United States Department of the Interior 

OFHCE OF THE SOLIClTOR 

Washington, D.C. 20240 

IN REPLY REFER 22 1999 

Lawrence F. Snake, President 

Delaware Tribe of Western Oklahoma 

P.O. Box 825 

Anadarko, OK 73005 

Dear President Snake: -.:, q 

Barry Brandon, Genera. Counsel, National Indian Gaming Commission (NIGC), has asked me to 

respond to your January 25,1999, letter regarding construction of a Class I1 gaming facility on land 

yet to be t&en into trust by the Secretary. I apologize for the delay in responding. \ 

Your let& asks whether the Delaware Tribe of Western Oklahoma (Tribe) may commence 

constru&%n of a class 11 gaming facility on its 20 acre parcel of land, or whether the Tribe must wait 

until the-land is taken into trust before beginning construction. While it is understandable that the 

Tribe &y wish to begin construction to having the land taken into trust, I must alert you to 

possible risks that may arise by doing so. 

\ 

Your letter states that the 20 acre parcel was taken out of trust when purchased by a non-Indian. 

Your letter also states that the Tribe's repurchase of the parcel renders the land restricted and no 

longer subject to tax. However, the 1998 decision by the United States Supreme Court in 

County. Minnesota v. Leech Lake Band of Chipuewa Indians, 524 U.S. 103 (1 998), indicates that 

although the 20 acre parcel has been repurchased by the Tribe, its tax exempt status is not necessarily 

restored because of the Tribe's purchase. In Leech Lake, the Supreme Court held that a tribe's 

reacquisition of reservation lands that had been conveyed to non-Indians does not render those lands 

non-taxable by state and local government, and that subsequent repurchase of reservation land by 

the tribe did not manifest any congressional intent to reassume federal protection of that land. While 

the Supreme Court did not address the issue of restricted land per se, see 524 U.S. 1 10 at n. 5, at least 

one circuit has stated clearly that lands repurchased by a tribe are not restricted. See Lummi Indian 

Tribe v, Whatcom Co., 5 F.3d 1355 (9& Cir. 1993). Thus, in the Delaware Tribe's case, repurchase 

of this 20 acre parcel does not necessarily render the land exempt fiom state taxation. 

The possible status of the 20 acre parcel as non-restricted land has impIications for gaming under. 

the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. $5 2701 - 2721. Under IGRA, Class 11 

gaming may only occur on "Indian lands." 25 U.S.C. 5 2710. Further, with regard to lands not 

within the boundaries of a reservation, only lands that are held in trust or are restricted are "Indian 

lands" under IGRA. 25 U.S.C. $9 2703(4). Thus, until the 20 acre parcel is taken into trust by the 

Secretary, it is likely not "Indian land" and gaming may not be conducted on those lands. 

Because the BIA has not reached a decision on the Tribe's trust application, the Tribe risks the 

possibility that it will construct a gaming facility on land on which it cannot conduct gaming. The 
Tribe would be taking a substantial financial risk without assurances that it would ultimately receive 

permission fiom the BIA to game on this parcel. , 

Your letter states that the Tribe's 20 acre parcel is located within former reservation boundaries &d 

is in Oklahoma. Section 2719(a) of IGRA prohibits gaming on lands purchased after October 37, 

1988, unless the tribe has no reservation on October 17,1988, and such lands are in Oklahomh ad 

are within the boundaries of the tribe's former reservation. 2719(a)(2)(A)(i). If the Tribe's 20 aMe 

parcel meets this definition, the Tribe need not seek a two-part best interest determination under 

5 27 19(b)(l)(A) of IGRA even though the parcel was purchased and taken ,into trust after October 

17,1988. - \ 

' ! 

Finally, the taking of land into trust for gaming purposes will trigger the need for environmehtal 

analysis and review under the National Environmental Policy Act (NEPA), 42 U.S.C. $ $432 1 - 4347 

(1 969), as well as other applicable environmental laws. Under current procedures, BIA approval of 

trust land acquisitions, and approval of leases of tribal lands for gaming and other purposes require 

compliance withNEPA. Failure to comply withNEPA prior to construction where such compliance 

is required may delay or jeopardize gaming approval on this parcel. 

IGRA also requires the governing body of a tribe to adopt an ordinance or resolution which mu& be 

approved by the Chairman of theNationa1 Indian Gaming Commission. 25 U.S.C. 5 271 O(b)(l)(B). 

If you have further questions, please contact &Jp/r Maria Wiseman of my staff at (202) 208-4361. 

Deml B. rdan 

Associate Solicitor 

Division of Indian Affairs 

cc: General Counsel, NIGC