Trump administration faces test of off-reservation gaming policy

Tuesday, April 18, 2017

The Spokane Tribe continues to make progress on a casino in Airway Heights, Washington. Photo: Spokane Tribe Economic Project

The Trump administration has already raised the bar against off-reservation casinos and a new lawsuit aims to turn back the clock on one tribe that survived the lengthy approval process.

Last summer, the Spokane Tribe became just the sixth in the nation to win federal and state approval for an off-reservation development. The process took over 10 years to complete.

After the long wait, Spokane leaders broke ground on the casino and are on track to debut the first phase in just a few months. But a nearby rival in Washington state is seeking to halt the effort in federal court.

In an April 12 complaint, the Kalispel Tribe says its Northern Quest Resort and Casino will take a significant hit once the new development opens only a couple of miles away. As much as 44 percent, or about $90 million, in revenues will be lost in the first year alone, according to an economic study cited in the lawsuit.

The Obama administration ignored the detrimental impacts when it approved the project known as the West Plains mixed-used development, the complaint alleges. The Kalispels are now asking a federal judge to order the Department of the Interior, which is under new leadership, to turn back the clock on the new casino.

"Because the department relied on incomplete information and improper factors, the department’s finding that West Plains would not be detrimental to the Kalispel Tribe was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law," the 84-page complaint, a copy of which was posted by Turtle Talk, reads.

An artist's rendering of the casino portion of the Spokane Tribe Economic Project in Airway Heights, Washington. Image: STEP

The Trump administration has not yet responded to the lawsuit. But the Spokane Tribe is banking on the federal government, as its trustee, to stay the course on the casino, which has already started hiring employees in preparation for an opening in August.

"We stand ready to assist the Department of Justice in defending against the Kalispel Tribe's lawsuit, which boils down to an argument that the government is somehow required to insulate Kalispel's gaming monopoly against fair competition from us, the resident tribe, despite our significant unmet needs," Chairwoman Carole Evans said in a statement.

The Trump team, though, is sending bad signals to Indian Country. A week before the lawsuit was filed, Interior Secretary Ryan Zinke ordered all off-reservation gaming applications to be approved by his office in Washington, D.C.

In doing so, he stripped the Bureau of Indian Affairs, as well as the future Assistant Secretary for Indian Affairs, of authority. Instead, decisions will be made by the "Acting Deputy Secretary" at Interior, according to the the memo, which was posted by Turtle Talk.

"That's not good," Kevin Gover, a citizen of the Pawnee Nation who held the Assistant Secretary post during the Clinton administration, wrote on Facebook in response to the development.

"They need an assistant secretary for Indian affairs," added Gover, who currently serves as director of the National Museum of the American Indian in Washington.

An outdoor concert at the Northern Quest Resort and Casino, owned and operated by the Kalispel Tribe in Airway Heights, Washington. Photo: Northern Quest Resort and Casino

President Donald Trump has not yet nominated someone to fill the post, which typically goes to a tribal citizen with experience in Indian legal and policy circles. An announcement is usually made around this time -- Barack Obama picked his first assistant secretary by April of his first term in 2009 and George W. Bush did the same back in 2001.

The void in leadership that threatens to slow down or even roll back the advances seen by Indian Country during the Obama era. Between 2009 and 2016, four off-reservation casinos, including the one for the Spokanes, were approved and more than 500,000 acres were placed in trust for tribes across the nation.

That represented a big change from the Bush years, when no tribe was able to open an off-reservation casino and when tribes complained of an unofficial moratorium on the land-into-trust process. The St. St. Regis Mohawk Tribe came close, winning state approval for a project in the Catskills region of New York, only for the BIA to pull the rug out by refusing to place the gaming site in trust.

The official who rejected the Mohawk project was Jim Cason, who held a high-ranking post at Interior during the Bush administration. He is now serving as the "Acting Deputy Secretary," or the second-in-command at the department, despite never being nominated by the president and going through the confirmation process in the U.S. Senate.

And, thanks to Zinke's directive, Cason is now in charge of making decisions on future off-reservation gaming applications.

Under the Indian Gaming Regulatory Act, a tribe can open a casino away from an existing reservation by going through the two-part determination process. The first step requires the BIA to determine that the project will not be "detrimental" to the surrounding community and to nearby tribes. The second requires what is known as a "concurrence" from the state governor.

Between 1988, when IGRA became law, and 2000, the year before George W. Bush took office, only three tribes completed both steps of the process. One was the Kalispel Tribe, whose project was approved in 1998. Northern Quest opened in December 2000 and its revenues now account for 85 percent of the tribe's total revenue, according to the lawsuit.

"The Kalispel Tribe’s programs and services funded primarily by Northern Quest include police, fire, and emergency medical services; housing; social services; health care; educational assistance; child care; elderly care; public transportation; judicial and legal services; community planning and development; and per capita and elder payments to cover basic needs not covered by other programs or the members’ income," the complaint reads.

The Spokane Tribe operates the Two Rivers Casino in Davenport and the Chewelah Casino in Chewelah. Two Rivers is located on the main reservation while Chewelah is located at an off-reservation trust site.

The new casino, which is part of the Spokane Tribe Economic Project, is in Airway Heights, a city near Spokane. The 145-acre site had already been in trust before the tribe sought approval to engage in gaming there.

The Kalispel site also had been in trust before the tribe asked for approval to open Northern Quest.