United States Department of the Interior 

OFFICE OF THE SECRETARY 

Washington, D.C. 20240 

OCT 21 1399 

VIA FACSm'and U.S. MAIL, 

The Honorable Dick CIarkson 

Tnial Council Chainnan 

Codederated Tribes of Coos, Lower Umpqua and Suislaw Indians 

338 Wallace Avenue 

Coos Bay, Oregon 97420 

fax: (541) 888-5388 

Dear Mr. Clarkson: 

PuRuant to your request, I have reviewed whether the "Hatch Tract" is exempt fiom the general 

prohibition against gaming on land acquired into trust after October 17,1988, under the Indian 

Gaming Regulatory Act (IGRA), 25 U.S.C. $9 2701, et seq. The Hatch Tract was taken into trust 

on behalf of the Tribes in March of 1998. 

In accordance with the enclosed opinion issued by the Solicitor, I have concluded that the Hatch 

Tract does not qualifjr for an exemption under section 20 of IGRA from the general prohibition 

against gaming on lands acquired into trust after October 17,1988. The Solicitor opined that the 

acquisition of the Hatch Tract into trust was not part of "the restaration of lands for an Indian 

tribe that is restored to Federal recognition." The Solicitor also determined that the Tract was not 

"contiguous to the boundaries of the resemation of the Indian tribe on October 17,1988." 

I regret the decision could not be more favorable at this time. 

Sincerely, ** - 

Assistant Secretary - Indian Afbirs 

Enclosure 

cc: Dennis Whittlesey 

Jackson & Kelly 

240 1 Pennsylvania Avenue, NW 

Suite 400 

Wahington, DC 20037 

fax: (202) 973-0232 
United States Department of the Interior 

OFFICE OF THE SOLICITOR 

Washington, D.C. 20240 

IN REPLY REFER TO: 

Memorandum 

To: Assistant Secretary - Indiaq Affairs 

From: Soli"tMf4 

Subject: on the Hatch Yract in Lane County, Oregon, for the 

bes of Coos, Lower Umpqua and Siuslaw Indians 

This memorandum is in response to your inquiry regarding whether a parcel of land called the 

"Hatch Tract'' is exempt fiom the general prohibition against gaming on land acquired into trust 

after October 17, 1988, as set forth in the Indian Gaming Regulatory Act, 25 U.S.C. $5 2701 et. 

seq. ("IGRA"). The Hatch Tract was acquired in trust by the United States in March of 1998 for 

the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians. 

IGRA places a general prohibition against gaming on lands acquired in trust aRer October 17, 

1988. 25 U.S.C. § 2719(a). There are several exceptions to this general prohibition set forth in 

section 20 of IGRA, and your inquiry raises two of them. The first relevant exemption is for 

lands that are taken into trust as part of "the restoration of lands for an Indian tribe that is restored 

to Federal recognition." 25 U.S.C. 5 2719(b)(l)(B)(iii). The second relevant exception is for 

lands "contiguous to the boundaries of the reservation ... on October 17, 1988." Id. $271 9(a)(1). 

The Tribes' attorney submitted letters, memoranda, and documentation to the Office of the 

Solicitor - Division of Indian Affairs in support of the Tribes' position that the Hatch Tract 

qualifies for one or both of the exemptions. There were also several faceto-face and telephonic 

consultations. After careful consideration and thorough analysis, we conclude that the Hatch 

Tract does not fdl within either of these exceptions in section 20 of IGRA. Our analysis is set 

forth below. 

The Confederated Tribes were legislatively terminated by the Indians of Western Oregon 

Termination Act of 1954.25 U.S.C. $5 691 et seq. On October 17,1984, Congress legislatively 

restored the Tribes to federal recognition through the Coos, Lower Umpqua, and Siuslaw 

Restoration Act ("Restoration Act"). Pub. L. No. 98481,98 Stat 2250, codified at 25 U.S.C. $Q 

71 4 et seq. Section 7 of the Restoration Act states ''the Secretary shall accept the following lands 
in trust for the tribe as a reservation" and lists two parcels of land in Coos County, Oregon, and 

one parcel in Curry County, Oregon. 98 Stat. at 2253. The Hatch Tract is not one of the listed 

parcels. 

