WASHINGTON - The new regulations implementing Section 20 of the Indian Gaming Regulatory Act contain a so-called ''grandfather'' clause, permitting tribes already in the midst of the marathon process of obtaining new trust lands for gaming purposes to go forward without hindrance from the newfangled standards - provided the Department of the Interior or the National Indian Gaming Commission has issued a written opinion in their case prior to the May 12 effective date of the regulations.
That's the good news, said Michael Anderson, of the law firm AndersonTuell LLP in Washington.
But there's bad news too, in his view. A minor problem is the retention by Interior and the NIGC, in opinions that activate the Section 20 grandfather clause for land-into-trust applications prior to May 12, of ''full discretion to qualify, withdraw or modify such opinions.''
The language adds an element of risk, Anderson said, the day another regime with another view might come along. But no opinion is final, he added, and the risk is relatively minor.
The burning issue of the grandfather clause for him is its limited scope. ''They didn't preserve any NEPA milestones,'' he said, referring to the compliance with National Environmental Policy Act standards that is required for transferring tribal land into trust status.
NEPA's environmental impact statement studies, hearings, records of opinion pending - none are ''grandfathered in,'' as the saying goes. The new regulations do allow exceptions in such cases, and many of the studies and public records might simply transfer over to the new process if they were not grandfathered in under the old, Anderson explained.
But an EIS is a major undertaking. The BIA provides a comment on NEPA under the new Section 20 regulations: ''Depending on the NEPA document required, preparation is expected to cost between 4 and 20 man-years, or more, and the BIA will expend one to three man-years reviewing and supplementing the studies for each application.'' The cost of preparing NEPA studies will be ''primarily a cost of the tribe,'' the BIA states.
An EIS anywhere near completion is a case in point. ''By that time, you're talking years and a couple million dollars,'' Anderson said. Given cost factors like that, some NEPA milestones could have been grandfathered in, saving tribes time, expense and certain trouble. ''They probably thought a grandfather clause that broad would have swallowed the rule.''
But he cited a precedent from an unlikely source. In 2006, Sen. John McCain, R-Ariz., the current presumptive GOP nominee for president, offered a bill to modify IGRA that many tribes opposed. But its grandfathering clause got better marks for its broad scope and its ''date certain.'' Anderson considers it the proper model.
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, like the profits of other governments. But such land also departs the tax rolls of local and state governments, and local responses to Indian gaming have ranged from a welcoming embrace to inflammatory opposition. The new regulations implementing Section 20 derive from the context of disputes aired in the 109th Congress of 2005 and 2006, according to executive director Mark Van Norman of the National Indian Gaming Association.