United States Department of the Znterior 

OFFICE OF THE SOLIWOR 

Washington, D.C. 20240 

To: Assistant Secretary - Indian Affairs 

From: Associate Solicitor, Division of Man AfKs 

Subject: Confederated Tribes of Coos, Lower Urn- & Siuslaw Indians v. Babbitt, 1 16 

F.Supp.2d 155 (D.3D.C. 2000) in regard to proposed gaming on'the Hatch Tract in 

Lane County, Oregon. 

Introduction 

Zhis memorandum is in response to the above refmnced decision in Confederated Tribes 

in which the court remaaded tbis case to the Department for fiuher coasideration of the 

Department's intexpretation of 25 U.S.C. 9 2719(b)(l)(B)(iii). Section 271 9@)(1)(33)(iii) 

exempts land taken into trust as part of "the restoration of lands for an India triie that is restored 

to Fedeml recognition." T'his section is part of an ovdl statuhy scheme set forth in the Indian . 

Gaming Regulatory Act, 25 U.S.C. S$2701 et. seq. (IGM), that prohibits gaming on land . 

acquired into trust &er October 17,1988 unless oxtah exemptions are met. 

We have carefWy reviewed the Administrative R?cord in Confederated Tribes, the 

court's opinion, and additional materials submitted by counsel for the Tribes. In addition, we 

have taken into consid~on the decision issued on August 3 1,200 1 ,by the National Indian . 

Gamhg Commission NGC) to Judge Hikm entifled "Whether the Tzntle Creek Casino site 

that is held in trust by the United States fur the bm&t of the Grad Tmse Band of Ottawa and 

Chippewa InaiaoJ is exempt fiom the zd&m Gaming Regulatory Act's geneal prohiition on 

lands acquired after October 17,1988." (GTB Decision) 

AAer care@ coniidedion, we conclude; that the Hatch Tract falls within the 

requirements of 5 271 9(b)(l)(B)(%), the restored lands exception to the prohibition to gaming on 

lands acquired sftcr October 17,1988. h most be noted, homer, &at this opinion will only 

address h unique factual and legal ciraces dated to the Confederated Tribes. - 

Page I 
- On October 1 9,1999, Solidor John Leshy issued an opinion regarding whether fhe 

"Hatch Tract is exempt fiom the general phibition against gaming on land acquired into trust 

after October 17,1988, as set forth in the Indian Gaming Regulatory Act, 25 U.S.C. 2702 @ 

a. (IGM)." At issue here are two tracts of land - the Hatch Tract and the Pet- Tract. 

The Petemnan tract is a contiguous driveway to the Hatch tract-rj Congress, in 199 8, added the 

Paerman tract to the Tribe's statutory reservatioa The Deparhnent took the Hatch &act into 

trust fox the tribes in 1998. 

In the 1999 opinion, we examined two exceptions to IGRA's requirement for a ' 

determination and the Governor's conanfence for off-reservation ,gaming. The two excqt2ons 

we anaIyzed were the restored lads for restored tribes ad the contiguous land exceptioazJ We 

found that the Hatch Tract met neither exception. In the opinion the Solicitor concluded: 

We believe that "restored landsn under section 200(1)(B)(iii) iaclude only those 

lands that are available to a restored tribe as part of its restoration to federal I 

recognition. The statute that restores he 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 Here, the Confederated 

Tribes were restored to Federal xeco,~tion pursuant to their Restoration Act of 

1984 and Congress specifically described the parcels to be acquired. The only 

lands which constitute "restored" lan& for the Confederated Tribes are those 

parcels in section 7. 

Oqtober 19,1999 Memorandum &om the Solicitor to the Assistaut Secretary-Indian Affkirs at 3. 

On September 24,1999, -the Tnbs filed suit in the U.S. District Court fir the District of 

Columbia challenging the Department's decision to deny certification for the Hatch ~ract.2' The 

parties keafter filed cross-motions for summary judgment 

On September 29,2004 the court ded in the ~&artment's hvor on three of four cbs. 

H-, rh;, dhict mutt also mled that the went had adopted an uduly ~~ITO'W 

-V See attached map. 

I 

2 The WUE rejected Canfi&n&d T-' alternative agmmt that the )Eatch Tract qdified for the 

exception foI lands dgaous to the botmQries of the reservation on October 17,1988. Tht court did not remand 

this &e to tbe Departmenf therefore> we have no need to address it in this ophicm. 

3 lac Tribesz complaint raised fnrr ckims for relief under the APA: (I) the Hat& Tract quaS&s fw 

gamQ under 5 2719(aXI) (conngao~~ W); (2) the Hatch Tmct qualities far gaming under 8 2719@)(1XB)(iki 

(=&or& lands for restored tribes) (3) the Assistant Secremy's decision deM from prior agency practice 

without xeasoned explanation; and (4) &e Ass&mt Senemy's decision was mbitrary and cqricioi.~ because it wds 

made wid~out considering d pertinent materials relating to the relevant history-of the Hatch Tract 

Page 2 
interpretation of the "restored lands'' exception in 5 2719(b)(Z)(B)(iii) and remanded that single 

issue for fkrther admbkkzdve review. Confederated Tribes of Coos. Lower Umppua & Siudaw 

Indians v. Babbitt, 11 6 F.Supp.2d 155 (D.D.C. 2000). 