On October 14, 1998, Congress amended the Restoration Act through a technical corrections bill. 

Pub. L. No. 105-256. This bill added a parcel of land known as the Peterman Tract to section 7. 

- Id. 5 5. The Peterman Tract is a driveway which leads to an Indian cemetery. 

The Hatch Tract is a parcel of land contiguous to the Peterman Tract. It was taken into trust by 

the United States pursuant to the Secretary of the Interior's discretionary a~thorit~under 25 

U.S.C. 5 465 and 25 C.F.R.. Part 1 5 1 on behalf of the Confederated Tribes in March of 1998. The 

Tract has cultural and historical significance for the Confederated Tribes. Although it appears 

economic development on the Hatch Tract may have been mentioned during the administrative 

acquisition process, the Tribes' attorney stated in a letter to the Ofice of the Solicitor that at no 

time relevant to the trust acquisition did the Tribes have any plans to introduce gaming under 

IGRA on the Hatch Tract. Letter from Dennis Whittlesey, tribal attorney, to Stan Speaks, BIA, 

Portland Area Director (March 23, 1998) (hereafter, Whittlesey Letter). 

11. Restored Lands under Section 20 of IGRA 

Lands that are taken into trust as part of the "restoration of lands for an Indian tribe that is 

restored to Federal recognition" are exempt fiom the prohibition against gaming on lands 

acquired into trust after October 17, 1988.25 U.S.C. 8 271 9(b)(l)(B)(iii). There is a two-pronged 

analysis to the "restored" exception in section 20(b)(l)(B)(iii). First, the tribe must be "restored" 

within the meaning of IGRA. Second, the land to be acquired must be "restored" within the 

meaning of IGRA. 

The Confederated Tribes are a "restored" tribe within the meaning of section 20. The Coos, 

Lower Umpqua, and Suislaw Restoration Act of October 17,1984, states: 

Federal recognition is hereby extended to the Tribe, and all its 

members shall be eligible for all Federal services and benefits 

furnished to federally recognized tribes. 

25 U.S.C. 5 714a(a). The Restoration Act further states: 

[A111 rights and privileges of the Tribe and of members of the Tribe 

under any Federal treaty, Executive order, agreement or statute, or 

under any authority, which were diminished or lost under the Act 

of August 13, 1954 (25 U.S.C. $691 et seq.)[the Western Oregon 

Termination Act], are hereby restored and the provisions of that 

Act are inapplicable to the Tribe and to members of the Tribe upon 

passage of this Act. 
- Id. tj 7 14a(b). These sections leave no doubt that the Confederated Tribes are a restored tribe 

within the meaning of section 20. See Opinion on Pokagon Band of Potowatomi 5-7 (September 

19, 1997) (hereafter, Pokagon Opinion). The next question is whether the Hatch Tract is restored 

land. 

The Confederated Tribes argue that the Hatch Tract is restored lands for the purposes of section 

20 of IGRA because it has historically been owned and occupied by tribal members. The Tract is 

described as being originally deeded to a tribal ancestor as a public domain allotment and, up 

until a few years ago, was owned by the heirs of the ancestor/allottee and was occupied by a 

tribal member. The Hatch Tract is of particular importance to the Tribes because it is the site of 

a former Siuslaw village and is adjacent to an important Indian cemetery which contains the 

remains of tribal ancestors. Whittlesey Letter. The Tract apparently has never been on the 

Oregon or Lane County tax rolls. Id. 

Assuming all of this information is true, it is our opinion that the Hatch Tract is not "restored 

land" for the purposes of IGRA. Prior ownership of a parcel of land by the Tribe or a member is 

not sufficient by itself to qualify the land as "restored." The cultural, historical or traditional 

significance of the particular parcel also is not sufficient in and of itself to meet the "restored 

lands" exception in section 20. 

We believe that "restored lands" under section 20(b)(l)(B)(iii) include only those lands that are 

. available to a restored tribe as part of its restoration to federal recognition. The statute that 

restores the Tribe's Federal recognition status must also provide for the restoration of land, and 

the particular parcel in question must fall within the terms of the land restoration provision.' 

