MEMORANDUM 

TO: Philip N. Hogen, Chairman 

FROM: Penny J. Coleman, Acting General Counse 

DATE: July 3 1,2006 

RE: The St. Ignace Parcel Does Not Qualify As The Restoration Of Lands For 

An Indian Tribe Restored To Federal Recognition 

On July 3, 2003, the Sault Ste. Marie Tribe of Chippewa Indians (Tribe) notified the 

Bureau of Indian Affairs (BIA) of its intent to game on a parcel of land near St. Ignace, 

Michigan (St. Ignace parcel)' pursuant to the Indian Gaming Regulatory Act (IGRA), 25 

U.S.C. 5 2701 et seq. The National Indian Gaming Commission (NIGC) Office of 

General Counsel (OGC) requested clarification of the exceptions claimed to the general 

prohibition of gaming on lands acquired into trust after October 17, 1988, found in 25 

U.S.C. 5 2719. The Tribe asserted that the St. Ignace parcel meets two exceptions: that it 

is contiguous to a parcel that should be considered an informal reservation and that it 

qualifies as restored lands of a tribe restored to federal recognition. This opinion 

analyzes the applicability of the latter exception, 25 U.S.C. fj 2719(b)(l)(B)(iii), which 

allows gaming on land that constitutes the restoration of lands of a tribe restored to 

federal recognition. 

We conclude that the Sault Ste. Marie Tribe has failed to establish that the St. Ignace 

parcel qualifies as restored lands within the meaning of 25 U.S.C. $2719(b)(l)(B)(iii). 

I. Background 

Over ninety percent of the new Kewadin Shores Casino is situated on the St. Ignace 

parcel, with the remainder on a parcel acquired into trust in 1983.~ The St. Ignace parcel 

' Lot 2, Section 19, Town 41 North, Range 3 West, and the South !4 of the 

Southwest '/4 of said Section 19, Town 41 North, Range 3 West, lying Southerly 

of a line described as beginning at a point 650 feet Northerly along the centerline 

of Mackinac Trail and South line of Section 19; thence Northeasterly to the 

Southeast corner of the Northwest $4 of the Southwest '/4 of Section 19, Town 41 

North, Range 3 West, Michigan Meridian. Michigan. 

That portion of Section 19, Town 41 North, Range 3 West described as: All of 

the NW '/4 of the SW '/4 and all of the S '/2 of the SW '/4 Northerly of a line 

described as beginning 650 feet Northerly along the centerline of Highway 

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was taken into trust in 2000 and is therefore not eligible for gaming under the IGRA 

unless an exception to the general prohibition of gaming on after-acquired lands is met. 

Although the Tribe asserted that the 2000 parcel met two of the exceptions to the IGRA's 

general prohibition against gaming on land acquired after October 17, 1988, in order to 

expedite the opinion, we agreed that the NIGC would initially consider only the argument 

that the land is contiguous to the boundaries of the Tribe's reservation as of October 17, 

1988. Letter from M. Catherine Condon, Greene, Meyer & McElroy, to Andrea Lord, 

NIGC (Nov. 3,2004). Pursuant to a Memorandum of Agreement between the NIGC and 

the Department of the Interior (DOI), NIGC consulted with DO1 as to whether the Tribe's 

trust land adjacent to the St. Ignace parcel constituted a reservation. Memorandum of 

Agreement between the National Indian Gaming Commission and the Department of the 

Interior (recently amended May 31, 2006). The DO1 responded with a finding that the 

contiguous 1983 trust land does not constitute a reservation for purposes of the IGRA. 

Letter fiom Edith R. Blackwell, Acting Associate Solicitor, Division of Indian Affairs, 

Office of the Solicitor, DOI, to Philip N. Hogen, Chairman, NIGC (Feb. 14,2006). 

Having received a negative response to the first claimed exception, the Tribe submitted a 

restored lands analysis to the NIGC via letters dated March 27, June 30, and July 13, 

2006. Our opinion considers the applicability of the restored lands exception to the St. 

Ignace parcel. We find that parcel is not eligible for gaming under this exception. 

11. Applicable Provisions of IGRA and NIGC Regulations 

An Indian tribe may engage in gaming under IGRA only on "Indian lands" that are 

within such tribe's jurisdiction. 25 U.S.C. $5 2710(b)(l), 2710(d). 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. 4 2703(4). See also 25 C.F.R. 5 502.12 (NIGC's implementing regulation 

further defining Indian lands). 

Further, section 2719(a) of the IGRA provides that gaming shall not be conducted on 

lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 

1988, unless certain exceptions are met. For the purposes of this analysis, the exception 

laid out in 25 U.S.C. 5 2719(b)(l)(B)(iii) is relevant: a tribe may lawfully conduct 

"Mackinac Trail" fiom the intersection of said centerline with the South section 

line of Section 19, Town 41 North, Range 3 West; thence Northeasterly to the 

Southeast comer of the NW '/4 of the SW '/4 of said section. Except the highway 

right of way and easements of record. Containing 65 acres more or less. 
gaming under the IGRA if the lands are taken into trust as "the restoration of lands for an 

Indian tribe that is restored to federal recognition." 

111. Legal Analysis 

An Indian tribe may engage in gaming under IGRA only on "Indian lands" that are 

within such tribe's jurisdiction. 25 U.S.C. tj 2701; 25 U.S.C. $8 2710(b)(l) and 2710(d); 

25 U.S.C. 8 2703(4). Additionally, if the lands at issue are trust lands outside the tribe's 

reservation, the tribe may conduct gaming on it only if it exercises "governmental power" 

over the land. 25 U.S.C. 8 2703(4)(B); 25 C.F.R. tj 502.12(b). 

For purposes of this analysis, we assume that the Tribe has jurisdiction and exercises 

governmental powers over the St. Ignace parcel based upon the parcel's status as trust 

land and the Tribe's concrete manifestations of governmental authority in the form of 

operating a water supply and sewage facility on the land, construction of a casino on the 

land, and a Mutual Law Enforcement Assistance Agreement between the Sheriffs 

Department of Mackinac County, the City of St. Ignace Police Department and the Sault 

Ste. Marie Tribe signed September 24, 1996. Payment Aff. 7 22. It is not necessary to 

further delve into the matter because the St. Ignace parcel does not meet the restored 

lands of a restored tribe exception. 

