When Kathryn was in Kansas last week presenting on the future of Indian gaming, the question was posed about the impact of the U.S. Supreme Court's 2005 decision in City of Sherrill v. Oneida Indian Nation.  And a good question it was, as the case added a new wrinkle to determining whether land qualifies as "Indian lands" under IGRA. 

Under IGRA, Class II and Class III gaming may be conducted by an "Indian tribe" on "Indian lands."  The definition of "Indian lands" is specific to tribal gaming.  In other areas of federal Indian law, the term is "Indian country" -- but not in IGRA.  Reservation land generally easily meets the "Indian lands" requirement, but for non-reservation land, a tribe must show that it exercises governmental power over the land.

Courts have looked at the exercise of governmental power in two steps: First, does the tribe have jurisdiction over the land in question? Does it have authority to exercise governmental power on the land?  And second, does the tribe actually exercise governmental power on the land?

In City of Sherrill, the Oneida Indian Nation of New York purchased land within Sherrill's city limits.  The tribe had a claim to the land, as it had been reservation land until the state unlawfully acquired it in the early 19th century.  After the tribe purchased the land, it resisted paying taxes on it, even though it was within city limits.  The tribe's argument was that because it had essentially gotten back part of its original reservation, the tribe now had governmental authority over the land.  The Court disagreed, stating that the tribe could not "unilaterally revive its ancient sovereignty" over the land.

Though the case didn't involve Indian gaming, it seemed to suggest that the land in question would not qualify as Indian lands, because the tribe could not exercise governmental authority over the land.  For tribes with factually similar land purchases who hope to open gaming operations on the land, City of Sherrill could be an obstacle.

Practically, though, IGRA's "Indian lands" requirement typically involves either reservation or trust lands -- and for land held in trust by the federal government, the state should not have any governmental authority over the land.

Word is that the NIGC has asked some tribes about the relevance of City of Sherrill to their lands, so stay tuned . . . .