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Exceptions to IGRA more common than often cited

When it comes to the debate on off-reservation gaming, one statistic has been cited frequently by federal officials and tribal gaming leaders. It's this: since 1988, only three casinos have been built on lands away from an existing reservation.

"There is no explosion of off-reservation Indian gaming," noted Ernie Stevens Jr., the chairman of the National Indian Gaming Association, in Congressional testimony last July. The statistic was cited again last week when the group's executive director, Mark Van Norman, testified before the House Resources Committee.

On this account, NIGA is correct. Under a provision in the Indian Gaming Regulatory Act of 1988, the Forest County Potawatomi Tribe of Wisconsin, the Kalispel Tribe of Washington and the Keweenaw Bay Indian Community of Michigan have opened off-reservation casinos only after receiving approval from the federal government and concurrence from the state.

Otherwise, gaming is barred on trust lands acquired after October 17, 1988.

But an equally important -- and more common -- statistic is the number of casinos opened under other provisions of IGRA. The law contains exceptions for casinos for newly-recognized tribes, tribes that were terminated and later restored, tribes with former reservations like those in Oklahoma, tribes with settled land claims and landless tribes with a "last" reservation.

Additionally, Congress has passed laws for certain tribes that allow off-reservation casinos despite IGRA's provisions. Two tribes in California's Bay Area have benefited from special legislation although one, the Lytton Band of Pomo Indians, has pulled back its plans amid opposition.

The trouble is, finding out for certain the number of off-reservation casinos opened under IGRA's exceptions or under special acts of Congress can be a difficult task. Ask the Bureau of Indian Affairs and the agency will say the National Indian Gaming Commission keeps track of that. Asking the NIGC often leads back to the BIA.

An examination of the record since 1988, however, provides some insight into the matter. The NIGC, for example, has made public a number of its decisions involving approval for off-reservation casinos under Section 20 of IGRA.

Of the seven relevant decisions post on the NIGC web site, every proposal was approved except two. Separately, a decision favoring a New Mexico tribe that recently opened a casino on a former reservation was not posted.

Another important figure comes from the Congressional testimony of former assistant secretary Kevin Gover. As of 1998, he said the BIA approved 13 land acquisitions under the Section 20 exemptions. That brings the total to at least 19 because there is no overlap with the NIGC rulings. This number was confirmed as "approximately 20" in 2003 testimony by former acting assistant secretary Aurene Martin.

It is not clear, though, whether this number takes into account the newly-recognized tribes. Of the 20 tribes recognized by the BIA or by Congress after 1988, seven are currently engaged in gaming and five more are pursuing casinos, based on information from the General Accountability Office and press reports. That would put the tally as high was 26 -- one tribe was not included because it already was counted on the NIGC's list.

Another number hard to come by is the tribes that have opened casinos in association with a settled land claim or a "last" reservation. As one notable example, the Seneca Nation of New York opened an off-reservation casino in Buffalo in 2002, bringing the tally to at least 27.

Additionally, five tribes have been given clearance by the state to open casinos in the Catskills although federal approval has not been granted.

Yet another number that needs to be explored is the tribes that opened casinos after 1988 but didn't inform the BIA they were doing so at the time of the trust land acquisition. The Chickasaw Nation in Oklahoma has admitted to this practice several times and has opened at least 11 gaming facilities on newly acquired lands.

"Do some tribes work the system better than others?" former assistant secretary Neal McCaleb told News 9 of Oklahoma City in an interview last year. "Sure they do." McCaleb is a Chickasaw citizen who oversees the tribe's business development and economic expansion activities.

Finally, the number of tribes who have opened casinos under special acts of Congress is unknown. In California alone, two tribes in the Bay Area and one tribe in southern California are using legislation to bypass IGRA's post-1988 prohibition.

All told, that would bring the number to at least 38 casinos on newly acquired lands since 1988. The number of tribes pursing off-reservation or out-of-state casinos is equally significant -- at least a dozen.

"In at least 12 states Indian tribes are seeking to move across state lines and even across multiple states to take advantage of more lucrative gaming markets," Tim Martin, the executive director of the United South and Eastern Tribes, testified last week. "This kind of reservation-shopping runs contrary to the intent of IGRA," he added.

Not everyone would agree that all of the casinos opened on newly acquired lands fall under the "off-reservation" of "reservation shopping" label. Some casinos, like the one owned by the Mohegan Tribe, are located within the boundaries of a reservation that would have existed had the tribe been recognized prior to 1994.

But the Section 20 process as it applies to all tribes and their land histories is now under heightened scrutiny by Congressional leaders. Rep. Richard Pombo (R-California), the chairman of the House Resources Committee, has circulated a draft bill that would dramatically revise the section in an attempt to limit off-reservation casinos. The leader of a landless California tribe said the proposal would hurt her tribe's efforts for a casino and others said it would give too much power to local governments.

Additionally, Sen John McCain (R-Arizona), the chairman of the Senate Indian Affairs Committee, said tribes are proposing casinos in areas "never contemplated" under Section 20 of the law.

Relevant Documents:
Kevin Gover Testimony | Aurene Martin Testimony | Title 25 CFR Part 151 Land-into-Trust Process | Section 20 of IGRA | GAO Report

Relevant Links:
NIGC Indian Land Determinations -
Land into Trust, National Congress of American Indians -