United States Department of the Interior 

omcE OF THE SoLIcrroR 

Wsh~ngton. D.C. ZOMO 

This Opinion address \d hether lands tarn in tnwt for the Pokagon Band of Potawatomi 

Indians pursuant to iu Restontion Act snould be considered "restoredw lands within the 

meaning of Section 10 of the Indian Gaming Xegulatory Act (IGu)(25 U.S.C. i719). If 

so, these lands would be exempt from the limitations on Indian gaming on post-1988 vust 

land ;~cquisicions found in Section 20. 

. For the reasons set forth bziow, we conclude that these lands qualify as "restored" lands 

within Section 20. This means that thc Band will be able to engage in Class I1 gaming on 

such lands. The Band will not, however, be allowed to engage in Class I11 (so-called 

*casino style") gaming on such lands unless and until the Band complies with the provisions 

of IGRA regarding cornpactine with the Sate to set the scope of gaming apd other tern 

under which such gaming would occur.' 

Backeround 

C. 

The Senate Report on the Pokagon Restoration Act provides a usehrl summary bf the history 

of the Band: 

The Pokapon Band of Potawatorni'~ndians are located in the St. Joseph River valley 

of southwestern Michi,- and northern ~ndiana. This area has been their home since 

at feast the time of first European conract in 1634. A majority of the Pokagon Band 

members continue to reside in the St. Joseph River valley. The Pokagon Band of 

P3tawaromi Indiars are the descendants of, and political successon to, at least eleven 

treaties negotiated between representatives of the United States and Indian tribal 

sovernments. 

' We understand the Band has negotiated a compact with the heovernor of Michigan 

chat limits Class 111 gaming to a single site. but the Jompact has not yet been approved by the 

:Michigan Legislature. 
S. Rsp. No. 103-266, 103d Cong. ?J Scss. at 1 (1994). "The tribal government has had a 

continuous line of Ieders, ~ariously Jenoniinated chiefs, business committee chairmen and 

tr1b31 chairmen from trenry times to rhc present." Id. 3t 3. 

Enacted in 1994, tht: Restoration Act contained a congressional finding that the Band 

ntgotiated the right to rtmain in its aboriginal territory at a time when other Potawatomi 

Bands were forced to move elsewhere. 25 U.S.C. 1300j(2). It also recired that several 

other Potawatomi Bands whose ancestcrs also were signatories to the Treaties have been 

recognized by the Secretary of the ~nterior 2s Ilrldinn tribes. Id. $ 1300j(J). The Act went 

on ro provide federal recagnition to thc' Band as an Indian tribe. 25 U.S.C. fj 1300j, et seq. 

The Restoration Act also mandates that the Secretary of the Interior acquire land in uust for 

he ~andf The Secretary shall acquire real property for the Band. Any iuch 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 pan of the Band's reservation." .25 U.S.C. 3 1300j-3. There is no 

limiution or direction in rhs Act as to where such lands shouid bc located,' or how much 

land should be acq~ired. 

Section 20 of tl~c Indian Gaming Kenulatorv Act 

Scction 2070f IGRA generally provides :hat Indian gaming regulated by the Act is prohibited 

on off-reservation lands acquired in trust after October 17, 1988 unless cenain conditions are 

met. Gaming is permitted on such lands only if the Secretary derennines that (1) "a gamins 

establishment would bc in the best inrerest of thz Indian tribe and its members;" and (2) such I 

gaming "would not be detrimental to the surrounding communiry." Even then, gaming is not 

permitted unless "the Governor of the State in which the gaming activity is to be conducted 

concurs in the Secretxy's determination." id., 2719(bj(l)(A). 

These limitations are. however, not applicable when: 

(B) lands are nken in trust as part of -- 

. (i) a settlement of a land claim, 

(ii) the initial reservation of an Indian tribe acknowledged by the Secretary 

under the federal acknowledgment process, or 

The Act defines 3 10 county area in Michigan and Indirrna as the Band's "service 

area. " Id. § 1300j-6. That area is defined as a 'reservation" for purposes of the Indian 

Child Welfare Act, but is not referenced in the land acquisition ion as establishing a limit 

on the location of new trust lands. The Secretary could. however, take the service area's 

esisience into account in exercisinp his discretion whether to take a particular parcel h Wt. 
(iiij the resror;lrion of lands for an Indian rribe that is restored to federal 

rccovnition. 

