A key question emerged at the House Resources Committee hearing on Wednesday: Of the more than 400 tribal casinos in existence, how many are on land taken into trust after the passage of the Indian Gaming Regulatory Act?
According to Rep. Richard Pombo (R-California), the chairman of the committee, far more than the people think. Citing news accounts, including an analysis by Indianz.Com, he said 38 casinos -- out of the 405 in operation -- are located on newly acquired trust lands.
"We have established that nearly 10 percent of the casinos operating today are operating on land that was not in trust as of 1988," Pombo said.
Pombo used the figure to draw attention to what he said were misleading statements made by federal government officials. At recent hearings, and at public conferences, the Bureau of Indian Affairs and the National Indian Gaming Commission have repeatedly referred to the small number -- three, to be exact -- of off-reservation gaming establishments approved since 1988.
The National Indian Gaming Association, along with tribal leaders, have
cited the same number in downplaying the controversy surrounding off-reservation
But Pombo said the statistic does not represent reality. Through exceptions in Section 20 of IGRA that apply to Oklahoma tribes, newly recognized tribes, restored tribes and tribes with land claim settlements, he said the BIA and the NIGC have approved far more casinos than publicly acknowledged.
"To continue to go back to your figure of three is an inaccurate and misleading statement," Pombo told George Skibine, the head of BIA's Office of Indian Gaming Management.
Skibine, however, put his comments -- made to the Senate Indian Affairs Committee last month -- into context. He said he was referring only to the number of casinos approved under the two-part determination process outlined in Section 20.
He also said he couldn't confirm or refute the 38 figure, but said the BIA has approved 32 casinos on land taken into trust after 1988.
The responses did little to impress Pombo, who introduced a bill last week that essentially eliminates Section 20 in order to make it more difficult for tribes to open casinos on land acquired after 1988. His goal is to stop the so-called practice of "reservation shopping" that has angered local communities and led to disputes among tribes.
The Bush administration hasn't taken a position on the bill, said Jim Cason, the associate deputy secretary at the Interior Department. But he said he doesn't necessarily begrudge tribes for looking for the most lucrative place to open a casino.
"If I were an Indian businessman and I were a landless tribe ... I would go shopping for the best property I can find," Cason told the committee. "It's just being smart about the process."
Skibine is currently drafting new regulations to govern the Section 20 process. He hopes to publish a draft in the Federal Register by late May or June and finalize the proposal sometime in the summer.
The effort runs counter to Pombo's bill and another bill introduced by Sen. John McCain (R-Arizona). The regulations assume that no changes will be made to Section 20 of IGRA.
As written by Congress, IGRA bars gaming on lands acquired after 1988. But to account for special situations, Section 20 contains three exceptions for former reservations in Oklahoma, newly recognized or restored tribes and tribes who settle their land claims.
If a tribe cannot meet any of the exceptions, Section 20 provides a "two-part determination" process that requires approval from the BIA and concurrence by the state governor. Since 1988, three tribes have successfully completed this process while at least seven have been rejected, either by the BIA or by the state.
About a dozen tribes have two-part determination applications pending before the BIA. But far more tribes are seeking to open casinos through the other Section 20 exceptions, Pombo said, citing at least two dozen such proposals. Gaming opposition groups put the figure as high as 40 to 50.
The National Indian Gaming Commission is trying to get a better handle on the situation, said Chairman Phil Hogen. The agency is creating an Indian lands "database" to determine whether the 400-plus casinos are operating legally and is developing regulations to require tribes to certify the legality of their casino sites.
Also, the Interior Department's Inspector General has looked into a special situation that has arisen in Oklahoma. A small number of tribes, most notably the Chickasaw Nation, have acquired land in trust after 1988 without stating the land will be used for gaming.
Only later does the tribe open a casino, enabling the tribe to avoid a lengthy review process. The Inspector General found at least 10 instances in which tribes skirted the law.
Draft BIA Regulations:Gaming on Lands
Acquired After October 17, 1998
Relevant Documents:Kevin Gover
25 CFR Part 151 Land-into-Trust Process
| Section 20
Pombo IGRA Bill:
To amend section 20 of the Indian Gaming Regulatory Act to restrict
McCain IGRA Bill:Indian
Gaming Regulatory Act Amendments of 2005
Relevant Documents:McCain Floor
(November 18, 2005)
April 27, 2005, Hearing on Regulation of Indian Gaming:Witness
May 18, 2005, Hearing on Taking Land into Trust:Witness
June 28, 2005, Hearing on Regulation of Indian Gaming:Witness
July 27, 2005, Hearing on IGRA exceptions and off-reservation
September 21, 2005, Hearing on Regulation of Class III Gaming:Witness
Senate Indian Affairs Committee - http://indian.senate.gov
Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS
National Indian Gaming Association - http://www.indiangaming.org