United States Department the Interior 

OFFICE OF THE 

Washington, D.C. 20240 

IN REPLY REFER TO: 1 

Philip N. Hogen 

Chairman 

National Indian Gaming Commission 

1441 L Street, N. W. 

Suite 91 00 

Washington, D.C. 20005 

Dear Chairman Hogen: 1 

On July 1,2004, the Sault Ste. Marie Tribe of 

attorneys Green Meyer & McElroy, requested 

Commission (NIGC) issue an Indian lands 

Regulatory Act (IGRA), 25 U.S.C. 8 2719. 

question met two of the exceptions to the 

land acquired after October 17, 1988, the 

that the NIGC would initially consider 

the boundaries of the Tribe's 

This letter is in response to 

For the reasons detailed below, we conclude that the Tri e's 1983 parcel of trust land 

does not constitute a reservation for the purposes of the GRA and gaming on the parcel 

acquired in 2000, therefore, is not permitted by virtue o being on land contiguous to a 

reservation pursuant to 25 U.S.C. 5 2719(a)(l). i 

I. Background 1 

The Tribe desires to construct a new casino on trust in St. Ignace, Michigan, on two 

abutting parcels of land. The first parcel was taken by the United States for the 

benefit of the Tribe in 1983 (hereinafter 1983 parcel is described as 

follows: 

That portion of Section 19, Town 4 1 North, West described as: 

All of the NW ?4 of the SW 54 and all of the e SW 1/4 Northerly of 

a line described as beginning 650 feet North the centerline of 

Highway "Mackinac Trail" from the interse d centerline with 

the South section line of Section 19, Town 41 

thence Northeasterly to the Southeast come 

said section. Except the highway ri@w 

Containing 65 acres more or less. 
The Tribe acquired the 1983 parcel through a of Housing and Urban 

Development Community Development taken into trust by the 

United States pursuant to the Indian 

undisputed that the 1983 parcel has by the Secretary 

although the Tribe submitted 

Department of the Interior, 

The second parcel of approximately 77 acres was into trust by the United States 

for the benefit of the Tribe in 2000 (hereinafter cel). The 2000 parcel is 

described as follows: 

Lot 2, Section 19, Town 41 North, Range 3 and the South '/z of the 

Southwest ?4 of said Section 19, Town 41 3 West, lying Southerly 

of a line described as beginning at a point along the centerline 

of Mackinac Trail and South line of 

Southeast corner of the Northwest 

North, Range 3 West, Michigan 

This parcel has not been proclaimed a reservation. The epartment, however, has 

proclaimed other lands as reservations for the Tribe. 0 February 20, 1975, the Secretary 

of the Interior (Secretary) proclaimed a 40 acre tract of st land on Sugar Island as a 

reservation for the Sault Ste. Marie Tribe under the Indi Reorganization Act. 40 Fed. 

Reg. 8367-68 (Feb. 27, 1975). On January 6, 1984, the ecretary proclaimed 

approximately 84.8 additional acres to be reservation. 1 9 Fed. Reg. 940 (Jan. 6, 1984). 

The Tribe's application to have the 2000 parcel taken trust referenced its reservation 

of 120 acres and that its entire trust land base 700 acres in various 

parcels, "nearly all developed as housing buildings and 

businesses." Attachment to Affidavit 

Chairman, Sault Ste. Marie Tribe (Affidavit). 

The Tribe operates six casinos, one of which is on the 1983 parcel. Affidavit at (1 12. 

11. Applicable Provisions of IGRA and NIGC ~e~ulations 

An Indian tribe may engage in gaming under on "Indian lands" that are 

within such tribe's jurisdiction. 25 U.S.C. $5 

IGRA defines "Indian lands" as: 1 

(A) all lands within the limits of any Indian 

(B) any lands title to which is either held in States for the 

benefit of any Indian tribe or individual 

individual subject to restriction by the 

over which an Indian tribe exercises 
25 U.S.C. 5 2703(4). Thus, if the proposed lands are lands not within 

the limits of an Indian reservation, the tribe if it also exercises 

"governmental power" over those lands. 25 $ 502.12(b). 

NIGC regulations further clarify the Indian lands definijion: 

Indian lands means: 

(a) Land within the limits of an Indian r 

(b) Land over which an Indian tribe power and 

that is either - 

(1) Held in trust by the United 

or individual; or 

(2) Held by an Indian tribe or 

United States against alienation. 

