IN REPLY REFER TO: 

Memorandum 

United States Department of the Interior 

OFFICE OF THE SOLICITOR 

Washington, D.C. 20240 

To: George Skibine 

Director, Indian Gaming Management Staff 

From: Deml I3. Jordan @4fid& 

Associate Solicito - Indian A air 

Re: United Auburn Indian Community - Determination under 25 U.S.C. 5 

27 19(b)(l)(B)(iii) 

The United Auburn Indian Community ("the Tribe") asked for a determination as to whether the 

trust acquisition of "Resultant Parcel 'B"' located in Placer County, California, qualifies as "the 

restoration of lands for an Indian tribe that is restored to Federal recognition" under section 20 of 

the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. 9 2701 et seq., and is therefore eligible 

for gaming. By letter dated December 2,1999, the Tribe's attorneys submitted documents and 

legal arguments for o.ur consideration. After careful review, we have determined that "Resultant 

Parcel 'B"' qualifies as "restored" land within the meaning of section 20 of IGRA. 1-" 

Although the Tribe did not specifically ask, it is also necessary to determine whether the trust 

acquisition of "Resultant Parcel 'By" is discretionary or mandatory. If it is discretionary, the 

Bureau of Indian Affairs must consider the factors enumerated in 25 C.F.R. tj 1 5 1.1 1 and the 

factors incorporated by reference in § 1 5 1.1 1 from 5 1 5 1.10. We have determined that the 

acquisition is discretionary, so the factors must be considered. 

Background 

There is a general prohibition against gaming on land acquired in trust after October 17, 1988. 

25 U.S.C. 5 2719(a). However, section 20 of IGRA sets forth several exemptions to the 

prohibition. Id, 5 2719(a)(1)-(b). One exemption is for lands taken into trust as part of "the 

restoration of lands for an Wan tribe that is restored to Federal recognition." tj 

271 9(b)(l)@Xiii). There is a two-pronged analysis to this exemption. First, the tribe must be 

"restored" within the meaning of IGRA. Second, the land to be acquired must be "restored" 

within the meaning of IGRA. See Memorandum of Solicitor to Assistant Secretary - Indian 

Affairs 2 (October 19, 1999) (hereinafter "Coos Opinion"). 

"Restored" is not defined in IGRA. There is also no relevant legislative history. However, we 

have consistently opined that "restored lands" under section 200(1)(B)(iii) include only those 
lands that are available to a restored tribe as part of its restoration to federal recognition. The 

statute that restores the Tribe's Federal recognition status must also provide for the restoration of 

land, and the particular parcel in question must fall within the terms of the land restoration 

provision. Coos Opinion at 3. When Congress specifies or provides concrete guidance as to what 

lands are to be restored pursuant to the restoration act, they qualie as "restored lands" under 

section 20 regardless of the dictionary definition. Id, at 4; See, e.g., Little Traverse Bay Bands of 

Odawa Indians Restoration Act, 25 U.S.C. 1300k-4; Confederated Tribes of Siletz Indians of 

Oregon Reservation Act, Pub. L. No. 96-340, section 2; Confederated Tribes of the Grand Ronde 

Community of Oregon Reservation Act, Pub. L. No. 100-425, section l(c). 

Restored to Federal Recognition 

The Auburn Rancheria was legislatively terminated in 1958 pursuant to the Califomia Rancheria 

Act, Public Law 85-671. On October 3 1,1994, Congress enacted the Auburn Indian Restoration 

Act (hereinafter "Restoration Act"). Pub. L. No. 103-434, 108 Stat. 4533, codified at 25 U.S.C. 

5 13 001 - 13001-7. The Restoration Act provides: 

Notwithstanding any other provision of law, Federal recognition is 

hereby extended to the Tribe. Except as otherwise provided in this 

subchapter, all laws and regulation of general application to Indian 

or nations, tribes, or bands of Indians that are not inconsistent with 

any specific provision of this subchapter shall be applicable to the 

Tribe and its members. 

25 U.S.C. 5 13001(a). The Restoration Act also makes the Tribe and it members eligible for all 

Federal services and benefits furnished to federally recognized Indian tribes or their members. Id, 

g 13001(c). 

We have previously determined in several different situations that the word "restored" need not 

appear in the body of the Restoration or Reservation Act in order for the Tribe to be restored 

within the meaning of IGRA. See Pokagon Opinion; Memorandum fiom Associate Solicitor - 

Indian Af?airs to Deputy Commissioner for Indian Affairs 7 (November 12,1997); Letter from 

Solicitor to Congressman Vic Fazio (August 3,1998). These sections establish the Auburn 

Community as a restored tribe within the meaning of section 20. See Coos Opinion at 2-3; 

Opinion on Pokagon Band of Potowatomi 5-7 (September 19, 1997). Moreover, section 13001(b) 

of the Restoration Act eliminates any lingering ambiguity. That provision provides: 

[A111 rights an privileges of the Tribe and its members under any 

Federal treaty, Executive order, agreement or statute, or under any 

other authority which were diminished or lost under the Act of 

August 18,1958 (Public Law 85-671), are hereby restored and the 

provision of such Act shall be inapplicable to the tribe and its 

members after October 3 1,1994. 
- Id. 9 13001(b) (emphasis added). This provision taken with the other provisions of the 

Restoration Act leave no doubt that the Auburn Community is "an Indian tribe that is restored to 

Federal recognition" within the meaning of section 20 of IGRA. 

