The National Indian Gaming Commission is considering a new regulation aimed at ensuring the legality of tribal casino sites, chairman Phil Hogen said this week.

The Indian Gaming Regulatory Act of 1988 requires that casinos be located on "Indian lands." But Hogen said his agency often doesn't know whether that is the case until a facility is already opened.

"There have been instances when, literally the night before it happened, we were advised the tribe is going to open a facility and we didn't know the answer to questions like, 'Is that really on Indian lands,'" Hogen said on Tuesday at the United South and Eastern Tribes (USET) conference in the Washington, D.C.-area.

To address the concern, Hogen said the NIGC is taking an approach that puts tribes, as the primary regulators, in the front seat. The proposed regulation would require that tribes, through their internal licensing process, certify that a proposed gaming facility is indeed located on "Indian lands." An existing gaming facility would also need to be certified when the license is reissued.

The tribes would also be in charge of specifying what environmental, health and public safety laws apply at the casino site, Hogen said. "Then we'd know up front, before the facility is opened, that everything is up to speed," the NIGC chairman told tribal leaders. "And if questions arose, it would be easy to find out whether it did or didn't apply."

The effort comes as key members of Congress are calling for more clarity in determining the legality of existing casino sites and proposed casino sites. The Senate Indian Affairs Committee and the House Resources Committee have held a series of hearings to focus on the way lands are taken into trust for gaming purposes.

NIGC isn't involved in the land-into-trust process -- the applications are handled by the Bureau of Indian Affairs -- but the agency is charged with issuing "Indian lands" determinations. In high-profile cases, these opinions are usually issued long before a casino is opened on the site in question.

But in some instances, the agency doesn't know whether casinos that may have been open for years are complying with IGRA. So a full-scale review of the 400-plus tribal gaming sites is underway, NIGC's acting general counsel said in Senate testimony last summer.

The overwhelming majority of casinos are located within the boundaries of reservations or are located on lands held in trust and over which the tribe has governmental authority. This qualifies the facilities as legal under IGRA.

Questions have arisen, however, about casinos located on lands taken into trust after 1988 because IGRA bars gaming on newly acquired lands unless certain exceptions are met. In at least two states -- Oklahoma and California -- the NIGC is trying to determine whether some sites comply with the law.

The Interior Department's Inspector General looked into the matter and found that, in at least 10 instances, tribes opened casinos on land taken into trust after 1988 without first ensuring the legality of the site. The report, titled "Process Used To Assess Applications to Take Land Into Trust for Gaming Purposes," faults the NIGC and the BIA for their role in the process.

The Inspector General completed the review last September but the report has not been released to the public and requests for copies of the report have not been answered.

At the USET conference, Hogen didn't lay out a timeline for the development of the regulation. He didn't offer any drafts but said the NIGC has released a new "model tribal gaming ordinance" that addresses issues like Indian lands.

Separately, the BIA has drafted a regulation to clarify how land is taken into trust for gaming purposes. The agency doesn't have a timeline for the implementation of the rule but is facing pressure from the Senate Indian Affairs Committee to come up with a concrete plan.

"I don't see how we can effectively regulate Indian gaming, and certainly exercise Congressional oversight, unless there's regulations to implement the law we passed," said Sen. John McCain (R-Arizona), the committee chairman, at a hearing last Wednesday.

Draft BIA Section 20 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)

Recent Land Determinations:
Pyramid Lake Pauite Tribe (August 19, 2005) | Osage Nation (July 28, 2005) | Buena Vista Rancheria (June 30, 2005) | White Earth Reservation (March 14, 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 - http://indian.senate.gov
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS
National Indian Gaming Association - http://www.indiangaming.org