A. The Tribe Qualifies as a Restored Tribe 

To be considered an "Indian tribe that is restored to Federal recognition," as that term is 

used in IGRA, the word "restored" must be given its plain, primary meaning. Grand 

Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the W. 

Dist. of Mich., 198 F. Supp. 2d 920, 928 (W.D. Mich. 2002) (Grand Traverse 11), afrd 

Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the 

W. Dist. of Mich., 369 F.3d 960, 967 (6th Cir. 2004) (Grand Traverse 111). A tribe must 

demonstrate a history of: 1) governmental recognition; 2) a period of non-recognition; 

and 3) reinstatement of recognition. See Grand Traverse 111, 369 F.3d at 967; 

Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt (Coos), 116 

F. Supp. 2d 155, 161 (D.D.C. 2000). In addition to court guidance, we also consulted the 

restored lands of a restored tribe opinions issued by the NIGC and the DOI. 

1. History of the Sault Ste. Marie Tribe's governmental relations with 

the United States 

The Sault Ste. Marie Band has been recognized as a successor to some of the Chippewa 

Tribes that treatied with the United States between 1785 and 1855. See Treaty with the 

Chippewa, June 16, 1820 (7 Stat. 206) (signed at Sault Ste. Marie); Treaty with the 

Ottawa and Chippewa Nations of Indians, March 28, 1836 (7 Stat. 491); Treaty with the 

Ottawa and Chippewa, July 3 1, 1855 (1 1 Stat. 62 1) (signed by chiefs and headmen of the 

Chippewa Indians living near Sault Ste. Marie, Michigan); Treaty with the Chippewa of 

Sault Ste. Marie, Aug. 2, 1855 (1 1 Stat. 631); United States v. State of Michigan, 471 F. 

Supp. 192, 264 (W.D. Mich. 1979) ("Members of the tribes which are parties to this 
action can trace their lineage to the Ottawa and Chippewa tribes which were beneficiaries 

of the Treaty of Ghent and whose leaders signed the Treaties of 1836 and 1855. . . . The 

Bay Mills Indian Community and the Sault Ste. Marie Tribe of Chippewa Indians are 

Indian tribes which are political successors in interest to the Indians who were signatory 

to the Treaty of March 28, 1836 (7 Stat. 491)."); 25 U.S.C. 5 1300k(2) ("Grand Traverse 

Band of Ottawa and Chippewa Indians, the Sault Ste. Marie Tribe of Chippewa Indians, 

and the Bay Mills Band of Chippewa Indians, whose members are also descendants of 

the signatories to the 1836 Treaty of Washington and 1855 Treaty of Detroit, have been 

recognized by the Federal Government as distinct Indian tribes."). 

The Sault Ste. Marie Tribe entered into two treaties with the United States in 1855. The 

first, of July 3 1, 1855, dissolved an artificial amalgam of Ottawa and Chippewa Indians 

created in a March 28, 1836, treaty for the sole purpose of easing the United States' 

negotiations for land. It was the understanding of both the Treaty Commissioners and the 

Tribal representatives that what was being dissolved was not the govemment-togovernment relations of the tribal and federal governments, but rather the artificial entity 

created in the 1836 treaty. The proceedings of the July 31, 1855, treaty at Detroit were 

transcribed. The Sault Ste. Marie representative, Wau-be-jeeg, stated "[alt the treaty of 

36, our fathers were in partnership with the Ottawas, but not [sic] the partnership is 

finished and we who come from the foot of Lake Superior wish to do our business for 

ourselves." Proceedings of a Council with the Chippeway & Ottawas of Michigan held 

at the City of Detroit by the Hon. George W. Manypenny & Henry C. Gilbert, 

Commissioners of the United States July 25, 1855. Wau-be-jeeg later added, "I told you 

when I first came that I wanted to be separated from the Ottawas and you have not 

answered me. We have sat here and heard you talk to the Ottawas - while you paid no 

attention to us." Id. To this Commissioner Manypenny responded, "The very case you 

suggested is met in the treaty. You are separated as you desire. This treaty you and the 

Ottawas must sign together because the old treaty of '36 was made in that way. But here 

we have followed your suggestion and provide that the money shall be paid to the 

different bands and that no general council shall be called." Id. 

The second 1855 treaty was signed just two days later on August 2"d, solely with the 

Sault Ste. Marie Tribe. The August 2 treaty surrendered the Tribe's fishing rights at the 

falls of St. Mary's and right to camp nearby in return for annuity payments and a half 

acre island in the St. Mary's river. 

Sault Ste. Marie Tribal members were made United States citizens and were allotted land 

pursuant to the July 31, 1855, treaty. Letter from E.J. Brooks, Special Agent, Department 

of the Interior, General Land Office, to E.A. Hayt, Commissioner of Indian Affairs at 1 

(Jan. 4, 1878). Mr. Brooks noted of the Michigan Indians that "[tlheir tribal organizations 

were also dissolved by the [July 31, 18551 treaty and since that date they have been 

considered and treated as citizens, have voted at the elections, have been held 

accountable to the laws, and have been subject to taxation." Id. at 4. 

In 1932, the Commissioner of Indian Affairs received a letter contending that the Sault 

Ste. Marie Tribe had not been dissolved via the July 3 1, 1855, treaty because the United 
States had entered into a subsequent treaty with the Tribe two days later on August 2. 

Letter from C.J. Rhoads, Commissioner, to Frank Bohn, House of Representatives (June 

22, 1932). In his response to that letter, Commissioner Rhoads found "[ilf therefore, the 

subsequent treaty of August 2, 1855, was a recognition of the tribal existence of this 

band, it was only for the purpose of negotiating a surrender of the fishing and 

encampment rights reserved by the treaty of July 3 1, 1855." Id. 

In 1935, the Commissioner of Indian Affairs was asked whether the Ottawa and 

Chippewa Tribes of Michigan might participate in the Indian Reorganization Act of 1934 

(IRA), 25 U.S.C. 55 461 et seq. (also known as the Wheeler-Howard Act). Letter from 

Jonas Shawanesse to John Collier, Commissioner of Indian Affairs (June 1, 1935). 

