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BIA gives states more time to comment on gaming rule

WASHINGTON ? Tribal gaming on recently acquired trust land is open for public debate again, in the latest reversal of a Clinton administration decision.

After signaling his intentions in early December, BIA chief Neal McCaleb has officially extended the comment period on a flashpoint of controversy between tribes and state and local governments. The proposed regulations address tribal gaming on trust land acquired in the past 14 years. The Clinton administration initially closed the comment period in November, 2000. McCaleb has decided to extend it, citing ongoing concerns from interested parties, including state and local governments.

"Six comments were received after Nov. 13, 2000," McCaleb said. "Several of these comments raised substantive issues that may result in modification of the proposed rule. The comment period is reopened to allow consideration of the comments received after Nov. 13, 2000, and to allow additional time for comment on the proposed rule."

The BIA first published the proposed regulations in September 2000 under the heading "Gaming on Trust Land Acquired After October 17, 1988." McCaleb, as Assistant Secretary for Indian Affairs, now has the authority to approve gaming operations on land taken into trust after October 1988, but must do so only after weighing the interests of a tribe versus the impact on the local non-Indian community. The proposed rule would provide some guidelines for making that determination.

By placing land into trust a tribe regains control over land once owned by the federal government, or state and local governments. Sate and local governments have complained that the land is removed from tax rolls and that state and local zoning laws and regulations no longer apply. The expansion of tribal gaming operations has increased tensions, especially on lands not located next to current tribal boundaries.

While the Bush administration has expressed some support for restoring the tribal land base through the land into trust process, they take seriously the concerns of state and local communities. Last year, McCaleb withdrew land into trust regulations developed under the Clinton administration and announced that Interior was scrapping them. He said the Department needed to consider local non-Indian concerns with trust acquisition.

Last year, the Department of Interior considered only one application to take land into trust, coming from three tribes in Wisconsin seeking to build a build a casino. The application was finally approved by Interior after more than five years of controversy and court battles between tribes, the government, and the community of Hudson, Wis.

The initial application was submitted in 1994 by the Lac Courte Oreilles Band of Lake Superior Chippewa, the Sokaogoan Chippewa, and the Red Cliff Band of Lake Superior Chippewa. The tribes had planned to convert a dog track facility in Hudson, located just across the border from Minnesota, for other Class III gaming activities.

The Department of Interior rejected the application in 1995, saying that the record could not show that the surrounding community would not be negatively impacted. Following that decision, the tribes filed suit in U.S. District Court in Wisconsin, claiming that competing tribes in Minnesota had contributed nearly half a million dollars to President Clinton and the Democratic National Committee to influence then Secretary of Interior Bruce Babbitt's decision.

The case resulted in an investigation and a settlement. Secretary Babbitt was cleared by an independent counsel of charges of misinforming Congress and an agreement was reached between Interior and the tribes in Wisconsin. In the 1999 settlement, the Assistant Secretary for Indian Affairs agreed to resume consideration of the tribes' application based on the administrative record already developed.

According to a BIA report, the decision to approve the application was based on the administrative record and additional information provided by the tribes, including a more thorough assessment of the proposed facility and projected benefits, income, and employment, as well as the projected impact on neighboring tribes and surrounding communities. Also, the city of Hudson, Wis., whose Common Council had passed a resolution opposing the casino in 1995, had since clarified its position as being in favor of the transfer, but not the casino. Some tribes in Minnesota also still had some concerns and wondered why the application was ultimately approved.

While the application was approved by the federal government, it must still be approved by the state governor. Scott McCallum, the Republican governor of Wisconsin, refused and said that he will not sign any measure which expands gaming in Wisconsin. McCallum also cited continued local opposition.

The tribes in Wisconsin say the project would benefit the community and help boost a struggling local economy. The proposed casino was to include 2,500 slot machines and 45 gaming tables.

Currently, Assistant Secretary McCaleb is considering applications for several off-reservation casinos in New York, including a Mohawk proposal for the fading Catskills resort area. However, all of the proposed projects are supported by New York Governor George Pataki.

Under the Federal Register notice of the new extension, two different dates are given as a deadline for comments: Feb. 25 and March 27.