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Mohawks seek repeal of land into trust Guidance Memorandum

AKWESASNE, N.Y. – The St. Regis Mohawk Tribe has asked the Interior Department to rescind “guidelines” issued last year that placed distance restrictions on off-reservation gaming trust lands.

The Guidance Memorandum was issued Jan. 3, 2008, under former Interior Secretary Dirk Kempthorne and cited “commutability” as a new standard for denying off-reservation trust applications for gaming purposes – even though it does not appear anywhere in the federal regulations.

The next day the interior notified 11 tribes, including the St. Regis Mohawk Tribe, that it would not take off-reservation land into trust for its gaming projects because the proposed sites were too far from the tribes’ reservations. The department had selected 100 miles as the limit of “commutability,” claiming the guidelines were drawn out of concern for the well-being of “reservation life.”

The memorandum and the denials came without any prior consultation or notice and set off a firestorm of protest from the nations, who viewed the new guidelines as paternalistic and an assault on tribal self-determination.

Although off-reservation gaming and the claim of “reservation shopping” were hot topics from coast to coast in recent years, off-reservation gaming has been approved in only three cases since enactment of the 1988 Indian Gaming Regulatory Act.

The Mohawks’ application for a casino site at the Monticello racetrack in the Catskill Mountains where it planned to build a $600 million casino resort had been in the works for nine years and was in the last stages of completion. The application denial led to a breakdown in the relationship between the tribe and developer Empire Resorts.

“We made it clear last year that we would patiently wait for a new administration to arrive in Washington and one that would hopefully revisit the injustices that were done to our tribe,” said tribal Chief James W. Ransom. “That time has come.”

The council released a letter it sent to the interior seeking a repeal of the guidelines during the regular monthly tribal meeting April 4.

“The Guidance Memorandum. … is regarded as one of the most reprehensible administrative breaches of good faith perpetrated on Indian tribes in the Self-Determination Era. This is certainly our tribe’s view and a view that is shared by a number of other tribes,” the council wrote.

“We therefore join Indian country in requesting Secretary (Ken) Salazar to immediately withdraw that policy because it was an invalid substantive change in the rules for taking land into trust which failed to comply with the notice and rulemaking requirements under the Administrative Procedures Act. Accordingly, the department should rescind all of the determinations on fee-to-trust applications, including ours, that were made based on this invalid rule, and the department should reconsider these applications in accordance with the existing valid regulations set forth in (the statutes).”

Tribal officials announced they had met with representatives from Empire Resorts and had agreed to continue discussions about the former project. The council said it told Empire Resorts that any agreements would need approval by the community through a referendum and the community must be part of the decision making process.

Tribal officials recently traveled to Washington to hand deliver their letter to Interior Associate Deputy Secretary Laura Daniel Davis.

“The meeting with the assistant deputy secretary presented us with an opportunity to start telling our story and so that in itself was positive. As long as the guidance policy remains in place, everything is speculation and all we’re trying to do is focus on getting that impediment out of the way,” Ransom said.

“At this stage, everything is preliminary,” Chief Barbara Lazore said. “But we felt it was important to tell our history of the past 14 years, which was dismissed at the stroke of a pen by the previous administration.”

The tribe’s application was to take approximately 30 acres of land into trust at the Monticello site, which is within driving distance of New York City – from which the tribe hoped to draw customers. The facility was expected to generate about 3,000 permanent jobs in an area of the state that is in need of economic development.

The application had met all the statutory requirements, including a Finding of No Significant Impact, a positive Section 20 Two-Part Determination, unprecedented public support from the state legislature and surrounding communities, and a tribal-state compact executed by former New York Gov. Eliot Spitzer.

In its letter to Davis, the tribal council said that even if the Guidance Memorandum were lawfully promulgated, the tribe’s application “still meets and exceeds the new rule” by demonstrating that the alleged “potential negative aspects on reservation life” would be outweighed by the benefits a casino would provide for the tribe by, among other things, easing the 35 to 40 percent unemployment rate; helping to provide a stable economic base for on reservation jobs and social services; and by having little or no long-term affect on tribal members’ identification with the tribe since the Mohawks have a long history of traveling far distances as ironworkers who built many of the most famous bridges and skyscrapers in the northeast.

The council also noted the U.S. Supreme Court’s recent Carcieri ruling that tribes not under federal jurisdiction in 1934 are ineligible for trust land does not apply to St. Regis since the tribe has been recognized in treaties going back to the 18th century.

Ransom acknowledged that it would be a great boon for Indian country if the interior responds positively and rescinds the Kempthorne guidelines.

“That would be a huge additional benefit, but the challenge still remains and we think Indian country is beginning to turn its attention back to this issue. We have made some contacts with some of the other tribes from time to time and I think it’s important that all of us try to get the same message to interior about the absurdity of the guidance policy.”