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McCain is Leading a Three-Pronged Legislative Assault on Land-Into-Trust Applications

Republican legislators in Washington, D.C. have introduced scorched-earth proposals that would make it almost impossible for the Interior Department to take off-reservation land into trust for gaming—or any other purpose. Senators John McCain (R-Arizona) and Jon Kyl (R-Arizona) have introduced a bill in the Senate called the Off–Reservation Land Acquisition Guidance Act. In the House, Representatives Charlie Dent (R-Pennsylvania) and James Lankford (R-Oklahoma) have introduced amendments to H.R. 2584: Department of the Interior, Environment, and Related Agencies Appropriations Act, 2012. Together the proposals form a multipronged attack on the Interior Department’s ability to take off-reservation land into trust for gaming or any other purpose.

The only good news here is that no action was taken on the proposals this month, since both the Senate and House were in recess after the debt-ceiling deal was passed. But opponents are already lining up and Congressman Jim Moran (D-Virginia) was the first to speak out. “These amendments are an assault on Indian country, attacking the land-into-trust mechanism established to ensure that tribes who suffered for centuries at the hand of the U.S. government receive some measure of compensation for their loss,” Moran said. “They should be defeated, and if they come up for a vote this fall I will work to try and stop them.”

The Lankford and Dent amendments to the Interior appropriations bill introduced on July 28 are so potentially devastating to land-into-trust acquisitions that the National Indian Gaming Association (NIGA) sent out an action alert urging members to contact their congressional representatives and tell them to vote “no” on the Lankford proposal. Both amendments would alter the Indian Gaming Regulatory Act (IGRA). The Lankford amendment would restrict all land-into-trust acquisitions by barring the government from increasing the net number of acres of federal land under the jurisdiction of the Department of the Interior. “If adopted, this amendment would immediately halt all land-into-trust applications for Indian tribes,” NIGA says.

The Dent amendment would stop tribes from using land-claim settlements to open casinos. Generally, tribes cannot ask Interior to take land into trust for gaming on land acquired after IGRA was enacted in 1988. But Section 20(b)(1)(B)(i) of IGRA provides a number of exceptions to that rule, including allowing land to be placed into trust as part of a land claim or an initial reservation for newly recognized or restored tribes. The provision has only been used twice—by the Seneca Nation for an off-reservation casino in downtown Buffalo, New York, and by the Wyandotte Nation of Oklahoma for an off-reservation casino in downtown Kansas City, Kansas, according to Dent’s amendment prohibits using any funds from the Interior appropriations bill on Section 20 land-into-trust acquisitions.

Dent apparently only opposes Indian gaming, not commercial gaming and particularly not commercial gaming in his home state. The Pennsylvania Gaming Control Board reported in a May 9, 2011, press release that Pennsylvania is the number-one state in the amount of tax revenues generated by commercial casinos with slot machines and table games. The American Gaming Association (AGA) reported in its annual “State of the States” survey that slot machines and table games at Pennsylvania’s 10 operating casinos generated $1.33 billion in tax revenue in 2010, an 18.8 percent increase from the previous year. That amount is also $450 million more than the second-place state, Indiana, AGA said.

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Tom Rodgers, a Blackfeet lobbyist and founder of Carlyle Consulting, found a model for Dent’s apparent obliviousness to commercial gaming in his state. “Given that the state of Pennsylvania in just three years has become the number-one state in the generation of commercial casino tax revenue, perhaps Representative Charlie Dent can star as a modern-day Claude Rains in the remake of Casablanca,” Rodgers wrote in an e-mail statement. “I know he must be shocked, shocked to find out that gambling is occurring in Pennsylvania. Representative Dent, it would appear, is seriously misinformed as to the facts and even history. He needs to revisit the history of the Pennsylvania tribe that the beautiful Susquehanna River was named after and hopefully that will inform him, for to remain ignorant as to history is always to remain a.…” (Rodgers said he deliberately ended his statement with that incomplete sentence.)

McCain’s bill would stop the Interior Department from taking land into trust for gaming if the off-reservation land is not within “reasonable commuting distance from the reservation of that Indian tribe.” The bill would reinstate a Bush-era “guidance memorandum” that was tossed out by Assistant Secretary-Indian Affairs Larry Echo Hawk in June. The guidance memo issued in January 2008 set a new rule—an undefined “commutability” limit—on taking off-reservation land into trust for gaming. Echo Hawk rescinded the memo after extensive consultations with tribal leaders—a required procedure that didn’t take place for the guidance memo, which was issued unilaterally by former Assistant Secretary Carl Artman. McCain’s bill would carve the “commutability” requirement into statutory stone, making it far more difficult to rescind.

McCain named his bill the Off-Reservation Land Acquisitions Guidance Act—a benign-sounding title, but the devil is in the details, which would place such onerous reporting requirements on both tribes and the department as to make approving land-into-trust determinations virtually impossible.

The Interior Department would be required to prepare a report assessing the benefits to the tribe of taking off-reservation land into trust; the impact on unemployment on the reservation; the impact on tribal members and their dependents and descendants of relocating to the off-reservation land or adjacent communities; the specific benefits to the reservation of taking off-reservation land into trust, including whether reservation jobs would be created and how many; and “whether the tribal government can efficiently exercise the governmental and regulatory responsibilities of the tribal government if a gaming facility is constructed on off-reservation land.”

The bill gives unprecedented weight to state and especially to local concerns, requiring the Interior Secretary to prepare a report assessing whether the off-reservation parcel is likely to disrupt established local governmental operations; the potential impact to state and local government on property taxes; whether the tribe had “submitted intergovernmental agreements” addressing both state and local government concerns, including agreements on law enforcement jurisdiction on the off-reservation land; “traffic, noise, and other negative effects on development”; any potential incompatible use of the off-reservation land and adjacent or contiguous land zoned or used for national parks, national monuments, conservation areas, national fish and wildlife refuges, day-care centers, schools, churches or residential developments.

Tribes would be required to “disclose and submit” in writing all plans, contracts, agreements “or other information” relating to the use or intended use of the parcel; a written opinion of gaming eligibility for the land from the Office of Indian Gaming; and “any other information” the secretary needs to determine a land-into-trust application for the benefit of the tribe. The proposed use of the land must be “compatible” with state and local planning and zoning and public health and safety requirements. There would be no grandfathering of pending land-into-trust applications, if the bill passes. Instead, the new law would apply retroactively to the pending applications.