Five or more off-reservation Indian gaming projects approved by the Obama administration’s Department of the Interior in its waning hours have drawn scrutiny from Rep. Rob Bishop (R-UT), chairman of the House Natural Resources Committee.
The congressman is calling for current Interior leadership to “freeze or suspend” the decisions “until each has been thoroughly examined and resolved on its merits…,” according to a February 15 letter he sent to James Cason, the acting deputy secretary of Interior.
“While the full range of troubling determinations and actions are not yet known, Committee staff has identified several examples of last-minute approvals of Indian casinos located outside existing reservations,” Bishop wrote, asking that legal opinions supporting “any action should be scrutinized as well because of the precedent [they] may set for future actions.
“In one case, Acting Assistant Secretary for Indian Affairs Michael S. Black approved a fee-to-trust application for a casino even though his immediate predecessor, then Deputy Assistant Secretary Lawrence Roberts, was aware of allegations of conflicts-of-interest involving Bureau of Indian Affairs’ (BIA) processing of the application,” Bishop wrote. “In another case, a decision was made over the objection of other Indian tribes.”
Interior has not responded to requests for comment on whether Cason has replied to the letter; many in Indian country remember Cason for his work against tribal federal recognition and against off-reservation land acquisitions during the George W. Bush administration while he served at the department in various capacities. Bishop’s office has also not said whether he has received a reply.
Jody Cummings, former deputy solicitor of Indian Affairs during the Obama administration, said Bishop's request is not necessarily surprising, particularly given that it relates to off-reservation acquisitions, which have long been controversial.
“I would expect that the road to approval for off-reservation gaming applications will be that much more difficult should President Trump's Indian affairs team follow the kind of approach articulated in the Artman guidance adopted during the Bush administration,” Cummings said, referring to rules approved by Carl Artman, the former Assistant Secretary for Indian Affairs who served under President George W. Bush.
Tribal gaming lawyers and lobbyists who are aware of the off-reservation approvals in question say there were at least five to seven of them, but paperwork on all the decisions has been hard to come by. Notices of the approvals were not online as of publication time in the usual locations that the Obama administration in the recent past posted its Indian gaming-related decisions.
According to lawyers who have reviewed some of the off-reservation approvals, they related to the Chickasaw, the Cherokee, the Shawnee, the Wilton Rancheria and a general Indian land acquisition opinion (non-gaming) involving the Coquille Indian Tribe. The Chickasaw Nation, which has received several trust land acquisitions over the years, is already politically connected to the Trump administration with Ben Keel, nephew of Jefferson Keel, a long-time Chickasaw leader and former president of the National Congress of American Indians, now serving as special assistant to the Interior secretary; the younger Keel also served as the Oklahoma state director for the Trump campaign.
Regarding the casino Bishop says Black approved that was previously of apparent concern to Roberts, the congressman cited a February 10 letter from Black to Jena MacLean, a lawyer with Perkins Coie, as evidence of the approval. Perkins Coie is known to generally oppose tribal land acquisitions in court, and Bishop’s letter appears to confirm that the firm shared information with him, as it cites the MacLean letter in a footnote. MacLean did not respond to a request for comment.
On a separate note related to Black, he announced at the Federal Indian Law Bar Conference, held the week of April 3 in Arizona, that all future off-reservation Indian land acquisition applications will now be directed to the central Interior Indian Affairs office, which is a change in department policy. Previously, all gaming decisions were referred to the central office, but non-gaming ones were handled by regional Interior officials.
“I see the primary impact of the change as potentially creating a bottleneck for trust application decisions given that all the off-reservation applications – regardless of whether they are gaming-related – would ostensibly come from one decisionmaker,” Cummings said. “My sense is that this change may be this administration slowing things a bit to get a better sense as to where fee-to-trust will land in its list of Indian policy priorities, and whether resources that would be devoted to making such decisions are needed elsewhere. While homeland restoration was a huge priority for our team, that may not be the case for the Trump administration.”
That Bishop is raising alarm bells about off-reservation land acquisitions at a time when Cason has returned to power and while changes are obviously afoot at Interior on this front is suspicious in tribal circles, as is Bishop’s own recent past on tribal issues. He recently aggravated many tribes with his legislation called the Public Lands Initiative, co-sponsored by Rep. Jason Chaffetz (R-UT); the legislation was aimed at transferring 100,000 acres of the Ute Tribe of Utah’s Uncompahgre Reservation to the state of Utah for fossil fuel development.
Bishop’s bill, which worried tribes nationwide about the potential ability of Congress to arbitrarily remove their lands, died in the House in December, failing to gain traction in the chamber and receiving no sponsors in the Senate. Tribes have generally been anxious about the privatization of Indian lands by the Trump administration after Rep. Markwayne Mullin (R-OK), a Cherokee citizen who served as chairman of the Native American Coalition for Trump, muddied the waters with confusing quotes on the issue to Reuters in December, which he has since said were distorted.
Bishop has recently tried to curry favor with tribes, assuring them that the Indian Health Care Improvement Act would not be repealed as part of any healthcare overhaul by the Trump administration and the current Republican Congress.
But the congressman has now made clear that he has major problems with off-reservation gaming, joining a small but vocal group of Congress members on both sides of the aisle, including Sens. John McCain (R-AZ) and Dianne Feinstein (D-CA). The Senate has not lately approached this issue, but it remains to be seen if Bishop’s exploration will pique the interest of Sen. John Hoeven (R-ND), the relatively new chair of the Senate Committee on Indian Affairs.
To date, Interior Secretary Ryan Zinke has not stated an opinion on off-reservation gaming, and the Trump administration has not offered a specific stance either. The president has not nominated a new Assistant Secretary for Indian Affairs yet, but he is close – with three or four finalists currently being interviewed – according to knowledgeable sources. When a final selection occurs, more about the administration’s off-reservation land acquisition policy can be expected to become clearer.
Indian gaming experts note that very few off-reservation gaming applications were approved during the whole of the Obama administration (and very few have been approved in general since Indian gaming became regulated by the federal government), so it is not surprising that the recent batch of approvals at the tail end of Obama’s second term is causing scrutiny.
There are two camps of thought related to the decisions of concern to Bishop: that the Obama administration was smart and just to make the approvals since off-reservation gaming applications always tend to stall and are usually controversial; others believe it was dangerous because it opens new analysis under an unknown administration and a Congress that already has plenty of issues with Indian gaming.