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Law
BIA official promises policy on off-reservation gaming


As more and more tribes seek to establish gaming operations far away from their existing reservations, the Bush administration continues to struggle with the political and legal realities of the controversial practice.

At least a dozen tribes have off-reservation casino proposals pending before the Bureau of Indian Affairs or the National Indian Gaming Commission while countless others are asserting gaming rights hundreds of miles away from their current locations, sometimes in other states, often in connection with land claims.

Despite the growing trend, the Bush administration still hasn't developed a policy on the issue, Aurene Martin, the second in command at the BIA, said last week. The subject came up at a hearing over legislation that would settle two tribal claims for off-reservation casinos.

"While have initiated internal discussions regarding this issue, we have not yet determined our position," Martin told the House Resources Committee on Thursday.

Earlier this year, Martin warned Indian legal scholars that members of Congress might take the matter into their own hands. House Republicans already inserted language in an appropriations bill warning against off-reservation land acquisitions, and other lawmakers are considering ways to stop tribes from opening casinos in their backyards.

These attempts are seen as detrimental to tribal rights but some Indian Country advocates are also frustrated with the delays.

"Do you think the Congress should wait for the [Interior] department for a decision?" Rep. Eni Faleomavaega (D-American Samoa) asked at the hearing. "Or should we just zip it in an amendment and be done with it?"

So far, the administration has sent mixed signals when asked to enter the debate. In Louisiana, the BIA denied the Jena Band of Choctaw Indians' gaming compact with a warning that its proposed casino site was far from its existing service area. In New York, the BIA let the Seneca Nation's gaming deal go into effect even as Interior Secretary Gale Norton said she was "extremely concerned" about the tribe's off-reservation site.

But George Skibine, the BIA official in charge of gaming, surprised many when he said his staff could find no legal basis to deny off-reservation land acquisitions. At a Senate hearing in March, he testified that "it would definitely be an economic benefit to tribes" to allow faraway casinos in lucrative locations.

That reasoning conflicted with a legal opinion issued less than a week later by attorneys at the NIGC. They wrote that a provision in federal law "limits, not expands, the right to game" by "disallow[ing] gaming on newly acquired lands far from the current prior reservation." The ruling, on the status of the Wyandotte Nation's casino in Kansas, is being challenged by the Oklahoma-based tribe.

In an interview following that March hearing, Skibine said there was "no legislative history" on the subject. But last week, Rep. Dale Kildee (D-Michigan), the co-chairman of the Congressional Native American Caucus, said Congress foresaw occasions when tribes might obtain off-reservation land. Kildee, however, opposes the land claim-casino bill due to objections from other tribes.

Since taking over the White House more than three years ago, the Bush administration has finalized just one off-reservation land acquisition for three Ojibwe tribes in Wisconsin. But the decision came way back in February 2001 and it was a holdover from the Clinton era.

Later that year, former assistant secretary Neal McCaleb rescinded regulations that would have helped guide the process. He also pulled back another set of rules specifically tailored to off-reservation acquisitions.

The administration is acting in other cases but only because Congress has mandated the land acquisition for a specific tribe. Once a rare practice, this too has become commonplace as tribes and gaming interests seek legislation -- often cloaked in highly technical language -- favorable to their casino projects.

The tactic of settling land claims for gaming rights is also gaining favor. Leading the way is New York, whose Republican governor, George Pataki, is dangling the promise of casinos in exchange for resolving decades-long lawsuits. The deals also seek to address taxation, jurisdiction and a host of other issues.

Elsewhere, tribes have used the threat of claims to push for gaming rights too. The Cheyenne-Arapaho Tribes of Oklahoma have asked for a casino in Colorado to settle a 56 million-acre claim there. The Delaware Nation and the Delaware Tribe, both of Oklahoma, have staked their eyes on Pennsylvania. And the Miami Nation of Oklahoma has long tested the waters in Kansas and Illinois.

At last week's hearing, Martin didn't give an indication on when a decision on a policy might be made. But she said it would play an important role as more off-reservation gaming proposals come down the line.

"Our discussion will address the issue as a global matter and will hopefully provide a blueprint for us for our decisions in the future," she said.