United States Department of the Interior 

OFFICE OF THE SOLICITOR 

Washington, D.C. 20240 

1 IN REPLY REFER TO: 

Bruce R. Greene, Esq. 

Greene, Meyer & McElroy 

1007 Pearl Street, Suite 220 

Boulder, CO 80302 

Dear Mr. Greene: 

By letter dated October 2,2006, to the Associate Deputy Secretary James Cason, 

you request reconsideration of our conclusion that the property acquired in trust for the 

Sault Ste. Marie Tribe of Chippewa Indians in 1983 in St. Ignace, Michigan is not a 

reservation within the meaning of the Indian Gaming Regulatory Act (IGRA). In the 

alternative, you request that it be proclaimed a reservation, retroactive to April 1988. 

These requests are-prompted by the tribe's desire to game under an exception in IGRA on 

contiguous property acquired in trust in 2000, thus avoiding a tdvo part deterinination and 

the concurrence of the governor. I have discussed your requests with Mr. Cason and he 

has asked me to respond to you. 

I 

YO& letter of October 2, followed a meeting between you, tribal representatives 

and Department officials James Cason and ndchael Olsen. By letter dated November 9, 

2006, you expressed willingness to engage in Wher discussion while noting that you 

filed suit on,November 8,2006. Sault Ste. Marie Tribe of Chippewa Indians v. United 

States (W.D. Mi.,'Case No. 2:06-dV-276). This letter responds to this recent 

correspondence as well. 

The regulatory scheme in IGRA clearly defines the respective rights of tribes and 

states based on the status of land as of October 17, 1988. The IGRA also expressly 

differentiates trust land and reservation. We are not persuaded by the arguments in your 

October 2 letter that the 1983 land was reservation within the meaning of IGRA on 

October 17,1988, when IGRA passed, particularly since the tribe had a proclaimed 

reservation on that date and the 1983 parcel was taken into trust under the Indian 

Reorganization Act and not proclaimed a reservation. ' Therefore, we decline to modify 

our conclusion that the 1983 parcel is not reservation within the meaning of IGRA. 

You interpret our February 14,2006, letter as providing that all land within the 

meaning of 18 U.S.C. 9 1 15 1 (a) is also a reservation within the meaning of IGRA. This 

reading is incorrect. In our full discussion of 1 1 5 1 (a), we qualified 'our reference to 

5 1 15 l(a) with "a declared or proclaimed reservation." This qualifier was omitted in the 

I 

I ' This 1983 parcel is located 50 miles fiom the tribal center in Sault Ste. Maxie. 
other two references to 1 8 U.S.C. fj 1 15 1 (a) in our February 14 letter. Our references 

were intended to be to declared and proclaimed reservations, not 5 1 151(a) in general? 

Your letter of October 2 correctly points out that there are well-known cases that 

include unproclaimed or informal reservations as encompassed by fj 1 15 1 (a). These 

cases initially concerned state jurisdiction to tax where the Court expressly declined to 

distinguish tribal trust land fi-om reservation and had their genesis in Oklahoma where 

there are only former reservations. Oklahoma Tax Commission v. Sac and Fox Nation, 

508 U.S. 1 14,125 (1 993). Since IGRA itself has separate provisions for lands in 

Oklahoma, and distinguishes between tribal trust lands and reservation, these cases 

cannot be adopted wholesale as part of IGRA's definition of reservation. 

Your letter highlights the difficulty of relying on Indian country cases for 

purposes of the analysis under the IGRA. All thee parts of the definition of Indian 

country rely on the federal set aside and superintendence factors; whereas in IGRA, there 

is a clear distinction between trust land and reservation, both of which are set aside and 

under the superintendence of the federal government. Since Congress in IGRA did not 

define gaming locations in the context of Indian country, and'since IGRA maintains a 

distinction between trust land and reservation land, Indian country analysis cannot be 

adopted wholesale in interpreting IGRA. We do not equate Indian country reservation, 

defined for purposes of criminal and civil jurisdiction in 18 U.S.C. 8 1 151(a), with 

reservation within the meaning of IGRA.~ 

You request also that we proclaim the 1983 parcel to be reservation retroactive to 

pre-date IGRA. The Associate Deputy Secretary declines to do so. The IGRA is a snap 

shot of reservations and locations where gaming could occur when the act was passed - 

without meeting an exception. The exceptions are limited. The states had notice of the 

locations where gaming could occur without their approval when the bill passed. Future 

2 You note this fact on page 8 of your letter of March 14,2006. For clarity: page 5, second to last sentence 

in second 111 paragraph thus should read: "The IGRA definition also would include land granted 

reservation status through court order when the United States is a p& and, as discussed Mer below, 

land considered reservation within the meaning of 18 U.S.C. 5 1 15 1 (a), a declared or proclaimed 

reservation." 

Similarly, page 8, first sentence, last paragraph should read: 'We do not interpret reservation under the 

IGRA to automatically include land within 18 U.S. C. § 1151 (a), (b), and (c)." 

Fay, page 9, second sentence, second full paragraph should read: "As the IGRA maintains a distinction 

between reservation and trust land, we find that the plain meaning of reservation in 8 2703(4) of the IGRA, 

as connnonly understood by Congress when it drafted the statute, is land set aside by the federal 

government as the Tribe's permanent home, for'its occupation and communal residency, for its seat of 

government, and land included within the meaning of Indian country $ 1 15 l(a), a declared or proclaimed 

reservation." 

3 You cite an August 16,2096, memorandum fiom the Regional Director, Midwest Region, for support 

that the 1983 parcel is reservation within the meaning of IGRA. Only the Office of the Solicitor has 

authority to provide legal advice within the Department, 209 DM 3. Any interpretation of IGRA in that 

memorandum that conflicts with the February 14,2006, letter is without authority and not the position of 

the Department. 
lands in trust and future reservations, unless limited exceptions such as initial reservation 

apply, cannot be gamed on without the governor's concurrence. Meanwhile, none of the 

authority you cite compels the Department to issue a retroactive reservation 

proclamation. Given that the requested retroactive proclamation would have the effect of 

circumventing this statutory scheme, it is denied. 

Finally, you argue that a general trust responsibility and Indian canons of 

construction allow the Department to'interpret IGRA such that if a portion of the new 

casino is on tmst or reservation lands acquired prior to October 17,1988, gaming can 

occur in the whole facility..' The IGRA, however, is not ambiguous in this respect. It 

defines the location of permissible gaming in the context of lands, not on the location of a 

portion of a casino building. The IGRA cannot be interpreted in the manner you request. 

Sincerely, 

Associate Solicitor, Indian Affairs 

cc: 

Director, Midwest Region, Bureau of Indian Affairs 

Field Solicitor, Twin Cities 

Chairman, National 1ndian'~amin~ Commission 

4 In this case, over 90% of the casino is on the property acquired in 2000 and less than 10% of the casino is 

on the 1983 parcel.