MEMORANDW 

To: NIGC Chairfnan Deer 

From: NIGC Acting General Counsel 

' Subject: whether gaming may take on lands taken into trust after October 17,1988, by Bear 

River Band of Rohnerville Rancheria 

Date: August 5,2OQ2 

On August IO, 2001, the Bear River Band of Rohnerville Rancheria (Tribe) submitted a revised 

Tribal Gaming Ordinance for review by the National Indian Gaming Commission (NIGC). The 

ordinance contained a defintion of Indian land that included a specific parcel of lmd that had been 

taken into bust after October 17, 1988. The Indian Gaming Regulatory Act (IGRA) precludes 

gaming on land acquired after October 17, 1988, unless the land meets one of the statutory 

exemptions. 25 U.S.C. 5 2719 (Section 2719). The Tribe withdrew the ordinance October 17,2001, 

after the Ofice of General Counsel infomdly notified it that it had not proven that the parcel named 

in the ordinance met the "stored lands" exception, 25 U.S.C. 5 271 9(b)(l)(B)(iii), to IGRA's 

prohibition on gaming on&wqmed land. -- -- --- 

SubsequentIy, the Tribe hid Dr. Lee Davis, an mthropdogist, to research the Tribe's historical 

connection to the parcel. Dr. Davis, who directs San Francisco State University's California Studies 

Institute, produced a 420-page report on the Tribe's history (Davis Report). 

On May 17, 2002, the Tribe submitted NIGC Resolution No. 02-48. Bear River Band of 

Rohnesville Rancherla Tribal Res. No. 02-48: Tribal Gaming Ordinance Amendment and 

Related Request for a "Restored hds" Determination (Amendment and Related Documents), 

Tab. 1. Through the Resolution, the Tribe amended its original ordinance, u7hich had been approved 

February 5, 1996, and which was still in effkct. The sole amendment to the original ordinance is to 

the '?)efinitions" 'section, Article ID, part rn. The amendment deletes the ordinance's original 

definition of 3esewation" and adds the site-specific dehition of 'Tribal lands" that had been 

proposed in the August 10,2001, wdinance. In support of the amendment, the Tribe submits Dr. 

Davis's report, along with other documents, to comborate the Tribe's contention that the land in 

question was ' Yestored'' for the purposes of Section 27 1 9. 

The Tribe's submission satisfies us that the land in question fdIs into he ''restored lands" exception 

to Section 2719's prohibition against gaming on land acquired after October 17, 1988. The U.S. 

Department of the Interior has reviewed our opinion and concurs. 

At issue is a 60-acre parcel of land located approximately one-quarter mile off State Highway 101 

north of Fortma and approximately two miles southeast of LoIeta in Humboldt County, California. 

NarroNAL HEADQWART~RZ 1441 L St. W, Sude 9100. Washington. i3C 20005 Tel: 202.632.7003 Fax 202.632 7066 ~.NICC.CW 

REGIONAL OFFICES Portland. OR: Sacramento. CA. Phoenix, AZ: St Paul. MN;Tulsa, OK 
Rohnerville Indian Lands Opinion 

Page 2 

Memorandum MS-4522-RIIB from Sacramento Area Director, Bureau of Indian Affairs (BIA), 

Ronald M. Jaeger, to Assistant Secretary Indian Affairs, through Director, Office of Trust 

Responsibilities, p. 2 (May 18, 1993) (Jaeger Opinion). The Tribe acquired the parcel in 1991. 

The BIA took the land into trust in 1994. The parcel is six (6) miles from the Tribe's original 

Rancheria-a 1 5.1 87-acre parcel located within Fortuna, in Humboldt County, California-- 

whose boundaries had been re-established by court decision in 1986. Monteau, Peebles 

submission, Exh. A, p. 1 1. 

The question of the Tribe's ability to conduct gaming on the parcel ht arose when the Tribe 

submitted its orig,aI gaming ordinance for NlGC approval. On February 5, 1996, former NGC 

Ghaimm Harold A. Monteau appmved the ordinance, No. 95-04, which did not specify the land on 

which gaming would be conducted. Letter hrn Harold A. Monteau to Lionel R. Carroll, Sr., 

Chairperson, Bear River Band of the Rohnerville Rancheria (J?ebruary 5, 1996). In his approval 

letter, however3 Chairman Monteau observed that the BL4 had indicated that the Tribe's only parcel 

of trust land was acquired aRer IGRA's enactment. Chairman Monteau therefore requested that the 

Tribe provide NIGC with documentation demonstrating either that the parcel fell under one of 

the exceptions to the general prohibition in 25 U. S .C. 9 27 1 9-which proscribes gaming on trust 

lands acquired after October 17, I988-0~ that the Tribe had other Iands that qualified as Indian 

lands. 

Although not referenced in Chairman Manteau's letter, the Tribe, on October 30, 1995, had - 

submitted to NIGC a let&t -%sating that the identified 6st-$&el feu under the restored l&ds 

exception ta Section 2719 and, thus, was not subject to TGRA's prohibition against gaming on 

after-acquired lands. Letter from Marilyn B. Miles, Directing Attorney, California Indian Legal 

Services, to Michael D. Cox, General Counsel, NIGC (October 30, 1995). 

