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Agencies still in conflict over off-reservation gaming
Tuesday, December 7, 2004

The National Indian Gaming Commission has eased its stance against off-reservation gaming but still won't allow an Oklahoma tribe to operate an out-of-state casino.

Earlier this year, the agency surprised some tribal and gaming leaders with a legal opinion affecting the Wyandotte Nation's casino located on trust land in downtown Kansas City, Kansas. The March 24 ruling said that the Indian Gaming Regulatory Act "specifically disallowed" casinos on lands far away from a tribe's existing reservation.

But in an unpublicized final decision issued on September 10, NIGC Chairman Phil Hogen and his two colleagues said the earlier opinion was "overbroad" in some respects. Although they still held that the Kansas City casino is illegal, they changed a crucial sentence involving the interpretation of IGRA.

Instead of using the word "disallowed," the agency now says Congress "contemplated gaming on newly acquired lands far from the current or prior reservation" but only "in very specific isolated circumstances."

The new language brings the NIGC more in line with a view expressed by the top gaming official at the Bureau of Indian Affairs. At a Senate hearing in March, the BIA's acting assistant secretary for policy and economic development, a career bureaucrat named George Skibine, said there was no legal basis to deny casinos far away from a tribe's existing location.

"We have researched the issue internally, and can find no limitation in IGRA or its legislative history that would lead us to believe that it is prohibited," Skibine said in his written testimony.

In an interview following the hearing, Skibine stated there was "no legislative history" on the subject but the NIGC doesn't appear to agree on this point. In the September decision, the agency added a paragraph on legislative history that suggests off-reservation and out-of-state gaming "is not generally permitted" except when state, local and other tribal communities approve.

The conflict speaks to the controversy generated across the nation by tribes seeking to establish casinos on land hundreds away from their current reservation and even in other states. Tribes -- including a handful based in Oklahoma -- have laid claim Kansas, Illinois, Ohio, Indiana, Colorado, New York and California in hopes of opening a casino in more lucrative markets.

So far, the NIGC has given a thumbs down to out-of-state casino projects. In addition to ruling against the Wyandotte Nation, the agency said the Miami Nation of Oklahoma cannot open a gaming facility on an allotment in Kansas.

Federal officials will face another test with the Seneca-Cayuga Tribe of Oklahoma, whose chief settled a land claim with the state of New York for a casino. According to the latest news reports, two Wisconsin tribes will be settling their claims in New York for gaming rights. Announcements are expected today.

As for the Wyandotte Nation, the tribe is challenging the NIGC's September decision in federal court. The Bush administration has asked for more time to respond to the suit and also asked for the case to be transferred to Kansas, where a related suit over the closure of the casino is being heard. The facility was closed in April when state authorities raided the trust property.

On Monday, the tribe filed a motion opposing the government's request. "Every day that this litigation is delayed is another day that the tribe is deprived of revenues generated from its gaming facility, and another day fourty-eight persons are no longer employed by the tribe's gaming facility," an attorney wrote.

In an affidavit filed in court after the first NIGC opinion in March, Wyandotte Chief Leaford Bearskin said gaming revenues "support a variety of essential tribal governmental services to its members, including housing, education, medical care and public safety."

The facility offered about 250 Class II machines that were owned by Multimedia Games Inc. of Texas. The state seized the company's equipment during the raid.

CHANGE IN STANCE
On March 24, 2004, a National Indian Gaming Commission attorney interpreted the Indian Gaming Regulatory Act this way:

It is clear that Congress intended to allow some gaming to occur on lands acquired after enactment of IGRA under this provision, but specifically disallowed gaming on newly acquired lands far from the current or prior reservation.

On September 10, 2004, the agency's top officials adopted a final decision that modified the above sentence to read:

It is clear that Congress intended to allow some gaming to occur on lands acquired after enactment of IGRA under this provision, but only contemplated gaming on newly acquired lands far from the current or prior reservation in very specific isolated circumstances.

The decision included a paragraph, not present in the March opinion, about the legislative history of IGRA.

Relevant Documents:
NIGC Final Decision (September 2004) | NIGC Opinion (March 2004)

Relevant Links:
Wyandotte Nation of Oklahama - http://www.wyandotte-nation.org/home.html