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Law
NIGC adopts new approach for tribal gaming sites


As controversy over the location of tribal casinos continues, the National Indian Gaming Commission has slowly expanded the reach of the federal law that paved the way for the $19 billion industry.

In a series of recent determinations, the agency's top lawyer has outlined a new approach to the Indian Gaming Regulatory Act. The approach strongly favors tribal sovereignty but it stands in contrast to court cases, NIGC precedent and proposals in Congress that would give local governments more authority over casino decisions.

Starting in March of this year, NIGC acting general counsel Penny Coleman has published four rulings that give tribes greater authority over lands within their reservations -- even if those lands are not held in trust or are owned by non-Indians. In most cases, tribes do not have civil or criminal jurisdiction over fee lands or non-Indian lands.

But in the context of gaming, Coleman says Congress intended to give tribes full jurisdiction over their lands -- regardless of ownership status -- when IGRA was passed in 1988.

"A tribe is presumed to have jurisdiction over its own reservation," the most recent opinion, issued in August, states. "Therefore, if the gaming is to occur within a tribe's reservation, under IGRA, we can presume that jurisdiction exists."

Such thinking is embraced by tribal and Indian gaming leaders who believe IGRA represents an affirmation of their sovereignty. "We do believe that tribes ought to have sovereign authority throughout their reservations, said Mark Van Norman, the executive director of the National Indian Gaming Association, at a hearing last Thursday. "Those reservations were set apart by treaty, statue or executive order as a permanent homeland to tribes."

But one of the rulings -- involving the Buena Vista Band of Me-Wuk Indians in California -- has already sparked a legal battle. Local officials say Amador County, not the tribe, has jurisdiction over a proposed casino site because the land is owned in fee and not held in trust.

"This is a bad project for the immediate area, it is a bad project for the county and it is bad precedent for Indian gaming in general," Richard Forster, the chairman of the county's board of supervisors said in Congressional testimony this past March.

The four rulings issued by the NIGC are limited to casino locations within the boundaries of existing reservations. On some reservations, local and state governments have been exercising jurisdiction over non-Indian lands for decades.

Coupled with controversy over off-reservation casinos, some key lawmakers argue that the public image of tribes has eroded as the Indian gaming industry has steadily expanded.

"It has increased conflict between Indian tribes, it has led to frustration in local communities who feel powerless to affect whether or not a casino is located in their community and it has severely damaged the public image of Indian gaming," said Rep. Richard Pombo (R-California), the chairman of the House Resources Committee, said at the hearing last Thursday.

"This bad publicity definitely affects how members [of Congress] look at all bills affecting Indian tribes," he added.

Pombo is sponsoring a bill that would give local and state governments more input over casino locations that are not part of an existing reservation. At the hearing, tribal leaders objected to this provision, saying it goes against hundreds of years of precedent and undermines the federal-tribal trust relationship.

NIGC's new approach, as outlined in the recent determinations, is based significantly on the trust relationship. "Indian affairs has a long history of federal authority taking precedence over state jurisdiction," Coleman wrote in the June 30 opinion involving the Buena Vista Band.

Coleman acknowledges that the U.S. Supreme Court has limited tribal authority over reservation lands when those lands fall out of Indian ownership. In the March 14 opinion involving the White Earth Band of Ojibwe, a staff attorney noted that allotment of the reservation has left only 9 percent of the acreage in tribal ownership. And more than 50 percent of the reservation population is non-Indian, according to the U.S. Census Bureau.

But Coleman argues that court precedent doesn't apply when it comes to Indian gaming. As long as a casino site is within reservation boundaries, it qualifies for gaming regardless of ownership status, according to the NIGC.

"Because Congress has made IGRA�s application dependent upon whether the gaming is conducted on Indian lands, not upon whether the gaming is conducted by Indian or non-Indian people, we need not engage in a jurisdiction analysis," Coleman wrote in the August 18 opinion involving the Pyramid Lake Paiute Tribe of Nevada.

This analysis runs counter to the views of state officials. In the White Earth case, the state claims it has the right to regulate gaming activities on fee land within reservation boundaries. Coleman's opinion rejected that argument.

The analysis also marks a shift in NIGC's own precedents. Prior to this year's series of rulings, Coleman said the agency used to engage in a "two-part" test in order to determine whether a casino site qualifies for gaming. The test was developed after NIGC lost a court case in Kansas.

But NIGC has decided "in some instances" that IGRA's "preemptive effect negates the need for a complete jurisdictional analysis," Coleman wrote in the latest determination.

Under IGRA, gaming can only be conducted on "Indian lands" over which a tribe has jurisdiction. At a Senate hearing in July, Coleman said at least 50 determinations were pending before the NIGC. She indicated most were for gaming on lands within reservation boundaries.

At the same time, Coleman said the NIGC has no way of determining whether all 400-plus tribal casino sites are located on "Indian lands." She cited cases in Oklahoma and California that have prompted NIGC to develop a system to ensure IGRA is being followed.

Under the Indian Gaming Regulatory Act, "Indian lands" is defined as:
(A) all lands within the limits of any Indian reservation; and
(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.
Under 25 C.F.R. � 502.12, "Indian lands" means:
(a) Land within the limits of an Indian reservation; or
(b) Land over which an Indian tribe exercises governmental power and that is either --
(1) Held in trust by the United States for the benefit of any Indian tribe or individual; or
(2) Held by an Indian tribe or individual subject to restriction by the United States against alienation.

Recent Land Determinations:
Pyramid Lake Pauite Tribe (August 19, 2005) | Osage Nation (July 28, 2005) | Buena Vista Rancheria (June 30, 2005) | White Earth Reservation (March 14, 2005)

Relevant Links:
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS