Bradley G. Bledsoe Downes, Esq. 

Dorsey & Whitney LLP 

38 Technology Drive 

Irvine, CA 926 1 8 

Dear Mr. Downes: 

On June 12, 2003, on behalf of the Karuk Tribe of California (Tribe or Karuk), 

you requested that the National Indian Gaming Commission (NIGC) issue an Indian 

lands determination pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 

$271 9. You submitted a discussion of the restored lands exception under section 271 9 as 

well as materials in support of the Tribe's claim that the exception applied. Additionally, 

on February 5,2004, you submitted supplemental information at the request of John Hay. 

The Office of General Counsel has evaluated the Tribe's submission and detennined that 

the land in question would not fall within the "restored lands" exception to section 2719's 

prohibition against gaming on trust land acquired after October 17, 1988. 

Background 

The Tribe provided historical background on the Tribe as well as information on 

the tribe's land acquisitions. The Karuk have 3,222 enrolled members, approximately 

one-third of whom reside in Siskiyou County. At issue is an approximately 200 acre 

parcel of land ("Yreka Property") located in the city of Yreka, Siskiyou County, 

California. 

The Karuk began efforts in 1978 to receive Federal recognition. In November 

1978, the Bureau of Indian Affairs Central Office (BIA) staff conducted a fiel&np to 

Northern California. The BIA determined that the aboriginal 

consisted of three communities located in Happy Camp, Orleans, 

See 13 IB3A 76, 78; 1985 WL 69127 (I.B.I.A.). The ~ssist&t Secretary for Indian 

Affairs, in a meprandum entitled ""Revitalization of the Govenunent-to-Government 

Relationship Between the Karok (sic) Tribe of California and the Federal Government," 

notified the local offices of the Bureau of Indian Affairs on January 15, 1979, that: . 

Based on the findings collected . . ., the continued existence of the Karoks 

as a federally recognized tribe of Indians has been substantiated. In light 

of this finding, I am directing that the government-to-government 

relationship, with attendant Bureau services within available resources, be 

re-established. 

NATIONAL HEADQUARTERS 1441 L St. NW, Suite 9100, Washington. DC 20005 Tel: 202.632.7003 Fax: 202.632.7066 WWW.NICC.GOV 

REGIONAL OFFICES Portland. OR; Sacramento. CA; Phoenix, AZ; St. Paul. MN; Tulsa, OK 
67 Fed. Reg. 46328-46333 (2002). 

The Tribe acquired land in trust in 1979 via Gift Deed from the State of California 

to the United States for land located in Happy Camp, California. The Tribe also acquired 

several parcels of land in trust in Happy Camp, California in 1987. Additionally, the 

Tribe acquired a parcel of land located in Yreka, Siskiyou County ("1989 Trust Land"), 

that was then accepted in trust by the United States for the benefit of the Tribe on April 

26, 1989. In addition to the properties detailed above, the Tribe, throughout the 19907s, 

acquired numerous other parcels of land in both Siskiyou and Hurnboldt Counties, that 

are now held in trust. In 1997 the Tribe acquired additional land ("Yreka Property") 

contiguous to the Tribe's 1989 Trust Land. The Department of the Interior accepted the 

Yreka Property in trust in March 2001. It is this property on which the Tribe now wishes 

to conduct gaming. Because this parcel was taken into trust after October 17, 1988, for 

gaming to be legal under IGRA, it must fall within one of IGRA7s exceptions to the 

prohibition on gaming on lands acquired into trust afier October 17, 1988. 

