[Federal Register Volume 87, Number 124 (Wednesday, June 29, 2022)]
[Notices]
[Pages 38778-38780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13866]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission


Notice of Approved Class III Tribal Gaming Ordinance

AGENCY: National Indian Gaming Commission.

ACTION: Notice.

-----------------------------------------------------------------------

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 (www.nigc.gov) 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 (www.nigc.gov) 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 [email protected].

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \3\ 25 U.S.C. 2703(4).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \4\ 25 CFR 502.12.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.''
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \11\ Kipp Declaration, p. 8.
    \12\ Kipp Declaration, p. 3.
---------------------------------------------------------------------------

    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