katrina: the background history behind why these meeting are beingheld in re. to the wolfchild Lawuit is in the article at the link below:
www.doi.gov/solicitor/opinions/M-37023.pdf++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Here is a copy of this coped & pasted below -
-----------------------------------------------------------------------------------
IN REPLY REFER TO:
United States Department of the Interior
OFFICE OF THE SOLICITOR
Washington, D.C. 20240
M-37023
Memorandum
To:
From:
Subject:
Secretary of the Interior
Solicitor
Applicability of25 U.S.C. § 2719 to Restricted Fee Lands
Section 2719 of the Indian Gaming Regulatory Act (IGRA)! prohibits gaming by Indian tribes
"on lands acquired by the Secretary in trust for the benefit ofan Indian tribe after October 17,
1988," subject to certain exceptions. In the 25 C.F.R. Part 292 regulations that were published
on May 20,2008, the Department stated that the prohibition in section 2719 applies only to lands
"acquired by the Secretary in trust" for Indian tribes, and not to lands owned by an Indian tribe
and held in what is known as restricted fee. This statement was a departure from the position
taken by the Department in 2002 in a letter from Secretary Norton to Governor Pataki. I have
been asked to provide further information about the reasons for the Department's interpretation
of section 2719 in the Part 292 regulations.
I provide first a brief description ofhow section 2719 fits into the regulatory framework
established by IGRA. Then I describe the differences between land held in trust by the Secretary
for Indian tribes and land owned by Indian tribes in restricted fee. Against that background, I
conclude with a discussion of the reasons for the Department's change of position with respect to
section 2719.
IGRA Framework
IGRA established a comprehensive regulatory scheme for gaming by Indian tribes on Indian
lands. Congress enacted IGRA in the wake of the Cabazon decision.2 In Cabazon, the Supreme
Court authorized on-reservation gaming by holding that states lack civil regulatory authority on
Indian reservations. Congress in enacting IGRA generally made a choice to regulate onreservation
gaming and restrict gaming on newly acquired lands
1 25 U.S.C. § 2701 et seq.
2 California v. Cabazon Band ofMission Indians, 480 U.S. 202 (1987).
1
IGRA's core principle is that gaming may occur on "Indian lands," as defined by IGRA, subject
to certain regulatory requirements. IGRA defined "Indian lands" as including two broad
categories of land. The first category is "all lands within the limits of any Indian reservations,"
regardless ofwhether the lands are held by the Secretary in trust or owned in fee by the tribe.
The second category deals with off-reservation lands. It includes "all 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 governmental power." Thus, as a general rule, IGRA allows
a tribe to game on all on-reservation lands. IGRA also authorizes gaming on off-reservation
lands held in trust or restricted fee for a tribe or individual if the tribe exercise governmental
power over those lands.
Congress in IGRA created a prohibition on gaming on some lands that would otherwise meet the
definition of Indian lands. Section 2719 prohibits gaming on lands "acquired by the Secretary in
trust" for a tribe after the date IGRA passed, which was October 17, 1988. Section 2719 then
created exceptions to the prohibition. The two exceptions relevant to the discussion here are as
follows:
1) all lands "located within or contiguous to the boundaries of the reservation of [an]
Indian tribe" as those boundaries existed on the date IGRA passed; and
2) all off-reservation lands acquired by the Secretary in trust for an Indian tribe after the
date IGRA passed, provided that the Secretary determines that gaming on those lands
"would be in the best interest of the tribe" and "would not be detrimental to the
surrounding community," and that "the Governor of the State in which the gaming
activity would be located concurs in the Secretary's determination." 3
Thus with section 2719, Congress created a scheme under which gaming could only occur on
newly acquired off-reservation lands if the Secretary found that gaming on those lands would not
be detrimental to the surrounding community and Governor ofthe State concurred.4 Congress
was obviously concerned that, with the passage ofIGRA, Indian tribes would acquire offreservation
lands and then have them taken into trust by the Secretary so that they would fit the
definition of Indian lands and could be used to operate casinos. Accordingly, Congress
prohibited gaming on such lands unless the Secretary made a determination that the proposed
gaming was not detrimental to the surrounding community and in the best interest ofthe tribe
and the Governor affirmatively concurred with the Secretary.
At first glance, it appears as ifthere might be a significant loophole in section 2719. It does not
address newly acquired lands that are owned by an Indian tribe in restricted fee. Such lands, as
noted above, fit within the definition of "Indian lands." The section 2719 prohibition against
gaming on newly acquired lands only applies to lands "acquired by the Secretary in trust." This
appears to leave open the possibility that Indian tribes could acquire off-reservation lands in
3 25 USC 2719(a) and 2719(b).
