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BIA hears comments on land-to-trust draft

MOHEGAN, Conn. – A BIA official came to Connecticut to hear comments on draft regulations for tribal trust lands, and left with an earful.

Interior Department’s George Skibine, Acting Deputy Secretary for Policy and Economic Development for Indian Affairs, took comments, suggestions and objections from tribal members, town officials, attorneys and others during a consultation at the Mohegan Sun Casino on March 30.

The draft regulations aim to establish standards for lands to be taken into trust and used for gaming. The Indian Gaming Regulatory Act says lands acquired after the act was passed in 1988 generally cannot be used for gaming. Four exceptions apply to newly recognized tribes, restored tribes, tribes located in Oklahoma with former reservations and tribes with land claim settlements. Each of the exceptions contains a number of further requirements.

The Indian agency has around 13 applications pending for land into trust for gaming. Some of them have been pending for more than six years, Skibine said.

“Since 1988, only three tribes have completed the process, so the application is an extremely slow process,” Skibine said.

Participants at the consultation had various perspectives, but a proposal to require that more than 50 percent of a tribe’s members live within 50 miles of an initial reservation drew several objections.

Cowlitz Tribal Council member Phil Harjo said the proposed requirement is both difficult and inappropriate.

The Cowlitz Tribe of Washington state is a newly recognized tribe with no reservation. The tribe has asked the BIA to take a 152-acre parcel into trust for the tribe’s proposed casino. The land is about 15 minutes north of Portland, Ore.

Harjo said the Cowlitz were fortunate in 1830 not to be subjected to the Indian Removal Act because their area of Washington state was under British control at the time. But in 1868, the tribe was forcibly removed from their lands.

“Some were shot and killed, others were forced at gun point to leave this area, others were loaded on steamships and taken up the Columbia River. So requiring the Cowlitz to show 50 percent of their members within 50 miles of an area of their homeland is extremely offensive to Cowlitz members. And 1.6 million acres the Cowlitz had control over, they were denied without compensation in 1868. So when you draft these regulations, look at the Cowlitz. It’s unfair. They’re not there because they were forcibly removed by the U.S. government,” Harjo said.

Attorney Judith Shapiro, who has represented dozens of tribes over the past two decades, said it is unfair to change the rules now.

“Tribes that have come through the recognition process have already been through proof of a number of things. What they did not have to prove is the 50-mile radius. It’s one of the things they have an option to use as evidence [for federal recognition], but to turn around and require it as a condition at this point I think is particularly brutal,” Shapiro said.

Brian Patterson, Bear Clan representative of the Oneida Nation of New York (The Oneida Nation owns Four Directions Media, parent company of Indian Country Today), opened his comments with thanks for the opportunity to engage in the consultation process with the Interior Department.

“We’re pleased to recognize the federal government’s role in the government-to-government relationship with the first people of this country as we enjoy a unique trust relationship that is firmly rooted through treaties and the supreme law of the land and firmly rooted though legal cases,” Patterson said.

Patterson urged the agency to do away with the practice of allowing tribes, supported by wealthy non-Indian developers, to cross state lines to build casinos far from their reservations.

“It has reached a point where even Congress is actively pursuing legislation to prohibit so-called reservation shopping. Though the Oneida Nation would prefer Congress not to amend IGRA, in order to prevent that [from] happening, the department needs to enact common sense and clear regulations, which provide Indian country and policy-makers in Congress with the comfort that egregious reservation shopping proposals will not be approved by the secretary,” Patterson said.

Patterson said out-of-state tribes frequently agree to submit to state and local demands, such as tax agreements, thereby creating bidding wars for the most desirable casino lands and undermining the sovereignty of in-state tribes.

The Oneida Nation faces such conditions with the Oklahoma-based Seneca-Cayuga and the Wisconsin-based Oneida claiming the right to operate a casino in New York because their ancestors once lived there.

“A gaming proposal involving a tribe whose people are located significantly far from the reservation will likely pose a problem to the surrounding community,” Patterson said.

North Stonington First Selectman Nick Mullane, whose town abuts the Mashantucket Pequot reservation and Foxwoods Casino, said communities need to have more input over casino expansion and development. He cited a proposal by the Mashantucket Pequots to expand a two-lane highway leading to their casino into a four-lane highway.

The system is “dysfunctional,” Mullane said.

“There needs to be more control by the BIA if a casino is going to expand. We went to the state traffic control and said ‘We don’t want it, we don’t like it,’ and it was disregarded; and I want to announce to you that the system in regard to impacts to the surrounding communities is not working,” Mullane said.

With the new regulations, “local communities will have a huge say in whether a casino is going to occur. It’s practically impossible for a project to get set up unless there is support from the communities,” Skibine said.

But those regulations apply only to off-reservation lands that are taken into trust for gaming under the exceptions of the IGRA and not to casinos on reservations, Skibine said.

“If there is a reservation casino, then the role of the bureau is going to be much less involved because the tribe can pretty much go ahead and proceed without BIA involvement,” Skibine said.

Skibine assured the participants that all of their comments will be taken into consideration before the regulations are finalized, which he hoped would happen by the end of summer.

The consultation meeting was one of four that will take place around the country during April.