[Federal Register: May 20, 2008 (Volume 73, Number 98)]
[Rules and Regulations]
[Page 29353-29380]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my08-12]
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Part V
Department of the Interior
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Bureau of Indian Affairs
25 CFR Part 292
Gaming on Trust Lands Acquired After October 17, 1988; Final Rule
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 292
RIN 1076-AE81
Gaming on Trust Lands Acquired After October 17, 1988
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) is publishing regulations
implementing section 2719 of the Indian Gaming Regulatory Act (IGRA).
IGRA allows Indian tribes to conduct class II and class III gaming
activities on land acquired after October 17, 1988, only if the land
meets certain exceptions. This rule articulates standards that the BIA
will follow in interpreting the various exceptions to the gaming
prohibitions contained in section 2719 of IGRA. It also establishes a
process for submitting and considering applications from Indian tribes
seeking to conduct class II or class III gaming activities on lands
acquired in trust after October 17, 1988.
DATES: Effective Date: June 19, 2008.
FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Office of
Indian Gaming, (202) 219-4066.
SUPPLEMENTARY INFORMATION: The authority to issue this document is
vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C.
2, 9, and 2719. The Secretary has delegated this authority to the
Assistant Secretary--Indian Affairs by part 209 of the Departmental
Manual.
Background
The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721, was
signed into law on October 17, 1988. 25 U.S.C. 2719 (a/k/a section 20
of IGRA) prohibits gaming on lands that the Secretary of the Interior
acquires in trust for an Indian tribe after October 17, 1988, unless
the land qualifies under at least one of the exceptions contained in
that section. If none of the exceptions in section 2719 applies,
section 2719(b)(1)(A) of IGRA provides that gaming can still occur on
the lands if:
(1) The Secretary consults with the Indian tribe and appropriate
State and local officials, including officials of other nearby tribes;
(2) After consultation, the Secretary determines that a gaming
establishment on newly acquired lands would be in the best interest of
the Indian tribe and its members, and would not be detrimental to the
surrounding community; and
(3) The Governor of the State in which the gaming activity is to be
conducted concurs in the Secretary's determination.
On September 28, 1994, the BIA issued to all Regional Directors a
Checklist for Gaming Acquisitions and Two-Part Determinations under
section 20 of IGRA. This Checklist was revised and replaced on February
18, 1997. On November 9, 2001, an October 2001 Checklist was issued
revising the February 18, 1997 Checklist to include gaming related
acquisitions. On March 7, 2005 a new Checklist was issued to all
Regional Directors replacing the October 2001 Checklist. On September
21, 2007 the Checklist was revised and issued to all Regional Directors
replacing the March 2005 Checklist.
The regulations implement section 2719 of IGRA by articulating
standards that the Department will follow in interpreting the various
exceptions to the gaming prohibition on after-acquired trust lands
contained in section 2719 of IGRA. Subpart A of the regulations define
key terms contained in section 2719 or used in the regulation. Subpart
B delineates how the Department will interpret the ``settlement of a
land claim'' exception contained in section 2719(b)(1)(B)(i) of IGRA.
This subpart clarifies that, in almost all instances, Congress must
enact the settlement into law before the land can qualify under the
exception. Subpart B also delineates what criteria must be met for a
parcel of land to qualify under the ``initial reservation'' exception
contained in section 2719(b)(1)(B)(ii) of IGRA. The regulation sets
forth that the tribe must have present and historical connections to
the land, and that the land must be proclaimed to be a new reservation
pursuant to 25 U.S.C. 467 before the land can qualify under this
exception. Finally, subpart B articulates what criteria must be met for
a parcel of land to qualify under the ``restored land for a restored
tribe'' exception contained section 2719(b)(1)(B)(iii) of IGRA. The
regulation sets forth the criteria for a tribe to qualify as a
``restored tribe'' and articulates the requirement for the parcel to
qualify as ``restored lands.'' Essentially, the regulation requires the
tribe to have modern connections to the land, historical connections to
the area where the land is located, and requires a temporal connection
between the acquisition of the land and the tribe's restoration.
Subpart C sets forth how the Department will evaluate tribal
applications for a two-part Secretarial Determination under section
2719(b)(1)(A) of IGRA. Under this exception, gaming can occur on off-
reservation trust lands if the Secretary, after consultation with
appropriate State and local officials, including officials of nearby
tribes, makes a determination that a gaming establishment would be in
the best interest of the tribe and its members and would not be
detrimental to the surrounding community. The Governor of the State
must concur in any Secretarial two-part determination. The regulation
sets forth how consultation with local officials and nearby tribes will
be conducted and articulates the factors the Department will consider
in making the two-part determination. The regulation also gives the
State Governor up to one year to concur in a Secretarial two-part
determination, with an additional 180 days extension at the request of
either the Governor or the applicant tribe. Subpart D clarifies that
the regulations do not disturb existing decisions made by the BIA or
the National Indian Gaming Commission (NIGC).
Previous Rulemaking Activity
On September 14, 2000, we published proposed regulations in the
Federal Register (65 FR 55471) to establish procedures that an Indian
tribe must follow in seeking a Secretarial Determination that a gaming
establishment would be in the best interest of the Indian tribe and its
members and would not be detrimental to the surrounding community. The
comment period closed on November 13, 2000. On December 27, 2001 (66 FR
66847), we reopened the comment period to allow consideration of
comments received after November 13, 2000, and to allow additional time
for comment on the proposed rule. The comment period ended on March 27,
2002. On January 28, 2002 we published a notice in the Federal Register
(67 FR 3846) to correct the effective date section which incorrectly
stated that the deadline for receipt of comments was February 25, 2002
and was corrected to read ``Comments must be received on or before
March 27, 2002.'' No further action was taken to publish the final
rule.
On October 5, 2006, we published a new proposed rule in the Federal
Register (71 FR 58769) because we have determined that the rule should
address not only the exception contained in section 2719(b)(1)(A) of
IGRA (Secretarial Determination), but also the other exceptions
contained in section 2719, in order to explain to the public how the
Department interprets these exceptions. The comment period ended on
December 5, 2006. On December 4, 2006, we published a notice in the
Federal Register (71 FR 70335) to extend the comment period and make
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corrections. The comment period ended on December 19, 2006. On January
17, 2007, we published a notice in the Federal Register (72 FR 1954) to
reopen the comment period to allow for consideration of comments
received after December 19, 2006. Comments received during the comment
period ending December 5, 2006, and February 1, 2007, were considered
in the drafting of this final rule.
Review of Public Comments
Stylistic and conforming changes were made to the proposed
regulations and are reflected throughout the final regulations.
Substantive changes, if any, are addressed in the comments and
responses below:
Subpart A--General Provisions
Section 292.1 What is the purpose of this part?
One comment regarded the applicability of section 2719 of IGRA to
restricted fee lands and suggested a change in Sec. 292.1. Another
comment regarded the applicability of section 2719 to trust or
restricted lands of individual Indians.
Response: The recommendation to modify Sec. 292.1 was not adopted,
because section 2719(a) refers only to lands acquired in trust after
October 17, 1988. The omission of restricted fee from section 2719(a)
is considered purposeful, because Congress referred to restricted fee
lands elsewhere in IGRA, including at sections 2719(a)(2)(A)(ii) and
2703(4)(B). Section 292.1 was not amended to include land taken in
trust after October 17, 1988 for individual Indians, nor land acquired
after October 17, 1988 in restricted fee by individual Indians, because
the language in section 2719 of IGRA is limited to Indian tribes. Also,
it is important to note that the final regulations do not address any
restrictions on tribally owned fee land within reservation boundaries,
because even though such lands are ``Indian lands'' pursuant to section
2703(4), they are not encompassed by the prohibition in section 2719.
In addition, tribally owned fee land outside of reservation boundaries
is not encompassed by section 2703(4) unless a Federal law, other than
25 U.S.C. 177, directly imposes such limitations on the land, and the
Indian tribe exercises governmental power over them.
Several comments regarded whether the regulations for section 2719
should include the requirements of ``governmental powers'' referenced
in section 2703(4), and ``jurisdiction'' referenced in section 2710.
Response: Section 2719 does not specifically reference the
``governmental powers'' and ``jurisdictional'' requirements that are
referenced in other sections of IGRA. Therefore, the final regulations
do not include references to these requirements. The governmental
powers and jurisdictional analysis is not required for the specific
purpose of determining whether newly acquired lands are otherwise
exempt from the general prohibition for lands acquired after October
17, 1988. The governmental powers and jurisdictional requirements are,
however, a necessary element for determining whether gaming may be
conducted on newly acquired lands. Therefore, depending on the nature
of the application or request, the governmental powers and
jurisdictional elements may be part of the analysis.
Section 292.2 How are key terms defined in this part?
Appropriate State and Local Officials
Several comments suggested that the 25-mile radius is too narrow
and either recommended that the regulation include a larger mile limit
or no mile limit at all.
Response: These recommendations were not adopted. From the
Department's prior experience implementing section 2719, the 25-mile
radius allows for the adequate representation of local officials when
conducting an analysis under section 2719(b)(1)(A). See discussion of
the term ``surrounding community'' below.
A few comments suggested that the regulation is too broad as it
applies to ``local officials'' and suggested that the regulation
qualify the term ``local officials'' by using examples. A few other
comments suggested that the term ``local officials'' was too vague and
similarly suggested that the regulation qualify the term by using
examples.
Response: These recommendations were not adopted. The term ``local
officials'' is adequate. Because governmental organization varies from
community to community, it is not practical to qualify the term ``local
officials'' in either an effort to broaden or limit its applicability.
One comment suggested that the definition should be broadened to
include other State officials or the Attorney General.
Response: This recommendation was not adopted. The only State
official recognized under the definition is the Governor. However, the
regulation does not limit the Governor from consulting with other State
officials.
One comment suggested that the definition should apply to
appropriate State and local officials in other States if within the 25-
mile radius.
Response: The definition includes local officials from other States
if they are within the 25-mile radius. However, the definition only
recognizes the Governor of the State in which the proposed gaming
establishment is located.
Section 292.2 How are key terms defined in this part?
Contiguous
Several comments related to the definition of contiguous. One
comment suggested removing the definition from the section. A few other
comments suggested keeping the definition, but removing the second
sentence that specifies that contiguous includes parcels divided by
non-navigable waters or a public road or right-of-way. A few comments
suggested including both navigable and non-navigable waters in the
definition. Many comments regarded the concept of ``corner
contiguity.'' Some comments suggested including the concept, which
would allow parcels that only touch at one point, in the definition.
Other comments suggested that the definition exclude parcels that only
touch at a point.
Response: The recommendation to remove the definition was not
adopted. Likewise, the recommendation to remove the qualifying language
pertaining to non-navigable waters, public roads or right-of-ways was
not adopted. Additionally, the suggestion to include navigable waters
was not adopted. The concept of ``corner contiguity'' was included in
the definition. However, to avoid confusion over this term of art, the
definition uses the language ``parcels that touch at a point.''
Section 292.2 How are key terms defined in this part?
Federal recognition or federally recognized:
A few comments suggested modifying the definition to follow the
Department of the Interior (DOI) and NIGC definitions of Indian tribe
in 25 CFR 290.2 and 502.13.
Response: This recommendation was adopted in part. We maintained
the reference to the list of recognized tribes as it provides notice to
the public. In response to comments indicating confusion caused by
separate definitions of ``tribe'' and ``Federal recognition or
federally recognized,'' the Department deleted the separate definitions
and included a single definition of ``Indian tribe or tribe.''
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Section 292.2 How are key terms defined in this part?
Former reservation:
One comment suggested deleting the word ``last'' in the definition.