Commissioner Collier responded, "[ulpon the fulfillment of the treaty of July 31, 1855, 

Government wardship over the Indians with whom the treaty was made ceased and they 

became subject to the laws of the State in which they resided." Letter from John Collier, 

Commissioner, to Jonas Shawanesse (June 27, 1935). 

A DO1 memorandum on the status of the Nahma and Beaver Island Indians in Michigan, 

who may have been signatories of the July 3 1, 1855, treaty stated as follows: 

Article V of the [July 3 1 ,] 1855 treaty provides that the tribal organization 

of the Ottawa and Chippewa Indians 'is hereby dissolved' and that future 

negotiations in reference to any matters contained in the treaty should be 

canied on only with those Indians locally interested. This article has been 

consistently interpreted by the Interior Department, for as far back as the 

available files go, as providing for the dissolution of all tribal relations, 

including band relations, and the Interior Department has refused to 

recognize any of the Ottawa and Chippewa groups as bands. A sample of 

this attitude, which is repeated in innumerable instances of correspondence 

with Ottawa and Chippewa Indians, is the letter of February 15, 1917, to 

Mr. Eugene Hamlin concerning his credentials as a representative of 

Ottawa and Chippewa Indians near Harbor Springs, Michigan: 

'In answer you are advised that the Ottawa and Chippewa tribes of Indians 

many years ago became citizens of the United States and of the state in 

which they reside and are now not under the jurisdiction of the 

government. ' 

The most recent test of the attitude of the Interior Department on the band 

status of the Ottawa and Chippewa groups occurred with relation to the 

Sault Ste. Marie Bands of Chippewas. A thorough in-vestigation of the 

history of these bands was undertaken in an effort to prove their band 

status. It was found that a separate treaty was entered into with these bands 
subsequent to the July 3 1, 1855 treaty; that they were enrolled as separate 

bands in the money payment rolls of Ottawas and Chippewas from 1857 to 

1867; that they retained their formal band organization down to the 

present time and continuous correspondence had been carried on between 

their band representatives and the Indian Office. However, in spite of this 

evidence tending to show their actual band status the Interior Department 

refused to accord them legal recognition as a band, in view of the 

dissolution of the Ottawa and Chippewa Tribe under the 1855 treaty and 

the cessation of the exercise of guardian over these Indians for nearly half 

a century. 

If the Sault Ste. Marie Bands were not in a position to be recognized as a 

band by the Interior Department it is out of the question to establish any 

existing band status for the Nahrna and Beaver Island Indians in view of 

the paucity of any evidence on the subject and in view of the fact that 

there is no showing in any treaty that the Nahma Indians were even 

recognized originally as a band. 

Memorandum from Frederic L. Kirgis, Acting Solicitor, to the Commissioner of Indian 

Affairs (May 1, 1937). 

A delegation from the Sault Ste. Marie Tribe again approached DO1 seeking federal 

recognition and placement of land into trust in 1972. The Interior Department reviewed 

the Tribe's history and found: 

It was the consensus of the conference that the Sault Ste. Marie band of 

Chippewa Indians, exclusive of those who are members of the Bay Mills 

Indian Community, merit Federal recognition and that action should be 

taken to assist them to acquire the 40-acre tract, to secure the acceptance 

by the United States of trust title to it, and to perfect an organization under 

the provisions of the Indian Reorganization Act. 

Memorandum from Commissioner of Indian Affairs, to Area Director, Minneapolis (Sep. 

7, 1972). 

In addition to the September 7, 1972, memorandum from the Commissioner of Indian 

Affairs granting recognition to the Sault Ste. Marie Tribe, DO1 took land into trust for the 

Tribe on March 2, 1974, and declared it to be a reservation on December 13, 1974. 40 

Fed. Reg. 8367 (Feb. 20, 1975). On November 13, 1975, DO1 approved the Tribal 

constitution and by-laws adopted by the Tribe. The Tribe appears on the list of federally 

recognized tribes published annually by DOI. Indian Entities Recognized and Eligible to 

Receive Services From the United States Bureau of Indian Affairs, 70 Fed. Reg. 71 194 

(Nov. 25,2005). 

Further, the case Citv of Sault Ste. Marie, Michigan v. Andrus, 532 F. Supp. 157 (D.D.C. 

1980), tangentially examined the issue of whether the Tribe's government-to-government 
relationship with the United States ever ceased. The question before the Andrus court 

was whether the Tribe had been eligible to organize under the Indian Reorganization Act 

(IRA), 25 U.S.C. $4 461 et seq. of 1934, such that the Secretary could acquire trust land 

for the Tribe pursuant to that act. The Andrus court did not determine that the Tribe had 

ever been terminated, although it noted the existence of the 1937 and 1972 memos. The 

court found that the 1937 memo "indicates that the Chippewas should not be recognized 

for purposes of the IRA because the Chippewas were dissolved officially by a treaty of 

July 31, 1855, with the United States." 532 F. Supp. at 161. The United States filed a 

joint brief with the Tribe in the Andrus case; the brief argued that the Tribe had a 

continuous governmental existence, albeit not a federally recognized one in the period 

before the 1972 memo. Defendants7 Response to Plaintiffs Motion For Summary 

Judgment, And Memorandum In Support of Defendants' Motion for Partial Summary 

Judgment on the Grounds of Res Judicata and Collateral Estoppel 3,6-10 (Jan. 28, 1980). 

The language of the Andrus court ruling is vague, although it does appear to recognize 

that a period of non-recognition has existed: 

[Allthough the question of whether some groups qualified as Indian tribes 

for purposes of IRA benefits might have been unclear in 1934, that fact 

does not preclude the Secretary from subsequently determining that a 

given tribe deserved recognition in 1934. The 1972 Memorandum 

constitutes just such subsequent recognition. 

532 F. Supp. at 161. 

ii. Comparison of the Tribe's Situation with that of Other 

Opinions and Court Cases on the Restored Tribe Factor of the 

Restored Lands Exception 

It is clear from the treaties that the United States recognized the government of the Sault 

Ste. Marie Tribe as a political entity in 1855. The 1878 letter from Special Agent Brooks 

suggests that this occurred when the allotments had been handed out and the tribal 

members were treated as United States citizens subject to state jurisdiction in 1872. 