25 U.S.C. 9 27 19(b)! 1) (emphasis addell).' 

No legislative hisiory explains the ."restoredw lands provision of Section 20. The other 

exemptions to section 20, however, indicate a congressional intent to "grandfather" cenain 

lands acquired after IGR.4 by treating then similarly to lands held by tribes already 

reco~nized n the time IGIU was adopted. For example.-the pr'ovision excepting land 

acquired through settlement of a land claim treats the land as though it were held in trust for 

Indians in 1988. (Sunilarly. -the provision excepting tribes recognized through the federal ; 

ncknowled~mrnt process from rhe bar on ming treats the initial reservation as though.it * 

existed in 1988. 25 U.S.C. $ 2719(b)(l)(B)(ii). In these cases, tribes are provided the 

uppomnity to engage in some gamins free from section 20's limitations, including its 

requirement of concurrence by the Governor of the affected Sute. The same is true with 

respect to tribes restored to recognized satus that also have lands returned to their 

possession. u. $ 37 19!b)(l)(B)(iii). 

The Pokagon Band qualifies for the latter exception if it is a "restored" tribe within the 

meaning of IGU and if the land taken into trust under the Restora~io~ Act is appropriately 

characterized as "restorsd" land. 

Restontion and the Poknron Band I 

IGRA does not dcfine'what tribes or lands qualify as "restored" under IGRA's Section 20. 

The dictionary definition is: "1) to give back (as something lost or taken away): make 

restitution of: return; 2) to put or bring back (as into existence or use)," Webstet's Third 

New Internation31 Dictio~arv. 

In I number of restoration starutes, Congress has treated as "restored" an Indian tribe whose 

federal recognition has been legislatively terminated and later legislatively restored. xor 

example, an early restontion statute, the Menominee Restoration Act of 1973, 25 U.S.C. 

33 903-903f, repealed the statute that had terminated the tribe, and went on to provide that 

"[tlederal recognition is hereby extended to the Menominee Indian Tribe of Wisconsin." Id. 

9 903a. The Act funher 'reinstated all rights and privileges of the tribe or its members 

under federal treaty, stacute or otherwise which may have been diminished or lost pursuant to 

that [termination] Act." Id. 3 903a(b). Here Congress was mixing the tern "recognition," 

"restoration" and "reinstatement," but tie undeniable effect, as the title to the Act reflected, 

' Section 20 also does not preclude indian saming on of€-reservation uust land that is 

contiguous to a tribe's reservation as it existed in 1988. 25 U.S.C. 3 2719(a)(l). Other 

exceptions provide for gaming on post-1988 trust land within former reservations in 

Oklahoma, a. 8 2719(a)(Z)(i). or a tribe's '1st recognized reservationn in other states. u. 

5 27 t 9(a)(Z)(B). 
was restoration. Scc renerallv F. Cohen. Ha~dbouk of Fedeni Indian Law at 81 1-818 (1982 

ed.) (summary of terminxion era and listiny of rerminated tribes). 

In the Pokagon Restontion Act. Congress found hat rhe Pokrpon Band previously was 

recognized and is a politic~l successor tt~ signa(ories of nt least eleven treaties with the 

United States. 25 U.S.C. 5 1200j(l). The Senate Repon described the fedenl government's 

prior recognition of the Polugon Band this way 

In 1898, UIC Secretary of the Interior approved a contnct &tween the Pokagon Band 

and its attorney. .LLoreover. the Secretary specific~lly confrnned chat che band was 

"residing in tribal relations" (Office of Indian Affairs. Letter Received, National 

Archives, 1187--1838). The Committee notes that the term 'tribal relationsn is a term 

of an used to designate godps that the United Swres formally acknowledges as an 

Indian tribe. Hence, the Secretary of the Interior's approval of the attorney contract 

is significant becruse such approval ws necessarily predicated upon existence of a 

politics1 relatiorship betwen thc United States and the Pokagon Band. 

S. Rep. No. 103-266. lO3d Coog., ?d Sess. at 3. Congress went on in the Act .o fid that 

the Band had beenadministratively terminated. 25 U.S.C. 9 1300j(6). The 3enatc Repoh 

described this termination as wrongful: 

The Committee concludes that the Band was not terminated through an act of 

Congress, but nther a be Pokapun Band was unfairly terminated as a result of both 

faulty and inconsiscenr administrative decisions contrary to the intent of the Congress, 

federal Indian law and the trust responsibility of the United Satu. * * * 

Docurnenwtion submitted to and testimony presented before the Committee has 

confirmed that the Pohpon Band has continuously been recognized as a viable tribal 

political entity. The Band's claim of rishts and starus as a treaty-based tribe, and the 

need to restore and clarify &at starus, has been clearly demonstrated. 