Response: This recommendation was not adopted because the
definition clarifies that the last reservation be in Oklahoma, which is
consistent with the language of the statute.
Section 292.2 How are key terms defined in this part?
Land claim:
One comment suggested striking the words ``any claim'' and adding
the words ``a legal action seeking title or possession of land.''
Response: This recommendation was not adopted because a land claim
does not have to be filed in court in order to fall under the
definition; the land claim does have to allege that the subject land
was held in trust or subject to a prohibition against alienation on or
before October 17, 1988. IGRA's date of enactment was added to clarify
that claims accruing after its enactment are not included within its
scope.
One comment suggested modifying paragraph (1) to read, ``or a
constitutional, common law, statutory or treaty-based right to be
protected from government taking of Indian lands.''
Response: This recommendation was adopted in part. The words ``the
Constitution'' were added to paragraph (1), but the recommendation to
qualify the cause of action to a takings claim was not adopted.
One comment suggested including State law claims in the definition.
Response: The recommendation was not adopted because the land
claims within the meaning of IGRA arise under Federal statute, Federal
common law, the U.S. Constitution or a treaty and jurisdiction lies in
Federal, not State court.
One comment suggested adding language in paragraph (1) that reads,
``for the determination of title to lands,'' and language in paragraph
(2) that reads, ``or the United States.''
Response: The recommendation to modify paragraph (1) was not
adopted because it is too narrow; not all claims brought under the
definition are for the determination of title to lands--sometimes they
are brought for compensation. The recommendation regarding adding the
words ``or the United States'' was not adopted because the United
States is included in the word ``governmental.''
A few comments suggested various modifications to paragraph (1)
regarding the words ``Indian'' or ``Indian lands'' in order to remove
confusion with the definition of Indian lands in IGRA.
Response: These recommendations were adopted and the references to
Indian and Indian lands were removed.
Section 292.2 How are key terms defined in this part?
Legislative termination:
One comment suggested deleting the brackets around ``and/or its
members'' in order to be consistent with Sec. 292.9(b) and Sec.
292.10(c).
Response: This recommendation was adopted.
Section 292.2 How are key terms defined in this part?
Nearby Indian tribe:
A number of comments regarded the 25-mile radius limitation. Some
comments suggested the definition include no mile limitation while
others offered various extensions of the mile limitation based on
whether the area is urban or rural.
Response: These recommendations were not adopted. The 25-mile
radius is consistent throughout the regulations and provides uniformity
for all the parties involved in the Secretarial Determination process.
One comment suggested that the definition include a tribe's Federal
agency service area.
Response: This recommendation was not adopted because a tribe's
service area is too difficult to define for purposes of applying a
limitation to nearby Indian tribes.
One comment suggested striking the reference to 25 U.S.C. 2703(4).
Response: This recommendation was adopted.
A few comments suggested that the definition should include any
tribes with significant cultural or historical ties to the proposed
site. One comment suggested that the definition include any tribe
within the same county as the proposed gaming site, and another comment
suggested that the definition include any tribe within the same State.
Response: These recommendations were not adopted because they are
beyond the scope of the regulations and inconsistent with IGRA. The
statute specifically uses the word nearby. Therefore, ``any'' tribe
cannot be included in the definition.
One comment suggested that the definition should include tribes
whose on-reservation economic interest may be detrimentally affected by
the proposed gaming site. Another comment suggested creating a standard
for ``detrimental impact on nearby tribe.''
Response: These recommendations were not adopted. The definition
qualifies a ``nearby tribe'' in terms of distance to a proposed gaming
establishment. Thus, if an Indian tribe qualifies as a nearby Indian
tribe under the distance requirements of the definition, the
detrimental effects to the tribe's on-reservation economic interests
will be considered. If the tribe is outside of the definition, the
effects will not be considered. The Department will consider
detrimental impacts on a case-by-case basis, so it is unnecessary to
include a standard. The definition of ``nearby Indian tribe'' is made
consistent with the definition of ``surrounding community'' because we
believe that the purpose of consulting with nearby Indian tribes is to
determine whether a proposed gaming establishment will have detrimental
impacts on a nearby Indian tribe that is part of the surrounding
community under section 20(b)(1)(A) of IGRA. See discussion of the term
``surrounding community'' below.
Section 292.2 How are key terms defined in this part?
Newly acquired lands:
Several comments inquired as to the applicability of section 2719
to restricted fee lands, and to trust or restricted lands of individual
Indians.
Response: In response to these inquiries, a definition of ``newly
acquired lands'' was added to the regulations. It encompasses lands the
Secretary takes in trust for the benefit of an Indian tribe after
October 17, 1988. It does not encompass lands acquired by a tribe in
restricted fee after October 17, 1988 as discussed above in a response
in Sec. 292.1. It does not include land taken in trust after October
17, 1988 for individual Indians, nor land acquired after October 17,
1988 in restricted fee by individual Indians, because the language in
section 2719 of IGRA is limited to Indian tribes.
Section 292.2 How are key terms defined in this part?
Reservation:
In response to comments, the definition of reservation is clarified
and amended to include four paragraphs. The definition now specifically
includes land acquired by a tribe from a sovereign, such as pueblo
grant lands, acknowledged by the United States. Such grants occurred
prior to the land coming under the jurisdiction of the United States,
and is a closed set. The definition also specifically includes land set
aside by the United States for Indian colonies and rancherias for the
permanent settlement of the tribe, which were encompassed in part by
the prior reference to ``judicial
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determination, or court-approved stipulated entry of judgment to which
the United States is a party.'' Both pueblo grant lands and rancherias
are treated as reservations under existing Indian lands opinions.
One comment objected that land acquired under the Indian
Reorganization Act (IRA), for purposes of reorganizing the half-bloods
residing thereon, would not fall within the meaning of reservation as
defined in the proposed rule.
Response: This recommendation was adopted and such land is now
specifically included in the definition. If such land was proclaimed a
reservation by the Secretary, it would be encompassed with the
definition of reservation under both paragraphs (1) and (3). If that
land was not proclaimed a reservation, it would nevertheless fall
within paragraph (3) of the revised definition, as land acquired by the
United States to reorganize adult Indians pursuant to statute.
One comment questioned whether the definition of reservation could
be interpreted as including a disestablished reservation, or the area
of a reservation that was ceded, leaving a diminished reservation.
Response: Reservation within these regulations does not include a
disestablished reservation. Reservation does not include land ceded
from the reservation that resulted in a diminished reservation. In
addition, because the term ``reservation'' has different meanings under
different statutes, the reference to ``judicial determination, or
court-approved stipulated entry of judgment to which the United States
is a party'' was deleted as overly broad and likely inconsistent with
both the purposes of IGRA and the distinction in IGRA between
``reservation'' and ``trust land.''
One comment suggested that the term ``reservation'' in IGRA be the
same as Indian Country in 25 U.S.C. 1151.
Response: We did not adopt this comment because Congress in
enacting IGRA chose to use the concept of Indian lands instead of
Indian Country. Moreover, Congress in IGRA distinguishes between trust
lands and reservations in section 2719. Therefore for the purposes of
these regulations that interpret section 2719 of IGRA, ``reservation''
for purposes of gaming on after acquired lands is limited to the four
delineated categories in the definition of reservation and not lands
that could be Indian Country for other purposes. Thus for the purposes
of determining whether gaming can occur pursuant to section 2719,
reservation does not include all property held in trust, as IGRA
distinguishes reservation from trust lands in its definitions.
Section 292.2 How are key terms defined in this part?
Surrounding community:
Several comments related to the requirement that local governments
and nearby Indian tribes be within 25 miles of the site of the proposed
gaming establishment. Some comments suggested a greater distance, for
example 50 miles; others urged no limit and instead recommended
alternate factors, for example the community as defined by the National
Environmental Policy Act (NEPA). One comment suggested that the
surrounding community include any tribe in the State where the gaming
facility is located.
Response: These recommendations were not adopted. The definition
was modified so it is consistent with the rest of the regulations and
the word radius was added. The 25-mile radius is consistent throughout
the regulations and provides uniformity for all parties involved in the
Secretarial Determination process. There is no legislative history
informing Congressional intent in defining how the term ``surrounding
community'' in section 20(b)(1)(A) of IGRA should be interpreted.
However, it is reasonable to assume that Congress did not intend that
all possible communities be consulted, no matter how distant, because
Congress was concerned with how a proposed gaming establishment would
affect those individuals and entities living in close proximity to the
gaming establishment, or those located within commuting distance of the
gaming establishment. The ``surrounding community'' is defined in order
for the Secretary to determine whether a proposed gaming establishment
would be detrimental to the ``surrounding community.'' Since 1994, the
BIA has published a ``Checklist'' to guide agency officials in
implementing section 20 of IGRA. The ``surrounding community'' was
first defined to include local governments within 30 miles of the
proposed gaming establishment, and nearby Indian tribes within 100
miles of the proposed gaming establishment. The Checklist was
subsequently modified in 1997 to include only those local governments
whose jurisdiction includes or borders the land, and nearby Indian
tribes located within 50 miles of the proposed gaming establishment
because our experience with the 1994 standard was that it included
communities that were not impacted by the gaming establishment. In
addition, this modification was made so that the term ``surrounding
community'' would be similar to the consulted community under 25 CFR
part 151. In 2005 the Checklist modified the term ``surrounding
community'' to include local governments within ten miles of the
proposed gaming establishment. The 2005 modification was made because
the purpose of the consultation with State and local officials is to
assess detriment to the surrounding community, and our experience in
limiting the consultation to those local governments with jurisdiction
over the land or adjacent to the land was too narrow. Ultimately, our
objective in the regulation is to identify a reasonable and consistent
standard to define the term ``surrounding community'' and we believe
that it is reasonable to define the surrounding community as the
geographical area located within a 25-mile radius from the proposed
gaming establishment. Based on our experience, a 25-mile radius best
reflects those communities whose governmental functions, infrastructure
or services may be affected by the potential impacts of a gaming
establishment. The 25-mile radius provides a uniform standard that is
necessary for the term ``surrounding community'' to be defined in a
consistent manner. We have, however, included a rebuttable presumption
to the 25-mile radius. A local government or nearby Indian tribe
located beyond the 25-mile radius may petition for consultation if it
can establish that its governmental functions, infrastructure or
services will be directly, immediately and significantly impacted by
the proposed gaming establishment.
One comment suggested changing the definition to ``surrounding
governmental entities'' because it would limit the consultation process
to a government-to-government basis.
Response: This recommendation was not adopted because IGRA uses
``surrounding community.''
One comment suggested that the definition be limited to local
governments and nearby Indian tribes within the State of the applicant
tribe's jurisdiction.
Response: This recommendation was not adopted. The definition
includes local governments and nearby tribes located in other States if
they are within a 25-mile radius.
Section 292.2 How are key terms defined in this part?
Tribe:
Several comments requested a more elaborate definition of tribe.
One comment suggested that all references of ``Indian tribe'' be
changed to ``tribe.''
[[Page 29358]]
Response: The comments recommending a more elaborate definition of
Indian tribe were adopted. The definition was renamed ``Indian tribe or
tribe.'' It is unnecessary to change all references of ``Indian tribe''
to ``tribe'' because they are now both defined.
Section 292.2 How are key terms defined in this part?
General comments regarding Sec. 292.2:
One comment suggested adding a definition of trust land.
Response: This recommendation was adopted in part and is addressed
in the definition of ``newly acquired lands.''
One comment suggested adding a definition of ``gaming'' that
includes ancillary structures such as hotels and parking.
Response: This recommendation was not adopted because it is outside
the scope of the regulations and inconsistent with IGRA.
One comment suggested adding a definition of ``State or States.''
