NIGC ruling faults tribe for promising not to build casino

Wednesday, January 9, 2008  

Just days before the Bureau of Indian Affairs tightened its off-reservation casino policy, the National Indian Gaming Commission helped a Nebraska tribe with a casino nearly 200 miles from tribal headquarters.

In a December 31 decision, the NIGC said the Ponca Tribe could proceed with a Class II facility in Iowa. The move overturned an earlier ruling that would have blocked the casino because the site wasn't taken into trust for gaming purposes under BIA regulations.

The NIGC expressed concerns but said it couldn't do anything to stop the tribe. The three commissioners -- including Chuck Choney, whose last day at work was December 31 -- noted that the tribe had promised not to use the land for a casino.

"Without a consequence for those who boldly promise whatever suits them, we are concerned by the tarnish the Ponca's actions may have on the credibility and good faith of other tribes that attempt to have land taken into trust," the NIGC said in the 18-page decision.

The gaming site in Carter Lake, Iowa, is nearly 200 miles from Ponca tribal headquarters in Niobara, Nebraska. However, when Congress restored the tribe to recognition in 1990, lawmakers defined the tribe's service area to include parts of Iowa. The tribe operates an office in Carter Lake to provide services to its members.

But gaming was not the type of service the tribe said it had in mind for the 4.8-acre parcel in Carter Lake. The tribe said it would use the land for a health care facility, a concession that prompted the state of Iowa to drop a threat of litigation against the tribe's land-into-trust application.

The BIA eventually acquired the site in February 2003. In a public notice, the tribe acknowledged that the land was not eligible for gaming, meaning the tribe would have to follow the two-part determination process for off-reservation casinos if it ever changed its mind about the use of the site.

The two-part determination process, as defined by the Indian Gaming Regulatory Act, requires federal and state approval for off-reservation casinos. On January 3, the BIA issued a new policy that makes it extremely difficult to have off-reservation land placed in trust for gaming purposes.

The following day, the BIA rejected a slew of off-reservation casinos proposals, saying the gaming sites were not within "reasonable" driving distances of existing reservations. Two of the sites were less than 200 miles away, in comparison to the Ponca site.

But the NIGC said the two-part determination process doesn't apply in the Ponca case. As a restored tribe, the Poncas qualify for an exception in IGRA that makes it easier to open casinos away from existing reservations.

The decision said tribe was free to change its mind about the use of the land in Carter Lake. The NIGC cited three prior cases in which restored tribes decided to go with gaming on their newly acquired trust lands despite promising not to do so.

"As is shown by these earlier restored lands opinions, the tribe's intended use of the land is not relevant to a restored lands finding and tribes are free to change their intended use of the land to take advantage of gaming opportunities if the land otherwise meets the relevant factors," the NIGC said.

Despite ruling for the Poncas, the commission members were clearly troubled by the case. "It seems the tribe led the state down the primrose path with promises it never intended to keep. Yet, the law here prevents us from granting either a remedy to the state or imposing a consequence on the tribe," the decision stated.

If the Poncas had stated up front they were going to use the land for a casino, litigation isn't the only threat the tribe would have had to overcome. In other cases, restored and newly recognized tribes -- who are also entitled to a special exception in IGRA -- have to go through a lengthy review process before opening a casino on newly acquired lands.

In Washington, for example, the Cowlitz Tribe has been locked in a heated battle with local governments and residents about a proposed casino. Earlier this week, the NIGC approved a gaming ordinance for the tribe's gaming site after more than two years of review. Even then, the tribe's land-into-trust application and the environmental study for the casino have yet to be approved.

Just like with off-reservation casinos, the BIA has developed new regulations to tighten gaming applications by restored and newly recognized tribes. But the rules have yet to be published in the Federal Register after more than a year of development.

The Ponca Tribe has about 1,300 members in Nebraska, South Dakota and Iowa. "The Ponca Tribe of Nebraska is one of the most successful tribes in Indian Country when it comes to effective lobbying and passage of favorable legislations and administrative policies," its website states.

NIGC Decision:
In Re: Gaming Ordinance of the Ponca Tribe of Nebraska (December 31, 2007)

Off-Reservation Gaming Policy:
Guidance on taking off-reservation land into trust for gaming purposes (January 3, 2008)

Relevant Links:
Ponca Tribe of Nebraska - http://www.poncatribe-ne.org
National Indian Gaming Commission - http://www.nigc.gov