The Second of Two New "Indian Lands" Opinions by NIGC

On May 19, the NIGC, through its acting general counsel, issued two opinions on whether particular land satisfied IGRA's "Indian land" requirement, so that the tribe could conduct gaming on the land.

We discussed the first opinion, concerning the Poarch Band of Creek Indians, in our last post. The second opinion concerned the Fort Sill Apache Tribe's plans to open a Class II operation on trust lands in New Mexico. Here, too, section 2719 applied, as the land was acquired by the Tribe in 1998. The Tribe argued that one of three exceptions to IGRA's general prohibition against gaming on newly acquired lands should apply: last recognized reservation, restored lands, and/or initial reservation.

As for the last recognized reservation exception under section 2719(a)(2)(B), the NIGC concluded that the Tribe is not "presently located" in New Mexico and that the Tribe failed to provide sufficient evidence that the land was located within the boundaries of its last recognized reservation. The restored lands exception (section 2719(b)(1)(B)(iii)) did not apply here, as there was insufficient evidence that the Tribe's tribal status was "restored," and that the land in question was part of a "restoration of lands." Finally, the initial reservation exception (section 2719(b)(1)(B)(ii)) did not apply, as the BIA provided information that although the land was coded as "reservation" land, it had not yet determined whether to proclaim the trust land in question as a reservation. Further, the initial reservation exception is limited to tribal groups acknowledged through the administrative process.

Both opinions are available through the NIGC's website, here.