Chairwoman Bonnie Akaka-Smith 

Pyramid Lake Paiute Tribe 

PO Box 256 

Nixon, NV 89424 

Attorney General Brian Sandoval 

State of Nevada 

Office of the Attorney General 

Gaming Division 

3476 Executive Pointe Way, Suite 13 

Carson City, NV 89706 

Re: Gaming on fee land at Pyramid Lake Paiute lndian Reservation 

Dear Chairwoman Akaka-Smith and Attorney General Sandoval: 

The NlGC Office of General Counsel (OGC) has received requests from both of you 

for an opinion on whether gaming conducted on fee lands within the exterior 

boundaries of the Tribe's reservation is lndian gaming under the IGRA. It is our 

understanding that a family by the name of Crosby owns fee landL" within the 

reservation and operates a small gambling operation, the Crosby Lodge, with 

approximately 15 slot machines. The Tribe licenses the gaming and collects fees both 

quarterly and annually. The Tribe and the State of Nevada have a Class Ill Gaming 

Compact set to expire on January 6, 2006. The Crosby Lodge is the only gaming 

activity on the Tribe's reservation. 

We have evaluated the history of the Tribe's reservation and statutory language of 

IGRA, and we conclude that the land owned by the Crosby family is lndian lands and 

that the gaming is lndian gaming under IGRA. 

The existence of fee lands within the Tribe's Reservation is the result of the land's 

hstory. The Tribe first had official contact with non-Indian settlers in January of 1844. 

Historical journal entries and reports indicate non-Indian contact as early as 1827 in 

the Humboldt River Basin. The U.S. General Land Office (Utah Territory) set aside 

land for the benefit of the Tribe on December 8, 1859. This land was withdrawn from 

the public domain for the preservation of the livelihood of the Tribe. From 1861 

through 1885, a number of non-Indian white settlers encroached and settled on these 

lands. Some of the best lands were inhabited by squatters who believed it was their 

right to settle on the Tribe's lands. 

In 1868, the Central Pacific Railroad was completed, a portion of which ran through 
the Tribe's reservation. The railroad company established a rail station at the Big 

Bend of the Truckee River and later founded the present-day town of Wadsworth. The 

railroad company acquired rights-of-way for its rail course across fee lands in the 

southern part of the Tribe's reservation. 

Since the early 1860s the lndian Agent of the Utah Territory had tried unsuccessfully 

to evict the non-Indians who were trespassing on the land reserved for the Tribe. In 

1874, President Ulysses Grant issued an Executive Order confirming the 

establishment of the Tribe's reservation. The Order confirms the date of the 

reservation's establishment as December 8, 1859. 

In 1916, lawsuits were filed against the non-Indian settlers who were considered to be 

trespassing on the Tribe's reservation. The 68th U.S. Congress enacted, "A bill for the 

relief of settlers and town-site occupants of certain lands in the Pyramid Lake lndian 

Reservation, Nevada." The Act provided for the sale of any land that had been settled 

upon or occupied for at least twenty-one (21) years. Settlers would pay $1.25 per acre 

and in return be granted certain lands in fee simple status. 

By 1935, many settlers had become delinquent on their land payments to the U.S. 

government. In a pair of related decisions, the Ninth Circuit Court of Appeals upheld 

the United States' efforts to eject these non-Indians from the reservation and awarded 

possession of the land back to the Tribe. See U.S. v. Garaventa Land & Livestock, 

Co., 129 F.2d 216 (gth Cir. 1942); U.S. v. Depoali, 139 F.2d 225 (gth Cir. 1943). The 

Supreme Court denied certiorari in 1944. Depoali v, U.S., 321 U.S. 796 (1 944). In 

1951, the non-Indian white residents began vacating the lands. By 1956, the lands 

were assigned to the Tribe's members. Today, less than one percent (1%) of the 

Tribe's reservation lands remains in fee status. 

A~~licable Law 

IGRA explicitly defines "lndian lands" as follows: 

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

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

tribe or individual subject to restriction by the United States against alienation 

power. 