S. Rep. No. 103-7-66. at 6 (emphasis added). 

-. 

Based on these findings and testimony of the Interior Department. the Act provided: 

' Fedenl recognition of the Pokagon Band of Ponwatomi Indians is hereby affirmed." Id. 

8 1300j-1. Thus. he Restoration Act revested rhe Band in its former status as a tribe with a 

government-tc-government rehio~uhip with the United States. 

As noted in the previous paragraph. Congets used rhe term 'affmed' rather than 

'restoredw in one section of the Restoration Act. The use of this verb has led some to 

suggest that the Rcsroration Act did not, in fact. 'restore' federal recognition or lands m the 

Band within the meaoing of IGM. Indiana Governor O'Bamon makes this point in his 

letter of June 20, 1997, to the Secretary.' 

1 Governor O'Ba~on's letter also assens that the Pokagon Band argued that it was 

nor being "restoredw when Congress was considering pasase of rhe Act. We find no 
Consideration of the riot 3s a whole. in light of past congressional actions in related contexu, 

compels the rejection of this suggestion. blost obviously, Congress titled this statute the 

Pokagon Restorarion .Act. >loreover. in other cases Congress has used the term "r&torcdn 

and "reaffirmed" interchangeably, For example. in a cornpanion statute dealing with the 

Little Traverse Bay Bands of Odawa. Indians, Congress "reaffirmed" federal recognition of 

those bands. 25 U.S.C. 5 1300k-2 (psscd ~!e same day as the Pokagon Restoration Act). 

In the floor debate on passage of the Littic Traverse Bay Band Act, Congressman Kildee, 

author of the Act. used ~92 tenn '"reaftinn" synonymously with 'restore. " Rep. Kildee 

stated: 

1Mr. Chairman. I use the words 'rcatTurnm and ."restore" rather than 

"reco~nize" because historical documentation proves that these tribes have in , fact, had formal goverment-to-sovement relations with the United States 

from the rime Americans fint entered the Great Lakes region to the present. 

It is simply the legal status of that re!ationship.that we seek to clarify through - 

this legislation. 

140 Cong. Rec. H6715 (daily cd. Aug. 3, 1994). 

Other restoration statutes use a variety of synonymous and descriptive words, nther than a 

single formulation or term of art, to r~stabli'sh afederal-tribal relationship. In 1978, 

Congress soupht to clariFj the status of the Wyandotte, Peoria, Ottawa and Modoc Tribes of 

Oklahoma. Fedeml.supervision of the tribes had brtn.teminated in 1956 pursuant to the 

termination policy in H.R. Con. Res. .108. 25 U.S.C. 5 861. Congress provided that: 

"Federal recognition is hereby extended or confied with respect to the Wyandotte Indian .t 

Tribe of OkIahoma, the .Ottawa Indisn Tribe of Oklahoma, and the Peoria Indian Tribe of 

Oklahoma." 45 U.S.C. 861(a). and provided further that: '[tlhe Modoc Indian Tribe of 

Oklahoma is hereby recogaized as a tribe of Indians residing in Oklahoma," 25 U.S.C. 

4 561a(a)(l). 

In 1979 and 1980, when Congress was considering the ststus of certain Paiute Indian Bands 

of Utah, which had been ternhated in 1954 pursuant to H.R. Con. Res. 108, the . 

Depamnent commented on the fact that hate bill was framed in terms of recognidon burthat it 

was more appropriate, at least as to four of the bands, to consider the lezislation "restoration 

legislation," because what had been terminated was the trust relationship, not the tribrl 

snrw. H.R. Rep. No. 96-712, 96chCong.. IstSess. 740 (1979). UItirnattly, Congress 

provided: "The Fedenl trust relationship is restored to the Shivwits, Kanosh. Koosharem, 

and Indian Peaks Bands of Paiute Indians of Utah and restored or confirmed with respect to 

the Cedar City Band of Paiute Indians of Utah.' 33 U.S.C. 5 762(a). 

support for that position in either the House or Senate Committee Reports. The Senate 

Repon states: "?he Pokagon Band have submitted exteskive documentation to the Commifte 

which demonstrstes how inequitable .historical Vwtment by the federal government and wide 

-. . fluctuations in federal Indian policy account for their present day unrcltnowledeed sWS." 