Regardless, it is clear from the record that by 191 7 the Department of the Interior did not 

consider Sault Ste. Marie a tribal entity with which it maintained government to 

government relation^.^ 

The Tribe's submissions allege that the United States provided benefits to individual Indians in the period 

fiom 1878 to 1972. Charles E. Cleland, The Administrative Termination and Restoration of the Sault Ste. 

Marie Tribe of Chippewa Indians 7 (June 28, 2006). However, the 1930's letters declining to let the Tribe 

organize under the IRA and the 1937 DO1 memo finding that the Interior Department continually refused to 

recognize the Tribe despite the latter 1855 treaty demonstrate that there was a significant period when the 

federal government did not have a government-to-government relationship with the Sault Ste. Marie Tribal 

government. A previous OGC opinion considered whether the Karuk tribe, whose government voluntarily 

cut off contact with the federal government for several decades, could be considered a restored tibe. Letter 

fiom Penny J. Coleman, NIGC Acting General Counsel, to Bradley G. Bledsoe Downes, Esq., 3 (Oct. 12, 
The Sault Ste. Marie Tribe's situation is similar, but distinguishable from that of the 

Grand Traverse Band of Chippewa Indians. The Grand Traverse Band was terminated by 

the Secretary of the Interior and was restored administratively pursuant to the Federal 

Acknowledgment Process (FAP) adopted by DO1 in 1979. Grand Traverse 11, 198 F. 

Supp. 2d at 929; 44 Fed. Reg. 7235 (Jan. 1, 1979). The Sault Ste. Marie Tribe was 

restored to federal recognition pursuant to administrative action by the Department of the 

Interior via the 1972 memo.4 

We find that the evidence submitted by the Tribe, as well as the court pleadings and 

ruling in City of Sault Ste. Marie, Michigan v. Andrus, 532 F. Supp. 157 (D.D.C. 1980), 

demonstrate that the United States unilaterally ended relations with the Tribe as a 

government from the 1870's until 1972.~ 

B. The St. Ignace Parcel Does Not Constitute Restored Lands of the Tribe 

The second half of a "restored lands" exception analysis is whether the parcel was taken 

into trust as a restoration of lands. 25 U.S.C. fj 2719(b)(l)(B)(iii); see also, Grand 

Traverse 11, 198 F. Supp. 2d 920 (W.D. Mich. 2002). We look to court decisions as well 

as NIGC and DO1 Indian lands opinions for guidance. 

Federal courts, NIGC, and DO1 have established several guideposts for a restoration of 

land analysis. First, "restored" and "restoration" must be given their plain, primary 

meanings. Id. at 928; Coos, 116 F. Supp. 2d at 161. In addition, to be "restored," lands 

need not have been restored pursuant to Congressional action or as part of a tribe's 

2004) (NIGC Karuk Opinion). Individual Karuk tribal members received federal services during that time 

due to their status as Indians. d. at 3. Although the Karuk case differs from the current situation because 

the government-to-government relationship was never severed by the United States, the opinion does 

recognize that it is possible for individual Indians to receive benefits based upon that status whether or not 

the United States has relations with the governing tribal entity. 

We note as a matter of irony that the Tribe brought suit against the United States in order to block the 

taking of land into trust for the Little Traverse Bay Bands' (LTBB) casino project, arguing that the only 

way to qualify as a restored tribe for purposes of 25 U.S.C. § 2719 was for the tribe to have been 

terminated by Congressional action. Sault Ste. Marie Tribe Of Lake Superior Chivvewa Indians v. United 

States, 78 F. Supp. 2d 699 (1999), rev'd on other grounds (standing). With the exception of restoration via 

a Congressional act, the LTBB history is markedly similar to that of the Sault Ste. Marie. The LTBB took 

part in the 1836 Treaty of Washington and the 1855 Treaty of Detroit as well, were denied the right to 

organize under the IRA, maintained a continuous tribal government, and its leaders had continuous 

dealings with the federal government. Id. The LTBB was found to be restored by the court due to its 

history, and the Sault Ste. Marie Tribe qualifies as well in spite of its lack of Congressional termination. 

5 We note that, under the preliminary regulations proposed, but not yet adopted, by DO1 interpreting 25 

U.S.C. 9 2719, the Sault Ste. Marie Tribe would not qualify as a restored tribe. Draft section 292.7(3) 

requires that tribal restoration to federal recognition must have been via one of three methods: 

congressional legislation, administrative action through the Federal Acknowledgment Process of 25 C.F.R. 

g 83.8, or judicial determination or court approved stipulated entry of judgment entered into by the United 

States. The Sault Ste. Marie Tribe was administratively restored before the Federal Acknowledgment 

Process was implemented in 1979. The Tribe thus would not qualify as a restored tribe under the draft 

regulations. 
restoration to federal recognition. Grand Traverse Band of Ottawa and Chippewa Indians 

v. United States Attorney for the Western District of Michigan (Grand Traverse Band I), 

46 F. Supp. 2d 689, 699 (W.D. Mich. 1999), affd Grand Traverse 11; Coos, 116 F. Supp. 

2d at 164. 

Nonetheless, there are limits to what constitutes restored lands. As the NIGC stated in its 

opinion, requested by the court in Grand Traverse 11, "[Wle believe the phrase 

'restoration of lands' is a difficult hurdle and may not necessarily be extended, for 

example, to any lands that the tribe conceivably once occupied throughout its history." 

Letter from Kevin K. Washburn, National Indian Gaming Commission General Counsel, 

to Honorable Douglas W. Hillman, Senior United States District Judge, United States 

District Court (W.D. Michigan), Re: Whether the Turtle Creek Casino site [hleld in trust 

[flor the benefit of the Grand Traverse Band of Ottawa and Chippewa Indians is exempt 

from the [IGRA's] general prohibition of gaming on lands acquired after October 17, 

1988, 15 (Aug. 31, 2001) (NIGC Grand Traverse Opinion); see also Office of the 

Solicitor's Memorandum Re: Confederated Tribes of Coos, Lower Umpqua & Siuslaw 

Indians v. Babbitt 8 (Dec. 5, 2001) (Office of the Solicitor's Coos Opinion) ("It also 

seems clear that restored land does not mean any aboriginal land that the restored tribe 

ever occupied."). 

