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BIA approves compact for gaming on former reservation

The Bureau of Indian Affairs has approved the Chickasaw Nation's Class III off-track betting compact, a top official said on Wednesday.

George Skibine, the acting deputy assistant secretary for policy and economic development, said the BIA determined that the five locations where Class III gaming is planned are within the tribe's former reservation. He said it didn't matter when the parcels were taken into trust, or the reason they were taken into trust.

"If they were taken into trust for non-gaming purposes, as long as they are within the former reservation of the tribe -- and we looked at that -- the tribe can do [gaming]," Skibine said in an interview.

The Indian Gaming Regulatory Act of 1988 bans gaming on land acquisitions post-1988 but crafts some rather important exemptions. Gaming can occur if the BIA approves the acquisition and the state governor concurs. This provision is being challenged in court by three Ojibwe tribes in Wisconsin, whose former governor in 2001 objected to an off-reservation land-into-trust request.

Another important exemption is if the land is within the tribe's former reservation. In the Chickasaw Nation's case, this is a 13-county area of southeastern Oklahoma that extends to the Texas border, where the tribe has opened gaming facilities.

The tribe has quadrupled its land purchases in its 13-county area, according to published accounts. In several cases, the tribe sought -- and received -- approval for new trust acquisitions but stated the land was to be used for a smoke shop, a convenience store or other non-gaming purpose.

Since the tribe did not specify gaming for those parcels, the BIA's Eastern Oklahoma regional office in Muskogee was authorized to approve the acquisition. But had the tribe specified gaming, Skibine said the request would have been handled by the BIA's central office in Washington, D.C. One such application by the tribe is indeed pending at central office, and Skibine said a decision could come any day.

Skibine said he "wasn't aware" whether the Chickasaw Nation is gaming on land that was taken into trust for non-gaming purposes after 1988. "If there are other acquisitions by the region, they haven't come to our office," he said.

"The tribe can propose to acquire land into trust for one purpose and if it doesn't involve gaming, it's not going to come up here," he said. "Then years later, they can decide to switch the use. It's legal because we do not impose the restrictions on the deed. It's legal to do that as long as the land meets the [exemption] requirements of [IGRA]."

"In Oklahoma, that means the land has to be within the former reservation of the tribe, as defined by the [Interior] secretary," he added.

Some tribes in the western part of Oklahoma believe they are being treated unfairly when it comes to the IGRA exemption. BIA officials, over the years, have refused to even consider acquiring former reservation land for the tribes unless they stipulate no gaming will occur. In one instance, a BIA superintendent told the Cheyenne-Arapaho Tribe to submit a resolution promising that no gaming would take place in the future.

Another tribe, the Fort Sill Apache Tribe, filed a lawsuit last week challenging the BIA's apparently disparate treatment. Chairman Jeff Houser, in a deposition, said the tribe had to fight for approval of a former reservation land acquisition.

"After six years of wrangling with the Department of the Interior, our tribe was allowed to take into trust, for gaming purposes, the site where our casino is now located," he said. "Through this process, the Interior Department made an 'Indian lands' determination pursuant to [IGRA] and granted my tribe an 'exemption' to the gaming lands acquisition," he added.

The long wait would have been unlikely had the tribe told the BIA the land was to be used for a non-gaming purposes. The BIA's Eastern Oklahoma region approves such requests for the Chickasaw Nation in as little as a day.

In the lawsuit, the Fort Sill Apache Tribe further alleged that that one of Chickasaw Nation's off-track betting locations, in Duncan, was taken into trust against the law. Houser said his tribe should have been consulted because that land is within 25 miles of the Fort Sill casino.

The tribe cited a provision in IGRA and a BIA regulation which requires consultation of other tribes within a 50-mile radius of a land acquisition. If Chickasaw Nation compact is approved, Houser said, "there will be a significant decrease in casino revenues, and thereby, of the funds available for necessary tribal government services."

U.S. District Judge David L. Russell dismissed the lawsuit before the tribe had a chance to air its complaint fully. In a Monday decision, Russell said the case could not proceed without the involvement of the Chickasaw Nation or the state of Oklahoma. But since neither the tribe nor the state has waived its sovereign immunity, Russell ordered a dismissal. He also said he could not stop the BIA from approving the compact within the 45-day time period outlined in IGRA.

The BIA has to publish approval of the Chickasaw Nation's off-track betting compact in the Federal Register before it becomes legal.

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