United States Department of the Interior 

OFFICE OF THE SOLICITOR 

MTashington, D.C. 20240 

In reply, please address to: 

Main Interior, Room 6456 

Memorandum 

To: Hilda A. Manuel 

Deputy 

From: Deml B. Jordan 

Associate Solicitor 

Division of Indian Affairs 

Subject: Gaming on Trust Land Acquired in Ernmet County, Michigan, for the Little 

Traverse Bay Bands of Odawa Indians 

This is in response to a request fiom the Indian Gaming Management Staff (IGMS) of the 

BIA for a legal opinion concerning issues relating to the proposed transfer of nine parcels of 

land totaling 57.7 acres (collectively referred to as the "Mackinaw City Tracts"), in trust for 

gaming for the Little Traverse Bay Bands of Odawa Indians ("LTBB"). Specifically, the 

IGMS asked whether the proposed acquisition of the Mackinaw City Tracts is exempt from 

the requirements of Section 20 of the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. $ 

2719 (1988); and whether the proposed acquisition is exempt fiom compliance with the 

requirements of 25 C.F.R. $9 15 1.3 and 15 1.10 and the provisions of the National 

Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. 

For the reasons set forth below, we conclude that the LTBB is a restored tribe and that the 

Mackinaw City Tracts qualify as "restored" lands within the meaning of Section 20 of IGRA. 

This means that the LTBB will be able to engage in Class I1 gaming on the Mackinaw City 

Tracts. The LTBB will not, however, be allowed to engage in Class I11 (so-called "casino 

style" gaming) on such lands unless and until the LTBB complies with the compacting 

provisions of IGRA.' 

Moreover, the provisions of 25 C.F.R. $9 15 1.3 and 151.10 are not applicable to the 

proposed acquisition of the Mackinaw City Tracts because Congress has made the acquisition 

mandatory and the Secretary lacks his usual discretionary authority that the criteria in Section 

1 5 1.1 0 are intended to inform. Similarly, the mandatory nature of the acquisition makes 

compliance with the requirements of NEPA unnecessary in this case. However, under the 

' We understand that the LTBB has negotiated a compact with the Governor of Michigan, but that compact 

has not yet been approved by the Michigan Legislature. 
LTBB Act, the acquisition of the Mackinaw City Tracts can only occur if there are no adverse 

legal claims existing on the properties, which we believe includes potential environmental 

claims. Therefore, the BIA must comply with the requirements of 602 DM 2, Land 

Acquisitions: Hazardous Substance Determinations, to determine whether any such potential 

environmental claims may exist. We also understand that LTBB has complied with the 

requirements of NEPA associated with its management contract which is pending approval 

before the National Indian Gaming Commission. 

The LTBB have occupied the lands principally surrounding the northern and eastern portion 

of Lake Michigan and northern Lake Huron for centuries. LTBB participated in several 

treaties with the United States. In the 1836 Treaty of Washington, 7 Stat. 491, the parties 

agreed to reserve fifty thousand acres on Little Traverse Bay for the Bands. In the 1855 

Treaty of Detroit, 11 Stat. 621, the parties agreed to create reservations for the LTBB that 

were nearly identical to the land reserved in 1836. 

Over time, record title to all of the lands within the reservation passed from the LTBB and 

their members. In the years following the 1855 Treaty, the United states ceased to deal with 

the LTBB as a political entity. In 1934, the United States failed to provide the money 

necessary for the LTBB to reorganize under the Indian Reorganization Act, and thus the 

United States did not acknowledge the LTBB as a distinct political entity until Congress - legislatively acknowledged the Bands in 1994. 

By the Act of September 21, 1994, Congress reaffirmed the federal recognition of the Little 

Traverse Bay Bands of Odawa Indians. See Pub. L. No. 103-324, 108 Stat. 2156, 25 U.S.C. 

8 9 1300k- 1 to 1300k-7)(hereaftes "reaffirmation Act" or "Act"). The Act contained 

congressional findings that the LTBB was the, descendant of, and political successor to, 

signatories of the 1836 Treaty of Washington and the 1855 Treaty of Detroit. 25 U.S.C. 

