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Tribes face cut-off date for gaming applications

With curbs on off-reservation gaming looming, the Bureau of Indian Affairs is expecting tribes to submit a number of applications in the next two weeks, a senior agency official said on Wednesday.

George Skibine, the director of the BIA's Office of Indian Gaming Management, didn't have exact figures on the number of off-reservation casino proposals in the works. But with tribes facing a deadline in a bill sponsored by Sen. John McCain (R-Arizona) that would bar such applications, he is preparing for an influx.

The BIA currently has 13 applications pending under the two-part determination section of the Indian Gaming Regulatory Act. "That may increase in the next few days because of the April 15 deadline that is included in Sen. McCain's legislation," Skibine said at a consultation session in Albuquerque, New Mexico.

Whether the filings turn into a "flood" is unknown. Some gaming opposition groups have suggested as many as 40 are in the works. Some tribal groups -- like the United South and Eastern Tribes, whose members oppose "reservation shopping" -- say the number is more like a dozen.

Regardless of the figure, McCain warned that he would impose a March 29 cut-off, the date the Senate Indian Affairs Committee approved the measure, if he sees more than he likes. "If there's flood of applications, on the floor I'll go back to March 29, OK, and we'll have a vote [by] the full Senate," the chairman of the committee said last week.

Sen. Byron Dorgan (D-North Dakota), the committee's vice chairman, said he would agree with a date change if that happens. But "out of the issue of fairness,"he would prefer the April 15 date, one of his aides said yesterday at the BIA session.

Dorgan supports strong regulation so long as the legislation "does not have a chilling effect" on the $20 billion tribal casino industry, said Allison Binney, the general counsel for Democrats on the committee.

Even if the bill doesn't pass, tribes face some changes in industry practices. Skibine was in Albuquerque to take comments on his proposal to implement Section 20 of IGRA, the section that dictates whether land taken into trust after 1988 can be used for casinos.

About 100 people, including tribal leaders, lawyers and lobbyists, went over the proposed regulations with a great amount of detail during the three-hour session. Many had specific criticisms of the restrictions they said would be placed on tribes.

Loretta Tuell, an attorney and former BIA official, said the proposal "adds a newer burden" to newly recognized and restored tribes who are covered by special exceptions in Section 20. She cited the case of a Michigan tribe her law firm represented that waited more than six years after gaining recognition to obtain a land base.

"These are tribes that don't have anything in the first place," said Tuell, a member of the Nez Perce Tribe of Idaho. "It's just way out of sync," she said of some of the provisions in the proposal.

Skibine agreed with many of the points raised by members of the audience, especially concerns centered on language and definitions. But by and large, he said the proposal won't represent a major change to Indian Country.

"To a large degree the regulations are a continuation of existing practices," Skibine said.

Skibine also attempted to relieve concerns that tribes with pending applications will have to comply with new requirements, although he appeared open to changing course on this issue. "At this point, there is no grandfather clause in our regulations," he told attendees. Only new applications will be affected.

According to figures presented at the meeting, the BIA has 34 gaming acquisitions pending. Along with the 13 two-part determination ones, Skibine said there are 17 pending under the four Section 20 exceptions: 5 for the Oklahoma former reservation exception; 2 for the newly recognized tribes exception; 9 for the restored tribes exception; and 1 under either the restored or newly recognized exception.

Additionally, he said 4 applications are pending for on-reservation land acquisitions. Gaming is allowed for such applications under IGRA.

The next consultation session is set for April 18 in Sacramento, California. The last one will be held April 20 in Minneapolis, Minnesota. The BIA is accepting written comments up until April 20, after which the regulations will be published in the Federal Register for another round of comments.

Press Release:
DOI to Hold Consultation Meetings on Proposed IGRA Section 20 Regulations (March 27, 2006)

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

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

Pombo IGRA Bill:
To amend section 20 of the Indian Gaming Regulatory Act to restrict off-reservation gaming (H.R.4893)

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

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