To: NlGC Acting General Counsel 

From: Cindy Shaw &hW 

Date: March 14,2005 

Subject: Tribal jurisdiction over gaming on fee land at White Earth Reservation 

ISSUE 

Can the State of Minnesota regulate pull-tabs sold on fee land med by non-triial members within 

the exterior boundaries of the white Earth Reservation? 

SHORT ANSWER 

No, the State of ~innescitahasno jwisdiction over gaming on the White Earth Reservation because 

the gaming takes place within the exterior boundaries of the reservation and is therefore Indian 

gaming under the Indian Gaming Regulatory Act (IGRA), which pre-empts state jurisdiction. 

BACKGROUND OF ISSUE 

U.S. Attorney for Minnesota Thomas B. Heffelfinger and the Commissioner of the Minnesota 

Department of Public Safi asked the NIGC Office of General Counsel (OW) for an opinion on 

whether the State of Minnesota has jurisdiction over pull-tab sales on the White Earth Reservation. 

The pull-tabs are being sold on fee land that is located within the exterior boundaries of the White 

Earth Band of Chippewa Indians (Band or Tribe) reservation in White Earth, Minnesota. Of the 

thirteen (1 3) fee-land gaming operations as of this date, approximately four (4) are on land owned by 

enrolled members of the I3and.l The remaining operationewhich are the focus of this 

memorandum-are on fee lands owned by non-triial members @MI. 9). 

The existence of fee lands within the White Earth Reservation is the result of the land's history. 

White Earth's lands, lie much of Indian country, lias been subject to the federal government's 

many and sometime contradictory federal Indian policies, including treaty making the created 

communal rights to the land, legislation partitioning the land into individual allotments, 

diminishment, and preservation through federal taking into trust2 Each of these policies shaped 

the Reservation today. Particularly at issue here is the effect of allotments, which allowed land 

to be transferred in fee. The allotment policy created a checkerboard pattern of ownership within 

the Reservation, with some of the land within the reservation owned in trust by the U.S. 

govenunent on behalf of the Tribe and some converted to fee land, owned by individuals who 

may or may not be members of the Tribe. As to the sale of pull-tabs within the Reservation, all 

of the establishments selling pull-tabs on the White Earth resewation are licensed by the White Earth 

Tribal Council, which also serves as the tribal gaming com~nission.~ 

' Sept- 22,2002, Report fiom NIGC Field Investigator John Guerber to Region Cbief John Peterson (Report). 2 See, e.g., Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture ofindian 

Authoriiy over Nonmembers, 1 O!J Yale L. J. I, 15 (1999). 

SeptCmba 25,2002, Memorandum from Region IV Chief Jobn Petemm, to Penny Coleman, Alan F- and Cynthia 

-g 
The State of Minnesota seeks authority over the gaming on non-Indian fee land at White Earth. On 

August 28, 2002, the Minnesota Alcohol & Gambling Enforcement Division (A&GED) of the 

Minnesota Department of Public Safety (MDPS) met with NIGC's Region IV Region Chief John 

Peterson and ~ield Investigator John ~uerber.~ At the meeting, the A&GED gave the WIGC 

' . representatives a copy of a complaint received by the State Attorney General questioning whether the 

gaming being conducted on the fee land at White Earth was legal. On October IS, 2002, the MDPS 

formally requested OGC7s opinion on the matt& Then-Commissioner of MDPS, Charlie Weaver, 

stated in the letter, "Our reading 'of IGRA seems to indicate this [the sale of pull-tabs and play of 

bingo] is not lawfbl because it is not occming on Indian land as it is defined in that act." Mr. Weaver 

argued that the State of Minnesota has an interest in the matter for a number of reasons: loss of tax 

revenue; 10s of revenue to statelicensed distriiutors and charitable orgasGz&ons; and the propensity 

of the gaming being conducted to lead to forms of gambling that are illegal in Minnesota We note, 

furthermore, that Minnesota (except for the Red Lake Reservation) has criminal and civil jurisdiction 

over Indian county pursuant to P.L. 280. See 18 U.S.C; $1162(a) (criminal jurisdiction) and 28 

U.S.C. fj 1369(a) (civil jurisdiction). 