S. Rep. No. 103-266, m, at 4 (emphasis added). 
In more recent surutes, Congress has continued to use the !ems "recognition' and 

"restoration" interchangeably. When it legislated in L987 on the status of the Alabama and 

Coushatn Tribes-of Texas (which had also bc:n terminated in 1934 pursuant to H.R. Con. 

Res. 108, just a few days before the Paiute Bands), Consress provided: "The Federal 

recognition of the tribe an3 of the trust relationship between the Unitcd States and the tribe is 

hereby restored." 25 U.S.C. $ 733(a). Thus, in this stacute Consress *restoredn rather than 

"extended" recognition, and "restored" chc trust relationship. 

Three years latcr, when it reinstated 'die relrrtioruhip wich die Ponca Tribe which had been 

terminated under the same policy. -it provided: "Fedcnl recognition is hereby extended to the 

Poncx Tribe of Nebraska." 25 U.S.C. $ 9S3a. 'The same Act went on to provide: "All 

righr- 1.nd privileges of the Tribe which may have been abrogated or diminished before 

Octobbr 3 1, 1990, by reason of any provision of Public Law 87-629 [25.U.S.C. 5 97 1 et 

seq.] are hereby restored and such law shall no longer apply with respect to the Tribe or the 

members." 25 U.S.C. 9 983b(a). 

Similarly, when Congess in 1994 acted to reestablish the federaI-tribal relationship with the 

Auburn Rancheria (terminated pursuant to d~e California Rancheria Act of 1958, as 

amended), it provided: "Fedenl recognition is hereby extended to'the tribe." 25 U.S.C. 5 

13001(a). 

Other recent le~islation has dealt with tribes chat were not terminated pursuant to H.R. Con. . Res. 108, but whase sums was uncertain for other reasons. In these Acts, Congress has 

spoken in terms of "rc;lffirrningU Federal recognition. Lac Vieux Desert Band, 25 

U.S.C. 8 1330h-2(3)~; Little Traverse Bay Bands and Little River Band, 25 U.S.C. 5 1300k- 

?(a). Other examples of retativeIy recent starus clarification legislation include: Ysleta Del 

Sur Pueblo: Restoration of Federal Supervision, Pub. L. No. 100-89, Aug. 18, 1987, 

101 Stat. 666, 25 U.S.C. - 9 13COg-13009-7 ("[[]he Fedenl uust relationship between the 

United States arid the tribe 1s hereby restored"); Status of Pascua Yaqui Indian People, Pub. 

L. No. 103-357, Oct. 14, 1993, 108 Stat. 3418, 25 U.S.C. $3 1300f-1300f-3 ("[tlhe 

Pascua Yaqui Tribe. a historic Indian tribe, is acknorvledged as a federally recognized Indian 

tribe possessing all the attributes of inherent sovereignty which have not been specificilly 

taken away by Acts of Congess and which are not inconsistent with such tribal'smtusR)f 

Texas Band of Kickapoo Act, Pub. L. No. 97-429, Jan. 8, 1983, 96 Stat. 2269.25 U.S.C. 

$9 1300b-11 through 1300b-16 ("Congress therefore declares that the Band should be 

recognized by the Unitcd Sutes . . . that services which the United States provides to Indians. 

because of their satus as Indians should be provided to members of the band'). 

Regarding the Lac Vieux Desert Band, fedenl recognition had never ken 

terminated; that is, the United States had recognized the Band as part of the Keweenaw Bay 

Indian Community. thouph not a a separate and distinct tribe. When Congress decided to 

deal wich the Band as a separate- tribal entity, it provided: '[tjhe Fedenl recognition of the 

Band and the trust relationship between the United States and thc Band is hereby reaffmed . . . The Band is hereby recognized as an independent tribal entity, separate from the 

Keweenaw Bay Indian Community or any other cribe." 25 U.S.C. 1300h-2(a). 
. . 11ic colruriorl rhrd ~tuoill; ill1 tlicse sriirutcs is that. bcforc ~ilrir enactmen!. :he tribe was nor 

incluJed on rile list of ['~Jcrally Rcco~aizcd Tribes published annually in the Federal 