Response: This recommendation was adopted in part. The statutory
term ``State or States'' along with some defining language was inserted
in Sec. Sec. 292.4, 292.6 and 292.12 in order to add clarity.
Subpart B--Exceptions to Prohibitions on Gaming on Newly Acquired Lands
Section 292.3 When can a tribe conduct gaming activities on trust
lands?
The Department received a few comments on this section; mostly
related to structure. Additionally, a few comments suggested that this
section is an appropriate section to add a paragraph discussing the
applicability of these regulations to applications for Secretarial
Determinations and requests for lands opinions that tribes submitted
before the effective date of these regulations; for those both acted
upon and those that are pending.
Response: The recommendation regarding pending and acted upon
Secretarial Determinations and requests for lands opinions was adopted
and addressed in new Sec. 292.26. The comments related to structure
were not adopted because the section was deleted in its entirety and
replaced with new Sec. 292.3: ``How does a tribe seek an opinion on
whether its newly acquired lands meet, or will meet, one of the
exceptions in this subpart?'' The former section did not offer anything
that is not covered in other parts of the regulation. Therefore, in
response to comments requesting guidance on the process for seeking
opinions under section 2719, the Department added the new section.
Paragraph (a) allows a tribe to submit a request for an Indian lands
opinion to either the NIGC or to the Office of Indian Gaming (OIG). As
a general matter under this paragraph, a tribe should submit the
request to NIGC when newly acquired lands are already in trust and, for
example, there is a pending gaming ordinance or management contract
before the NIGC Chairman or there is a question whether NIGC has, or
would have, regulatory jurisdiction under IGRA. The tribe should submit
the request to OIG if the request concerns reservation boundaries or
reservation status. Paragraph (b) requires the tribe to submit a
request for an Indian lands opinion to the OIG if the tribe must also
request a land-into-trust application in order to game on the newly
acquired lands or the request concerns whether a specific area of land
is a reservation. An opinion provided in response to a request under
paragraphs (a) or (b) is not, per se, a final agency action under the
Administrative Procedures Act (APA). Final agency action only occurs
when agency officials act on a determination pursuant to powers granted
them by Congress. Communications from administrative agencies thus
range ``from obvious agency action, such as adjudications and
regulation, to informal pronouncements, such as opinion letters,''
which are not ?nal agency actions. See, e.g., Sabella v. United States,
863 F. Supp. 1, 4 (D.D.C. 1994). Cheyenne-Arapaho Gaming Commission v.
NIGC, 214 F. Supp. 2d 1155, 1158 (N.D. Okla. 2002); Sabella, 863 F.
Supp. at 5.
Section 292.4 What criteria must trust land meet for gaming to be
allowed under the exceptions listed in 25 U.S.C. 2719(a) of IGRA?
This section was renamed ``What criteria must newly acquired lands
meet under the exceptions regarding tribes with and without a
reservation?''
For clarity, the references to ``trust lands'' in this subpart were
changed to ``newly acquired lands.''
One comment suggested a rule in this section that precludes
structures and activities that support or are ancillary to gaming
operations on contiguous lands.
Response: This recommendation was not adopted because section 2719
of IGRA is concerned with lands on which gaming will occur. Support or
ancillary operations to gaming facilities do not play a part in the
analysis as to whether gaming will be permitted under this section.
One comment objected to any requirement that would limit a tribe to
acquiring new lands for gaming that are ``adjacent'' to their original
reservation.
Response: The requirement that limits a tribe to contiguous lands
for gaming purposes is already written into law and these regulations
cannot make a substantive change to that law.
A few comments suggested a substantial revision of this section so
that it would eliminate inaccuracies, conform to the statute and add
clarity.
Response: The suggestions were adopted in part and the section was
revised in order to address the concerns and more closely mirror the
statute.
``Settlement of a Land Claim'' Exception
Section 292.5 What must be demonstrated to meet the ``settlement of a
land claim'' exception?
This section was renamed ``When can gaming occur on newly acquired
lands under a settlement of a land claim?''
Comments on paragraph (a):
One comment suggested that the rule should require that, along with
the State, the affected local governments also must approve a
settlement if it is to qualify for the exception.
Response: This recommendation was not adopted because the
regulations can neither dictate the language of Congressional
legislation nor the parties to a particular settlement agreement;
whether it is a final order or some other enforceable agreement. If a
local government is a party in a matter concerning a settlement of a
land claim, then its approval would be necessary.
One comment suggested that the rule should require that a tribe
have a demonstrable historical connection to the site chosen.
Response: This recommendation was not adopted because the
regulations can neither dictate the requirements of Congressional
legislation nor the terms to a particular settlement agreement; whether
it is a final order or some other enforceable agreement.
One comment suggested the following insertion at paragraph (a)(2):
``Has been resolved by congressional enactment; or.''
Response: This recommendation was addressed through the changes to
paragraph (a).
One comment suggested adding a new paragraph (a)(3) as follows:
``Relates to the acquisition, transfer or exchange of land to
compensate for or replace land within a reservation that is damaged or
otherwise rendered uninhabitable by a natural disaster, catastrophic
event, or other action.''
Response: This recommendation was not adopted because it is
unnecessary to either include or exclude, in the
[[Page 29359]]
regulations, claims based on particular sets of facts and
circumstances.
A few comments suggested that under paragraph (a)(1), the rule
should state that land would not be eligible for gaming if the claim is
dismissed on procedural grounds.
Response: This recommendation was not adopted because a dismissal
on procedural grounds, i.e., laches, does not necessarily mean that a
claim lacks merit and may not resolve other issues related to
impairment of title or loss of possession.
One comment was concerned that under paragraph (a)(1), the language
``has not been dismissed on substantive grounds'' is vague and another
comment suggested dropping the clause altogether.
Response: This recommendation was adopted.
One comment suggested that paragraph (a)(1) should include actions
filed in State court.
Response: The recommendation was not adopted because the land
claims within the meaning of IGRA arise under Federal statute, Federal
common law, the U.S. Constitution or a treaty and jurisdiction lies in
Federal, not State court.
One comment suggested that under paragraph (a)(1), language be
added as follows: ``wherein the relief sought is (A) return of land,
(B) conveyance of replacement land, or (C) monetary and Congress enacts
legislation to mandate that a portion of the monetary recovery (i.e.,
the judgment funds) be used to purchase real property.''
Response: The recommendation was not adopted because the
regulations cannot dictate the terms of a settlement or the relief a
tribe may seek. While the language of the regulation does not
specifically address the scenarios addressed in the comment, when a
particular land claim otherwise meets the definition, whether for
example the legal basis involves the impairment of title or other real
property interest such as a lease, and the relief includes the return
of land, conveyance of replacement land, or money for the purchase of
other real property, the land claim may meet the requirements of this
section as long as it is either subject to Congressional enactment or
returns to the tribe all of the lands claimed by the tribe.
One comment suggested paragraph (a)(2) be replaced with the
following language: ``Is a legal claim of a tribe that has not been
filed in Federal or State court.''
Response: The recommendation was not adopted; however, the
definition and regulation allow for a land claim that is not filed in
court.
One comment suggested adding a new paragraph (a)(3) to read: ``Has
been the subject of Federal legislation which allows for acquisition of
land.''
Response: The recommendation was adopted in part and is in included
in paragraph (a) of the reorganized section.
One comment suggested replacing in paragraph (a)(2) ``included''
with ``identified.''
Response: Due to a reorganization of this section, the suggestion
is no longer relevant.
Comments on paragraph (b):
One comment suggested replacing in paragraph (b) ``must be covered
by'' with ``must have been acquired pursuant to.''
Response: Due to a reorganization of this section, the suggestion
is no longer relevant.
One comment suggested the following edits in paragraph (b)(1):
``States that the tribe is relinquishing its legal land claim to some
or all of the lands claimed by the tribe as part of the settlement,
results in the alienation or transfer of title to tribal some or all of
the lands claimed by the tribe within the meaning of 25 U.S.C. 177, and
has been enacted into law by the United States Congress; or''
Response: Due to reorganization of this section, the suggestion is
no longer relevant, but the concepts behind the edits were adopted in
part, and incorporated into the reorganized section.
One comment suggested the following edits in paragraph (b)(2):
``Returns to the tribe lands identical to the entirety of the exact
lands claimed by the tribe, does not involve an alienation or transfer
of title to tribal lands claimed by the tribe that is prohibited under
25 U.S.C. 177, and is either:''
Response: Due to a reorganization of this section, the suggestion
is no longer relevant.
One comment suggested deleting the following language under
paragraph (b)(1): ``results in the alienation or transfer of title to
tribal lands within the meaning of 25 U.S.C. 177, and has been enacted
into law by the United States Congress.''
Response: This recommendation was adopted in part as it pertains to
25 U.S.C. 177.
One comment suggested replacing paragraph (b)(2) with ``Returns to
the tribe lands or allows acquisition of lands that the tribe has a
historical connection to and is either * * * ''
Response: This recommendation was not adopted because the
regulations cannot dictate the terms of the settlement.
One comment suggested modifying the language in paragraph (b)(2)(i)
to include both Federal and [S]tate court.''
Response: This recommendation was not adopted. The definition
precludes actions filed in State court because land claims, within the
meaning of IGRA, are based on Federal law. In addition, comments
revealed that the proposed regulations could be read to identify
settlements between a tribe and State without the involvement of the
Federal Government. The final regulations clarify that the U.S. must be
a party to the settlement.
One comment suggested adding a new paragraph (b)(2)(iii) that
reads: ``Acquired pursuant to Federal legislation.''
Response: This recommendation was adopted in part and reflected in
the reorganized section.
One comment suggested that the exception should be amended to apply
to an out-of-court settlement that is approved by the United States and
that only requires the non-Indian party to voluntarily vacate the
premises, pay damages, or allows the settlement agreement to be
implemented through Secretarial approval of some form of conveyance of
interest in Indian land under existing law.
Response: The recommendation to amend the exception to apply under
the exact scenario described by the comment was not adopted; however,
to the extent that the United States is a party, the scenario would fit
under the exception.
One comment suggested replacing the introduction with ``Under this
section, class II or class III gaming may be conducted on trust lands
only if the criteria of both (a) and (b) are met.''
Response: This recommendation was not adopted. The section was
reorganized and the recommendation is no longer relevant.
A few comments suggested that the rule should require a settlement
to be ratified either by Congress or consented to by the affected local
government.
Response: This recommendation was adopted to the extent that it
relates to Congressionally enacted settlements and to the extent an
affected local government is a party to a particular settlement
agreement, whether it is a final order or some other enforceable
agreement.
[[Page 29360]]
``Initial Reservation'' Exception
Section 292.6 What must be demonstrated to meet the ``initial
reservation'' exception?
One comment suggested that Sec. 292.6(a) inappropriately restricts
the scope of the ``Federal acknowledgment process'' to the regulatory
procedures in 25 CFR part 83.
Response: The Department does not accept the recommendation to
apply these regulations more broadly to recognition by means other than
that through 25 CFR part 83. The plain meaning of the statute suggests
that it applies to tribes acknowledged by this process and no others.
Comments on paragraph (b):
Several comments suggested deleting paragraph (b). One comment
stated that there is no mention of location with respect to tribal
members or tribal government in IGRA and that it is unfair to tribes
with widely dispersed populations due to allotment and termination. One
comment fundamentally disagreed with and recommended eliminating the
50-mile majority membership requirement.
Response: These recommendations were adopted in part. While a so-
called ``modern connections'' requirement was not eliminated entirely,
the paragraph was modified in response to a number of comments that
suggested that the requirement encompass a wider range of criteria. The
50-mile majority requirement was eliminated and the paragraph was
amended to reference a significant number of tribal members or other
factors that demonstrate the tribe's current connection to the land.
