September 29,2000 

The Honorable Jim Henson 

Chief, United Keetoowah Band of 

Cherokee Indians of Oklahoma 

P.O. Box 746 

Tahtequah, OK 74465 

Dear Chief Henson: 

As you know, a question has arisen as to whether the land .on which the United Keetoowah Band of 

Cherokee Indians ("UKB) is conducting gaming is Indian lands as defined by the Indian Gaming 

Regulatory Act ("IGRA") and National Indian Gaming Commission regulations. Absent 

such a determination, there is a serious question as to whether the IGRA or state gambling laws apply 

to the gaming activities conducted on such land. We conclude that the lands on which the UKB is 

conducting gaming are not Indian lands ova which the UKB has jurisdiction. Accordingly, the 

UKB's gaming activity is not subject to IGRA. 

Background 

In reaching our conclusion, we reviewed the following circumstances. On March 22, 1995, 

Chairman Harold Monteau drafted a letter to the tribe in which he approved the UKB's gaming 

ordinance. In that letter, he indicated the NIGC's understanding that the UKB lacks lands that meet 

the definition of "Indian lands" under IGRA. A copy of the letter is enclosed. 

In our effort to obtain Mer clarification of the status of UKBYs gaming site, the NIGC asked the 

tribe, on May 25, 2000, to provide a legal basis and explanation regarding whether the land upon 

which the tribe conducts gaming is "Indian lands" as that phrase is defined in IGRA, 25 U.S.C. 

$ 2703(4), and NIGC regulations, 25 C.F.R. $502.12. 

On June 14 2000, the tribe responded with a letter including a license for gaming issued by the UKB 

gaming board and a list of tribes with NIGC-approved gaming ordinances.that includes theUKB. In 

the letter the tribe indicated that a legal opinion regirding the UKB's status as a "dependent Indian 

community" would be forthcoming. 

On July 27,2000, we received a letter and affidavit of an attorney named Nathan H. Young. In the' 

af3jdavit, Mr. Young indicated that as First Assistant District Attorney for District '27 of the State of 

Oklahoma, he issued a legal opinion concluding that the UKB Headquarters and Bingo Hall was . 

Indian country as defined under federal and state law. 

1441 L STREET. N.W. 9TH FLOOR WASHINGTON, D.C. 20005 EL: 202-632-7003 FAX: 202-632-7066 
The Honorable Jim Henson 

September 29,2000 

Page 2 

On August 21,2000, we received a copy of a letter addressed to Assistant Secretary Kevin Gover in 

which the UKB requests that 2.6 acres currently used as tribal headquarters, membership office, tag 

office, bingo hall, and administrative programs, along with a small contiguous strip of less than once 

acre, be placed into trust. The letter included a copy of the UKB's trust land application. 

Overview of Applicable Provisions of the Indian Garninn Regulatory Act 

An Indian tribe may engage in gaming under IGRA only on "Indian lands within such tribe's 

jurisdiction," 25 U.S.C. 5 2710(b). Moreover, if the proposed lands are trust or restricted lands, 

rather than land with the limits of an Indian reservation, the tribe may conduct gaming on such 

lands only if it exercises "governmental power7' over those lands. 25 U.S.C. 5 2703(4)(B); 25 

C.F.R. 5 502.12(b). IGRA explicitly defines "Indian lands" as follows: 

(A) all lands within the limits of any Indian reservation; and 

(B) ,any lands title to which is either held in trust by the United States for the benefit 

of any Indian tribe or individual or held by any Indian tribe or individual subject 

to restriction by the United States against alienation and over which an Indian 

tribe exercises govemmental power. 

25 U.S.C. $2703(4). 

NIGC regulations have further clarified the Indian lands defmition, providing that: 

Indian lands means: 

(a) Land within the limits of an Indian reservation; or 

(b) Land over which an Indian tribe exercises governmental power and that is 

either -- 

(1) Held in trust by the United States for the benefit of any Indian tribe or 

individual; or 

(2) Held by an Indian tribe or individual subject to restriction by the United States 

against alienation. 

25 C.F.R. 5 502.12. Generally, lands that do not qualify as Indian lands under IGRA are subject 

to state gambling laws. See National Indian Gaming Commission: DeJnitions Under the Indian 

Gaming Regulatory Act, 57 Fed. Reg. 12382,123 88 (1 992). 