1300k(l). The Act found that the LTBB filed for reorganization of their existing tribal 

governments in 1935 under the Indian reorganization Act ("IRA"), 25 U.S.C. 461 et sea., but 

that even after a determination by the Commissioner of Indian Affairs that the LTBB was 

eligible, the United States failed to appropriate ~~cient funds to allow the LTBB to 

reorganize. 25 U.S.C. 9- 1300k(5). The LTBB continued their political and social existence 

with viable tribal governments, id. 3 1300k(6); formed the Northern Michigan Ottawa 

Association in 1948 and successfully pursued a land claim before the Indian Claims 

Commission. Id. 9 1300k(7). Congressional f~ndings indicate that the LTBB were again 

stymied in their attempt to reorganize under the IRA in 1975. 25 U.S.C.3 1300k(8). AEter 

acknowledging that the United States and the State of Michigan have had continuous dealings 

with the recognized political leaders of the LTBB from 1836 to present, the Act went on to 

reaffirm federal recognition of the LTBB as an Indian tribe. 25 U.S.C. $ 1300k, et seq. 
The Act also mandates that the Secretary of the Interior acquire land in trust for the LTBB: 

The Secretary shall acquire real property in Emmet and Charlevoix Counties 

for the benefit of the Little Traverse Bay Bands. The Secretary shall also 

accept any real property located in those counties for the benefit of the [LTBB] 

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

acceptance, there are no adverse legal claims on such property including 

outstanding liens, mortgages or taxes owed. 

- Id. $ 1300k-4(a). Finally, the Act specifies that the land acquired by or transferred to the 

Secretary for the benefit of LTBB under the Act "shall be taken in the name of the United 

States in trust for the Bands and shall be a part of the respective Bands' reservation." a. $ 

1 300k-4(d). 

Section 20 of the Indian Gaming Regulatorv Act 

Section 20 of IGRA generally provides that Indian gaming regulated by the Act is prohibited 

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

met. Gaming is permitted on such lands only if the Secretary determines that (1) "a gaming . establishment would be in the best interest of the Indian tribe and its members;" and (2) such 

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

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

concurs in the Secretary's determination." Id., 5 2719(b)(l)(A). 

These limitations are, however, not applicable when: 

(B) lands are taken 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 

(iii) the restoration of lands for an Indian tribe that is restored to federal 

recognition. 

25 U.S.C. 5 2719(b)(l) (emphasis added).2 .. . 

No legislative history explains the "restored" lands provision of Section 20. The other 

Section 20 also does not preclude Indian gaming on trust land that is within or contiguous to a tribe's 

reservation as it existed in 1988. 25 U.S.C. 5 2719(a)(l). Other exceptions provide for gaming on post-1988 trust 

land within former reservations in Oklahoma, @. 2719(a)(2)(1), or a tribe's 'last recognized reservationn in other 

states. id. 5 2719(a)(2XB). 
exemptions to section 20, however, indicate a congressional intent to "grandfather" certain 

lands acquired after IGRA by treating them similaily to lands held by tribes already 

recognized at the time IGRA was adopted. For example, the provision excepting land acquired 

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

1988. Similarly, the provision excepting tribes recognized through the federal 

acknowledgment process from the bar on gaming treats the initial reservation as though it 

existed in 1988. 25 U.S.C. 9 2719(b)(l)(B)(ii). In these cases, tribes are provided the 

opportunity to engage in some gaming free from the limitations of section 20, including its 

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

respect to tribes restored to recognized status that also have lands returned to their possession. 

- Id. $ 27 19(b)(l)(B)(iii). 

The LTBB qualifies for the latter exception if it is a "restored" tribe within the meaning of 

IGRA and if the land taken into trust under their Act is appropriately characterized as 

"restored" land. 

Restoration and the Little Traverse Bay Bands 

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

Dictionary, however, provides the commonly understood meaning of the term as follows: "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)." Webster's Third New International Dictionary. 

In a number of restoration statutes, Congress has treated as "restored" an Indian tribe whose 

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

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

$8 903-903f, repealed the prior statute that had terminated the tribe, and went on to provide 

that "[flederal recognition is hereby extended to the Menominee Indian Tribe of Wisconsin." 

- Id. 5 903a. The Act further "reinstated all rights and privileges of the tribe or its members 

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

that [termination] Act." Id. 5 903a(b). Here Congress was mixing language of "recognition," 

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

was restoration. See generally F. Cohen, Handbook of Federal Indian Law at 8 1 1-8 18 (1 982 

ed.1 (summary of termination era and listing of terminated tribes). 

- 

In the LTBB Act, Congress found that the LTBB previously was recognized and is a political 

successor to signatories of treaties with the United States. 25 U.S.C. 8 1300k(l). Based on 

these fmdings, the Act provided: "Federal recognition of the Little Traverse Bay Bands of 

Odawa Indians is hereby reaffirmed." a. 9 1300k-1. Thus, the LTBB Act revested the 

LTBB in its former status as a tribe with a government-to-govenunent relationship with the 

United States. 
As noted in the previous paragraph, Congress used the term "reaffirmed" rather than 

"restored" in one section of the LTBB's Act. The use of this verb may lead someone to 

suggest that the Act did not, in fact, "restore" federal recognition or lands to the LTBB within 

the meaning of IGRA. 