The Tribe submitted the following in support of its claim that the parcel in 

question was restored: Request for Indian Lands Determination, Dated June 12, 2003; 

1989 Trust Land Legal Description; Yreka Property Legal Description(s); Parcel Map; 

Treaty R (unratified); Schedule of Indian Land Cessions; California Map; Revitalization 

Memorandum; Karuk Tribal Constitution & Bylaws; Notice of Proposed Decision - 

November 2000; Near Reservation Designation; Karuk Tribal Housing Authority 

Ordinance; Cooperative Agreement; Karuk Tribal Sales Tax Ordinance; Karuk Tribal 

Prevailing Wage Ordinance; Karuk TERO; Karuk Tribal Election Ordinance; 1987 Tribal 

Resolution; table listing all tribal property; Gift Deed dated August 22, 1979; Grant Deed 

dated March 6, 1987; maps for Holmes, Borg & Bowers parcels; map for Tebbe parcel; 

map titled 07Hair annexation; aerial photograph of Karuk land in Yreka; Deed Dated 

March 24, 1999; Deed Dated May 6, 1999; and a Deed Dated May 6, 1999 for assessors 

parcel number 062- 1 5 1-490. 

Lands Acauired in Trust bv the Secretan After October 17, 1988 

Under Section 2719(a) of IGRA, gaming is prohibited on lands acquired by the 

Secretary of the Interior into trust for the benefit of an Indian tribe after October 17, 

1988, unless the land falls within certain exceptions listed in 25 U.S.C. 2719(b). 

Accordingly, we must review the exceptions to determine whether a tribe can conduct 

gaming on after-acquired trust lands. 

The Tribe contends that the proposed site meets the requirements of the exception 

set forth at 25 U.S.C. § 2719(b)(l)(B)(iii) - "restoration of lands for an Indian tribe that is 

restored to Federal recognition" - and therefore is outside the proscriptions on afteracquired land. To determine whether the Tribe meets the restoration exception we must 

determine, first, whether the Tribe is a "restored" tribe and, second, whether the land was 

taken into trust as part of a "restoration" of lands to the Tribe. 
"Restored" Tribe 

The key terms, "restored" and "restoration" are not defined in the text of IGRA. 

Nor are they defined in the various federal regulations issued by the NIGC and the 

Department of the Interior to implement IGRA. 

The U.S. District Court for the Western District of Michigan addressed the 

definition of L'restored'7 and LLrestoration" in Grand Traverse Band of Ottawa and 

Chippewa Indians v. United States Attorney, 198 F. Supp. 2d 920 (W.D. Mich. 2002); 

aff d, 369 F.3d 960 (6th Cir. 2004). At issue was whether the Grand Traverse Band was a 

restored tribe and whether the parcel on which gaming was conducted were restored 

lands. The Grand Traverse court held that both "restored" and "restoration" should be 

given their ordinary meaning ("In no sense has a proprietary use of 'restore' or 

'restoration' been shown to have occurred." Id. at 931). Applying the ordinary meaning 

of the words, the court concluded that the Band's history showed that the Band was in 

fact restored: 

In sum, the undisputed history of the Band's treaties with the United 

States and its prior relationship to the Secretary and the BIA demonstrates 

the Band was recognized and treatied with by the United States . . . Only 

in 1872 was the relationship administratively terminated by the BIA. This 

history - of recognition by Congress through treaties (and historical 

administration by the Secretary), subsequent withdrawal of recognition, 

and yet later re-acknowledgment by the Secretary - fits squarely within 

the dictionary definitions of "restore" and is reasonably construed as a 

process of restoration of tribal recognition. The plain language of 

subsection (b)(l)(B) therefore suggests that this Band is restored. 

Grand Traverse Band at 933. 

An examination of the Karuk history shows that it is similar to the pattern in the 

case of Grand Traverse Band. However, there does not seem to be any evidence that this 

relationship was ever administratively terminated as in the Grand Traverse case. The 

Karuk entered into a treaty with the United States in 1852. The United States dealt with 

the Tribe as a government entity in an effort to convince them to settle on the Hoopa 

Valley Reservation. Though these efforts failed, the United States continued to provide 

benefits to individual members of the Tribe but did not appear to have any fbrther 

dealings with the Tribe as an entity. Then, in 1979, by action of the Secretary, the 

government-to-govment relationship was "re-established" with the Tribe. 

Based on the fact that the Tribe negotiated treaties with the United States it can 

clearly be stated that there existed a government-to-government relationship at one time. 

