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Bush stance on off-reservation gaming unknown
Tuesday, March 29, 2005

As efforts against off-reservation gaming mount among tribes, various states and key members of Congress, a crucial voice has been missing in the debate. Where does the Bush administration stand?

After four years of running the Interior Department, it's hard to tell. Bush officials have sent mixed signals on the issue, at times appearing to bow to political pressure by discouraging tribes that want to open off-reservation casinos. At other times, they vow to handle matters as transparently as possible, free from outside influences.

Muddying the waters are conflicts among the two agencies responsible for reviewing and approving off-reservation casino plans. Career employees at the Bureau of Indian Affairs seem open to the idea while the National Indian Gaming Commission, whose members were appointed by President Bush, has endorsed a limited interpretation of the law.

The trouble began way back in 2002, when two tribes -- the Seneca Nation of New York and the Jena Band of Choctaw Indians in Louisiana -- sought approval for gaming compacts with their respective states. Both involved off-reservation casinos.

Interior Secretary Gale Norton declined to approve the Seneca Nation compact in October 2002 but under provisions of federal law it went into effect anyway because she did not outright deny it. But her non-decision was accompanied by a letter saying she was "extremely concerned" that the tribe was stretching the Indian Gaming Regulatory Act by seeking the off-reservation casino.

Norton and her subordinates were less kind to the Jena Band. Former assistant secretary Neal McCaleb outright rejected the compact in March 2002 and noted that the Bush administration has "some concerns" about the tribe's attempts to create a reservation hundreds of miles away from its current base.

Fast-forward two years and the message coming out of Interior is no less clear. At a hearing in June 2004, acting assistant secretary Aurene Martin told a House committee that the department officials were working on a policy on off-reservation gaming.

Less than a month later, Martin reported back to Congress that the policy wasn't coming anytime soon. "We ultimately determined that adopting a blanket policy would not be appropriate because each application is different and the situation of each tribe, with respect to the local community and the state in which it is located, is unique," she said.

In the interim, tribes in at least a dozen states stepped forward with plans to open casinos hundreds of miles away from existing reservations or their traditional headquarters. Some tribes even advanced projects in other states.

The negative attention generated prompted tribal leaders to speak out, state officials to sound the alarm and two key members of Congress -- Rep. Richard Pombo (R-California) and Sen. John McCain (R-Arizona) -- to promise to take action before the controversy gets out of hand.

So far, the Bush administration hasn't said anything concrete. Pombo held a hearing on the topic on March 18 but didn't invite Interior. McCain is holding a hearing next week with George Skibine, a career employee, scheduled to testify.

What is known is that career employees in charge of gaming at the BIA have, in the past, and will, in the future approve off-reservation casinos. At the end of the Clinton administration and at the beginning of the Bush administration, the BIA allowed two tribes to move forward with off-reservation land acquisitions for gaming although both efforts stalled due to developments outside the agency's control.

The BIA is also busy preparing environmental impact statements and decision documents on off-reservation casinos in at least three states -- New York, New Mexico and California. Three casinos in the Catskills region of New York, hundreds of miles away from any reservation, are likely to be approved as they have crucial state backing.

The agency's past stance also provides some important background. In 1998, former assistant secretary Kevin Gover testified against a bill that would alter provisions in IGRA that apply to off-reservation gaming. Pombo is trying to do just that with his latest effort.

Meanwhile, the NIGC has softened its views and, last September, modified language in a legal opinion to allow room for off-reservation casinos. Earlier in the year, the agency said IGRA "specifically disallowed" such proposals, a stance that surprised some within the Indian legal community.

Despite the executive branch's efforts to get a handle on the issue, initiatives in Congress may ultimately prevail. Some lawmakers have introduced bills to bar specific off-reservation casinos or to require additional levels of approval. In 2004, House Republicans inserted language in Interior's appropriations bill that sent a message to the BIA and the NIGC to be extremely careful as they weigh various proposals.

This week, tribal leaders, state officials and government representatives are meeting in Denver at the Western Governors' Association summit on Indian gaming. Skibine is scheduled to present on a panel on off-reservation gaming tomorrow.

Relevant Documents:
Kevin Gover Testimony | Aurene Martin Testimony | Title 25 CFR Part 151 Land-into-Trust Process | Section 20 of IGRA | GAO Report

Relevant Links:
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS
Land into Trust, National Congress of American Indians - http://www.ncai.org/main/pages/issues/
governance/land_into_trust.asp