In a letter dated June 23,2000, United States Congressman Mike Thompson from California @- 

lSt) requested that NIGC provide a legal determination as to whether the lands the Tribe intended 

to use for gaming qualify as "Indian lands'' over which the Band could IawfuIly conduct gaming 

pursuant to ~~lU.-~etter from Congressman Mike Thompson hm California (D-I"), to 

Montie Deer, NIGC Chairman (June 23,2000). 

In response to Congressman Thompson's request, the Tribe submitted to NIGC a letter setting 

forth. its contention that the identified tsust parcel fell under the mtored 1 mds exception to 25 U.S.C. 

2719. Letter fiom Scott Crowell, Crowell Law Offices, to Greg Bergfeld, Region Chief, NIGC 

(July 17,2000). 

Tn an effort to clarify the status of the TnWs proposed gaming site, NIGC asked the Tribe to show 

that the land upon which it intended to conduct gaming was "Indian lands" as dehed in IGRA, 25 

US =C. 9 2703(4), and NIGC regulations, 25 C.F.R $ 502.12, and that the land was restored. Letter 

fbm Todd J. Araujo, NIGC Staff Attorney, to Scott Crowell, Cruwell Law Offices, (September 28, 

2000). In response, the Tribe provided legal analysis and documents, including: chapters of the 

The letter indicates that, in 1997 while sewing in inthe California State Senate, Congressman Thompson wrote 

to the MGC and asked a similar question regarding Indian lands. We do not have the referenced letter an file. 
liohndlle Indian Lands Opinion 

Page 3 

Handbook of North AmeriGan Indiam discussing the histmy of the Wiyot, Mattole, Nongatle, 

Smkyone, Lass&, and Wailaki; the Tribe's 1994 amended Constitution; and tribal ordinances. 

On August 10,2001, the Tribe submitted a revised gaming ordinance to NIGC that identified the 

land on which the Tribe would conduct gaming. During the week of Octoba 8, 2001, the Tribe 

submitted additional information in support of its claim that the parcel in question was restored. 

That document included: a February 26, 1992, archaeological monitoring report; a July 28, 1993, 

archeological report; a June 30, 1990, cultural resources study; &davits from two tribal 

members; newspaper articles; a student's report on the Wiyots and the Humboldt Frontier 

published in the ccHmboldt Historian"; and documents showing that the Bureau of Indian 

Affairs designated Humboldt County a geographical: service area for the Housing Improvement 

Program. 

When NIGC indicated that these documents fe1I short of proving that the land was restored, the 

Tribe withdrew the ordinance. The Tribe has now submitted an amended ordinance with new 

documentation supporting the contention that the lands are "restored." 

Applicable Provisions of IGM 

An Indian tribe may engage in gaming under IGRA only on "Indian lands7' that are '%thin such 

tribe's jurisdiction." 25 U.S.C. - - 8 - 2710(b). - -- - In-addition, if the proposed lands are trust or .- 

restricted lands, rather than land within the limits of an Indian reservation, the tribe may conductgaming only if it exercises "governmental power" over those lands. 25 U.S.C. § 2703(4$@); 25 

C.F.R. § 502.12@). 

IGRA defines "Indian lands" as: 

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

(T3) 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 govempnental powep- [emphasis added]. 

25 U.S.C. 8 2703(4). 

NTGC regulations further clarify the Indian Iands definition: 

Indian lands means: 

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

(b) Land over which m 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. 
Rohnerville Indian Lands Opinion 

Page 4 

25 C.F.R. 502.12. Lands that do not qualify as Indian Imds under IGRA generally are subject 

to state gambling laws. See National Indian Gaming Commission: D@nitions Under the Indian 

Gaming Regulatory Act, 57 Fed. Reg. 12382, 12388 (1 992). 

The question whether a tribe "bas jurisdiction" and "exercises governmental pow&' over land en 

which the tribe proposes to conduct gaming can arise under a variety of circumstances. See, e.g., 

Rhode Island v. Narragansett Indian Tra'be, 19 F.3d 685, 701-703 (1st Cir. 1994), cert denied, 

5 13 U.S. 91 9 (1 994), superseded by statute as stated in h'amag~nsetb Indian Tribe v. National 

Indian Gaming Commission, 158 F.3d 1335 (D.C.Cir.1998); Miami Tribe of Oklahoma v. United 

States, 5 F. Supp.2d 1213, 1217-18 @.Kan. 1998) (Miami 27) (a tribe must have jurisdiction to 

exercise governmental power); State ex rel. Graves v. United States, 86 F. Supp.2d 1094, 1099 

(D.Kan. 2000), af'd and remanded, Kansas v. United States, 249 F.3d 1213 (1 oth Cis* 2001); 

Miami Tribe ofOklahoma v. United States, 927 F. Supp. 1419, 1423 @.Ran. 1996) (Miami I). 

In this matter, in order to determine whether the parcel at issue is Indian land, the NIGC must 

determine: (1) that the tribe has jurisdiction, and (2) if the proposed lands ase trust or restricted 

lands outside the Iimits of an Indian reservation, that the tribe exercises governmental power 

ova the proposed gaming lands. We consider the Tribe's proposed gaming site within this 

analytical framework. 

- Land Held In Tmst .- . 

