WASHINGTON - Just over two years after it began to refine the criteria for transferring tribal lands acquired after enactment of the Indian Gaming Regulatory Act into trust status, the BIA on May 20 unveiled regulations that maintain the status quo in at least one respect - that is, tribal gaming on so-called ''after-acquired'' lands will remain a difficult proposition.
That it will now be more difficult is the sum of several major changes in the implementation of IGRA's Section 20, according to Michael Anderson of AndersonTuell LLP in Washington. ''The new rules unduly restrict the broad terms of the Indian Gaming Regulatory Act, increasing the hurdles a tribe has to overcome to participate in Indian gaming, and undermining Congress' broad goals of supporting tribal social and economic development through IGRA,'' Anderson wrote in an e-mail.
Numerous other changes are more in the nature of necessary technical cleanups to the complex gaming-land-into-trust process.
Once transferred into trust status, land acquired by tribes comes under the governmental authority of tribes. Tribal governmental profits, from gaming and other enterprises, are tax-free. But such land also departs the tax rolls of local and state governments, often raising objections on that count; and when off-reservation gaming on ''after-acquired'' lands is a proposed use of the property, local opinion has ranged from a welcoming embrace to inflammatory opposition.
In the 109th Congress of 2005 and 2006, local opposition to off-reservation gaming proposals had gotten the ear of a majority-Republican Congress. Section 20 of IGRA provides exceptions to the law's general prohibition of gaming on tribal lands acquired after its Oct. 17, 1988, passage. Opponents of off-reservation gaming testified time and again that Section 20 hadn't worked and had to be scrapped in favor of new legislation amending IGRA. The legislation failed in the House of Representatives in September 2006, but the BIA's scrutiny of the implementing regulations went on, ultimately resulting in the final regulations of May 20.
Mark Van Norman, executive director of the National Indian Gaming Association, said that background shouldn't be forgotten. ''The regulations arose in the context of a legislative effort that would have wiped out Section 20'' - and with it, by the lights of the legislation that failed, any realistic possibility of independent, tribally controlled off-reservation gaming.
''The [new] regulations may have pitfalls. But at least they leave in place some sort of a process.''
Van Norman said he was especially disappointed by a couple of items in the new regulations. Under the new regulations, tribes must meet a commutable distance standard for off-reservation, gaming-related land acquisitions; though the standard has never been required before, tribes have never been consulted about it. In addition, despite plenty of license, in the Constitution and elsewhere, for distinguishing tribal governments from local ones, they are treated as equals on the crucial issue of proximity - sites proposed as an ''initial reservation'' of a restored tribe may be eligible for gaming only if they are within a 25-mile radius of existing tribal government facilities (down from 50), and the local ''surrounding community'' that has to be consulted on casino impacts will now be within a 25-mile radius (up from 10).
The change in acceptable radius, combined with other hurdles applied in the regulations against tribes seeking an initial reservation exception, are new and dubious as Anderson described them. ''Obviously none of these requirements can be found within the four corners of IGRA.''
The new regulations create a narrow test for gaming by restored tribes, he said, accepting only those tribes restored through the federal acknowledgment process, through congressional legislation, or through judicial stipulation. They leave out restoration, through direct action of the secretary of the Interior Department, of tribes terminated by administrative error: a channel resorted to four times during President Clinton's administration, Anderson said.
In the e-mail, he added: ''This section [292.10 of the new regulations] discriminates against certain tribes based on how they were restored to federal recognition.''
On the issue of tribal recognition through judicial determination, Anderson pointed out, a comment on the rules contended that a ''judicial determination'' should be sufficient in itself, whether or not it satisfies the criteria of the regulations. Rejecting the recommendation, the BIA responds, ''At issue is the government-to-government relationship between the U.S. and the tribe, and the U.S. must be a party in order to be bound by the court's decision.''
The sentence breaks new ground in Anderson's experience. Under the independent, three-branch theory that has guided U.S. governance, the executive branch must heed the judicial branch, he said, pointing to the foundations of federal Indian law in the early 19th century decisions of Chief Justice John Marshall. The most famous of them, Worcester v. Georgia, in 1832, ruled that the state of Georgia could not enforce its laws on Cherokee lands, potentially foiling the federal policy of Cherokee removal. Though the United States was not a party to the case, President Andrew Jackson is said to have remarked, in folk memory if not with perfect certainty in fact, ''John Marshall has made his decision, now let him enforce it'' - a reminder that force can always trump the courts where the rule of law is not sufficiently respected.
''I guess we're back to that,'' Anderson remarked.
The process that produced the new regulations was flawed, he added, in that the commutable distance standard, criticized by Van Norman, should have been subject to another round of consultation with tribes.