The courts in Coos and Grand Traverse I and Grand Traverse I1 noted that some 

limitations might be required on the term "restoration" to avoid a result that "any and all 

property acquired by restored tribes would be eligible for gaming." Coos, 116 F. Supp. 2d 

at 164; Grand Traverse I, 46 F. Supp.2d at 700; see also Grand Traverse 11, 198 F. Supp. 

2d at 935 ("Given the plain meaning of the language, the term 'restoration' may be read 

in numerous ways to place belatedly restored tribes in a comparable position to earlier 

recognized tribes while simultaneously limiting after-acquired property in some 

fashion"). All three courts proposed that land acquired after restoration be limited by 

"the factual circumstances of the acquisition, the location of the acquisition, or the 

temporal relationship of the acquisition to the tribal restoration." Id.; see also Letter to 

Bradley Bledsoe Downs, Dorsey and Whitney LLP, from Penny J. Coleman, Acting 

General Counsel 5 (Oct. 12,2004) (adopting the court's suggested three-factor analysis). 

The Associate Solicitor, Department of the Interior adopted a similar interpretation in his 

Coos Opinion on remand from the Coos court. "We believe [tlhat to apply [the] 

dictionary definition to the restored lands provision without temporal or geographic 

limitations would give restored tribes an unintended advantage over tribes who are bound 

to the limitations in IGRA that prohibit gaming on lands acquired after October 17, 1988. 

Moreover, we believe that, in examining the overall statutory scheme of IGRA, Congress 

intended some limitations on gaming on restored lands." Office of the Solicitor's Coos 

Opinion at 6. 

Upon review of these three factors, as set forth below, we conclude that the St. Ignace 

parcel would not be considered restoration of lands to a restored tribe under 25 U.S.C. 

4 27 19(b)(l)(B)(iii). 
i) Factual Circumstances of the Acquisition 

On balance, the factual circumstances of the acquisition do not weigh in the Tribe's 

favor. Congress added the exceptions in 25 U.S.C. $2719(b)(l)(B) to ensure that tribes 

lacking reservations or other trust lands when IGRA was enacted would not be 

disadvantaged relative to more established tribes. City of Roseville v. Norton, 348 F.3d 

1020, 1030 (D.C. Cir. 2003), cert. denied sub nom. Citizens for Safer Cmtys. v. Norton, 

124 S. Ct. 1888 (2004). 

The Sault Ste. Marie Tribe was restored to federal recognition in 1972. Since that time, 

the Tribe has had several parcels proclaimed to be the Tribe's reservation by the 

Secretary. In 1975, the Secretary proclaimed a 40 acre tract on Sugar Island as a 

reservation for the Tribe pursuant to the Indian Reorganization Act. 40 Fed. Reg. 8367-68 

(Feb. 27, 1975). An additional 84.8 acres of land were proclaimed to be a reservation in 

1984. 40 Fed. Reg. 940 (Jan. 6, 1984). Thus, the Tribe has 120.8 acres currently set aside 

as its reservation. 

In addition, the Tribe has many other acres of land acquired in trust by the United States 

for its benefit. There are currently approximately 1656 acres in trust for the Tribe 

according to a Bureau of Indian Affairs' Sault Ste. Marie Trust Land Log, all but 

approximately 564.38 acres of which were taken into trust before acquisition of the St. 

Ignace parcel in 2000. In total, the Tribe has approximately 1776.65 acres of trust and 

reservation land according to the Trust Land Log. The St. Ignace trust parcel is not 

contiguous to any of the Tribe's parcels that have been proclaimed to be reservation land 

by the Secretary. This record of trust acquisition indicates that the Tribe has had no 

difficulties acquiring reservation land or placing land into trust. The Tribe had acquired a 

substantial land base by the time the St. Ignace parcel was taken into trust. 

Several of our past restored lands opinions addressed the number of lands already in trust 

before the potential gaming site. The Cowlitz Indian Tribe had no land base whatsoever 

when it applied to have its proposed gaming parcel put into trust. Letter from Penny J. 

Coleman, Acting General Counsel, to John Barrett, Chairman, Cowlitz Indian Tribe, Re: 

Cowlitz Indian Tribe's Class I1 Gaming Ordinance 10 (Nov. 23, 2005) (NIGC Cowlitz 

Opinion). Similarly, the parcel examined for Bear River Band of the Rohnerville 

Rancheria was that tribe's first trust acquisition, and the parcel examined for the 

Mechoopda Indian Tribe of the Chico Rancheria was that tribe's second trust acquisition. 

Memorandum from NIGC Acting General Counsel to NIGC Chairman Deer, Re: 

Whether gaming may take place on lands taken into trust after October 17, 1988, by Bear 

River Band of Rohnerville Rancheria 10 (Aug. 5, 2003) (NIGC Rohnerville Opinion); 

Memorandum from NIGC Acting General Counsel to NIGC Chairman 8 (March 14, 

2003) (NIGC Mechoopda Opinion). The DO1 Coos Opinion noted that the subject site 

was a public domain allotment to the ancestor of a tribal member. DO1 Coos Opinion at 

14. On the other hand, the Karuk and Wyandotte opinions noted that many trust 

acquisitions had already been made for those tribes and that this weakened the restored 

land claim. NIGC Karuk Opinion at 9 (11 parcels in trust); In re: Wyandotte Nation 
Amended Gaming Ordinance, NIGC Final Decision and Order at 13 (Sept. 10, 2004) 

(NIGC Wyandotte Opinion) (3 parcels, totaling 194.3 acres). 