In p&ent part, the court diq'eed that the technical me- of the tenn "restoration 

of lands" linc1uded ody those Iands that were availabIe to a rkstored tribe as part of its Iegislative 

restoration to Federal recognition by Congress. Instead, the cow found that the plain meaning of 

'?estoration of lands" could be construed as those laads that place a tribe back in its position 

pior to lamination. Id. at 163. The court also found that the Department's requirement fur 

specific legislative direction regarding restored lands so@ "to grift a procedural and temporal 

limitation onto section 2719(b)(l)(13)(ilii)-w Id. The court also rejected our argument that giving 

the statutory 1anguage this pIain, broad, reading would result in op- the door to permitting 

gaming on any *-acquired tribal lands. @. Given the various possible meanings of the 

. sedan, the court concluded that we had amlied "an mddy restrictive analysis" and that we 

should consider on remand the application of the Man-fivoring canons of construction and the 

pticula fk~tual C~.CI.UE~~BDXS stmounding the Katch Tract. However, the court did agree 

with Judge Hillman in Grand Tmerse Band of Oftawa and Chi~~ewa Indians v. United States 

Attorney, 46 F. Supp.2d 689 (W.D. Mich. 1999) that "the term 'restoration' my be read in 

numerous ways to place beIated3y restored ttibes in a comparable position to earlier recognized 

fribes while simultaneously limiting after-acquired property in some fashiori." Id. at 1 64, quoting 

Grand Traverse at 700. 

Lands that are taken into trust as part of the "restomtion of lands for an Indian tribe that is 

restored to Federal recognition" are exempt &om the prohition against garaing on lands 

acquired into trust after October 17,1988.25 U.S.C. $2719(b)(I)(B)(iii). This section requires a . two-pmnged analysis. First, the tribe must be "restoredn witbin the meaning of ZGRA. Second, 

the land ta be acqi&ecZ mw k "re$mC t?ie izemkg ofIGAU. 

At ksne here is the Department's interpretation of "restored" as applied to land in the 

context of 25 U.S.C. 5 2719(b)(T)@)(iii). Two district courts have opined t@tSthe Depaftmeat's 

interpetation of this subsection is too narrow. The cotat in Codderated Tnies found that the 

Department failed to qply the canons of construction that "statutes are to be construed liberally 

in favor of the hdians, wEth ambiguous p~ovisions interpreted to &their befit." @. at 158, ci"& 

Muscogee (Creek) Nation v. Hde& 851 F.2d 1439,1444-45 (D.C. Cir. 1988)(fuaher intemal 

CMOILS omitted.) 

Page 3 
The Department has issued several opinions regarding the application of 

271 9(b)(l)(B)(iEi to specific facts.:-' Since that ~e two courts and the NIGC have issued 

&cisions analyzing the restored lands exception. In addition, none of the Department's previous 

opinions have included an analysis of the Indian canons of construction. In this opinion, we will 

=examine our interpretation of IGRA in light of the foregoing- By applying thk Indian canm 

of construction along with the Dwmt's eqertise in interpreting the statate it is charged with 

implementing, we End that the Hatch Tract cons ti^ restored lands. 

I. The restored hds exce~tion within $27X9(b#IMB)fiii is ambimous. 

Before reaching any of the canons of construction, we must decide whether 'Yhe 

restoration of lands for an Wan tribe that is restored to Federal recognition" is ambiguous. 'If 

"Congress has directly spoken to the precise q&on at issue," then the Department must yield 

to the plain meaning of the text Chevron USA Lnc, v. Natural Resources Defense Council. Inc., 

467 U.S. 837,842 (1984). However, if the provision is ambiguous, thenthe Department can 

apply the Wan canons of ccnsirucb:on as well as om expertise in interpreting IGRA, to , determine the proper appIication of the restored laads provision.s-' 

9 Set Memorandum dated August 5,1999, from Associate Solicitor - hdiau AfFdirs to Director, Indian 

Gaming Managanent Staff concerning me Little Traverse Bay Bmds of 0dawa hh; Letter dated August 3, 

1998,fiom the Solich, U.S. DepaTtment ofthe Interior, to the Congressman Vic Fazio concEmiag &e Medhoopda 

Tribe of the Cbino Ranch* Memddum dated March 16,1998, from Associate Solicitor - Inh Mfkirs to 

Actkg Director, Tndian Gaming Mmagemmt St&€ con- the Little River Band of Ottawa Was; 

Mme dated November 12,1997, fiom Associate Solicitor - hdian Affairs to Deputy Commissioner for ' Indian Affairs cmc-g &e Litcle Traverse Bay Baa& of Odawa In- Memorandum daed September 19, 

