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08/20/2003 18:36 505474n770 ELLEN R. KEMPER, ESQ PAGE 02 K-1ELLEN R. KEMPER, ESQUIRE 2300 W. Alameda, Unit B1 Santa Fe, NM 87507-9656 ME Admitted to practice in New Mexico, Arizona, Maryiand,Washington, DC and the Pascua Yaqui Reservation Telephone: (505) 474-0550 Fax: (505) 474-0770 Email: ekemper@nets.com Mr.Michael Rein Rein&Rein 715 14'°Street Modesto, CA 95354 VIA FACSIMILE August 20, 2003 Dear Mr. Rein, Thank you for asking me to offer guidance to your client Native Directions,Inc. (NDI) in its effort to expand its treatment services on 40+ acres near its present location. As you know,I've worked in Indian Country since 1980. Since that time I've worked with tribes nationwide and my current focus is the health program office of the Pascua Yaqui"Tribe in Tucson. I know the statistics regarding Native Americans and'substance abuse and I am well aware that rehabilitation is only Possible with culturally sensitive treatment. The purpose of this memo is to address the issue of whether the land developed by Native Directions,Inc. could be deeded to an Indian tribe for gambling purposes. A gambling establishment could only be operated on trust land;that is,land owned by the federal government, held in trust for the benefit of an identified tribe. I understand that NDI has been in operation for about thirty years and has not expressed any intention to deed any of its properties to an Indian tribe or other entity. You mentioned that NDI would attach to any land conveyance permanent recorded deed restrictions prohibiting the land from being put into trust or used for gambling purposes. You have asked me to explore the worst case scenario: if the recorded deed restrictions somehow are held to be invalid or unenforceable and NDI deeded its property to an Indian tribe (you have advised me that both are highly unlikely) what would it take for a tribe to transfer the land into trust status for the purpose of establishing a gambling enterprise. The process of converting fee land to tribal trust status is not easy. Additional requirements exist if the land use is for gambling. Tribes have two options: 1) Successfully complete the administrative process regulated by the Bureau of Indian Affairs(BIA)or 2)lobby Congress to enact a law which mandates that the Department of Interior(DOI)transfer land into trust status. The land-into-trust administrative procedure is found at 25 CFR Part 151. That regulation cites over 40 separate statutory authorities to which it applies. The procedure involves approval from the Bureau of Indian Affairs and it begins at the local level. A tribe must approach its agency office, or regional office in some instances, for approval. The BIA office must conduct an environmental review,a title check,and consult with tribal and local governments. Also,the BIA office will consult with a field solicitor from DOI's Office of Solicitor. The land-into-trust regulations require that the DOI determine that the acquisition is for the benefit of the tribe in order to establish trust status. The factors considered are: 1) Statutory authority for the acquisition.2)The need for additional land.3)The intended use of the land. 4) For an individual's acquisition, the amount of trust status land owned by that individual and the degree to 8 (1110_In-OnnI PC.Iamm TCI Tn1 n'T11 0 =Thl 'naG -nnp P=v Q%