The factual circumstances analysis allows the NIGC to assess the land acquisition status 

of a tribe when the proposed gaming site was taken into trust. We find very informative 

the finding of the Grand Traverse I1 court that the site at issue for the Grand Traverse 

Band "was part of the very earliest attempts to build a reservation". Grand Traverse 11, 198 

F. Supp. 2d at 937. In the case of the Sault Ste. Marie Tribe, the many trust and reservation 

parcels acquired previous to the 2000 parcel indicate that the Tribe had already managed to 

acquire a significant land base. The factual circumstances here of extensive acreage in trust 

and reservation status for the Tribe do not support a conclusion that the 2000 parcel was 

part of the IGRA land restoration process. 

ii) Location of the Land 

The physical location of a trust acquisition is an important factor in determining whether 

the parcel constitutes restored lands. NIGC Grand Traverse Opinion at 17-18; NIGC 

Wyandotte Opinion at 10. In this context, we evaluate the Tribe's historical nexus to the 

land as well as its modem nexus to the land. Id. 

a. Historical Connections to the Land 

Several indicators of historical nexus have been developed through agency decisions and 

IGRA caselaw. These include whether the gaming site is within a former reservation of 

the tribe, whether the land is near to a tribal center or tribal programs, and how significant 

the land is to the tribe. Based upon a review of these criteria, we find that the Tribe has a 

historical nexus to the St. Ignace parcel. 

First, both the Grand Traverse I and Coos courts held that "[pllacement within a prior 

reservation is significant evidence that the land may be considered in some sense 

restored." Grand Traverse I, 46 F. Supp. 2d at 702; and Coos, 116 F. Supp. 2d at 

164 (quoting Grand Traverse I). The St. Ignace parcel was in an area ceded by the Tribe 

in the treaty of 1836,6 when the Tribe ceded the eastern half of the Upper Peninsula and 

its land in the Lower Peninsula of Michigan. Treaty of June 16, 1836. The City of St. 

The Indian Claims Commission found: 

With respect to claims under the treaties, history shows that while the treaties named the 

"Chippewa Nation of Indians" or "Chippewa Tribe of Indians" as parties, the treaties were in fact 

made with, and the payments to be made under them, were understood to be limited to only those 

of the numerous bands of Chippewas who were in the area where the lands dealt with in the 

treaties were situated. After the advent of Lewis Cass in 18 17 and Henry R. Schoolcraft in 1822, 

all responsible officials of the United States were careful in the dealings with the Chippewa 

Indians to summon to council the headmen of all bands known or believed to be in occupancy of 

the lands in question or otherwise interested in matters to be discussed, and not to summon other 

Indians. 

Bay Mills, 22 Ind. C1. Cornm. at 88-89 (Nov. 19, 1969) 
Ignace is located near the northeastern tip of the Upper Peninsula and was within the land 

ceded in the 1836 treaty. 

Second, the NIGC has taken into consideration the proximity of the land in question to 

the tribal center prior to termination. In our Rohnerville opinion, the parcel at issue was 

six miles from the Rohnerville tribe's original Rancheria, whose boundaries had been reestablished. NIGC Rohnerville Opinion at 2. Additionally, when the Rohnerville tribe 

was terminated in 1962, the Rancheria was divided and distributed to individual Indians; 

at the time the Rohnerville Rancheria boundaries were re-established in 1983, there were 

still six acres in individual Indian ownership. In our Mechoopda opinion, the parcel was 

located approximately ten miles from the Tribe's original Rancheria, which it occupied 

immediately prior to termination. NIGC Mechoopda Opinion at 1, 9. In our Grand 

Traverse Opinion, we noted that the Turtle Creek site was not on the fringes of the Grand 

Traverse Tribe's territory, but was part of a tightly circumscribed area that formed the 

core of the tribe's territory. NIGC Grand Traverse Opinion at 17. 

In this instance, the parcel is approximately 50 miles from the Tribal center in Sault Ste. 

Marie, Michigan. The entire Chippewa nation was located in the area around Lakes 

Huron and Superior when the first white explorers arrived in the seventeenth century. 

Bay Mills Indian Cmty., Sault Ste. Marie Bands v. United States, 22 Ind. C1. Cornm. 85, 

88 (Nov. 19, 1969).~ The Chippewa bands that make up the Sault Ste. Marie Tribe ceded 

the eastern Upper Peninsula and the eastern half of the Lower Peninsula in the 1836 

treaty, maintaining a reservation at Point-au-Barbe near the city of St. Ignace as well as 

reservations near the city of Sault Ste. Marie and on the Mackinac and Sugar Islands. 

The case United States v. Michigan found that the Tribal bands largely live and fish in 

their historical fishing areas. 471 F. Supp. at 225. The BIA has taken into trust lands in 

or near the cities of Sault. Ste. Marie, St. Ignace, Hessel, Manistique, Munising, and 

Escanaba for the benefit of tribal members living in these eastern Upper Peninsula areas. 

The cities of Escanaba, Munising, and Manistique are each over 100 miles from that of 

Sault Ste. Marie, past nearby St. Ignace. Moreover, the Tribe has historical connections to 

this large land base as determined by Professor Charles Cleland, an expert on the 

Chippewa Indians. Cleland Aff. 77 7-9; Charles E. Cleland, Ph.D., The Administrative 

Termination and Restoration of the Sault Ste. Marie Tribe of Chippewa Indians (June 28, 

2006). An important Tribal center was at the falls of St. Mary in what became the city of 

Sault Ste. Marie, approximately fifty miles from St. Ignace. The various Chippewa bands 

used to gather at the falls every year for the abundant fishing which constituted an 

integral part of the members' diet. Charles E. Cleland, The Place of the Pike 

(Gnoozhekaaning): A History of the Bay Mills Indian Community (2001). The Tribe's 

fishing and encampment rights at the city of Sault Ste. Marie's falls of St. Mary were 

preserved when the Tribe ceded territory in the 1820 and 1836 treaties, though ceded in 

the August 2, 1855 treaty. Considering the extent of the Sault Ste. Marie Tribe's 

historical territory, we find that the St. Ignace parcel is within the core of the Tribe's 

' The Indian Court of Claims found that the Bay Mills Indian Community was entitled to bring claims in a 

representative capacity on behalf of the Sault Ste. Marie Band of Chippewa Indians. Id. at 89-90; & 

Mills, 22 Ind. C1. Comm. at 83 (Nov. 19,1969). 
territory, which centers around the fishing site at the falls of St. Mary. We do not offer an 

opinion as to that of the Tribe's other trust parcels as they are not being considered here 

other than as examples of the breadth of the territory inhabited by the Tribe. 

