Frances G. Charles 

Chainvornan 

Lower Elwha Wallam Tribc 

285 1 Lower EIwha Road 

Pod Angcles, WA 98363 

Fa: (360) 452-3428 

Re: Approval, Lower EIwha Klallam Tribe gaming ordinance amendment 

Dcar Chainvornan Charles: 

This lctter responds to your request that the National Indian Gaming Cemmission 

(NlGC) Chaiman review and approve the Lower Elwha Klallarn Tribe's (Tribe) 

Amended Gaming Control Ordinance of 2006 (Ordinance), adopted by Lower EIwha 

Klal tam Tribal Business Committee by Resolution # 1 1 :OX on April 7,2008. The 

Ordinance is consistent with the requirements of thc Indian Gaming Regulatory Act 

(IGRA) and the MGC's implementing regulations. Accordingly, the Ordinance is hereby 

approved. 

The Ordinance's definition of lntjilinn I,ands now contains a legal description oFa 

parcel of land referred to as the "Halberg Addition:" 

Indian Lands means: 

(I) A11 Iands within the limits of the Tribe's reservation, as of 

October 17, 1988; 

(2) Any lands title to which is either held in trust by the United 

States for the bcnefit of the Tribe or individual or held by the 

Tribe or individua1 subject to restriction by the United States 

against alienation and over which the Indian Tribe exercises 

governmental power; and 

(3) For all lands acquired into trust for the benefit of an Tndian 

tribe after Octobcs 17, 1988, the lands mcet the requirements 

set forth in 25 U.S.C. ?$ 2779, including, but not Iimited to the 

240.77 acre parcel commonly referred to as the HaIbcrg 

Addition, which is contiguous to tllc Lower ElwIla Klallam 

Reservation and more specifically described in the Bureau of 

Indian Affairs Final Opinion of Title, dated October 1 1,200 1. 

WATlonhL HEAWQWA~~ 1dAl L St NW, Su~te 9100. WashingLon, DC HKK15 Tef. 202.632 9003 Fax 207 632 7% vmw.HlM.GW 

RECIONA~ omcfs Portland. OR. Sacramrnto. CA. Pfiwnix, A7: St Paul. MN:Tulsa. OK 
Ordinance, $ 102(o). Because the definition references the HaZberg Addition, which was 

acquired into trust for the benefit of the Tribe on October 1 1,2001, the proposed 

defi~iti~:: requires me to dete~ine the zpp!ica?i?ity of IC-PA's genera? pr~hibitior: 

against gaming on lands acquired into tmst after October 1 7, 1988.25 U.S.C. $27 I9la). 

If the prohibition applies, the Ordinance would purport to authorize gaming where IGRA 

prohibits it, and I would have to disapprove the Ordinance. Based on my review, 

however, I conclude that the prohibition does not apply because the Halberg Addition is 

contiguous to the Tribe's reservation and, therefore, eligible for Indian gaming. 

Indian Lands 

IGRA permits gaming onIy on Indian lands, 25 U.S.C. $9 27 1 O(b)(I), (2); 

271 O(d)(l), (2), which it defines as: 

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

@) any lands title to which is either held in trust by the United Statcs for 

the benefit of any Indian tribe or individual or held by any lndian 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. 4 2703(4). The National lndian Gaming Commission's implementing 

regulations clarify: 

Indian lands means: 

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

fb) Land over whj ch an Indian tribe exercises governmental powm 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. 9 502.12. The Halberg Addition is not within the limits of the Tribe's 

memation. As such, in order to qualify as Indian lands, the Haberg Addition must be 

held in trust or restricted fee, and the Tnbe must exercise governmental powcr over thc 

Iand. I find that the Halberg Addition meets both criteria. 

Trust Land 

On October 1 1,2001, the Bureau of Indian Affairs (BIA) issued a memorandum 

acknowledging that valid title to thc Halberg Addition is vested in the United States of 
America in trust for the Tribe. As such, the Halberg Addition conforms to the first 

requirement of IGU's Indian lands definition. 

Govern men taF Power 

The Tribe also exercises governmen *IF mnqwrer fi%rar +hm Umlkarm A rlrl:t:~- TL:* LLLUY ~WII-I UYUI LIIU L~~~WU~~~UUILIUII. AILID 

conclusion, however, is not as straightforward as simply noting that the United States 

holds the land in tnrst far the Tribe. In order to exercise governmental power over its 

land, the Tribe must first have jurisdiction to do so. See, ~g., Rhode JsIand v. 

Nurmgansetf Indian Tribe, 19 F. 3d 685,701-703 (lS' Cir. 1994), cert. denied, 513 U.S. 

9 1 9 ( 1 9941, srrperseded by statute on other grounds, N~rragunsetf Indim Tribe v. 

