Note: The Phil Hogen letter was inadvertently missing a single page. The document has been revised and posted.
Tribes will have to certify every year that their casinos are operating within the law as part of a new rule developed by the National Indian Gaming Commission.
Last Friday, NIGC Chairman Phil Hogen released a working draft of the proposed facility licensing regulations. He said tribes have until June 30 to submit comments as the agency moves forward with the rule-making process.
"The intent of these regulations is to provide a method of identifying the Indian lands on which tribes are gaming and assuring that the environmental and public health and safety standards are adopted by each tribe," Hogen wrote in the May 12 letter.
Under the proposal, tribes will have to submit an annual license for each and every Class II or Class III gaming facility they operate. Among other information, tribes must show that each gaming
site is located on "Indian lands" as defined by the Indian Gaming Regulatory Act.
"Indian lands" means all land within the boundaries of a reservation, regardless of trust or ownership status of the land. It also means land that is held in trust and over which a tribe exercises sovereign authority.
The majority of the 400-plus casinos in operation today are located on Indian lands. But recent developments have prompted the NIGC to take a closer look at the legality of particular sites due to the way the land was acquired.
"There have been instances when, literally the night before it happened, we were advised the tribe is going to open a facility and we didn't know the answer to questions like, 'Is that really on Indian lands,'" Hogen said earlier this year at a United South and Eastern Tribes conference.
Interior Department officials have confirmed that some gaming facilities are operating on sites that may not meet the Indian lands definition. Some tribes have "converted" land that was acquired for non-gaming purposes to gaming without following IGRA, a recent Inspector General report determined.
To address the situation, NIGC has launched two initiatives. The first is an Indian lands database that will contain land information on all the 400-plus casino sites.
The second is the proposal released last week. It puts the onus on tribes, as the primary regulators of Indian gaming, to certify the legality of their casino sites, as well as the environmental and public health and safety standards applicable for the sites.
In the letter, Hogen said the draft is "limited in scope and purpose" based on comments received during initial consultation with tribes. For example, tribes won't be subject to criminal penalties if their certifications turn out to be incorrect -- as NIGC officials had suggested in the Inspector General report.
Another way to address the situation is to dedicate more resources at the NIGC, the Bureau of Indian Affairs and the Interior Department. But that potential solution was rejected because land-into-trust is not a priority of the Bush administration, an official said in response to the Inspector General report.
"While processing land-into-trust applications more quickly may benefit a particular tribe's economic development goals, it does not necessarily fit into the overall priorities in Indian Affairs such as trust reform, education and law enforcement," said former Solicitor Sue Ellen Wooldridge, who left Interior in November 2005 to work for the Justice Department in the environment and natural resources division, which handles Indian issues.
The "pre-rulemaking comments" on the proposed facility licensing regulations are due by June 30, Hogen said in his letter. NIGC is likely to revise the proposal based on tribal response before publishing the rules in the Federal Register.
Proposed Facility Licensing
(May 12, 2006)
Inspector General Report:
to Assess Applications to Take Land Into Trust for Gaming Purposes
Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS
National Indian Gaming Association - http://www.indiangaming.org