Hans Walker, Jr. 

Hobbs, Straus, Dean & Walker 

1819 H Street, NW, Suite 800 

Washington, DC 20006 

Dear Mr. Walker: 

This responds to the May 14, 1997, appeal of the decision of Associate Commissioner 

Foley's disapproving the Native Village of Barrow Gaming Ordinance No. 01-96. Then 

Acting Chairman Ada Deer delegated responsibility for ordinance approval or disapproval to 

Commissioner Foley. We conclude that the Native Village of Barrow (Village7 does not 

have Indian lands on which it can conduct tribal gaming. Therefore, the Village's appeal is 

denied. We rely on the analysis contained within the February 1, 1996, Commission 

decision, which denied the Village's appeal of the disapproval of previously submitted tribal 

gaming ordinance No. 95-01. A copy of that decision is enclosed. 

With this latest appeal, Appellant relitigates an issue which the commission has 

decided against Appellant on two prior occasions. Appellant provides neither new facts nor 

new evidence to support its position. Rather, appellant argues that the holding in Alaska v. 

Native Village of Venetie Tribal Government, 101 F.3d 1286 (9th Cir. 1996), cert. granted, 

117 S.Ct. 2478 (1997) is controlling. However, the Venetie decision is on appeal to the 

United States Supreme Court, and the Ninth Circuit has stayed its ruling pending final 

disposition. (No. 96-35042, Order dated January 23, 1997). 

The question of whether the allotment upon which the Village wishes to conduct 

gaming is Indian lands was decided ht by the Chairman of the Commission on April 11, 

1995, and again by the full Commission on February 1, 1996. On April 1 1, 1995, the 

Chairman disapproved the Village's gaming ordinance based on an April 10, 1995, 

determination by the Acting Associate Solicitor, Department of Interior, that the Village had 

failed to show that the Village exercises governmental power over the allotment, as required 

by 25 CFR 8 502.12. The Commission defers to the Department of Interior on the question 

of the existence of Indian lands. The Village then submitted a new ordinance, together with 

documentation alleging to show that the Village did exert governmental authority over the 

allotment. The Chairman disapproved the ordinance, again relying on the Associate 

Solicjtor's April 10 memorandum. The Village appealed this decision to the full 

Commission, alleging that the Chairman failed to consider the new evidence. The full 

Commission considered the new evidence, and on February 1, 1996, denied the appeal, again 

finding 'that the Village had failed to show that it exerted governmental authority over the 

allotment. This decision was based upon a thorough review of the evidence submitted. The 

Department of Interior declined to provide the Commission with any further assistance on the 

1441 L STREET, N.W. 9TH FLOOR WASHINGTON, D.C. 20006 TEL: 202-632-7003 FAX 202-632-7066 
question of Indian lands held by the Village. 

On November 20, 1996, the Ninth Circuit Court of Appeals decided, in the Venetie 

case, that the land the Village of Venetie occupies is Indian country. Appellant argues that 

the Venetie decision controls portions of this appeal, notwithstanding the fact that the United 

States Supreme Court has granted certiorari in the Venetie case. However, the relevance of 

the Venetie decision to appellant's argument is unclear. Moreover, the Ninth Circuit 

stayed its mandate in the Venetie case pending final disposition by the United States Supreme 

Court. 

Finally, appellant argues that the ordinance must be deemed approved because it has 

not been disapproved by the Chairman; rather it was disapproved by Associate Commissioner 

Foley. Appellant argues that the power to disapprove an ordinance is reserved exclusively 

for the Chairman of the NIGC, and that the Chairman is defined as the Chairman of the 

NIGC "or his or her designee." 25 C.F.R. 5 502.1. Appellant recognizes the authority of 

the Chairman to delegate responsibility as provided for in 25 C.F.R. 5 502.1, but states that 

Appellant is unaware of any separate action whereby Associate omm missioner Foley became 

the designee of the Chairman. Such separate action was taken. By internd office 

Memorandum dated March 6, 1997, a copy of which is enclosed, Acting Chairman Ada Deer 

delegated several of her responsibilities to other members of the Commission. She did so 

delegate. Acting Chairman Deer 

approve or disapprove tribal gaming ordinances. 

ordinance was approved based on 

disapprove it. 

For the foregoing reasons, the 

Tom Foley , Commission . Ho n, Commissioner 

Enclosures