Notice2022-13866
Notice of Approved Class III Tribal Gaming Ordinance
Primary source
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Published
June 29, 2022
Issuing agencies
Interior DepartmentNational Indian Gaming Commission
Abstract
The purpose of this notice is to inform the public of the approval of Big Sandy Rancheria of Western Mono Indians' Class III gaming ordinance by the Chairman of the National Indian Gaming Commission.
Full Text
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<title>Federal Register, Volume 87 Issue 124 (Wednesday, June 29, 2022)</title>
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[Federal Register Volume 87, Number 124 (Wednesday, June 29, 2022)]
[Notices]
[Pages 38778-38780]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13866]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
Notice of Approved Class III Tribal Gaming Ordinance
AGENCY: National Indian Gaming Commission.
ACTION: Notice.
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SUMMARY: The purpose of this notice is to inform the public of the
approval of Big Sandy Rancheria of Western Mono Indians' Class III
gaming ordinance by the Chairman of the National Indian Gaming
Commission.
DATES: This notice is applicable June 29, 2022.
FOR FURTHER INFORMATION CONTACT: Dena Wynn, Office of General Counsel
at the National Indian Gaming Commission, 202-632-7003, or by facsimile
at 202-632-7066 (not toll-free numbers).
SUPPLEMENTARY INFORMATION: The Indian Gaming Regulatory Act (IGRA) 25
U.S.C. 2701 et seq., established the National Indian Gaming Commission
(Commission). Section 2710 of IGRA authorizes the Chairman of the
Commission to approve Class II and Class III tribal gaming ordinances.
Section 2710 (d) (2) (B) of IGRA, as implemented by NIGC regulations,
25 CFR 522.8, requires the Chairman to publish, in the Federal
Register, approved Class III tribal gaming ordinances and the approvals
thereof.
IGRA requires all tribal gaming ordinances to contain the same
requirements concerning tribes' sole proprietary interest and
responsibility for the gaming activity, use of net revenues, annual
audits, health and safety, background investigations and licensing of
key employees and primary management officials. The Commission,
therefore, believes that publication of each ordinance in the Federal
Register would be redundant and result in unnecessary cost to the
Commission.
Thus, the Commission believes that publishing a notice of approved
Class III tribal gaming ordinances in the Federal Register, is
sufficient to meet the requirements of 25 U.S.C. 2710 (d) (2) (B).
Every ordinance and approval thereof is posted on the Commission's
website (<a href="http://www.nigc.gov">www.nigc.gov</a>) under General Counsel, Gaming Ordinances within
five (5) business days of approval.
On June 22, 2022, the Chairman of the National Indian Gaming
Commission approved Big Sandy Rancheria's Class III Gaming Ordinance. A
copy of the approval letter is posted with this notice and can be found
with the approved ordinance on the NIGC's website (<a href="http://www.nigc.gov">www.nigc.gov</a>) under
General Counsel, Gaming Ordinances. A copy of the approved Class III
ordinance will also be made available upon request. Requests can be
made in writing to the Office of General Counsel, National Indian
Gaming Commission, Attn: Dena Wynn, 1849 C Street NW, MS #1621,
Washington, DC 20240 or at <a href="/cdn-cgi/l/email-protection#731a1d151c331d1a14105d141c05"><span class="__cf_email__" data-cfemail="6900070f062907000e0a470e061f">[email protected]</span></a>.
National Indian Gaming Commission.
Dated: June 23, 2022.
Michael Hoenig,
General Counsel.
June 22, 2022, Elizabeth D. Kipp, Chairwoman, Big Sandy Rancheria,
37387 Auberry Mission Rd., PO Box 337, Auberry, CA 93602.
Re: Big Sandy Rancheria Site-Specific Tribal Gaming Ordinance 02-01
Dear Chairwoman Kipp:
I am writing with respect to the April 12, 2022, request of the Big
Sandy Rancheria of Western Mono Indians of California to the National
Indian Gaming Commission to review and approve the Tribe's amended
gaming ordinance, Ordinance 02-01. The amended gaming ordinance was
adopted by Resolution No. 0122-01 of the Tribal Council.
The amended gaming ordinance contains a site-specific section that
describes the original allotment of Mary McCabe (the ``McCabe
Allotment'') as land within which the Tribe is authorized to conduct
gaming. This section required the NIGC to consider whether the McCabe
Allotment would constitute Indian lands on which the Tribe may conduct
gaming activities under the Indian Gaming Regulatory Act. On May 13,
2022, the NIGC Office of General Counsel issued a legal opinion
concluding that the McCabe Allotment constitutes Indian lands on which
the Tribe may conduct such gaming. On May 17, 2022, the Department of
the Interior, Office of the Solicitor, issued its concurrence with that
opinion. I hereby adopt the attached May 13, 2022 Indian lands opinion,
its associated record, and its conclusions.