4 Congress created the so-called two-part determination as the general exception to the prohibition on gaming on
after-acquired lands. In addition, Congress created three more exceptions to the 2719 prohibition -- restored lands
for a restored tribe, settlement of a land claim, and initial reservation of a tribe acknowledged under the process in
25 CFR Part 83. These exceptions are not relevant here.
2
restricted fee post-IGRA and operate casinos without the Secretarial determination and the
Governor's concurrence. If this loophole were to exist, it would clearly have the potential to
undermine the role that Congress intended the Secretary, the Governor and the surrounding
communities to play in deciding whether gaming could occur on newly acquired off-reservation
lands.
This was the apparent loophole that was of concern to Secretary Norton in 2002 and that led her
ultimately to conclude that Congress "must have" intended to include restricted fee lands in the
section 2719 prohibition against gaming on after-acquired lands, even though, by its terms that
prohibition applies only to land "acquired by the Secretary in trust."
Restricted Fee Lands
The term "restricted fee" refers to real property whose title is held in fee by an Indian tribe (or
individual Indian), but which cannot be alienated or encumbered without the consent of
Congress. This restriction on alienation attaches to certain Indian lands by operation of law i.
e., by the operation of certain treaties, some tribe-specific statutes and, more generally, the
Trade and Intercourse Act, also known the Non-Intercourse Act. The Non-Intercourse Act was
enacted by the first Congress in 1790 and remains the law today. Codified at 25 U.S.c. § 177, it
provides in pertinent part:
No purchase, grant lease, or other conveyance of lands, or of any title or claims
thereto, from any Indian nation or tribe of Indians, shall be of any validity, in law
or equity, unless the same be made by treaty or convention, entered into pursuant
to the Constitution....
Typically, the Act is invoked today to invalidate a conveyance of tribal land made without the
consent ofthe United States.5
The Secretary lacks any general authority to place restrictions on lands tribes acquire in fee. The
Secretary can only do that when directed to do so by a statute. Since 1934, however, the
Secretary has had broad authority under the Indian Reorganization Act (IRA) to acquire lands for
Indian tribes and hold the land in trust and to accept into trust lands acquired by Indian tribes
themselves. As trustee ofthe lands, the United States holds legal title to the lands and they thus
cannot be alienated or encumbered without federal approval. Trust lands are, therefore, subject,
in effect, to a restriction on alienation just like the lands held by the tribes in restricted fee. Other
than the fact that the United States has no ownership interest in restricted fee lands, there may
also be other differences between restricted fee lands and lands held in trust. Depending on the
duties contained in statutes, regulations, treaties, or executive orders, with regards to trust lands,
the Secretary or the United States may owe certain land management duties to the Indian
5The New York Indian land claims are among several Eastern Indian land claims that arise under the NonIntercourse
Act. See, e.g., County ofOneida v. Oneida Indian Nation ofNew York, 470 U.S. 226 (1985) ("Oneida
IF') (Tribe has cause of action for lands conveyed to the state in violation of the Non-Intercourse Act); Seneca
Nation ofIndians v. New York, 26 F. Supp 2d 555 (W.D.N.Y. 1998), aff'd on other grounds, 178 F.3d 95 (2d Cir.
1999) (state condemnation ofland of the Seneca Nation was held to violate the Non-Intercourse Act).
3
beneficiaries and may be responsible for managing any revenues generated from the use of the
lands.
Secretary Norton's Letter
As explained above, Secretary Norton was concerned about the apparent loophole in section
2719 with respect to after-acquired fee restricted lands. She was faced with a situation where the
Seneca Nation of Indians, by virtue of the specific terms of the Seneca Settlement Act, was
authorized to acquire certain off-reservation lands in restricted fee. She was concerned that if
she concluded that section 2719 did not apply to the Seneca's restricted fee lands, the
Department would be inundated with applications to game on after-acquired restricted fee lands,
and that tribes would be allowed to conduct gaming operations on such lands without meeting
one of the exceptions to the prohibition on gaming on newly acquired lands. As she explained in
her letter:
I cannot conclude that Congress intended to limit the restriction to gaming on
after-acquired land to only per se trust acquisitions. The Settlement Act clearly
contemplates the acquisition of Indian lands which would otherwise constitute
after-acquired lands. To conclude otherwise would arguably create unintended
exceptions to the Section [2719] prohibitions and undermine the regulatory scheme
prescribed by IGRA. I believe that lands held in restricted fee status pursuant to an
Act of Congress such as is presented within this Compact must be subject to the
requirements of Section [2719] of IGRA.