However, the Tribe provided no evidence of any affirmative action by the United States 

to terminate the relationship with the tribe. In other words, we have no evidence 

supporting a conclusion that the United States withdrew its recognition of the Tribe. The 
information provided by the Tribe states only that while the United States provided 

benefits to individual tribal members that it had no dealings with the Tribe as a distinct 

entity. The Tribe has provided a memo dated January 15, 1979, from the Assistant 

Secretary for Indian Affairs to the Sacramento Area Director instructing that the 

government-to-government relationship be re-established and that the tribes name is to be 

added to the list of federally recognized tribes. The memo states: 

Based on the findings collected. . ., the continued existence of the 

Karoks (sic) as a federally recognized tribe of Indians has been 

substantiated. In light of this finding, I am directing that the govemmentto-government relationship, with attendant Bureau services within 

available resources, be re-established 

67 Fed. Reg. 46328-46333 (2002). 

However, no information has been provided to substantiate a claim that the 

United States terminated the relationship with the tribe. Therefore, without more, we are 

not prepared to find that the Tribe qualifies as "an Indian tribe that is restored to Federal 

recognition" under 25 U.S.C. $271 9(b)(l)(B)(iii). 

Restoration of Lands 

Even if we could conclude that the Tribe is "restored" within the meaning of 

IGRA, we could not conclude that the land at issue was "taken into trust as a part of. . . the restoration of lands for an Indian tribe that is restored to Federal recognition." 25 

U.S.C. $ 2719(b)(l)(B)(iii). 

Federal courts, the Department of the Interior, and NIGC have recently grappled 

with the concept of restoration of land. In so doing, they established several guideposts 

for a restoration-of-land analysis. First, "restored" and "restoration" must be given their 

plain, primary meanings. Grand Traverse Band II at 928(W.D. Mich 2002) aff'd, 369 

F.3d 960 (6" Cir. 2004); Confederated Tribes of Coos, Lower Umpqua & Siuslaw 

Indians v. Babbitt ("Coos '3 1 16 F. Supp2d 155, 161 (D.D.C. 2000). In addition, to be 

"restored," lands need not have been restored pursuant to Congressional action or as part 

of a tribe's 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 1'3 46 F. Supp.2d 689,699 (W.D. Mich. 1999); Coos at 164. 

The language of section 2719(b)(l)(B)(iii)-"restoration of lands for an Indian tribe that 

is restored to Federal recognition9'-"implies a process rather than a specific transaction, 

and most assuredly does not limit restoration to a single event." Grand Traverse Band 11 

at 936; Grand Traverse Band I at 701. 

Nonetheless, there are Iimits to what constitutes restored lands. As NIGC stated 

in the Grand Traverse Opinion, "[WJe 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." NIGC Grand Traverse Opinion, 
dated August 3 1,2001, at p. 15; see also Office of the Solicitor's Memorandum Re: 

Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt (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," p. 8). 

The courts in Coos and Grand Traverse Band I and XI 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 at 164; Grand Traverse 

Band I at 700; see also Grand Traverse Band 11 at *934-935 ("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") aff d, 369 F.3d 960 (6th Cir. 2004). 

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. 

In addition to the above referenced sources, we also consulted our restored lands 

opinions with regard to the Bear River Band of Rohnerville Rancheria, (See 

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, dated August 5,2003) (NIGC Rohnerville 

Opinion); the Mechoopda Indian Tribe of Chico Rancheria (See Memorandum fiom 

NIGC Acting General Counsel to NIGC Chairman, Re: Whether gaming may take place 

on lands taken into trust afier October 17,1988, by the Mechoopda Indian Tribe of the 

Chico Rancheria, dated March 14,2003) (NIGC Mechoopda Opinion); and the 

Wyandotte Tribe, (See Memorandum fkom NIGC Acting General Counsel to NIGC 

Chairman Hogen, Re: Legality of Gaming Under IGRA on the Shriner Tract owned by 

the Wyandotte Tribe, dated March 24,2004)(NIGC Wyandotte Opinion). 