1997, hm Solicitor, U.S. &partmeat of the Xnterior to rhc Secretary, U.S. D-t ofthe &mior concerning 

thc Pokagpn Band of Potawamni Tndians, Letter dated Much 14,1995, from AsSimant Secremy - Indian Affkin to 

DeIores Pigsley' Chainnaa of the Confederated Tn'be of Siletz Indians cbnc&g "restored land" and Triba-State 

Compact appro* Memorandum dated March 6,1995, hm the Regknd Soficitor, Pacific Northwest Region, to 

Director, Indian Gaming C;lmingement M, concerning the Confedaatcd mi of Siletz bdimq Memarsadurn 

dated Fehay 2,1994, from Associa Solicitor - hdian Affairs to Deputy Dkxbr for Legislative and 

mwemmental fain comming the. arestared w aoeption for tbe wemeti Triies oft& ~rsnd R&' 

CommmiLy ofhh, Letter dided October 15,1993,6-am &skta Sscretary - Idm Affairs to MaTk Memkr, 

@&artan ofihe Canfederated Trh afthe Grand Ronde Cmnmity of hdia.us2 concan& *restored laud" and 

the ~rhl-State,~ompact disapproval; Man- dated September 27,1993, &om the kociate Solicitor - 

Indian Aff5.h u, Mc Narttrwest won Asktint Regional Solidor. Canfedmated Tribes Achkhdve 

Record at 00175-00214. 

-Y analysis io rhe GTB kisioq the MGC faund § 2719@)(1)(BKii to be ambigoous. at 12. 

Page 4 
Jn Confederated Tribe the court found that 5 2719@)(1)(B)(iii) is ambiguous.^' The 

court found that "part of the ambiguity ofthe provision stems f?om the use of the phrase: 'Yhat is 

restured to fedad recognition" @. at 162. The court opined that the guestion boils down to 

wh&a the word 'kestored" m the phrase 'Wan t&e that is restored" is istznded as a verb 

(that is, the activiity of restoring, in wbich case the timing should be limited to the congressional 

adon) or as a noun (sic.) (that is, the state of being restored, in which cke the timing should 

extend to completidn of the land restoration process whether through later IegisIative or 

administrative action). IcJ. T6ns the corn found Jlat 'qhe - possi%ilities highlight the 

ambiguity of § 2719@)(1)@)(iii).'' u. 

The courts in both Confederated Tribes and Grand Traverse Band found that the terms 

'testore'' has no independent Jegal significance in either IGU or in other Acts. Confederated at 

162- 163 and Grand Traverse at 696. Nor does the plain meaaing resolve the matter- MemamWebster's Collegiate Diction- at 999 (10~ ed. 1999)('e word restored is generally understood 

as "'to brine; back to or put back into a former or original state"). The Grand Traverse ~ourt held 

that the language of the ''restoration of lands" exception "impIies a process rather than a specific 

transaction, and most iwmedly does not limit restoration to a single event." Id, at 701. As 

explained by the court: "Congressional we of the words appears to have ocnarrd in a descriptive 

sense only, in conjunction with action taken by Congress to accomplish a purpose consistent with 

&e ordinary meeg of the words. In no sense has a proprietary use of 'restore' or 'restoration' 

been shown to have o~aked." @. at 698. 

Thus, we believe that $27190(I)(B)(iii) is ambiguous and has no independent spec& 

legal signi£icance.~" 

2. Indian Canon of Cohstmetian 

The Indian canons of conshvction provide that "s*IMcs are to be construed liberally in 

favor of the Indians2 with ambiC3guous provisions interpreted to their benefit. . . ." Montana v. 

, . h Grand Traverse the court fomd that rhe Department should give rhc term. "rcrtored" its plaia, 

dictionary meaning. @ at 6%. However, the court said that even if the "government's Man could be 

considered p]azMble, a ~onchrsian Irejeq the Bad's ~cticm of the satate is equalZy Cmdtxd, more) 

plansiile." lhe court fbund &as the Band's rnstnmi~~ should be ginn pferencc. @. at 700. Ihe court then 

cited Bm v. Jtasca Com, 426 U.S. 373 (2976) holding rhat ambiguities in a hae Zeakg with Idiacs should - 

be comd to their beneM. 

2'Ihe Departmeat recognizes, as dx MGCrecogniEed in its GTB hkan, that since we arc not 

proceecling through fd admi&mh adjklication or formal rul-g, &is opinion is not entided to the 

fullest mem of dcfefenct. BW States v. Mead Carp. 1 21 U.S. 2 164 (2001 .) GTB Man at 7. 

N- we have tried to-exercise carq experience and infbnncd jadgment, ioduding reviewing materiab 

mbmitted by the Tribes and the NIGC. Moreova, tht Dep- bas used it in the area of Ipdian laads 

and Indian gmhg in reviewing this question. 

