Gaming rule poses major time sink for tribes and BIA

National

Friday, May 30, 2008

Tribes wait years, and sometimes even decades, to complete the land-into-trust process. A new rule from the Bureau of Indian Affairs put a raw stamp on just how much time and money it really takes.

Tribes who want to open casinos on newly acquired lands will spend anywhere from two man-years to 20 man-years on their applications, according to the regulations. That's in addition to the one to three man-years the BIA anticipates it will take to review each application.

As for the cost, the BIA estimates the process will have an impact of more than $100 million on tribes and the public. The new rule is an "economically significant regulatory action," the May 20 notice in the Federal Register stated.

"This rule establishes regulations that will impose costs on the tribe, the Bureau of Indian Affairs, State and local governments, and the public in the expectation that gaming revenues will increase for the benefit of the tribe, employees, and the surrounding community," the BIA said.

The Indian Gaming Regulatory Act bars casinos on lands acquired after 1988. But Section 20 lays out exceptions for Oklahoma tribes, newly recognized tribes, tribes that were restored to recognition and tribes with a land claim settlement.

For those who can't satisfy any of the exceptions, Section 20 identifies an alternative: the two-part determination process. Tribes have to gain state as well as federal approval to open casinos on newly acquired lands.

According to the rule, tribes will spend between two man-years to five man-years -- "or more" -- on a two-part determination application. Consulting local governments and the state will take the BIA one to two man-years, the regulation states.

As for the exceptions, the rule requires compliance with the National Environmental Policy Act. This typically means the preparation of a draft, then a final, environmental impact statement on the gaming project.

According to the rule, preparing an EIS will take anywhere between four man-years and 20 man-years "or more." The BIA will then take one to three man-years to review it and take public comments.

"NEPA requires the consideration of input from all parties on the expected impact on the human environment of the proposed major federal action," the regulations state. "The cost to the public and interested parties will vary widely."

Tribes can typically spend millions on an EIS. They usually hire firms that specialize in large-scale environmental projects, a cost they must bear on their own.

"Although IGRA permits a tribe to acquire off-reservation land for gaming, it does not require tribes to do so. The cost of an application is completely optional and avoidable for a tribe," the rule states."

"Each applicant tribe may evaluate the high cost of applying to game on off-reservation after-acquired trust land against the expected net gaming revenue to determine whether to incur the cost of complying with this rule," it continues.

The IGRA process is separate, but closely tied to the land-into-trust process under the Indian Reorganization Act. Neither law imposes any deadlines on the BIA to make decisions on tribal applications.

Tribes have demanded that regulations for the land-into-trust process contain deadlines. The Bush administration, however, rescinded a major overhaul of the rules in 2001 and never restarted the process.

Section 20 Regulations:
Part I-IV | Part V | PDF