December 3,2001 

Ms. Sara J. Drake 

Department of Justice 

State of California 

P.O. Box 944255 

Sacramento, CA 94244-2550 

Re: Status of the Picayune Rancheria Lands 

Dear Ms. Drake: 

We received your letter dated September 28,2001, that serves as the State of California's 

public comment to the draft Environmental Assessment (EA) prepared by the Picayune 

Rancheria of Chukchansi lndians (Tribe) for its Class Ill casino project. Your letter and a 

subsequent conversation with this office confirmed that you essentially question whether 

the casino will be operating on a reservation. 

As you know, the Picayune Rancheria and Cascade Gaming have a management contract 

that will ultimately be approved or disapproved by the Chairman of the National Indian 

Gaming Commission (MGC). As part of the approval process, the Commission must 

determine whether the proposed gaming will occur on Indian lands. Because of this 

responsibility, the NIGC requested that the United States Department of the Interior make 

a determination as to whether the lands in question are deemed Indian lands pursuant to 

25 U.S.C. 5 2703(4) of the Indian Gaming Regulatory Act (IGRA). 

In a letter to Kevin K. Washburn, General Counsel, NIGC, dated March 2,2000, Derril 

B. Jordan, Associate Solicitor, Division of Indian Affairs, Department of the Interior 

(Department) concludes that lands located within the boundaries of the Picayune lands 

are "Indian lands" and therefore may be used for Indian gaming operations on the 

property. This opinion is based largely upon a case that challenged the termination of 

seventeen California Rancherias. Tillie Hardwick et al. v. United States, No. C-79-1710 

SW (N.D. CaI. 1979). In final disposition of this case, the Tribe and the County 

stipulated and the court so ordered that the original eighty acres of the Picayune 

Rancheria be restored and that all lands within the restored boundaries be declared 

'Indian Country." Hardwick, Stipulation and Order (Madera County) Para. 2.C., at 4, 

May 20,1987. The parties also stipulated and the court ordered that the Rancheria "shall 

be treated by the County of Madera and the United States of America, as any other 

federally recognized Indian Reservation. Hardwick, 1983 Stipulation and Order, 

Paragraph 2.D. at 4. As such, the Department concludes that the Picayune Rancheria is a 

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Letter to Sara J. Drake 

December 3,2001 

Page 2 

reservation - thus qualifjing under 25 U.S.C. 5 2703(4) as Indian lands. Further, because 

the lands qualify as a reservation, the Department also concludes that the land in question 

need not be taken into trust. Our office subsequently adopted the Department of 

Interior's views. 

The State also~appit~ently believed that these lands are Indian lands, because on October 

8, 1999, the State signed a.compact with Picayune Rancheria permitting gaming.' 

Nonetheless, the State now asserts that the parcels in question are not "Indian lands" 

within the meaning of the IGRA. In essence, California asserts that land must be held by 

a Tribe in trust and otherwise meets the requiremeIits of 25 U.S.C. 5 2719 before it can be 

considered "Indian land^".^ Further, the State disagrees with the notion that the fee 

property within the former boundaries of the Rancheria is 'Indian Country' within the 

generally accepted definition. California argues that no part of the property has been set 

aside by the federal government for the Tribe, nor is any of it under federal 

superintendence pursuant to Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 

520, 530,118 S.Ct. 948. 

At the present time, the Picayune Tribe has a total land base of approximately 160 acres, 

including the 80 acres of original rancheria land. The proposed site for the tribal gaming 

operation lies within the original boundaries of the Picayune Rancheria in the County of 

Madera, Calif~rnia.~ Inconcurring with the Department's opinion, we likewise conclude 

that the proposed gaming operation is located on lands considered "Indian lands" 

pursuant to 25 U.S.C. 5 2703(4)(A). We conclude that the lands located within the 

Picayune Rancheria should be treated as a reservation. As such, it is not necessary for the 

Tribe to place land located within the exterior boundaries of the Rancheria in trust. 

Further, because the proposed casino site is located on a reservation, the Tribe is not 

' Section (C) of the Preamble to the Compact states: "The Tni does not currently operate a gaming 

facility that offers Class III gaming activities. However, on or after the effective date of this Compact, the 

Tni intends to develop and operate a gaming facility offering Class III gaming activities on its reservation 

land, which is located in Madera County of Califor&" 

2 The section of the IGRA cited by the State, 25 U.S.C. 5 2719, regards gaming on lands acquired after 

1988. This section does not apply to those lands that are located within or contiguous to the boundaries of 

the reservation of the Indian trii on October 17,1988. 

