April 1,2002 

Henry St. Germaine, Sr., President 

Lac du Flambeau Band of Lake Superior Chippewa lndians 

PO Box 67 

Lac du Flambeau, WI 54538 

Dear Mr. Germaine: 

This letter is in response to your inquiry into any regulations that would apply to an 

lndian Tribe that is looking into riverboat gambling. To the extent such gaming may be 

considered gaming under the lndian Gaming Regulatory Act (IGRA), all of the 

regulations contained in 25 C.F.R. parts 501-577 apply. If such gaming is not gaming 

under the IGRA, however, state laws would apply. 

One question to be answered, therefore, is whether the waters on which the Lac du 

Flambeau Band of Lake Superior Chippewa lndians (Tribe) wish to conduct gaming 

are considered "lndian lands" as defined by IGRA and National lndian Gaming 

Commission (NIGC) regulations. Absent such a determination, there is a serious 

question as to whether the IGRA or state gambling laws apply to the gaming activities 

conducted on such waters. Without more information, we cannot conclude whether 

the waters on which the Tribe wishes to conduct gaming are to be considered lndian 

lands over which the Tribe has jurisdiction. 

The gaming compact between the Tribe and the State of Wisconsin dated November 

27, 1991, defines "Tribal lands" as follows: 

1. All lands within the limits of the Lac du Flambeau Band of Lake Superior 

Chippewa lndians reservation; 

2. All lands within the State of Wisconsin held in trust by the United States .for the 

benefit of the Lac du Flambeau Band of Lake Superior Chippewa lndians as of 

October 17, 1988; and 

3. All lands within the State of Wisconsin which may be acquired in trust by the 

United States for the benefit of the Lac du Flambeau Band of Lake Superior Chippewa 

lndians after October 17, 1988, over which the Tribe exercises governmental power, + 

and which meet the requirements of § 20 of the Act, 25 U.S.C. § 2719. 

The approved ordinance, dated June 23, 1993, defines "reservation" as "the land and 

waters within the exterior boundaries of the Lac du Flambeau lndian Reservation." 

This is the only information presently available to us. 

An lndian tribe may engage in gaming under IGRA only on "lndian lands within such 
tribe's jurisdiction," 25 U.S.C. § 2710(b). Moreover, if the proposed lands are trust or 

restricted lands, rather than land with the limits of an lndian reservation, the tribe may 

conduct gaming on such lands only if it exercises "governmental power" over those 

lands. 25 U.S.C. § 2703(4)(B); 25 C.F.R. § 502.12(b). IGRA explicitly defines "lndian 

lands" as follows: 

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

(B) any lands title to which is either held in trust by the United States for the benefit of 

any lndian tribe or individual or held by any lndian tribe or individual subject to 

restriction by the United States against alienation and over which an lndian tribe 

exercises governmental power. 

25 U.S.C. 5 2703(4). 

NlGC regulations have further clarified the lndian lands of definition, providing that: 

lndian lands means: 

(a) Land within the limits of an lndian reservation; or 

(b) Land over which an lndian tribe exercises governmental power and that is either - 

(1) Held in trust by the United States for the benefit of any lndian tribe or individual; or 

(2) Held by an lndian 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 lndian Lands under IGRA 

are subject to state gambling laws. See National lndian Gaming Commission: 

Definitions Under the lndian Gaming Regulation Act, 57 Fed. Reg. 12382, 12388 

(1 992). 

The dual questions under IGRA of whether a tribe "has jurisdiction" and "exercises 

governmental power" over land on which the tribe proposes to conduct gaming can 

arise under a variety of circumstances. See, e.g., Rhode Island v. Narragansett lndian 

Tribe, 19 F.3d 685, 701 -703 (I st Cir. 1994); Miami Tribe of Oklahoma v. United States, 

5 F. Supp.2d 1213, 1217-18 (D.Kan. 1998)(Miami 11) (a tribe must have jurisdiction to 

exercise governmental power); State ex rel. Graves v. United States, 86 F. Supp.2d 

1094, 1099 (D.Kan. 2000); Miami Tribe of Oklahoma v. United States, 927 F. Supp. 

1419, 1423 (D.Kan. 1996)(Miami I). In this context, the NIGC is charged with the task 

of ensuring that 1) the tribe has jurisdiction, and 2) if the proposed lands are trust or 

restricted lands outside the limits of an lndian reservation, that the tribe exercises 

governmental power over the proposed gaming lands. 

Because we do not have sufficient information, we are not able to determine whether 

the Tribe has jurisdiction over the waters within the boundaries of the reservation. If 

you seek such a determination, please provide such documentation and legal analysis 

as may assist us in our determination. 

If you should have questions regarding this matter, please contact Heather Hausburg 

at (202) 632-7003. 

Sincerely, 
Penny J. Coleman 

Deputy General Counsel 

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