Third, we have also looked at the significance of the land to the tribe. In Grand Traverse, 

we found that restoration was shown by the "Band's substantial evidence tending to 

establish that the ... site has been important to the tribe throughout its history and 

remained so immediately on resumption of federal recognition." NIGC Grand Traverse 

Opinion at 15. We further stated, "[alt the time of termination, Band members lived not 

far from the [parcel at issue]. For most of the Band's recorded history, it has lived and 

worked in [the general area of the parcel at issue]". Id. at 18. Finally, it was significant 

to the NIGC Grand Traverse Opinion that the land had "been at the heart of the Band's 

culture throughout history.. ." Id. at 19. In concluding that the parcel at issue was restored 

land, the Associate Solicitor stated that he considered that the tribes in the Coos opinion 

were "seeking to game on land which has been historically tied to the Tribes and has a 

close geographic proximity to the Tribes." Id. at 14. In Mechoopda, three buttes that 

figured prominently in a tribal myth were located one mile from the parcel; an historic 

trail linking several tribal villages crossed the parcel; and several Mechoopda villages 

were located in close proximity to the site. NIGC Mechoopda Opinion at 10-1 1. In 

Rohnerville, the parcel was located within one mile of two aboriginal villages and two 

major tribal trails and was within three miles of five aboriginal villages. NIGC 

Rohnerville Opinion at 11. Also, the site of a mythic flood in tribal lore was within three 

or four miles from the Rohnerville site. Id. We found that, based on this information, the 

area had historical and cultural significance to the Tribe. It was also important to our 

determination that tribal members resided on the original Rancheria at the time of 

termination. NIGC Rohnerville Opinion at 10. The NIGC Cowlitz Opinion, while 

finding that the historical nexus was not the strongest prong of that tribe's restored lands 

analysis, noted that the Cowlitz Tribe, throughout its history, used the Lewis River 

Property area for hunting, fishing, frequent trading expeditions, occasional warfare, and if 

not permanent settlement, then at least seasonal villages and temporary camps. NIGC 

Cowlitz Opinion at 1 1. 

In this case, the Sault Ste. Marie Tribe cites to the case of United States v. Michigan and 

has provided an affidavit and report by Dr. Charles E. Cleland, Ph.D. The Michigan 

court noted the locations of the bands who signed the 1836 treaty, although it was unsure 

which bands were from the Ottawa Tribe, which from the Chippewa, and which from 

both. 471 F. Supp. at 223. The bands at St. Ignace on Lake Huron were included in this 

list. Id. The court went on to note that both the Bay Mills and Sault Ste. Marie Tribes "are 

modem political successors in interest to the Indians who were party to the Treaty of 

1836." Id. at 264. As to the areas ceded by the Chippewa and Ottawa by treaty, the court 

found "[tlhe Indians were living on the shores of the Great Lakes throughout the [I8361 

treaty area adjacent to the productive fishing grounds . . . . This settlement pattern is 

shown in the Treaty of 1836 itself in the location of the reservations and of the chiefs 

listed in the schedule supplemental to Article Tenth."). The court also found that "Indian 

fishermen still live in the same areas and fish on the same fishing grounds as did their 

ancestors for centuries past." 471 F. Supp. at 225. 
Professor Cleland's affidavit and report shed further light on the extent of the Sault Ste. 

Marie Tribe's territory.' Professor Cleland concluded that the aboriginal Chippewa 

peoples, to which the Tribe is a successor, have occupied the coast of Lake Huron in the 

St. Ignace region since time immemorial and met French traders in the area in the 1650's. 

Cleland Aff. 7 7; Charles E. Cleland, The Place of the Pike; Rites of Conquest: The 

History and Culture of Michigan's Native Americans (1992). Professor Cleland states 

that the Sault Ste. Marie Tribe has never left the St. Ignace area, which is an important 

hunting, fishing, trapping, and gathering area for the Tribe. Id. Professor Cleland also 

submitted a report, in which he noted that the Sault Ste. Marie who signed the treaty of 

1836 were "composed of six bands that occupied the territory from Marquette on the 

south shore of Lake Superior east to the Sault." Charles E. Cleland, Ph.D., The 

Administrative Termination and Restoration of the Sault Ste. Marie Tribe of Chippewa 

Indians (June 28,2006). 

The St. Ignace parcel is within the tribe's last treaty reservation and thus would meet the 

test set forth in the DO1 preliminary regulations on the eligibility of land for gaming 

under the IGRA as proposed section 292.7(2)(ii)(A). The Tribe would additionally 

qualify for this factor under the alternative method, found at proposed section 

292.7(2)(B), of establishing a historical connection because it has significant documented 

historical connections to the area noted in court findings. 

b. Modern Connections to the Land 

We also examine the modern nexus of the tribe to the land at issue. Wyandotte Nation v. 

National Indian Gaming Comm'n, 2006 U.S. Dist. LEXIS 45905 at *61 (D. Kan. July 6, 

2006) (The court "agrees with the NIGC that in order to evaluate this issue fully, the 

agency must evaluate the present circumstances of the Tribe and its relationship with the 

land at issue."). 

The Tribe has modern-era and present connections to the land at issue. Modem 

connections to the land can be established through a variety of factors, such as a 

geographical nexus between the parcel and the seat of tribal government, the tribe's 

population center, tribal member service facilities, tribal businesses, tribal housing 

developments, or the tribe's service area as defined by federal agencies. NIGC 

Wyandotte Opinion at 10; NIGC Grand Traverse Opinion at 20-21. 

The St. Ignace site is indisputably within several miles of many tribal programs. On the 

1983 trust land contiguous to the St. Ignace parcel, there are fifty-nine Housing and 

Urban Development (HUD) homes for tribal members maintained by the Tribal housing 

authority; the Tribe's Lambert Center operates an outpatient medical clinic, family and 

substance abuse services, and a Head Start center; and the Tribe's Kewadin Shores 

Casino. Payment Aff. 7 22. In the town of St. Ignace the Tribe maintains a building 

housing a tribal youth facility and the tribal court. Id. The St. Ignace parcel itself 

contains a tribal water and sewage system for the fifty-nine tribal housing units on the 

8 His work is especially persuasive because he is one of the experts on whom the Michigan court relied. 

14 
1983 tract. Id. at 7 7. Additionally, the Tribe runs a convenience store and a gas station on 

a parcel contiguous to the 1983 tract. Id. at 722. Therefore, the Tribe has established a 

modem connection to the St. Ignace area and the adjacent 1983 trust parcel in particular. 