National Indiarz Gaming Commission, 158 F.3d I335 @.C. Cis, 1998) (in addition to 

having jurisdiction, a tnbe must exercise governmental power in order to bigger 

[IGRA]); State ar- re1 Groves v. United States, 86 F. Supp 2d 1094 @. Kan. 2000), afd 

and remanded, Kansas v United States, 249 F. 3d 1213 (10" Cir. 2001); Miami Mha of 

OkIaJzoma v. U~ziteti States, 5 F. Supp. 2d 12 E 3, 121 7- 18 (D. Kan. 1998) (a tribe must 

have jurisdiction in order to be able to exercise govemmental power); Miami Tribe of 

Oklahonza v. UnitedStates, 927 F. Supp. 1419, 1423 @, Kan. 1996) (a tribe must first 

have jurisdiction in order to exercise govmmental power for purposes of 25 U.S.C. 

g 2703(4)). 

1. Jurisdiction 

The presumption ofjurisdiction exists for any federally recognized tribe acting 

within the limits of lndian Counl'ry. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 

329 (1 998). This jurisdiction, an inherent sovereign power, can only be modified by a 

clear and explicit expression of Congress. See Yankron Siotcx Tribe, 522 U.S, at 341 ; see 

also Merrion v. Acari'illa Apache Tyihe, 455 U.S. 130,140 (1982). 

Over time, the term Indian County has referred to Imds upon which the federal 

government and the Indian tribe that owns the land share primary jurisdiction. See Alaska 

v. Native Village of Venetie Tribal Gov 't, 522 U.S. 520,529 (1 998). The tern radian 

Count7 is defined by 1 8 U.S.C. rj 1 15 1 as follows: 

(a) MI Imds within the limits of an Indian reservation under the 

jurisdiction of the United State Government, notwithstanding the 

issuance of any patent, including rights of way running through the 

reservation, 

(b) A11 dependent Indian communities within the borders of the United States, 

whether within the original or subsequently acquired territories thereof, 

and within or without the limits of a state, and 

(c) All Indian Allotments, the Indian titIes to which have not been 

extinguished including rights of way running through the same. 

In its review of 18 U.S.C. 4 I 15 1, the Yemetie court found that the statute contains 

two of the indicia previously used to determine what lands constitute lndian Country: (11 
lands set aside for Indians and (2) federal superintendence of those lands. See Venetie, 

522 U.S. at 527. In Venetie, the court observed that Section 1 151 reflects the two miteria 

the Supreme Court previously held necessary ibr a finding of Indian Country. 522 U.S. at 

527. Further, reservation status is not necessary for a finding of Indian Country. See 

Oklalrornn Tux Comm 'n v. Citizen Band Po fawatomi hdim Tribe of OkJa homa, 498 U.S. 

505, 51 1 (1991) ("N~ pr--- -'A:- L-- J 'I-- "I-'.--':-.- 1- -L -.--.- 

CGGUCIIL VL ~111s Luuri II~ cvcr urawn Lnc msuncuun oerwr;en 

tribal tmst land and reservation that Oklahoma urges.") 

The Tenth Circuit found that "[oJfficial designation of reservation status is not 

necessary for the property to be treated as Indian Country under 18 U.S.C. 9 115 1 ,"' 

rather, '5t is enough that the property has been validly set aside for the use of the Indians, 

under federal superintendence." United States v. Roberts, 1 85 F.3d 1 125, 1 133, n.4 (1 0th 

Cir. 1999). Further, "reservation status is not dispositive and lands owned by the federal 

government in trust for lndian tribes are Indian Country pursuant to 18 U.S.C. 5 1 15 1 ." 

Roberts, 185 F.3d at 1130. Thus, as long as the land in question is in trust, the courts 

make no distinction between the types of trust lands that can be considered "Indian 

Country." Roberts, 1 85 F.3d at 1 13 1, n.4. Accordingly, lands held in trust, fee simple 

restricted status, aIIotments and reservations arc all considered Indian Country. See 

United States v. Sandoval, 23 1 U.S. 28 (1 9 13) (fee restricted land as Indian Corzntry]; 

United Stales v. Pelican, 232 U.S. 442 (1914) (aIlotrnent as Indian Country); United 

States v. McGowan, 302 U.S. 535 (1 938) (trust land as Indian Country). 

Hesc, thm, once the United States took the Halberg Addition into trust fbr the 

benefit of the Tribe, the land became Indian Country within the meaning of 18 U.S.C. § . + F. 

I 13 E. Tie site was "vaiidiy set apart for the use of the Indians as such, under the 

supcrintcndence of the Government." Potawatomi, 498 W.S. at 51 I. Accordingly, the 

Tribe has jurisdiction to exercise governmental authority at the Halberg Addition. 

2. Exercise of Govmental Authority 

In order for the Halberg Addition to be Indian lands within the meaning of TGRA, 

the Tribe must also exercise present-day, governmental authority on the land. IGRA docs 

not specify how a tribe exercises governmental authority, though there are many possible 

ways in many possible circumstances, For this reason, the Commission has not 

formulated a uniform definition of "exercise of governmental power'3ut rather decides 

that question in each case based upon all the circumstances. RarionaE Indian Gaming 

Commission: @$nitions Under the Indian Gaming Replatoy Ac f, 5 7 Fed. Reg. 12382, 

12388 (I 992). 

