United States Department of the Interior 

OFFICE OF THE SOLICJTOR 

Washington, D.C. 20240 

M REPLY REFER 'TD: 

Memorandum AFR 1 8 2CCG 

To: Deputy Commissioner - Indian A£fairs 

Attn: Director, Gaming Management S 

From: Associate Derril B. JOr&4bk Solici r - dian am rb 

Re: Paskenta Band of Nomlaki Indians - detemhation of lands in Tehama County 

under Section 20 of IGRA 

By memorandum dated October 22,1999, the Regional Director, Pacific Region, requested a 

legal detemination at the Central Office level on the following four issues: 

1) Whether the Paskenta Band ('Tribe") is a "restored" tribe within 

the meaning of section 20 of the Indian Gaming Regulatory Act 

(IGRA); 

2) Whether an acquisition of land into trust in Tehama County, 

California on behalf of the Tribe would qualify as the "restoration 

of lands" within the meaning of section 20 of IGRA, and 

3) Whether the Paskenta Band Restoration Act places a mandatory 

or discretionary duty on the Secretary to take land into trust in 

Tehama County, California for the benefit of the Tribe and . 

therefore exempting the acquisition hm 25 C.F.R. Part 15 1 ; and 

4) Whether an acquisition of land into trust in Tehama County, 

California for the -. --.. benefit of the Tribe under the Paskenta Band -.. - - - 

~estoktion ~ct is exempt hm ~ational ~nviro&ental Policy Ah 

("NEPA") compliance. ' 

'By memorandum dated September 3,1999, the OiEce of the Regional Solicitor for the 

Pacific Southwest Region opined that the Tribe that the acquisition of land into trust under the 

Paskenta Restoration Act would be discretiormy, and thus subject to 25 C.F.R. Part 15 1 and 

NEPA. The Regional Director requested this office to review the opinion to assure national 

consistency in interpretation. This memorandum concludes that the acquisition of lands in 

Tehama County is not discretionary, and therefore not subject to the provisions in 25 C.F.R. 
It is our opinion that the Tribe is a "restored" tribe within the meaning of section 20 of IGRA, 

and that lands taken into trust by the United States in Tehama County, California, for the benefit 

of the Tribe would qualify as the "restoration of lands" within the meaning of section 20 of 

IGRA. It is our opinion that the Tribe's Restoration Act places a mandatory duty on the Secretary 

to acquire land in Tehama County, California, in trust for the benefit of the Tribe, thus exempting 

the acquisition from 25 C.F.R. $5 151.10 and 151.11. 

The Indian gamin^ Redatow Act 

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

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

prohibition. Id. Q 27 19(a)(l)-(b). One exemption is for lands taken into trust as part of "the 

restoration of lands for an Indian tribe that is restored to ~ederal recognition." Id 5 

271 9(b)(l)(B)(iii). 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, nor is there any relevant legislative history regarding the 

meaning of this term. However, we have consistently opined that "restored lands" under section 

20(b)(l)(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 qualify 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 1 (c). 

. . Restored to Federal Recomtlon 

. . . .. The-Paskenta Band was legislat&ely terminated in 1958 pupwmt.to the Califor& Rancheria .. : . . _ __ *, .... 

Act Pub. L. No. 85-671,72 Stat. 619. On November 2,1994, Congress enacted the Paskenta 

Band Restoration Act ("Restoration Act"). Pub. L. No. 103-454,108 Stat. 4794, codified at 25 

U.S.C. 1300m- 130011.1-7. 

' \ 

We have previously determined on several occasions 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 . 

5C.F.R 15 1.1 0 or 5 15 1.1 1, including the NEPA provisions. 

2 
meaning of IGRA. See Opinion of the Solicitor on Pokagon Band of Potowatomi 3-4 (September 

19,1997) (hereinafter "Pokagon Opinion"); Memorandum from Associate Solicitor - Indian 

Affairs to Deputy Commissioner for Indian A.ffairs 7 (November 12, 1997) (hereinafter "LTBB 

opinion"); Letter hm Solicitor to Congressman Vic Fazio (August 3,1998). Nevertheless, 

section 303(a) of the Paskenta Restoration Act provides: 

Federal recognition is hereby extended to the Tribe. Except as 

otherwise provided in this subchapter, all laws and regulations of 

general application to Indians and 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. $ 1300m-1 (a) (emphasis added). Section 303(b) states: 

. [A]U rights and privileges of the Tribe and its members under any 

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

authority which were diminished or lost under the Act of August 

18,1958 (Public Law 85-671; 72 Stat. 619), are hereby restored 

and the provisions of such Act shall be inapplicable to the Tribe 

and its members after November 2,1994. 