Minnesota is not alone is questioning whefher states have jurisdiction over non-member fee land 

within reservations. As state economies become more challenged and Indian gaming becomes more 

lucrative, states increasingly look to gaming as a source of revenue. The NIGC Office of General 

Counsel has several Indian lands questions pending from other states that wish either to tax gaming 

on non-member fee land or to conduct state gaming within a reservation's boundaries. In all cases, 

the essential question is who has jurisdiction. 

Having evaluated the history of the White Earth reservation and statutory language of IGRA, we 

conclude that the White Earth Band has jurisdiction over the non-member owned fee land. This is 

because the fee land on which gaming is conducted at White Earth is Indian lands, the gaming being 

conducted is therefore Indian gaming under IGRA, and, because IGRA is pre-emptive, the Tribe, not 

the State of Minnesota, has regulatory jurisdiction over the gaming taking place at White Earth. 

.HISTORY OF WHITE EARTH RESERVATION 

The White Earth Reservation covers a large expanse of land in northwestern Minnesota The 

Reservation was created through the Treaty of 1867, which carved .out an 837,268-acre reserve on 

land that had previously not been claimed by any one Band. The intent of the treaty was to move all 

the Minnesota Chippewa hdians onto one reservation, creating a place where they could "conquer 

povaty by [their] own exertions.'* Subsequently, the Misskippi Band of Ojibwa (Chippewa), Lake 

Superior Band of Ojibwa, Pembina, and Pillager bands settled within the Reservation. Man settlers 

at White Earth included both full-bloods and half-bloodsoods 

' ~eport. ' 0ctobe115,2002, letter hm MDPS Co-oner Charlie Weaver to NIGC Acting General Counsel Penny 

' Coleman. 

6 Quotation fiom "Chippewa Indians in Minnesota," House Executive Documents 2747, no. 247,5 1 Congress, I 

Session, (1890): 190, cited in The White Earth Traeedv Ethnicitv and Dimssession at a Minnesota Anishinaabe 

Reservation, Meyer, University of Nebraska Press, 1994, p.1. 
In 1887, Congress's enactment of the General Allotment Act @awes Act) allowed for general 

allotment and cession of Indian lands throughout the United States. 24 Stat. 388. In 1889, 

Congress passed the Nelson Act, which applied the principles of the Dawes Act to Minnesota 

Indians in particular. The Nelson Act provided for cession of all Chippewa Indian lands in 

Minnesota except for those at White Earth and Red Lake: 

, [Tlhere Commissioners.. .shall...negotiate with all the different bands or tribes of 

Chippewa Indians in the State of Minnesota for the complete cession and 

relinquishment in writing of all their title and interest in and to all the reservations 

of said Indians in the State of Minnesota, except the White Earth and Red Lake 

Reservations. . . . 

50 Cong. Ch. 24; 25 Stat. 642. 

The Nelson Act also provided that the reservation at White Earth was to be partitioned into 

allotments for Minnesota Chippewa who had been dispossessed of their former reservations: 

except those on the Red Lake Reservation, [the Jndians] shall, under the direction 

of said commissioners, be removed to and take up their residence on the White 

Earth Reservation, and thereupon.. .be allotted lands in severalty." 

Id. As to both White Earth and Red Lake, the Nelson Act provided that land in surplus of the 

allotment was to be ceded. Id. (allotments to be limited to "s6 much of these two reservations as 

in the judgment of said commission is not required to make and fill the allotments required by 

this and existing acts...")). Once surplus lands were ceded, examiners were to survey the land to 

determine where there was pine timber. Forty-acres lots could be sold at a cash value according 

to the examina7s "best judgment and information," not to be less than $3 per thousand feet of 

timber. Settlers of non-pine timberland, that is, agricultural lands, were to pay the United States 

$1.25 per acre. The proceeds from the ceded land and timber were to be placed in a fund for the 

Minnesota Chippewa (also called Anishinaabe or Ojibwe). 

The Nelson Act had yet another component which diminished the White Earth Reservation. 

Pursuant to the Act, the Band and the United States agreed that the Band did "'grant, cede, 

relinquish and convey to the United States [the] ... right, title and interest" in fom of the 

reservation's 36 townships. White Earth Band of Chippaa Indians v. Alexander, 51 8 F. Supp. 

