United States Department of the Interior 

OFFICE OF THE SOLICITOR 

Washington, D.C. 20240 

IN REPLY REFER TO: JUL 13 2007 

in reply, please address to: .- - 

Main Interior, MS 65 13 

MEMORANDUM 

To: Carl J. Artman 

Assistant Secretary - Indian Affairs 

From: Kaush Arha 

Associate Solicitor, Indian Affairs 

Subject: Elk Valley Indian Lands Determination 

The Tolowa Indians of the Elk Valley Rancheria (Elk Valley, Tribe or Tolowa 

Indians) have a fee-to-trust application pending before the Department of the Interior 

(DOI) for 203.50 acres of land one mile south of the Rancheria. The land, known as 

"Martin's Ranch," is located in Del Norte County, California, along state Highway 101. 

The Tribe requested an opinion to determine whether this land constituted "Indian lands" 

within the meaning of the Indian Gaming Regulatory Act (IGRA) such that it could 

conduct gaming on this land if it is acquired in trust by the Secretary. The Tribe 

submitted an analysis of the restored lands exception under Section 20 of IGRA (25 

U.S.C. § 2719. Our ofice and the Office of General Counsel for the National Indian 

- - Gaming Commission (NIGC) evaluated the Tribe's submission and determined that the 

land would fall within the "restored lands" exception to IGRA's prohibition against 

gaming on trust land acquired after October 17, 1988, if the lands were acquired in trust 

by the Secretary. 

The Tribe, along with the Smith River Rancheria, comprises the modern day 

descendants of the Tolowa people. Del Norte County is part of their aboriginal territory. 

The Federal government-to-government relationship with the Tribe was restored as a 

result of the Court's 1983 approval of the Stipulation for Entry of Judgment in Hardwick 

v. llnited States, Civil No, C-79-171D SW (N.D. Cal) and subsequent approval of the 

Stipulation for Entry of Judgment (Del Norte County) on March 2, 1987, in the same 

case. The stipulation established a process for DO1 to take title to any property still 

owned by Indians on the restored Rancheria. The Rancheria consists of 200 acres used 

by the Tribe. On December 27, 1994, the Tribe organized a new government under the 

provisions of the Indian Reorganization Act and the Secretary approved its Constitution. 

Article 11-Territory provides: "[tlhe jurisdiction of the Elk Valley Rancheria shall extend 

to the [Hardwick] boundaries . . . and to such other lands as may be hereafter acquired by 

or for the Tribe, whether within or without said boundary lines." At the time, the Tribe 

owned no land within the Rancheria. 
The Tribe submitted the following information in support of its claim that the 

parcel in question was restored: Legal Description of Property, Heizer Report; 

Declaration of Dale A. Miller, Chairman Elk Valley Rancheria; Elk Valley Rancheria 

Constitution and Bylaws; Aerial Photograph; Treaty Q (Unratified); Grant Deed, MOU 

between County of Del Norte and Elk Valley Rancheria Regarding Payments In Lieu of 

Property Tax; and MOU between County-of Del Noiie and Elk Valley Rancheria 

regarding law enforcement, impact payments, building standards and taxation. 

&~plicable Law 

IGRA prohibits gaming on lands acquired after October 1988 unless: 

(B) lands are taken into trust as part of- 

(i) a settlement of a land claim, 

(ii) the initial reservation of an Indian tribe . . . or, 

(iii) the restoration of lands for an Sndian tribe that is restored to Federal 

recognition. 

IGRA defines "Indian lands" as: 

(A) all lands withn 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 Sndian 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 tribeemrcisepgcrvef7-mental power. - - -- - - -- .- . 

25 U.S.C. § 2703(4). 

Regulations have further clarified the Indian lands definition: 

Indian lands means: 

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

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

that is either -- 

(I) Held in trust by the United States for the benefit of any Sndian tribe or 

individual; or 

(2) Held by an Sndian tribe or individual subject to restriction by the 

United States against alienation. 

25 C.F.R. § 502.12. 
Jurisdiction and Exercise of Governmental Authority 

Since the land subject to the Tribe's application is off-reservation, although only 

one mile south, the Tribe has the burden of establishing it has jurisdiction and exercises 

"governmental power" over the parcel in order for the land to qualify as "Indian lands." 

See 25-T3.S.C; 5 2703(4j(bj and25 C.F.R. § 502.12(b). "Tribal jurisdiction" is a tilreshold 

requirement for the exercise of governmental power. See, e.g., Rhode Island v. 