We note the preliminary regulations being considered by the DO1 on the eligibility of 

after-acquired trust lands for gaming purposes find a modem connection to the land if a 

majority of tribal members reside within 50 miles of the gaming site. 292.7(2)(i) of the 

draft regulations. The Sault Ste. Marie Tribe has over 30,000 members spread out over 

Michigan's Upper Peninsula, with tribal trust lands in or near the cities of Sault. Ste. 

Marie, St. Ignace, Hessel, Manistique, Munising, and Escanaba and tribal members living 

in these areas. Letter from Bruce R. Greene, Greene, Meyer, & McElroy, to Andrea Lord, 

Attorney, NIGC (July 13, 2006). Approximately 13,000 members live in the Upper 

Peninsula and 9,200 of those live within 50 miles of the city of St. Ignace. Id. The Tribe 

would not meet this requirement if the regulations are promulgated in their current form. 

iii) Temporal Relationship of the Acquisition to Tribal Restoration 

The final factor to be considered in the restored lands analysis is whether there is a 

reasonable temporal connection between the restoration of federal recognition and the 

trust acquisition of the land at issue. Grand Traverse 11, 198 F. Supp. 2d at 936 ("the land 

may be considered part of a restoration of lands on the basis of timing alone."); NIGC 

Mechoopda Opinion at 11 ("the heart of this inquiry is the question of whether the timing 

of the acquisition supports a conclusion that the land is restored"). 

The NIGC recognizes that, subsequent to the restoration of federal recognition, a tribe 

needs time to organize, hold elections, and approve a constitution or other governing 

document before focusing on land acquisition. Consistent with court guidance, we assess 

whether the site was "part of the first systematic effort to restore tribal lands." Grand 

Traverse 11, 198 F. Supp. 2d at 936. There are two issues inherent to this analysis: 1) the 

time the land was taken into trust after restoration of the Tribe and 2) how many other 

parcels were taken into trust or turned into a reservation for the Tribe after Tribal 

restoration, but before the parcel in question. 

The longest gap between tribal restoration and the acquisition of land into trust found to 

be a restoration of lands by the DO1 or the NIGC is 14 years. See Office of the Solicitor 

Coos Opinion. The Sault Ste. Marie Tribe asks us to double this restoration period to a 

significant gap of 28 years between tribal restoration, if such occurred, and acquisition of 

trust land, years in which this Tribe was actively building up its extensive land base. 

The Tribe makes much of the fact that draft regulations being considered by DO1 allow 

for a 25 year period between Tribal restoration and trust land acquisition on lands eligible 

for gaming under the IGRA. However, that 25 year period is to accommodate tribes who 

have had difficulty placing land into trust, a problem which has not plagued the Sault Ste. 

Marie Tribe, whose Trust Land Log indicates a continual process of trust acquisitions. In 

the case of the Grand Traverse Band, for example, years passed between tribal restoration 

and DO1 approval of the tribal constitution, and the Secretary of the DO1 would not take 

land into trust on behalf of the Grand Traverse Band until its constitution had been 
approved. Grand Traverse 11, F. Supp. 2d at 936. The situation with the Sault Ste. Marie 

Tribe, however, is not one of a tribe making its first trust acquisition or set of trust 

acquisitions. The Tribe had its first reservation parcel by 1975, and three reservation 

parcels by 1984 as well as an additional 184.21 acres in trust. These parcels were taken 

into trust 3 years and 9 years after Tribal restoration. By the time the St. Ignace parcel 

was placed into trust in 2000, the Tribe had acquired 50 parcels totaling nearly another 

1000 acres into trust. These trust parcels have given it significant acreage devoted to 

member housing, community services, and economic development that might better be 

determined part of the Tribe's first systematic effort to restore its land base. The 

reservation land and at least some of the other acreage acquired into trust by the Tribe in 

the years between 1972 and 1984 are more likely to be the Sault Ste. Marie Tribe's first 

systematic attempts to acquire a land base. 

Further, the IGRA was passed in 1988. Since that time newly restored tribes have been 

very conscious of how the IGRA's limitations on after-acquired land will impact their 

first acquisitions of trust or reservation land. See NIGC Cowlitz Opinion (petition for 

land to be taken into trust filed on the very day the Cowlitz tribe was restored to federal 

recognition). The Sault Ste. Marie Tribe certainly knew the importance of timing in 

selecting trust land for IGRA gaming after passage of the Act. Despite this, the Tribe 

waited 28 years between restoration of the Sault Ste. Marie Tribe in 1972, and placement 

of the St. Ignace parcel into trust in 2000. 

The Tribe asks us to leap from a 14 year gap to a 28 year one in extending the reasonable 

temporal period eligible for the restoration of lands for a restored tribe. We decline to do 

so because a 28 year period has elapsed in which the Tribe has had over a thousand acres 

placed into trust for it after restoration. At some point, we must establish a limit on the 

time available to acquire land as part of a Tribe's restoration. Certainly, under the 

circumstances described here, 28 years is simply too long an interval between restoration 

and the trust acquisition. The Tribe simply cannot claim under these circumstances that, 

28 years later, it was still acquiring its initial land base. 

IV. Conclusion 

The St. Ignace parcel does not meet the restored lands of a restored tribe exception, laid 

out in 25 U.S.C. 5 2719(b)(l)(B)(iii) to the IGRA's general prohibition of gaming on 

lands acquired into trust after October 17, 1988. The Sault Ste. Marie Tribe cannot meet 

the restoration of lands component because two prongs of the analysis, the factual 

circumstances and temporal connection of restoration with the acquisition of the parcel 

into trust, have not been met. Therefore, the St. Ignace parcel constitutes Indian lands not 

eligible for gaming. The Tribe may not game on this land. 

The Department of the Interior, Office of the Solicitor, concurs in this opinion.