527,531 (1981) (quoting July 20, 1889, agreement); afd 683 F2d 1129 (8~ Cir. 1982). The 

loss of the four townships, on the northeastern section of the reservation, reduced the size of the 

reservation by 92,000 acres. Id. Approximately 2,900 of these were returned to trust status 

following enactment of the Indian Reorganization Act in 1934. Id. The Minnesota Supreme 

Court held that the remaining 32 of the original 36 townships on the reservation were not 

disestablished. State v. Clark, 282 N.W. 2d 902 (Minn. 1979), cert. denied 445 U.S. 904 (1980) 

(state lacked jurisdiction over Band members' hunting and fishing on remaining 32 townships). 

The 1900s produced several acts designed to enable non-Indian acquisition of Anishinaabe land 

and resources. The 1902 "Dead Allotment Act" allowed adult heirs of deceased allottees at 

White Earth to sell their. inherited allotments. On April 21, 1904, the 1904 "Clapp Rider" was 
enacted which authorized Chippewa of Minnesota to sell timber on their allotments (Exh. 3, p. 

6). Seven days later, the Steenerson Act passed, allowing additional 80-acre allotments to White 

Earth Indians under the Dawes ~ct.~ Insufficient land existed at White Earth to give every 

eligible tribal member an allotment, however (Exh. 4, p. 3). As a result, all reservation land was 

allottable. In 1906 Congress enacted a second Clapp Rider. Called the "Clapp Act," it removed 

all restrictions on sale of allotted land at White Earth by both mixed- and full-blood Indians 

(Exh. 3, p. 7). See also US. v. First National Bank of Detroit, Minnesota, 234 U.S. 245,257 

(1914). 

With the enactment of the Indian Reorganization Act in 1934, Congress repudiated the 

philosophy of assimilation behind the Dawes Act. As to White Earth in particular, in 1979, the 

Secretary of the Interior determined that many of the conveyances of allotted land at White Earth 

had been ineffective because the allottees' interests had been terminated in violation of trust deed 

restrictions. The result was the 1986 enactment of the "White Earth Reservation Land 

Settlement Act of 1985," 25 U.S.C- 331 note (Supp. V 1987). Intended to settle title to allotted 

reservation lands, the Act gave allottees at most two years to sue to recover title to lands, and 

provided that allottees who did not sue would be compensated based on the market value of the 

land as of the date of the alleged invalid conveyance, plus interest. Allottees could challenge the 

adequacy of the compensation. 

As a result of this @tory, land within the White Earth Reservation today is owned in several ways, 

creating a checkerboard of land ownership status. The Band estimates that 9 percent or 77,000 acres 

of the Reservation is tribaIly owned (Exh. 7, p. 1). In addition to trust land, some land is owned in fee 

by tribal members, some is fee land owned by nonmembers, and some is owned by the State of 

Minnesota and one of three counties on which the Reservation is located (Exh. 7, Map 6). 

The population of the Reservation is also varied. Figures hm the 2000 Census indicate that 43.8% 

of the population, or 4,029 people, are identified as at least part Indian, while 55.5%, or 5,105 people, 

are identified as "White7' only (Exh. 15). Small percentages of Mcan American, Asian, and other 

ethnicities are also represented on the reservation. Id. 

7 "...to those Indians who may remove to said reservation who are entitled to take an allotment. ..one hundred and 

sixty acres of lands.. .Provided, That where an allotment of less than one hundred and sixty acres has heretofare 

been made, the allottee shall be allowed to take an additional allotment, which together with the land already 

allotted, shall not exceed one hundred and sixty acres: And provided further, That if there is not sufficient land in 

said White Earth (diminished) Reservation subject to allotment each Indian entitled to allotments under the 

provisions of this act shall receive a pro rata allotment. Chap. 1786 Apr. 28,1904 33 Stat., 539. 
IGRA's Preemption over State Regulation 

Generally, there exists a presumption that federal law does not pre-empt state regulation, 

particularly in a field that States have traditionally occupied. See New York v. FERC, 535 U.S. 1, 

17-1 8 (2002); Medtronic, Inc. v. Lohr, 51 8 U.S. 470, 485 (1996) (First, "[i]n all pre-emption 

cases, and particularly in those [where] Congress has legislated . . . in a field which the States 

have traditionally occupied, we start with the assumption that the historic police powers of the 

States were not to be superseded by the Federal Act unless that was the clear and manifest 

purpose of Congress"). The presumption against federal preemption disappears, however, in the 

face of Congress's "clear and manifest purpose" to the contrary. Rice v. Santa Fe Elevator COT., 

331 U.S. 218, 230 (1947): Such purpose is evidenced when the field of regulation has been 

substantially occupied by federal authority for an extended period of time. United States v. 