Here, the Confederated Tribes were restored to Federal recognition pursuant to their Restoration 

Act of 1984 and Congress specifically described the parcels to be acquired. The only lands which 

constitute "restored" lands for the confederated Tribes are those parcels in section 7. 

This conclusion is consistent with the Department's analysis in previous determinations. For 

example, we have determined that the particular land proposed by the Pokagon Band of 

Potowatomi for trust acquisition was "restored land" for purposes of IGRA because: 1) it fell 

within the ten counties described in the Pokagon Band's Restoration Act as its "service area" that 

had been ceded to the U.S. by treaty; and 2) the Restoration Act mandated that the Secretary 

acquire trust land. See Pokagon Opinion at 7. 

Congress enacted the Pokagon Band's Restoration Act in 1994. Pub. L. No. 103-323, 108 Stat. 

2152, codfied at 25 U.S.C. $5 1300j - j-8. It provides: 

We offer no opinion in this memorandum as to whether a tribe can be restored or 

whether lands can be restored to a tribe within the meaning of IGRA by judicial decree or 

stipulation as opposed to Congressional action. 
The Secretary shall acquire real property for the Band. Any such 

real property shall be taken by the Secretary in the name of the 

United States in trust for the benefit of the Band and shall become 

part of the Band's reservation." 

25 U.S.C. tj 1300j-5. This section provides no direction as to which lands are to be considered 

restored when acquired on behalf of the Band. Therefore, we looked to other provisions in the 

Restoration Act fir guidance as to which lands should be considered restored under section 20 of 

IGRA. Pursuant to numerous treaties, tribal lands were ceded to the United States. See id. 9 

1300j(l). These ceded lands included 10 counties in Michigan and Indiana that were defined in 

the Restoration Act as the Pokagon Band's service area. Id. tj 1300j-6. The opinion concludes, 

"[slince the lands proposed for acquisition lie within this ten county area [identified by Congress 

as the Tribe's "service area7'] and are thus part of the territory the Bands' predecessors ceded to 

the U.S ... the proposed acquisitions pursuant to the Restoration Act are properly characterized as 

'restored' lands" under section 20(b)(l)(B)(iii) of IGRA. Pokagon Opinion at 7-8; see id. at 2, fh 

2. 

The Tribes argue that the Department should use the dictionary definition of "restored" in 

construing the meaning of this exception in section 20. Webster's Ninth New Collegiate 

Dictionary defines "restored" to mean, in pertinent part, ''to put again in possession of 

something." When Congress does not specie or provide guidance on what lands should be 

considered restored, the dictionary definition referring to previous possession can be one of the 

tools, along with other provisions of the restoration act, to determine Congressional intent. We 

applied this analytical framework in the Pokagon Opinion to conclude that the land in question 

fell within the Band's Congressionally designated 10 county service area, which was part of the 

temtory ceded to the U.S. in earlier treaties and was properly characterized as "restored land" 

under IGRA. When Congress specifies or provides concrete guidance as to what lands are to be 

restored pursuant to the restoration act, they qualie as "restored lands" under section 20 

regardless of the dictionary definition. See, e.g., Little Traverse Bay Bands of Odawa Indians 

Restoration Act, 25 U.S.C. 5 1300k-4; Confederated Tribes of Siletz Indians of Oregon 

Reservation Act, Pub. L. No. 96-340, section 2; Confederated Tribes of the Grand Ronde 

Community of Oregon Reservation Act, Pub. L. No. 100-425, section l(c). 

In Little Traverse Bay Bands of Odawa Indians (LTBB), the Associate Solicitor - Division of 

Indian Affairs determined that a certain parcel of land was considered "restored" because it fell 

within the land acquisition provision in the Reaffirmation Act Memorandum from Associate 

Solicitor - Indian Mairs to Deputy Commissioner for Indian Affairs 7 (November 12, 1997) 

(hereafter, LTBB Opinion). In the Reaffimation Act, Congress directed the Secretary to accept 

into kt land located in Emmet and Charlevoix counties for the benefit of the Band. 25 U.S.C. 

