The Senate and House are each considering legislation that
would change the way land is taken into trust for gaming
but neither proposal addresses issues raised by
a recent Interior Department investigation.
In an evaluation report, Inspector General
Earl Devaney looked into the land acquisition process used by
the Bureau of Indian Affairs, the National Indian
Gaming Commission and the Solicitor's Office.
The probe said the agencies were following the law
in determining whether land taken into trust
after 1988, the date of the Indian Gaming Regulatory Act,
was eligible for gaming.
"We concluded that the department has instituted a process that is
sufficient for reviewing and approving tribal applications for
federal trust acquisition of land for gaming purposes,"
the report, dated September 2005 but only made public recently,
stated.
But the evaluation highlighted two major issues in the land-into-trust
process, neither of which are being considered amid the move
to curb off-reservation gaming.
The first issue deals with the length it takes to complete
the process. Of more than 30 applications finalized since 1988,
it took Interior an average of 17 months to do its job,
according the report. A separate BIA document included
in the report put the average wait even higher, at 21 months.
The longest wait was a whopping seven years endured
by three Ojibwe tribes in Wisconsin. The tribes
submitted one application in February 1994 that took 17 months and another
in September 1995 that took 68 months. Both applications
were rejected by the BIA.
The second-longest wait was endured by the St. Croix Chippewa
Tribe of Wisconsin. After submitting an application
in October 1998, the tribe finally won approval in April 2003,
a 54-month delay.
But that's just for the tribes who have received an answer.
According to a list of "pending" applications, the BIA is
still processing requests as far back as 1991, 1995, 1996
and 1998. The 1995 case -- involving the White Earth
Band of Ojibwe in Minnesota -- was finally resolved
this year, after the report was issued.
Despite acknowledged delays and complaints from tribes,
neither the House nor Senate bills would impose deadlines
on the land-into-trust process.
Both proposals instead seek to block tribes from acquiring
non-reservation lands for gaming.
Don't look to Interior to speed up the process, either.
In a response to the evaluation,
the Solicitor Office's rejected a recommendation to
create a dedicated team to review applications.
"While processing land-into-trust applications more quickly
may benefit a particular tribe's economic development goals,
it does not necessarily fit into the overall priorities
in Indian Affairs such as trust reform, education and law
enforcement," wrote former Solicitor Sue Ellen Wooldridge,
whose deputy, David Barnhardt, has been tapped as her replacement.
"And it does not necessarily fit the needs of all of Indian
Country," the response continued.
The BIA has proposed new land-into-trust regulations but
no deadlines are imposed on the agency.
The second issue deals more with the tribal side of the process.
The investigation turned up 10 instances in which tribes
skirted Section 20 of IGRA by opening casinos
on land taken into trust after 1988.
"During our evaluation, we also found that certain tribes had converted
the use of land acquired for them in trust by the Secretary for economic
development (other than gaming) to gaming," the report
stated. "This was done without a
determination of eligibility of the land for gaming."
Section 20 contains four exceptions under which tribes
can open casinos on land acquired after 1988.
But some tribes have avoided the lengthy review process by stating
they will not conduct gaming on the land, only
to open a casino at a later date.
The House and Senate bills modify Section 20 by making
it harder to meet the exceptions. But the state
where the converted lands have been used the most -- Oklahoma --
is not affected by either proposal.
The NIGC is taking its own steps to address the problem.
In addition to creating an Indian lands database of
the 400-plus casinos,
Chairman Phil Hogen said the agency is coming up with
a regulation to require tribes to "certify" that their
gaming sites comply with IGRA.
The evaluation suggests tribal officials could be
"subject to criminal penalties" if they engage in
gaming that hasn't meet the IGRA requirements.
The list of "Lands Converted From Non-Gaming to Gaming Uses"
was compiled by regional BIA offices, not independently
by the Inspector General.
"In addition, since the BIA did not maintain a central list of lands taken into trust after
10/17/88 that were converted from gaming to non-gaming, it is not
known whether this list is complete," the evaluation stated.
For example, the Chickasaw Nation has converted lands from
non-gaming to gaming uses in at least 11 instances, according
to a review of documents by Indianz.Com. The tribe submitted only one land into trust application for gaming -- back in October 2000 -- that is still pending before the BIA. The Chickasaw Nation has retained Aurene Martin, former Principal Deputy Assistant Secretary of Indian Affairs, of the Holland & Knight firm, to lobby the Senate and Interior on this issue.
Neither the House nor the Senate bills address the
possibility of changing the process to impose
penalties or bar tribes from converting land.
Sen. John McCain (R-Arizona), the chairman of
the Senate Indian Affairs Committee, raised the issue
once at a hearing but has not included it in his
proposal.
OIG Evaluation Report:
Process Used to Assess Applications to Take Land Into Trust for Gaming
Purposes (September 2005)
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 - 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
Legislation won't address all land-into-trust issues
Wednesday, April 5, 2006
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