25 U.S.C. 5 2703(4). 

NlGC regulations further clarify the lndian lands definition, providing that: 

lndian lands means: 

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

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

either -- 

(I) Held in trust by the United States for the benefit of any Indian tribc 

individual; or 

(2) Held by an lndian 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 lndian lands under IGRA 

are subject to state gambling laws. See National lndian Gaming Commission: 

Definitions Under the lndian Gaming Regulatory Act, 57 Fed. Reg. 12382, 12388 

(1 992). 

Further, IGRA gives tribes the exclusive right to regulate gaming on lndian lands, 

specifically providing that: 

lndian tribes have the exclusive right to regulate gaming activity on lndian Ian 

prohibited by Federal law and is conducted within a State which does not, as 

such gaming activity. 

25 U.S.C. Cj 2701 (5). IGRA further clarifies the jurisdiction of Tribes as to the different 

class of gaming stating that: 

(1) Class I gaming on lndian lands is within the exclusive jurisdiction of the In 

the provisions of this chapter. 

(2) Any class I1 gaming on lndian lands shall continue to be within the jurisdici 

subject to the provisions of this chapter. 

25 U.S.C. Cj 2710(a)(1)(2). The requirements for Class Ill gaming likewise state: 

(1) Class Ill gaming activities shall be lawful on lndian lands only if such activ 

(A) authorized by an ordinance or resolution that 

(i) is adopted by the governing body of the lndian tribe having juri, 

conducted in conformance with a Tribal-State compact entered int 

paragraph 

(3) that is in effect. 

25 U.S.C. $5 2710(d)(l)(A)(C). 

Analysis 

OGC recently revised its analytic approach to lndian lands within reservation 

boundaries. (See lndian lands opinion letter to Judith Kammins Albeitz, Esq. from 

Penn J. Coleman, Acting General Counsel, used!hrough the past few years included a two-part 

lands questions was raised - OGC looked first to determine whether the lands 

constituted lndian lands; OGC then looked to whether the tribe exercised jurisdiction 

over those lands. This two-part analysis was driven by the outcome in Kansas v. 

United States, 86 F. Supp. 2d 1094 (D. Kan. 2000), aff'd 249 F.3d 1213 (loth Cir. 

2001)(Miami 111). That Court held the NIGC's failure to focus on the threshold question 

of whether the tribe possessed jurisdiction over a tract of land rendered the ultimate 

conclusion arbitrary and capricious. Id. Despite this holding, the NlGC has concluded 

that, in some instances IGRA's preemptive effect negates the need for a complete 

jurisdictional analysis. IGRA specifically defines lndian lands as any "[l]ands within the 
IY~ L IWIY- AIYYLNY UNVLLIYU ~WLVIIVLLUULWIY - ~agb -r UL I 

limits of an lndian Reservation." This finding is a prerequisite for a tribe to lawfully 

conduct gaming under IGRA. IGRA gives tribes the exclusive right to regulate gaming 

on lndian lands if the lndian lands in question are within "such tribe's jurisdiction." A 

tribe is presumed to have jurisdiction over its own reservation. Therefore, if the 

gaming is to occur within a tribe's reservation, under IGRA, we can presume that 

jurisdiction exists. (See Letter to Judith Kammins Albeitz, Esq. at page 6). 

The particular question at issue here is whether the non-Indian owned fee land, which 

is within the exterior boundaries of the Pyramid Lake reservation, falls within the 

"limits" of the reservation and meets the definition of lndian lands under IGRA, 25 

U.S.C. § 2703(4)(A), and NIGC's regulations, 25 C.F.R. §502.12(a). Case law 

supports the view that "all land within the limits of any lndian reservation" as used in 

the lndian country statute, 18 U.S.C. 5 1 151 (a) means all lands - including fee lands - 

within the boundaries of a reservation. "lndian country" as defined at 18 U.S.C. 5 1151 

(a), means "all land within the limits of any lndian resenlation under the jurisdiction of 

the United States Government, notwithstanding the issuance of any patent, and, 

including rights-of-way running through the reservation." Solem v. Bartlett, 465 U.S. 