25 C.F.R. $ 502.12. Lands that do not qualify as under IGRA generally are 

subject to state gambling laws. See National Definitions 

Under the Indian Gaming Regulatory Act, 57 

Further, section 271 9(a) of the IGRA provides that gam ng shall not be conducted on 

lands acquired by the Secretary in trust for the benefit o an Indian tribe after October 17, 

1988, unless certain exceptions are met. For the purpos s of this analysis, only the 

exception laid out in 25 U.S.C. 5 2719(a)(l) is at issue: tribe may lawfully conduct 

gaming under the IGRA if "such lands are located withi or contiguous to the boundaries 

of the reservation of the Indian tribe on October 17, 198 1 ." 

111. Legal Analysis 1 

Section 20 of the IGRA, 25 U.S.C. $2719, gener its gaming on lands acquired 

in trust after the enactment of IGRA on October less one of several 

exceptions applies. In order to conduct gaming taken into trust in 2000, the 

Tribe seeks a determination that the 1983 parcel ion" within the meaning of 

the IGRA. If the 1983 parcel is a reservation, eeks to conduct gaming on 

the contiguous 2000 parcel upon a showing that the parcel qualifies as Indian lands 

over which the Tribe exercises jurisdiction an ower. 25 U.S.C. 

$5 2719(a)(l), 2703(4)(B). The question, 1983 parcel is a reservation 

within the meaning of IGRA-. We conclude rvation within the meaning 

of 25 U.S.C. 8 2703(4)(A), and therefore, th contiguous to a 

reservation and cannot be used for gaming n 3 271 9(a)(l). 

A. Reservation and Trust Land are ~istinauisheb under the IGRA 

The IG~ does not define the term reservation. The , however, plainly 

distinguishes between reservation and trust land. of "Indian lands" makes 

this clear by requiring that gaming be either on limits of any Indian 
reservation," or on land "held in trust . . . and over whic an Indian tribe exercises 

governmental power." 25 U.S.C. 5 2703(4). NIGC reg lations contain the same 

distinction. 25 C.F.R. 5 502.12. 1 

Further, for real property taken into trust after 1988, the IGRA expressly 

differentiates trust land and reservation. A on such after-acquired 

trust land unless it is within or contiguous boundaries as of 

October 17, 1988, or the tribe had no U.S.C. $2719(a)(1- 

2). Also, the IGRA allows gaming land is "the initial 

reservation of an Indian tribe Interior] under the 

Federal acknowledgment provisions 

clarify that trust land is 

As reservation is not defined in the IGRA, we begin wit the premise that, when 

interpreting a term within a statute, "[we] must infer, u ess the statute otherwise dictates, 

that Congress means to incorporate the established me 'ng of the term." Olmstead v. L. 

C. by Zimring, 527 U.S. 58 1,622 n. 1 (quoting NLRB v. own & Country Elec., Inc., 5 16 

U.S. 85,94 (1995)). f 

i. The Differentiation of Trust Land and 

Consistent With Other Federal Law 

There is not a single established uniform definition of elsewhere in federal 

statutes. Although several federal statutes define the vary greatly 

based upon the intent of the program and are 

analysis.' Some of these definitions define 

definitions are not controlling, however, 

between trust land and reservation. This 

than a mere set aside of land into trust 

reservation under the Act and 

needs and requirements of the IGRA. 

Reservation in the IGRA Is 

Some federal statutes do differentiate between reservati and trust land, as does the 

IGRA, and thus are more helpful to our analysis. For the statutory definition of 

"Indian country" distinguishes between reservation As provided in 18 

U.S.C. 1 15 1, Indian country includes: 

(a) all land within the limits of any Indian rese ation . . . notwithstanding 

the issuance of any patent . . . , 

(b) all dependent Indian communities . . . , and r 

See, e.g., 25 U.S.C. 5 1903(10) (1978) (Indian Child Welfare means Indian country 

as defined in section 1 15 1 of title 18, United States Code and under such section, 

title to which is either held by the United States in trust for tribe or individual or 

held by any Indian tribe or individual subject to a 

U.S.C. 5 1452 (d) (1974) (Financing 

reservations, publicdomain Indian 

incorporated Native groups, 

Alaska Native Claims 

area or areas over 

4 
(c) all Indian allotments, the Indian titles to whi h have not been 

extinguished . . . . 1 

Thus, the Indian country definition distinguishes which may contain trust and 

fee land, from dependent Indian communities that are in trust. 