Rsgisrer. lnclusiun 1111 rl:r list is a prercquisitr ro acknowled~rnenthat a tribe has 'the 

imrlluniiics and privileys available to other fedenlly acknowledged tndian tribes by virtue of 

t!leir - covermcnt-lo-guvern~tient relationship with he United States as well as the 

rcsponsibilitic~, putvrrs. li~ltiwtiotls and obligaciom of sucli tribes." 61 Fed. Reg. 58.21 1 

(I\lt)v. 13. 1996); 25 U.S.C. S 47Yn-1 (nquiririg ~IUIU~I publica~ion of list of recognized 

tribes). Ktruriling 3 trii:c to i~s I'onner sntus 3s a recosnized tribe ought to be ccnsidered a 

"rcstor:ltio~i" of tl~c tribe. alld SUCII tribes uu~ht 10 kc. co&idered arestoredw repardless oi the 

exact rehis usccl. Tllc l41bgon Restonti011 Act returllcll the Band to its previous status as a 

t'cder~lly rucogr~izcd tribt.. lire think this is sufficient to bring the lribe within the *restored 

tribe" provision of IGlU's section 20. 1, 

It is also significant that in sotlie other post-IGRA restoration IegisIation, Congress has 

expressly addressed arid cxcludcd the possibiiity of gaming. &, u, Pub. L. 103-1 16, $ 

LO (1993). 107 Star. 113 (Ghwbcl Tribe rutured but pruvisions of IGRA made 

in3pplic;lblc). Even if the Pokagon Ratontion Act were considered ambiguous, it would 

bring into ply the co&n of construction tint ambiguities in sarutes dealing with Indians 

ought to be constiued in a rlrtltmer that benefits th~em. & Bmn v. ttasca Coun~~426 U.S. 

373 (197G)."-Ierc, I~o*c.vcr. 1 tind the sntute clear on its face. 

Tile final qucstiun is ~Irtci~:r the Ian4 proposed for trust ;~cquisition is "restored" land. In 

iI1c Res!or;ltion :\ct. Congress found tht the Band is the political successor to the signatories 

of nunlrrous treaties that ceded vast amounts of territory. These cessions included ten 

cuuntics in two st~tts dcscribcd as the Band's uservice area." 25 U.S.C. 5 1300j(l). See .! 

-Trust Lrtrld Applicarion" iIt Map 3 (rlcpic~ing tribal land ccssiorls) (on file with the 

Department). In addition. Coti_eress mandated chat the Secreury acquire land in trust for the . 

Band. 25 U.S.C. 9 13Ui!j-5. Since the lands proposed for acquisition lie within this ten 

county area and arc rhus pan of the territory &e Bands' predecessors ceded to the U.S. in 

Section jib) of the Technical Corrections Act UI i991 (Pub. Law 103-263; 108 

Skt. 707) also counsels against svaidi to find distinctions among tribes when4cgisl~on 

does not clearly create such disuibutions. The Act added the following new subsection to 

Section 16 of che Indian I<eorganization Act of 1934 (IRA). 25 U.S.C. 5 476 (emphasis 

added): -. 

( t) PRIVILEGES '.WD IrWMUNITIES OF INDIAN TRI13 ES: PROHIBITION 

ON NEW REGI;tAnONS.-Deoanmrn~ or agencies of the United Sates 

shall not prornulgati: any regulation or mke anv decision or dcterminatio~ 

puisuant to the Act of June 18, 1934, (25 U.S.C. 461 et seq., 43 Stat. 984) as 

amended, or orller Act of Con~rey, with respect to a fedenlly recognized 

Indian tribe thar classifies, enhances, or diminishes the orivileees and 

immunities available to the Indian tribe relative to otllcr fellenllv reco~nized 

- tribes by vinue of their stam as Indian tribes. 
carlier rrcarics, tllrse proposed 2cquisiliuns t~~ade punuant to the Restoration Act are properly 

cllaracterized as "resrorcd" Intids. 

Conclusion 

For the foregoing rc:lsom. [ believe that he Pokagon Band is a "restored" Tribe ar~d that he 

lands proposcd to be ukcn inru [fist by ~fle Secretary of the Interior pursuant to the Pokagon 

i(estor:ltion Act :lrc 'resrorcd.. lands withi11 tlic meaning of Sectiotr 2719(b)(l)(B)(iii) of 

IGR-\. Tl~crcforc. rl~e Pokagun I3~1ld is authorized to conduct Clas I1 gamins on sucll 

I;~nds, but nl:ly nor enc2.e - - is Class III ga~ning abxnr cunlpliance \sib the compacting 

provisions of IGR-1.