your internet resource on facebook on twitter on Google+ on soundcloud
phone: 202 630 8439
Dynamic Homes
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
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

Related Stories:
Salazar building Interior team with Native hires (3/5)
Last-minute Bush action threatens gaming proposals (2/23)
NIGC approval of Seneca casino survives challenge (2/2)

Copyright © Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News Today: Oglala leader alleges more corruption (10/28)
Native Sun News Today: Sheriff makes biggest #NoDAPL roundup (10/27)
Democracy Now: Dakota Access security guards weren't licensed (10/27)
Lakota Country Times: Pine Ridge youth center stresses safety (10/27)
James Giago Davies: Corruption keeps the privileged in power (10/27)
Dana Lone Hill: Indian people won't stop fighting for our rights (10/27)
Dave Archambault Sr.: Dehumanizing the #NoDAPL movement (10/27)
Steven Newcomb: Reconciliation means covering up the truth (10/27)
Standing Rock Sioux Tribe sees decline in business at casino (10/27)
Republican Donald Trump invested in Dakota Access Pipeline (10/27)
The Sioux Chef on track to open indigenous restaurant in 2017 (10/27)
Yakama Nation secures $30M loan to expand utility company (10/27)
Jury restarts deliberations in armed standoff on tribal territory (10/27)
Scotts Valley Band envisions casino as part of new homeland (10/27)
Seneca Nation on track to complete $40M expansion at casino (10/27)
Cowlitz Tribe spends $32M for highway project at new casino (10/27)
Native youth pressure Hillary Clinton to take a #NoDAPL stand (10/26)
Native candidate in South Dakota gets a big boost from Obama (10/26)
Landowners from Bad River Band see $6.6M in buy-back offers (10/26)
Navajo Nation lawmaker warns further action needed on hemp (10/26)
Former Obama administration official joins Native owned firm (10/26)
Justice Department opens criminal databases to more tribes (10/26)
Mark Trahant: Native candidates for Congress in final stretch (10/26)
Lakota Country Times: Oglala Sioux Tribe reacts to shootings (10/26)
Native Sun News Today: Pine Ridge football team impresses (10/26)
Brandon Ecoffey: Strong fixes needed for reservation crime (10/26)
Raúl Grijalva: Republicans still won't listen to Indian Country (10/26)
Steve Russell: The magic of Donald Trump's 'plan' for America (10/26)
Harlan McKosato: Film pays tribute to 'warrior' Elouise Cobell (10/26)
Haskell University expelled student who was victim of assault (10/26)
Jury deliberates verdicts in armed standoff on tribal territory (10/26)
Aquinnah Wampanoag Tribe gets court date in gaming lawsuit (10/26)
Tule River Tribe gains support for moving casino to a new site (10/26)
First Nations casino in Saskatchewan pays out $1.5M jackpot (10/26)
Dakota Access ramps up spending on lobbying and politicians (10/25)
Cheyenne River Sioux Tribe presses Obama on Dakota Access (10/25)
Indian National Finals Rodeo gears up for big crowds in Vegas (10/25)
Mark Trahant: Native candidates benefit from Clinton landslide (10/25)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.