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Legislation won't address all land-into-trust issues
Wednesday, April 5, 2006

The Senate and House are each considering legislation that would change the way land is taken into trust for gaming but neither proposal addresses issues raised by a recent Interior Department investigation.

In an evaluation report, Inspector General Earl Devaney looked into the land acquisition process used by the Bureau of Indian Affairs, the National Indian Gaming Commission and the Solicitor's Office. The probe said the agencies were following the law in determining whether land taken into trust after 1988, the date of the Indian Gaming Regulatory Act, was eligible for gaming.

"We concluded that the department has instituted a process that is sufficient for reviewing and approving tribal applications for federal trust acquisition of land for gaming purposes," the report, dated September 2005 but only made public recently, stated.

But the evaluation highlighted two major issues in the land-into-trust process, neither of which are being considered amid the move to curb off-reservation gaming.

The first issue deals with the length it takes to complete the process. Of more than 30 applications finalized since 1988, it took Interior an average of 17 months to do its job, according the report. A separate BIA document included in the report put the average wait even higher, at 21 months.

The longest wait was a whopping seven years endured by three Ojibwe tribes in Wisconsin. The tribes submitted one application in February 1994 that took 17 months and another in September 1995 that took 68 months. Both applications were rejected by the BIA.

The second-longest wait was endured by the St. Croix Chippewa Tribe of Wisconsin. After submitting an application in October 1998, the tribe finally won approval in April 2003, a 54-month delay.

But that's just for the tribes who have received an answer. According to a list of "pending" applications, the BIA is still processing requests as far back as 1991, 1995, 1996 and 1998. The 1995 case -- involving the White Earth Band of Ojibwe in Minnesota -- was finally resolved this year, after the report was issued.

Despite acknowledged delays and complaints from tribes, neither the House nor Senate bills would impose deadlines on the land-into-trust process. Both proposals instead seek to block tribes from acquiring non-reservation lands for gaming.

Don't look to Interior to speed up the process, either. In a response to the evaluation, the Solicitor Office's rejected a recommendation to create a dedicated team to review applications.

"While processing land-into-trust applications more quickly may benefit a particular tribe's economic development goals, it does not necessarily fit into the overall priorities in Indian Affairs such as trust reform, education and law enforcement," wrote former Solicitor Sue Ellen Wooldridge, whose deputy, David Barnhardt, has been tapped as her replacement.

"And it does not necessarily fit the needs of all of Indian Country," the response continued. The BIA has proposed new land-into-trust regulations but no deadlines are imposed on the agency.

The second issue deals more with the tribal side of the process. The investigation turned up 10 instances in which tribes skirted Section 20 of IGRA by opening casinos on land taken into trust after 1988.

"During our evaluation, we also found that certain tribes had converted the use of land acquired for them in trust by the Secretary for economic development (other than gaming) to gaming," the report stated. "This was done without a determination of eligibility of the land for gaming."

Section 20 contains four exceptions under which tribes can open casinos on land acquired after 1988. But some tribes have avoided the lengthy review process by stating they will not conduct gaming on the land, only to open a casino at a later date.

The House and Senate bills modify Section 20 by making it harder to meet the exceptions. But the state where the converted lands have been used the most -- Oklahoma -- is not affected by either proposal.

The NIGC is taking its own steps to address the problem. In addition to creating an Indian lands database of the 400-plus casinos, Chairman Phil Hogen said the agency is coming up with a regulation to require tribes to "certify" that their gaming sites comply with IGRA.

The evaluation suggests tribal officials could be "subject to criminal penalties" if they engage in gaming that hasn't meet the IGRA requirements.

The list of "Lands Converted From Non-Gaming to Gaming Uses" was compiled by regional BIA offices, not independently by the Inspector General. "In addition, since the BIA did not maintain a central list of lands taken into trust after 10/17/88 that were converted from gaming to non-gaming, it is not known whether this list is complete," the evaluation stated.

For example, the Chickasaw Nation has converted lands from non-gaming to gaming uses in at least 11 instances, according to a review of documents by Indianz.Com. The tribe submitted only one land into trust application for gaming -- back in October 2000 -- that is still pending before the BIA. The Chickasaw Nation has retained Aurene Martin, former Principal Deputy Assistant Secretary of Indian Affairs, of the Holland & Knight firm, to lobby the Senate and Interior on this issue.

Neither the House nor the Senate bills address the possibility of changing the process to impose penalties or bar tribes from converting land. Sen. John McCain (R-Arizona), the chairman of the Senate Indian Affairs Committee, raised the issue once at a hearing but has not included it in his proposal.

OIG Evaluation Report:
Process Used to Assess Applications to Take Land Into Trust for Gaming Purposes (September 2005)

Press Release:
DOI to Hold Consultation Meetings on Proposed IGRA Section 20 Regulations (March 27, 2006)

Draft BIA Regulations:
Gaming on Lands Acquired After October 17, 1998

Relevant Documents:
Kevin Gover Testimony | Aurene Martin Testimony | Title 25 CFR Part 151 Land-into-Trust Process | Section 20 of IGRA | GAO Report

Pombo IGRA Bill:
To amend section 20 of the Indian Gaming Regulatory Act to restrict off-reservation gaming (H.R.4893)

McCain IGRA Bill:
Indian Gaming Regulatory Act Amendments of 2005 (S.2078)

Relevant Links:
Senate Indian Affairs Committee - http://indian.senate.gov
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS
National Indian Gaming Association - http://www.indiangaming.org