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MEMORANDUM FOR THE CHAIRWOMAN 

December 21, 2010 

From: Michael Gross, Associate General Counsel, General Law 

cc: Paxton Myers, Chief of Staff 

 Dawn Houle, Deputy Chief of Staff 

 Lael Echo-Hawk, Counselor to the Chairwoman 

 Jo-Ann Shyloski, Associate General Counsel, Litigation and Enforcement 

Re: Bay Mills Indian Community Vanderbilt Casino, NIGC Jurisdiction 

INTRODUCTION 

 On Wednesday, November 3, the Bay Mills Indian Community opened an offreservation gaming facility in Vanderbilt, Michigan. The considered opinion of the 

Department of the Interior Solicitor is that the land is not within a reservation, not held 

in trust, and not held in restricted fee. Accordingly, the Community’s new casino is not 

on Indian lands within the meaning of the Indian Gaming Regulatory Act (IGRA), 25 

U.S.C. §§ 2701- 2721, and the National Indian Gaming Commission lacks jurisdiction 

over it. We are obligated, therefore, to refer the matter to the appropriate law 

enforcement agencies. 

BACKGROUND 

 The Vanderbilt casino sits upon land described as:

A parcel of land lying on part of the Northwest 1⁄4 of Section 22, Township 

32 North Range 3 West, according to the Certificate of Survey recorded in 

Liber 515, pages 93 and 94, Otsego County Records, Corwith Township, 

Otsego County, Michigan, described as: Beginning at the Northwest 

corner of said Section 22; thence South 88o15’18” East, 1321.66 feet along 

the North line of said Section 22; thence 1099.04 feet along a curve to the 

left, said curve having a radius of 5844.58 feet and a long chord of 1097.42 

feet bearing South 21o33’41” West and being along the Westerly right-ofway line of Limited Access I-75; thence continuing South 22o56’39” West 
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440.43 feet along said right-of-way line; thence continuing South 

45o47’56” West, 460.00 feet along said right-of-way line; thence North 

89o30’40” West 209.68 feet; thence 537.75 feet long curve to the right, 

said curve having a radius of 1432.69 feet and a long chord of 534.60 feet 

bearing North 14o48’58” West, being along the center-line of Highway 

Old 27; thence North 00o05’27” West, 1611.53 feet along the West line of 

said Section 22 to the point of beginning, containing 47.55 acres more or 

less. 

The Community purchased the land using money from the land trust established by the 

Michigan Indian Land Claims Settlement Act of 1997 (MILCSA), P.L. 105-143, 111 

Stat. 2652 (Dec. 15, 1997). MILCSA states that “any land acquired with funds from the 

Land Trust shall be held as Indian lands are held.” Id. at § 107(a)(3). 

DISCUSSION 

 IGRA defines Indian lands as: 

(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. § 2703(4). NIGC’s implementing regulations clarify: 

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. As the Vanderbilt land is neither reservation land nor trust land, it 

could only be Indian lands under IGRA if it were held in restricted fee. We have 

enquired of the Solicitor’s Office whether the language in MILCSA that this land is to 

be “held as Indian lands are held” has the effect of making the land Indian land within 

the meaning of IGRA, and the answer we have received is “no.” See letter from Hilary 

Tompkins, Solicitor, Department of the Interior to Michael Gross, Associate General 

Counsel, NIGC (December 21, 2010). As the Department of the Interior exercises broad 

authority over Indian affairs, 25 U.S.C. §§ 2, 9, and has various obligations to the tribes 

under MILCSA, see e.g. §§ 104-106, the statute is the Department’s to interpret, and I 
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defer to the Solicitor’s opinion. The land is not Indian land within the meaning of 

IGRA, and as a consequence, NIGC lacks jurisdiction over the Vanderbilt casino. 

 IGRA, by its terms, applies only to gaming on Indian lands. See, e.g., 25 U.S.C. 

§ 2710(a)(2) (“any class II 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. § 2710(b)(1) (requiring approved tribal gaming ordinance for the conduct of 

Class II gaming on Indian lands); id. (requiring tribal licensure of each gaming facility on 

Indian lands); 25 U.S.C. § 2710(b)(4)(A) (permitting licensure of individually owned 

gaming on Indian lands); 25 U.S.C. § 2710(d)(1) (requiring approved tribal gaming 

ordinance for the conduct of Class III gaming on Indian lands); 25 U.S.C. 

§ 2710(d)(3)(A) (requiring a tribal-state compact for Class III gaming on Indian lands); 

Sen. Rep. 100-446 at p. A-1. (IGRA “is the outgrowth of several years of discussions and 

negotiations between gaming tribes, States, the gaming industry, the administration, and 

the Congress, in an attempt to formulate a system for regulating gaming on Indian 

lands”). 

 Likewise, the powers IGRA grants the Commission and the Chairwoman extend 

only as far as Indian lands extend. See, e.g., 25 U.S.C. § 2705(a)(3) (power to approve 

tribal gaming ordinances for gaming on Indian land); 25 U.S.C. § 2705(a)(4) (power to 

approve management contracts for gaming on Indian lands); 25 U.S.C. § 2713 

(enforcement power for violations of IGRA, NIGC regulations, or tribal gaming 

ordinances); 25 U.S.C. § 2706(b)(1), (2), (4) (powers to monitor gaming, inspect 

premises, and demand access to records for Class II gaming on Indian lands); 

25 U.S.C. § 2702(3)(“The purpose of this Act is ... to declare that the establishment of 

independent Federal regulatory authority for gaming on Indian lands, the establishment 

of Federal standards for gaming on Indian lands, and the establishment of a National 

Indian Gaming Commission are necessary to meet congressional concerns regarding 

gaming...”). 

 In short, in the absence of Indian lands, IGRA grants neither the Commission nor 

the Chairwoman any jurisdiction to exercise regulatory authority over the Vanderbilt 

casino. Further, when the Commission obtains information that may indicate a violation 

of federal, state, or tribal statutes, it is obligated to turn that information over to the 

appropriate law enforcement officials. 25 U.S.C. § 2716(b). 

 If you have any further questions, please do not hesitate to ask.