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BIA official confirms tribes skipping IGRA process
Thursday, May 19, 2005

Some tribes are skirting the land-into-trust process by opening casinos on properties that were acquired for non-gaming purposes, a senior Bureau of Indian Affairs official said on Wednesday.

George Skibine, the BIA's acting deputy assistant secretary for policy and economic development, said some tribes are able to avoid lengthy reviews associated with gaming-related acquisitions. Normally, the BIA must consult with local communities and other tribes as well as conduct environmental and economic reviews.

Additionally, political officials at the BIA's central office in Washington, D.C., are required to sign off before a final decision is made. "If the application is for gaming, then the authority has been reserved ... essentially [to] the assistant secretary," Skibine told the Senate Indian Affairs Committee.

"In 2001, we extended that to not only gaming acquisitions but gaming-related acquisitions," Skibine added. A parking lot next to a casino, for example, would undergo the same type of review.

But some tribes are skipping this "incredibly rigorous" process -- which can take years, costs millions of dollars and lead to protracted litigation -- by stating that the land will be used for non-gaming purposes and only later using it for a casino, Skibine testified.

"We are aware that this has happened in the state of Oklahoma, for instance," Skibine said.

Skibine didn't know how many times it has occurred but said an internal investigation has uncovered at least 10 instances. A report from the Interior Department's Inspector General is forthcoming.

Despite the acknowledgment of the practice, Skibine said the BIA can't do anything to stop it. The federal government can't impose title or deed restrictions on the land once it has been taken into trust, he told the committee.

"If a tribe commits not to acquire land for purposes of Indian gaming, it is free, after acquiring that land, to change its mind. Is that correct?" said Sen. John McCain (R-Arizona), the chairman of the committee, who wanted to know how often the practice has occurred.

In his written testimony, Skibine said the "this practice is discouraged." But in his oral statement, he said that a tribe who makes this change should be required to comply with the Indian Gaming Regulatory Act of 1988.

The law bars gaming on lands acquired after 1988. However, Section 20 allows exceptions in four instances: 1) the land is located within or contiguous to existing reservation; 2) the land is associated with a tribe that had no reservation as of 1988; 3) the land is associated with newly recognized tribes, restored tribes or a land claim settlement; or 4) the land is in Oklahoma and within or contiguous to a former reservation or Indian allotment.

If none of the exceptions apply, Skibine said the law would require the tribe to submit to a two-part determination, in which the state governor has veto power over the trust land acquisition. Since IGRA's passage, only three tribes have successfully completed this process.

On the other hand, at least three tribes in Oklahoma have avoided scrutiny by acquiring lands for housing, education or other non-gaming purposes. The practice has allowed the Chickasaw Nation to open the largest number of tribal gaming facilities in the state. The tribe also has more casinos than any other in the country.

The tribe could very well qualify for an IGRA exception on these properties and in fact is seeking one for a recently acquired parcel. That decision has been pending before Skibine's Office of Indian Gaming Management for more than two years, indicating that the process is cumbersome.

But since tribal officials never told the BIA they were going to use previously acquired properties for gaming, they avoided the Section 20 analysis altogether. According to a count by Indianz.Com, the tribe is gaming on at least 11 properties that were for non-gaming purposes since 1988. Skibine recently went to Oklahoma to talk to Chickasaw leaders and local BIA officials about the issue.

Leaders of smaller tribes have voiced concerns about the Chickasaw Nation's tactics. The Fort Sill Apache Tribe unsuccessfully sued the BIA in hopes of blocking the Chickasaws from gaming on a recently acquired parcel that is within 25 miles of the Fort Sill casino. The Apaches were never consulted by the BIA before that land was taken into trust. The case, however, was dismissed.

"Trust lands ... determine the winners and losers in Oklahoma," said committee member Sen. Tom Coburn (R-Oklahoma) at a hearing last month. "The fact is," he added, "that it's not necessarily a fair process."

Coburn didn't attend yesterday's hearing but appears to be siding with smaller tribes. "Those that are in the game want to keep those that are not in the game from being in the game," the conservative Republican said. "I think that is something else that we need to look at."

Relevant Documents:
Written Testimony: Oversight Hearing Before the Senate Committee on Indian Affairs on Taking Lands into Trust (May 18, 2005) | Match-e-be-nash-she-wish Band of Pottawatomi Testimony (May 18, 2005)

Relevant Links:
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS
Land into Trust, National Congress of American Indians - http://www.ncai.org/main/pages/issues/
governance/land_into_trust.asp