The proposed project is a class Ill gaming facility located on Singley Road, LoIeta, HumbaIdt 

County, California. See Environmental Impact Analysis For A Proposed Gaming Facility At 

The Rohnerville Rancheria, S-1 (October 1999). Through a Community DeveIopment Block 

Grant fkom the U.S. Department of Housing and Urban Development, and with the assistance of 

the BIA, the Tribe in 1991 purchased a 60-acre parcel of land six (6) miles from the original 

Rancheria. On July 12, 1991, the Tribe executed a grant deed transferring the 60-acre parcel to 

the United States in trust for the Tribe. The Secretary accepted the Tribe's land into trust status 

on January 20, 1994. The proposed facility would be located on this 60-acre parcel. Because the 

land is "held in trust by the United States for the benefit of any Indian tribe," it satisfies the first 

part of the "Indian lands" definition: that the land be held in trust. 25 U,S.C. 9 2703(4)(B). 

Jurisdiction 

Because the land at issue is off-reservation, the Tribe has the additional burden of establishing 

that it exercises "governmental power'" over the parcel it intends to lase for gaming purposes. See 

25 C.F.R 5 502.1Z(b). "Tribal jurisdiction" is a threshold requirement to the exercise of 

governmental power. See, e.g., Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 701- 

703 (1 st Cir. 1994), cert. denied, 5 13 U.S. 919 (I 994), superseded by stamte as stated in 

Nairagarrsett Indian Tribe v. National Indian Gaming Commission, 158 F.3d 1335 

@.C.Cir. 1998) (In addition to having jurisdiction a tribe must exercise governmental power in 

* order to trigger [IGRA]); Miami T'ibe of Oklahoma v. United States, 5 F. Supp.2d 12 1 3, 12 1 7- 1 8 

@.Kan. 1998) (Miami ?I) (A tribe must have jurisdiction in order to be able to exercise 

governmental power); Miami Tribe of Oklahoma v. United States, 927 F. Supp. 141 9, 1423 

@.KaT1.1996) (Miami I) (the NIGC implicitly decided that in order to exercise governmental 
RohnervilIe Indian Lands Opinion 

Page 5 

power for purposes of 25 U.S.C. 5 2703(4), a tribe must first have jurisdiction over the land.); 

State ex. rel. Graves v. United States, 86 F. Supp 2d 1094 (D.Kan. 20001, afd and remanded, 

Kansas v. Unifed States, 249 F.3d 121 3 (I Cir. 2002). Tkis interpretation is consistent with 

IGRA's language limiting the applicability of its key provisions to "[alny Indian tribe having 

jurisdiction over Indian lands,"' or to "Indian lands within such tribe's jurisdiction." 25 U.S.C. 

$4 27 1 0(d)(3)(A), 27 1 O(b)(l)); see also Rhode Island v. Narragunse# Indian Tribe, 19 F.3d 685, 

701-703 (1st Cir. 19941, ceP-t. denied 513 U.S. 919 (1994). As a threshold matter, we must 

therefore analyze whether the Tribe possesses jurisdiction over the trust parcel. 

As a general matter, tribes are presumed to possess tribal jurisdiction within "Indian country'" 

See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998). The Supreme Court has stated 

that Indian tribes are "invested with the right of self-government and jurisdiction over the 

persons and property within the limits of the territory they occupy, except so far as that 

jurisdiction has been restrained and abridged by treaty or act of Congress." Mm'on v. Jicrarilla 

Apache TPihe, 455 U.S. 130,140 (1 982). 

Historically, the term '"Indian country" has been used to identify land that is subject to the 

"primary jurisdiction . . . [of] the Federal Government and the Indian tribe inhabiting it." Alaska 

v. Native Village of Venefie Tribal Gov't, 522 US. 520, 527 n.1 (1998). The U.S. Code defines 

"Indian country" as: 

-. . - . .- - - - - - - - 

(a) all land within the limits of any Indian reservation.. . , (b) all dependent Indian communities.. . , and 

(c) all Indian allotments, the Indian titles to which have not been extinguished.. .. 

18 U.S.C. 5 1 15 1. The Venebie court observed that Section 7 15 1 reflects the two criteria the 

Supreme Court "previously . . . had held necessary for a finding of 'Indian country' . . . firs6 [the 

lands] must have been set aside by the Federal Government for the use of the Indians as Indian 

land; second, they must be under federal superintendence." Venetie, 522 U.S. at 527. Prior to 

the enactment of section 1 1 5 1 in 1948, the Court had already found that reservation lands and 

allotments satisfied those requirements. See, e-g., United States v. Pelican, 232 U.S. 442, 449 

(19 14) (Indian country includes individual Indian allotments held in trust by the United States 

because they '"main Indian Iands set apart for Indians under governmentaI care"); Donnelly v. 

United States, 228 U.S. 243, 269 (1913) (Indian country includes lands within formal 

reservations). The Venetie court also observed that Congress used the term ''dependent Indian 

communities" in Section 1 15 1 (b) to codify the Court" understanding, as expressed in United 

States v. McGowan, 302 U.S. 535 (1938), and United States v. Sandoval, 231 U.S. 28 (1913), 

that other lands, although not formaIly designated as a reservation, may also possess the 

attributes of "federa1 set-aside" and "fedaal superintendence" characteristic of Indian country. 

