Ryan Smith and Mike Smith: Off-reservation gaming in the Trump era

Members of the Spokane Tribe celebrate after winning approval of long-delayed casino in Airway Heights, Washington. Photo: STEP Spokane

How Will the Trump Administration Address Acquiring Off-Reservation Land for Gaming?
By Ryan A. Smith and Michael P. Smith

For Indian Country, one of the biggest mysteries is how the new Trump administration will deal with Indian tribes and reservations. Since neither President Trump nor his Secretary of the Interior nominee, Rep. Ryan Zinke, have a long record of working with tribes, it is largely unclear how this administration will deal with tribal issues, including one of the most controversial issues—off-reservation gaming. One, however, can gain some insight into how a Republican administration would address off-reservation gaming by looking back to the Bush administration.

Under current law, tribes can acquire off-reservation land and establish gaming operations on the land only through satisfying three criteria: (1) the federal government must acquire lands in trust for the tribe, (2) the lands must be eligible for gaming, and (3) the tribe must enter into a valid tribal-state gaming compact. While the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., generally prohibits gaming on lands acquired in trust after Oct. 17, 1988—thus precluding a petitioner from satisfying the second criterion—the “off-reservation” exception makes lands eligible for gaming under certain broad exceptions.

Under this “off-reservation” exception, the Secretary of the Interior may permit a tribe to conduct gaming on lands acquired in trust after 1988 where the Secretary of the Interior determines: (1) that a gaming establishment on newly acquired lands would be in the best interest of the tribe and its members, and (2) that gaming on the newly acquired lands would not be detrimental to the surrounding community, including nearby Indian tribes. Note, the governor of the state in which the gaming activity is to be conducted must concur in the secretary’s determination.

Because of the lack of clarity in the above exception, the Assistant Secretary of Indian Affairs in 2008, Carl Artman, authored a memorandum entitled “Guidance on taking off-reservation into trust for gaming purposes.” The Artman Guidance changed the way the Bureau of Indian Affairs (“BIA”) evaluated land trust applications by, among other changes, establishing a “commutable distance” standard by which proposed gaming operations would be considered. Under this standard, tribes could establish off-reservation gaming operations only if they remained within a “commutable distance” to the reservation. The actual distance was undefined, but the thrust of the condition was that the further that Native American employees needed to commute from a reservation, the less likely that BIA would approve an application for the creation of a land trust. The day after its publication, BIA rejected 22 out of 30 pending applications based on the Artman Guidance.

Mike Smith, left, and Ryan Smith. Photos: Brownstein Hyatt Farber Schreck

Thereafter, in the Obama administration, the Assistant Secretary of Indian Affairs, Larry Echo Hawk, rescinded the Artman Guidance through a June 2011 formal memorandum. The memorandum details the requirements for tribes’ applications and the federal government’s processing of “off-reservation” gaming applications under applicable regulations, 25 C.F.R. Parts 151 and 292. The 2011 memorandum ultimately dispenses with the Artman Guidance, concluding that it was both “unnecessary and potentially confusing.” As a result of BIA’s rescission of the Artman Guidance, BIA has continued to rely on existing statutes and regulations to process applications—despite the lack of clarity.

Certain lawmakers took issue with the withdrawal of the Artman Guidance. For instance, Sen. John McCain (R-AZ) criticized the move in a formal statement, claiming that it left “no comparable regulations,” thus inviting “an influx of off-reservation gaming applications as a result.” In 2011, Sen. McCain and former Sen. Jon Kyl (R-AZ) responded by co-sponsoring S. 1424, the “Off-Reservation Land Acquisition Guidance Act,” a bill that would have codified parts of the Artman Guidance, including the “commutability” standard. Likewise, in 2013, Sen. Dianne Feinstein (D-CA) introduced S.477, the “Tribal Gaming Eligibility Act,” which called for a stricter and more objective test to conduct off-reservation gaming. Both S.1424 and S.477 were referred to the Committee on Indian Affairs, but failed to make it out of committee.

Since then, no legislation has passed, and many tribes and non-Indian communities believe that there needs to be more objectivity and clarity in this process given the inherent vagueness of the two-part exception. Since Congress has been unable to address this issue, interested tribes and impacted non-Indian communities will likely turn to the new administration. If history is any guide, the Trump administration may look back and adopt the Artman Guidance.

Ryan A. Smith is a shareholder at Brownstein Hyatt Farber Schreck where his practice focuses on Indian and natural resource law and government relations. Mr. Smith formerly served as a senior aide to former Sen. Jon Kyl (R-AZ). Michael P. Smith is an associate at Brownstein Hyatt Farber Schreck and practices in the areas of land use, water rights, water quality, endangered species, public lands, and federal and state rulemaking.

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