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Consultations underway on Indian gaming land into trust decisions

WASHINGTON – “Off-reservation” gaming, a hot button Indian land issue that flared into prominence as “reservation shopping” during the Bush administration, is back in the spotlight.

The BIA’s Office of Indian Gaming Management is holding consultations around the country this fall on a proposed rule that establishes criteria for implementing Section 20 of the Indian Gaming Regulatory Act – the part of the law that deals with putting land into trust for gaming when the land has been acquired after IGRA was passed on Oct. 17, 1988.

During the Bush era, Indian gaming opponents derisively characterized applications for trust land far from a tribe’s reservation as “reservation shopping” and lobbied long and hard against them.

Larry Echo Hawk, the Assistant Secretary-Indian Affairs, sent out a draft of the proposed revised rule to tribal leaders last month inviting comments, along with a press release announcing the consultation schedule.

“I’m pleased that Indian Affairs is continuing our consultation with tribes,” Echo Hawk said.”It is critical that we work together with tribes to address important issues regarding Indian gaming and sovereignty.”

The schedule of consultations follows a June 18 directive from Interior Secretary Ken Salazar to Echo Hawk, recommending a thorough review of “guidance and regulatory standards” used to make decisions for taking land into trust for gaming purposes.

In his memorandum, Salazar points out the crucial role gaming has played in providing “important economic opportunities for some tribes. Indeed, Congress’ declared policy under IGRA was to provide a basis for gaming by tribes ‘as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.’”

He also reiterates Interior’s authority to take land into trust under IGRA and the Indian Reorganization Act, and reminds the assistant secretary that it is “important that we move forward with processing applications and requests for gaming on Indian lands within the context of objective statutory and regulatory criteria.”

Section 20 of IGRA puts forward a general prohibition against Indian gaming on trust lands acquired after Oct. 17, 1988, and then provides a number of exceptions to the prohibition, including land within or contiguous to a tribe’s existing reservation; land for tribes without reservations; land within the tribe’s last recognized reservation; land claim settlements; initial reservations for newly acknowledged tribes; and restored lands for re-recognized tribes.

Another exception – the most controversial one – is called the Two Part Determination and allows gaming on land acquired after October 1988 if the secretary determines it is in the “best interest” of the tribe and not detrimental to the surrounding community and if the governor of the state concurs with that opinion.

It is not clear from the draft rule how the secretary will determine if an application for land into trust for gaming is in the best interest of the tribe and not detrimental to the community. New language in the draft rule only says the department will “consider all the information” submitted from both sides and does not explicitly indicate if more weight will be given to a tribe’s “best interests.”

But in a recent article called the Obama Administration’s “Path Forward on Indian Gaming Policy” and What it Signals for “Off-reservation” Gaming, scholars Kathryn R. L. Rand and Steven Andrews Light find encouraging signs in Salazar’s memorandum.

“The memorandum is a step toward dismantling the political straw man of widespread ‘off-reservation’ gaming – the threat of a tribal casino on every street corner,” they wrote. “The memorandum recognizes that IGRA’s current controls on off-reservation gaming appear to be effective, if not highly restrictive as only a handful of ‘best interest’ exceptions have been approved in more than two decades. Along with the rest of the memorandum, the appropriate categorization of the ‘two-part’ determination signals the Interior Department’s willingness to consider all (Section 20) exception applications with the most careful attention appropriately placed on applications under the ‘best interests’ exception.”

A governor, however, can effectively veto a land into trust application for gaming simply by not responding to the secretary’s request for concurrence with his decision.

Despite all the heat surrounding “off-reservation” gaming, and failed efforts by some legislators, including Sen. John McCain, R-Ariz., to legislate against it, the Salazar memorandum noted that only five “off-reservation” applications have been approved in the 22 years since IGRA passed. There are currently nine such applications under review.

The consultations will also consider a January 2008 “guidance memorandum” Issued by former AS-IA Dirk Kempthorne.

The controversial “guidance” placed a new hurdle on land into trust applications for gaming – a “commutability” standard under which the applied-for land is to be considered in light of its distance from a nation’s reservation, regardless of whether it is within a nation’s historical territories.

The memo caused an uproar across Indian country, not only because distance isn’t mentioned in IGRA, but also because the guidance effectively amounted to a new regulation that had been promulgated without consultation with the nations, raising memories of the days of federal paternalism and policies to keep Indians on reservations.

Another hopeful sign in Salazar’s memorandum, according to Rand and Andrews, is his repeated emphasis on the importance of meaningful “government-to-government” consultation.

The consultation meetings with tribal leaders on the land into trust process began Sept. 23 in Spokane and will continue through Nov. 18 across the country. A shedule of consultations is available at