The Indian Reorganization Act (IRA), 25 U.S.C. $461 seq., also differentiates 

between reservation and trust lands. The § 465 that the Secretary may 

acquire property in trust "within or without and provides in 467 that the 

Secretary may bbproclaim new reservations under the IRA. The IRA 

thus establishes that not all land acquired is a reservation. 

ii. The Meaning of Reservation in the IG~ Incorporates Reservations 

Established by Recognized Methods 1 

We interpret the IGRA definition of reservation as enco passing land within the existing 

boundaries of a reservation set aside by treaty, Executiv Order, or statute; land Congress 

expressly legislates to be reservation, and land proclaim d by the Secretary pursuant to 

25 U.S.C. § 467 as reservation under the IRA. See, Feli Cohen 's Handbook of Federal 

Indian Law 475-480 (1982 ed.). The IGRA definition a so would include land granted 

reservation status through court order when the United tates is a party2 and, as discussed 

further below, land considered reservation within the m aning of 18 U.S.C. 1 15 1 (a). 

None of the above methods is applicable in this case; th Tribe admits that the 1983 

parcel does not have formal reservation status through a 1 y of the above methods. 

The Tribe nevertheless asserts that since taken into trust for tribal 

housing, it constitutes a reservation IGRA, noting that the 1983 

site has been and is currently being The Tribe's 

argument relies on Sac and Fox 1250 (10~ Cir. 

2001) (partially overturned by 

Related Agencies 

under the 

iii. ~ofeterminative 

Status 

2 For example, the United States, the Picayune Rancheria of Madera County, 

California stipulated and the court ordered that the Picayune by the County of 

Madera and the United States of America, as any other 

to a suit challenging the Rancheria's termination. 

SW (N.D. Cal. 1979), 1983 Stipulation and Order, 

Associate Solicitor, Division of Indian 

Counsel, NIGC, dated Mar. 2,2000, re: 

1996, which is within the boundaries of 

lands" under the IGRA. 

of Reservation 
The Tribe presented evidence to indicate that the 1983 

community housing purposes. The Tribe informed the in its land-into-trust 

application that the 1983 parcel would be utilized by housing authority to 

provide homes for tribal members. The application requested another parcel in 

St. Ignace as part of a request for five parcels "for Urban Development 

(HUD)] funded Indian housing operated by the and related 

community facilities." Sault Ste. Marie Tribe 

Acquisition Plan, Dec. 15, 198 1, at 1, 

site was to be used for thirty-five 

The application was amended to replace the formerly St. Ignace parcel with the 

current site due to an inability to obtain a sewer state. Letter from Joseph 

K. Lumsden, Tribal Chairman, to Alvin Picotte, Michigan Agency, 

Bureau of Indian Affairs (BIA), dated Sept. 16, states that the Tribe will 

use the substituted parcel principally for a HUD with a secondary use of 

economic development. Id. The Tribe BIA in trust for the Tribe 

on March 15, 1983. The Tribe on the parcel, 

which now contains 59 homes 

Affidavit at 7 20. 

The Tenth Circuit Court of Appeals in Sac and Fox, upon by the Tribe, considered 

what constitutes a reservation under the IGRA. The specifically rejected the 

Secretary's argument that the term reservation in be interpreted "to include 

land set aside under federal protection . . . for the regardless of [its] 

origin." 240 F.3d at 1264. The Court found use" of Indians to 

be too broad and to "muddy" the distinction 

reservation. Id. at 1267.~ 

Nor did the Court accept the "original" or "traditional" efinition of reservation, which is 

land reserved from cession. Id. at 1264-1 265. The Co quoted the definition of 

reservation given by a recognized authority on Indian L w, Felix Cohen 's Handbook of 

Federal Indian Law 34-35 (1 982 ed.): 3 

The term 'Indian reservation' originally had me t any land reserved from 

an Indian cession to the federal government reg dless of the form of 

tenure. During the 1 850's7 the modern meaning f Indian reservation 

emerged, referring to land set aside under feder protection for the 

residence of tribal Indians, regardless of origin. y 1885 this meaning 

was firmly established in law . . . 1 

3 In rejecting the Department's position, the Court stated at 1267: 

IGRA specifically distinguishes between the "reservation" of an Indian tribe and lands held in 

trust for the tribe by the federal government. E.g., 25 U.S. . 5 2719(a)(1-2), (b)(l)(B). Under the 

