Trump administration erects new hurdle for off-reservation casinos

Thursday, April 13, 2017  

After just a month in office, the new leader of the Department of the Interior has made it harder for tribes to open off-reservation casinos.

In an April 6 memo first posted on Turtle Talk, Secretary Ryan Zinke ordered all off-reservation gaming applications to be approved by his office. The directive -- which was made without prior tribal consultation -- adds a political dimension to an already complex process by putting decisions in the hands of Trump-appointed officials.

The official now in charge of off-reservation casinos, according to the memo, is the "Acting Deputy Secretary" at Interior. The person holding that title happens to be Jim Cason, who served in a senior role at the department during the George W. Bush years.

Cason played an active role in putting an end to off-reservation gaming projects during his tenure. He also enraged tribes with his views on the land-into-trust process by suggesting they were to blame when approvals dried up under his watch.

So in addition to erecting a new procedural hurdle for tribes, the Trump team has placed a hostile official in charge of off-reservation gaming, a move that threatens the eight years of gains seen during the Obama administration, when off-reservation casinos slowly but surely made a comeback amid renewed focus on the land-into-trust process.

The change in policy comes weeks after Cason was warned about the issue. In a February 17 letter, also posted by Turtle Talk, a top Republican in Congress questioned why "acting" officials at the Bureau of Indian Affairs approved at least two casinos shortly before and after President Donald Trump was sworn into office.

"While the full range of troubling determinations and actions are not yet known, committee staff has identified several examples of last-minute approvals of Indian casinos located outside existing reservations," Rep. Rob Bishop (R-Utah), the chairman of the House Committee on Natural Resources, told Cason, implying there were multiple instances of potential wrongdoing.

The quick reaction from Zinke, who once served alongside Bishop in Congress, and the re-emergence of Cason suggests trouble for Indian Country on a number of fronts. The memo, for example, draws no distinction between off-reservation casinos and those sought by newly recognized tribes and tribes that were restored to federal recognition.

Bishop's letter in fact drew attention -- through a footnote -- to the BIA's approval of a casino for the Wilton Rancheria, whose federal status was restored in 2009 by the Obama administration. It took the tribe more than three years to navigate the land-into-trust process before its application was finalized in February.

But casinos for restored and recognized tribes fall into a different category than those labeled as "off-reservation." Through the Indian Gaming Regulatory Act, Congress accounted for the fact that these tribes either had their homelands taken by the federal government or were never given a chance to acquire new lands.

Off-reservation casinos, on the other hand, are envisioned in cases where a tribe has an existing reservation but chooses, for whatever reason, to seek a casino elsewhere. In recognition of the unusual circumstances, a tribe must secure approval from the BIA as well as from the state governor.

Known as a two-part determination, approvals for these types of developments are rare. Between 1998, when IGRA became law, and 2000, only three tribes completed both steps of the process.

While George W. Bush was in office between 2001 and 2009, no two-part determinations were successful amid outcry from Republican lawmakers. In one case Cason himself told leaders of the St. Regis Mohawk Tribe that an off-reservation casino in New York wasn't in their best interests.

The decision was based on a "guidance memo" that was developed, much like Zinke's new memo, without tribal consultation. A total of 11 tribes were denied off-reservation casinos on a single day in January 2008.

The Obama administration rescinded the controversial directive at the request of tribes in 2011 and a new era emerged. Between 2012 and 2016, the BIA approved four two-part determinations, a complete turnaround from the Bush years.

But the old days appear to be coming back, albeit under a different Republican president and different Republican lawmakers. While the BIA is still responsible for much of the review process for off-reservation applications, Zinke's directive requires the most significant parts to be handled by political officials in Washington, D.C.

Zinke also wants D.C. to take a closer look even when an off-reservation application doesn't involve gaming. The memo outlines a total of 16 steps before a tribe hears back from the BIA.

Relevant Documents:
Secretary Zinke Memo: Delegated Authority for Off-Reservation Fee to Trust Decisions (April 6, 2017)
Letter to Jim Cason: 'Indian casinos located outside existing reservations' (February 17, 2017)