November 12,2004 

Herman Dillon, Sr., Chairman 

Puyallup Tribal Council 

1850 Alexander Avenue 

Tacoma, WA 9842 1 

Subject: Status of Tribal Property for Gaming Purposes 

Dear Chairman Dillon: 

Tlis is in response to your letter dated August 25,2004, in which you requested the 

National Indian Gaming Commission (NIGC) to confirm that the Tribe may conduct 

gaming on the Fife property even though it is presently held in fee simple. We conclude 

that the Tribe may conduct gaming on the property. 

BACKGROUND 

The Tribe and State wish to allow the Tribe to conduct gaming on the Fife property. The 

legal description of.the Fife property appears in the Certification prepared on August 3 1, 

2004, by the Manager, Land Tiiles and Records Ofice, Northwest Regional Office, 

Bureau of lndian Affairs, and is enclosed. The Tribe acquired the Fife property on May 

24,2004.' The website of the Pierce County Assessor contains the records of the sale of 

the property. 

The land is held in fee, although the Tribe plans to ask the United States to acquire the 

land into trust for the Tribe's benefit. 

The Tribe's request was motivated by aproject undertaken by the Port of Tacoma to 

expand a major container terminal development. The expansion requires closing the 

main access road to the Tribe's Emerald Queen Casino, one of two casinos currently 

being operated by the Tribe in accordance with the Tribal-State Compact. The Tribe has 

already relocated a portion of the Emerald Queen Casino to its second existing facility 

and has purchased a parcel of property in the City of Fife. The Tribe wishes to move the 

remaining Class Ill gaming activities to the Fife site. The Tribe, the State of Washington, 

local governments, and the Port of Tacoma have agreed under the terms of a joint 

Memorandum of Understanding (MOU) to amend the Tribal-State Compact to allow the 

1 We note that the Fife property referenced here is not the same Fife property referenced in 25 U.S.C. 

5 1773b(d). 

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

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, . Tribe to offer Class 111 gaming activities at the Fife property while the application for the 

trust acquisition for the Fife property is pending. 

The NIGC has previously concluded that tribal fee land located within the boundaries of 

a reservation constitutes Indian land over which a tribe has jurisdiction. Thus, in those 

circumstances, we have concluded that a tribe may conduct gaming on those lands. 

The situation at hand is considerably different, however, because of a Settlement Act, an 

Agreement between the Tribe, local governments in Pierce County and the United States 

(the Settlement Agreement), an MOU, and a Tribal-State Compact amendment. 

APPLICABLE LAW 

A. The lGRA notes that an Indian tribe may engage in gaming under IGRA 

only on "Indian lands" that are ''within such tribe's jurisdiction." 25 U.S.C. 271 O(b)(l) 

and (d)(l). Further, if the land upon which gaming is contemplated is not within the 

limits of an Indian reservation, a tribe may conduct gaming only if it exercises 

"governmental power7' over those lands. 25 U.S.C. 5 2703(4)(B); 25 C.F.R. 5 502.12(b). 

The IGRA defines "Indian lands" as follows: 

(A) all lands within the limits of any Indian reservation; 

and 

(B) any lands title to which is either held in trust by the United 

States for the benefit of any Indian tribe or individual or held by 

any Indian tribe or individual subject to restriction by the United 

States against alienation and over which an Indian tribe exercises 

governmental power. 

25 U.S.C. 2703(4). 

B. The NIGC regulations Wer clarify the "Indian lands" definition by 

providing that: 

Indian lands means: 

(a) Land within the limits of an Indian reservation; or 

(b) Land over which an Indian tribe exercises governmental power and 

that is either - 

1. Held in trust by the United States for the benefit of 

any Indian tribe or individual; or 

2. Held by an Indian tribe or individual subject to 

restriction by the United States against alienation. 

25 C.F.R. 5 502.12. 
Lands that do not qualify as Indian lands under IGRA generally are subject to state 

gambling laws. National Indian Gaming Commission: Definitions Under the Indian 

Gaming Regulatorv Act, 57 Fed. Reg. 12382, 12388 (Apr. 9, 1992). 

C. Section 2.12 of the "Puyallup Tribe of Indians Tribal Gaming Ordinance," 

No. 060900 (revised August 30,2001) reflects the above Federal definitions: 

"Indian Land" means: 

(a) Land within the limits of an Indian reservation; or 

(b) Land over which an Indian tribe exercises governmental power 

and that is either - 

(I) Held in trust by the United States for the benefit of any 

Indian tribe or individual; or 

(2) Held by an Indian tribe or individual subject to 

restriction by the United States against alienation. 

ANALYSIS 

At issue is whether a gaming operation conducted on the Fife property would be on 

Indian lands, and if so, whether the Tribe may exercise jurisdiction over those lands. For 

purposes of gaming in these unique circumstances, the Fife site is located within the 

boundaries of the Puyallup reservation. It is therefore on Indian lands as defined by 25 

U.S.C. 9 2703(A) and 25 C.F.R. 6 502.12(a). Furthermore, pursuant to the provisions of 

the Settlement Act at 25 U.S.C. $ 1773~' the Settlement Agreement, the State and Tribe's 

Memorandum of Understanding, and the Tribal-State Compact amendment, the parties 

have agreed that the Tribe has jurisdiction over the Fife property and may conduct 

gaming there under 25 U.S.C. $2710(b)(l) and (d)(l). 

