Off-reservation gaming policy survives lawsuit

Law | Politics

Friday, October 3, 2008

The Bush administration's controversial off-reservation gaming policy survived a legal challenge this week with the dismissal of a Wisconsin tribe's lawsuit.

The St. Croix Band of Lake Superior Chippewa sued the Bureau of Indian Affairs in December 2007, anticipating changes in the agency's off-reservation casino policy. A month later, former assistant secretary Carl Artman issued a "guidance memorandum" that makes it harder for tribes to acquire land away from existing reservations.

The memo was developed without tribal consultation or public notice. A day after it was issued, Artman used it to justify the denial of 11 off-reservation casino projects.

The St. Croix Band's Beloit Casino Project, a joint effort with the Bad River Band of Lake Superior Chippewa, was not among those rejected. But the tribe stayed in court in hopes of changing a policy with negative impacts across Indian Country.

Judge Richard J. Leon, a nominee of President Bush, dashed those hopes on Tuesday. He dismissed the lawsuit, agreeing with the Department of Justice that the memo does not represent a "final agency action" that can be reviewed in court.

"First, on its face, the Guidance Memo is merely an internal communication to Interior employees, aimed at assisting agency reviewers in their assessment of off-reservation fee-to-trust gaming applications," Leon wrote.

"Second, the Guidance Memo does not purport to be a "rule" change, and it has never been published in the Code of Regulations or the Federal Register," the decision continued. "Third, the Guidance Memo does not have binding effects on the agency or its employees. Finally, the Guidance Memo does not afford any rights to, or impose any obligations on, St. Croix."

On a second issue, Leon rejected the tribe's challenge to another BIA policy regarding off-reservation casinos. The policy, again developed without tribal consultation or public notice, affects the way such projects are reviewed.

The Indian Gaming Regulatory Act of 1988 requires state approval for applications like the St. Croix Band's. Historically, the BIA has completed this step -- known as a two-part determination -- first.

If the state governor approves, the BIA evaluates the tribe's land-into-trust application. State support tends to give the application more weight.

But after Interior Secretary Dirk Kempthorne came on board, the sequence was reversed. The change, though minor, gives the BIA more discretion to reject the land-into-trust application even if the state and local community favor the casino.

In the case of the St. Croix Band, voters in Beloit have overwhelmingly backed the off-reservation casino. But Leon determined that the change in policy -- articulated in a July 2007 letter to the tribe -- does not represent a "reviewable final agency action" either.

Despite the negative ruling, Leon noted that the guidance memo "does not command the [BIA] to deny or grant the pending application in a given circumstance." Final discretion still rests in the hands of the Interior Secretary, the decision stated.

The House Natural Resources Committee held a hearing in February to discuss the policy shift. In a letter this week to tribes whose casinos were rejected, Joseph Hunt, who works on the St. Croix project, said "there was not much chance" lawmakers would do anything about the issue even though "tribal leaders and legal experts alike all agreed that the Guidance Memorandum was improper."

With a new administration coming in board in January 2009, it's possible the memo and the letter will no longer represent the views of the Interior Department. Indian issues, however, not have been discussed in detail by either campaign despite the long-time involvement of Sen. John McCain (R-Arizona) in tribal gaming.

As chairman of the Senate Indian Affairs Committee, McCain introduced a bill to eliminate the two-part determination provision of IGRA. Tribal leaders overwhelmingly opposed the legislation and it never got a vote on the Senate floor.

But McCain wielded his influence anyway, according to The New York Times. Former BIA assistant secretary Carl Artman, a Bush nominee who resigned in May, said he tightened up regulations affecting casinos at the senator's urging.

"It became one of my top priorities because Senator McCain made it clear it was one of his top priorities," Artman, a member of the Oneida Nation of Wisconsin, told the Times.

Sen. Barack Obama (D-Illinois) does not have a record on Indian gaming. But he stirred questions among tribal leaders earlier this year after news reports indicated he opposed the expansion of gaming in his state on "moral and social" grounds and when he said he was "generally skeptical" of gaming as an economic development tool.

His campaign subsequently released an Indian policy that portrayed Indian gaming in more positive terms. Hundreds of tribal leaders, from South Dakota to New Mexico to Alabama, subsequently endorsed his bid for presidency.

Court Decision:
St. Croix Chippewa Indians v. Kempthorne (September 30, 2008)

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