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Bush opinion cites 'loophole' in Indian gaming law
Tuesday, March 10, 2009
Filed Under: Law | Politics

Tribes with restricted fee lands don't have to follow the Interior Department's new gaming regulations, according to an eleventh-hour legal opinion from the Bush administration.

The Indian Gaming Regulatory Act, in general, bars gaming on lands acquired after 1988 except under certain exceptions outlined in Section 20 of the law. The new regulations, which were finalized last August, describe how Interior handles those exceptions.

But on January 18, two days before President Barack Obama took office, Interior's top legal official removed an entire class of lands from the regulations. Former solicitor David Bernhardt said the rules only apply to lands that were taken into trust pursuant to the Indian Reorganization Act.

The opinion, which wasn't published on Interior's web site until January 21, acknowledges a departure from prior positions held by the department. In 2002, former Interior secretary Gale Norton said tribes with restricted fee lands must follow the Section 20 process.

"Secretary Norton was concerned about the apparent loophole in [Section 20] with respect to after-acquired fee restricted lands," the opinion states. "She was concerned that ... the department would be inundated with applications to game on after-acquired restricted fee lands, and that tribes would be allowed to conduct gaming operations on such lands without meeting one of the exceptions to the prohibition on gaming on newly acquired lands."

But Bernhardt said Norton's reading of IGRA "based on a misapprehension of the law." After his own review, he concluded that Congress meant Section 20 to apply to lands that are acquired in trust under the IRA and not to lands held in restricted status.

"Based on its review, the department concluded that the language of [Section 20] is plain and cannot be ignored and that Secretary Norton's concern about the potential loophole for restricted fee lands was based on an incorrect understanding of the law," Bernhardt wrote.

As Obama was being sworn into office on January 20, the National Indian Gaming Commission used the new interpretation of Section 20 to approve a controversial off-reservation casino for the Seneca Nation of New York. Opponents of the $333 million downtown Buffalo facility are going to back to court in hopes of overturning the decision.

The new interpretation could also help tribes elsewhere, particularly those in Oklahoma, where restricted fee lands are common. Last year, the Quapaw Tribe opened a large $400 million casino on a restricted allotment that was formerly owned by individual Indians.

The Miami Nation, also of Oklahoma, has been trying for years to use a restricted allotment in Kansas for a casino. The NIGC has taken the position that the land is not suitable for gaming but the new interpretation could help the tribe in court.

The opinion doesn't indicate how many tribes will be affected. "Restricted fee lands continue to exist; especially tribal lands in what were the original Thirteen Colonies, some General Allotment Act individual allotments, and tribal lands subject to statutory restrictions," Bernhardt wrote.

Despite the potential "loophole" that Norton was worried about, a memorandum of understanding signed by Bernhardt in the final days of the Bush administration states that Interior will still perform some type of review when a tribe intends to game on restricted fee lands. The agreement appears to take some authority away from the NIGC in making decisions on casino projects.

Though Bernhardt left office on January 20, Obama has not named a replacement. Interior Secretary Ken Salazar last week said the president was going to name a member of the Navajo Nation -- whom sources identified as Hilary Tompkins, a prominent attorney from New Mexico -- to the post of Solicitor.

The NIGC remains in control of Phil Hogen, a Bush nominee who is a member of the Oglala Sioux Tribe of South Dakota. Obama has not named a replacement either.

After joining the Bush administration in May 2001, Bernhardt served as Interior solicitor from September 2006 to January 2009. In his last week in office, he published five legal opinions -- more than any in 2008 and more than any in 2007.

Relevant Documents:
Solicitor's Opinion: Applicability of 25 U.S.C. § 2719 to Restricted Fee Lands (January 18, 2009) | National Indian Gaming Commission Approval of Seneca Nation Casino (January 20, 2009)

Section 20 IGRA Regulations:
Part I-IV | Part V | PDF