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Guidance on land into trust sparks legal challenge

WASHINGTON - The Interior Department has issued guidelines for placing off-reservation land into trust status for gaming purposes, disappointing 22 tribes and spurring an immediate lawsuit from the St. Regis Mohawk Tribe.

Off-reservation land held in trust falls under the governing authority of tribes, subject to federal oversight from Interior. By virtue of their status as governments, tribes can then establish casinos on the trust land. Off-reservation gaming has been controversial from coast to coast, but congressional testimony has established that off-reservation gaming has been approved in only three instances since enactment of the Indian Gaming Regulatory Act of 1988.

Other lawsuits are likely to follow, according to attorney Virginia ;'Ginny'' Boylan of the Washington law firm Drinker, Biddle & Reath. Boylan, who along with colleagues at her firm has tribal clients seeking to place off-reservation land in trust status, termed the so-called ''Guidance'' of early January ''probably illegal and with racist overtones.''

''They're trying to put a face on something they know may be illegal,'' she said. ''They said Congress did not mean for tribes to have casinos off-reservation. If that's what they meant, Congress wouldn't have included Section 20 in IGRA.''

Boylan was senior counsel to the Senate Committee on Indian Affairs while IGRA was advancing through the legislative process. ''I had the staff responsibility for that piece of legislation.''

Congress did not mean that any tribe should be able to ''willy-nilly'' place off-reservation land in trust for gaming purposes, she said. But it left open the possibility through Section 20, which establishes processes for doing so. ''And we shouldn't foreclose that opportunity.''

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The Interior land into trust guidance focuses on the Interior secretary's authority for taking off-reservation land into trust under the Indian Reorganization Act of 1934 and an implementing regulation, 25 Code of Federal Regulations Part 151. CFR Part 151 directs the secretary of Interior, currently Dirk Kempthorne, to consider two of its provisions commensurately as the distance increases between an established reservation and the tribe's intended trust acquisition. Greater scrutiny must then be directed to the tribal justification of benefits, and to the concerns of state governments about regulatory jurisdiction and revenue lost from property taxes and other tax assessments once the land is in trust.

Part 151 does not elaborate on its directives to the Interior secretary, according to an Interior release, leading the department to provide specificity in the guidance. It calls for specific questions in the case of lands exceeding ''commutable distance'' from a reservation, ''because of the impact such a distant acquisition may or may not have on life on the reservation.'' In addition, ''The guidance emphasizes that as the distance from the reservation increases, greater weight should be given to state and local concerns, including jurisdictional problems and potential conflicts of land use and the removal of the land from the tax rolls.''

More than 50 years after the secretarial authorities found in Part 151 became codified, Congress passed IGRA and its Section 20. The secretary of Interior is now saying Section 20 doesn't matter, Boylan said. ''You can't write a statute out of existence and that's what they're doing. ... It's an attitude,'' she added, noting that Kempthorne opposed off-reservation gaming as a former governor of Idaho. ''It's not reality.''

Tribes have spent millions upon millions of dollars ''work[ing] through a process that was in place'' under Section 20 standards, Boylan said. Justice demands that if the guidance carries weight at all, ''it should be prospective only,'' she said. ''It can't be retroactive because it's illegal, I think. It's probably illegal because it doesn't follow the rule-making process.''

Boylan characterized the guidance as racist because it will limit Indians to reservations under the ''commutable distance'' standard, she said. She considers the standard misplaced in finding, as it did in some of the 22 cases decided by light of the guidance, that the employment of tribal members at distant casinos could damage life on the reservation. Tribes own the casinos and in all cases, she said, they will use them to improve life on the reservation.

The BIA, Interior's subordinate agency for Indian affairs, could not be reached for comment.

Of the 22 letters issued in light of the new guidance, 11 notified tribes that Interior will not exercise its discretion to take property into trust. Eleven other tribes learned that their land into trust applications cannot be acted on now due to incomplete information. Interior maintains that 14 of these 22 tribes applied to obtain trust status for land more than 100 miles from the resident reservation, ''with some more than 1,000 miles from the reservation.''