Okla. tribe leaps over Indian gaming hurdles

FROM THE ARCHIVE

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WEDNESDAY, APRIL 23, 2003

The Chickasaw Nation of Oklahoma has expanded its multi-million dollar gaming empire by exploiting loopholes in federal law, according to a review of government documents and interviews.

By skirting rules on the controversial land-into-trust process, the tribe is able to avoid lengthy reviews by Washington, D.C., bureaucrats. Approval instead occurs at the local level with little or no public comment -- and no consultation with affected tribal and state governments. In at least one case, the sign-off took just one day and the land was pulled from county tax rolls.

More importantly, the tribe is able to thwart prohibitions on gaming that occurs on land taken into trust after 1988. The Indian Gaming Regulatory Act (IGRA), passed that year, generally frowns upon such expansions and sets up hurdles that few tribes elsewhere are able to meet.

Free of the restraints, the tribe has emerged as a major player in the $12 billion and growing tribal gaming industry. According to a study by the Oklahoma Indian Gaming Association, the Chickasaw Nation has more casino facilities and casino machines than any other in the state.

From 1988 to 2001, the tribe opened at least 11 casino facilities on newly acquired trust lands. The growth -- unparalleled in Oklahoma tribal circles -- helped bring in more than $1 billion in revenues last year alone.

But the success hasn't come without prying eyes. Last summer, the National Indian Gaming Commission asked tribes in Oklahoma to prove their casinos are operating legally. Richard Schiff, the agency's chief of staff, said the review is ongoing.

Chickasaw Nation Gov. Bill Anoatubby insists the tribe's business practices are within the law. In a June 2002 interview, he described how the process works: the local Bureau of Indian Affairs agency approves the tribe's land-into-trust request and the tribe opens a gas station, tobacco shop or other non-casino enterprise. At some point in the future -- it could be years, said Anoatubby -- gaming machines are added, turning a staid travel plaza into a bustling gaming center.

"We have not tried to go around the rules," Anoatubby said.

Since the tribe doesn't say the land is for gaming purposes, IGRA's tough rules never kick in, allowing the tribe to escape scrutiny that can often take several years to resolve. An examination of government records confirmed that the BIA simply took the land into trust with little questions asked.

"We rely on the BIA to tell us what we need to do to put the land into trust," Anoatubby noted.

At the time, Anoatubby blamed the doubts about the tribe's casinos on the NIGC, then headed by former commissioner Montie R. Deer, a Clinton appointee. "I wish they would come and talk to us instead of going to the press," he said.

Anoatubby has since failed to respond to requests for comment.

Not everyone thinks the Chickasaw Nation is doing anything out of the ordinary. Kevin Gover, who headed the BIA during the last three years of the Clinton administration, said the bloated land-into-trust process almost forces tribes to take matters into their own hands.

"The tribe can either go to the Department of Interior and ask for a solicitor's opinion and ask for an OK," he said. "or they can go out and start a casino and dare somebody to stop them. It's worked a lot."

The Grand Traverse Band of Ottawa and Chippewa Indians, he recalled, opened a casino on land taken into trust post-1988. DOI officials and solicitors argued that the casino violated IGRA's blanket prohibition. But the tribe, based in Michigan, eventually prevailed in court by clearing one of the law's hurdles.

"It's a risky strategy," Gover said, "but one that works."

Other tribes aren't as lucky even when they go through normal channels. In western Oklahoma, the BIA has strongly enforced the post-1988 ban even when tribes have a credible argument for satisfying what is known as a "Section 20" exemption, named for the section of IGRA outlining the procedure.

In one example, the Fort Sill Apache Tribe has waited more than seven years on a request to open a gaming facility on an Indian-owned allotment. The parcel is held in trust for another tribe and the Apaches are seeking a transfer.

But the matter has bounced back and forth between D.C. and BIA officials in Oklahoma so many times that the tribe has never been given a clear answer.

In another instance, the Cheyenne-Arapaho Tribe asked the BIA to approve a trust land acquisition for gaming purposes. For the Chickasaw Nation in eastern Oklahoma, this can occur in as little as a day, according to government records bearing signatures of Gov. Anoatubby and BIA officials.

But the superintendent of the agency serving the Cheyenne-Arapaho Tribe refused to even consider the request unless tribal officials adopted a resolution stating they would not open a casino on the land.

"They are entitled to prompt and definitive decision," Gover said of the tribes in limbo. "I don't think they got one from us. That's not fair."

Former assistant secretary Neal McCaleb is a member of the Chickasaw Nation. He currently heads up the tribe's business development unit, a position he took when he left the Bush administration earlier this year.

During his tenure, he was recused from all matters affecting the tribe, a standard practice in the Indian-heavy BIA. But while at the agency, he instituted a change in policy that requires all land-into-trust requests for gaming purposes to be approved in Washington, D.C.

Breaking from earlier practice, the Chickasaw Nation has asked for one of these Indian land determinations, said Nedra Darling, a BIA spokesperson. The request has been sent to the Office of Indian Gaming Management, headed by George Skibine, a career bureaucrat, and is still under consideration more than a year after the request was made. Through Darling, Skibine confirmed that none of the other post-1988 Chickasaw facilities went through this rigorous process.

The gaming office, through a memorandum of understanding, works in conjunction with the NIGC to make the Indian land determinations. Clearing IGRA's hurdles, however, is difficult. According to the Senate testimony of former deputy commissioner Sharon Blackwell, the BIA has only approved about 20 exemptions since 1988. None of them were for Chickasaw facilities.

In a recent speech, Aurene Martin, the acting assistant secretary, acknowledged the BIA's role in ensuring that tribal gaming occurs within the law. But she said there are no plans to adopt new regulations for land-into-trust that impose standards on the agency.

"The Department [of Interior] has certain responsibilities under the Indian Gaming Regulatory Act and is responsible for reviewing compacts and placing land into trust which may be intended for gaming purposes," she said on April 10, "We will continue to conduct those activities in a manner that is consistent with federal law."

Relevant Links:
Chickasaw Nation - http://www.chickasaw.net
National Indian Gaming Commission - http://www.nigc.gov