Secretary's proposed interpretation of the term "reservatio ," the line between the two would 

arguably be muddied. In other words, if the term "reserva ion" were to encompass all land held in 

trust by the government for Indian use (but not necessarily Indian residence), then presumably 

most, if not all, trust lands would qualify as reservations. 1 
(Footnotes ~mitted).~ The Court then held that land in a treaty for the purposes 

of an Indian cemetery was not a reservation for IGRA because it was not 

for the "residence of tribal Indians." The Court the purpose of 

reserving the land from cession be considered land reserved from 

cession was a reservation within the meaning of the IG 

The Court in holding that the cemetery was not a within the meaning of the 

IGRA, compared the Tribe's reservation in for "Indian residence" 

for the Tribe as referenced by Felix Cohen, to preserve the 

cemetery. The Court concluded that since for the limited 

purposes of the burial ground, it was not a reservation. 

We do not interpret the Court's holding that land reserv d from cession must at least be 

for "Indian residence" as support for the proposition tha all land taken into trust for 

residential uses of tribal members qualifies as reservatio . Rather, we interpret the 

Court's reference to Indian residence as a reference to a ribe's homeland, land set apart 

for the permanent settlement of the tribe. 1 

We draw this conclusion because the Court noted that Tribe settled in Oklahoma, a 

far distance from the cemetery, and because it concurred in the plaintiffs' 

argument that reservation meant land "set government for the 

occupation of tribal members." Id. at context, the Court cited 

the Handbook's discussion that Crimes Act and Indian 

1 15 1 (a). It thus 

appears that the Court to be a 

fa~tor.~ Also, the 

that it would not 

4 Similarly, as quoted in Sac & Fox, Black's Law Dictionary "reservation," in part, as "[a] tract of 

land (under control of the Bureau of Indian Affairs) to which Indian tribe retains its original 

title to ownership or which has been set aside for its use out 1307 (6th Ed 1990). 

The Handbook's more extensive discussion of reservations also them as the permanent home 

for the tribe and land set aside for the establishment of villages, establishing cornfields, and 

"use and occupancy," id. at 475476, again implying more than for a housing project, which 

is more likely a dependent Indian community than a reservation 

The Court at 1264 noted that IGRAYs use of the phrase "the rese ation of the Indian tribe" in 25 U.S.C. 

4 2719(a)(1), suggests that Congress envisioned that each tribe wo Id have only one reservation for gaming 

purposes. We disagree, as the Secretary may proclaim at different 'mes non-contiguous parcels as 

reservation for a tribe, as done for the Sault Ste. Marie Tribe. 

7 1 
We reviewed the other Federal statutes that reservation and trust 

land and find that they do not make this or "housing." 

For instance, under the Indian country is common 

under both reservation and dependent 

Handbook of Federal Indian Law 39 

and (b) employ a hctional 

dependent 

Similarly, the IRA does not make residential use the between reservation and 

trust land. Rather, the IRA relies on a proclamation which provides 

notice to the public and indicates a Federal intent to 

property. CJ City of Sherrill v. Oneida Indian 

(2005)(finding the unilateral creation of a 

jurisdiction by the Tribe to seriously 

governments). 

The IGRA specifically distinguished between "res and "trust lands within the 

tribe's jurisdiction over which it asserts governme r." Allotments and trust land 

cannot be treated as equivalent to reservation und and still be consistent with 

the distinction Congress made in the Act. Becau id not use the term "Indian 

country" when it defined Indian lands, we declin ndian lands" and "Indian 

country" synonymously. Nor did Congress in the I e the term dependent Indian 

communities, another common term. We concl that neither residential use 

by tribal Indians on trust land, nor the exercise ion, is the determinative 

factor in defining reservation under the IGRA.' 

Based on the above analysis, reservation under the within it land 

encompassed within 18 U.S.C. $ 1 15 1 (a), a reservation, including 

trust and fee patented land within those 

Marchl4,2005, Office of General 

fee land at White Earth 

the IGRA to 

7 Of course, individual trust parcels also serve for residences, but e Handbook appears to be 

distinguishing between the permanent residence or location of the rather than residential use by a 

family or individual. 