Page 5 
Blackfeet T~be of Indians, 471 U.S. 759,766 (1985). This canon is rooted in the unique 

relatiomhip between the United StaSes and hdian tn-bes, and Congress's obligation to act on 

behalf of these "dependeat and sometimes exploited Man nations." Albuaueque hdim Riehts 

V. L;\rraq, 930 F.2d 49,58 (D.C. Cir. 1991) (citing Seminole Nation v. United States, 316 U.S. 

286,296-97 (1942)).iJ h the D.C. Circuit, where this case is being litigated, the Court in Coos 

cited &fusco~ee (Creek) Nation v. Hodel, 85 1 F.2d 1439,1445 (D.C. Cir. 1988) which provides 

that 'c-swutes are to be conshved liberally in favor of the hdians, with ambiguous proGsions 

interpreted to their benefit." at 1444-45, Coos at 1 16 F.Supp.2d 155,157. 

Both the court in Confederated Tn'bes and Grand Traverse applied the dictionary 

definition to "restored." Confederated Tribes at 162, -M Traverse at 696. The dictio~my 

definition of "restore" is: (1) to give back (as something lost or taken away): retam . . .2: to put 

or bring back (as into existence or use) . . -3: to bring back or put back into her or original 

state. . . . Webster's Tbird New Internatid Dictionary, p. 193 6 (G. & C. Meniam Co. 1976). 

W; believe, howeva, rhat to apply dictionary &Enition to fhe restored Iand provision 

without temporal or geographic limitations would give restored tribes an unintended advatage 

over tribes who are bound to the I'rmitations in IGRA that prohibit gaming on laads acquired after 

October 17,1988. Moreover, we believe that, in examining the overall statutory scheme of 

IGRA, Congress intended some limitations on gaming on restored lands 

Because there is no legislative history regarding 5 2719, one must look elsewhere to 

glean some indication of the Congress' view re,- off-reservation gaming. IGRA was 

enacted in the wake of -Caliomia v. Caba7sn Band of Mission Indians, 480 U.S. 202 (1987) 

which held that the State of California had no authority under Public Law 280 to Morce its 

bingo and card game statutes on Indian resewations because such laws are regulatory and not 

pro%bito,.y. For .three years prior to that decision, bills had been introduced in Congress aimed 

at regdating gaming on &dim reservations. Yone of these biIls pas6ed ~caose no agreement 

codd be reached on the kinds of games bib should be pemitted to mte. 

Congress did hear testimony as part of the previously Wed bills. Rep. Bemiter of 

Nebraska, who had introduced one of the failed bills, testified tbat he did not believe that it was 

!' The circuits srre m conflict repding the application of the canons of co-on. In tbk P Circuit fhe 

court has deched to apply the Indian canons of wnsmai011 in light afthe compecipg deftreace givm to an age~y 

charged with the stanrte's dmhishtion pmsuant rn Chevroa USk Inc, 467 U.S. at 842-44. CHumch AIaska Corn. 

V. Llljw 915 F2d 454 (9th Cir. 1990), Setdovia Native Asah v. Ltlian, 904 F2d 1335,1342 (9th Cjr. 1990) and 

Havnes v. United States, 891 F.2d 235,238-39 (1989). Howevq che lod Ckk& takes a Wtrent view finding 

that the caucm of construction tmnps the agency's intqmaion of a statme. See. Ramah Navaio mer of&e 

Navaio Nation v. Luiaq 1 12 F3d 1455 (10' Cir. 1997). 
"good public policy" to establish Indian gaming operations on lands that were not. contiguous to a 

reservation against the wishes of the directly &ted political subdivisions. Zndiaa Gamblinq 

_Control Act, PW Il. Hearings before the House Interior and hdar Aff%rs Committee, 9gm 

Cong., I" Sess. 20,21 (1985) (H.R 3130 Testhony.) Rep. Bereuter considered it inappropriate 

for the Seaetary to pt? new lands into tnxst for gaming because to do so would circumvent State 

law enforcement and result in lost revenues to State and local governments. @. Thus, wben . 

IGRA was introduced, it was with a backdrop of politic4 pressure to Kt off-reswation 

gambling without the concurrence of directly affected political subdivisions. It must be noted, 

howam, that as enacted IGRA Mmd fram previous bills. 

- As one cornpelling manifestatic~ of the prevailing Congressional wiU, the enacted § 2719 

includes a requirement thar gaming on most off-reservation, newly wed lands must be 

subjected to the two-part detemhion in $2719@)(1)(A), i.e, the Department must find that 

gaming on newly acquired land is in the best interest of the kibe and its members and not 

detriruental to the sluromding community, and then the tribe must receive the Governor's . - 

concmence. As with the previous Med bills, Congress intended to give the Department and the 

local political wmmtlnity a voice in deciding whether to allow gaming. More importantly, it 

gave the Governor of the State a veto. However, Mtike the failed Indian gmxhg bills, IGRA 

contains exceptions .to this provision. 