The dual questions under IGRA of whether a tribe "has jurisdiction" and "exercises 

governmental power" over land on which the tribe proposes to conduct gaming can arise under a 

variety of circumstances. See, e.g., Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 

701-703 (1st Cir. 1994); Miami Tribe of Oklahoma v. United States, 

5 F. Supp.2d 1213, 1217-1 8 @.Kan. 1998)(Miami II) (a tribe must have jurisdiction to exercise 

governmental power); State ex rel. Graves v. United States, 86 F. Supp.2d 1094, 1099 @.Kan. 

2000); Miami Tribe of Oklahoma v. United States, 927 F. Supp. . 1419, 1423 @.Kan. 
The Honorable Jim Henson 

September 29,2000 

Page 3 

1996)(Miami I). In this context, the NIGC is charged with the task of ensuring that 1) the tribe 

has jurisdiction, and 2) if the proposed lands are trust or restricted lands outside the limits of an 

Indian reservation, that the tribe exercises governmental power over the proposed gaming lands. 

It is against this analytical framework that we must consider the Tribe's gaming site. 

Reservation, Trust and Restricted Lands 

Because no statute, executive order, or Secretarial declaration establishes the land on which UKB is 

gaming as an Indian reservation, we lack any basis for such a finding. Indeed, the Tenth Circuit has 

already ruled that the same tract of land does not qualify as Indian country.' See Buzzard v. 

Oklahoma Tax Comm'n, 992 F.2d 1073, 1076-77 (1993), cert. denied sub nom., United 

Keetoowah Band of Cherokee Indians v. Oklahoma Tar Comm 22, 5 10 U.S. 994 (1993)(holding 

state tobacco taxes enforceable on tribally-operated smokeshop located on tribal land with 

restriction against alienati~n).~ The Tenth Circuit's determination that the land is not Indian 

country under 18 U.S.C. 5 1151 necessarily includes a determination that the lands do not 

constitute an Indian reservation. Accordingly we must proceed to the next step, that is, to 

determine whether the lands are either trust lands or restricted lands, and whether the tribe 

exercises the requisite "governrnental power" over those lands. 

The Muskogee Area BIA Realty office provided NIGC a copy of the attached warranty deed. The 

deed indicates that the Tribe holds these lands in fee simple status. While we understand that the 

UKB seeks to have these lands placed into trust, these lands are not presently held in trust by the 

United States for the benefit of the UKB. Therefore, the lands do not meet the test provided in the I first part of section 2703(4)(B). In short, these are not trust lands. Accordingly, we must consider 

whether the lands are subject to restriction by the United States against alienation, and if so, they 

are lands over which an Indian tribe exercises governmental power. 

In Buzzard, the Tenth Circuit unequivocally indicated that the lands are subject to a restraint against 

alienation under both 25 U.S.C 5 177 and a Secretarially-approved tribal charter. Accordingly, at 

first blush, the lands appear to meet the plain language of IGRA in that they are lands that are subject 

to restriction by the United States against alienation. The question of whether the general 

restriction on alienation contained in section 177 alone is suMicient to create Indian lands, 

however, is much more difficult than it appears. It raises the question of whether a restriction is 

actually "by the United States" if a sovereign Indian tribe has unilaterally taken action to 

purchase lands. Several courts have expressed discomfort with the notion that an Indian tribe 

wuld unilaterally purchase land that effectuates the removal of land hm state jurisdiction and places 

it into federal jurisdiction with no action by either of these sovereigns. In addition, a determination 

that such lands are "Indian lands" under IGRA might be difficult to reconcile with other 

provisions of IGRA, namely 25 U.S.C. 5 2719. 

' Indian country consists of "all land within the limits of any Indian reservation," 18 U.S.C. tj 1 15 l(a); "all 

dependent Indian communities," 18 U.S.C. 5 1 151@); and "all Indian allotments, the Indian titles to which have not 

been extinguished," 18 U.S.C. 9 1 15 I (c). 