Locke, 529 U.S. 89,108 (2000); Flagg v. Yonkers S&L Ass'n, 396 F.3d 178,183 (znd Cir. 2005). 

Indian affairs is a field with a long history of federal law taking precedent over state jurisdiction. See 

Rice v. Olson, 324 U.S. 786,789 (1945) (citing Worcester v. Georgia, 6 Pet. 515; 1 Stat. 469; 4 

Stat. 729). As recently expressed by the U.S. Court of Appeals for the Ninth Circuit: 

The policy of leaving Indians fi-ee from State jurisdiction is deeply rooted in our 

Nation's history. Rice v. Ohon, 324 U.S. 786,789 f 1945). ' In determining the extent 

of State jurisdiction over Indians, State laws are not applicable to tribal Indians on an 

Indian reservation except where Congress has expressly intended that State laws shall 

apply. McClanahan v. Ariz. State Tax Comm 'n, 41 1 U.S. 164, 170-71 (1973). If 

faced with two reasonable constructions of Congress's intent, this Court resolves the 

matter in favor of the Indians. Id. at 174. 

Gobin v. Snohomish County, 330 F.3d 909 (gh Cir. 2002), en denied 538 U.S. 908 (2003). 

IGRA is an heir to this history. The 1egislative.history of the Act incorporates this history. The 

Senate Report on S. 555, which became IGRA, states: 

8 66 Such a purpose may be evidenced in several ways. Tht sckme of federal regulation may be so pervasive as to 

make reasonable the inference that Congress left no room for the States to supplement it Pennsyhanin R Co. v. 

Public Senice Comm'n. 250 U.S. 566. 569; Clovet-IeafButter Co. v. Patterson. 315 U.S. 148. Or the Act of 

Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to 

preclude enforcement of state laws on the same subject. Hines v. Da~idowitz. 312 U.S. 52. Likewise, the object 

sought to be obtained by the federal law and the character of obligations imposed by it may reveal tbe same prpose. 

Southern R. Co. v. Railroad Commission. 236 U.S. 439; Charleston & W. C R. Co. v. P-ml-ille Co., 237 U.S. 597: 

New York Central R. Co. v. WinfieId. 244 U.S. 147: h7apier v. Atlantic Coat Line R. Co.. supra. Or tbe state poky 

may produce a result inconsistent with the objective of the federal statute. Hill 5: Florida. 325 U.S. 538. It is of@ a 

perplexing question whether Congress has precluded state action or by the choice of selective regulatory 112311 

measures has left the police power of tht States undisturbed except as the state and f*l regulations collide. 

Townsend v. Yeomans. 301 U.S. 441: Kelly v. Washinnton. 302 U.S. 1; South GzroIina Highway Dept. v. Banwell 

Bros.. 303 U.S. 177; Union Brokerage Co. v. Jensen. 322 U.S. 202." Rice v. Santa Fe Elevator Corp., 331 U.S. at 

230. 
It is a long- and well-established principle of Federal-Indian law as expressed in the 

United State constitution, reflected in Federal statutes, and articulated in decisions of 

the Supreme court, that unless authorized by an act of Congress, the jurisdiction of 

State governments and the application of state laws do not extend to Indian lands. In 

modern times, even when Congress has enacted laws to allow a limited application of 

State law on Indian lands, the Congress has required the consent of tribal 

governments before State jurisdiction can be extended to tribal lands. 

S.Rep. No.446, loom Cong., 2d Sess. 6 (1988), reprinted in 1988 U.S.C.C.A.N. 3071,3075. 

More explicitly, IGRA's legislative history shows clear Congressional intent that the Act be 

preemptive. The Senate Report declares: 

S. 555 is intended to expressly preempt the field in the governance of gaming 

activities on lndian lands. Consequently, Federal courts should not balance 

competing Federal, State, and tribal interests to determine the extent to which various 

gaming activities are allowed. 

S-Rep. No.446'1 Ooh Cong., 2d Sess. 6 (1988), reprinted in 1988 U.S.C.CA.N. at 3076. 