In developing the Part 292 regulations, the Department had an opportunity to reconsider the
meaning of section 2719 and to examine more closely the law governing the creation of
restricted fee lands. Based on its review, the Department concluded that the language of section
2719 is plain and cannot be ignored and that Secretary Norton's concern about the potential
loophole for restricted fee lands was based on an incorrect understanding ofthe law.
The Supreme Court has instructed that "[t]he starting point in every case involving construction
ofa statute is the language [of the statute] itself." Landreth Timber Co. v. Landreth, 471 U.S.
681,685 (1982); accord Duncan v. Walker, 533 U.S. 167, 172 (2001). Where the meaning of
the language in a statute is plain, that is normally the end of the inquiry. Lamie v. United States
Trustee, 540 U.S. 526, 534 (2004); United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989).
To determine the plain meaning, the words in a statutory provision that are not defined by the
statute itself are customarily given their ordinary meaning. BP Am. Prod. Co. v. Burton, 549
U.S. 84, (2006) (citing Perrin v. United States, 444 U.S. 37,42 (1979)); Williams v. Taylor, 529
U.S. 420, 431 (2000).
Because Congress's intent is clear on the face ofthe IGRA, our analysis can appropriately end
there. See Chevron US.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984) (inquiry ends if
Congress's intent is clear).
4
Some, however, might nonetheless argue that the phrase "in trust" is ambiguous when used to
refer to Indian lands. This is because, in common parlance, Indian lands, whether held in trust or
in restricted fee, are sometimes referred to for ease of reference as trust lands.
Where there is ambiguity in a statute (which I do not believe is the case here), the official
charged with administering the statute (in this case, the Secretary) has broad discretion to resolve
the ambiguity and give meaning to the term. As the Supreme Court has stated:
In Chevron, this Court held that ambiguities in statutes within an agency's
jurisdiction to administer are delegations of authority to the agency to fill the
statutory gap in reasonable fashion. Filling these gaps, the Court explained,
involves difficult policy choices that agencies are better equipped to make than
courts. If a statute is ambiguous, and if the implementing agency's construction is
reasonable, Chevron requires a federal court to accept the agency's construction
ofthe statute, even if the agency's reading differs from what the court believes is
the best statutory interpretation.
Nat'l Cable & Telecomms. Ass 'n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (internal
citations omitted).
Assuming, for the sake of argument, that the phrase "in trust" is ambiguous, it is readily apparent
from the purposes and policies, language, structure and legislative history ofIGRA that
construing the phrase as was done in the Part 292 regulations is reasonable. To be upheld under
step two of Chevron, a court need only find that an agency's understanding ofthe statute "is a
sufficiently rational one." Chemical Mfrs. Ass'n v. NRDC, 470 U.S. 116, 125 (1985). As the
discussion below makes clear, nothing in the language, structure, legislative history or purpose of
IGRA extends an interpretation that section 2719 does not extend to restricted fee lands "over the
edge ofreasonable interpretation." Whitman v. American Trucking Ass'n, 531 U.S. 457, 485
(2001).
Based on its review ofthe language of the prohibition in section 2719, the Department in
promulgating the Part 292 regulations has concluded for three reasons that the language is clear
and cannot be ignored.6 First, the phrase "in trust" has a common and generally well-accepted
meaning in Indian law. It refers to a form of ownership in which legal title is held by the United
State or the Secretary as trustee, while beneficial title is held by the Indian owner of the land. It
does not describe the way in which restricted fee lands are owned. Second, as explained above,
lands held in restricted fee status are not "acquired by the Secretary." Neither he nor the United
States holds title to them, whether legal or otherwise. Restricted fee lands are acquired by Indian
6 The Department believes this is not one of those "rare" circumstances "where application of the statute as written
will produce a result demonstrably at odds with its drafters' intentions." Demarest v. Manspeaker, 498 U.S. 184. 190
(1991); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982). In reviewing a statute for the purpose of
developing regulations, an agency will, just as a court must "start, as always, with the language of a statute,"
Williams v. Taylor, 529 U.S. 420, 431 (2000). Congress's intent is best evidenced by the statutory language that it
chooses. United States v. Monsanto, 491 U.S. 600, 610 (1989). When the statutory text is clear, legislative history
is irrelevant. See, e.g., United States v. Gonzales, 520 U.S. 1,6 (1997) ("Given the straightforward statutory
command, there is no reason to resort to legislative history").