In this case, these factors (factual circumstances, location and temporal 

relationship) and our review of agency and judicial precedent lead us to conclude that the 

Tribe's land acquisition is not a "restoration." 

1. Factual Circumstances of the Acquisition 

The Tribe acquired the Yreka parcel, approximately 200-acres in 1997. The Tribe 

conveyed the parcel to the United States in May 1999. The Department of Interior 

accepted the parcel in trust in March 2001. The Tribe's acquisition arose in the following 

context: 

Between 1985 and 1987 the Tribe acquired three parcels of land. In 1987 and 

1988, the Tribe applied for the three parcels to be acquired in trust by the United States 

for the benefit of the Tribe. Those three parcels are located in Happy Camp, California, 

along the Klamath River east of Happy Camp, and in Yreka, California. 
In 1987, the Tribe applied for and received hnding from the Department of 

Housing and Urban Development for the purchase of land ("1 989 Trust Land"). On May 

3, 1988, the Tribe conveyed the land to the United States to be held in trust. The parcel 

was accepted in trust in April 1989. 

The Yreka Parcel is contiguous to the 1989 Trust Land. Similarly, it was acquired 

through funding provided by the Department of Housing and Urban Development for the 

purpose of providing additional housing to Tribal members. 

"Restoration" denotes a taking back or being put in a former position. Coos at 

162. It might mean "reacquired." Id. ("The 'restoration of lands' could be construed to 

mean just that; the tribe would be placed back in its former position by reacquiring 

lands.") In any event, "restoration" does not mean, "acquired." We therefore must look 

further for indicia that the land acquisition in some way restores to the Tribe what it 

previously had. 

2. Location 

Restored lands may include off-reservation parcels; however, there must be 

indicia that the land has in some respects been recognized as having a significant relation 

to the Tribe. Grand Traverse Band I at 702. In Grand Traverse 11, the court held that the 

lands at issue were restored because they lay within counties that had previously been 

ceded by the tribe to the United States. Grand Traverse Band I1 at 936. This ruling was 

consistent with its opinion in Grand Traverse I, in which the court stated that the land's 

location "within a prior reservation . . . is significant evidence that the land may be 

considered in some sense restored." Id. In its Grand Traverse Opinion, NIGC further 

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." Grand Traverse Opinion at 15. The 

tribe's history includes the ceding of that site to the United States by the ancestors of the 

present tribe in an 1836 treaty. Id. at 9-10, 16. As a result, NIGC concluded that the 

Band had a '%istorical nexus" to the land. Id. at 17. 

A.L. Kroeber, a noted ethnologist, observed that there were at least three Karuk 

towns that were located at the mouths of Camp Creek, Salmon River, and Clear Creek. 

Kroeber, A.L., Handbook of the Indians of California, Smithsonian Institution, Bureau of 

American Ethnology, Bulletin 78, p. 99 (G.P.O. 1923). The Tribe used the tributaries of 

the Klamath River for hunting and gathering territories. Id. at 100. Kroeber observed: 

The land of the Karok is substantially defined by [an] array of villages 

along the Klarnath. There were few permanent settlements on any 

affluents. All of these were owned by the Karok, and more or less used as 

hunting and food gathering territories to their heads; so that technically 

their northern boundary followed the watershed bordering the Klarnath. 

The only exception was in the case of the largest tributary, the Salmon, 

about whose forks, a dozen miles up, were the Shastin Konomihu. The 
Karoks seem to have had rights along this stream about halfway up to the 

fork. 

Id. 

In a treatise published 13 years after his Handbook, Kroeber identified a 60 mile 

stretch of the Klamath running &om the Trinity River confluence east to at least a point 

east of what is now Happy Camp and opined that it is likely that the historic Karuk 

settlements were situated an additional 30 miles east on the Klamath, which includes that 

area where the Yreka parcel is located. Kroeber, A.L., Karok Towns, Univ. of California 

Publications in American Archaeology and Ethnology, Vol. 35, No. 4. pp. 29-38. 