Case law also acknowledges IGRA7s preemptive effect. The U.S. Court of Appeals for the Eighth 

Circuit, in which White Earth falls, directly addressed this question. In Gaming Cop. of America v. 

Dorsey & Whitney, 88 FF. 3d 536 (8& Cir. 1996), the Eighth Circuit held that IGRA completely 

preempted state law where the dispute-a management company's suit against a tribe's legal 

representatives-arose hm the tribe's issuance of gaming licenses, which is covered by IGRA. 

"Examination of the text and structure of IGRA, its legislative history, and its jurisdictional 

hework likewise indicates that Congress intended it completely preempt state law," the court 

ruled. Id. at 544. Likewise in Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1 102 (8* 

Cir. 1999), the Eighth Circuit held that the question of whether an activity is pre-empted by 

IGRA is determined by whether it occurs on Indian lands: 

As our opinion in Dorsey explained at length, the IGRA established a 

comprehensive regulatory regime for tribal gaming activities on Indian lands. 

Both the language of the statute and its legislative history refer only to gaming on 

Indian lands. See, e.g., 25 U.S.C. 6 2701; S. Rep. No. 100-446, reprinted in 1988 

U.S.C.C.A.N. 3071,3071-3083. The Indians' long-standing rights and interests in 

controlling activities on the& tribal lands, and the States' correspondingly limited 

power to regulate activities on tribal lands except as authorized by Congress, are 

core principles underlying the IGRA that necessarily frame the scope of its 

preemptive force. 

Id at 1108. In short, the court ruled, states' powers are preempted where IGRA applies, and IGRA 

applies on Indian lands. 

'see also Additional Views of Mr. Evans, SRep. No. 446,10@ Cong., 2d Sess. 36 (1988) (Tdly, this bill should be 

construed as an explicit preemption of the field of gaming in Indian Country."). 
There is some case law to the contrary. The federal district court for the Eastern District of 

Washington held in 1996 that lGRA did not prevent the State of Washington from conducting 

the state lottery on lands within the Yakama Indian Reservation. Confederated Tn'bes and Bands 

of the Yakama Indian Nation v. Lowry, 968 F. Supp. 531 (E. D. Wash. 1996) (order granting 

motion to dismiss; 968 F. Supp. 538 (E.D.Wash.1997) (Order denying motion for 

reconsideration); vacated 176 F.3d 47 (9~ Cir.1999).'O That decision was vacated by the Ninth 

Circuit in 1999, however, albeit on the grounds that the State was immune fiom the Tribe's suit 

based on .the State's Eleventh Amendment sovereign immunity. Because the action was "so 

clearly barred" by the Eleventh Amendment, the court deemed it inappropriate to determine "the 

more complex issues" raised by the case. 

In an earlier case, which the Yakuma Nation district court expressly declined to follow, 968 F. 

Supp. 531,534, the Ninth Circuit had also addressed the issue of whether a state lottery could be 

run on Indian lands. In Coeur d2Zene Tribe v. Idaho, 842 F.Supp. 1268 @. Idaho 1994), afd 

5 1 F.3d 876 (9~ Cir. 1995), cert denied 51 6 U.S. 91 6 (1 995), rehearing denied 5 16 U.S. 1018 

(1 995), the federal district court reasoned that IGRA allows state gaming regulations to apply on 

an Indian reservation. The authority of the state to conduct gaming was not absolute, however. 

Rather, the scope of state regulation yas to be determined by negotiated compacts between tribes 

and the states, the court held. 968 F. Supp. at 1281. The state lottery was Class III gaming, the 

court said. Id. Lacking compacts, neither the tribes nor, more to the point, the State could 

conduct a lottery on the reservations, the court concluded. This reasoning confirms IGRA's 

preemptive character, allowing state regulation only under IGRA's provisions. 

Case law thus establishes that, as to gaming on Indian lands, IGRA is completely pre-emptive, 

leaving states with no regulatory role except that which is negotiated under the Act. The State of 

Minnesota may therefore not regulate or tax gaming where IGRA applies. The question is then 

whether IGRA applies on fee lands within the exterior boundaries of the Reservation. 