Consideration of the Act as a whole, in light of past congressional actions in related contexts, 

compels the rejection of this suggestion. Congress has used the term ."restored" and 

"affirmed" interchangeably. For example, in the floor debate on passage of the Little 

Traverse Bay Bands Act, Congressman Kildee, author of the Act, used the term "reaffirm" 

synonymously with "restore." Rep. Kildee stated: 

Mr. Chairman, I use the words "reaffirm" and "restore" rather than "recognize" 

because historical documentation proves that these tribes have in fact, had 

formal government-to-government relations with the United States fiom the 

time Americans first entered the Great Lakes region to the present. It is simply 

the legal status of that relationship that we seek to clarify through this 

legislation. 

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

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

single formulation or term of art, to reestablish a federal-tribal relationship. In 1978, 

Congress sought to clarify the status of the Wyandotte, Peoria, Ottawa and Modoc Tribes of 

Oklahoma. Federal supervision of the tribes had been terminated in 1956 pursuant to the 

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

"Federal recognition is hereby extended or confirmed with respect to the Wyandotte Indian 

Tribe of Oklahoma, the Ottawa Indian Tribe of Oklahoma, and the Peoria Indian Tribe of 

Oklahoma, " 25 U.S.C. 861(a), and provided Mer that: "[tlhe Modoc Indian Tribe of 

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

$ 86 1 a(a)(l). 

In 1979 and 1980, when Congress was considering the status of certain Paiute Indians of 

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

commented on the fact that the bill was framed in terms of recognition but that it was more 

appropriate, at least as to four of the bands, to consider the legislation "restoration legislation" 

because, what had been terminated was the trust relationship, not the tribal status. H.R Rep. 

No. 96-712, 96th Cong., 1st Sess. 7-10 (1 979). Ultimately, Congress provided: "The Federal 

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." 25 U.S.C. $ 762(a). 

Congress continued to use the terms "recognition" and "restoration" interchangeably. When it 

legislated in 1987 on the status of the Alabama and Coushatta Tribes of Texas (which had 

also been terminated in 1954 pursuant to H.R Con. Res. 108, just a few days before the 
Paiute tribes), Congress provided: "Tl~e Fcderal recognition of the tribe and of the trust 

relationship between the United States and the tribe is hereby restored." 25 U.S.C. 9 733(a). 

Thus, in this statute Congress "restored" rather than "extended" recognition, and "restored" the 

trust relationship. 

Tlirec years later, when it reinstated and revitalized the relationship with the Ponca Tribe 

which had been terminated under the same policy, it provided: "Federal recognition is hereby 

extended to the Ponca Tribe of Nebraska." 25 U.S.C. 983a. The same Act went on to 

provide: "All rights and privileges of the Tribe which may have been abrogated or diminished 

before October 31, 1990, by reason of any provision of Public Law 87-629 [25 U.S.C. 971 

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

the members." 25 U.S.C. 5 983b(a). Similarly, when Congress acted to reestablish the 

federal-tribal relationship with the Auburn Rancheria (terminated pursuant to the California 

Rancheria Act of 1958, as amended), it provided: "Federal recognition is hereby extended to 

, the tribe." 25 U.S.C. $ 13001(a). 

More recent legislation has dealt with tribes that were not terminated pursuant to H.R. Con. 

Res. 108, but whose status was uncertain for othcr reasons. In these Acts, Congress has 

spoken in terms 01' "aflirming" or "reaffirming" Federal recognition. See Lac Vieux Desert 

Band, 25 U.S.C. 9 130011-2(a);' Little Traverse Bay Bands and Little River Band, 25 U.S.C. . 

5 1300k-2(a). Other exonlples of relatively recent status 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. $ 1300g-1300g-7 ("[tlhe Federal trust relationship between 

the United States and the tribe is hereby restored"); Status of Pascua Yaqui Indian People, 

Pub. L. No. 103-357, Oct. 14, 1994, 108 Stat. 3418, 25 U.S.C. $3 1300f-1300f-3 ("[tlhe 

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

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

taken away by Acts of Congress and which are not inconsistent with such tribal status"); 

Texas Band of Kickapoo Act, Pub. L. No. 97-429, Jan. 8, 1983, 96 Stat. 2269, 25 U.S.C. 

$5 1300b-11 through 1300b-16 ("Congress therefore declares that the Band should be 

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

because of their status as Indians should be provided to members of the band"). 