The Karuk lands and property were destroyed upon the arrival of "a swarm of 

miners and packers" in 1850 and 185 1 : 

The usual friction, thefts, ambushing and slaughters followed in spots. 

The two sacred villages near the mouth of the Salmon, and no doubt 

others, were burned by the whites in 1852; and a third, Orleans, was made 

into a county seat. There were, however, no formal wars; in a few years 

the smaller richer placers were worked out; . . . and the Karok returned to 

what was left of their shattered existence. Permanent settlers never came 

to their lands in numbers; the Government established no reservation and 

left them to their own devices; and they yielded their old customs and their 

numbers much more slowly than the majority of California natives. 

Handbook at p. 98. 

Between March 19,185 1, and January 7,1852, agents for the United States 

entered into 18 treaties with the "Indians of California." See Thompson v. United States, 

122 Ct. C1.348 (Ct. CL. 1952). Lands constituting the Karuk Tribe's aboriginal tenitory 

were the subject of Treaty R, dated November 4,185 1. The Karuk and other Indians of 

California agreed to relinquish their claims to their aboriginal territory in exchange for 

reservations of land totaling an estimated 8,518,900 acres pursuant to the 18 unratified 

treaties. See Indians of California v. United States, 102 Ct.Cl. 837 (Ct.Cl. 1944). 

Unfortunately, this treaty does not specify which of the 8,s 18,900 acres belonged to the 

Karuk and which were attriiuted to the other Tribes signing the treaty 

The Tribe provided the Schedule of Indian Lands Cessions that records their 

reservation of land and cession of its claim to "all other temtory" under the unratified 

treaty. The record shows a cession of claims to tenitory noted as "306"and reserved 

lands as "305" on a map of California. Again, it is not clear from these records which of 

the area was specifically attributed to the Karuk. 

In its Notice of Proposed Decision to take the Yreka parcel into trust dated 

November 3,2000, BIA Regional Director Ronald Jaeger stated that, "Within the 

Karuk's ancestral territory and neighboring areas, many tribal trust parcels are located 
within the Siskiyou and Humboldt County boundaries. One tract is within the city limits 

of Yreka . . ." However, this proposed decision is not clear as to whether the parcel in 

question is ancestral territory or a neighboring area and is therefore not helpfbl to our 

analysis. 

In our Rhonerville opinion, we found that the Tribe has a longstanding historical 

and cultural connection to the parcel at issue. The parcel was located within one mile of 

two aboriginal villages and two major trails. It was located within three miles of five 

aboriginal villages. Also within three or four miles fi-om the parcel was the site of a 

mythic flood in a tribal story telling. Furthermore, the parcel was located 6 miles from 

the tribe's original Rancheria, which was purchased by the United States for the 

Rohnerville Indians in 1910. The Rhonerville Tribe was terminated in 1962, and the 

Rancheria was divided and distributed to individual Indians. At the time the Rancheria 

boundaries were re-established in 1983, there were still 6 acres in individual Indian 

ownership. We found that, based on this information, the area had historical and cultural 

significance to the Tribe. It was also important in our determination that tribal members 

resided on the original Rancheria at the time of termination. Rhonerville Opinion at 10. 

In contrast, we do not find that the Tribe has a sufficient historical nexus to the 

Yreka parcel to qualify it as restored land. The evidence provided by the Tribe that the 

parcel was once the location of aborginal settlements is scant and based largely on the 

speculation of an ethnologist who stated that it is "likely" that there existed tribal 

settlements in the parcel area. Additionally, the Tribe has not provided evidence that the 

parcel remained important to the tribe throughout history. 

3. Temporal Relationship of Acquisition to the Tribal Restoration 

Although the Kanrk were not located on a reservation, no attempt was made to 

purchase land to establish a reservation for the Karuk. The federal government had 

attempted to relocate the Karuk fkom the upper Klamath River region to the Hoopa 

Valley Reservation with no success. See Karuk Tribe v. United States, 41 Fed. C1.468 at 

469-470 (Ct. C1. 1998). The Karuk people refused to be relocated and retreated to the 

high ground away fiom the Klamath River. See Karuk Tribe of California v. United . 