Section 2719@)(1)@) contains three exceptions to the high political hmdle of a 

Governor's veto-2' These three exceptions are: (i) the settlement of a land claim; (ii) the initial 

reservatioi of an Indian tribe acknowledged by the Secretary under the Federal ackuowledgment 

process sJ; and (iii) the restoration of lands for and Indian tribe that is restored to Federal 

recognition. Clearly, one compelling reason for pzo~iding such exemptions is to provide all 

.tribes with at least one opportunity for the economic adyadzges of gaming &out having to 

seek the Governor's concmce. If Congress had limited gaming on lands within known . 

reservation boundaries, then newly acknowledged tribes or tribes that settled land claims would 

' haye been denied the oprbmiTties that ERA pzovides. 

In enacting the restored lands for restored tribes exc'eption, Congress codd ham enacted 

an exception for tzibes that bsd been eongressionduy or legislatively recognized. Mo~over, it 

could have Wted the de6niticm of restored lands to fdxmer reservation boundaries as it did in 

9 We should not ignore that &c Department's regstions far taking Sand into tmst, 25 CIA. Part 15 1, 

provide for notice ro the state and local government. Thus, wbile the Govmor does not haw a veto, the local 

community stdl has an opptmity far involvemedat while the land is being ccm&zed for status. 

r%Iowevcrp as Judgc Rikm points out, there can be sbatiolls like @and Traverse in which a mie 

restored mgh the ackmwkdgment process caa still be considered restrmd for purposes of 8 2719(b)(l)@)(iiii. 

Grand Traverse at 699. 

Page 7 
9 2719(a)(2)(A)(ii). Congress did neither- Instead it enacted a broad, albeit ambiguous section, ' 

- that exempts restored lands for restored tribes. 

However, because IGRA provides certain temporal. (i.e., the October 17,1988 knitation 

for reshvation boundaries) and geographic Zimitations (i.e, land witbin or contiguous to the 

tziie's reservation) we carmot view $271 9(b)(l)(B)(E] to allow ga- on after-acquired lands 

with no limitations. Conse~y; we do not use a dictionary definition of restored to include 

all land "restored" It also seems clear tbat restored land d& not mean any aboriginal land that 

the r-redtribibe ever occupied. Tnbcs that were not termhated and thereby not capable of 

being "restored," lost vast amounts of land and were forced to move all over the country such 

that their reservations on October 17,1958, are vastly different than their aboriginal land. 

We agree with Judge HiUman's 6nding in Grand Traverse that 8 2719(b)(l)(B)(iii) could - 

be read "in numerous ways to place belatedly restored tribes in a comparable position to earlia 

recognized tribes while simultaneously, limiting after-acquired property in some fashion- " Grand 

, Tmse at 700. However, because this opinion is related solely to the Confederated Tribes aud 

the specsc fktd tit-ces .presented by the Confederated Tribes, we will not opine as to 

the possible temporal or geographic or other limitations of the restored Imd subsection.fiJ 

Further, applying the Mian canoxzs of construction to assist us in detammm -. g the scope 

of 5 271 9(b)(l)@)(iii) means not only that we may draw all applicable Xkrences in fhvm of the 

Tribes, but also that we should not apply the canon such that it benefits a certain group of tribes 

to the disadvantage of 0th~ tribes. Confederated Tribes of ChehaIis v. State of Wasbgton, 96 

F.2d 334 (9& Cir. 1996).gU 

Analysis of Hatch Tract 

?he Tribes of Coos, Lower Umpqua & Siuslaw hdim (now the ''Confederated Tribes1') 

.\;yere terminated by the Westem Oregon Temimtion Act of 1954. Congress restored tbe 

Confederated Tribes on Octobek 17,1984 by the Coafederated Triies of Coos, Lower Umpqua & 

Siuslaw Indians Restoration Act of Octok 17,1984,25 U.S.C. 5 714 et seq. (1998). 

1. Back-ound of the acauisition of the Eatch Tract . 

u We Meve that the better approach is fa the Department to engage in Notice and Cornmen5 

Rulemaking to detemk the factors it vilI msidex in dekmhhg whether other parcels-of land meets the restared 

Zamd aception. 

Wealsono~&~theco\atm~~~72ibes~andrhecourrinGrandTravef~erecognizethat~e 

more expansive imeqretdcm of $2'7 1 S(b)(l)@)(iii, wd benefit restoFed tribes vif-a-vis other mbesConfe-d at 164, -Grand Traverse at 700. t 

Page 8 
The Department took the Hatch Tract into trust in January 1998.EJ The tract is about 98 

acres and is the site of a form Siuslaw village and is adjacent to an important Indian ~kmq 

which contains the remains of~bal anceston. 

ARer the court's ruling, the Tn'bes suppl1emented the record with "The Hatch Tract: A 

Traditional Siuslaw Village Within the Silek Itesedon, 1855-75." December 4,2000, Dr. 

Stephen Dow Beckham ('Beckham Supplemental Report.") In his report, Dr. Beckham %rib: 

The Hatch tract was fist identSed as a "Swlaw Village" by Capt. Iobn F. 