The cornnlon thread anlong all these statutes is that, before their enactment, the tribe was not 

included on the list of Federally Recognized Tribes published annually in the Federal 

Register. Inclusion on the list is a prerequisite to acknowledgment that a tribe has "the 

immunities and privileges available to other federally acknowledged Indian tribes by virtue of 

Regarding the Lac Vieux Desert Band, federal recognition had never been terminated; that is, the ~rlited 

States had recognized the Band as part of the Keweenaw Bay Indian Community, though not as a separate and 

distinct tribe. When Congress decided to deal with the Band as a separate tribal entity, it provided: "[tlhe Federal 

recognition of the Band and the trust relationship between the United States and the Band is hereby reaffirmed 

. . . the Band is hereby recognized as an independent tribal entity, separate from the Keweenaw Bay Indian 

Community or any other tribe." 25 U.S.C. 5 1300h-2(a). 
their government-to-government relationship with the United States as well as the 

responsibilities, powers, limitations and obligations of such tribes." 61 Fed. Reg. 58-21 1 

(Nov. 13, 1996); see 25 U.S.C. 5 479a-I (requiring annual publication of list of recognized 

tribes). Returning a tribe to its former status as a recognized tribe ought to be considered a 

"restoration" of the tribe, and such tribes ought to be considered "restoredn regardless of the 

exact terms used. The LTBB Act returned the LTBB to its previous status as a federally 

recognized tribe. We think this is sufficient to bring the tribe within the "restored tribe" 

provision of IGRA's section 20. 

It is also significant that in some other post-IGRA restoration legislation, Congress has 

expressly addressed and excluded the possibility of gaming. See. e.k Pub. L. 103- 1 16, $ 10 

(1 993), 107 Stat. 1 126 (Catawba Tribe restored but provisions of IGRA made inapplicable). 

Even if the LTBB Act were considered ambiguous, it would bring into play the canon of 

construction that ambiguities in statutes dealing with Indians ought to be construed in a 

manner that benefits them. Brvan v. Itasca County, 426 U.S. 373 (1976).4 Here, 

however, the statute is clear on its face. 

We must also determine whether the Mackinaw City Tracts qualify as "restored" land for 

purposes of 25 U.S.C. $ 2719(b)(l)(B)(iii). In the LTBB Act, Congress found that the LTBB 

is a political successor to some of the signatories of the 1836 Treaty of Washington that cedd 

vast amounts of temtory to the United States, and the 1855 Treaty of Detroit. 25 U.S.C. 

1300k(l). Congress also directed that the Secretary accept real property located in Emmet 

and Charlevoix counties for the benefit of the Bands. 25 U.S.C. § 1300k-4(a). Any lands to 

be acquired that lie within the 1836 ceded area, the 1855 Treaty area, or are otherwise located 

within Emrnet or Charlevoix counties are properly characterized as "restored" lands.' The 

Mackinaw City Tracts, located just outside the city limits of Mackinaw City in Emmet 

County, Michigan, are clearly within one or more of these areas and thus qualify as "restored" 

lands. 

4 Section 5(b) of the Technical Corrections Act of 1994 (Pub. Law '103-263; 108 Stat. 707) also counsels 

against straining to find distinctions among mk in ambiguous circumstances. The Act added the following new 

subsection to Section 16 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. 8 476 (emphasis added): 

(f) PRIVILEGES AND IMMUNITIES OF INDIAN TRIBES; PROHIBITION ON NEW 

REGULATIONS.-Departments or agencies of the United States shall not promulgate any 

regulation or make anv decision or determination vursuant to the Act of June 18, 1934, (25 

U.S.C. 461 et seq., 48 Stat. 984) as amended, or an^! other Act of Con~ress, with respect to a 

federally recognized indian mbe that classifies, enhances, or diminishes the wrivile~es and 

immunities available to the Indian tribe relative to other fcderallv nco gnized tribes by virtue of 

their status as Indian tribes. 

We note that these areas overlap each other considerably. 

7 
A~~licabilitv of 25 C.F.R. 6 15 1 and NEPA to the Provosed Acquisition of the Mackinaw 

Citv Tracts 

The authority, procedures, and policies governing the Secretary's acquisition of trust land for 

Indian tribes and individual Indians are set forth in 25 C.F .R. § 1 5 1. Section 1 5 1.3 sets forth 

under what conditions land may be acquired in trust by the Secretary for an Indian tribe or 

individual Indian, but states that it is "subject to the provisions in the acts of Congress which 

authorize land acquisitions." Under the explicit terms of the LTBB Act, the Secretary is 

required to accept any real property located in Ernmet County in trust for the benefit of the 

LTBB, if conveyed or otherwise transferred to him, "if at the time of such acceptance, there 

are no adverse legal claims on such property including outstanding liens, mortgages or taxes 

owed." 25 U.S.C. 3 1300k-4(a). Thus, the explicit mandatory language of the LTBB Act 

supersedes the provisional language of Section 15 1.3. 

