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Court upholds off-reservation gaming provision in IGRA
Friday, April 30, 2004

A provision in federal law that gives states the ability to limit off-reservation gaming does not violate the U.S. Constitution or the trust relationship, a federal appeals court ruled on Thursday.

In a unanimous decision, the 7th Circuit Court of Appeals upheld language in the Indian Gaming Regulatory Act that grants states veto authority over off-reservation land acquisitions. Three Wisconsin tribes raised a series of constitutional challenges to the provision but all were rejected by the court.

A panel of three judges also said Congress has the power to enact laws that aren't necessarily in the best interests of tribes. "The Supreme Court has not yet invalidated a federal statute on the ground that it did not advance the federal government's trust obligation to Indian tribes," Judge Joel M. Flaum wrote for the majority.

The ruling is a defeat for the Red Cliff, Lac Courte Oreilles and Mole Lake Ojibwe bands. The three tribes sought approval to convert an old racetrack into a Class III casino and chose an urban location because their remote reservations have not been conducive to gaming.

The proposal immediately drew fire from tribes in Wisconsin and Minnesota that claimed their successful operations would be adversely affected. The pressure led the Clinton administration to deny the Ojibwe coalition's request in 1995. Under an out-of-court settlement, the BIA eventually agreed to reconsider the application.

In the meantime, Congress launched an investigation into more than $350,000 the opposing tribes gave to Democratic interests. The probe found no wrongdoing but raised charges that tribes were buying decisions at the Bureau of Indian Affairs.

The high-stakes controversy has continued as dozens of tribes in states across the nation seek to acquire land far from their current land base and, in some cases, in other states. Critics deride the practice as "reservation shopping."

In Senate testimony last month, the BIA official in charge of gaming said his staff has found no reason to deny such land applications. George Skibine, the acting deputy assistant secretary for policy and economic development, said it "it would definitely be an economic benefit" for tribes to gain approval for casinos in more lucrative areas.

But attorneys at the National Indian Gaming Commission, which regulates the $15 billion tribal casino industry, arrived at a different conclusion in a dispute over an out-of-state casino. Analyzing the section in IGRA at issue in the Ojibwe case, acting general counsel Penny Coleman issued a legal opinion stating that it "limits, not expands, the right to game."

"It is clear that Congress intended to allow some gaming to occur on lands acquired after enactment of IGRA under this provision, but specifically disallowed gaming on newly acquired lands far from the current prior reservation," the March 24 opinion stated.

Known as Section 2719, the provision bars gaming on land taken into trust after 1988 unless certain exceptions are met. At issue in the Ojibwe case is the exception that requires the BIA to determine that an off-reservation acquisition is in the best interest of the tribe, or tribes, and won't harm other tribes.

Then, the BIA is required to send the decision to the state governor for his or her concurrence in a process known as a two-part determination. Since 1988, there have only been three successful decisions of this kind.

Political and financial pressure on states and the federal government is high for these types of acquisitions. Currently, tribes in California, Wisconsin, Oklahoma and New York are seeking to build casinos in areas hundreds of miles away from their current land base.

The BIA has given preliminary approval to the St. Regis Mohawk Tribe to build a casino in the Catskills region of New York. This decision, which took more than three years to analyze, is relatively non-controversial because the state passed legislation to approve three off-reservation casinos.

But tribes from Wisconsin and Oklahoma also want to assert gaming rights in the state where their ancestors once lived. The BIA is considering whether to approve the Wisconsin-based Stockbridge Munsee Band of Mohican Indians' request for a Catskills casino. A federal judge has been asked to determine if the Seneca-Cayuga Tribe of Oklahoma can legally game in New York.

In California, tribes are seeking to avoid the lengthy and costly two-part determination process altogether. The Lytton Band of Pomo Indians was able to acquire 10 acres in the Bay Area without state approval under a Congressional rider. The law has been upheld by the 9th Circuit Court of Appeals.

The Coast Miwok Tribe won Congressional authority to obtain land for a reservation where it plans to build a casino. The provision was tied to restoration of the tribe's federal recognition.

Provisions in technical corrections bills sponsored by outgoing Sen. Ben Nighthorse Campbell (R-Colo.), chairman of the Senate Indian Affairs Committee, also benefit California tribes seeking casinos. But these have come under heightened scrutiny in the last two years and Campbell is reported to have withdrawn one such provision from an upcoming bill.

Get the Decision:
LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS OF WISCONSIN v. US (April 29, 2004)

Relevant Links:
Chippewa Meadows Gaming & Racing - http://www.chippewameadows.com

Related Stories:
IGRA amendments mired in debate over revenues (04/13)
NIGC rules against Okla. tribe's casino in Kansas (03/26)
Senate panel debates changes to Indian gaming act (03/25)
Wis. gaming lawsuit moved to new court (8/27)
Wisconsin Governor vetoes Ojibwe casino (5/15)
Gaming suit aimed at ousting state's role (5/11)
Norton fields questions from tribal leaders (2/23)
BIA approves off-reservation Ojibwe casino (2/21)
Babbitt casino report released (8/23)
Tribe suing DOI over casino (7/18)

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