Reynolds of the U.S. Axmy in July 1856. The site, hown as Ka'aich, was the 

. location of the ceremonial lodge of the Earth Lodge CuIf a version of the Ghost 

Dance, in 1877. A part of ihe Ka'aich was issued to Jesse Martin, a Coos Indian, 

, as an allotment in 1892, pmsuant to the allotment agreement with the Iadians of 

the Siletz Reservation resolved that year. Another portion of the Kataich, the cite 

ofthitiibal cemetery, was allotted to Tom Johnson, a Low Umpqua Indian. 

These are non-taxed Man properties. The heirs Jesse Marhh's @an-, 

Hatiie @fatin) Hatch, sold ht allotment to the Confederated Tribes in 1995. 

The heir of Tom Johnson, Elizabeth Anne (Macy) CampbelI, a biid member, 

retains a portion of that non-taxed allotmet, including the tribaI cemetery. The 

Peterman tcact, another portion of the Tom Johnson allotment, was deeded to the 

United States in 1947 to provide a right-of-way into the tdbd cemetery. The 

Bureau of Idan M%rs a.fErmed the trust status of the Peterman tract in 1997. 

u. at page "ill 

Dr. Beckham's report finds that in 1 859 the Coos and Lower Umpqua wanted, to remain 

where they were located instead of moving to the aewiy created Siletz Reservation. at 9. 

Although the Sub-Agent suggested alkrhg the southern boundary of the Siletz Remaiion to 

.include the Cow and Lower Umpqua, im&d the hgon sup^^^ ordered the re&oval of . 

the Coos and Lower Urn. onto the Six& Reswation. On July 20,1862 the removal of the 

Coos, Lower, Umpqua, and SiusIaw Indians onto Sizetz Reservation was comp1ete. Id. at 9-13. 

In March 1998, the attorney for the Coded4 mi mte to the Portland Area 

Director dkcnssipg the htury of tbe adsi~on of the Hatch Tract and the tract itseE 

According to counseI fax the Confederated Tribes, sometime in 1996 the Tribes began b 

search for a site far a gaming operation with tbe assistance of its counsel, Mr. Whittlesey, and 

As noted by the comt, the hh Tkut is fomy desaibcd as twa portions of Govcnrment Lots 1 and 

2 in Secdon 25 and portions of the E1/2NE1/4 and Lot 1 m Section 26, tmmhQ 18 South, Range 12 West, 

Wihuxette Meridian, containing 98.165 acres mare or less. 

Page 9 
tribal historian Dr. Beckham Dr. Beckham and Mr. Whittlesey considered on-resemtion 

gaming in the Empire section of Coos Bay, Oregoii. However, the Coquille Tribe operated a 

close-by casino in Noah Bend. h March 1998 counsel for the Confederated Tribes wmte of the 

Hatch Tract: 

Independent of the project being handled by Dr. Beckham and me, the 

Codederated Tribes were given the opportunity to acquire the Hatch Tract 

approximattely two years ago. This tract was a public domain allotment which 

was deeded to the ancestor of a tribal member and which had never been on the 

Oregon or Lane County tax rolls. The tract was adjacent to the old Indian 

cemetery just east of Flmce in Lane Comity, and more importantly, was known 

to encompass the site of an old Siuslaw Indian village. 

The land was owned by the heirs of Hattie Hatch and had been occupied until only 

a few years ago by a tribal member who had recently died The family had a 

desire to see the site tzmdiied to tribal o-p and the pice agreed upon wa9 

' considered my attractive fiom the Confedemted T~bes' viewpoint (The Iar~? 

was acquired and accepted into bust for the Confiderated Tribes in mly March 

1998.) 

March 23,1998 Letter to Stan Speaks, Portland Area Director, BIA fiom Dermis I- Whittlesey. 

' The Hatch Tract was %en into trust for historical, cuIturaI, and economic selfsufKciency. At the the of iibe land being taken into tz~, the kibes we not considering it for 

gaming pmpo~es.~' Thc tribes decided to focw on the Hatch tract for its planned gaming 

operation because they were concerned that two casinos could not be operated at a ljrofit ia the 

Coos Bay area and the Coquine casino was hdy established. The Confedesated Tribes wanted 

to maximix their economic development opp~es. 

2. morical significance of the Hatch Tract to the ~o'nfederated Tnies. 

As part of the previous Iitigation, the Tnies submitted an admit from its historian, Dr. 

Stephen Dow Beckham. Dr. Beckham is a Profeaor of History at Lewis & Clark College .in 

Portland, oreg& In addition., as previously noted, the Tfibes -1ementd the reccad with tbe 

Beck Supplemental Repork 

According to Dr. Beckham's Affidavit, the Hatch tract is historically siguificant to the 

Confederated Tribes. Dr. Beclibam testSes in in hisdavit: . 