5 1 300k-4(a). he opinion concluded that "[alny lands to be acquired that lie within the 1 836 

ceded area, the 1855 Treaty area, or are otherwise located within Emmet or Charlevoix counties, 
Michigan, are properly characterized as "restored" lands." LTBB Opinion at 7 (emphasis added).* 

In sum, lands qualify as "restored" lands under section 20(b)(l)(B)(iii) of IGRA if they fall 

within the land acquisition provisions as set forth by Congress in a tribe's Restoration Act. If 

Congress does not provide specific direction as to the geographic location, acreage or other 

description, the dictionary definition of "restored" may be used along with other Congressional 

direction to ascertain what lands qualify as "restored." For the Confederated Tribes, however, 

Congress was very clear in the Restoration Act as to what particular parcels qualify as restored. 

See 25 U.S.C. 5 714e(b). 

111. Lands Contiguous to the Tribes' Reservation on October 17, 1988. under Section 20 of IGRA 

The Tribes also contend that the Hatch Tract falls within the exemption for lands "contiguous to 

the boundaries of the reservation on October 17, 1988" because the Hatch Tract is contiguous to 

the Peterman Tract. 25 U.S.C. 5 2719(a)(l). From oral discussions with the Confederated Tribes' 

attorney, we understand that the Tribes contend the technical corrections bill which added the 

Peterman Tract to the Tribe's reservation relates back to the enactment date of the Restoration 

Act -- 1984. If the Peterman Tract was part of the reservation on October 17, 1988, any lands 

contiguous to it are exempted under section 20(a)(l) of IGRA. 

It is our opinion that the Hatch Tract is not "contiguous to the boundaries of the reservation on 

October 17, 1988" within the meaning of section 20(a)(l) of IGRA because the Peterman Tract 

did not become part of the reservation until 1998. There is no evidence, either in the bill's text or 

in its legislative history, that Congress intended the 1998 technical corrections bill to relate back 

to 1984. Absent clear Congressional intention, statutes are presumed to operate prospectively. 

Landpaf v. US1 Film Prods., 51 1 U.S. 244 (1994). 

The technical correction bill states: 

Section 7(b) of the Coos, Lower Umpqua, and Siuslaw 

Restoration Act (25 U.S.C. 5 714e(b)) is amended by 

adding at the end the following: 

(4) [the Petem Tract description]. 

2The quoted passage fkom the LTBB memorandum is somewhat ambiguous. It could be 

read to mean that lands can qualifjr as "restored" if they fall within the 1836 ceded area or the 

1855 Treaty area or within Emmet or Charlevoix counties. Or it could be read to mean that lands 

can qualify as "restored" only if they fall within the two counties, areas which happen to 

significantly overlap with the 1836 and 1855 ceded lands, as identified in the Restoration Act. A 

recent memorandum fiom the Associate Solicitor - Indian Affairs clarifies that the latter is the 

proper reading. Memorandum fiom Associate Solicitor - Indian Affairs to Director, Indian 

Gaming Management Staff (August 5,1999). 
Pub. L. No. 105-256, section 5 (emphasis added). The language is written in present tense, and is 

therefore of current and not retroactive effect. Statutory language is to be given its plain 

meaning. Chevron v. Natural Resources Defense Council, 467 U.S. 837,842 (1984). In 

explaining the purpose of the technical corrections bill, the House Report also used language of 

present intent: 

Section 5 would add land in Lane County, Oregon, to 

reservation land that is held in trust for the Confederated 

Tribes of Coos. 

H.R. Rep. 105-733,105th Cong., 2nd Sess. (1 998) (emphasis added). 

There is authority for the proposition that a technical correction bill can relate back to the 

substantive statute's enactment date when it corrects technical defects, because the bill is merely 

clarifying Congress' original intention. See Whalen v. United States, 826 F.2d 668,670 (7th Cir. 