5
tribes and are owned by them, subject to a restriction on alienation that attaches by operation of
law. Third, lands held "in trust" by the Secretary, while similar to restricted fee lands in that
they cannot be conveyed without approval by the United States, can also be different from
restricted fee lands in other important respects. As noted above, depending the terms of specific
statutes and implementing regulations, the Secretary as trustee may owe Indian owners of the
lands certain management duties. Congress does not typically enact statutes imposing specific
duties on the Secretary with respect to restricted fee lands. Accordingly, the Department has
determined that there is no basis for reading the phrase "acquired by the Secretary in trust" to
include lands acquired by tribes that then become subject to a restriction on alienation by
operation oflaw.
In addition, the Department determined that Secretary Norton's concern about a significant
loophole in section 2719 was based on a misapprehension ofthe law. Secretary Norton was
assuming that off reservation lands acquired by tribes post-IGRA would automatically be subject
to the restriction on alienation imposed by the Non-Intercourse Act. The Department has since
determined that the better view of the law is that when a tribe purchases new lands offreservation
and those lands are held by the tribe in fee, then the land is not, without more,
automatically subject to restrictions against alienation. The Non-Intercourse Act was intended to
apply to "Indian Country" and fee land outside a reservation is not Indian Country.
Since the enactment of the IRA, when the Secretary has acquired new lands for tribes, the lands
are usually acquired in trust. Restricted fee lands continue to exist; especially tribal lands in
what were the original Thirteen Colonies, some General Allotment Act individual allotments,
and tribal lands subject to statutory restrictions. The Supreme Court, however, in City ofSherrill
v. Oneida Indian Nation ofN. Y, reiterated that the authority in IRA provides the "proper avenue
for
to reestablish sovereignty over territory."7
While the Department has not previously opined on this precise question, Federal restrictions
under the Non-Intercourse Act do not automatically attach to off-reservation parcels acquired by
a tribe in fee simple absolute. Participating as amicus curiae in Cass County v. Leech Lake Band
ofChippewa Indians,8 the United States has argued that the Non-Intercourse Act applies to "all
reservation lands held by a Tribe, including lands recently acquired in fee."g In doing so, the
United States suggested that off-reservation lands are not protected under the Non-Intercourse
Act and expanded on this premise by stating: "[t]his case is concerned only with tribally owned
lands on a reservation, where the Act serves to protect the tribal land base."l0 The qualifying
7 City ofSherrill v. Oneida Indian Nation ofNew York, City ofSherrill v. Oneida Indian Nation ofNew York, 544
U.S. 197 (2005). At issue in that case was the taxability of on-reservation lands the Oneida Nation re-acquired
beginning in 1987 through purchases on the open market, approximately two centuries after they were lost through
unlawful conveyances to the State. The Court ruled that the Nation could not, after such a long hiatus, unilaterally
assert sovereignty over the reacquired lands. The Court instructed that "Title 25 U.S.c. § 465 authorizes the
Secretary of the Interior to acquire land in trust for Indians and provides that the land shall be exempt from State and
local taxation," and that this is "the proper avenue for [the Oneida Nation] to reestablish sovereign authority over
territory last held by the Oneidas 200 years ago." City ofSherrill, 544 U.S. at 220-221.
8 524 U.S. 103 (1998).
9 Cass County v. Leech Lake Band ofChippewa Indians, 524 U.S. 103 (1998),1997 U.S. Briefs 174, 14-15.
10 Id. at 47, fn. 13; See also Cass County Joint Water Res. Dist. v. 1.43 Acres ofLand, 643 N.W. 2d 685 (N.D.
2002) (holding that the Non-Intercourse Act does not apply to off -reservation tribal fee land).
6
language in the brief, "on a reservation, where the [Act] serves to protect the tribal land base,"
appears to signify that the litigating position ofthe United States is that the Non-Intercourse
Act's Federal protections against alienation do not extend to off-reservation lands owned by a
tribe in fee unless some extenuating circumstances exist.
This view was most recently reaffirmed in a letter from George Skibine, Acting Deputy Assistant
Secretary - Policy and Economic Development, to the president ofthe Lac du Flambeau Band of
Lake Superior Chippewa Indians, dated December 19, 2008. Mr. Skibine agreed with the Tribe
that off-reservation land the Tribe acquired in 2000 which were never owned by the Tribe or its
members in restricted status, and never held by the United States for the Tribe or its members in
trust status were not subject to the Non-Intercourse Act and the Tribe was not required to obtain
Federal approval to convey the property. I I
Based on the reasons explained above, that portion of Secretary Norton's letter that recites a
legal conclusion about the application of section 2719 to restricted fee lands is superseded by
this memorandum.
11 Letter to President Edwards from George Skibine (Dec. 19,2008).
7
