are the equivalent of 

reservations. See City of Roseville v. Norlon, 348 F.3d 1020, 1021 @.C. Cir. 2003) 

(stating that the Auburn Indian Restoration Act (AIRA) authorized the creation of a new 

* Furthermore. when discussing the status of the Robinson Rancheria (not a Hardwick Rancheria), the court 

in Duncan v. United States, 667 F.2d 36,41,229 Ct. C1.120,128 (1981), cer!. denied, 463 U.S. 1228 

(1983), held that "Congress clearly contemplated that this land have the same general status as reservation 

lands." See general& United States Department of the Interior, Federal Indian Law 609 (rev. ed. 1958) (it 

is not necessary that Congress use the word "rese~ation" to create Indian reservation lands); United States 

v. McGowan, 302 U.S. 535.538-39 (1938). 
"reservation" for the restored tribe and that parcels of land became the tribe's reservation 

by operation of law); Artichoke Jw 's Cal. Grand Casino v. Norton, 353 F.3d 7 12 (9° 

Cir. 2003) (stating "rancherias are small Indian reservations"); Santa Rosa Band of 

Indians v. Kings Cnmty, 532 F.2d 655,657 (gh Cir. 1975) (stating California Rancherias 

are Indian reservations). 

Finally, the Hardwick Stipulation fur Entry of Judgment entered into between 

Arnador County and the Indians of the Buena Vista Rancheria, specifically states that the 

Rancheria is "Indian Country" and that the Rancheria shall "be treated by the County of 

Amador and the United States of America, as any other federally recognized Indian 

reservation, . . ." Harhuck, Stipulation and Order, April 21, 1987. 

Therefore, the lands within the Rancheria are likewise within the limits of a 

reservation. Further, because the lands at issue qualify as a reservation they need not be 

taken into trust. Subsection (A) defines Indian lands to include "all lands within the limits 

of any Indian reservation." See 25 U.S.C 5 2703(4KA). IGRA does not require that 

lands within the boundaries of a reservation be held in trust. By providing that "all 

lands" within a reservation are Indian lands, it is clear that Congress did not intend to 

include an additional requirement that the lands also be held in trust to be qualified under 

IGRA. 

Subsection (B) categorizes lands as Indian lands if they are 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. See 25 U.S.C 5 2703(4)(J3). The 

Indian lands definition is subject to the requirements of subsection (B) only if subsection 

(A) does not apply. Because Subsection (A) does apply (the Rancheria is a reservation), 

we need not address subsection (B). 

3. The Proposed Gaming Facility is located within the Rancheria 

The land at issue in this matter is fee land within the exterior boundaries of the 

Buena Vista Rancheria. The land thus falls within the "limits" of the reservation and 

meets the definition of Indian lands under IGRA, 25 U.S.C. 5 2703(4)(A), and NIGC's 

regulations, 25 C.F.R. §502.12(a). 

In different circumstances, we would engage in a more lengthy analysis. For 

example, if the land at issue were trust land, outside the limits of the reservation, we 

would need to engage in a two-part analysis: (1) examining if the land were held in trust 

or subject to restriction, and (2) determining whether the Tribe exercised governmental 

power over that land. See 25 C.F.R. 8 502.12(b). Furthermore, in order to prove the 

Tribe's exercise of actual governmental power, we would also need to prove theoretical 

jurisdiction. Kansas v. United States, 86 F. Supp. 2d 1094 @. Kan. 2000), ajf'd 249 F.3d 

121 3 (1 O'h Cir. 2001) (Miami Ill). Since the land at issue at Buena Vista is not trust land, 

however, we need examine only one issue: whether the land is within the limits of the 
reservation. Finding that it is within the exterior boundaries of the reservation, we 

conclude that the land constitutes Indian lands and that IGRA therefore applies. 

We do, however, need to evaluate jurisdiction in the sense that we need to 

determine whether the Tribe is the tribe that exercises jurisdiction over the land at the 

Rancheria. IGRA states that a tribe may engage in Class I1 gaming "on Indian lands 

within such tribe's jurisdiction" if, among other things, the tribe has an ordinance 

approved by NIGC's Chairman. 25 U.S.C. §2710@)(1). The requirements for 

conducting Class I11 gaming likewise state: "Class I11 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 ...." 25 U.S.C. $2710(d)(l). 

The context of IGRA's prescriptions as to jurisdiction-that land be within "such 

tribe's jurisdiction" and ordinances adopted by "the Indian tribe having jurisdiction over 

such lands3'-indicates that Congress intended that gaming on any specific parcel of 

Indian lands not be conducted by any Indian tribe, but only by the specific tribe or tribes 

with jurisdiction over that land. See, e-g.. Williams v. Clurk, 742 F.2d 549 (9n Cir. 1984), 

cert. denied sub nom. Elvrum v. Williams, 471 U.S. 1015 (1985) (member of either 

Quileute or Quinault tribes is permissible devisee of Quinault Reservation land, since 

both tribes exercise jurisdiction over Reservation, and members of both tribes may be 

considered member of "tribe in which the lands are locatedn for purposes of Indian 

Reorganization Act fi 4). The Buena Vista Rancheria ratified its Constitution on August 

24, 2004. The Tribal Constitution specifically denotes the Tribe's jurisdiction to cover 

all lands within the boundaries of the RanchePia. Therefore, the Tribe clearly retains 

jurisdiction to regulate gaming on lands within its boundaries. 

Because the Tribe is undisputedly the only tribe that exercises jurisdiction over 

the Rancheria, the Tribe meets IGRA's requirements that it be the tribe with jurisdiction 

over the Indian lands at issue. 

Conclusion 

We conclude that the proposed gaming operation is located on lands considered 

"Indian lands" pursuant to 25 U.S.C. 3 2703(4)(A). 

The Department of the Interior, Office of the Solicitor, concurs in our opinion. If 

you should have any additional questions regarding this matter, please call John Hay. 

Very truly yours, 

Ndf 

Penny J. Coleman 

Acting General Counsel 

cc: Director, Ofice of Indian Gaming Management