Narragansett Indian Tribe, 19 F.3d 685, 701-703 (1 st Cir. 1994), cert. denied, 5 13 U.S. 

91 9 (1994), superseded by statute as stated in Narragansett Indian Tribe v. National 

Indian Gaming Commission, 158 F.3d 1335 (D.C.Cir.1998); Miami Tribe of Oklahoma v. 

United States, 5 F. Supp. 2d 1213, 1217-1 8 (D.Kan. 1998); State ex rel. Graves v. United 

States, 86 F. Supp. 2d 1094 (D.Kan. 2000), afd and remanded, Kansas v. United States, 

249 F.3d 1213 (loth Cir. 2001). 

Tribes are presumed to have jurisdiction over their members and lands. The 

Supreme Court has stated that Indian tribes are "invested with the right of selfgovernment 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 Congess." Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 140 

(1982); see also, United States v. Wheeler, 435 U.S. 3 13, 323 (1 978). There are no 

treaties or statutes applicable here that would limit the tribe's jurisdiction. 

When a tribe already owns land off-reservation, the Department must analyze 

whether the tribe is exercising governmental authority over that land. There is no 

presumption that a tribe exercises governmental powers over off-reservation land held in 

trust for it or its members. Tribes and their members that have off-reservation trust lands - - - - . - . - - -- - - rnay~~nduct awide vaiiety of activities on those lands that are indishrguishable-iiom the 

surrounding non-Indian community. Not every tribal governmentally controlled activity 

on off-reservation trust land is a manifestation of the exercise of governmental authority. 

In situations such as the present one, in which the tribe seeks to acquire it in trust 

for the express purpose of conducting gaming, it is not necessary for the Department to 

speculate as to whether the tribe will exercise governmental authority over it. Gaming 

under the Indian Gaming Regulatory Act (IGRA) is a unique activity that only Indian 

tribal governments can conduct in their distinctly governmental capacity. See 25 U.S.C. 

270 1 (l)(generating tribal governmental revenue), 5 2701 (4)(tribal self-sufficiency and 

strong tribal governments), 5 2702(1) (promote strong tribal governments), 5 2703 (3) 

(generate tribal revenue), 5 271 O(b)(l)(tribal power to license and regulate gaming), 

5 27 1 O(b)(l)(B)(governing body to adopt ordinances), 5 27 1 O(b)(2)(B)(net revenues can 

oniy be used to fund governmental operations and programs, provide general welfare, 

promote tribal economic development donate to charities and help fund operations of 

local government agencies), and 5 27lO(d)(negotiate and compact with a state). 

Consequently, when the land is acquired in trust, and the tribe conducts and regulates 

such gaming, it will exercise governmental authority. 
- Lands Acquired in Trust by the Secretary After October 17, 1988 

Under Section 27 19(a) of IGRA, gaming is prohibited on lands acquired after 

October 17, 1988, unless the land falls within exceptions listed in 25 U.S.C. 3 2719(b). 

Section 2719(b)(l)(B)(iii) - "restoration of lands for an Indian tribe that is restored to - -- Federal recognition" - is the relevant exception. To determine whetker the Tribe meets it 

the Secretary must determine, first, whether the Tribe is a "restored" tribe and, second, 

whether the land is taken into trust as part of a "restoration" of lands to the Tribe. 

"Restored" Tribe 

The key terms, "restored" and "restoration" are not defined in IGRA. Nor are they 

defined in the various federal regulations issued by DO1 to implement IGRA. 

The U.S. District Court for the Western District of Michigan was one of the first 

courts to address the definition of "restored" and "restoration." Grand Traverse Band of 

Ottawa and Chippewa Indians v. United States Attorney, 198 F. Supp.2d 920 (W.D. 

Mich. 2002), afld 369 F.3d 960 (6th Cir. 2004). The court held that both "restored" and 

"restoration" should be given their ordinary dictionary meaning and the Band's history 

showed it was restored: 

In sum; the undisputed hstory of the Band's treaties with the United States 

and its prior relationshp to the Secretary and the BIA demonstrates the 

Band was recognized and treatied with by the United States . . . Only in 

1872 was the relationship administratively terminated by the BIA. This 

history - of recognition by Congress through treaties (and historical - . . . . . . . . . - .- . . . - -a-dmiiii-str-atioil by-the-S eCCretw7; SS~tsSSee4U.ent w~n.~i-a.aa~. .~f.r-eeeOgii.ifiioOnn,- . . .. .. - - - -- - . . - - .- - . 