In a conversation with Staff Attorney Danna Jackson on September 18,2000, William Rice, Assistant Chief of 

the UKB, confirmed that the land subject to the discussion in the Bzazurd case is the same land upon which UKB's 

gaming operation is currently located. 
The Honorable Jim Henson 

September 29,2000 

Page 4 

In short, the question of whether the lands constitute lands that are subject to a restriction by the 

United States .against alienation is an exceedingIy difficult question. Because the Tenth Circuit 

squarely addressed the next prong of this decision in Bzczzard, we need not reach this difficult 

question. Accordingly, we now consider whether the tribe has jurisdiction and exercises 

governmental power over the lands. 

As noted above, the Tribe must establish that it exercises "governmental power7' over the parcel 

it intends to use for gaming purposes. See 25 C.F.R. 5 502.12(b). Existing "tribal jurisdiction," 

however, is a threshold requirement to exercising governmental power. See, e.g., Narragansett 

Indian Tribe, 19 F.3d at 701-703 ("In addition to having jurisdiction a tribe must exercise 

governmental power in order to trigger [IGRA]"); Miami 11, 5 F. Supp.2d at 1217-18 (A tribe 

must have jurisdiction in order to be able to exercise governmental power); State ex rel. Graves 

v. United States, 86 F. Supp.2d at 1099; Miami 1, 927 F. Supp. at 1423 ("the NIGC implicitly 

decided that in order to exercise governmental power for purposes of 25 U.S.C. tj 2703(4), a tribe 

must first have jurisdiction over the land."). This interpretation is consistent with IGRA7s 

language limiting the applicability of its key provisions to "[alny Indian tribe having jurisdiction 

over Indian lands," or to "Indian lands within such tribe's jurisdiction." 25 U.S.C. $5 

2710(d)(3)(A), 2710(b)(l)); see also Narragansett Indian Tribe, 19 F.3d at 701-703. As a 

threshold matter, we must therefore analyze whether the Tribe possesses jurisdiction over the 

identified parcel. 

As a general matter, tribes are presumed to possess jurisdiction within "Indian country." See 

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998). Indian tribes are "invested with the 

right of self-government and jurisdiction over the persons and property within the limits of the 

territory they occupy, except so far as that jurisdiction has been restrained and abridged by treaty 

or act of Congress." Merrion v. Jicarilla Apache Tribe, 455 U.S. 1 30, 140 (1 982). 

Historically, the term "Indian country" has been used to identi@ land that, "[glenerally 

speaking," is subject to the "primary jurisdiction . . . [of3 the Federal Government and the Indian 

tribe inhabiting it." Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 527 n.1 

(1998). As mentioned above, Indian country consists of "all land within the limits of any Indian 

reservation," 1 8 U.S.C. $ 1 15 1 (a); "all dependent Indian communities," 18 U.S.C. 1 1 5 1 (b); 

and "all Indian allotments, the Indian titles to which have not been extinguished," 18 U.S.C. 

$ 1 15 1 (c). Section 1 151 reflects the two criteria the Supreme Court Lcpreviously . . . had held 

necessary for a finding of 'Indian country' . . . first, [the lands] must have been set aside by the 

Federal Government for the use of the Indians as Indian land; second, they must be under federal 

superintendence." Venetie, 522 U.S. at 527. Prior to the enactment of section 11 51 in 1948, the 

Court had already found that reservation lands and allotments satisfied those requirements. See, 

e.g., United States v. Pelican, 232 U.S. 442, 449 (1914) (Indian country includes individual 

Indian allotments held in trust by the United States because they "remain[] Indian lands set apart 

for Indians under governmental care7'); DonnelZy v. United States, 228 U.S. 243, 269 (1913) 

(Indian country includes lands within formal reservations). Congress used the term "dependent 

Indian communities" in Section 1151(b) to codifl this Court's understanding, as expressed in 

United States v. McGowan, 302 U.S. 535 (1938), and United States v. Sandoval, 231 US. 28 
The Honorable Jim Henson 

September 29,2000 

Page 5 

(1 91 3), that other lands, although not formally designated as a reservation, may also possess the 

attributes of "federal set-aside" and "federal superintendence" characteristic of Indian country. 

Venetie, 522 U.S. at 530; see, e.g., McGowan, 302 U.S. at 538-539 (Reno Indian Colony land 

held in trust by the United States is Indian country); Sandoval, 231 US. at 45-49 (Pueblo Indian 

lands). 