3 As evidenced by materials provided by the Tnis counsel, the proposed site is descriied as Parcel 1 of 

Parcel Map No. 1870 according to the map thereof recorded August 21,1981 in Book 27 of Maps, at Page 

182, Madera County Records. APN: 054-330-03 1 3. Also, Parcel NO.'^ of Parcel Map 1870, in the County - 

of Madera, State of California, per map recorded August 2 1,198 1, in Book 27 of Map at page 182 of 

Madera County Records, together with the right of access upon Parcel 1 of said Parcel Map as reserved 

thereon. APN: 054-330-032. Parcels 1 and 2 (Surveyor's Map, EA July 2001) were purchased by the 

Tni in 1995 md 1996, and the Tni currently holds title to these Parcels. These Parcels descnied above 

are within the originid boundaries of the Picayune Rancheria 4escnid as the lands in the north half of the 

northeast quarter of section 29, township 8 south, range 2 1 east of the Mount Diablo meridian. 
Letter to Sara J. Drake 

December 3,2001 

Page 3 

subject to the requirements of 25 U.S.C. 5 2719. Finally, we conclude that Venetie does 

not apply to the facts at hand. 

The following should clariQ any hrther questions you might have pertaining to whether 

the parcel in question is considered Indian lands pursuant to the IGRA. 

LEGAL BACKGROUND 

The IGRA explicitly defines "Indian lands" as follows: 

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

(E3) 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. 5 2703(4). 

NIGC regulations have further clarified the Indian lands definition, 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. § 502.12. Generally, lands that do not qua@ as Indian lands under IGRA are ' subject to state gambling laws. See National Indian Gaming Commission: Definitions 

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

ANALYSIS 

1. Land located within the exterior boundary of the Picayune acher ria should 

be treated as a reservation. 

Originally, the Picayune Rancheria was established by Executive Order of April 24, 

1912. Eighty acres were set aside for Indian use. In 1951, however, the State of 

California requested the United States Congress to authorize the termination of all 

restrictions upon California Indian Tribes. In 1954, responding to a Congressional 
Letter to Sara 3. Drake 

December 3,2001 

Page 4 

~esolution, H. Con. Res. 108, 83" Congress, August 1, 1953, to terminate federal 

supervision in the State of California, the Department of the Interior submitted a bill to 

provide for the distribution of the land and assets of the Rancheria, In 1958, Congress 

enacted Public Law 85-671,72 Stat. 61 9, Act of August 18,1958 as amended by the Act 

of August 1 1,1964,78 Stat. 390 ("California Rancheria Act7'). As a result, numerous 

Indian land parcels in California, including the Picayune Rancheria, passed out of federal 

ownership and were no longer held in trust for the tribes by the United States 

Government. 

In 1979, the Picayune Rancheria joined with sixteen other California Indian Rancherias 

in a class action lawsuit in part to restore the reservation status of the rancherias, claiming 

that the trust relationship with the United States government had been illegally terminated 

under the California ~icheria Act. Tillie ~ard&ck et al. v. United States, No. C-79- 

1710 SW (N.D. Cal. 1979). The Rancheris sought, among other things, judicial 

recognition that "[tlhe Secretary of the Interior is under a duty to 'unterminate' each of 

the subject Rancherias, and . . . to hold the same in trust for the benefit of the Indians of 

the original Rancheria;" and further that " [t]he Secretary of the Interior is under a duty to 

treat all of the'subject Rancherias as Indian reservations in all respects[.]" Hardwick, 

Complaint at 27. 

The litigation was ultimately settled. Settlement was achieved by stipulation between the 

Rancherias and the United States and then between the Rancherias and the respective 

counties in which they lay. 

The first stipulation, which was between the Rancherias and the United States and was 

approved federal court order on December 22,1983, provides, in relevant part, as 

follows: 