- -- - - 

and yet later re-acknowledgment by the Secretary - fits squarely within 

the dictionary definitions of "restore" and is reasonably construed as a 

process of restoration of tribal recognition. The plain language of 

subsection (b)(l)(B) therefore suggests that ths Band is restored. 

Grand Traverse Band at 933. 

The history of the Elk Valley Tribe is similar. The Tolowa negotiated a treaty 

with the United States in 1852, although the U. S. Senate never ratified it or any of the 

other eighteen treaties negotiated with other tribes. Treaties need not be consummated to 

evidence recognition. See, NIGC Cowlitz Opinion at 5 ("Because treaty negotiations can 

only take place between sovereign entities, the Federal Government's effort to sign a land 

cession treaty with the Cowlitz Tribe is evidence of a government-to-government 

relationshp with the Tribe and constitutes Federal recognition."); see also, NIGC 

Cowlitz Opinion at 5n3 ("The BIA came to the same conclusion, determining that the 

1 855 treaty negotiations represented 'unambiguous Federal acknowledgment.'); 

Worcester v. Georgia, 3 1 U.S. 515, 559 (1832)("The Constitution, by declaring treaties 

already made, as well as those to be made . . . with the Indian nations . . . admits their 

rank among those powers who are capable of making treaties."). 
Moreover, in 1906 and 1908, Congress enacted legislation appropriating money to 

purchase property for landless Indians in California. The Indian Office Appropriation 

Act of 1906 appropriated $100,000.00 and authorized the Bureau of Indian Affairs to: 

- - Purchase-for the use of the Indians of Californixnow --- -- - 

residing on reservations which does not contain land 

suitable for cultivation, and for Indians who are not now 

upon reservations in said State, suitable tracts or parcels of 

land, water, and water rights in said State. . .as the 

Secretary of the Interior may deem proper. . . . 

Pursuant to this authorization, the United States purchased what is now known as 

the Elk Valley Rancheria for the Elk Valley Tolowa. The United States held the property 

in trust for the benefit of the Elk Valley Tolowa but legal title to the land remained in the 

Uriited States. Additionally, in 1935, the Secretary conducted a referendum on the 

Rancheria to allow the Indians to decide whether the provisions of the Indian 

Reorganization Act would apply. The conduct of the referendum also suggests a 

government-to-government relationship with the Tribe. 

In 1958, Congress initiated a policy of terminating the Federal supervision of 

Indian tribes and enacted the California Rancheria Act (72 Stat. 619, amended 78 Stat. 

390), which, established a process for terminating the Federal trust relationship with the 

Elk Valley Rancheria and 43 other rancherias in California. During the 1970s, members 

of the Elk Valley Rancheria joined other Indian community groups to challenge the Act 

for illegally terminating their status as Indians and tribes. ("Tillie Hardwick" case, cited 

- above). - .- . -- - - - 

On March 2, 1987, the District Court ordered the Secretary of the Interior to 

pul~lish a Federal Register notice that the United States maintained a government-togovernment relationship with the Elk Valley Tribe. The Court also held that the 

Rancheria had never been lawfully terminated and, therefore, the boundaries of the 

Rancheria still existed. Finally, the Court established a process for the Secretary to take 

trust title to any property still owned by any Indian on the Rancheria. 

The Elk Valley Tribe had been recognized by the federal government, terminated, 

ancl again recognized, like the Grand Traverse Band. The Tribe qualifies as "an Indian 

tribe that is restored to Federal recognition" under 25 U.S.C. 9 2719(b)(l)(B)(iii). 

- Restoration of Lands 

Having concluded that the Tribe is a restored tribe under IGRA, the next question 

is whether trust acquisition of the Martin's Ranch would be "land taken into trust as a part 

of. . . the restoration of lands for an Indian tribe that is restored to Federal recognition." 

25 U.S.C. § 2719(b)(l)(B)(iii). 
Federal courts and the DO1 have grappled with the concept of restoration of land. 

Guideposts now exist for restoration-of-land analysis. "Restored" and "restoration" must 

be given their plain dictionary meanings. "Restored" lands need not have been restored 

pursuant to Congressional action or as part of a tribe's restoration to federal recognition. 