Restored Lands 

The Tribe's Restoration Act states: 

The Secretary may accept any real property located in Placer 

County, California, for the benefit of the Tribe if conveyed or 

otherwise transferred to the Secretary, if, at the time of such 

conveyance or transfer, there are no adverse legal claims on such 

property, including outstanding liens, mortgages, or taxes owed. 

25 U.S.C. 5 13001-2(a).' 

As explained above, lands qualifi as "restored" lands under section 20(b)(l)(B)(iii) of IGRA if 

they fall within the land acquisition provisions as set forth by Congress in a tribe's Restoration 

Act. According to the documents submitted with the letter of December 2, 1999, and according 

to the documents of the Bureau of Indian Affairs, "Resultant Parcel 'B"' is located within Placer 

County, California. Congress specifically provided in the Auburn Community's Restoration Act 

for the acquisition of land located in Placer County, California, as part of the Tribe's restoration 

process. 25 U.S.C. 9 13001-2(a). Consequently, the trust acquisition of "Resultant Parcel 'B"' 

qualifies as "the restoration of lands for an Indian tribe that is restored to Federal recognition'' 

under section 20(b)(l)(B)(iii) of IGRA and is therefore eligible for gaming without going 

through the two-part determination under section 20(b)(l)(A). 

The Tribe argues in the letter of December 2, 1999, that "Resultant Parcel 'By" also qualifies as 

"restored" lands under Grand Traverse Band of Ottawa and Chi~~ewa Indians v. Michinaq, 46 F. 

Supp. 2d 689 (W.D. Mich. 1999), in which the Court addressed the "rested" lands exemption in 

the context of denying a temporary restrahhg order. We note that the Grand Traverse decision is 

not W, and the Court has remanded the case for fiuther development of the issue. Nevertheless, 

we have determined that the parcel qualies as "restored11 lands because it falls within the land 

acquisition provision of the Tribe's Restoration Act, and therefore analysis under Grand Traverse 

is unnecessary. 

Section .1300/-2 contains other land acquisition provisions. For example, subsection (a) 

states that the Secretary may accept any additional ac!reage in the Tribe's service area pursuant to 

the Secretary's authoiity' under 25 U.S.C. $46 1 et seq. Subsection (c) provides that any land 

conveyed or transferred under the land acquisition provisions shall be part of the tribe's 

reservation. 
Discretionary Acquisition 

Although the Tribe did not specifically ask, it is necessary to determine whether the trust 

acquisition of "Resultant Parcel 'B' is mandatory or discretionary. If it is discretionary, the 

Bureau of Indian Affairs must consider the factors enumerated in 25 C.F.R. § 15 1.1 1 and the 

factors incorporated by reference in 1 5 1.1 1 fiom 1 5 1.10 while processing the Tribe's 

application. 

Under Departmental regulations, 25 C.F.R. Part 15 1, the Secretary must consider various factors 

in evaluating whether to approve a request to acquire off-reservation land in trust for individual 

Indians and Indian tribes when the acquisition "is not mandated." 25 C.F.R. $ 15 1.1 1. For 

example, the Department must consider the need of the individual Indian or tribe for additional 

land and must consider the purpose for which the land will be used. Id. § 15 1.1 l(a) 

(incorporating 15 I. 1 O(b) and (c)). The Department must contact the state and local governments 

for their comments on the acquisition's potential impacts on regulatory jutisdiction, real property 

taxes and special assessments. Id 5 15 1.1 l(d). The Secretary must also consider the extent to 

which the tribe has provided information that allows the Secretary to comply with the National 

Environmental Policy Act (NEPA). Id. 5 1 5 1.1 1 (a) (incorporating 25 C.F.R. 5 15 l.lO(h)). If the 

trust acquisition is "mandated" by Congress, then the Bureau of Indian Affairs is not required to 

consider these factors under the regulations. 

The acquisition of the "Resultant Parcel 'B"' into trust is discretionary. The Restoration Act says 

the Secretary "may" accept any real property in Placer County, California, for the benefit of the 

Tribe, if there are no adverse legal claims.2 25 U.S.C. 5 13001-2(a). "May" means the Secretary 

has discretion whether to accept the land into trust or not. Therefore, the Bureau of Indian Affairs 

must comply with 25 C.F.R. !$ 15 1.1 1 in processing the Tribe's application to acquire "Resultant 

Parcel 'B"' in trust.. 

It is noteworthy that as originally enacted, subsection (a) of the Auburn Community's 

Restoration Act stated the Secretary "shall" acquire the land, but on March 29,1996, Congress 

changed "shall" to "may." Pub. L. No. 104-122,110 Stat 876.