United States Department of the Interior 

OFFICE OF; THE SOLICITOR 

Washington, D.C. 20240 

lNRtPLYR6FWIO: 

Memorandum 

To: George Skibine, Director, Office of Indian Gaming Management 

From: Philip N. Rugen, ~sociefc ~olisitor, Indian AfF&x\ kF 

Subject: Revisiting lhe United Auburn Indian Community lands opinion. 

On December 14,2001, you asked tny legal advice regarding whether recent court cases, 

Grand Traverse and Coos, and/or the subsequent legal opinions issued by NIGC and the 

Solicitor's office' changed the Aubm Indian lands opinion issued by the Associate Solicitor for 

Indian Af&s on January 18,2000 (Mer "Auburn opinion.") As you know, both the 

MGC's G'FB opinion and my Coos opinion found certain land met the re.torcd lands exception 

in the Zndian Gaming Regulatory Act (IGRA). These opinions use a broader inteipretation 

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restored lands provision in IGRA than the interpretation of that provision in the Auburn opinion, 

i.e. that restored lands are limited to those lands Congress authorizes to be taken into trust on 

behalf of a tribe in the tribe's restoration act. I do not believe that these opinions arc inconsistent 

and, therefore, no change to the Auburn opinion is necessary. 

The Auburn opinion concluded that a 49.21 acre panel in Placer County, California 

qualified as "restored lmd" under section 25 U.S.C. 2719(b)(l)(D)(iii) of IGRA. This opinion 

looked to the language in the Auburn Restoration Act which provided that: 

.... 

Thk Secretary may accept any id property located in Placer County, California, 

for the benefit of the Tribe if convqd or otherwise transfmcd.tn -ihc Secretary, - -. .. it; at the time of such conveyance ox transfer, there are no adverse le&l claims on . .' 

such prom, including outstanding liens, mortgages, or taxes ow&. ' 

5 0. . . . 

25 U.S.C. 9 lUHII-2(a). The 'Auburn opinion found that lands taken'into.tmst in Placer Counv 

met the restored lands exception found in 25 Y.S.C. 5 271 9(b)(l)(B)(ii). .- 5. . 

- ... : :, :-; 

Gd Traverse Bdv. Unfred States, 46.F. Sum. 689 (W.D. GCp 1999) and:&=- 

. . .. subsequent ~ukt 3 1.2001 legst opinion issued by the National 1- 'aniing ~ommks&~ 

(NIGC) finding restored lands for-$he Orand Traverse Bkd (GTB) &d Confeederafed Tehof 

Coos, Lower Umpqua rmJSiusIaw Indians v. Babbitt, .I 16 F. E3upp.W !I55 (Dist. D.C. 2000) 

and my December 5,2001 legal opinion finding restored landsbfor -coos. , 

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In the GTB and Coos opinions we determined restored lands provision in 1GlW could be 

interpreted to include Imds other than those Iands identified in a restoration act or the initid 

reservation of a tribe restored to federal recognition through the acknowledgment -process. For 

GTB and Coos tribes, both of which were restored prior to the passage of XGW restored lands 

can &o be determined by analyzing the specific Iand in question to detexmine whether the lands 

have a temporal and geographic connection to the restored tribe as well as historically significant 

to the tribe. 

This broader interpretation of the restored lands opinion is consistent with the 

interpretation expressed in the Auburn opinion. Of course, the clearest inclication of 

congressional intent to restore lands is, as in the case of Auburn, when Congress expressly 

provided for the restoration of lands to a tribe in its restoration act either through discretionary or 

mandatory authority to take land into trust- For Auburn, Congress specificzdly spoke to the 

gcogrnpbic area, Placer County, where the Department could take land into trust for the 'Tribe. 

What changed since the January 18,2000 Auburn opinion is that the Department no longer sees 

this os the exclurive means by which lands can meet the restored lands exception in 25 U.S.C. 25 

U.S.C. 5 2719(b)(l)@)(iii). In addition to lands being identified 'in a restoration act or a tribe's 

initial reservation, m limited citr:umstanccs, a tribc may be able to denlonstrate that certain lands 

can also meet the definition of restored Iands. 

Your request was accompanied by two lengthy letters submitted by the apposing sides on 

this isme. One letter was from J. Scott Smith who represents the cites of Koseville and Rocklin 

d' and the Citizens for Safer Communities. The other letter was from Howard Diclcstein at 

Dickstein & Merin who represents Auburn. Mr. Smith argued that the Auburn opinion was 

contrary to the court's decision in OTB and did not consider the court's decision in- because 

it was issued before the Coos litigation was decided. Mainly, Mr. Smith took issue with our 

reliance on the plain language of the Auburn Restoration Act and our opinion that, "When 

Congress specifies or provides concrete guidance as to what lands are to be restored pursuant to 

the restoration act, they qualify as 'restored lands' under section 20 regardless of the dictionary 

definition" Mr. Smith contends that since the courts in a and Coos considered the dictionary 

definition of restored, we must also. Mr. Dickstein argues that the Auburn. opinion is consistent 

with the COOS and decisions. 

The District Court's decision in Cm held that the Deparhnept's interpretation was 

"'uncldy narrow'' because it limited rsstored lands to those lands Congress authoxized to be taken 

into trust in the restoration act. at 163. Instead the court found that a plain meaning of 

"restoration of lads'' could be construed to include lands that place a tribe back in a position it 

held prior to terminstion. The position argued by the Mr. Smith ignores this pMn meaning of the 

statute and the admonition of the court in w. 

Moreover, the Auburn Restoration Act is clear. It provides that "[tlhe Sexmtary may 

accept any real prom located in Placer County . . * There is no indication that Congress 

intended anything otlier thah to rcstore land in Placer County for the Auburn Tribe. The only 

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condition imposed was that the such as liens, mortgages and 

1 taxes owed. If Congress must be ancesbd or 

previously owned by the clearly said that the 

Tribe may obtain 'any fi~rther to discern 

Congress' intent to restore land for the tribe. 

Finally, basic statubry constfuction requires us to read both statutes so that one does not 

negate the other. Under Mr. Smith's reading, the Congress' intent to restore lands far Auburn in 

its Restoration's Act would be limited by ICfRA. However, lCfRA was passed first and if 

Congress had wanted to the restoration of lands in the Auburn Restoration to be limited by IG1U 

it could have said so. Thus, it is contrary to these canons of statutory construction to use the 

dictionary definition of restored in IGRA to impIicitly limit the land restoration provision in the 

Restoration Act. 

H we can be of fiu-ther assistance, please don't hesitate lo ask. 

Received 08-29-05 11 :36 From-202 273 3153 

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