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BIA official revives off-reservation land regulations

Nearly four years after being pulled by the Bush administration, regulations for off-reservation land acquisitions are back on the Bureau of Indian Affairs agenda.

George Skibine, the agency's acting deputy assistant secretary for policy and economic development, is working on a new draft of the rules. But he said last week that he has already run into delays and couldn't give attendees of the Global Gaming Expo in Las Vegas a concrete schedule.

"There is no time frame," he said on September 13 during a panel discussion on the taking of land into trust. "I was hoping to have a draft before now, so that gives you the sort of time frame that I'm in."

Later on in the conference, Skibine indicated that he has expanded the scope of the regulations. They were initially drafted during the Clinton administration to govern how the BIA conducts the "two-part determination" process for off-reservation gaming. The process requires the approval of the state governor in addition to the BIA.

Skibine is now looking at all off-reservation acquisitions, including ones that fall under exceptions to the Indian Gaming Regulatory Act that don't require state approval. These kinds of applications are far more common than the two-part determination type.

Left off the BIA's agenda, however, are the regulations that govern the land-into-trust process for non-gaming acquisitions. The Bush administration rescinding these rules in September 2001, three months before putting the gaming rules on hold indefinitely.

That stance has tribal leaders worried. They say controversy over off-reservation gaming is infecting all land-into-trust decisions at the BIA, including applications for housing, agriculture and other tribal needs.

"There seems to be a fear within [Skibine's] office that there may be a floodgate coming down," said Deron Marquez, the chairman of the San Manuel Band of Mission Indians in California.

Several lawmakers have already moved to stop the "flood" of off-reservation gaming proposal. They have introduced bills that would change or outright eliminate the IGRA exceptions, which come under Section 20 of the law.

IGRA bars casino on land acquired after 1988 but Section 20 contains exceptions to this general rule. Gaming is allowed if the land is taken into trust as part of the settlement of a land claim, as part of an initial reservation for a newly recognized tribes or as part of the restoration of land for tribes whose recognition was restored after being terminated

The fourth exception is the two-part determination process. Only after consulting with local communities and tribes can the BIA take land into trust for gaming. The state governor must then concur with the BIA's decision.

Since the passage of IGRA in 1988, only three tribes have successfully completed the two-part determination process. Several more tribes have been rejected -- either by the BIA or by the state.

On the other hand, more than 30 tribes have been built casinos on land that was taken into trust under the IGRA exceptions.

Of 15 land-into-trust applications approved since the start of the Bush administration in 2001, only two fell under the two-part determination process. In both cases, however, the state refused to concur with the BIA's decisions.

Of 9 pending applications, some are being treated as two-part determination applications, Skibine said. But most involve the other exceptions of Section 20.

The two-part determination regulations were initially proposed in the Federal Register on September 14, 2000. In December 2001, former assistant secretary Neal McCaleb reopened them for public comment but nothing has happened since then.

"I am in the process of trying to revive these regulations, which I've always thought should have been published but the new administration took exception to the work that was done in the previous administration," said Skibine.

From the Indianz.Com Archive:
McCaleb reopens controversial gaming debate (January 2, 2002) | McCaleb revokes trust land standards (November 9, 2001)

McCaleb Federal Register Notice:

Relevant Links:
NIGC Indian Land Determinations -