1987); In re Chateaugav Corn., 89 F.3d 942,952-954 (2nd Cir. 1996). While the 1998 

legislation was characterized by Congress as a "technical corrections" bill, the part of it that 

added the Petennan Tract did more than merely correct technical errors in the 1984 Restoration 

Act. Rather, as the legislative history clearly shows, it amended the statute substantively: 

In addition to those technical corrections relating to 

typographical errors in existing law are provisions 

which ... add 0.062 acres of land, the driveway to an Indian 

cemetery, to the Coos, Lower Umpqua, and Siuslaw Tribal 

Reservation[.] 

H.R. Rep. 105-733, 105th Cong., 2nd Sess. 1998 (emphasis added). This leaves no doubt that the 

provision which added the Peteman Tract to the Tribes' reservation does not relate back to 1984 

because it does more than merely correct technical errors. 

IV. The Grand Ronde Communitv and Siletz Indian Tribe Determinations 

The Tribes argue that two previous determinations by the Department that certain lands were 

excepted under section 20 of IGRA requires the Department now to conclude that the Hatch 

Tract is contiguous to the Peterman Tract for purposes of section 2qaX1) of IGRA. The two 

determinations were for the Grande Ronde Community and the Siletz Indian Tribe. 

In 1983, the Grand Ronde Community was restored to federal recognition by Congressional act. 

Pub. L. No. 98- 165,97 Stat. 1064, codified at 25 U.S.C. 5 7 1 3a ("Restoration Acty7). The 

Restoration Act did not establish any reservation but required the development of a reservation 

plan. Id. 8 71 3f. It further required that the reservation must be established by an act of 

Congress. && The reservation plan was prepared and submitted to Congress. In September 1988, 

Congress passed Public Law 100-425, 102 Stat. 1594 ("Reservation Acty'), which established a 
reservation out of publicly owned timber lands in fulfilment of the Restoration Act. 

On November 2,1994, Congress enacted various amendments to the Grand Ronde Reservation 

Act. Pub. L. No. 103-435, 108 Stat. 4566. One of these, section 2(a), added a new parcel 

commonly called the Forest Site. Subsequently, the Department determined that acquisition of 

the Forest Site into trust fell within the "restored lands" exception in section 20 of IGRA, 

because it fell within the land restoration provisions of the Grand Ronde Restoration Act and 

subsequent Reservation Act. 

The Tribes believe the Department concluded that the 1994 amendment which added the Forest 

Site related back to the enactment of the original Restoration Act in September 1988. This was 

the basis, they believe, for the Department's determination that the Forest Site was exempt fiom 

the general prohibition in section 20. Using the same reasoning, the Tribes argue that the 

amendment which added the Peterman Tract should relate back to the Tribes' Restoration Act of 

1984. 

This was not the Department's reasoning in the Grand Ronde situation. It did not conclude that 

the amendments related back to the original Restoration Act enactment date and therefore 

established a reservation before October 17,1988. Instead, the Department determined that the 

1994 amendments simply amended the land acquisition provisions in the Restoration and 

Reservation Acts, and consequently the Forest Site acquisition fell within the "restored lands" 

exception in section 20(b)(l)(B)(iii). 

The Tribes make the same mistake in construing what the Department did in the Siletz Tribe's 

case. The Siletz Tribe was restored to federal recognition by Congressional action. Pub. L. No. 

95-195,91 Stat. 141 5, codified at 25 U.S.C. 5 71 1 - 71 lf ("Restoration Acty'). The Restoration 

Act provided for the creation of a reservation plan, much like the Grand Ronde Restoration Act. 

- Id $7 1 1 e. Following submission of the plan, Congress established a reservation on September 4, 

1980. Pub. L. No. 96-340'94 Stat.1072 ("Reservation Acty'). On January 25, 1994, Congress 

enacted amendments to the Siletz Reservation Act. Pub. L. No. 103-435,108 Stat. 4566. One of 

these amendments (section 3) directed the ~ecre-kry to acquire additional parcels of land and 

provided that they "shall be deemed to be a restoration of land pursuant to section 7 of the Siletz 

Indian Tribe Restoration Act." 108 Stat. at 4568. 