463, 468 (1984) (Emphasis added); see also Cij/ of Timber Lake v. Cheyenne River 

Sioux Tribe, 10 F.3d 554, 557 (8th Cir. 1993) ("mhe general definition of lndian 

country in § 1151 .... includes all fee lands within reservations.") The IGRA definition 

of "lndian lands" in 25 U.S.C. 

5 2703(4)(A) is identical to the highlighted language in 18 U.S.C. § 1151(a). Because 

the pertinent language in both statutes is identical, these cases support the notion that 

"all land within the limits of any lndian reservation" as used in IGRA means lands 

within the boundaries of a reservation. We therefore conclude that the land at issue 

falls within the "limits" of the Tribe's reservation and meets the definition of lndian 

lands under IGRA and NlGC regulations. 

This conclusion is consistent with our recent opinion regarding gaming on fee land at 

the White Earth Reservation in Minnesota (see Memorandum to NlGC Acting General 

Counsel Re: Tribal jurisdiction over gaming on fee land at White Earth Reservation, 

dated March 14, 2005) and with our Buena Vista opinion regarding gaming on fee 

land. In our White Earth opinion, we determined that the State of Minnesota lacked 

jurisdiction over gaming on the White Earth Reservation because the gaming took 

place within the exterior boundaries of the reservation; the gaming was therefore 

lndian gaming under IGRA, which pre-empts state jurisdiction. As the White Earth 

Band was undisputedly the only tribe exercising jurisdiction over the land at White 

Earth, that Tribe met IGRA's requirement that it be the tribe with jurisdiction over the 

lndian lands at issue. In our Buena Vista opinion, we similarly held that the fee land 

within the exterior boundaries of the Buena Vista Rancheria fell within the "limits" of 

the reservation and met the definition of lndian lands under the IGRA, 25 U.S.C. 5 

2703(4)(A), and NIGC's regulations, 25 C.F.R. §502.12(a). 

We note that IGRA's jurisdiction is not limited to gaming conducted by tribal entities or 

members. Rather, IGRA's jurisdiction runs with the land and allows gaming, even by 

non-tribal entities, that is conducted on lndian lands. 25 U.S.C. § 2710(b)(4)(A) ("A 

tribal ordinance or resolution may provide for the licensing or regulation of class II 

gaming activities owned by any person or entity other than the lndian tribe and 

conducted on lndian lands, only if the tribal licensing requirements include the 

requirements described [below] ... and are at least as restrictive as those established 

by State law...."). Gaming by non-tribal entities must meet certain requirements, 
however, for example, that 60 percent of the proceeds go to the tribe. See 25 U.S.C. § 

2710(b)(4)(B). These same requirements apply to class Ill gaming. See 25 U.S.C. 

§271 O(d)(l )(A)(ii). 

Because IGRA's applicability is determined by the character of the land on which 

gaming is conducted rather than by who is conducting the gaming, we note that the 

situation at hand is not governed by the line of cases analyzing whether tribes have 

jurisdiction over non-members on non-Indian owned fee land within the reservation. 

The primary case in this line of cases is Montana v. United States, 450 U.S. 544 

(1981). Montana and its progeny stand for the proposition that "...the inherent 

sovereign powers of an lndian tribe do not extend to the activities of nonmembers of 

the tribe. Montana, 450 U.S. at 565. See also Brendale v. Confederate Tribe and 

Bands of the Yakima lndian Nation, 492 U.S. 408 (1989); Strate v. A-I Contractors, 

520 U.S. 438, 445 (1997) (reaffirming Montanaanalysis in questions of tribal 

r2i 

adjudicatory a~thority).~~ecause Congress has made IGRAs application dependent 

upon whether the gaming is conducted on lndian lands, not upon whether the gaming 

is conducted by lndian or non-Indian people, we need not engage in a jurisdiction 

analysis under Montana. 