Section 15 1.10 also provides additional criteria and procedures for the Secretary to consider 

when a tribe requests to have lands taken in trust. However, 15 1.10, by its own terms will 

not apply if the "acquisition is mandated by legi~lation."~ We note that the Field Solicitor for 

Twin Cities has opined that 25 C.F.R. 5 15 1.10 is "inapplicable to these acquisitions because 

these are mandatory, rather than discretionary acquisitions." & Preliminary Title Report, 

Twin Cities Field Solicitor (Sept. 18, 1996)(on file with our office). We agree with the Field, 

Solicitor's opinion regarding the inapplicability of Section 15 1.10 in general, but caution that 

under the LTBB Act, the acquisition of the Mackinaw City Tracts can only occur if there are 

no adverse legal claims on the properties. We believe that adverse legal claims include 

potential environmental liability. While the statutory text mentions outstanding liens, 

mortgages and taxes as examples of such adverse legal claims, there is no indication that this 

list is exclusive. Moreover, purchasers of real property in this age of heightened 

environmental awareness and expansive liability would ordinarily consider environmental 

contaminant possibilities as part of any real estate transaction. Thus, we believe the general 

statutory reference to "adverse legal claims" is fairly read to include environmental 

contamination potential. Thus, in our opinion the BIA must comply with the requirements of 

the Department of Interior Manual, 602 DM 2, pertaining to hazardous substance 

determinations in land acquisitions, which are referenced in 25 CFR 5 15 l.lO(h). It is our 

understanding that the BIA has performed a contaminant survey of the land pursuant to the 

DM requirements. 

Although NEPA compliance is generally required for trust acquisitions under the provisions of 

25 C.F.R. 8 151.10, as well as the teq of NEPA itself and the CEQ regulations, we believe 

that NEPA compliance is not required in this instance for the same reason Section. 151.10 is 

ti The LTBB Act also provides that the Secretary may accept any additional acreage in each of the Bands' 

service area outlined in the Act. However, any such acquisitions will be accomplishedL'pursuant to [the Secretary's] 

authority under the Act of June 18, 1934 (25 U.S.C. 5 461 et seq.; commonly referred to as the 'Indian 

Reorganization Act')." 25 U.S.C. 8 1300k-4(c). We note that the Secretary's authority under Section 461 is 

discretionary and any land acquisition for the Bands under that authority will be subject to NEPA compliance and 

the terms of 25 C.F.R. 4 15 1. 
not applicable: the acquisition of the property is explicitly mandated by Congress under the 

LTBB Act. We note that in Confederated Tribes of Coos, Lower Umwua and Siuslaw 

Indians v. Portland Area Director, 27 IBIA 48 (1994), the Interior Board of Indian Appeals 

determined that the BIA was not required to comply with NEPA prior to taking land into 

trust pursuant to the Coquille Tribe's restoration Act because, inter aIia, the acquisition was 

mandated by Congress and the action of the BIA Area Director in taking the land into trust 

was ministerial in nature. The Coquille Act contains language nearly identical to that found 

in the LTBB Act. Moreover, given the DM requirements, NEPA compliance is not necessary 

here to determine whether there are any adverse legal claims on the Mackinaw City Tracts. 

While NEPA compliance is not required, we note that the LTBB has submitted an 

Environmental Assessment to the National Indian Gaming Commission that reviews any 

environmental impacts related to the specific use intended for the property. 

Conclusion 

For the foregoing reasons, we believe that the Mackinaw City Tracts proposed to be taken 

into trust by the Secretary of the Interior pursuant to the LTBB Act are "restored" lands 

within the meaning of Section 2719(b)(l)(B)(iii) of IGRA. Therefore, the LTBB is 

authorized to conduct Class I1 gaming on such lands, but may not engage is Class I11 gaming, 

absent compliance with the compacting provisions of IGRA. LTBB is not required to comply 

with the provisions of 25 C.F.R 5 5 15 1.3 and 1 5 1.10, including NEPA compliance (except 

for compliance with 602 DM 2 to ascertain potential environmental liability). 
Director, IGMS 

Office of the Secretary, attn: Heather Sibbison 

Twin Cities Field Solicitor 

SOL RF 

DJordan RF 

GSkibine RF 

TWoodward RF x 2 

Version Printed: November 1 0, 1997