Grand Traverse Bund of Oiluwa and Chippewa Indiirns v. i! S. Aitornq ("Grand - - 

Traverse Band 1"), 46 F. Supp.2d 689,699 (W.D. Mich. 1999); Grand Traverse Band of 

Ottawa and Chippewa Indians v. U S. Attorney, 198 F. Supp.2d 920, 928,935 ("Grand 

Traverse Band Il")(W.D. Mich 2002), affd, 369 F.3d 960 (6'h Cir. 2004). Confederated 

Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt ("Coos"), 11 6 F. Supp.2d 

15 5, 161, 164 (D.D.C. 2000). The language of section 27 19(b)(l)(B)(iii)-"restoration of 

lands for an Indian tribe that is restored to Federal recognitionH-"implies a process rather 

than a specific transaction, and most assuredly does not limit restoration to a single 

event." Grand Traverse Band N at 936; Grand Traverse Band I at 70 1. The 

administrative fee-to-trust process under 25 C.F.R. Part 151 can restore lands. 

The courts in Coos and Grand Traverse Band I and II noted that some limitations 

might be required on the term "restoration" to avoid a result that "any and all property 

acquired by restored tnbes would be eligible for gaming." Coos at 164; Grand Ilkaverse 

Band I at 700; see also Grand Traverse Band II at 934-935 ("Given the plain meaning of 

the language, the term 'restoration' may be read in numerous ways to place belatedly 

restored tribes in a comparable position to earlier recognized tribes while simultaneously 

limiting after-acquired property in some fashon") afd, 369 F.3d 960 (6th Cir. 2004). All 

three courts proposed that land acquired after restoration be limited by "the factual 

circumstances of the acquisition, the location of the acquisition, or the temporal 

relationship of the acquisition to the tribal restoration." Id. - 

Factual Circumstances of the Acquisition 

The Tribe acquired the Martin Ranch tract in 1998, ten years after passage of 

IGRA and eleven years after being restored in the Hardwick case. Previously, tribal 

members had sold most of the property withn the Rancheria to non-Indians to avoid 

forced tax sales. Few parcels remained in Indian ownership. The tribal government 

entered a seven year lease agreement for gaming on the Rancheria with a tribal member, 

Betty Green. She was one of the Indians of the Rancheria who still owned a parcel of 

property that the United States had taken into trust under the Hardwick judgment. 

The Tribe made several attempts to acquire land within or contiguous to the 

reservation boundaries prior to gaming on the Green allotment, however, the Tribe 

managed to acquire less then 15 acres. The Tribe submitted financial information 

demonstrating it did not have the ability to purchase land immediately upon restoration. 

It was not until 1995, after the Tribe commenced gaming on the Green allotment, that it 

could reacquire property to build a tribal land base. 
Between the years of 1987-1 998 the Tribe acquired seven parcels of land. The 

Tribe applied to have all of these parcels taken in to trust in April, 2001. Four of the 

parcels were taken in to trust in August, 2003. Two of the parcels were taken in to trust 

in April, 2004. These parcels were all withn or contiguous to the Rancheria boundaries. 

The application for the remaining parcel, the Martin Ranch, is pending. -. - -. - .. - -.. . - - 

"Restoration" denotes a talung back or being put in a former position. Coos at 

162. It means "reacquired." Id. ("The 'restoration of lands' could be construed to mean 

just that; the tribe would be placed back in its former position by reacquiring lands.") In 

any event, "restoration" does not mean "acquired." We therefore must look further for 

indicia that the land acquisition in some way restores to the Tribe what it previously had. 

Location and History 

As mentioned previously, the parcel is located one mile south of the original 

Rancheria boundaries as it existed immediately prior to the termination under the 

California Rancheria Act. 

Restored lands may include off-reservation parcels; however, there must be 

indicia that the land has in some respects been recognized as having a significant relation 

to the Tribe. Grand Traverse Band I at 702. In Grand Traverse 11, the court held that the 

lands at issue were restored because they lay within counties that had previously been 

ceded by the tribe to the United States. Grand Traverse Band I1 at 936. This ruling was 

consistent with its opinion in Grand Traverse I, in whch the court stated that the land's 

location "within a prior reservation . . . is significant evidence that the land may be 

considered in some sense restored." Id. If the site has been important to the tribe 

throughout its history and remained so immediately on resumption of federal recognition, 

that is further evidence it is restored. 

Martin's Ranch is located in the middle of many sites that were used by the 

Tolowa people. According to Kroeber's, "Handbook of the Indians of California," the 

subject property is located nearly equidistant between the northern and southern 

boundaries and close to the coast where much of the Tolowa activities occurred, i.e., 

villages, fishing and other food gathering. 

The Tribe has submitted an archaeological survey of the Martin Ranch prepared 

by Leslie S. Heald, M.S., Cultural Resources Facility, Center for Indian Community 

Development, Humboldt State University. According to this survey, the parcel is within 

the area historically controlled by the Tribe. 