The inclusion of a modern connections requirement provides an element
of notice to the surrounding community yet the elimination of the 50-
mile majority requirement recognizes that the standard is too difficult
to apply in today's mobile work related environment.
A few comments suggested reducing the 50-mile majority requirement
to 25 miles so the mileage requirements are the same for both the
``tribal majority test'' and the ``headquarters test'' in paragraph
(b). Another comment suggested making the ``50-mile majority test'' and
the ``headquarters test'' conjunctive instead of disjunctive, for
example; making the ``or'' an ``and.''
Response: These recommendations were not adopted because the
purpose of the exception is to assist newly recognized tribes in
economic development. As long as the tribe has a modern connection to
the land, the surrounding community has notice of the tribal presence.
Several comments suggested that the ``headquarters test'' is easily
manipulated and should not be included. Some comments suggested
increasing the 25-mile limit.
Response: The recommendations to remove the headquarters test and
to alter the 25-mile radius were not adopted because the headquarters
test is a useful means of determining whether a tribe has a modern
connection to the newly acquired land and the 25-mile radius is both
useful and consistent. (The word radius was added to the regulation to
provide clarity.) Nonetheless, the concerns raised by these comments
are legitimate because the version of the headquarters test in the
proposed regulations could be construed as being open to manipulation.
Therefore, the qualifier was added in the final regulations that the
tribe's headquarters or other tribal governmental facilities be in
existence at that location for at least two years at the time of the
application for land-into-trust. The addition of ``other tribal
governmental facilities'' was necessary due to concerns that tribes
often operate out of more than one headquarters or facility.
One comment suggested that the ``headquarters test'' is not in the
best interest of the tribe because it may separate a headquarters from
a tribal population center.
Response: This concern was addressed through the modification of
paragraph (b). A tribe may show a modern connection through not only a
nearby headquarters but also through other tribal governmental
facilities.
Comments on paragraph (c):
A few comments suggested deleting the reference to ``cultural
connection'' because it is essentially a subset of historical
connections and adds redundancy and confusion to the regulation.
Response: This recommendation was adopted.
One comment suggested adding specific examples of significant
historical and cultural connections in paragraph (c), for example,
``designated in a treaty, whether ratified or not.'' Another comment
stated that the term ``significant historical connection'' is too vague
to offer any protection to tribes or citizens and that the regulation
should not allow gaming on lands to which a tribe has only a transient
connection. Several comments specifically suggested a definition for
``significant historical connections.''
Response: This recommendation was adopted in part through the
addition of the new definition ``significant historical connections.''
One comment suggested deleting (c).
Response: This recommendation was not adopted. The significant
historical connection requirement insures that the tribe has a
preexisting connection to the newly acquired lands proposed to be its
initial reservation. Furthermore, the Department does not believe it is
good policy to create an initial reservation in an area where the tribe
has no preexisting connection.
One comment suggested that the word ``area,'' as it relates to the
term ``significant historical connection,'' is too broad. The comment
suggested that gaming should be limited to ancestral homelands and that
language should be inserted to reference 25 CFR 151.11(b) so that as
distance from homeland increases--nearby local officials, State
officials and tribe's input gains greater weight.
Response: This recommendation was not adopted because the actual
land to which a tribe has significant historical connection may not be
available. Additionally, input from nearby local officials, State
officials and other tribes is not part of the Initial Reservation
analysis in section 2719.
One comment suggested that the significant historical connection
requirement should be uninterrupted connection. Another comment
suggested that the requirement should show historically exclusive use.
Response: These recommendations were not adopted. They would create
too large a barrier to tribes in acquiring lands and they are beyond
the scope of the regulations and inconsistent with IGRA.
General comments on Sec. 292.6:
One comment noted that there is nothing in the ``Initial
reservation'' section of the regulations regarding process so the
public has an opportunity to comment.
Response: Unlike the exception in IGRA section 2719(b)(1)(A), the
exceptions in section 2719(b)(1)(B) do not reference an opportunity for
public comment. Because the section 2719(b)(1)(B) exceptions do not
require public comment and since they present a fact-based inquiry, it
is unnecessary to include a requirement for public comment in the
regulations. Nonetheless, there are opportunities for public comment in
other parts of the administrative process--for example, in the process
to take the land in trust and during the NEPA review process. Although
the regulations do not provide a formal opportunity for public comment
under subpart B of these regulations, the public may submit written
comments that are specific to a particular lands opinion. Submissions
[[Page 29361]]
may be sent to the appropriate agency that is identified in Sec.
292.3.
One comment suggested that the regulations include the process by
which the BIA will make their decisions. Another comment suggested that
the regulations need to include standards by which the Secretary will
make a decision.
Response: These recommendations were adopted in part. If the tribe
does not have a proclaimed reservation on the effective date of these
regulations, Sec. 292.6(d) provides standards that the tribe must
demonstrate in order to be proclaimed a reservation under the initial
reservation exception.
One comment suggested that the regulations add a section that
provides that lands far removed from historical territory shall not be
taken into trust for gaming.
Response: This recommendation was not adopted because the comment
raises issues pertaining to 25 CFR part 151--Land Acquisitions.
One comment suggested that the tribes should be required to analyze
sites that are close to aboriginal homelands.
Response: This recommendation was not adopted. Newly acquired lands
with significant historical and cultural connections may or may not
include those that are close to aboriginal homelands.
A few comments suggested striking all of paragraphs (b) and (d)
along with a large amount of (c) and (e) so that this paragraph would
limit ``initial reservation'' to a tribe acknowledged under part 83 and
the condition that ``the land is located within the external boundaries
of the first reservation of lands set aside for the tribe.''
Response: This recommendation was not adopted, as it does not take
into account the present circumstances of the tribe's location.
One comment suggested cross-referencing ``significant historical
connections'' in the section to Sec. 292.12(b).
Response: The intent of this recommendation was adopted through
adding a definition of significant historical connections to the
definition section.
One comment suggested that the request for an opinion should
include the distance of the land from the location where the tribe
maintains core governmental functions.
Response: The recommendation was not adopted because the distance
from the tribal headquarters or other governmental facility is just one
of three methods by which a tribe can meet the modern connections
requirement and is therefore not always necessary. Additionally, it is
not within the scope of IGRA to restrict such analysis to locations
with ``core'' governmental functions.
One comment suggested that the regulations require a tribe to
provide information about the tribe's ancestral ties to the land.
Response: The recommendation was not adopted; however, ancestral
ties would be part of the significant historical connection analysis.
One comment suggested that the regulations use only one test for
both the ``initial reservation'' exception and the ``restored lands''
exception; the test being that a majority of tribal members live within
50 miles of the proposed gaming site.
Response: This recommendation was not adopted. The regulations
articulate a ``modern connections'' test for both the ``initial
reservation'' and ``restored lands'' exceptions but the 50-mile
majority requirement was eliminated from each for the reasons discussed
under the comments for paragraph (b).
One comment noted that the BIA does not define what uses can be
made of an initial reservation. The commenter was concerned about an
initial reservation established solely for casino development.
Response: An initial reservation may be used solely for the
establishment of a casino.
One comment suggested a ``contemporary ties'' test instead of using
the ``modern connections test'' as set forth in the proposed
regulations.
Response: This recommendation was adopted in part. The term
``contemporary ties'' was not used, but the modern connections test as
set forth in the proposed regulations was modified using some of the
suggestions that were given in relation to the ``contemporary ties''
test.
One comment suggested striking (e) and replacing it with ``the
tribe has not conducted gaming on any other lands proclaimed to be a
reservation under 25 U.S.C. 467.''
Response: This recommendation was not adopted. Gaming is allowed on
the initial reservation under this exception. If other newly acquired
land is declared a reservation, gaming can occur on it under a two part
determination without precluding gaming on the initial reservation. To
preclude gaming on the initial reservation would be contrary to the
congressional intent in providing this exception.
``Restored Lands'' Exception
Section 292.7 What must be demonstrated to meet the ``restored lands''
exception?
A few comments noted that there are no opportunities for public
comment on restored lands decisions.
Response: Unlike the exception in IGRA section 2719(b)(1)(A), the
exceptions in section 2719(b)(1)(B) do not reference an opportunity for
public comment. Because the section 2719(b)(1)(B) exceptions do not
require public comment and since they present a fact-based inquiry, it
is unnecessary to include a requirement for public comment in the
regulations. Nonetheless, there are opportunities for pubic comment in
other parts of the administrative process--for example, in the process
to take the land in trust and during the NEPA review process. Although
the regulations do not provide a formal opportunity for public comment
under subpart B of these regulations, the public may submit written
comments that are specific to a particular lands opinion. Submissions
may be sent to the appropriate agency that is identified in Sec.
292.3.
One comment suggested that the tests for significant historic
connections and modern connections are deficient because they allow
tribes without true historic ties and with inadequate modern ties to
game on lands under the restored lands exception.
Response: The Department received comments suggesting the opposite
of this argument as well; suggesting that the historical and modern
tests were too restrictive. The final regulations consider both sides
of this issue and modifications were made accordingly.
One comment suggested using the term ``recognized by the United
States'' instead of the term ``federally recognized'' because of a
concern of confusion arising from the defined term ``federally
recognized'' in the proposed regulations.
Response: This recommendation was not adopted; however, the
potential confusion was remedied through the omission of a defined term
``federally recognized'' in the final regulation in favor of a
modification of the term ``Indian tribe or tribe.''
One comment suggested adding a paragraph to Sec. 292.7 that the
lands acquired in trust for the tribe meet the requirements of Sec.
292.11.
Response: This recommendation was adopted for purposes of clarity.
[[Page 29362]]
Section 292.8 How does a tribe qualify as having been federally
recognized?
One comment suggested that paragraph (a) include more details
regarding the treaty negotiations with the tribe. For example, the
comment suggested including the following requirements: Detailing who
negotiated with a tribe; that the negotiations be authorized by the
Department; that the facts and subject matter of the negotiations be
memorialized; that the tribe be organized at the time of the
negotiation; and that a definition of ``negotiates'' be included to
mean a goal-oriented government-to-government discussion.
Response: These recommendations were not adopted. Paragraph (a)
will be applied on a case by case basis.
One comment suggested that paragraph (b) should require that the
Department make the opinion formally, in writing, and according to
governing regulations.
Response: This recommendation was not adopted. While the opinions
are always going to be in writing, in the past they were made with
varying degrees of formality depending on the situation presented.
Regulatory guidance making these requirements mandatory is not feasible
and is unnecessary.
One comment suggested paragraph (b) should not use the word
``could'' because there is a difference between tribes that could and
tribes that actually did organize under the Acts.
Response: This recommendation was not adopted because a
Departmental opinion that a tribe could organize is evidence of Federal
recognition, regardless of whether the tribe actually organized under
the Acts.
One comment suggested that the word ``including'' in paragraph (c)
be removed and that the paragraph be modified to require the
legislation to specifically name the tribe in question and to describe
the substance of the relationship.
Response: This recommendation was adopted in part. The word
``including'' was removed and replaced with the word ``naming.''
A few comments suggested paragraph (d) needs modification. One
comment suggested differentiating between land acquired for organized
and land acquired for landless Indians without ``ethno historic
coherence.'' Another comment argued that the section is too permissive
because it qualifies a tribe as having been recognized if the United
States acquires land in trust for a tribe's benefit.
Response: These recommendations were not adopted. Paragraph (d), as
written, provides sound guidance to the Department in issuing its
opinion regarding whether a tribe was once federally recognized.
One comment suggested paragraph (e) should require certain
standards regarding the tribe, the relationship with the Federal
Government, and what constitutes evidence.