3. The status of the named individual plaintiffs and other 

class members of the seventeen Rancherias named and 

described in paragraph 1 as Indians under the laws of the 

United States shall be restored and confirmed. In restoring 

and conliming their status as Indians, said class members 

shall be relieved of Sections 2(d) [subjecting any property 

so distn'buted to taxation] and 10(b) [terminating services 

provided to Indians] of the California Rancheria Act and 

shall be deemed entitled to any of the benefits or services 

provided or performkd by the United States for Indians 

because of their status as Indians, if otherwise qualified 

under applicable laws and regulations. 
Letter to Sara J. Drake 

December 3,2001 

Page 5 

4. The Secretary of the Interior shall recognize the Indian 

Tribes, Bands, Communities or groups of the seventeen 

rancherias listed in paragraph 1 as Indian entities with the 

same status as they possessed prior to distribution of the 

assets of these Rancherias under the California Rancheria 

Act, and said Tribes, Bands, Communities and groups shall 

be included on the Bureau of Indian Affairss' Federal 

Register list of recognized tribal entities pursuant to 25 

CFr, Section 83.6(b). Said Tribes, Bands, Communities or 

groups of Indians shall be relieved From the application of 

section 1 1 [revoking constitutions under the Indian 

Reorganization ~ct~] of the California Rancheria Act and 

shall be deemed entitled to any of the benefits or services 

provided or performed by the United States for Indian 

Tribes, Bands, Communities or groups because of their 

status as Indian Tribes, Bands, Communities or groups. 

10. The Secretary of the Interior, named individual 

plaintiffs, and other class members agree that the 

distribution plans for these Rancherias shall be of no 

further force and effect and shall not be Mer 

implemented; however, this provision shall not affect any 

vested rights created thereunder. 

Hardwick, Stipulation and Order, December 22, 1983. 

. The stipulation with the United States left "for further proceedingsyy the question of 

whether to restore former boundaries of the Rancherias. Id., Paragraph 5 at 4. (''The 

court shall not include in any judgment entered pufsuant to this stipulation any 

determination of whether or to what extent the boundaries of the Rancherias listed and 

described in paragraph 1 shall be restored and shall retain jurisdiction to resolve this issue 

in further proceedings here,in.") 

In 1987, during such further proceedings, the County of Madera and the Picayune 

Rancheria reached the following stipulation: . 

The original boundaries of the [Picayune Rancheria] as described in paragraph 2.B.1 

above [Exhibit A to the Stipulation for Entry of Judgment, filed herein on August 2, 

4 25 U.S.C.5 461 et seq. 
Letter to Sara J. Drake 

December 3,2001 

page 6 

1983, and made the judgment of this Court on December 

22,1983, in Order Approving Entry of Final Judgment ] are 

hereby restored, and all land within these restored 

boundaries of the [Picayune Rancheria] is declared to be 

"Indian Country." (emphasis in original) 

Hardwick, Stipulation and Order (Madera County) Para. 2.C., at 4, May 20,1987. 

Although the United States was not among the parties that signed the 1987 stipulation, 

which was primarily designed to resolve issues surrounding the payment of real property 

taxes to the County of Madera, the 1987 Stipulation was accepted by the federal court 

and was entered- as a judgment. Hardwick, Stipulation and Judgment, filed June 16, 

1987. 

Based on these judicial proceedings, the Department concluded that the Picayune Tribal 

parcel was "Indian land." As the Department noted in the Picayune Rancheria opinion, 

the 1983 Stipulation reflects the United States' agreement that the individual members of 

the Rancherias would be restored to their status as Indians and that the United States 

would recognize the Indian Tribes, Bands, Communities or groups of the seventeen 

Plaintiff Rancherias as Indian entities with the same status that they possessed prior to the 

California Rancheria Act. Restoring reservation boundaries is consistent with restoring 

the Rancherias to their previous status. 

The 1983 Stipulation fixher provided: 

The picayune Rancheria] shall be treated by the County of 

Madera and the United States of ~rnerici as any other 

federally recognized Indian ~eservation: and all of the 

laws of the United States that pertain to federally 

recognized Indian Tribes and Indians shall apply to the 

picayune Rancheria]. . . . 

Hardwick, 1983 Stipulation and Order, Paragraph 2.D. at 4. To implement the terms of 

the settlement, the Department of the Interior published a notice in the Federal Register, 

49 Fed. Reg. 24084 (1 984), stating that the seventeen Rancherias in the Hardwick 

litigation were relieved fiom application of the California Rancheria Act. Moreover, the 

1987 Stipulation, which was accepted by the federal court in the Hardwick c&e confhms 

that the Iand is "Indian country as defined by 18 U.S.C. 5 1 15 1 ." Hardwick, Stipulation 

(with County of Madera) Paragraph 1 .G. at 2. 