Rnetie, 522 U.S. at 530; see, e.g., McGowan, 302 U.S. at 538-539 (Reno Indian Colony land 

held in trust by the United States is Indian country); Sandoval, 231 U.S. at 45-49 (Pueblo Indian 

lands). 

Several Supreme Court decisions hold or assume that tribal trust lands are Indian country 

although they are not part of a formal reservation. In Oklahoma Tax Comm 'n v. Citizen Band 

Potawatomi Indian Tribe of Oklahoma, the Supreme Court concluded that lands held in trust by 
Rohnerville Indian Lands Opinion 

Page 6 

the United States for the Tribe were "%alidly set apart for the use of the Indians as such, under 

the superintendence of the Government," and therefore were Indian country, with the 

consequence that the State did not have the authority to tax sales of goods to tribal members that 

occurred an those lands. 498 U.S. 505, 511 (1991). The Potawatomi Court specifically rejected 

the contention that the tribal trust land was not Indian country because it was not a reservation, 

noting that no "precedent of this Court has ever drawn the distinction between tribal trust land 

and reservations that Oklahoma urges." Id; see also Oklahoma Tm Comm'n v. Chickasaw 

Nation, 5 15 U.S. 450, 452-453 and n.2 (1995) (treating tribal trust Iands as Indian country); 

Oklahoma Tax Cornm'n Y. Sac & Fox Nation, 508 US. 114, 123-125 (1993) (same); United 

States v. John, 43 7 U. S. 634,649 (1 978) (observing that "[tlhere is no apparent reason why these 

lands, which had been purchased py the United States] in previous years for the aid of those 

Indians, did not become a 'reservation,' at least for purposes of federal criminal jwisdiction'); 

United States v. McGowan, 302 U.S. 535, 539 (1 938). 

In the instant matter, consistent with Venetie and other Supreme Court decisions, the Tribe's trust 

land, although not a formd reservation, is "Indian country," within the meaning of section 1 15 1. 

The land has been "validly set-aside for the tribe under the superintendence of the federal 

government." United States v. McGowan, 302 U.S. at 539, quoted in Vepretie, 522 U.S. at 529. 

It is unnecessary to decide whether the Tribe's trust lands are more properly categorized as an 

infonnal reservation under section 1 1 5 1 (a)_or-as a dependent .Indian-community under section . 

1151 (b) because, regardlesH of category, the property in this case, owned by the United States in 

trust for the Tribe, is Indian country. The Tribe's trust lands come within at least one of the the 

statutory categories, because the trust lands possess the two characteristics of Indian country 

reflected in section 1 15 1. See Venetie, 522 U.S. at 527. 

Exercise of Governmental Power 

Because the trust land is Indian counQ7 we can conclude that the Tribe has jurisdiction over it. 

In order for the lmd to fit the definition of "Indian lands," we must next decide whether the 

Tribe also exercises governmental power over the parcel. See 25 U.S.C. 5 2703(4]@); see also 

Narvagameft Indian Tribe, 19 F,3d at 703. 

XGRA is silent as to how NIGC is to decide whether a tribe exercises governmental power. 

Furthermore, the manifestation of governmental power can differ dramaticdly depending upon 

the circumstances. For this reason NIGC has not formulated a uniform definition of "exercise of 

governmental power," but rather decides that question in each case based upon all the 

circumstances. See National Indian Gaming Cummission : Definitions Under the Indian Gaming 

Regulatov Act, 57 Fed. Reg. 12382, 12388 (1992). 

Case law provides some guidance. The First Circuit in Narragansett Indian Tribe found that 

satisfying this requirement depends "'upon the presence of concrete manifestations of 

[governmental] authority." Narragansett Indian Tribe, 19 F.3d at 703. Such examples incIude 

the establishment of a housing authority, administration of health cm programs, job training, 

public safety, conservation, and other governmental programs. Id. 
RohnervilEe Indian Lands Opinion 

Page 7 

In Cheyenne River Sim Tn'be v. State ofSouth Dakota, 830 F. Supp. 523 (D.S.D. 19931, afd 3 

F.3d 273 (sth Cir. 1993), the court stated that several factors might be relevant to a determination 

of whether off-reservation trust lands constitute Indian lands. The factors were: 

(1) Whether the areas are developed; 

(2) Whether the tribal members reside in those areas; 

(3) Whether any governmental sewices are provided and by whom; 

(4) Whether law enforcement on the Eands in question is provided by the Tribe; and 

(5) Other indicium as to who exercises governmental power over those areas. 

The Tribe, through its counsel, has submitted a letter wRich details examples of its exercise of 

govanmental power ever the subject trust lands. Letter from Conly J. Schulte, Esq., to Penny 

Coleman, NIGC Deputy General Counsel (December 18, 2000). According to the letter, for 

appmximateIy five (5) years the Tribe has posted a sign at the boundq of the trust lands that 

reads "Bear River Band of Rohnewille Rancheria." In addition, the Tribe has marked the trust 

land's exterior beundanes with fences. 