States, 209 F.3d 1366,1379 (Fed. Cir. 2000). 

From the time that the Karuk as a group refused to move to the Hoopa Valley 

reservation to the filing of the litigation in Short v. United States, 202 Ct. C1.870 (Ct. C1. 

1973), the Karuk existence as a separate tribal entity was in limbo and largely entangled 

in the Hoopa - Yurok and Karok (sic) land disputes. 

The Karuk began efforts in 1978 to reestablish govemment-to-government ties. 

In November 1978, the Bureau of Indian Affairs Central Office staff conducted a field 

trip to Northern California The BIA determined that the aboriginal subentities of the 

tribe consisted of three communities located at Happy Camp, Orleans, and Siskiyou 

(Yreka). See 13 IBIA 76,78,1985 WL 69127 (I.B.I.A.). However, the BIA made no 
determination as to the significance of these communities throughout the history of the 

Tribe. 

If we were able to conclude that the Tribe was restored in 1979, we would look to 

the history of the Tribe's land acquisitions. The land at issue was acquired in 1997, and 

was taken into trust in 2001. According to the list of tribal property supplied by the tribe, 

the tribe had four parcels of land held in trust prior to 1988. Between 1989 and the 

present, it appears that the tribe has placed an additional seven parcels of land in trust. 

The tribe also holds numerous other lands in fee. The parcel at the heart of this 

determination was taken in to trust in 2001. 

At the heart of this inquiry is the question of whether the timing of the acquisition 

supports a conclusion that the land is restored. In its Office of the Solicitor's Coos 

Opinion, the Department of the Interior found that a fourteen-year lapse between a tribe's 

restoration and the acquisition of land into trust did not foreclose a finding that the land 

was restored. The Associate Solicitor reasoned that, "the mere passage of time should 

not be determinative" and that "the Tribes quickly acquired the land as soon as it was 

available and within a reasonable amount of time after being restored." Likewise, the 

NIGC in its Mechoopda Lands Opinion found that a nine-year lapse between restoration 

and acquisition was sufficient to establish a sufficient "temporal relationship." The 

NIGC placed significant weight on the fact that it was the tribe's first land acquisition 

after being restored. More recently, the NIGC in its Wyandotte Lands Opinion found that 

an 18 year passage of time was too long to be considered a restoration. 

We conclude that the facts surrounding the timing of the acquisition do not 

support a determination of "restored land." To the extent that we could conclude that the 

Tribe was restored, the land was still acquired eighteen years after the government-togovernment relationship was re-established. It was then another four years before the 

parcel was taken into trust. Assuming, that the 1979 re-establishment of govemment-togovernment relations is the only possible date for a tribal restoration, the twenty-two-year 

gap, coupled with the fact that the tribe acquired numerous other parcels of land in trust, 

during the interim, leads us to conclude that there is not a sufficient "temporal 

relationship" between any restoration and the lands acquisition. Perhaps if the Tribe met 

the other factors, we might be willing to push the outer limits of what has previously been 

considered an acceptable delay. However, that is not the case here. Furthermore, here, 

the Tribe acquired many parcels of land soon after its relationship with the federal 

government was re-established. We conclude that, if any land were to be considered 

restored, it would be the earlier intervening land. 

Conclusion 

A close examination of the documentation submitted shows that the Tribe does 

not have a sufficient "temporal relationship" nor is there a sufficient "'historical nexus" to 

fall within the restored lands exception to Section 2719. Further, while not dispositive, 

the materials submitted by the Tribe raise questions as to whether it was truly restored. 

The Tribe may not therefore lawfully conduct gaming on its proposed site. 
The Office of the Solicitor concurs with this opinion. If you have any questions, 

John Hay, Staff Attorney, is assigned to this matter. 

Sincerely, 

2 

Penny J. Coleman 

Acting General Counsel