A. The Fife property is within the limits of the Tribe's reservation 

The Fife property has not been taken in trust by the Secretary but it need not be taken in 

trust to qualify as Indian land for gaming purposes under the IGRA. It is suflicient if it 

can be demonstrated that the Fife propeaty is located on the Puyallup Tribe's reservation. 

The specific language of 25 U.S.C. 5 2703(4)(A) defines Indian lands to include "all 

lands within the limits of any Indian reservation.'' 

The Tribe's reservation was established by the December 25,1854, Treaty of Medicine 

Creek, 10 Stat. 1132, and expanded by Executive Order dated September 6, 1873. The 

State of Washington challenged the reservation boundary but reached a settlement 

agreement with the Tribe in 1988. The settlement legislation specifically provided that it 

did not affect the boundaries of the Puyallup Reservation. 25 U.S.C. 5 1773b(d). We 

understand the language as an agreement between the State and the Tribe to disagree 

while developing a practical approach to the use of the lands. See, e.g. 25 U.S.C. 

5 1773(a)(2) ("Disputes over certain land claims of the Puyallup Tribe . . ., including . . . (D) jurisdiction over law enforcement, environment, navigation, and authority and 

control in the areas of land use. . . have resulted in difficult community relations and 
negative economic impacts.. ..) and 1773(a)(5) ("There is a recognition that any final 

resolution of pending disputes through a process of litigation would take many years.. ..") 

Also see the Settlement Agreement of August 27, 1988 ("The parties agree that this 

Agreement does not resolve their differences as to the current boundaries of the Puyallup 

Indian Reservation."). 

Commonly, the analytic approach we would take to decide whether the Fife property is 

within the limits of the Tribe's Indian reservation would be to analyze the history of the 

reservation factually and legally in order to determine whether the Tribe's reservation 

boundaries still exist. Such an analysis is unnecessary where, as here, the parties have 

specifically agreed that the property is within the Tribe's reservation. The proposed 

compact amendment recites the "the Tribe has borrowed and invested a substantial 

amount of money to relocate a portion of the EQC . . . and to purchase a parcel of 

property in Fife, Washington, on the Puyallup Indian Reservation ("Fife Property") to 

which it will relocate the remainder of the EQC facility." (Emphasis added.) 

Consequently, at least for the limited purposes of the IGRA, and in the context of the 

very specific facts herein, we conclude that the Fife property is within the limits of the 

Tribe's reservation. 

B. The Puyallup Tribe, upon approval of the Compact amendment, will 

possesses jurisdiction over the Fife property. 

For a tribe to be able to conduct gaming, the land on which it games must not only meet 

the Indian lands criteria but must also be land over which the tribe possesses jurisdiction. 

25 U.S.C. § 2710(b)(l) and (d)(~).~ 

Our traditional analysis, whether the land is Indian country and whether the Tribe 

has the theoretical authority to exercise jurisdiction over the Fife property, has no 

place in the situation at hand. Under the terms of the Settlement Agreement, we 

cannot look to traditional methods of determining jurisdiction over fee lands. 

Instead we must look to either specific authorizations within the Settlement 

Agreement or some other agreement between the Tribe and the State and/or local 

govements. In short, the Tribe's Settlement Act and the Settlement Agreement 

adopted therein establish the scope of the Tribe's jurisdiction. Consequently, we 

look to those enactments. 

The Puyallup Tribe of Indians Settlement Act of 1989 provides: 

The MGC does not herein address whether the Puyallup Tribe exercises present 

day governmental power over the land. That analysis is necessary only under the 

definition of Indian lands at 25 U.S.C. tj 2703(4)(B), which provides that Indian lands are 

off-reservation land held in trust or restricted status and over which the Tribe exercises 

governmental power. In the case at hand, the definition of Indian Iands at 25 U.S.C. 

5 2703(4)(B) is met. When, as here, the land is determined to meet the first criteria, 

''within the limits of an Indian reservation," no showing of present-day exercise of 

governmental power is required. 
It is the purpose of this subchapter - 

(1) to approve, ratify, and confirm the agreement entered into by the non-Indian 

settlement parties and the Puyallup Tribe of Indians; 

(2) to authorize and direct the Secretary to implement the terms of such 

agreement, and 

(3) to authorize the actions and appropriations necessary to implement the 

provisions of the Settlement Agreement and this subchapter. 

25 U.S.C. 1773(b). Thus, the Settlement Act adopts and incorporates the Settlement 

Agreement into the settlement legislation. 