Response: These recommendations were not adopted because the
regulation needs no further elaboration and is clear on its face.
One comment suggested striking the word ``federally'' from the
introduction sentence and the word ``Federal Government'' from
paragraph (e).
Response: These recommendations were not adopted because IGRA is a
Federal statute concerning federally recognized tribes, 25 U.S.C.
2703(5).
One comment suggested that the section include a paragraph (f) that
requires the tribe seeking a lands opinion to be the political and
genealogical successor to the tribe identified through paragraphs (a)
through (e).
Response: This recommendation was not adopted because it is
unnecessary. These concerns are addressed and inherent in the restored
lands analysis under Sec. Sec. 292.9-12.
One comment suggested using Professor Cohen's test for Federal
recognition, which it characterized as Congressional or Executive
action and a continuing relationship with the group, and that restored
lands opinion should be made by the BIA's Branch of Acknowledgment and
Research (BAR), now the Office of Federal Acknowledgment (OFA).
Response: These recommendations were not adopted because OFA's
expertise is in analyzing a petitioner under other criteria, such as
community, political influence, and genealogy, not land matters. The
section already requires Executive or Congressional action. The
continuing relationship can be evaluated under (e), but is not required
when any of factors (a) through (d) are demonstrated.
Section 292.9 How does a tribe show that it lost its government-to-
government relationship?
A comment questioned how old a document must be to be considered
``historical'' and another comment wanted to include as acceptable
evidence, documentation from sources other than the Federal Government,
including oral histories, to show that the Federal Government either
affirmatively terminated its relationship or that the relationship
ceased to exist, such as through inaction.
Response: These recommendations were not adopted. Although
``historical'' is somewhat imprecise, it adds clarity to the type of
documentation that is acceptable evidence under this section. Modern
documents about events in the past are not acceptable evidence.
Acceptable documentation is written documentation from the Federal
Government specifically terminating the relationship, or indicating
consistently that there is no longer a government-to-government
relationship with the tribe or its members. Historical or modern
accounts that conclude or assume that there is no government-to-
government relationship, or that the relationship has lapsed through
inaction of the tribe or the government, are secondary evidence and are
not acceptable evidence within the meaning of this section. Similarly,
historical or modern accounts that the Federal Government did not or
does not acknowledge a specific responsibility with the group because
there is no longer a trust asset to protect or disburse, or because the
Federal Government did not or does not know who the group is, are not
acceptable evidence, even if the account is from the Federal
Government.
One comment stated that in paragraph (a), the Congressional action
must be clear that the relationship was terminated and that the tribe
be identified by name.
Response: This recommendation was not adopted because the commenter
did not suggest how to clarify the paragraph. The paragraph, as
written, is sufficient to address the commenter's concerns.
One comment suggested adding the phrase ``clearly and affirmatively
acted to'' after ``Executive Branch,'' in paragraph (b), in order to
preclude tribes from asserting that administrative errors constitute
deliberate acts of termination.
Response: This recommendation was not adopted because the words
``show'' and ``no longer'' are adequate.
A few comments argued that the paragraph (b) should give no
excessive deference to the Department of the Interior or the Department
of Justice and that all branches of the Federal Government should be
given equal weight. One comment suggested adding ``Federal Government''
at the end of the first sentence. In addition to adding ``Federal
Government,'' another comment suggested striking everything but the
first sentence.
Response: This recommendation was adopted in part and the paragraph
was modified by using the words ``Federal Government.'' The second
sentence was retained because it is necessary.
One comment stated that in paragraph (b) the rule should make clear
that the
[[Page 29363]]
documentation include evidence that the tribal government existed at
the time of the termination, that the acts constituting the termination
were unambiguous, and that the subsequent acts by the Government were
consistent with the tribe's termination.
Response: This recommendation was not adopted. Tribe is a defined
term and the definition is adequate to address the commenter's concern.
The language pertaining to government action requires that the action
be unambiguous. When termination is unambiguous, then it is not
necessary to review whether subsequent acts are consistent with the
termination.
One comment suggested striking the language ``or its members'' in
paragraph (b) because the comment stated that there cannot be a
government-to-government relationship with members apart from a tribal
government.
Response: This recommendation was not adopted. The language was
kept in order to accommodate a wide variety of circumstances.
One comment suggested modifying the preamble of this section with
the following: ``as having at some later time lost its government-to-
government relationship with the United States.'' The comment stated
that the change makes the preamble consistent with the language of
Sec. 292.7(b) and the introductions to Sec. Sec. 292.8 and 292.10.
Response: This recommendation was adopted in general and the
section was modified accordingly. The specific words ``with the U.S.''
were not added as they are understood in light of Sec. 292.8.
One comment questioned whether California rancherias should be
allowed to qualify as restored lands under IGRA.
Response: While the California tribes indeed share a unique path
towards restoration, if the newly acquired lands otherwise meet the
requirements of the statute and regulations, the exception pertains to
them.
Section 292.10 How does a tribe qualify as having been restored to
Federal recognition?
One comment suggested changing the term ``tribal government'' to
``tribe,'' in paragraph (a), in order to be consistent.
Response: This recommendation was adopted.
One comment stated that paragraph (a) should make clear that the
statute must be unambiguous as to its intent and identify the tribe
being restored.
Response: This recommendation was not adopted because the present
language anticipates this clarity and specificity.
One comment stated that 25 U.S.C. 2719(b)(1)(B)(iii) unambiguously
restricts application of the restored lands exception to ``an Indian
tribe that is restored to Federal recognition.'' Thus, it argues,
paragraph (a) is overly broad and should be modified because it allows
recognition, acknowledgment or restoration through legislative
enactment, including a tribe's initial recognition.
Response: This recommendation was not adopted because Congress has
not been clear in using a single term in restoration bills.
Additionally, the addition of ``(required for tribes terminated by
Congressional action)'' in paragraph (a) addresses this issue. To the
extent this comment concerned ``initial'' recognition by Congress where
no prior relationship existed, legislation would not be encompassed by
Sec. 292.9.
Several comments suggested that this section needs to include
administrative actions of restoration, recognition, and reaffirmation
that are outside the Federal acknowledgment process. For example, one
comment suggested modifying paragraph (b) to read; ``[r]ecognition
through administrative action,'' and another suggested ``recognition
through other official action of the Secretary or his/her designee.''
Response: This recommendation was not adopted. Neither the express
language of IGRA nor its legislative history defines restored tribe for
the purposes of section 2719(b)(1)(B)(iii). When Congress enacted IGRA
in 1988, it authorized gaming by existing federally recognized tribes
on newly acquired lands if those lands were within or contiguous to the
boundaries of an existing reservation. If the tribe had no reservation,
Congress authorized gaming on newly acquired lands within the
boundaries of its former reservation. We can safely infer that Congress
understood that a list of federally recognized tribes existed and
authorized on-reservation, or on former reservation, gaming for those
tribes. We must, therefore, provide meaning to Congress's creation of
an exception for gaming on lands acquired into trust ``as part of the
restoration of lands for an Indian tribe restored to Federal
recognition.'' We believe Congress intended restored tribes to be those
tribes restored to Federal recognition by Congress or through the part
83 regulations. We do not believe that Congress intended restored
tribes to include tribes that arguably may have been administratively
restored prior to the part 83 regulations.
In 1988, Congress clearly understood the part 83 process because it
created an exception for tribes acknowledged through the part 83
process. The part 83 regulations were adopted in 1978. These
regulations govern the determination of which groups of Indian
descendants were entitled to be acknowledged as continuing to exist as
Indian tribes. The regulations were adopted because prior to their
adoption the Department had made ad hoc determinations of tribal status
and it needed to have a uniform process for making such determinations
in the future. We believe that in 1988 Congress did not intend to
include within the restored tribe exception these pre-1979 ad hoc
determination. Moreover, Congress in enacting the Federally Recognized
Indian Tribe List Act of 1994 identified only the part 83 procedures as
the process for administrative recognition. See Notes following 25
U.S.C. 479a.
The only acceptable means under the regulations for qualifying as a
restored tribe under IGRA are by Congressional enactment, recognition
through the Federal acknowledgment process under 25 CFR 83.8, or
Federal court determination in which the United States is a party and
concerning actions by the U.S. purporting to terminate the relationship
or a court-approved settlement agreement entered into by the United
States concerning the effect of purported termination actions. While
past reaffirmations were administered under this section, they were
done to correct particular errors. Omitting any other avenues of
administrative acknowledgment is consistent with the notes accompanying
the List Act that reference only the part 83 regulatory process as the
applicable administrative process.
One comment stated that paragraph (c) is contrary to the Federally
Recognized Indian Tribe List Act of 1994, which it stated controls the
analysis of this rule. The comment argues that a ``court-approved
stipulated entry of judgment'' is not a ``decision'' on the merits as
specified in the Act.
Response: According to Department's analysis, paragraph (c) is not
inconsistent with the List Act. The litigation encompassed by Sec.
292.10 concerns challenges to specific actions taken by the Federal
Government terminating, or purporting to terminate a relationship, such
as the Tillie Hardwick litigation in California. There is no reason
under IGRA or the List Act to preclude a settlement concerning
challenged termination actions from ``restoring'' a government-to-
government relationship if the U.S. is a party and the court approves
it.
One comment suggested adding the following language to paragraph
(c):
[[Page 29364]]
``Was entered into by the United States which:'' and striking paragraph
(1).
Response: This recommendation was adopted in part and the paragraph
was modified accordingly.
One comment suggested separating (c) into two parts as follows:
``(c) Recognition through a judicial determination; or (d) Recognition
through a court-approved stipulated entry of judgment or other
settlement agreement.'' The comment stated that recognition through a
judicial determination should be sufficient, whether or not the
judicial determination satisfies the criteria set forth in paragraphs
(1) and (2).
Response: This recommendation was not adopted. While the structure
of the paragraph was changed, the criteria set forth in (1) and (2) are
still necessary. At issue is the government-to-government relationship
between the U.S. and the tribe, and the U.S. must be a party in order
to be bound by the court's decision.
One comment suggested that a court-approved ``settlement
agreement'' should be sufficient, whether or not it is styled a
``stipulated entry of judgment.''
Response: This recommendation was adopted.
One comment suggests striking the word ``Provides,'' in paragraph
(2), and replacing it with ``Settles claims'' in order to remedy a
potential scenario where the settlement agreement omits pertinent
language but, nonetheless, settles the tribe's claim that it was never
legally terminated.
Response: This recommendation was adopted, consistent with prior
administrative practice concerning the Tillie Hardwick litigation.
One comment stated that since there are no judicial findings in a
court-approved stipulated entry of judgment, such means provide an
inadequate basis to restore a tribe.
Response: This concern was addressed through the revision to
paragraph (c). The relevant operative language in the Federal court
determination or court-approved settlement agreement must include
language pertaining to termination rather than restoration.
One comment noted that parties do not enter into judicial
determinations. Thus, it argued, paragraph (1) does not make sense as
it pertains to paragraph (c).
Response: This concern was addressed and the paragraph was amended
accordingly.
One comment suggested that the regulations should provide a
mechanism to give notice of any action to affected local communities.
Furthermore, the comment suggested that the rule should make clear that
the party has standing to intervene if it can demonstrate that it is
affected and that the tribe should not be able to raise sovereign
immunity as a bar.
Response: These recommendations were not adopted because they are
beyond the scope of the regulations and inconsistent with IGRA.
One comment suggested inserting language requiring the applicant
group to clearly establish by documented evidence that its current
members are directly descended from members of the terminated tribe.
Response: This recommendation was not adopted because requiring
genealogies of tribal members is beyond the scope of the regulations,
inconsistent with IGRA and not necessary in order to decide whether the
applicant tribe is a restored tribe.
