Gaming rules behind schedule, BIA head confirms

Monday, August 13, 2007  

It will be months before the Bureau of Indian Affairs finalizes regulations for gaming-related land acquisitions, assistant secretary Carl Artman said on Friday.

Announced more than a year ago, the rules have fallen behind schedule more than once. They were originally due to be finalized this summer but are still being reviewed by officials in Washington, D.C.

"I'm going to be looking at the regulations one more time," Artman said in an interview on Friday.

Artman, a member of the Oneida Nation of Wisconsin, said it was "difficult" for him to predict when the rules might be published in the Federal Register. Even if he were to finish his review today, it would take at least two months to go through the White House Office of Management and Budget, he said.

That means the BIA has gone without rules for nearly 20 years. The agency has never had a concrete process to determine how to take land into trust for casinos under the Indian Gaming Regulatory Act of 1988.

The Clinton administration sought to address one aspect of IGRA when it wrote rules for off-reservation casinos. But President Bush put them on hold when he took office in 2001 and they were never revisited.

Prodded by Sen. John McCain (R-Arizona), the BIA finally started the process to write new regulations in early 2006. But with the tribal gaming industry reporting revenues in excess of $20 billion, the effort was expanded to address other aspects of IGRA in addition to off-reservation casinos.

IGRA generally bars gaming on land acquired after 1988. But it contains several exceptions, contained in Section 20 of the law, to allow tribes to build casinos if certain conditions are met.

The IGRA exceptions apply to newly recognized tribes, restored tribes, tribes in Oklahoma with former reservations and tribes with land claim settlements. These exceptions have been used in at least 27 times since the passage of IGRA, according to government documents, Congressional testimony and public statements by Interior officials.

If a tribe cannot meet one of the exceptions, it can go through what is known as the two-part determination process. This requires not only the approval of the BIA but the approval of the state governor.

Since IGRA was passed in 1988, only three tribes have been able to open casinos under the two-part determination process. A fourth tribe is awaiting final word from Interior Secretary Dirk Kempthorne, who opposed off-reservation gaming when he was governor of Idaho.

The new Section 20 rules, for the most part, codify what the BIA has been doing internally when it looks at gaming acquisitions. But they contain some changes that would make it harder for tribes to acquire land without a historical and culture connection to the land.

For example, the regulations require a "majority" of the tribe's members to live within 50 miles of the land being taken into trust. This primarily affects newly recognized tribes and tribes whose recognition was restored by Congress.

And the regulations require the BIA to consult with local communities about the impacts of gaming acquisitions. These types of discussions mainly occur for two-part determination applications but not for the other exceptions.

The lack of regulations has posed a challenge for the BIA and the National Indian Gaming Commission, which plays a role in determining the legality of casino sites. Two recent court decisions have faulted both agencies for failing to follow the Section 20 process.

Recent Court Decisions:
Apache Tribe v. US (July 18, 2007) | Citizens Against Casino Gambling in Erie County v. Kempthorne (January 12, 2007)

Relevant Links:
Bureau of Indian Affairs - http://www.doi.gov/bureau-indian-affairs.html