Last-minute Bush agreement threatens tribal casinos

Politics

Monday, February 23, 2009

A last-minute move by the Bush administration has tribal gaming proposals in limbo as Indian Country waits on President Barack Obama to install a new team at the Interior Department.

After dealing with a slew of restrictive policies, tribes have expressed hope that the new president will be receptive to their casino projects. More than a dozen proposals were rejected in the last year of the Bush era under a controversial gaming memorandum.

But with Secretary Ken Salazar as the sole confirmed nominee at Interior, it will likely take months to undo the damage. Obama hasn't made announcements for any of the top positions at the department since January 26.

The stalemate leaves the Bureau of Indian Affairs, the National Indian Gaming Commission and Interior's Office of the Solicitor without leaders. The three agencies play key roles in approving gaming projects and an eleventh-hour memorandum of agreement has them glued to Bush's unfavorable policies.

Two Bush appointees signed the document in the final days of the last administration, and even though one of them left the department, the agreement asserts to be in effect until January 14, 2010, well into Obama's term of office.

The memorandum settles a conflict that nearly led to the removal of NIGC Chairman Phil Hogen, a Bush nominee who signed the agreement and has stayed on board until Obama names his replacement. According to three people familiar with the situation, former Interior secretary Dirk Kempthorne was upset with Hogen's controversial approval of casinos in Alabama and Nebraska and the two met last May to discuss the issue.

As a result, the agreement now vests Interior with final approval of all casino-related legal opinions, stating that the Office of the Solicitor "must concur" with such opinions. That's a big shift from the previous memorandum, which only required the agencies to "make every attempt to reach concurrence" on opinions.

In another significant shift, the new agreement removed a phrase which stated that casino-related opinions were under the "jurisdiction" of the NIGC. Further, it relinquishes NIGC from drafting opinions in cases like the ones at issue in Alabama and Nebraska.

Finally, the new memorandum states that "restricted fee" acquisitions -- in addition to fee-to-trust acquisitions -- must be reviewed by the Office of the Solicitor and the BIA. This appears to cover a case in New York where Hogen, on the last day of the Bush administration, approved an off-reservation casino on Seneca Nation restricted fee land.

Though Obama hasn't many any personnel announcements at Interior for nearly a month, tribal leaders expect him to name Larry EchoHawk, a member of the Pawnee Nation of Oklahoma, as head of the BIA. The position of Solicitor has been offered to a tribal member, Secretary Salazar said in Congressional testimony earlier this month.

But until the new team is in place, the memorandum only gives Hogen and the NIGC the authority to draft opinions in one situation -- when a tribe submits a gaming management contract to the agency. Yet even in those cases, the agreement requires concurrence by the still-vacant Solicitor.

Former Solicitor David Bernhardt, the other Bush nominee who signed the memorandum of agreement on January 14, cited it two days later a letter to the BIA in which he rescinded a legal opinion that approved a casino for the Ione Band of Miwok Indians in California. His move appears to force the tribe into following a more difficult review process.

Relevant Documents:
New Memorandum | Old Memorandum | New Ione Band Letter | Old Ione Band Opinion