Section 292.11 What are ``restored lands?''
One comment suggested striking the word ``specific'' in paragraph
(a). A few comments suggested striking any language in paragraph (a)
and Sec. 292.11 pertaining to a geographical area or parameters.
Response: These recommendations were not adopted. The regulations
include a contingency for legislation that requires or authorizes the
Secretary to take land into trust for the benefit of a tribe within a
specific geographic area because in such scenarios, Congress has made a
determination which lands are restored. Because the inclusion or
exclusion of specific geographical areas in restoration legislation is
beyond the control of the Department, the regulations must address both
contingencies.
One comment suggested that language in paragraph (b) should provide
expert administrative guidance to Congress when it drafts restoration
legislation.
Response: This recommendation was not adopted because it is outside
the scope of the regulations and inconsistent with IGRA.
One comment suggested that the criteria in paragraph (b) should
apply to land acquired by a tribe that is recognized through 25 CFR
83.8 as well.
Response: This recommendation was adopted and the paragraph was
modified accordingly. In order to adopt this and other recommendations,
the section was re-organized.
One comment suggested that paragraph (b) and all related paragraphs
in Sec. 292.12 should be revised with the requirement that the tribe's
modern and historical connection to the land must have been continuous
since at least before October 17, 1988.
Response: This recommendation was not adopted because it is
inconsistent with the purposes of this provision of IGRA and is thus
beyond the scope of the regulations.
One comment suggested inserting the words ``recognized,
acknowledged or'' into both paragraph (a) and (b) because the broader
language is consistent with Sec. 292.10(a). Also, the comment
suggested adding the words ``for the benefit of the tribe'' in
paragraph (a) and replacing the words ``the restoration'' with the word
``such'' in paragraph (b).
Response: These recommendations were adopted in part and the
paragraphs were modified accordingly.
One comment suggested modifying paragraph (b) by replacing ``modern
connection'' with ``contemporary ties.'' The comment also suggested
striking the word ``significant'' and removing the temporal
requirement.
Response: These recommendations were not adopted. However, the
modern connections test as set forth in the proposed regulations was
modified using some of the suggestions that were given in relation to
the ``contemporary ties'' test. Striking the word ``significant'' and
removing the temporal requirement would so broaden the benefit to
restored tribes that it would be detrimental to other recognized
tribes, contrary to Congressional intent.
One comment suggested striking the words ``the restoration'' from
paragraph (b) and striking the language pertaining to the modern,
historical and temporal requirements in Sec. 292.12. Instead, the
comment suggested replacing the reference to the requirements with:
``The land is located within an area where the tribe has connections to
the lands that meet the requirements of Sec. 292.12.''
Response: These recommendations were adopted in part. The phrase
``the restoration'' is necessary and therefore retained in the
regulations. The recommendation pertaining to referencing Sec. 292.12,
instead of listing the requirements, was adopted.
One comment stated that there is a structural ambiguity in Sec.
292.11 because the conjunctions are not clear and that the section
needs clarified. For example, the paragraph could be read as requiring
(a or b) and c, or it could be read as requiring a or (b and c).
Response: This recommendation was adopted and the section was
modified in order to clarify that ``the tribe must show at least one of
the following'' in order for the newly acquired lands to qualify as
restored lands.
[[Page 29365]]
One comment suggested adding a number of paragraphs in order to
address Oklahoma tribes in this section.
Response: This recommendation was not adopted because it in
unnecessary to single them out. Limitations on the Oklahoma tribes are
specifically addressed in other parts of section 2719 and the
regulations.
One comment stated that the rule should conform more closely to
applicable law and suggested adding a paragraph (d) to require that the
land be the first trust acquisition following restoration.
Response: This recommendation to add a paragraph (d) was not
adopted; however, temporal limitations are addressed in Sec. 292.12 of
the regulations.
Section 292.12 How does a tribe establish its connection to the land?
This section was renamed, ``How does a tribe establish its
connection to newly acquired lands for the purposes of the `restored
lands' exception?''
Paragraph (a):
Several comments concerned the ``headquarters test'' in paragraph
(a). Comments ranged from support to requests to eliminate the test all
together. For example, some comments requested that the rule be
excluded because it is arbitrary and potentially subject to abuse or
manipulation; some suggested removing the test without explanation--one
comment suggests that the headquarters test was designed specifically
to accommodate a particular tribe. Some comments suggested that if the
headquarters test is included, there should be a temporal requirement
that requires the headquarters to be located within 25 miles of the
proposed lands since before the enactment of IGRA. Another comment
suggested the temporal requirement be 30 years. One comment stated that
25 miles is too great a distance, while another comment suggested it
should be extended to 50 miles.
Response: The recommendations to remove the headquarters test and
to alter the 25-mile radius were not adopted because the headquarters
test is a useful means of determining whether a tribe has a modern
connection to the newly acquired land and the 25-mile radius is both
useful and consistent. (The word radius was added to the regulation to
provide clarity). Nonetheless, the concerns raised by these comments
are legitimate because the version of the headquarters test in the
proposed rule could be construed as being open to manipulation.
Therefore, the qualifier was added in the final rule that the tribe's
headquarters or other tribal governmental facilities be in existence at
that location for at least two years at the time of the application for
land-into-trust. The language of ``other tribal governmental
facilities'' was added to address concerns that tribes often operate
out of more than one headquarters or facility.
A few comments suggested adding a paragraph to the modern
connection test that allows land that is located within the tribe's
service area--as designated by legislation restoring the government-to-
government relationship with the tribe, or by the BIA, Department of
Health and Human Services or by the Department of Housing and Urban
Development. Similarly, one comment suggested including the following
language at the end of paragraph (a): ``or the land has been designated
by the BIA as included within the [t]ribe's service population area.''
Response: These recommendations were not adopted because the
service area is not necessarily defined by the DOI and would thus add
complication to the analysis due to the added necessity of
collaboration with other agencies. Furthermore, the tribe's service
area is often based on factors not connected with the DOI's section
2719 analysis and is often ill-defined, overlapping and potentially
inconsistent.
Several comments suggest removing the ``modern connections'' test
because, for example, the test is not in the plain language of IGRA,
and the test is contradicted by case law (e.g., Grand Traverse Band of
Ottawa and Chippewa Indians v. United States Attorney, 198 F.Supp. 2d
920 (W.D. Mich. 2002), aff'd 369 F.3d 960 (6th Cir. 2004); Confederated
Tribes of the Coos, Lower Umpqua, and Suislaw Indians v. Babbitt, 116
F.Supp. 2d 155 (D.C. Cir. 2000)) that focuses on whether the lands were
historically occupied by the tribe.
Response: This recommendation was not adopted. Though the ``modern
connections'' test is not in the plain language of IGRA, nor is the
test for a historical connection. The cases cited by the commenter do
not limit the Department from considering a modern connection and only
discuss the historical connection in relation to the process by which
the Department made its decision. Additionally, the cases cited by the
commenter provide guidance for the interpretation of section
2719(b)(1)(B)(iii); lands that are taken into trust as part of the
restoration of lands for an Indian tribe that is restored to Federal
recognition. The Secretary has discretion to require a modern
connection as part of the restoration of lands. The modern connection
test remains in the final regulations because it offers a mechanism to
balance legitimate local concerns with the goals of promoting tribal
economic development and tribal self-sufficiency, both of which are
reflected in IGRA.
Several comments addressed concerns about the ``modern connection
test'' and suggested modifying it. For example, a few comments stated
that the test for a modern connection to the land is too permissive and
suggested that the casino site must be in the immediate vicinity of the
tribe's current population or that the 50-mile majority requirement be
narrowed. Several comments suggested that the modern connection test is
too narrow and should be broadened to allow the Department to consider
a greater degree of facts and circumstances or to expand or eliminate
the 50-mile majority requirement. A few comments noted that a hard-line
50-mile majority requirement presents practical difficulties when it
comes to implementation.
Response: The recommendations to narrow the modern connection test
were not adopted. Given the potential difficulty and confusion in
administering the 50-mile majority requirement, the recommendations to
eliminate the requirement were adopted in favor of a test that allows
for the consideration of a number of different factors. Additionally,
in balancing these concerns, the Department added the following
language in paragraph (a): ``The land is located within the State or
States where the Indian tribe is presently located, as evidenced by the
tribe's governmental presence and tribal population, and the tribe can
demonstrate one or more of the following modern connections to the
land.''
One comment suggested requiring both a majority population test and
a headquarters test.
Response: This recommendation was not adopted. As noted, the 50-
mile majority requirement was eliminated. Nonetheless, the purpose of
the exception is to assist restored tribes in economic development. As
long as the tribe has a modern connection to the land, the surrounding
community has notice of the tribal presence.
One comment suggested adding a requirement for a culturally
significant modern connection.
Response: This recommendation was not adopted because it is not
clear what the commenter intended by ``culturally significant.''
Assuming the commenter suggested a more narrow interpretation of modern
connections, the recommendation is not adopted because, while the
modern connections
[[Page 29366]]
requirement was not eliminated entirely, the paragraph was modified in
response to a number of comments that suggested that the requirement
encompass a wider range of criteria. As discussed above, the 50-mile
majority requirement was eliminated and the paragraph was amended to
reference a significant number of tribal members or other factors that
demonstrate the tribe's current connection to the land. The inclusion
of a modern connections requirement provides an element of notice to
the surrounding community yet the elimination of the 50-mile majority
requirement recognizes that the standard is too difficult to apply in
today's mobile work related environment.
One comment suggested striking (a) and replacing it with the
following: ``Contemporary ties to the area in which the land is
located.''
Response: This recommendation was not adopted; however, the modern
connections test as set forth in the proposed regulations was modified
using some of the suggestions that were given in relation to the
``contemporary ties'' test.
Paragraph (b):
One comment requested a definition of ``tribe'' that states that an
unconnected group of Indians, with no common ethno historic
affiliation, does not constitute a tribe for the purpose of paragraph
(b).
Response: This recommendation was not adopted. Tribe is defined in
the definition section and applies throughout the regulations.
One comment stated that the phrase ``significant historical
connection'' in (b) is interpreted too broadly, and that it should only
be found when a tribe has had exclusive use and occupancy of an area.
Additionally, the comment suggested that an Indian Claims Commission
determination on restored lands should be binding.
Response: This recommendation was not adopted. In response to
numerous comments, the term ``significant historic connection'' is now
defined in the definition section of these regulations. While not
limited to the tribe's exclusive use and occupancy area, the definition
specifies certain criteria that a tribe must show in order to meet the
definition, e.g., ``the land is located within the boundaries of the
tribe's last reservation under a ratified or unratified treaty, or a
tribe can demonstrate by historical documentation the existence of the
tribe's villages, burial grounds, occupancy or subsistence use in the
vicinity of the land.''
One comment suggested that a tribe should not be able to establish
a historical connection if they are a disparate group of traveling
Indians traveling through territory at some point in their distant
history.
Response: We received comments pertaining to the issue raised by
this comment that argue both in favor of and against a tribe's ability
to establish a connection to the land when their past contacts were
transitory or brief in nature. The definition of ``significant
historical connection'' establishes criteria which require something
more than evidence that a tribe merely passed through a particular
area.
One comment suggested (b)(2) should reflect advisories in case law
that support the general idea that there are limits to what can be
included as restored lands. Another comment suggested that the term
``significant'' in paragraph (b) is too vague.
Response: These recommendations were addressed through the addition
of a definition for ``significant historical connection.''
A few comments suggested modifying (b)(2) by striking the word
``documented'' and one comment suggested adding ``whether evidenced by
documentation or oral history.''