- Id 5 1300x11-l(b) (emphasis added). Section 303(c) makes the tribe and its members eligible for 

all Federal services and benefits furnished to .federally recognized tribes or their members. Id. § 

1 3 Oh- 1 (c). 

It is clear from the Restoration Act provisions that the Paskenta Band is a "tribe that is restored to 

Federal recognition" within the meaning of section 20 of IGRA. See Memorandum fiom 

Associate Solicitor - Indian Affairs to Director, Indian Gaming Management Staff2-3 (January 

18,2000); Coos Opinion at 2-3; Pokagon Opinion at 5-7. 

Restored Lands 

The Tribe's Restoration Act states: . -. -. .- ...-.. - . . - . .- 2-. . -. . . . . -. - . .._ _ .' . . _. ,.-.-... - .-. ' ... . I.-.) . . - -. ;-r.-

-. - . 

The Secretary shall accept any real property located in Tehama 

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

otherwise trand& to the Secretary if, at the time of such 

- conveyance or transfer, there are no adverse legal claims to such 

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

The Secretary may accept any additional acreage in the Tribe's 

service area pursuant to the authority of the Secretary under the 

Act of June 18,1934 (25 U.S.C. 461 et seq.). 
25 U.S.C. 5 1300m-3(a).2 

As explained above, lands qualify as "restored" lands under section 2O(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. The Paskenta Band Restoration Act provides, inter alia, for the acquisition of land within 

Tehama County. Therefore, any real property within Tehama County that are acquired into trust 

by the Secretary on behalf of the Tribe qualifies as "the restoration of lands" within the meaning 

of section 20 of IGRA. 

Com~liance with 25 C.F.R. Part 15 1 and NEPA 

The Secretary's authority, procedures and policy for accepting land into trust are set out in the 

regulations at 25 C.F.R. Part 15 1. Two types of acquisitions are contemplated in the regulations 

- mandatory and discretionary. For discretionary acquisitions, the Secretary must consider 

various factors in evaluating whether to accept land in trust for individual Indians and Indian 

tribes when the acquisition "is not mandated." by legislatioh. 25 C.F.R. $9 15 1.1 0, 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 9 9 1 5 l.lO(b),(c), 

15 1.1 1 (a). 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. $ 151.10(h), 151.11(a). 

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

required to consider the factors enumerated in sections 15 1-10 and 15 1.1 1 in detexmining 

whether to accept the land into tnist. However, other provisions of Part 151 apply when an 

acquisition is mandated by Congress, e.g. 25 C.F.R. $9 15 1.9 and 15 1.12(b). 

The Tribe's Restoration Act provides: 

The Secretary shall accept any real property located in Tehama 

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

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

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

_ -__ - property,-hc1&g cut,a&g Kens, mortgages, ar taxes GYEL - . . - - - - -- --. 

25 U.S.C. $ 1300m-3(a). Language almost identical to this has been determined to create a 

mandatory duty on behalf of the Secretary to acquire land into trust and not subject to 25 C.F.R. 

15 1.10. See LTBB:opinion at 8. 

Subsection (c) of section 1300111-3 provides that any land conveyed or -erred under 

the land acquisition provisions shall be part of the Tribe's reservation. 
In Sault Ste. Marie Tribe of Lake Su~erior ChiDpewa Indians v. United .States, 78 F.Supp2d 699 

(W.D. Mich. 1999), the court upheld the Secretary's determination that the acquisition of land 

into trust of behalf of the Little Traverse Bay Bands of Odawa Indians ("LTBB") was mandatory, 

and thus not subject to 25 C.F.R. 15 1.1 0 and 15 1.1 1. Id. at 705. The LTBB Restoration Act 

provides: 

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 Little Traverse Bay Bands 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. 

25 U.S.C. 5 1300k-4(a).3 The Court held that the Secretary's interpretation of the statute as 

requiring the mandatory acceptance of property into trust in the named counties was not arbitrary 

and capricious. Sault Ste. Marie, at 705. The Court stated that the Secretary's position was 

"eminently reasonable interpretation" of the Restoration Act. Id.. 