The Tribe indicates that it has exercised a fundamental power of tribal government in its 

excIusion of nonmembers from the trust lands. The Tribe cites two examples. hT991,_25 -- 

faculty members and students from ~umboldt Gate University we& ordered by the Tribal 

Chairperson to leave the trust Iands after they were discovered examining Wiyot artifacts on a 

construction site. In 1994, the Tribal Chairperson md other tribal government officials ousted 

from the trust Iands dozens of non-members who had entered the trust lands to view flooding. 

As fiu-ther evidence of its exercise of governmental authority over the trust land, the Tribe 

indicates that, after applying for and received funding from the U. S. Department of Housing and 

Urban Development, the tribal government directed and supervised the construction of 18 

housing units on the trust Iands. Enrolled Tribal members occupy aEI of these units. The Tribal 

government also oversaw the construction of roads on the trust lands, and acquired federal 

funding far the construction of a tribal government administration building on the bst lands. 

That building houses governmental administration offices, tribal council chambers, and serves as 

the center for the Tribe's governmental operations. The Tribe's exercise of governmental 

authority is also evidenced by its control ova water utilities, the Tribal Environmental 

Department's monitoring of wetlands and wildlife on the Tmst lands, Tribal governmental 

maintenance of the lands, and the Tribe" enactment of an ordinance to control stray dogs on the 

Eands. 

These 'concrete manifestations of governmental authority" show that the Tribe in fact exercises 

governmental authority over the trust lands in question. We are satisfied that the parcel in 

question meets the statutory and regulatory definition of "Indian lands." However, a 

determination of whether the Tribe has Indian Iands is not the end of the inquiry of whether the 

Tribe can conduct gaming on the land. 

Lands Acquirsd in Trust by the Secretarv ARer October 17,1988 
Rohnerville Indian Lands Opinion 

Page 8 

Under Section 2719Ca) 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 one of the three exceptions of 25 U.S.C. 5 2719. Accordingly, it is necessaty to review 

the exceptions to determine whether a tribe can conduct gaming on afier-acquired lands. 

The Tribe contends that the proposed site meets the requirements of the third exception set forth 

at 25 U,S.C. 5 27Z9(b)(l}@)(iii)-"Yestoration of lands for an Indian tribe that is restored to 

Federal recognition9'-and thus is outside the proscriptions on after-acquired land. To determine 

whether the Tribe meets the restoration exception under Section 2719(b)(P)@)(iii], we must 

detmine, first, whether the Tribe is a "stored" tribe and, second, whether the land was taken 

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

"'Rmtored" 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 NGC and the Department of the Interior 

to implement IGRA. 

The U.S. District Court for the Westem District of Michigan recently addressed the definition of 

'Yestored" and "restoration" in Grand Traverse Band of Ottawa and Chippewa - I~zdians v, U~ibed .- .- -- 

Stat& 2ttomq, 2@02 U.S. Dist. LZxik 7494 (April 22,2002). At issue in the case was whether 

the Grand Traverse Band was a restored tribe and whether the parcel on which gaming was 

conducted was restored lands. The Grand Traverse court held that both "re~tore'~ and 

"restoration'~hould be given their ordinary meaning ("In no sense has a proprietary use of 

"restore' or 'restoration5 been shown to have occurred." Id. at 28). Applyhg 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 that the Band was 

recognized and treated with by the United States.. .. Only in 1872 was that 

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 'kestore" and is 

reasonably construed as a process of restoration of tribal recognition. The plain 

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

Gmnd Traverse Band at *37-3 8. 

An examination of the pattern of Bear River Bmd's history shews that it is similar to the pattem 

in the case of Grand Traverse Band. Because the Bear River Band is made up of Wiyot and 

Mattole Indians, an important part of the Bear River Band's history is the history of the Wiyot. 

In 185 1 a treaty commissioner appointed by President Millard Fillmore negotiated a treaty with 

the Wiyot for a reservation. Davis Report at 205-2 1 I. While Congress refused to ratify the 
Rohnerville Indian hds Opinion 

Page 9 

treaty, Congress did not make it known until 1910 that the treaty, and I7 others that had been 

negotiated, had not been ratified. Davis Report at 219-229. J~I 1906 and 1908, Congress 

enacted legislation appropriating money to purchase property for landless Indians, the Wiyot 

among them, in California. Davis Report at 338. In 1910, the 15-acre Rohnerville Rancheria 

was established near Fortuna, California Id. 

h 1958, Congress enacted House Concu~ent Resolution 108, which initiated a termination 

policy. Passage later that year of House Resolution 2824 and hblic Law 85-671, hown as the 

California Rancheria Act, called for the termination af Federal trusteeship on the Rohnerville 

Rancheria and 43 other rancherias within the State of Califomia. The Roherville Rancheria was 

formally terminated in 1962. 

During the 1970s, the Rohnerville Heights Indian Community joined with other Indian 

community pups that had been terminated by the California Rancheria Act. In the United 

States District Court for the Northem District of California, the communities filed suit against 

the Federal government for illegally withdrawing recognition under the Act, The litigationknown as the "Tillie Hardwick" case-alleged that the termination of seventeen California 

Rancherias had been illegal. 

In 1 983, the United States settled the Tillie Hardwick litigation. Tillie Hardwick et al. v. United 

States, Civil No. C-791j-710-S W (N.D. CaI.1.983) (unpublished), -T_hrough -a- stipulated -- 

judgment, the United States agreed to recognize the tribes' rights to receive federal Indian 

benefits and engage in government-to-govment relations with the federal government. On . June 1 1, 1984. purmant to an order issued December 22, 1983, the Secretq of the Interior 

restored to Federal status seventeen California rancherias, including the Bear River Band of the 

Rohnerville Rancheria. 49 F.R. 24084 (19~4)~~ On March 4, 1986, the United States signed a 

Stipulation to Restoration of Indian Country and Order that stipulated that the originaI 

boundafies of the Rohnerville Rancheria, among others, be as they existed immediately prior to 

the Ranchaia Act. 

In short, like the Grand Traverse Band, the Bear River Band has been recognized by the federal 

government, terminated, and again recognized. Accordingly, we find that the Bear River Band 

of Rohnerville Rancheria qualifies as "an Indian tribe that is restored to Federal recognition" 

under 25 U23.C. 5 271 9@)(1)(B)(iii). 

Restoration of Lands 

Having concluded that the Tribe is a restored tribe under IGRA, the question remains whether 

the Iand 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. 5 2719@)(1)(B)(iii). 

Federal courts, U.S. Department of the Interior, and NIGC have recently grappled with the 

concept of restoration of land. In so doing, they have established several guideposts for a 

restoration-of-land analysis. First, "restored" and "restorationa' must be given their plain, 

The Secretary is required to publish an ma1 list of federally recognized iribes. 25 U.S.C. 5 479a-1. 
Rohnerville Indian Lands Opinion 

Page 10 

primary meanings. Grand Tmverse Band of Ottawa and Chwpewa Indians v. United States 

Attom~y for the Western District of Michigun ("Grand Traverse Band H'), 2002 U.S. Dist. 

LENS 7494, * 34 (W.D. Mich. 2002). Confederated Tribes of Coos, Lower Umpqeca & Siuslaw 

Indians v. Babbitt ("Coos'") 116 F. Supp.2d 155, 161 @.D.C. 2000). In addition, to be 

"restored," Iands need not have been restored pursuant to Congressional action or as part of a 

tribe's restoration to federal recognition. Grand T~averse Band ofOttawa and Chippewa Indians 

v. United States Attornq for the Westm District of Michigan ("Grand Traverse Band 1'") 46 F. 

Supp.2d 689, 699 (W.D. Mich. 1999); Coos at 164. The language of section 

2719(b)(l)(B)(iii)-"rmtoration of lands for an Indian tribe that is restored to Federal 

recognition7'-"implies a process rather than a specific transaction, and most assuredly does not 

limit restoration to a single event." Grmd Trmerse Band JI at "43; Grand Traverse Band I at 

701. 

Nonetheless, there are limits to what constitutes restored lands. As NICC stated in the Grand 

Traverse Opinion, "[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." NIGC Grand Traverse Opinion at p. 15; see also Office of the Solicitor's 

Memorandum Re: Confederated Tribes of Coos, Lower Umpqua & SiusEaw Indians v. Babbitt 

(Office of the Solicitor's Coos Opinion) (Tt 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 I7 noted that some limitations might be 

requird on the term "restoration" in order to avoid a result that "any and all property acquired 

by restored tribes would be eligible for gaming." Coos at 1 64; Grand Traverse Band I at 700; see 

also Grand Traverse Band I1 at *39-40 ("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"'). A11 the courts proposed that land acquired after restoration be limited by 'Yhe 

factual circmstances of the acquisition, the location of the acquisition, or the temporal 

relationship of the acquisition to the tribd restoration. Id. In this case, these factors lead us to 

concIude that the Tribe's land acquisition is a "'restoration." 

I. Factual Circumstances of the Acquisition 

The Tribe acquired the 60-acre parcel in 1991. The Department of the Interior took the parceI 

into trust in 1994. The Tribe's acquisition arose in the following context: 

The original Rohnerville Rancheria was purchased by the United States in 191 0 and consisted of 

15.187 acres located within the city limits of Fortuna, Humboldt County, California. The Tribe 

was terminated in 1962, and the 15 acres were divided into individual parcels and distributed to 

individuaI Indians. By the time the Ramheria's boundaries were re-established, after the 1983 

TiElie Hardwick litigation in 1983,6.75 acres remained in individual Indian ownership. The rest 

of the Rancheria had been acquired by non-Indians. (Monteau submission, Exh. A [I989 

Application fox Community Development Block Grant]). 
Rohnerville Indian Lands Opinion 

Page 11 

A May 18, 1993, Memorandum from the Sacramento Area Director, BIA, to the Assistant 

Secretary, Indian Affairs, regarding the 60-acre off-reservation fee-to-trust acquisition supports 

tJis history. The Memorandum states that '?he 15.52-acre tract then camprising the Rohnerville 

Rancheria had been subdivided into 20 small lots and subsequently conveyed to individual 

Indians in fee simple stams by deeds. With the exception of six lots, this land had either been 

sold or lost for nonpayment of taxes by 1983."' Jaeger Opinion, p. 2. The Jaeger Opinion further 

states that "[a]s a result of Iitigation against the United States, the Indians of the Rancheria had 

their Indian status restored, and they have been working toward establishment of a land base and 

tribal government over the last 1 0 years." Id. 

These documents indicate that the BL4 was mindful that the Tribe was without a land base when 

it granted the Tribe's off-reservation land acquisition request.3 Nonetheless, the fact that 

officials within the BTA recommended that land be taken into trust for a landless Tribe does not 

in itself indicate that the land was, in fact, restored. "Restoration"' denotes a taking back or being 

put in a former position. Coos at 162. It might mean "reacquired." Id. ("The 'restoration of 

landskconEd be construed to mean just that; the tribe would be placed back in its former position 

by reacquiring Iands.") In any event, 'kestoration" 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 

The parcel at issue on which the Tribe proposes to game is located outside the restored 

boundaries of the Rancheria as it existed immediately prior to termination under the California 

Rancheria Act. Jaeger Opinion at 5. SpecificalIy, the proposed gaming site is six (6) miles hm 

the boundaries of the former Rancheria. Monteau, Peebles submission, p. 10. The U.S. district 

court established the Rancheria's boundaries in 1986 when, pursuant to the original TiIIie 

Hardwick decision, it determined the boundaries of the affected tribes. Tillie Hardwick et al. v. 

United States, Civil No. C-79-1710-SW (Order For Entry Of Judgment As To Humboldt 

County) (judgment entered according to the terms of the Stipulation For Entry of Judgment 

(Hwnboldt County)). In the order, the court declared that the boundaries were "[Elhe original 

boundaries of the Ranchaia, as they existed prior to their purported termination under the 

Rancheria Act ...." TiIEie Hardwick et al. v. United States, Civil No. C-79-1710-SW, at p. 2 

(N.D. Cal. 1986) (Stipulation To Restoration For Entry Of Judgment (Humboldt County)) 

(unpublished). 

That the proposed site is off-reservation does not preclude its being restored. Grand Traverse 

Band I at 702. However, there must be indicia that the land has been in some respect been 

recognized as the Band's. In Grand Traverse Band II, the court held that the Iands at issue were 

restord because they lay within counties that had previously been ceded by the tribe to the 

United States. Grand Traverse Band II at 43-44. 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. 

The Sacramento Area Director's recommendation that favorable cornideration be granted to the Tribe's offreservation land acquisition request was accepted by the Assistant Secretary, Indian Afiairs. Memorandum fiom 

Assistant, Secretary, Indian Affairs, to Sacramento Area Director (December 28, 1993). 
Rohnerville Indian Lands Opinion 

Page 12 

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 remain4 so immediately on resumption of federal recognition." 

Grand Traverse Opinion at 1 5. The tribe's history included the ceding of that vay ground to the 

United States by the ancestors of the present tribe in a 1836 treaty Id. at 9-10, 16. As a result, 

MGC concluded that the Band had n "historical nexus" to the land. Id. at 1 4. 

The Davis Report and the Tribe's previous submission indicate that the Bear River Band of 

Rohne~Ele Rancheria consists of Wiyot, Mattole, Nongatl, and Bear River Indians. The Wiyot 

Tribe lived in the Humboldt Bay area around 900 B .C.E. and the Bear River Band Mottole lived 

south of that area beginning around 1300 B.C.E. Davis Report at 74 and 81-84; Albert B. 

Elsasser, "Wiyot" and "Mattole, Nongate, Sinkyone, hsik wd Wailaki," Handbook of North 

American Indians, Vol. 8 (Srnithsonian Institution 1978). 

More importantly for this legal analysis, however, the Davis Report shows that the Tribe has a 

historical nexus to the 60 acres specifically at issue here. Evidence presented in Davis's 400- 

page study of Wiyot and Mattole culture includes both a narrative description and map showing 

the Tribe's use of the area in which the 60 acres are located. Davis's map is based on a map 

created in 1918 by LIewellyn L. Loud, author of an article entitled "Ethogeography and 

Archeology of the Wiyot ~erri~.'~ Loud's map marked the territory of the Wiyot language 

with numbers delineating village sites. Amendment and Related Documents, Tab 13. Davis 

added to this map sites relevant to the restored-lands issue. 

Davis's map shows, for example, that within a one (1) mile radius of the parcel are: a mythic 

pond that is the setting of m old tribal story; two (2) aboriginal villages, Howotkil and Wasala, 

that were major Wiyot settlements in 1850; and two major trails, Laloeka and Woxlok, that ran 

from the Eel River towards the north. Davis Rqort at 41 3- 141. Within a three (3) mile radius 

of the parcel are: five (5) aboriginal villages, Tokwherok, Sweanawochkro, Miplok, 

Wochwochkor, and Hokonwoyok; and a town founded in 1870 after European contact, 

Indianola. Id. at 414. Between three (3) and four (4) miles from the parceI is TabIe Bluff, the 

site of a mythic flood in a Wiyot story telling of the re-population of the world. Id. at 415. 

Within a six (6) mile radius of the parcel are: the first Wiyot town established after European 

contact; eleven aboriginal viIlages, Welapl, Totukuk, Wotsalike, Tekwogok, Tolotpilik, 

Itegokshule, Kewigergoyok, Tswokerok, Tsolskoge, Kiegergodolil, Wotwetwok; and the 

Rohnerville Rancheria. Id. at 415. 