We do, however, need to evaluate jurisdiction in the sense that we need to determine 

whether the Pyramid Lake Tribe is the tribe that exercises jurisdiction over the land at 

Pyramid Lake. IGRA states that a tribe may engage in Class II gaming "on lndian 

lands within such tribe's jurisdiction" if, among other things, the tribe has an ordinance 

approved by NIGC's Chairman. 25 U.S.C. §2710(b)(l). The requirements for 

conducting Class Ill gaming likewise state: "Class Ill gaming activities shall be lawful 

on lndian lands only if such activities are (A) authorized by an ordinance or resolution 

that (i) is adopted by the governing body of the lndian tribe having jurisdiction over 

such lands. ..." 25 U.S.C. $271 O(d)(l). 

The context of IGRA's prescriptions as to jurisdiction-that land be within "such tribe's 

jurisdiction" and ordinances adopted by "the lndian tribe having jurisdiction over such 

landsv-indicates that Congress intended that gaming on any specific parcel of lndian 

lands not be conducted by any lndian tribe, but only by the specific tribe or tribes with 

jurisdiction over that land. See, e.g., Williams v, Clark742 F.2d 549 (gth Cir. 1984), 

cert denied sub nom. Elvrum v. Williams, 471 U.S. 101 5 (1 985)(Both Quileute and 

Quinault tribes exercise jurisdiction over the Reservation, and either may be 

considered the "tribe in which lands are located" for purposes of lndian Reorganization 

Act § 4). Since the Pyramid Lake Tribe is undisputedly the only tribe exercising 

jurisdiction over the land at Pyramid Lake, the Tribe meets IGRA's requirements for 

jurisdiction over the lndian lands at issue. 

The gaming at Pyramid is conducted within the limits of the reservation and is thus on 

lndian land. 

Sincerely, 

Penny J. Coleman 

Acting General Counsel 

cc : Brian Gunn and Kevin Wadzinski 

Gardner Carton & Douglas 
1301 K. Street, NW 

Suite 900 East 

Washington, DC 20005-331 7 

I11 The legal description of the land is as follows: FRAC N112 of SE % of NE % of 

Section 15, Township 24N, Range 21 E. The address is 30605 Sutcliffe Drive, Reno, 

Nevada, 89510. 

12l This Indian lands opinion addressed the question whether fee land within the 

exterior boundaries of the Buena Vista Rancheria qualifies as reservation land and 

therefore as Indian land upon which the Rancheria may game. We concluded that it 

does. 

The Montana court acknowledged that "Indian tribes retain inherent sovereign power to exercise 

some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee 

lands" (Montana at 565), it established two important exceptions to its general rule that jurisdiction 

does not extend to nonmembers. The first exception is for nonmembers who have certain 

agreements with a tribe; the second is for activities by nonmembers that threaten a tribe's wellbeing: 

A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who 

enter consensual relationships with the tribe or members, through commercial dealing, contracts, 

leases, or other arrangements [cites omitted]. A tribe may also retain inherent power to exercise 

civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct 

threatens or has some direct efiect on the political integrity, the economic security, or the health or 

welfare of the tribe [emphases added]. 

450 U.S. at 565-566; cited with approval Atkinson Trading Co. v. Shirley, 532 U.S. 645, 651 

(2001). 

Were a Montana analysis necessary, we would find that the Tribe has jurisdiction. The gaming 

conducted on fee land within the Pyramid Lake reservation meets this exception by virtue of the 

agreement between the Tribe and the Cosby family for gaming fees and slot machine taxes the tribe 

collects from the gaming operated by the Crosby family. (These fees and taxes represents the 

specific kind of consensual economic agreement between non-members and a Tribe that the 

Montana Court upheld: a "tribe may regulate, through taxation, licensing, or other means, the 

activities of nonmembers.. .through commercial dealing, contracts, leases, or other arrangements." 
450 U.S. at 565. 

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