Thank you for providing the amended gaming ordinance for our
review. The ordinance is approved as it is consistent with the
requirements of the Indian Gaming Regulatory Act and NIGC regulations.
If you have any questions concerning this letter, please contact Senior
Attorney Austin Badger at (202) 632-7003.
Sincerely,
E. Sequoyah Simermeyer
Chairman
Memorandum To The Chair
Through: Michael Hoenig, General Counsel, Sharon M. Avery, Associate
General Counsel.
From: Austin Badger, Senior Attorney.
Date: May 13, 2022.
Subject: Big Sandy Rancheria of Western Mono Indians of California--
(McCabe Allotment) Indian Lands Opinion.
On April 12, 2022, the Big Sandy Rancheria of Western Mono Indians
of California submitted to the NIGC a request for approval of an
amended gaming ordinance.\1\ Amendments to the gaming ordinance include
specifying that gaming is authorized on ``the north half of Lot two of
the northwest quarter of Section 18, Township 11 South, Range 22 East,
Mount Diablo meridian, in Fresno County, California, being the original
allotment of Mary McCabe, Sac-120 . . . '' (McCabe Allotment). This
Memorandum addresses whether the McCabe Allotment qualifies as Indian
lands under the Indian Gaming Regulatory Act on which the Tribe may
conduct gaming.
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\1\ The Tribe provided additional information concerning the
McCabe Allotment on February 21 and 25, 2022. The Tribe's submission
included: Declaration of Elizabeth Kipp, Chairperson of the Tribal
Council of the Big Sandy Band of Western Mono Indians (February 11,
2022) (``Kipp Declaration''), ``The Public Domain Allotment of Mary
McCabe and the Big Sandy Rancheria: A Preliminary Historical
Report,'' G. Russell Overton (February 25, 2022) (``Overton
Report''), and ``Tribal Jurisdiction over McCabe Allotment,''
Peebles Kidder Bergin & Robinson, LLP (February 25, 2022).
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On September 6, 2006, the Office of General Counsel opined that the
McCabe Allotment qualified as Indian lands eligible for gaming by the
Tribe. At that time, the McCabe Allotment was held in trust by the
United States for the benefit of Big Sandy Rancheria tribal member
Sherrill Anne Esteves. Ms. Esteves passed away on June 18, 2019,
[[Page 38779]]
and pursuant to a decision of the Probate Hearings Division of the
Department of the Interior's Office of Hearings and Appeals, all of her
interest in the land will pass to her daughter Carolyn Lee.\2\ The
Tribe therefore requests our opinion as to whether the McCabe Allotment
continues to qualify as Indian lands eligible for gaming by the Tribe
as currently held for the beneficial interest of the estate, as
potentially held for the beneficial interest of Big Sandy Rancheria
tribal member Carolyn Lee, and as potentially held for the beneficial
interest of the Tribe should Carolyn Lee and the Tribe complete a
trust-to-trust transfer to the Tribe. After reviewing the status of the
McCabe Allotment and the effect of these potential transfers of
beneficial interest, we have determined that under each scenario the
land continues to qualify as Indian lands under IGRA on which the Tribe
may lawfully conduct gaming. The Department of the Interior Solicitor's
Office has reviewed this legal opinion and concurs.
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\2\ ``In the Matter of the Estate of: Sherrill Anne Esteves,''
Decision, Probate T000169570 (formerly P0001695701P) (April 22,
2022). The Decision is final unless a petition for rehearing is
timely filed within 30 days.
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Background
The McCabe Allotment was originally allotted out of the public
domain to Mary McCabe, a ``Mono Indian,'' in 1920 and immediately
placed into trust. The McCabe Allotment is currently held in trust by
the United States for the benefit of the estate of tribal member
Sherrill Anne Esteves. The original heirs to the estate were Big Sandy
Rancheria tribal member Carolyn Lee and Lone Pine Paiute-Shoshone
tribal member Edward Esteves. The decision concluding the probate
process determined that Edward Esteves renounced his interest in the
parcel in favor of Carolyn Lee. The Tribe has further indicated that
Carolyn Lee and the Tribe intend to complete a trust-to-trust transfer
which would cause the McCabe Allotment to be held in trust by the
United States solely for the benefit of the Tribe.
Applicable Law
IGRA defines ``Indian lands'' as:
(A) all lands within the limits of any Indian reservation; and
(B) any lands title to which is either held in trust by the United
States for the benefit of any Indian tribe or individual or held by any
Indian tribe or individual subject to restriction by the United States
against alienation and over which an Indian tribe exercises
governmental power.\3\
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\3\ 25 U.S.C. 2703(4).