Response: This recommendation was not adopted because the paragraph
was restructured. The definition of ``significant historical
connection'' calls for ``historical documentation.'' Because a
significant historical connection would be documented there is no need
to include oral history as acceptable evidence. Such oral history is
unnecessary when documentation is available; it would be insufficient
alone.
One comment suggested adding the words ``or by other means'' in
paragraph (b)(1) because there are other valid means by which a
reservation may have been established other than by treaty for purposes
of Sec. 292.12(b).
Response: This recommendation was not adopted because it is
unnecessary. The reference to reservation under a ratified or
unratified treaty is only one manner in which a significant historical
connection can be demonstrated according to the definition. There is no
need to broaden this portion of the definition because the evidence of
the tribe's villages, burial grounds, occupancy or subsistence use in
the vicinity of the land will identify the historical connections
without raising the ambiguity that ``other means'' may create.
One comment suggested modifying the language in the introduction to
Sec. 292.12 to read ``Sec. 292.11(b).''
Response: This recommendation was rendered unnecessary by the
rewriting of Sec. 292.11.
One comment suggested changing the word ``court'' to ``courts'' in
paragraph (b)(2).
Response: This recommendation was not adopted because the paragraph
was restructured and the reference to specific evidence deleted as
unnecessarily restrictive.
One comment stated that the word ``significant'' in paragraph (b)
is insufficient because it is ambiguous and provides little guidance as
to temporal requirements. Some comments suggested deleting the word
``significant'' in paragraph (b) because it seems to create a higher
standard for historical ties in comparison to modern ties. A few
comments also suggested deleting the language pertaining to giving
Federal Government documents significant weight. One comment suggested
modifying the language to read, ``the land is located in an area to
which the tribe has significant documented historical connections; or
the tribe can establish any other evidence that demonstrates the
existence of a significant historical connection to the land or area in
which the land is located.''
Response: These recommendations were adopted in part and addressed
by the changes to the definition of significant historical connection.
The suggestion to delete ``significant'' was not adopted because the
word reinforces the notion that the connection must be something more
than ``any'' connection. The definition does not include a temporal
requirement because such inquiry is highly dependant of the facts and
circumstances of each tribe's historical connection to the land. The
suggestion regarding the weight given to Federal Government documents
was adopted as unnecessarily restrictive.
One comment suggested adding aboriginal language in paragraph (b).
Response: This recommendation was not adopted because it is unclear
what the comment was meant to accomplish.
Paragraph (c):
One comment requested that the rules put all restored tribes on an
even playing field by incorporating the, so called, Grand Traverse
standard into the rule.
Response: This recommendation was adopted in so far as we followed
the Grand Traverse standard that if the tribe is acknowledged under 25
CFR 83.8, and already has an initial reservation proclaimed after
October 17, 1988, the tribe may game on newly acquired lands under the
restored lands exception provided that it is not gaming on any other
land.
One comment suggested that the rule further define ``temporal
connection''
[[Page 29367]]
because the degree of temporal connection to the land varies among
tribes, especially since their post-termination relations with State
and local governments likewise varies, depending on the level of
hostilities.
Response: This recommendation was not adopted. The paragraph, as
written, takes into account a wide range of variables.
One comment suggested change the temporal limit from 25 to 20
years.
Response: This recommendation was not adopted. The Department
received numerous comments arguing for both less than and more than 25
years. The 25 year number is both a practical and reasonable number
based on the Department's experience under section 2719.
One comment stated that (c) is inadequate because (c)(1) allows
anywhere from a 6 minute to a 100 year span and (c)(2) gives a 25 year
period. One comment suggested changing the conjunction between
paragraph (1) and (2) under (c) from an ``or'' to an ``and'' because
the commenter suggested that this would make the section consistent
with court decisions.
Response: These recommendations were not adopted. Paragraph (c)(1)
considers that there are often a number of impediments involved in a
tribe's efforts to acquire restored lands after the event officially
restoring the tribe. Also, placing a time cap on the ability of a tribe
to acquire land for gaming, when it is their first attempt to acquire a
site for gaming, is contrary to Federal Indian policy as stated in
IGRA. However, a cap of 25 years, as discussed in (c)(2), addresses the
concerns about a tribe's open ended ability to acquire lands for
gaming. If a tribe already has newly acquired lands, then a time cap
and its limiting effect to acquire a site for gaming does not undermine
IGRA's stated policy goals.
One comment suggested modifying paragraph (c)(1) by striking
``tribe has'' and adding ``United States * * * in trust status for the
tribe.''
Response: This recommendation was addressed by the addition of the
definition for ``newly acquired lands.''
One comment suggested striking (c)(1)&(2). One comment suggested
striking (c)(2) and replacing it with the following: ``if a tribe has
acquired no other land for gaming purposes since its restoration
without regard to how much time has passed since the tribe's
restoration.''
Response: These recommendations were not adopted because the
temporal limitation effectuates IGRA's balancing of the gaming
interests of newly acknowledged and/or restored tribes with the
interests of nearby tribes and the surrounding community.
One comment suggested modifying paragraph (c)(1) to read, ``The
land is the first land that the tribe has acquired pursuant to the
Department of the Interior's regulations or procedures for gaming
acquisitions since the tribe was restored to Federal recognition and
the tribe is not gaming on any other trust lands; or.'' The comment
stated that the phrase ``trust land'' should be added because Sec.
292.12(c)(1) should only apply to land which has been acquired in
trust; not to land which a tribe has acquired in fee. The phrase
``pursuant to the Department's * * *'' should be added because a tribe
should not lose its chance to satisfy the criteria in Sec.
292.12(c)(1) if it acquires land in trust for housing which is not
intended for gaming and had not been acquired pursuant to the
procedures for gaming acquisitions. The phrase ``and the tribe * * *''
is added to ensure that this paragraph in not used by a tribe which is
already gaming.
Response: The recommendation regarding the phrase ``trust land''
was adopted in part through use of the term ``newly acquired lands,''
clarifying the type of land contemplated under (c). The recommendation
to exclude trust land used for housing was unnecessary because
paragraph (c)(2) allows a tribe that already has newly acquired lands,
to acquire a site for gaming as long as the tribe submits an
application within 25 years of its restoration. The recommendation to
qualify (c)(1) with the phrase ``the tribe is not gaming on any other
trust lands'' was adopted in part and added to (c)(2). The definition
of newly acquired lands includes tribal land acquired in trust but does
not include tribal fee land.
General Comments on Sec. 292.12:
One comment suggested that the rule specify what role the NIGC
plays in the restored lands opinion. One comment stated that there is
nothing in the rule that discusses the process the BIA will use to make
restored lands opinions.
Response: These comments are addressed with the addition of Sec.
292.3 discussing the application process.
One comment suggested adding a geographical nexus requirement to
Sec. 292.12 in addition to the historical and temporal requirements.
Response: This recommendation was not adopted as the regulation's
requirement of a modern, historical and temporal connection adequately
implements the policy goals of IGRA.
One comment suggested that the regulations should require a tribe
to acquire their former reservation land if it is available. One
comment suggested that tribes should not be permitted to acquire
restored lands if they were already compensated for such lands by some
other means.
Response: These recommendations were not adopted because they do
not have a basis in IGRA.
One comment suggested making the language in Sec. Sec. 292.11 &
292.12 consistent with Sec. 292.6.
Response: This recommendation was adopted. The Department made
efforts to make these sections consistent where uniformity is
necessary.
Subpart C--Secretarial Determinations and Governor's Concurrence
Section 292.13 When can a tribe conduct gaming activities on lands that
do not qualify under one of the exceptions?
This section was renamed ``When can a tribe conduct gaming
activities on newly acquired lands that do not qualify under one of the
exceptions in subpart B of this part?''
Several comments suggested restricting the scope of consultation
required under paragraph (b) by deleting ``local officials, including
officials of nearby tribes'' thereby preventing excessive complication
of the application process and promoting tribal self-determination.
Response: This recommendation was not adopted because the statute
requires consultation with nearby tribes and local officials, 25 U.S.C.
2718(b)(1)(A).
One comment recommended that no land be taken into trust without
the consent of the State and the affected county.
Response: This recommendation was not adopted because the comment
raises issues pertaining to 25 CFR part 151--Land Acquisitions.
Nonetheless, section 2719 of IRGA only requires the Governor's
concurrence. Since this section of IGRA requires consultation with the
Governor, local officials and nearby tribes, but only specifies the
concurrence of the Governor, Congress has implicitly rejected the need
for concurrence by other officials.
One comment suggested that citizen input and State legislative
participation should be included in the Secretary's determination that
the casino will not be detrimental to the community. One comment, on
behalf of a concerned citizen, opposed the Secretary's authority to
permit gambling in communities without her input.
Response: These recommendations were not adopted because the
regulations already require consultation with appropriate State and
local officials, consistent with the statutory
[[Page 29368]]
language. Further, there are various opportunities for local input in
the process, depending on which exception is at issue.
One comment suggested that the regulations impose additional
restrictions on gaming on lands acquired after October 17, 1988.
Response: The regulations were designed to conform to and interpret
section 2719 of IGRA; every effort was made to stay consistent in that
regard. Additional restrictions are inconsistent with 25 U.S.C. 2719.
One comment suggested that paragraph (b) use the phrase ``nearby
Indian tribes'' and paragraph (d) read ``The Governor of the [S]tate in
which the gaming establishment is to be located concurs in the
Secretary's Determination'' in order to conform to IGRA.
Response: This recommendation was adopted and language was modified
accordingly.
One comment stated that the two-part Secretarial Determination
exception cannot be interpreted as requiring a tribe to have an
ancestral tie to the lands they seek to acquire.
Response: The two-part Secretarial Determination does not require a
tribe to have an ancestral tie to the lands they seek to acquire.
Section 292.14 Where must a tribe file an application for a Secretarial
Determination?
The Department did not receive any comments regarding this section.
Section 292.15 May a tribe apply for a Secretarial Determination for
lands not yet held in trust?
One comment stated that requiring a tribe to file its application
for a two-part Secretarial Determination at the same time as its land-
into-trust application precludes the tribe from using the land they
have placed into trust for economic development. Accordingly, the
comment suggested modifying Sec. 292.15 in light of this concern.
Response: This recommendation was not adopted. The requirements in
Sec. 292.15 address land that is not yet held in trust. The section
does not address a tribe's existing trust land.
Application Contents
Section 292.16 What must an application for a Secretarial Determination
contain?
Several comments suggested that a tribe be required to submit only
the information required under Sec. 292.16, paragraphs (a) through (d)
at the time it submits its land-into-trust application. The information
required by Sec. 292.16 paragraphs (e) and (f) could be submitted as
the information becomes available.
Response: This recommendation was not adopted because the
application for a Secretarial Determination must include all of the
information in Sec. 292.16 for the application to be complete.
One comment suggested that an additional requirement in paragraph
(d) be added to require the tribe to submit ``evidence of an aboriginal
or significant historical connection to the land, including cultural
ties based upon actual inhabitance.'' This would, according to the
commenter, bring the regulation into conformance with section 2719.
Response: This recommendation was not adopted because it is beyond
the scope of the regulations and inconsistent with IGRA.
One comment observed that, throughout the regulations,
``application'' is used to refer both to the tribe's initial written
request and to the subsequent application package developed by the BIA
Regional Office for submission to the Secretary, creating confusion.
Response: In consideration of the comment, changes were made
throughout the regulations accordingly.
Several comments suggested striking paragraphs (d) and (k).
Response: These recommendations were not adopted because paragraphs
(d) and (k) inform the decision making process.
One comment suggested striking paragraphs (j) and (k) because these
documents are not site specific and are either already on file with the
BIA or do not apply.