The courts provide useful guidance. For example, governmental power involves 

'7he presence of concrete manifest ations of.. . authority." Narragansett Indian Tribe, 1 9 

F.3d at 703. Examples include the establishment of a housing authority, administration of 

health care programs, job mining, public safety, conservation, and other govemmenta1 

progms. Id 
The Tribe's Constitution extends the TribaI Community Council's authority to all 

'kommunity Iands," including its trust lands: 

The Lower Elwha Community Council shall have the foIIowing powers.. . 

(b) to encumber, lease, permit, sell, assign, manage or provide for the 

management of community lands, interests in such lands or other 

community assets; to purchase or othenvise acquire Eands or interests in 

lands within or without the reservation; and to regulate the use and 

disposition of community property of all kinds, subject to the approval of 

the Secretary of the Interior or his authorized representative. 

Constitution mad Bylaws of the Lower EIwka Trihal Cornrnrcni~, Art. 4 8 (I)@). 

In the exercise of that authority, the Tribal Community Council, through the 

Elwha Klallam Business Committee, passed Resolution 21 -04 and chose the 

HaIberg Addition as the preferred location for a fish hatchery. Hatche~y Site 

Alternatives Investigation and Preferred Alternative Approval, Resolution 2 7 -04. 

Based on the foregoing, the Tribe exercises governmenta1 authority over 

the Halberg Addition, it has jurisdiction to exercise that authority, and the land is 

heId in trust for the Tribe by the United Slates. Accordingly, the Halberg Addition 

is lnaian Iand within the meaning of IGU. 25 U.S.C. 8 2703(4)(B). 

Section 20 Prohibition 

The determination of whether the Halberg Addition is Indian lands, however, is 

not the end of the inquiry, The United States took the Halberg Addition into trust in 

October 2001, and, as such, the land may fall into IGRhYs general prohibition against 

gaming on trust land acquired after October 1 7, 1988.25 U.S.C. $271 91a). Section 2719 

states: 

...g aming regulated by this chapter shall not be conducted on lands 

acquired by the Secretary in trust for the benefit of an Indian tribe after 

October 17, 1988, unless- 

(1) such lands are located within or contiguous to the boundaries of the 

reservation of the Indian tribe on October E 7, 1988. 

25 U.S.C. 2719Ca) and (a)(l). It is my opinion that the prohibition does not apply, 

however, because the land is located contiguous to the boundaries of the Tribe's 

reservation as it existed on October 1 7,1988.25 U.S.C. Fj 27 19(a)( 1). 

Contiguous is defined as: "In close proximity; neighboring; adjoining; near in 

succession; in actual close contact; touching at a point or along a boundary; bounded or 

traversed by." Black's Law Dictionary 320 (6'h ed. 1990). The Department of the Interior 

has also adopted a simiIar definition for purposes of acquiring land into trust. Although 
not effective yet, the Dqartmcnt recently published regulations pertaining to 2719 

define contiguous as, "two parcels of land having a common boundary notwithstanding 

the existence of non-navigable waters or a public road or right-of-way and includes 

parcels that touch at a pint.'' 73 F.R. 29354,233Tf;. The Ila!herg Addition shares se~e~l 

common boundaries with the Tribe's original reservation, established in 1968, and is, 

therefore, contiguous to it. 

In 1936 and 1 937, the United States Govenunent acquired 372 acres for the Tribe 

and, in 1968, used the land to estabiish a reservation for the Tribe. Tne Haibcrg Addition: 

[gs located adjacent to the Lower Elwha Klallam Reservation on the 

southeastern boundary of the Reservation. The subject surrounds an 

existing 15 acre portion of Ithe reservation purchased by the U.S. 

Government in 1936 and 1937 and established as the Lower Elwha 

Reservation in 1968. 

PJzase I Enviro~tme~~ml Site Assessment, Lower EIwha Klallarn TI-ihe-Halherg Addition, 

8 3.1, November 8, 1999. Maps submitted by the Tribe further demonstrate that Walberg 

Addition borders the southern boundary of the original reservation and also surrounds a 

15-acre parcel of land located 900 feet away from the main body of, yet stiIE part of, the 

original reservation. Lower EZwha KlalIam GIS DepaPtme~lt Map, prepared by Randall E. 

McCoy, 3JI 3/08. ConsequentIy, the HaIberg Addition is contiguous to the Tribe's 

Reservation and the $27 19 prohibition does not apply. 

Conclusion 

Based on our review of the submitted ordinance and tribal land infomation, the 

Halberg Addition is Indian land within the meaning of IGRA. Because the Halberg 

Addition is contiguous to the Tribe's original reservation, the general prohibition against 

gaming on land acquired after October 17, 1988, does not apply. As the Ordinance 

othenvise is consistent with the requirements of IGRA and NI6C regulations, it is 

tting the Lower Elwha Klallam Tribe Amended Gaming 

ur review and approval. The NIGC staff and I look 

d the Tribe on future gaming issues,