As with other Northern California Tribes, the Tolowa people moved according to 

the seasons. At the time of historic contact in 1828, the Tolowa had eight major villages 

spread along the coast. The Tribe would remain in the coastal villages year-round, except 

in the fall when they fished for smelt at sandy beaches and then moved inland to collect 

acorns and catch salmon. See Archaeological Survey of Martin Ranch, p. 6. The Martin 
Ranch parcel is located a half mile from the beach. On it sits a conical knoll prayer rock 

important to the Tribe's spiritual heritage. 

The Elk Valley Rancheria currently has 98 enrolled members. Of those 98 

members, 86 trace their ancestry directly to acknowledged Tolowa people. Seven of the 

nine members of the Tribal Council aredirect descendants of Tolowa people. - -- - 

Additionally, many individual members of the Tribe trace their ancestry back to 

acknowledged Tolowa leaders. 

The original Rancheria is now a residential area and the land within it is primarily 

owned by non-Indians. For the Tribe to advance its goal of restoring its land base, it had 

no choice but to go beyond the boundaries of the original Rancheria. 

Given the close proximity to the original Rancheria, the available historical 

information, and the archaeological evidence, we conclude there is substantial evidence 

the site has been important to the Tribe throughout its history and remained so 

immediately on resumption of federal recognition. 

Temporal Relationship of Acquisition to the Tribal Restoration 

DO1 opined in the Coos case, supra, that a fourteen-year lapse between a tribe's 

restoration and the acquisition of land did not foreclose a finding the land was restored. 

("The mere passage of time should not be determinative" and "the Tribes quickly 

acquired the land as soon as it was available and withn a reasonable amount of time after 

being restored."). Likewise, the NIGC in its Mechoopda Lands Opinion found that a - - - . - - - . . - -nine-year lapse between restoration and acquisition was sufficient "temporal 

relationshp." (At the time the Mechoopda Lands Opinion was issued, the land had not 

yet been taken in to trust, a circumstance similar to Elk Valley.). 

As mentioned above, the Elk Valley Tribe was restored in 1987 but had no 

financial ability to purchase land until 1995. The Martin's Ranch parcel was acquired in 

1998, eleven years after restoration. The Tribe applied to have the parcel taken in to trust 

in April, 2001 along with all but one of the other parcels listed below. The application is 

still pending. 

Elk: Valley Land Acquisitions 

- Pa.rce1 Name Parcel location 

Tribal Admin On-Reservation Offices 

Date 

Acauired Date Date in Trust for Trust 

Green On-Reservation 10/12/1993 Apr-01 Aug-03 Residence 
Community On-Reservation Center 

Parking On-Reservation 6/7/1995 Apr-0 1 Aug-03 

Srary Ranch Contiguous 9i5ii996 Apr-Gi April-04 

Stary Ranch Contiguous 912611 997 Apr-0 1 April-04 

Martin Ranch 1 mile south of the 

Rancheria 6/24/1998 Apr-01 

Tribal Admin On-Reservation 

Offices 

Pending 

The fact that the Tribe applied to have all of the acquisitions taken into trust at the 

same time and that they were the first parcels requested by the Tribe to be acquired into 

trust is a clear indication of the Tribe's intent to reestablish a land base. NI of the parcels 

that were within the original Rancheria were taken into trust soon after the applications 

were submitted. Whlle the Secretary accepted the parcels that were within the original 

Rancheria into trust quickly, the same is not true of the outside parcels or even the 

contiguous parcels. We cannot, however, penalize the Tribe for the length of time it 

takes for the parcel to be taken in to trust when there is a clear indication that the Tribe 

intended to acquire all of the lands in trust at one time. 

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

jurisdiction over those lands and exercise governmental power. The Elk Valley Tribe is a 

restored Tribe with a historical connection to the parcel. The Tribe has entered into a 

Memorandum of Understanding with the County of Del Norte covering a range of 

governmental activities on the parcel and will do more once the parcel is taken into trust. 

The parcel was acquired within a reasonable amount of time after restoration, well within 

established precedents. Therefore, we conclude that if the Secretary of the Interior 

accepts the Tribe's land in to trust, it will qualify as Indian lands. At that time, the Tribe 

may lawfully conduct gaming on its proposed site. 

If you have any questions, John Jasper, Attorney at DO1 and John Hay, Attorney 

at NIGC, are assigned to this matter.