After more than four years of consideration, the National Indian Gaming Commission has finally ruled on the legality of a casino being operated by an Alabama tribe.

In a May 19 decision, NIGC Chairman Phil Hogen apologized to the Poarch Band of Creek Indians for moving so slowly on the matter. But he said he wanted to take action to prevent the tribe from having to go through the process all over again.

The reason, Hogen explained, is that the Interior Department has just finalized regulations that affect casino sites taken into trust after the passage of the Indian Gaming Regulatory Act in 1988. The law bars gaming on newly acquired lands except in certain circumstances.

The regulations define standards to determine whether a tribe meets an exception in Section 20 of IGRA. In some cases, they make the process more difficult.

"Asking the tribe to start over in light of the department's regulations, however, would be significantly unfair and as such, I am persuaded that the Poarch Band, which has worked tirelessly over the past several years to assist us in our review of the Tallapoosa site should have our views now," Hogen wrote in the 27-page decision.

Hogen also acknowledged that his analysis might differ from the regulations, which become law on June 19. Still, he was confident the decision would not lead to "far ranging and unexpected interpretations" of IGRA.

Despite the favorable ruling, the tribe is worried that it might not stand. Interior Secretary Dirk Kempthorne, who supported limits on tribal gaming when he was governor of Idaho, met with Hogen recently to discuss NIGC's handling of Indian land determinations.

"We are concerned that NIGC's authority in general may be challenged," an official with the tribe said.

The 13-acre Tallapoosa site was taken into trust in 1995, well after the IGRA cutoff. But Hogen said the Poarch Band qualifies for an exception in Section 20 of IGRA that applies to newly recognized tribes.

The tribe was recognized in 1984 and its first land-into-trust applications were approved in 1988. The tribe submitted an application for the Tallapoosa site in 1989 yet the Bureau of Indian Affairs didn't approve it until 1995.

The delay could have worked against the tribe but Hogen said the acquisition was part of a "larger process" of restoring lands for the tribe. Hogen also said the tribe demonstrated historical and modern connections to site, where a Creek village and burial ground are located.

"The Tallapoosa site is only 12 miles from a portion of the Poarch reservation," Hogen said. "Many of our previous positive opinions have dealt with smaller distances."

The new regulations do not impose a mileage limit on acquisitions for newly recognized tribes. But a different policy adopted in January by the BIA makes it extremely difficult to acquire land away from existing reservations.

The new regulations require newly recognized tribes to submit a land-into-trust application within 25 years. But they also state that a tribe must not be "gaming on other lands" -- a factor that Hogen didn't appear to take into account in his decision.

The Poarch Band was already operating another gaming facility when it opened the Tallapoosa Casino. The state questioned the legality of the site in November 2003, prompting the NIGC review.

Separately, the state is challenging Interior's authority to authorize Class III gaming for the tribe. The state has refused to negotiate a compact and says a recent ruling from the 5th Circuit Court of Appeals bars the federal government from stepping in.

Relevant Documents:
NIGC Opinion | Section 20 Regulations

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