- 

&' Jn Mr. Whittlesey's lacR of Mach 23,1998, he says that while he and Dr. B&hm wae musidering 

it,theyhadnotprovidedtheir~torfiztnbalcomcilnntil~the~was takenintoaust aat2-4. 

Page 10 
I have also researched the Hatch Tract at the westem side of &.e confluence of the 

North Fork with the main Siulaw River, Iand lying, in Sections 25 and 26. This 

property was confinned in July 1856, by Captain John F. Repolcis of the U.S. 

Army as the site of a large Indian village and was so denominated on his map of a 

reconnaissance fiom Umpqua Rover to Cape Pepma. In 1892 Jesse Martin, a . 

Coos Indian, secured fhis property as Fourth Section Allotment under the 

provisions of the Genexal Allotment Act of 1887. The Iand passed successively to 

Zlis son, Ike Martin, and his granddaughter, Hattie @latin) Hatch. ln 1997 the 

heks of Hattie Hatch own[ed] the allotmeIxt The land is deemed '%on-taxed 

Indian land" by Lane Cow and there is no record that this land has e~er left 

Indian tenure or been subject of taxation. 

December 17,1997 =davit of Stephen Dow Beckham. 

The Beckham Supplemental Report reinforces that the Hatch Tract was the site of an 

abo~gid village. In addition, the rvort shows that the Hatch Tract was within the boundaries 

of the Siletz reservation created on November '5,1855 by President Franhlin Pierce. Also, the 

Hatch Tract remained within the reservation boundaries when it was reduced Gy Execlltivc Order . 

in December 20,1865. Id. @d that in 1862 the Coos, Lower, Umpqua, and Siuslaw Indians 

were removed to the SiIetz Reservation. @. at 9-13.) 

Also, the pet& Tract is contigpous to the Hatch Tract. While the court agreed with 

the Depment's view that the Petennan Tract was not part of the reservation as of October 17, 

1988, the histoqy of the Peterman tract sheds light on the history of the Hatch Tract. In the 

Administrative Record is the Bill of Sale dated June 24,1944. A.R. 00128. This Bill of Sale is 

for ~otment NO. 1 13 which was owned by Mr. Johnson. This bill of sale reserves 12 acres of 

~e AUotmat for use as "Indian burial and cemetery ground." Id. In 1945 the Superintendent 

mote to the Commissioner of Indian AEEBirs that "we do not see how we can keep faith with the 

Mans of the area, who fiom time immemorial have used &,is land for burial grounds, if we do 

not see that an imlmment is executed at the time of the de-to insure them of the ccktinued use 

of their cemetery." A.R. '00 13 8. The remaining portions of the Allotment were sold 

Thus, near the time of termbation, the BIA recognized the significance of the cemetery 

site and reserved it and a rigb.t-of-way to it it addition, in 1943, the Grand Rode-SiZetz.Agency 

reported in its fiscal year report that Ua second commnnity building should be built for the Indim 

people centered around the town of Florence. There are about Mteen famiEes in ibis z.z 

However, suitable Iand far the construction of such a community building must first be made 

available." &. at 00121. 

In addition, On Onoba 14,1998, Congress amended the Rdon ~ct &ough a 

. technical co~o11 bill. Pub. L. No. 105-256. This biU added the Petemaan Tract to 5ection 7, 

the EstabWment of the Reservation. ij 5. However, this bill did not add the Hatch Tract, 

Page 11 
. 3. .Hatch Tract is restored Iand 

At issue is whether the Wh Tract meets the exception found in 5 2719@)(l)@)(iii) for 

restored lands for restored tribes. There is no question that the Confederated Tribes are a 

restored tribe. The only question hire is whether the Hatch Tract oonstitutes "estored lands." 

We agree with NIGC'fi interpretation in its GTB Decision that 

Congress likely did not intad to sub&tiaUy undm the general prohibition on 

gaming on lands acquired aRer IGRA's passage. Although Congress did not limit 

the definition ofrestored lahds to former reservation bouudaries as it did, for 

example, in section 2719(a)(2)@), we believe the phrase "restoration of I-" is 

a Wcdt hurdle and may not necessarily be extended, for example, to any lands 

that the tribe conceivably once occupied throughout its history. 

- Id. at 15. 

The Coafederated Tribes were restored by Congress to Federal recognition in 1984, well, 

before IGRA was enacted. The hstostoraaon ~ct established a reservation for the Tribes, ,see 6 

713f and 8 714e. However, since this was prior to the passage of IGRA, the Tribes and Congress 

had no reason to believe that this oould limit the Triies' future economic development. The 

comt in the COOS decisionfoimd that Department's requkememmt for specific legislative direction 

regarding restored Ian& sought "to graft a procedd and tempoid limitation onto section 

271 9(b)(l)@)(iii)." Thus, we believe that it is a reasonable interpretation that since Qe 

Restoration Act was passed pdor to the ppassage of IGRA, that the land identified in the 

Restoration Act may not be the ody land that meets the restored lands provision.^^ 

Congress' in restoring the Tribes, also wanted to make sure that the bourdaies of the 

reswation did not limit who would receive Federal services. The Restoetion Act included a 

proVi.sion for services for members of the Confedeated Tni located m ,several counties. The 

Act provides that 

NotwitWmdhg aq provision to the contray in any Iaw establish& such 

sdces and benefits, eligibility of the Tni and its members for such Fedd 

services and benefits shall become eMve upon passage of bis subdxpz 

without regard to the existence of a reservation for the Tribe or the residence of 

Since we only bave before as a uibe who was restosed pcior to IGRA; we are not o@ns whedxer a tti'be 

restored aftu be enactmeat of IGRA is limited to the Iand &k&ied in the legislation restoring the tribe. 