According to the opinion in Buzzard, UKB's gaming site does not qualify as "Indian country," 

within the meaning of section 11 51. Id. at 1076-77. In analyzing the "federally set-aside" 

requirement, the Tenth Circuit held that "[a] restriction against alienation requiring government 

approval may show a desire to protect the UKB from unfair dispositions of its land, . . . but it 

does not of itself indicate that the federal government intended the land to be set aside for the 

UKB7s use." Id. at 1076 (citation omitted). Moreover, as it relates to the "federal 

superintendence" requirement, the court ruled: 

The federal government has not retained title to this land or indicated that it is 

prepared to exert jurisdiction over the land. At most it has agreed to approve 

transactions disposing the land. But the ability to veto a sale does not require the 

sort of active involvement that can be described as superintendence of the land. 

Id. Based on the rationale in Buzzard, we conclude that UKB's gaming site does not qualify as 

"Indian country," as the parcel does not possess the two characteristics of Indian country 

reflected in section 11 51 .' Having concluded that the UKB's lands are not Indian country, we 

conclude that the United States does not recognize tribal jurisdiction over these lands. 

Conclusion 

IGRA permits tribes to conduct gaming on Indian lands only if they have jurisdiction over those 

lands, and only if they can and do use that jurisdiction to exercise governmental power which 

will enable the tribe, through appropriate ordinances, to satisfy the statute's substantial and 

detailed requirements for the regulation of gaming. 25 U.S.C. Ij 2710(b); see Narragansett 

Indian Tribe, 19 F.3d 685; Miami I, 927 F. Supp. at 1423 ("Absent jurisdiction, the exercise of 

governmental power is, at best, ineff'fetive, and at worst, invasion7'). Because we have 

determined that the UKB does not have jurisdiction over the gaming site, we must conclude that 

the UKB does not have the requisite authority to ensure the appropriate control and management 

of its gaming operation.4 After careful review and consideration, I conclude that the lands on 

3 This case is readily distinguishable hm United States v. Roberts, where the Tenth Circuit held that a tribal 

complex owned by the United States in trust for the Choctaw Nation pursuant to the Indian Reorganization Act was 

"Indian Country" for purposes of the Major Crimes Act. 185 F.3d 1 125 (1 0' Cir. 19959, cert. denied, 120 S. Ct. 

1960 (2000). The Roberts Court concluded that the land at issue, which the United States acquired and holds in trust 

for the Choctaw Nation, qualifies as Indian country as the parcel possesses the two characteristics of Indian country 

reflected in section 1 151. On the other hand, the land at issue here and considered by the Tenth Circuit in Buzzard, 

is restricted land that does not possess the two characteristics of Indian couutry reflected in section 1151 and 

discussed in the Supreme Court's decision in Venetie. See Buzzard, 992 F.2d at 1076-77, cert. denied sub nom., 

United Keetoowah Band of Cherokee Indians v. Oklahoma Tax Comm 'n, 5 10 U.S. 994 (1 993). 4 Moreover, there is no need to analyze whether UKB exercises governmental power over the proposed gaming 

lands, as a tribe must have jurisdiction to exercise governmental power. See Miami 11,5 F. Supp.2d at 1217-18. 
The Honorable Jim Henson 

September 29,2000 

Page 6 

which the UKB is gaming are not Indian lands over which the UKB has jurisdiction. Thus, such 

activity is not subject to IGRA. I leave the question of whether the land is subject to state 

gambling laws,to the appropriate state officials. 

If you should have questions regarding this matter, please contact Staff Attorney Danna Jackson 

at (202) 632-7003. 

Sjncerely yours, 

Enclosures 

cc: Tim Vollman 

Acting Associate Solicitor - Division of Indian Affairs 

1849 C Street, N.W., Mail Stop 6456 

Washington, DC 20240-0001 

Robert McCarthy 

Field Solicitor 

United States Department of the Interior 

7906 East 331d Street, Suite 100 

Tulsa, OK 74145 

Honorable Drew Edmondson, Attorney General 

State of Oklahoma 

2300 North Lincoln Boulevard, Suite 1 12 

Oklahoma City, OK 73 1 05-4894