NEPA compliance is required for discretionary trust acquisitions under the provisions of 25 

C.F.R. Part 15 1.1 O(h). However, NEPA compIiance is not necessary in this instance because the 

acquisition of property id Tehama County for the Tribe is explicitly mandated by Congress by 

the Tribe's Restoration Act. See LTBB Opinion at 8-9. In Confederated Tribes of Coos. Lower 

Umpaua and Siuslaw Indians v. Portland Area Director,) 27 IBIA 48 (1 994), the Interior Board 

of Indian Appeals found that the BIA was not required to comply with NEPA prior to taking land 

into trust pursuant to the Coqde Tribe's Restoration Act because 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 Restoration Act contains language similar to that of the Paskenta Band's 

Restoration Act, See 25 U.S.C. $715c(a). Thus, NEPA compliance is not necessary for 

acquisition of land in Tehama County into trust for the benefit of the Paskenta Band. See LTBB 

opinion at 8-9. 

However, the acquisition of land in Tehama County can only occur if there are no adverse legal 

- - . claim exisling.on the property. We 5elieve that zd~ese-!e&l claims-include pWtia.1- -.. .. .- .... .+. -. . - 

environmental liability. 25 U.S.C. 5 1300m-3(a). As a result, the BIA must comply with the 

, The Court noted that in contrast, subsection (c) of the LlTB Restoration Act states the 

s&tary "mayhccept additional acreage in the Band's service area. Sault Ste. Marie, at 702. 

The same provision exists in the Paskenta Band's Restoration Act. However, it should be noted 

that the use of the word "shall" in the 1egislation.does not in and of itself create a mandatory duty 

to acquire the land in trust. The land acquisition provision must be read in its entirety before it 

can be determined whether the Secretary's duty is mandatory or discretionary. 
requirements of 602 DM 2, Land Acquisitions: Hazardous Substance Determinations, to 

determine whether any such potential envhr&ental claims exist before the land may be 

accepted into trust for the benefit of the Tribe. See LTBB opinion at 8. 

The Regional Director also asked whether the IBIAYs decision in Santana v. Sacramento Area 

Director. Bureau of Indian Affairs, 33 IBIA 135 (1999), requires the BIA to comply with NEPA 

in mandatory trust acquisitions. In Santana, the Board determined that the stipulated judgment 

in Hardwick v. United States, No. C-79-1710-SW (N.D. Cal. 1983), imposed a mandatory duty 

on the Secretary to acquire land in trust, if the restoration to trust status was in accordance with 

the terms of the stipulated judgement. 33 IBIA141. The Board held that the BIA exercised its 

discretionary authority under Part 151 by agreeing to restore lands to trust status in the stipulated 

judgment and if a request met all of the requirements in the judgement, the mandatory provisions 

of the Part 151 regulations did not apply. a. at 142. 

The Board also determined, however, that the Secretary must comply with NEPA in restoring 

those lands to trust status because the parties could not waive compliance with federal law by 

entering into a stipulated agreement. Id, at 143. The authority authorizing the Secretary to 

accept land into trust under the stipulated judgement in Hardwick was 25 U.S.C. 5 465, the 

Secretary's discretionary authority under the Indian Reorganization Act (IRA). 

Since the stipulated judgment in Hardwick pertained to the Secretary's discretionary authority to 

acquire land under the IRA, and the stipulated judgment could not waive federal law or 

requirements, the Board found that acquisitions under the Hardwick stipulated judgement must 

comply with WEPA. 33 IBIA at 143. The Board did not address, nor was the issue before it, the 

BLA's compliance with NEPA in the context of Congressional legislation mandating the 

acquisition of lands into trust. The Board did not ovede, or even mention, its previous decision 

in Confederated Tribes of Coos, 27 IBIA 48 (1994). It is our opinion that the IBIA's holding in 

Santana pertains ody to requests for acquisitions under the stipulated judgement in the Hardwick 

litigation and is limited in its holdings to those circum,stances. Thus, Santana does not require 

the Secretary to comply with NEPA when Congress has legislatively mandated the acquisition of 

land into trust. The Board's decision in Confederated Tribes of COOS 27 IBIA 48 (1 994), is still 

controlling law when acquisitions are mandated by Congress. 

- .. . -- If you have any questions, please contact PattC Jamisan at (202) 208-4388 or- Mary Anne - ,- -- : . ,, :.: . . - . 

Kenworthy at (202) 208431. ' 

cc: Regional Director, Pacific Region 

Regional Solicitor, Pacific Region 

Office of Trust Responsibilities, BIA 

Attention: Chief, Division of Real Estate Services