Both stipulations are consistent with the long-standing position of the Department of the Interior that 

Rancherias are reservations "for all practical purposes." 1 Op. Sol. On Indian Affairs 891 (U.S.D.I. 1979). 
Letter to Sara J. Drake 

December 3,2001 

Page 7 

When reviewing the Hardwick stipulations, the Northern District of California confirmed 

that the Pinoleville Ranchera should be treated as a reservation. In Governing Council of 

Pinoleville Indian Community v. Mendocino County, the Pinoleville Rancheria 

challenged the moratorium on new industrial uses on the Rancheria. 684 F. Supp 1042, 

1043 (N.D. Cal. 1988). The Pinoleville Rancheria, like the Picayune Rancheria, was 

terminated according to the Rancheria Act and subsequently restored in the Hardwick 

settlement stipulations. Pinoleville, 684 F. Supp at 1043-44. The court considered the 

effect of the Hardwick judgments on the Tribal Council's power to regulate, and 

determined that "the clear and fundamental intent of the judgment [was] to restore all 

land within the original Rancheria as Indian Country and Mendocino Country's express 

undertaking [was] to treat the entire Rancheria as reservation[.] Id. at 1046 (emphasis in 

original). The court held that the Tribal Council had the authority to zone non-Indian fee 

land within the boundaries of the Rancheria. Id. at 1045. The court also cited a letter 

fiom the Bureau of Indian Affairs which stated: "[Ilt is our opinion that the Pinoleville 

Indian Community has the authority to enact an ordinance which restricts land use by 

anyone within the& exterior boundhes when such use has been deemed detrimentalto 

the health or welfare of the Pinoleville Indian Community. B.I.A. letter at 1 (emphasis in 

original)." Id, at 1042. Thus, Rancherias restored by the Hardwick stipulated judgments 

are treated by the County and the Bureau of Indian Affairs like any other Indian 

2. Indian Lands need not be held in trust nor be handled in accordance with 

5 2719. , 

The.specific language of 25 U.S.C. 8 2703(4)(A) defines Indian lands to include "all 

lands within the limits of any Indian reservationyy. When analyzing the trust question, the 

Department correctly states: 

The Tribe is correct that they need not have the land taken into trust. 

Subsection (A) defines Indian lands to include "all lands within the 

limits of any Indian reservation." It does not require that lands within 

the boundaries of a reservation be held in trust. By providing that "all 

lands" within a reservation are Indian lands, it is clear that Congress did 

not intend to include an additional requirement that the lands also be held 

in trust. 

- 

6 Furthennore, when discussing the status of the Robinson Rancheria (not a Hardwick Rancheria), the 

Duncan court held that "Congress clearly contemplated that this land have the same general status as 

reservation lands". See generally United States Department of the Interior, Federal Indian Law 609 (rev. ed 

1958) (not necessary that Congress use the word "reservation" to create Indian reservation lands); United 

States v. McGowan, 302 U.S. 535,538-39 (1938). Duncan v. United States, 667 F.2d 36,41,229 Ct. C1 

120,128 (1981), cert. denied, 463 U.S. 1228,103 S.Ct. 3569,77 L.Ed2d 1410 (1983) 
Letter to Sara J. Drake 

December 3,2001 

Page 8 

Subsection (B) allows lands to be Indian lands if the land 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. The 

Indian lands definition is subject to the requirements of subsection (B) only if 

subsection (A) does not apply. Because the Picayune Rancheria is a reservation, 

subsection (B) need not apply to our analysis. 

Likewise, because the Picayune Rancheria is a reservation and the gaming operation is 

located within the exterior boundary on the reservation, 25 U.S.C. ij 271 9 is not 

applicable. This section is in regadto land acquired after 1988. This section does not 

apply to those lands that are located within or contiguous to the boundaries of the 

reservation of the Indian tribe on October 17,1988. 

3. Venetie does not apply to this analysis. 

In your letter, California cites Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 

520, 118 S. Ct. 948 (1998) for the proposition that the Picayune Rancheria is not Indian 

Country because none of the Rancherias has been set wide by the federal govemment for 

the tribe, nor is any of it under federal superintendence. Venetie was about 18 U.S.C. 

$ 1151(b). This section pertains to "dependent Indian communities", opposed to section 

1 15 1 (a), which concerns Indian reservations. "Dependent Indian communities" refers to 

a category of Indian lands that are neither reservation nor allotments. Venetie, 522 U.S. at 

520. Because we have determined that Hardwick restored the Picayune Rancheria to 

reservation status, Venetie has no connection to our analysis. Furthermore, the "set 

aside" and "superintendence" analysis is not relevant at this time because such analysis 

does not apply to reservation land. 

CONCLUSION 

In concurring with the Department, we likewise conclude that the proposed gaming 

operation is located on lands considered "kdian lands" pursuant to 25 U.S.C. 

§2703(4)(A). We thank you for your comments. If you should have any additional 

questions regarding this matter, do not hesitate to call. 

Staff Attorney 

cc: Picayune Rancheria of Chukchansi Indians