The Settlement Agreement, referenced in the Settlement Act, provides that: 

The 1 873 Survey area [including the Fife property1 shall not be used as 

basis for assert in^ Tribal iurisdiction or governmental authority over nonIndians, except as specifically provided by this Agreement. The Federal 

definitions of "Indian country", "Indian lands7', and/or "Indian 

reservation" shall not be used by the Tribe or the United States as a basis 

for asserting Tribal control over non-trust Iands either inside or outside the 

1873 Survey Area, or the activities conducted on those lands, except as 

provided by the Agreement, or as otherwise aaeed to between the Tribe 

and State, and /or local governments. 

a. The jurisdiction of the Puyallup Indian Tribe shall extend to existing 

and future restricted and trust lands. The extent of the Tnie's jurisdiction 

shall be determined as provided by federal law. 

b. Exce~t as otherwise provided in this Agreement, the Tribe agrees not to 

assert or attempt to assert any type of iurisdiction and governmental 

authority, existing or potential, including but not limited to the power to 

tax, as to (a) non-trust lands; (b) any activity on non-trust lands; (c) any 

non-Indian individual or business, on non-trust lands. (Emphasis added.) 

Agreement at pp. 18-19. The Settlement Agreement specifically provides that the 

Tribe can not assert jurisdiction over non-trust lands. Such lands would include 

the Fife fee property. However, the Settlement Agreement contemplates the 

ability of the parties to enter into a separate agreement that changes the scope of 

the Tribe's jurisdiction - "as otherwise agreed to between the Tribe and State, 

and/or local governments." Id. 

That separate agreement, in this instance, consists of two documents: 1) the 

February 4,2004, Memorandum of Understanding between the Puyallup Tribe of 

Indians, Pierce County, the Port of Tacoma, and the Cities of Tacoma, Fife, and 
Puyallup (MOU) and 2) the proposed Third Amendment to the Tribal-State 

Compact for Class 111 Gaming between the Puyallup Tribe of Indians and the 

State of Washington (Compact as amended). The MOU recites the need to move 

quickly in light of the Tribe's accommodation of the Port of Tacoma's 

development project and the parties' agreement to authorize the gaming on two 

locations while the Iands are in held in fee pending their acceptance into trust. 

The Compact as amended will authorize the Tribe to exercise jurisdiction when it 

meets the requirements of Section F.1 . Section F. I. provides for the possibility of 

the Tribe owning the land in fee: 

1. Fee land. The Tribe is authorized on a temporary basis to operate one of 

its two gaming facilities on fee land located at 5700 Pacific Highway East, 

Fife, Washington 98424, which is within the boundaries of the Puyallup 

Indian Reservation and is hereinafter referred to as "'the Fife Property," 

subject to the limits in subsection (3), below, PROVIDED, that the Tribe 

demonstrates it is actively requesting and continuing to use its best efforts 

to ensure that federal Iegislation is introduced to transfer the Fife Property 

into trust status, and/or that it also has pending an application to the 

Secretary of the Interior to transfer said property into trust. In addition, 

prior to the execution of this Amendment, the Tribe will also provide the 

State with the following to demonstrate the Tribe's ability to effectively 

exercise jurisdiction over the Fife Property. 

a. The legal description of the Fife Property, and proof of acquisition of the 

same. 

b. Copies of any agreements with local governments relevant to the exercise 

and division of jurisdiction and governmental authority and the provision 

of governmental services on and around the new location of the Tribe's 

casino during the time the land remains in fee ownership. In particular, 

the Tribe will provide copies of its agreement(s) with the City of Fife and 

Pierce County dealing with those subjects, including issues such as law 

enforcement, fire and emergency services and other public health and 

safety issues. Those agreements will be incorporated into the Compact as 

Appendix 'T"; and 

c. Written approval hm the National Indian Gaming Commission 

authorizing an ordinance for Class III gaming on the Fife PropertyProposed Compact as amended at pp. 2-3. 

This language, read together with the MOU, authorizes the Tribe to exercise 

jurisdiction over the Fife property so long as it meets the three requirements 

described above. 

One of the requirements involves the National Indian Gaming Commission in that the 

proposed compact amendment requires "written approval from the National Indian 

Gaming Commission authorizing an ordinance for Class III gaming on the Fife 
Property." The Tribe's Class 111 ordinance was approved on Decemeber 4,2000. It is a 

generic ordinance authorizing gaming pursuant to IGRA and does not reference a specific 

site. Consequently, as long as the other requirements of IGRA are met (including the 

ability to exercise jurisdiction over the gaming site), the Tribe may conduct gaming on 

the Fife property. 

CONCLUSION 

The IGRA permits tribes to engage in gaming on "Indian lands" within such tribe's 

jurisdiction. 25 U.S.C. 5 2719(b). After careful review and consideration, we conclude 

that the land purchased by the Puyallup Tribe and known as the Fife property is such 

lands. As such, the Tribe may lawfully conduct Class I11 gaming on the Fife property, 

under the Compact, as amended, and pursuant to IGRA, provided the Tribe complies with 

all of the other applicable requirements of IGRA. 

Pursuant to the Memorandum of Understanding between the NIGC and the United States 

Department of the Interior (Department), the Department concurs in our conclusions. 

If you have any questions, please contact me or Sandy Ashton, Staff Attorney. 

Sincerely, 

Penny J. ~oYkrnan 

Acting General Counsel 

Enclosures