8 In further support, we note that the issue of jurisdiction under 5 1 15 1 was litigated concerning 

another parcel of property taken into trust for the Sault Ste. housing purposes in the same 

time period as the 1983 parcel at issue here. In that did not argue that the land 

was reservation within the meaning of 18 U.S.C. 5 the land would be a 

dependent Indian community for the property was 

undeveloped that it was not a dependent States did not argue 

that the similarly situated land was did not consider this 

1983 parcel to be one. Sault St. 
We do not conclude that a tribe must have a in order to game or 

have a reservation reserved from cession. pueblos, colonies, 

and dependent Indian communities within !j 1 15 1 (b) might be 

considered a reservation for purposes of is no formal 

reservation established by treaty, statute 

presented here. See, e.g., Duncan v. 

(Ct.Cl. 1981), providing that 

communities in California, 

B. Is the 1983 Parcel Reservation Under the IG~? 

The 1983 parcel is outside the boundaries of an existing reclaimed reservation. As the 

IGRA maintains a distinction between reservation and t st land, we find that the plain 

meaning of reservation in !j 2703(4) of the IGRA, as co only understood by Congress 

when it drafted the statute, is land set aside by the feder 1 government as the Tribe's 

permanent home, for its occupation and communal resid ncy, for its seat of government, 

and land included within the meaning of Indian country 1 15 1 (a). The 1983 parcel does 

not fall within these parameters. 1 

We interpret reservation under the IGRA consistent the distinction made under the 

IRA, maintaining the distinction made in the IRA n acquiring land in trust outside 

a tribe's reservation and the optional second step it a reservation. A 

reservation under the IGRA does not include all under the IRA, nor 

does it include all land acquired for housing. under the IRA 

primarily for a housing development does not under the 

IGRA without a proclamation. 

In this circumstance, we interpret the IRA and the I istently. We interpret 

reservation under the IGRA to require more than uired for purposes of HUD 

housing when the Tribe already has a proclaimed ended to be its land base 

or homeland. In contrast, reservations proclaime are reservations for 

purposes of the IGRA. The notice of the acquisi UD housing does not 

entail the same scope as a proclamation of a reservatio Sault Ste. Marie v. Andrus, 

532 F. Supp. 162-164. We conclude that land t the IRA is not per se 

reservation under the IGRA. Further, we find t st land for Indian 

residential uses is not alone sufficient to make land, talc o trust under the IRA 

outside the boundaries of an existing reservati the IGRA. Absent 

additional evidence that indicates a federal int was to serve as the 

Tribe's permanent settlement, it is not reservat 
development on trust land outside the boundaries of thal 

purposes of the IGRA. 

When the Tribe has a formal or declared reservation, we 

t 

- 

reservation is a reservation for 

do not find that a housing 

C. Nonapplicability of Section 271 9(a) to the 20 

Tribes are generally prohibited by the IGRA from gamil 

October 17, 1988.25 U.S.C. 9 2719(a). The 2000 parce 

after this date, so must meet an exception to the general 

In this instance, section 27 19(a)(l) allows gaming on tn 

contiguous to the boundaries of the reservation of the In 

Since the 1983 parcel is not a reservation and the 2000 1 

contiguous to a reservation, the exception under 27 19(a: 

IV. Conclusion 

The IGRA allows lawll gaming on Indian lands acquir 

exception to the general prohibition of gaming on after-, 

have reviewed the potential applicability of 25 U.S.C. 9 

gaming on Indian lands located within or contiguous to 

Indian tribe on October 17, 1988. The 2000 parcel does 

The 1983 parcel, taken into trust under the IRA, is not 1( 

proclaimed reservation, nor was it proclaimed a reservar 

parcel does not qualify as a reservation for the purposes 

parcel is not contiguous to a reservation. The Tribe ma! 

under this exception. 

Sin 

c- ...-- 

-7- 

/c 

Edi 

Aci 

Dil 

cc: George T. Skibine 

Acting Deputy Assistant Secretary-Policy and E 

10 Parcel 

.g on trust land acquired afier 

. was clearly acquired into trust 

ule for gaming to occur. 

st lands "located within or 

lian tribe on October 17, 1988." 

arcel is not otherwise within or 

(1) is not applicable. 

:d after October 17, 1988, if an 

.cquired lands has been met. We 

27 1 9(a)(1), which authorizes 

he reservation boundaries of the 

not fall within this exception. 

cated within a formal or 

ion under the IRA. The 1983 

of the IGRA, and thus the 2000 

not game on the 2000 parcel 

h R. Blackwell 

.ng Associate Solicitor 

ision of Indian Affairs 

:onomic Development