Page 12 
the members of the Tribe on a reservation for such members who reside h the 

following counties or Oregon: Coos, Lane, Lincoln, Douglas, and Cw. 

25 U.S.C. 5 714a. Thus members living on the Hatch tract, located in Lane County, were eligible 

for Federal services. 

'The next question is whether there is a temporal andlor a geographic nexw between the 

restoxation of the Confederated Tribes and the Hatch Tract. We believe that the land has a ' 

geographic nexus .to the Tribes. We do not believe that the Triies are seeking to game on farflung land. Another consideration is that the tract was a publie domain allotmkt which was 

deeded to the ancestor of a .tribal member and which has never been on Oregon or Lane County 

?ax rob. The local commmi~ has known for years that this land is closely tied to theeTribes. 

There is also a mo* nexus under the Restoratian Act because the member, Hattie Hatch who 

occupied the land mtiI her death, was eligible fm services since she Iived in the "service arean . - 

defined by 25 U.S.C. 714a 

Moreover, Congress believw that land contiguous to the Hatch Tract, the Petexson Tract, 

should be part of the Tribes' reservation. While it could be arPoued that since Congress only 

restored the Peterson Tracf it suggests that Congress did not intkd the Hatch Tract to be 

considered restored lands we have no indication that Congress ever considered and decided 

against the Hatch Tract as part of its technical amendments: Therefore, even if ifthe techhicd 

amendment was intended only as a clear indication of ~on~ressioaal intent that the Federal 

government should view the Petason Tract as restored lands, it does not preclude the conclusion 

that the'Hatch Tract is restored land especially when viewed in light of weight of the other 

signiscant evidence. 

Also, we find it significant that near the time of termbation the Tribes had a presence in 

the area and the BIA was considering building community buildings. Wlhile we cannot say that 

Es !ad wodd !we been prrt of the Ebks' lad bm had it not been tenahatEd, it does appear 

that it meets the geographic limitations we believe ace implicit in a reasonable intapretation of 1 

2719(b)(l)@)(%): 

For the temporal nexus, the Tribes were restored in 1984 and the Hatch Tract was taken 

into tnkt in 1998. The acquisition.of the lands into trust 14 years alter the Tribes' restoration is a 

si@cant period oftke. Iz c3sidexi.q whetha this is a suEcie30.t temporal nexus, however, 

several fhbrs must be consideredOm considemtion is that Congress atloaed 14 years to elapse before restorini the 

Peson Tract to the Tiibe. Thus, in this particular instance, without some relevant attenuation, 

the mere passage of time should not be mve. Also, it is not improper for the 

Department to take account of the pracfid eEkt ofthe passage of the restored lands exception. 

For instance, it will often be the case that newly restored tribes willy out of &dneceSSi@, 

Page 13 
take some time to acquire land.sJ The Department recognizes, as Congress surely did, that 

newly restored mies do not have readily available hds for land acquisition, tbat land is not 

atways available, and the process of land acquisition is time consuming. Another consideralion 

is that the Tribes ac-d the land as soon as it was available upon the death ofthe owner. Thus, 

the Tribes quickly acquired the land as soon as it was available and witbin a reasonable amount 

of time aRer being restoredm 

Based on all of the foregoing, we believe that it is a reasonable intapretation of 25 

U.S.C. 9 2719@)(l)(B)(iii) that the Hatch Tract constitutes restored Iands for a restored tribe. 

We have considered the faa that the Coafederated Tibes were recognized before.1~~ 

was enacted and that it is seeking to game on laad which has been histuric~y tied to the Tribes 

and has a close geographic proximi@ to the Tribes. Thus, applying the Indian canons of 

constnrcdon and our eqktise in IGM we find that the Hatch Tract is restored land. ' 

if? In the proposed revisions to the rea@ations governing the AcqEtim of Trite to Laud into Tntst, 25 

CE& 5 151, the Ikpdment .coasidered 25 years as a reasonable period of time to acquire land in the proposed 

Tribal Land quidi ion Area. We the Departma wit;t&m these r&hims an unrelated grounds, dzis is aa 

indication of a reasonable time to acquire restored lauds. 

While not bdwe US, we may apply a narrowertempd corm- if a tribe atfeady has a gaming 

establishment snd is seekkg to cxpand. 

Page 14