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Norton sounds warning on off-reservation casinos

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Washington - Interior Secretary Gale Norton raised a large flashing yellow light on future off-reservation Indian casinos Nov. 12, in a letter explaining her non-decision on the gaming compact between New York State and the Seneca Nation of Indians.

By neither approving nor disapproving the compact on Oct. 24, Norton allowed the project for three new Indian casinos to go forward, "but only to the extent that its terms comply" with the Indian Gaming Regulatory Act. (IGRA).

In the Nov. 12 letter to New York Gov. George Pataki, Norton explained that she was reluctant to encourage the trend of off-reservation Indian casinos.

"Tribes are increasingly seeking to develop gaming facilities in areas far from their reservations," she wrote, "focusing on selecting a location based on market potential rather than exercising governmental jurisdiction on existing Indian lands. It is understandable that tribes who are geographically isolated may desire to look beyond the boundaries of their reservation to take advantage of the economic opportunities of Indian gaming. However, I believe that IGRA does not envision that off-reservation gaming would become pervasive."

She warned that she would be more critical of future compacts for off-reservation casinos and complained in a footnote that Interior had no chance to "express its policy views" during New York State's negotiations with the Senecas. She distinguished the Seneca case from others because it was based on a Congressional land settlement act.

"I am nevertheless concerned," she said, "that elements of this Compact may be used by future parties to proliferate off-reservation gaming development on lands not identified as part of a Congressional settlement but instead on lands selected solely based on economic potential, wholly devoid of any other legitimate connection."

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She cautioned that she would have a "somewhat different" attitude when tribes sought "a discretionary off-reservation trust acquisition or a two-part determination under IGRA."

Her letter drew a skeptical response from Kevin Gover, former Assistant Secretary of the Interior for Indian Affairs and now a specialist on Indian law for the firm of Steptoe and Johnson (and a columnist for Indian Country Today.)

Off-reservation casinos, he said, were "contemplated and approved by IGRA under certain conditions."

"The language in the statute is pretty clear," he said. "Some of them will have to be approved."

Norton's letter raised questions about a series of Indian casino in eastern New York State that were authorized by the state legislature in the same act that approved the three Seneca casinos in the West. The St. Regis Mohawks had actually obtained Interior approval of a casino in the fading Catskills resort region, hundreds of miles from their reservation on the St. Lawrence River, before canceling a contract with one developer and switching to another. A new land-acquisition application for the once thriving Kutsher's resort property is still in the works in Interior.

Gover said, however, that he expected the project to go forward. He said he had approved the original land-into-trust transfer because it satisfied the conditions of the law. "We felt really there was no alternative," he said.

He added that more far-fetched schemes had always been screened out. "We got a lot of goofy proposals," he said.