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Perception and realities in land-into-trust debate
Thursday, May 19, 2005

George Skibine, a Bureau of Indian Affairs official, was unable to tell a Senate committee on Wednesday how many land-into-trust applications are pending but he did provide some data that could help address what one key member called the "perception" and "realities" of the process.

Skibine said the BIA currently doesn't have a way to tell how many gaming and non-gaming applications have been submitted to the agency. "I don't have that figure at my fingertips," he told Sen. Byron Dorgan (D-North Dakota), the vice chairman of the Senate Indian Affairs Committee. He said the BIA was going to do a "data call" to find out how many are in waiting.

"Is it dozens? Thousands? Millions?" asked Dorgan. "I think it's probably hundreds," Skibine responded. "Hundreds throughout the country."

What Skibine did know was that tribes have submitted 11 applications for off-reservation gaming in New York, Wisconsin, Michigan, California and Oregon. He said these tribes would have to go through the two-part determination process under the Indian Gaming Regulatory Act that requires extensive consultation with tribes and local communities and allows the governor to veto the application.

Skibine further stated that of these 11 applications, only one involves a tribe seeking to open a casino in a state where it is not presently located. Critics -- both Indian and non-Indian -- have blasted this practice as "reservation shopping" and say it is occurring throughout the country at alarming rates.

In his written testimony, Skibine referenced the debate and said "more applications are rumored to be in development for cross-state acquisitions, including potential applications in Ohio, Colorado, Illinois, and New York." Another witness -- Tim Martin, the executive director of the United South and Eastern Tribes -- cited at least 12 proposals.

But in his oral testimony, Skibine said people -- supporters and opponents alike -- who think any of the 11 applications or the rumored applications will be successful are kidding themselves. "They thought it would happen this year," he recalled of a recent meeting with officials in Ohio want to host a casino sought by the Eastern Shawnee Tribe of Oklahoma.

Skibine said a two-part determination takes a lot of time and effort. Since 1988, he pointed out that only three tribes have successfully completed the process -- the Forest County Potawatomi Tribe of Wisconsin, the Kalispel Tribe of Washington and the Keweenaw Bay Indian Community in Michigan.

Many more, on the other hand, have been rejected. According to earlier BIA testimony, of the 10 applications filed between 1988 and 1998, five failed outright because the Interior Department refused to acquire the land. Of the remaining five that were approved -- a figure that includes the three tribes above -- two failed because the state governor did not agree.

A similar record has continued under the Bush administration, according to Skibine's testimony. Since 2001, Interior Secretary Gale Norton has approved off-reservation gaming only two times despite being hammered by some members of Congress and gaming opposition groups of an explosion in such requests.

One application was for three Ojibwe tribes in Wisconsin, an application that was previously rejected by the Clinton administration. The second was for the Jena Band of Choctaws in Louisiana. In both cases, the governor vetoed the approval, Skibine told the committee.

A less concrete figure involves land-into-trust applications under Section 20 of IGRA. Normally, gaming is barred on lands acquired after 1988 but the law provides 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.

According to a count by Indianz.Com, there have been at least 27 approvals for gaming on lands acquired after 1988. This figure is based on a review of Congressional testimony by former BIA officials, public documents released by the National Indian Gaming Commission and a General Accountability Office report on newly recognized tribes.

Skibine gave some insight into the number in his testimony, which said the Bush administration has approved a total of eight Section 20 exceptions since 2001. Of these, three were on-reservation acquisitions: the Suquamish Tribe of Washington, the Picayune Rancheria in California, and the Skokomish Tribe of Washington.

Three more were associated with tribes whose recognition was restored after being terminated: the Little Traverse Bay Band of Odawa Indians in Michigan, the Ponca Tribe of Nebraska and the United Auburn Indian Community of California.

One approval was for a newly recognized tribe -- the Nottawaseppi Huron Band of Potawatomi in Michigan. The final approval was for lands acquired in trust as part of a land claim settlement -- the Seneca Nation of New York.

The two-part determination process and the Section 20 exceptions are the focus of Congressional scrutiny due to off-reservation gaming proposals. In addition to the Senate Indian Affairs Committee, the House Resources Committee is considering ways that might address the controversy.

Sen. John McCain (R-Arizona), the chairman of the Senate committee, has previously told tribal leaders that he is concerned about the "backlash" against the $18.5 billion and growing industry. But yesterday, he indicated that he would not rush to act based on complaints that may not be based on fact or sound policy.

"This problem is perception and reality both," he said. "We can't legislate perception but there might be something we can do to correct some of the realities."

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