Unlike the land at issue in Grand Traverse Band, the land taken into trust here was not part of a 

prior reservation. In 1851, a government representative sent by President Fillmore 

unsuccessfully tried to negotiate a treaty with a pup known as the Eel River Wiyot. As an 

alternative, the representative, McKee Redick, negotiated a reservation with the white settlers. 

That reservation had as its northem boundary the Eel River arid so did not include the parcel at 

issue. Congress never ratified McKee's treaty, however. Davis Report at 209-21 1. mIe the 

location of the land in a prior reservation has been found by the court to be determinative in the 

Grand Tmerse Band case, a prior reservation is not required in order for the land to be deemed 

4 14 American ArcheoIogy and Ethnology JomI, 222-437 (University of California 191 8). 
Roherville Indian Lands Upinion 

Page 13 

restored. Because the parcel is located in the middle of these many sites that were used by the 

Wiyot, we can assume that the parcel, too, was used by the Wiyot and by the Wiyot's 

descendents, the Bear River Band. The Tribe has therefore proven a historical and cultum-al nexus 

to the land sufficient to show that the parceI was not merely an acquisition but a restoration of 

previously used Iands, 

3. Temporal Relationship of Acquisition to the Tribal Restoration 

The Tribe was restored, through the Tillie Hardwick decision, in 1984. The Tribe acquired the 

parcel at issue in 1991, seven years after the Tribe was restored. The BIA took the land into trust 

in 1994, ten years after the Tribe" restoration. 

According to the Monteau, Peebles submission, after the Tribe's restoration, the Tribe intended 

"to reacquire lands within the restored boundaries of the Rancheria in order to provide housing 

for ~bal members." Monteau, Peebles submission, p. 3. While some of the land within the 

Rancheria was owned by tribal members after termination, about half was not. The Tribe was 

unable to obtain the alienated land within the Ranche~a or adjacent to it. Id., see also Exh. f. (A). 

The Tribe therefore continued to look for land for housing purposes outside of the Rancheria's 

boundaries. The 60-acre parcel was the first land acquired after the Tribe's restoration. 

There is a significant gap in time between the Tribe's restoration and the parcel's acquisition. 

This ten-year gap is simiIar to that in the case of the Grand Traverse Band's off-resemation 

acquisition, which was taken into trust nine years after Grand Traverse Band's achowledgernent 

through the administrative fedml acknowIedgement procedures. Also similar to Grand Traverse 

Band, the acquisition is the first and only land acquisition afier the Tribe's restoration. Unlike 

Grand Traverse Band, on the other hand, the adopting of the Tribe's constitution was not 

cotemporaneous with the land acquisition. The Tribe's frst constitution was adopted in 1989 

(Monteau, Peebles submission, p. I), two years before the acquisition, whereas the Grand 

Traverse Band's constitution was adopted the same year that the Band began acquiring its 

muItiple parcels of property (Grand Traverse Band I at 702). 

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

concIusion that the land is restored. In its Office of the Solicitor's Coos Opinion, the Department 

of the Interior found that a 14-year lapse between a tribe's restoration and the acquisition of Imd 

into trust did not foreclose a finding that the land was restored. Associate Solicitor Phil Hogen 

observed: 

... Congress allowed 14 years to elapse before restoring the Peterson Tract to the 

Tribe. Thus, in this particuIar instance, without some relevant attenuation, the 

mere passage of time should not be determinative. Also, it is not improper of the 

Department to take account of the practical effect of the passage of the restored 

lands exception. For instance, it will often be the case that newly restored tribes 

will, out of practical necessity, take some time to acquire land [footnote omitted]. 

The Department recognizes, as Congress surely did, that newly restored hbes do 

not have readily available funds for land acquisition, that land is not always 

available, and the process of land acquisition is time consuming .... Thus, the 
Rohnenille Indian Lands Opinion 

Page 14 

Tribes quickly acquired the land as soon as it was available and within a 

reasonable amount of time after being restored. 

Ofice of the Solicitor's Coos Opinion, pp. 13-14. 

We concIude that the facts surrounding the timing of the acquisition support a determination of 

"restored Sand." A ten (10) year gap between the land's acquisition and the Tribe's restoration is 

a sufficient 'Yernporal relationship" to establish lands as "restored." More important, the 

acquisition of the parcel was the first for this restored tribe. 

In light of federal cases interpreting the restored lands exception, and the factual circumstances, 

location, and timing of the acquisition, we conclude that the Tribe's proposed gaming site was 

taken into trust as part of a "restoration" of lands to the Tribe. The Tribe has shown that the Iand 

has been acquired to address the issue of landlessness and that there is a historical and cultural 

nexus between the Tribe and the land. 

Conclusion 

IGRA permits tribes to conduct gaming on Indian lands only if they have jurisdiction over those 

lands, and only if they can and do use that jurisdiction to exercise governmental power which 

will enable the tribe, through appropriate ordinances, to satisfy the statute's substantial and 

detailed requirements for the regulation of gaming. After careful review and consideration, we 

conclude that the Tribe's trust land qualifies as Indian Iands as defined by IGRA and NIGC 

regulations. A close examination of the documentation submitted shows that the Tribe had a 

historical and cultural connection to the Iand and that the land is therefore restored. The 

proposed gaming site therefore falls within the restorsd land exception to Section 2719. The 

Tribe may therefore lawfully conduct gaming on its proposed site pursuant to IGRA.