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Pombo moves to shut door on off-reservation gaming

WASHINGTON – Rep. Richard Pombo expanded the congressional move against off-reservation gaming at a March 15 hearing, arguing that the potential exists for several hundred applications to take land into trust for gaming purposes.

James Cason, associate deputy secretary of the Interior Department, acknowledged the potential but added that most applicants, especially Indian groups seeking federal recognition as tribes for gaming purposes, would have “little if any” prospect of being approved: “The threshold right now is higher and harder if you’re trying to get in the game” on trust lands acquired since 1988, when the Indian Gaming Regulatory Act went into effect.

A bill has been introduced in the Senate that would terminate the two-part determination test Interior now applies when tribes seek to place off-reservation land in trust for gaming purposes. The two-part process assesses whether gaming would be beneficial to the tribes without detriment to surrounding communities. Pombo’s bill, House Bill 4893, would go beyond abolishing the two-part test. It would banish all future off-reservation gaming by sweeping away every exception to the primary IGRA guideline that gaming should be limited to reservation-based lands that were in trust status in 1988.

Under the exceptions, the California Republican said, 38 tribal casinos are operating on land brought into trust status since 1988 (so-called “after-acquired” land). He used that figure against George Skibine, Interior’s acting assistant deputy secretary of Indian affairs for policy and economic development. Skibine has testified to the Senate that only three off-reservation gaming operations have been approved under the two-part determination test. The number has been widely circulated in the press. Skibine stood by it.

Pombo insisted that 38 Indian-operated casinos, almost 10 percent of the 402 casinos now operating in Indian country, operate on after-acquired land under one IGRA exception or another.

“To continue to go back to your number, three, is an inaccurate and misleading statement.”

Eventually, Pombo got Skibine to agree that emphasizing the number three does not create an accurate picture of Indian gaming as it has transpired on after-acquired land. Skibine added that Congress has approved all of the exceptions for after-acquired lands.

In a brief interview after the hearing, Pombo said he did not immediately know how many of the 38 casinos on after-acquired trust land are also sited on off-reservation trust land, and time did not permit follow-up with his staff prior to a press deadline.

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The central issue of Indian gaming in California and nationwide is “reservation shopping,” or, as Cason’s more neutral phrase, “venue shopping,” the practice of tribes, or casino developers for tribes, casting around for more lucrative casino sites than may exist on a reservation, often to the loud consternation of local communities.

Cason described venue shopping as an ordinary business activity that has grown along with the Indian gaming industry. “I didn’t see anything in IGRA that said 402 is the right number, too high, too low; I didn’t see anything that said 38 exceptions is the right number ... I want to suggest that what we’re seeing is a lot of bright people saying, ‘Under the law, there’s a better place to go than I have on the reservation.’”

He said the key to proceeding with H.R. 4893 is to balance tribal opportunity with the concerns of the non-Indian public.

Phillip Hogen, chairman of the National Indian Gaming Commission, agreed with Cason that there is a place in Indian gaming for third-party investors (cast as string-pullers for tribes, third-party investors are often stereotyped in popular perception as shady deal-makers or manipulative developers).

“We would also observe that the primary impact [of H.R. 4893] will be on tribes that don’t have lands,” Hogen said.

Pombo’s bill does, however, offer a method for tribes on established reservations to host the casinos of other tribes.

The issue of a grandfathering clause to permit tribes already in the process of seeking trust status for after-acquired lands came up as it had at hearings on the Senate bill, which includes a so-called grandfather clause. H.R. 4893 does not include a grandfather clause. Pombo, chairman of the House Resources Committee, did not commit himself to including one as his bill proceeds through committee.

Opening the hearing, Pombo echoed sentiments already expressed at length in the Senate, namely that as Indian gaming has grown into an almost $20 billion industry, “there’s almost no way Congress can escape a review of IGRA.”

In addition, he aligned himself with the prevailing GOP opinion on Capitol Hill that any attempts to go off-reservation with gaming projects can damage the entire Indian gaming industry.