The Department concluded that, because the parcels in question were acquired pursuant to an 

explicit direction by Congress that their acquisition was a restoration of land to the Siletz Tribe, 

they fell within the exception in section 20(b)(l O(B)(iii). Letter hm Ada Deer, Assistant 

Secretary - India. Affairs, to the Honorable Delores Pigsley, Chairman, Confederated Tribes of 

Siletz Indians (March 14, 1995). There was no need for any analysis concerning the retroactivity 

of the 1994 amendments because the parcels clearly fell within the land acquisition provisions of 

the Restoration and Reservation Acts. 

The key distinction in these previous two cases fiom the one now before us is this: The 
"contiguous" exception in IGRA is time-specific. That is, the land in question must have been 

contiguous to the Tribes' reservation on October 17, 1988. 25 U.S.C. 9 271 9(a)(1). The 

"restored" land exception in IGRA is not time-specific. Id. $ 2719(b)(l)(B)(iii).3 Consequently, 

there is no need to make a determination about the retroactivity of the Congressional action when 

deciding whether a parcel is "restored lands" under IGRA. In Grand Ronde and Siletz, no 

retroactive analysis was necessary because the "contiguous" exception was not at issue.4 The 

"contiguous" exception is, by contrast, at issue for the Hatch Tract. 

The Tribes recently advanced an alternative argument that the Department's determination that 

the Forest Site was "restored land" for Grand Ronde was incorrect. Instead, the Forest Site was 

reservation land and the 1994 amendment retroactively added it to the Grande Ronde reservation 

as of 1983. The Tribes argue that the Grand Ronde Restoration Act created a "reservation" and 

not "restored lands" because the word "restored" or "restoration" does not appear in the body of 

the Reservation Act. In contrast, the Siletz Reservation Act did call for a "restoration" and is 

consequently distinct fiom the Grand Ronde situation. 

We have previously determined in several different situations that the word "restored" need not 

appear in the body of the Restoration or Reservation Act in order for there to be a restoration of 

lands within the meaning of IGRA; See Pokagon Opinion; LTBB Opinion; Letter fiom Solicitor 

to Congressman Vic Fazio (August 3, 1998). As discussed above, the Grande Ronde's 

reservation was established pursuant to Congressional direction in the Tribe's Restoration Act. - 25 U.S.C. 71 3f; Pub. L. No. 100-425; Pub. L. No. 103-435. Even though Congress never 

called the lands "restored," the lands were acquired as part of the Tribe's restoration process and 

fell within the land acquisition provisions of the statutes. 

The Siletz Restoration Act explicitly stated the acquired lands "shall be deemed a restoration of 

land." Pub. L. No. 103-435. The absence of such language would not, however, have been fatal. 

The Department would still have concluded that such lands were "restored" lands under section 

20 of IGRA because they clearly fell within the land acquisition provisions contained in the 

Reservation Acts enacted pursuant to the Restoration Act. In short, in Grand Ronde and Siletz, 

the key fact was that the lands to be acquired were taken in trust as part of the restoration process, 

irrespective of the exact words used by Congress. 

V. Conclusion 

The Hatch Tract is not exempt fiom the general prohibition on gaming on lands acquired by the 

Secretary in trust after October 17, 1988, as set forth in section 20 of IGRA. 25 U.S.C. § 2719. 

Obviously, Congress can legislate time limits in specific restoration legislation. 

The analysis used in the "restored land" determinations for Grand Ronde and Siletz is 

consistent with the "restored land" analysis used here, even though the outcomes are different. 
The Hatch Tract acquisition is not part of the "restoration of lands for an Indian tribe that is 

restored to federal recognition" because it does not fall within the land acquisition provisions set 

forth in the Tribes' Restoration Act of 1984 or the 1998 amendments. 25 U.S.C. tj 

271 9(b)(l)(B)(iii). Further, the Hatch Tract is not "located within or contiguous to the boundaries 

of the reservation of the Indian tribe on October 17,1988"' because the technical corrections do 

not relate back to the original enactment date of the Tribes' Restoration Act of 1984. 5 

271 9(a)(1). 

cc: Deputy Commissioner for Indian Affairs 

Director, Indian Gaming Management Staff 

Associate Solicitor - Indian Affairs 

Portland Regional Solicitor