Wisconsin tribe cites potential land-into-trust shift at BIA

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The Bush administration might be rethinking its position on a disputed land-into-trust policy, a Wisconsin tribe said after going to court on Wednesday.

The St. Croix Band of Lake Superior Chippewa sued the Bureau of Indian Affairs last week, accusing Interior Secretary Dirk Kempthorne and Assistant Secretary Carl Artman of trying to block off-reservation casinos. After a hearing in Washington, D.C., an attorney said there might be changes in the way land-into-trust applications are handled.

"It was a very good day for the casino project," said Andrew Adams III, the tribe's general counsel.

The St. Croix Band and the Bad River Band of Lake Superior Chippewa want to open a casino in Beloit, more than 300 miles from their reservations. They filed a land-into-trust application at the start of the Bush administration six years ago.

Even though the application is complete and has been given a favorable review at the regional level no decision has been made by political appointees in Washington. Kempthorne and Artman have held up the process by changing the way such applications are reviewed under the Indian Gaming Regulatory Act, the St. Croix Band said.

But Adams said the Department of Justice offered to delay the policy change at the hearing yesterday. The BIA won't make a decision on the casino until January 31, 2008, and will give at least 21 days advance notice before a decision is made.

The stipulation only applies to the St. Croix and Bad River application. However, it could affect other tribes who have similar casino projects pending at the BIA.

"Not only does the status of the St. Croix application remain unchanged until after the judge rules, what we heard yesterday indicates that the government is rethinking their position on the procedural changes and may go back to using IGRA standards as a first step as has been done for at least the last seven years," said Adams.

Normally, the BIA determines whether the casino project can move forward and sends the paperwork to the state governor for final approval. This is known as a two-part determination under IGRA.

If the governor concurs, then the BIA decides whether to take the land into trust. Approval by the state, in many cases, gives the application a boost because the BIA takes into account state and local views.

After Kempthorne and Artman came on board, however, they modified the sequence. Instead of completing the two-part determination process, they are looking at the land-into-trust application first.

The change, though minor, gives the Interior Department more discretion to reject the land-into-trust application even if the state and local community favor the casino. Voters in Beloit backed the casino by 61 percent and local officials support the project.

"What that forces us to do is to exercise the trust responsibilities first before we get to policy issues that lay behind IGRA," Artman said last month at the Global Gaming Expo conference in Las Vegas.

Separately, Artman is delaying decisions on all off-reservation casinos until he develops a new policy on the issue. That leaves the St. Croix Band, the Bad River Band and the St. Regis Mohawk Tribe of New York -- the only tribe with a completed two-part determination -- in limbo.

In the case of the Mohawks, New York Gov. Eliot Spitzer (D) concurred with the two-part determination, only the fourth time in the history of IGRA that has happened. But the BIA won't make a decision on the tribe's land-into-trust application until the new policy is made, Artman said. The tribe has filed a lawsuit to force action.

The St. Croix lawsuit is being heard by Judge Richard J. Leon. He was assigned to the case after Judge Royce Lamberth recused himself earlier this week.

Lamberth was a frequent target of the Bush administration for his handling of the Cobell Indian trust fund lawsuit. A federal appeals court removed him from the case, saying his harsh criticism of the Interior Department affected his impartiality.

Leon plans to hold a hearing on January 15, 2008, in the St. Croix case. The Bad River Band plans to join as a plaintiff, a newspaper in Wisconsin reported this week.

Court Documents:
Complaint | Motion for Temporary Restraining Order

Relevant Links:
Beloit Casino Project - http://www.beloitcasinoproject.com
St. Croix Chippewa Enterprises - http://stcroixenterprises.com

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