Response: These recommendations were not adopted because paragraphs
(j) and (k) inform the analysis. The word ``Any'' was deleted from the
beginning of former paragraph (k) and the words ``if any'' were added
to modified paragraph (l) for clarification.
Several comments noted that, while the Regional Director is
required by Sec. 292.20(a)(2) to provide officials with information
regarding the proposed scope of the gaming, Sec. Sec. 292.16-292.18 do
not require the applicant tribe to submit this information.
Response: In response to these comments, language was added in (j)
regarding the proposed scope of gaming and the size of the proposed
gaming establishment.
Section 292.17 How must an application describe the benefits of a
proposed gaming establishment to the tribe and its members?
Several comments suggested changing ``benefits'' in the title of
Sec. 292.17 to ``impacts.''
Response: This recommendation was adopted in part. The words ``and
impacts'' were added to the title of Sec. 292.17. The section was
renamed ``How must an application describe the benefits and impacts of
a proposed gaming establishment to the tribe and its members?''
Several comments suggested that paragraph (f) require a more
specific identification of adverse impacts.
Response: This recommendation was not adopted because an adverse
impacts analysis is fact specific and will vary depending on the given
facts and circumstances.
One comment suggested that Sec. 292.17 require consideration of
land use, development alternatives to gaming, whether the proposed
project is consistent with the tribe's economic needs (if any), and how
fulfillment of such needs will be balanced against off-reservation
environmental impacts.
Response: This recommendation was not adopted because development
alternatives and environmental impact are addressed in the National
Environmental Policy Act (NEPA) process.
One comment noted that paragraph (i) is a new requirement not
previously contained in the discussion draft circulated prior to the
publication of the proposed regulation.
Response: The concern raised by the commenter does not violate any
standards or procedures.
Several comments suggested that paragraph (h) be amended to read
``* * * or holds other contractual rights to cause the land to be
transferred to the United States, or to the [t]ribe.''
Response: This recommendation was not adopted because it is
unnecessary. The first clause of paragraph (h) covers the commenter's
concern.
One comment suggested that ``if any'' be stricken from paragraph
(i) to require the applicant tribe to establish that it
``aboriginally'' used and occupied the land where it wishes to build a
gaming establishment.
Response: This recommendation was not adopted because historical
connections are not mandatory under IGRA for purposes of this subpart
of the regulations.
Several comments suggested striking, in their entirety, paragraphs
(a), (e), (g), and (j), and striking ``from the proposed
[[Page 29369]]
uses of the increased tribal income'' from paragraph (d).
Response: These recommendations were not adopted because all of the
paragraphs are necessary in order to determine what is in the tribe's
best interest.
One comment suggested striking ``and the tribe'' from paragraph
(a), as it would be ``voluminous and time consuming.''
Response: This recommendation was not adopted because the words
``and the tribe'' must be included in the paragraph in order to conduct
a thorough analysis under the two-part determination.
Several comments suggested replacing ``facility'' in paragraph (j),
subparagraph (3) with ``establishment.''
Response: This recommendation was adopted, and the word
``facility'' was replaced with the word ``establishment.''
One comment suggested adding ``Any information provided within the
application that is of a commercial or financial nature shall be
protected from release to the public pursuant to the exemptions of the
Freedom of Information Act [(''FOIA'')], 5 U.S.C. 522(b)(4).''
Response: This recommendation was not adopted because the FOIA
provisions that protect commercial and financial information and the
corresponding procedures stand on their own and need not be
specifically referenced in these regulations.
One comment suggested requiring the information provided under
Sec. 292.17 be shared with State and local governments, who should be
accorded the opportunity to respond to the information supplied by the
tribe.
Response: This recommendation was not adopted because the Secretary
can evaluate the financial information without having comments or
analysis by the State or local governments. Nevertheless, the
Department will provide financial information to the Governor under
Sec. 292.22 if there is a favorable Secretarial Determination.
Section 292.18 What information must an application contain on
detrimental impacts to the surrounding community?
Several comments argued that tribal gaming by an out-of-State tribe
is per se detrimental to the community.
Response: This recommendation was not adopted. While the
regulations allow for a finding that gaming by an out-of-State tribe is
detrimental to the community, such a finding will be made on a case-by-
case basis.
Several comments suggested that ``detrimental to the surrounding
community'' in paragraph (c) should be defined to consider the adverse
impacts on self-sufficiency and economic development of other tribes in
the State.
Response: This recommendation was not adopted because the
definition of ``surrounding community'' already includes Indian tribes.
Extending consideration to other tribes in the State goes beyond the
Department's interpretation of the statute.
One comment raised the concern that Sec. 292.18 did not limit the
Secretary's discretion to consider ``detrimental information''
regarding non-Indian gaming interests.
Response: The Secretary can consider detrimental information
regarding non-Indian gaming interests; it is considered within
paragraph (c). While such interests can be considered, they are limited
to surrounding community consistent with section 2719.
One comment suggested it was premature to require an environmental
assessment (EA) or environmental impact statement (EIS) before the
Secretary makes his decision.
Response: An EA or EIS are products of the NEPA process. The
Secretary must have the results of the NEPA analysis in order to
consider whether or not there is detriment to the surrounding
community.
Several comments proposed the following subsection: ``An analysis
by a qualified traffic engineer of the traffic impacts on the
surrounding community and the mitigation measures necessary to
alleviate the traffic impacts which would be caused by the proposed
gaming establishment.''
Response: This recommendation was not adopted because it is
unnecessary; it is implicit in (a) and (b).
One comment recommended that the regulation specify that
``surrounding community'' includes communities across State lines.
Response: This recommendation was not adopted because it is not
necessary. The definition of surrounding community is defined by
mileage, and is not limited by State boundaries.
Several comments suggested that paragraph (e) implied that the
treatment program rather than compulsive gambling is a detrimental
impact, and that there are no detrimental impacts to the surrounding
community from compulsive gamblers who are not enrolled in treatment
programs. It was suggested that paragraph (e) be changed to read,
``Costs of compulsive gambling attributable to the proposed gaming
establishment, including the cost of treatment programs and the primary
and secondary social costs attributable to compulsive gamblers enrolled
and not enrolled in treatment programs.''
Response: This recommendation was adopted in part, and (e) was
revised in order to clarify that the potential detrimental impact is
any anticipated costs of treatment programs.
One comment suggested striking ``if any'' from paragraph (d).
Response: This recommendation was not adopted because the words
``if any'' do not appear in paragraph (d) of this section.
Several comments suggested amending paragraph (c) to read,
``Impacts on the economic development, income, and employment of the
surrounding community, including any significant impacts on the income
and employment generated by Indian gaming of nearby Indian tribes.''
Response: This recommendation was not adopted because tribes are
already included in ``surrounding community.''
Several comments suggested adding further specificity to the
information that is required in the application and set forth in
paragraphs (a) through (f) of Sec. 292.18.
Response: These recommendations were not adopted because the
regulations, as written, provide sufficient specificity.
Several comments suggested striking paragraphs (d) and (e).
Response: The recommendation was not adopted because paragraphs (d)
and (e) are required, according to the Department's definition and
understanding of detriment.
Several comments suggested amending paragraph (a) to add a proviso
``if required pursuant to NEPA'' following the reference to an EA or an
EIS.
Response: This recommendation was adopted and paragraph (a) was
modified accordingly.
One comment suggested striking from paragraph (a) `` e.g. an
Environmental Assessment * * * Statement (EIS).''
Response: This recommendation was not adopted because the examples
provide useful guidance.
One comment suggested striking paragraph (f) to give tribes
discretion to include, rather than the Secretary discretion to mandate,
any additional information.
Response: This recommendation was not adopted because a well
informed Secretary will promote sound decision making.
One comment suggested amending paragraph (a) to read, ``Information
regarding environmental impacts and plans for mitigating detrimental
impacts on the surrounding community * * *'' to conform to statutory
language.
[[Page 29370]]
Response: This recommendation was not adopted because the NEPA uses
``adverse.''
One comment noted that ``social structure'' in paragraph (b) is
vague and undefined.
Response: This recommendation was not adopted because the term
``social structure'' is necessary in order to interpret the statute.
Consultation
Section 292.19 How will the Regional Director conduct the consultation
process?
Several comments suggested that 60 days was not a sufficient time
for State and local officials to collect the necessary information to
prepare a consultation letter.
Response: The State and local officials are not being asked to
prepare a consultation letter, they respond to the Regional Director's
letter. The relevant information is available at the time when the
regulations require a consultation letter and therefore 60 days is
adequate time for State and local officials to comment.
Several comments recommended that the Regional Director be required
to notify appropriate officials if the tribe addresses or resolves any
issue pursuant to paragraph (c)(2), and that such officials should be
accorded a reasonable time to respond.
Response: This recommendation was not adopted because such a
procedure would inject unnecessary delay into the process.
One comment requested that the Department exempt from the
requirements of Sec. 292.19 pending applications that have already
completed the required consultations with the surrounding community
under the current checklist procedures.
Response: This recommendation was not adopted. We are not including
a general exemption in the regulations, but the Department will make a
case-by-case determination whether pending applications have completed
the necessary consultation.
One comment suggested the 25-mile radius for tribes to be included
in the consultation process be expanded to 100 miles.
Response: This recommendation was not adopted as the focus on
section 2719 is the surrounding community.
One comment suggested including the applicant tribe in the Sec.
292.19 consultation process.
Response: This comment was not adopted because the tribe is already
included in the process in paragraph (c) where the tribe can respond to
issues raised in the responses.
Several comments suggested that, ``Citizens within a 50-mile radius
(Public notices posted)'' be added to the requirements of paragraph (a)
so as to solicit comments from the community. One comment suggested
rewriting paragraph (b), in its entirety, with a focus on notice
requirements.
Response: These recommendations were not adopted. The Department
consults with appropriate State and local officials and nearby tribes.
Therefore, the Department is not amending the regulations to solicit
citizen comments directly. It is most appropriate that citizen comments
funnel through appropriate State, local and tribal officials. Also,
public comments are provided for in the NEPA process.
One comment suggested that 30 days was a sufficient comment period.
Response: This recommendation was not adopted because the 60-day
comment period provides a balance between those wanting a longer period
and those wanting a shorter time for comment.
One comment suggested changing ``nearby tribes'' in paragraph
(a)(2) to the previously-defined ``nearby Indian tribes.''
Response: This recommendation was adopted and the paragraph was
modified accordingly.
Several comments suggested that the BIA be required to meet with
local officials throughout the acquisition process and that the comment
period was not a legitimate consultation process.
Response: This recommendation was not adopted because the
Secretarial Determination in section 2719 is not a negotiation process.
Creating additional opportunities for back-and-forth is unnecessary,
causes delay and is inconsistent with IGRA.
One comment suggested that the term ``consultation comments'' in
paragraph (c)(1) was unclear and should be defined to include any
comments received from residents and businesses.
Response: This recommendation was adopted and corresponding edits
were made in order to clarify the paragraph.
Several comments suggested that officials of whom consultation is
requested have access to information provided by the applicant pursuant
to Sec. 292.17.
Response: Consistent with the protection Congress affords
financial, commercial or proprietary information under the FOIA, this
recommendation was not adopted.
Several comments suggested requiring the information provided under
Sec. 292.18 be shared with State and local governments, who should be
accorded the opportunity to respond to the information supplied by the
tribe.
Response: This recommendation was not adopted because the requested
process would add unnecessary delay at this stage of the process.
Section 292.20 What information must the consultation letter include?
One comment considered it ``absurd'' to require local communities
and nearby tribes, rather than the applicant tribe, to provide funding
to mitigate problems that might emerge from the proposed casino and to
propose programs to address compulsive gambling (paragraph (b)).
Response: This comment misconstrues paragraph (b)(5). In order to 