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BIA takes stab at off-reservation gaming regulations

The Bureau of Indian Affairs is considering regulations to clarify how land is taken into trust for gaming but the proposal wouldn't go as far as a bill pending in the Senate.

George Skibine, the BIA official in charge of gaming, revived the proposal last year, nearly four years after the original regulations were pulled by the Bush administration. Since then, controversy over gaming and the land-into-trust process has grown while tribal casinos have become an $19 billion business.

As Skibine said during the Global Gaming Expo last September, the proposal establishes criteria for the two-part determination process for off-reservation casinos. In these cases, the Interior Department and the state governor where the casino would be located have to approve the tribe's land-into-trust application after consulting with local governments and nearby tribes.

The regulations being circulated also establish criteria for the four exceptions contained in Section 20 of the Indian Gaming Regulatory Act. The exceptions apply to newly recognized tribes, restored tribes, tribes in Oklahoma with former reservations and tribes with a land claim settlement.

In both situations -- the two-part determination and the Section 20 exceptions -- the proposal seeks to clarify existing policy rather than break new ground or impose stricter requirements on tribes. The National Indian Gaming Association supports this regulatory approach, the group's executive director said earlier this month.

"We think that if these rules were laid out in a Department of Interior regulation, it could provide a clear framework and allay some of the concerns that have arisen about off-reservation gaming," Mark Van Norman said at the Western Indian Gaming Conference.

As such, the approach -- which is not final and could be changed in the future -- stands in contrast to a bill introduced by Sen. John McCain (R-Arizona), the chairman of the Senate Indian Affairs Committee. McCain's bill would eliminate the two-part determination process and the exceptions for newly recognized tribes, restored tribes and tribes with a land claim settlement. The Oklahoma exception would remain intact.

The issue will be debated today as McCain holds a hearing on off-reservation gaming. It is the sixth gaming or gaming-related hearing the committee has held since McCain took control in 2005 with a pledge to re-examine IGRA, the law he helped write 17 years ago.

"I have always been and continue to be a supporter of the rights of Indian tribes to conduct gaming," McCain said when he introduced his amendments, "but I also continue to believe that effective regulation of these enterprises are critical to tribes' continued success."

For two-part determinations, the notable parts of Skibine's proposal would:
• require consultation of local governments within a 10-mile radius of the proposed off-reservation casino.
• require consultation of nearby tribes within 50 miles of the proposed off-reservation casino.
• require tribes to submit financial projections, consulting agreements and financial agreements, and require tribes to disclose possible adverse impacts and plans to address those impacts.
• create a 60-day comment period, with possible extensions, to consult with local governments, state officials and nearby tribes

For the exceptions, the notable parts of the proposal would:
• define "contiguous" as "land(s) sharing a common boundary, or adjoining with nothing intervening. However, parcels of land are contiguous even if separated by roads, railroads, other rights of way, or streams." This definition applies mainly to the Oklahoma former reservation exception.
• require tribes to obtain Congressional approval for a land claim settlement and obtain state or federal court approval of the settlement before gaming on land acquired through the settlement.
• require newly recognized tribes to stay within their service area for an off-reservation casino. If no service area is defined, the tribe must demonstrate "significant historical and cultural ties" to the land being sought for an off-reservation casino.
• require restored tribes to obtain an act of Congress to acquire restored land, or demonstrate a "modern connection" to the land being sought for an off-reservation casino. Several criteria are laid out to determine the modern connection.
Skibine has previously stated there is no time frame for the consideration of the regulations. It could take several months, or even more than a year, to develop and finalize them.

Meanwhile, regulations to establish criteria for non-gaming land-into-trust applications are still not on the radar screen. The Bush administration shelved an earlier proposal in November 2001 despite complaints from tribal leaders.

Today's hearing starts at 9:30am and will be held in Senate Dirksen Room 106. It will be broadcast online at

Draft BIA Regulations:
Gaming on Lands Acquired After October 17, 1998

McCain IGRA Bill:
Indian Gaming Regulatory Act Amendments of 2005 (S.2078)

Relevant Documents:
McCain Floor Statement (November 18, 2005)

April 27, 2005, Hearing on Regulation of Indian Gaming:
Witness List/Testimony | Video

May 18, 2005, Hearing on Taking Land into Trust:
Witness List/Testimony | Video

June 28, 2005, Hearing on Regulation of Indian Gaming:
Witness List/Testimony | Video

July 27, 2005, Hearing on IGRA exceptions and off-reservation gaming:
Witness List/Testimony | Video

September 21, 2005, Hearing on Regulation of Class III Gaming:
Witness List/Testimony

Relevant Links:
Senate Indian Affairs Committee -
NIGC Indian Land Determinations -
National Indian Gaming Association -