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NIGC regulations further clarify the definition, providing that:
Indian lands means:
(a) Land within the limits of an Indian reservation; or
(b) Land over which an Indian tribe exercises governmental power
and that is either--
(1) Held in trust by the United States for the benefit of any
Indian tribe or individual; or
(2) Held by an Indian tribe or individual subject to restriction by
the United States against alienation.\4\
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\4\ 25 CFR 502.12.
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Analysis
The McCabe Allotment is not within the Big Sandy Rancheria. It is
currently held in trust for the benefit of the estate of tribal member
Sherrill Anne Esteves. To conduct gaming on trust lands located outside
the exterior boundaries of its reservation, IGRA requires a tribe to
exercise governmental power over those trust lands. Therefore, the
McCabe Allotment constitutes Indian lands if the Tribe exercises
governmental power over it. To exercise governmental power over its
trust lands, a tribe must first possess jurisdiction over those
lands.\5\
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\5\ Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 at
701-703 (1st Cir. 1993) (IGRA requires a threshold showing by tribe
that it possesses jurisdiction over the lands to satisfy the Act's
``having jurisdiction'' prong).
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Jurisdiction
Tribes are presumed to possess jurisdiction within ``Indian
country.'' \6\ Trust land, such as the McCabe Allotment, is ``Indian
country.'' \7\ And, in Opinion of the Solicitor, Sampson Johns
Allotment (September 26, 1996), Interior opined that a tribe would
possess jurisdiction over a tribal member's allotment unless the ``land
in question is not owned or occupied by tribal members and is far
removed from the tribal community.''
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\6\ ``Indian country'' is defined in 18 U.S.C. 1151 as: ``(a)
all land within the limits of any Indian reservation . . . ; (b) all
dependent Indian communities . . . ; and (c) all Indian allotments,
the Indian titles to which have not been extinguished.''
\7\ See United States v. Roberts, 185 F.3d 1125, 1131 (10th Cir.
1999) (``'[r]eservation' status is not dispositive and lands owned
by the federal government in trust for Indian tribes are Indian
Country pursuant to 18 U.S.C. 1151'').
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Here, the McCabe Allotment is held in trust for the estate of
tribal member Sherrill Ann Esteves and is located within 12 miles of
the Tribe's reservation.\8\ The Tribe, therefore, has jurisdiction over
the McCabe Allotment for IGRA gaming purposes.
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\8\ The Tribe has also provided documentation supporting the
conclusion that the heirs (Frank McCabe, Lester McCabe, and Sherrill
Ann Esteves (nee McCabe)) of the original allottee, Mary McCabe,
have ``all identified as Western Mono members of the Big Sandy
Rancheria.'' See Overton Report, p. 31.
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Our conclusion with respect to jurisdiction would not change should
beneficial ownership of the McCabe Allotment transfer to Carolyn Lee or
to the Tribe.
Governmental Power
There are many possible ways and circumstances in which a tribe
might exercise governmental power over its land. For this reason, the
NIGC has not formulated a uniform definition of ``exercise of
governmental power,'' but instead decides whether it is present in each
case, based upon all the circumstances.\9\ As noted by the First
Circuit, the exercise of governmental power is ``not the achievement of
full-fledged self-governance, but merely movement in that direction.''
\10\
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\9\ National Indian Gaming Commission: Definitions under the
Indian Gaming Regulatory Act, 57 FR 12382, 12388 (1992).
\10\ Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah),
853 F.3d 618, 626 (1st Cir. 2017).
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Here, the Tribe's Constitution provides that the Tribe has
jurisdiction over any allotment of a tribal member. The Tribe provides
governmental services to off-reservation Indian allotments owned or
occupied by tribal members including the McCabe Allotment and other
allotments in the surrounding area.\11\ The Tribe requires non-Tribal
visitors, such as contractors, surveyors, and others, to obtain a
permit before entering off-reservation Indian allotments to conduct
work on behalf of the Tribe or a tribal member allottee.\12\ The Tribe
has therefore demonstrated that it exercises governmental power over
the McCabe Allotment.
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\11\ Kipp Declaration, p. 8.
\12\ Kipp Declaration, p. 3.
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Our conclusion with respect to governmental power would not change
should beneficial ownership of the McCabe Allotment transfer to Carolyn
Lee or to the Tribe.
Conclusion
Based upon the foregoing analysis, the statutory language of IGRA,
and NIGC and Interior regulations, the McCabe Allotment as currently
held by the estate of Sherrill Anne Esteves constitutes Indian lands
eligible for gaming by the Tribe under the Indian Gaming Regulatory
Act. Our conclusion with respect to such eligibility for gaming by the
Tribe would not change should the beneficial ownership of the McCabe
Allotment transfer to Carolyn
[[Page 38780]]
Lee or to the Tribe. The Department of the Interior, Office of the
Solicitor concurs with this opinion.
[FR Doc. 2022-13866 Filed 6-28-22; 8:45 am]
BILLING CODE 7565-01-P
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</html>Indexed from Federal Register on June 29, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.