What Constitutes "Wan Lands" at White Earth 

IGRA defines "Indian lands" as: 

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

@) 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 tni or individual subject 

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

tribe exercises governmental power. 

lo In that case, the Tribe had sued for injunctive relief stemming hm the state's operation of the state lottay on 

tribal land. The State moved to dismiss tbe claim, which the district court granted In doing so, the court found tbat 

the language and legislative history of lGRA showed no congressional intent to preempt State-operated gaming 

activity on trii land. 968 F. Supp. at 534. In its Order denying the motion for reconsideration, the court 

expounded on its earlier decision, stating that the purpose of IGRA is to provide a statutory basis for the opmtion of 

Indian gaming and to provide a statutory basis for the regulation of gaming by an Indian tribe. 'The state lottery is 

assuredly not 'gaming by an Indian trii,'" the court said. 968 F. Supp. at 540. "[A]lthough as a general matter the 

IGRA is designed to benefit tribes, that benefit does not extend to taking a portion of the revenue derived hm the 

operation of the state lottery on Indian lands," the court said. Id. 
25 U.S.C. 5 2703(4). 

NIGC regulations further clarify the Indian lands definition: 

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. 502.12. 

The land at issue in this matter is fee land within the exterior boundaries of the White Earth 

reservation. The land thus falls within the "limits" of the reservation and meets the definition of 

Indian lands under IGRA, 25 U.S.C. $ 2703(4)(A), and NIGC7s regulations, 25 C.F.R. 

§502.12(a). 

In different circumstances, we would need to engage in a more lengthy analysis. If the land at 

issue were trust land, rather than within the limits of the reservation, we would need to engage in 

a two-part analysis: (1) examining if the land were held in trust or subject to restriction, and (2) 

determining whether the Tribe exercised governmental power over that land. See 25 C.F.R. 5 

502.12fb). Furthermore, in order to prove the Tribe's exercise of actual governmental power, we 

would also need to prove theoretical jurisdiction. Kansas v. United States, 86 F. Supp. 2d 1094 

@. Kan. 2000), afd 249 F.3d 1213 (loh Cir. 2001) (Miami III). Since the land at issue at 

White Earth is not trust land, however, we need examine only one issue: whether the land is 

within the limits of the reservation. Finding that it is within the limits because it is within the 

exterior boundaries of the reservation, we conclude that the land is Indian lands and that IGRA 

therefore applies. 

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 Indian lands. 25 U.S.C. 5 2710(b)(4)(A) ("A tnial ordinance or 

resolution may provide for the licensing or regulation of class II gaming activities owned by any 

person or entity other than the Indian tribe and conducted on Indian lands, only if the triial 

licensing requirements include the requirements described pelow]. . .and are at least as restrictive 

as those established by State law....")). Gaming by non-triial entities must meet certain 

requirements, however, for example, that 60 percent of the proceeds go to the tribe. See 25 

U.S.C. 2710@)(4)@). These same requirements apply to class IU gaming. See 25 U.S.C. 

$271 O(d)(l)(A)(ii). 

In short, whether the State has jurisdiction at White Earth is not answered by whether the gaming 

is being conducted by non-tribal members. The answer lies in whether the activity is taking 
place on Indian lands. IGRA does not apply-and the State is fkee to enforce its gambling 

laws--only if the land on whch gaming is conducted is not Indian land. See National Indian 

Gaming Commission: Defiitions Under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12382, 

12388 (1992). 

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 (1 981). See Nevada v. Hicks, 533 U.S. 353, 358-59 

f 2001) (Montana is "pathmarking case" on tribal regulatory authority over nonmembers). 

Montana and its progeny stand for the proposition that "...the inherent sovereign powers of an 

Indian 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 Indian Nation, 492 U.S. 408 

(1989); Strate v. A-I Contractors, 520 U.S. 438, 445 (1997) (reaffirming Montana analysis in 

questions of tribal adjudicatory authority)." Because Congress has made IGRA7s application 

dependent upon whether the gaming is conducted on Indian lands, not upon on whether the 

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

analysis under Montana. 

