Kempthorne brought major shift on off-reservation gaming

Wednesday, January 30, 2008  

Less than four years ago, the Bush administration told Congress there was no legal basis to reject an off-reservation casino based solely on distance.

In testimony to the House Natural Resources Committee, former Bureau of Indian Affairs official Aurene Martin said each project will be examined on a case-by-case basis. There would be no "blanket" policy on off-reservation gaming, she told lawmakers.

"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," Martin testified on July 13, 2004.

That view was backed up by an internal memo in which top Interior Department officials examined the legal background of off-reservation gaming and the land-into-trust process. They told then-Secretary Gale Norton that the Indian Gaming Regulatory Act and the Indian Reorganization Act do not impose distance limits on tribes.

"Nowhere in the IRA or its legislative history was there ever a discussion of mileage limits to lands that the tribes could acquire to engage in economic enterprises," the officials wrote in the "Indian Gaming Paper" on February 20, 2004.

But Secretary Dirk Kempthorne, Norton's successor, and his top officials are taking the department in the entirely opposite direction. Earlier this month, the BIA adopted a blanket policy on off-reservation gaming that is based on distance: the farther the casino site from the reservation, the more likely the project will be rejected.

Assistant secretary Carl Artman used the policy, also called a Guidance Memorandum, to turn down 11 off-reservation casinos. In every case but one, the distance between the gaming site and the reservation was the deciding factor.

In hopes of preventing another rejection, a Wisconsin tribe is citing the 2004 paper in its ongoing lawsuit against the Bush administration. The St. Croix Band of Lake Superior Chippewa says the document proves Kempthorne -- who opposed off-reservation gaming when he was governor of Idaho -- is "impermissibly" straying from federal law by placing more hurdles in front of tribes.

"Directly contrary to [Artman's] Guidance Memorandum, the [2004] Indian Gaming Paper did not view distance as being a negative factor for reservation life despite the fact that tribal members might have to travel a substantial distance from the reservation to the casino," the tribe's lawyers wrote in a brief filed yesterday. "In fact, it was just the opposite."

The guidance memorandum isn't the only shift Kempthorne and his aides have brought to Interior. Without consulting tribes or seeking public comment, the department changed the way in which off-reservation casinos are reviewed.

In what is known as the two-part determination process, a state governor must concur with an off-reservation casino. Since IGRA was passed in 1988, Interior has tackled this step first before considering the land-into-trust application under the IRA.

But last fall, Artman informed the St. Croix Band and other tribes that the land-into-trust review will come first. "What that forces us to do is to exercise the trust responsibilities first before we get to policy issues that lay behind IGRA," Artman elaborated at the Global Gaming Expo (G2E) in Las Vegas in November.

The change in sequence makes the process more difficult because the BIA now has greater discretion to reject an off-reservation casino even if it is supported by state and local governments. In the case of the St. Croix Band, 61 percent of voters in the city of Beloit back the project.

Elsewhere in Indian Counrtry, the St. Regis Mohawk Tribe though its off-reservation casino was going to be approved after New York Gov. Eliot Spitzer (D) concurred with the project -- only the fourth time in the history of IGRA that has happened. But the Bush administration rejected the casino anyway based solely on the distance between the gaming site and the tribe's reservation.

The Indian Gaming Paper has never been officially released by the Interior Department. Parts of it -- notably the appendix that lists pending off-reservation casinos -- have been circulating among tribes and lobbyists for a few years.

Two parts of the document have been omitted from public disclosure. The redactions state the government raised a "deliberative process privilege," which typically applies to predecisional, internal documents.

Relevant Documents:
Court Filing | Indian Gaming Paper

Off-Reservation Gaming Policy:
Guidance on taking off-reservation land into trust for gaming purposes (January 3, 2008)

From the Indianz.Com Archive:
BIA caught in debate over off-reservation gaming (July 14, 2004)
BIA official promises policy on off-reservation gaming (June 30, 2004)

Relevant Links:
St. Croix Chippewa Enterprises - http://stcroixenterprises.com
Beloit Casino Project - http://www.beloitcasinoproject.com
Bureau of Indian Affairs - http://www.doi.gov/bureau-indian-affairs.html