Neither do we need to engage in a jurisdiction analysis under South Dakota v. Yankton Sioux Tribe, 

522 U.S. 329 (1998). Under this analysis, if a reservation has been subject to a surplus land act 

that diminished the reservation, the land that subject to diminishment is no longer under the 

superintendence of the federal government and is no longer Indian country. Id. at 333 (1894 

surplus land act contained statutory language showing Congress's intent to diminish the Yankton 

" The Montana court did not coqletely abolish tribal sovereignty over nonmembers, however. Achowledging 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. Instead, it established two important exceptions to its 

general rule. 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 well-being: 

A tni 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 tnbe 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 &ed on the political integnegnty, theeconomic security, or 

the health or welfore of the mSk [emphases added1 

450 U.S. at 565-566; see also Atkinson Trading Co. v. Shirley, 532 US. 645,651 (2001). 

Were a Montana analysis appropriate, that is, if the land in question were trust land, so that we needed to cduate 

whether the Tni had jurisdiction, we would find that the Tni exercises jurisdiction Tbe gaming conducted on 

fee land within the White Earth resenation meets this exception by vktue of the license that each non-Indian owmr 

of fee land applied for and was granted (See September 21,2004, fax from White Earth Tni Council Background 

InvestigationlCompliance Department to Cindy Shaw). Each of these 13 licenses repments the specific kind of 

consensual economic agreement between non-members and Tni that the Montana Court anticipated would 

preserve tribal authority over wn-members when it announced the first exception: a %'be 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. 
Sioux Reservation so that State of South Dakota had jurisdiction over waste site on fee land 

owned by non-Indian within reservation's boundaries); Solem v. Bartlett, 465 U.S. 463 (1 984).12 

IGRA's application does not depend upon whether the land at issue is "Indian country." Jnstead, 

Congress specifically used "Indian lands" as the criterion for IGRA's application. While we 

would need to evaluate jurisdiction-and diminishment's effect on jurisdictiorr--if we were 

evaluating whether the land is in Jndian country, we do not need to do so here, where the issue is 

whether the land is Indian lands. In this case, the Indian lands question can be solved by 

evidence that the land is within the limits of the reservation. We therefore need not inquire into 

diminishment at White Earth. 

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

White Earth Band is the tribe that exercises jurisdiction over the land at White Earth. lGRA 

states that a tribe may engage in Class II gaming "on Indian lands within such tribe's 

jurisdiction" if, among other things, the tribe has an ordinance approved by NIGC7s Chairman. 

25 U.S.C. §2710(b)(l). The requirements for conducting Class Ei gaming likewise state: "Class 

III gaming activities shall be lawful on Indian lands only if such activities are (A) authorized by 

an ordinance or resolution that (i) is adopted by the governing body of the Indian tribe having 

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

The context of IGRA7s prescriptions as to jurisdiction-that land be within "such tribe's 

jurisdiction" and ordinances adopted by "the Indian tribe having jurisdiction over such lands"- 

indicates that Congress intended that gaming on any specific parcel of Indian lands not be 

conducted by any Indian tribe, but only by the specific tribe or tribes with jurisdiction over that 

land. See, e.g., Willioms v. Clark, 742 F.2d 549 (9' Cir. 1984), cert. denied sub nom. EI-m v. 

Williams, 471 U.S. 1015 (1985) (member of either Quileute or Quinault tribes is permissible 

devisee of Quinault Reservation land, since both tribes exercise jurisdiction over Reservation, 

and members of both tribes may be considered member of "tribe in which the lands are located" 

for purposes of Indian Reorganization Act 5 4). Since the White Earth Band is the indisputedly 

the only tribe exercising jurisdiction over the land at White Earth, the Tribe meets IGRA's 

requirements for being the tribe with jurisdiction over the Indian lands at issue. 

CONCLUSION 

The gaming at White Earth is being conducted within the limits of the reservation and is thus on 

Indian land. IGRA preempts state regulation on Wan land. State jurisdiction over the gaming at 

White Earth is therefore pre-empted. 

l2 Morkover, the simple enactment of a surplus land act does not automatically result in the diminishment of the 

reservation. Whether an act actually diminishes a reservation depends on c~~~ress's intent in passing the act 

Congress's intent must be clear and plain. Yankton Sim, 522 U.S. at 343. One discerns Congress's intent by 

examining the language of the relevant sqius land act and the individual circumstances surrounding its passage. 

Solem v. Bartlett, 465 U.S. at 469. For exaxnple, a surplus land act that simply offers non-Indians a chance to 

purchase land with the reservation would not remove the land fiom Indian country. Yankton Sioux Tribe, supra. On 

the other hand, language that provides that the Tribe would "cede" the land and states that the United states will 

give a "sum certain" show that Congress intended to pay the Tni for a "total surrender of tni claims," removing 

the land from tribal jurisdiction. Yankon Sioux, 522 U.S. at 345.