For tribes seeking to acquire land away from their reservations, the Bush administration's new policy has them wondering just how far they can go.
Assistant secretary Carl Artman, in his January 3 guidance memorandum on off-reservation land acquisitions, declined to specify a mileage limit. The following day, he rejected applications as close as 70 miles and as far away as 550 miles from existing reservations.
But his testimony to the House Natural Resources Committee yesterday gave some indication
of a mileage cap. The number is much lower than any of the applications that were rejected last month.
"We are taking land into trust that is off reservation," Artman testified. "Most of those are 40 miles or below."
Artman also acknowledged, for the first time publicly, that his memorandum will have an impact on non-gaming applications. In prior interviews and statements, he has said the policy is limited to tribes who are seeking casinos under the two-part determination process of the Indian Gaming Regulatory Act.
Yesterday, though, he said his guidelines will have a "residual impact" on non-gaming acquisitions. This shift affects a larger number of tribes than the 30 or so that are seeking off-reservation casinos.
The change have alarmed tribes and Indian advocates throughout Indian Country. The near unanimous view is that Artman developed a significant new policy without consulting tribes on a government-to-government basis.
Critics also say Artman failed to give tribes with off-reservation casino applications an opportunity to respond to his guidance. The memorandum was released publicly on January 4 -- the same day as the rejection letters.
"Given these circumstances, it was a complete miscarriage of justice for the [Interior]
Department to have created a brand new rule one day and apply it the next day," said Chief Lorraine White of the St. Regis Mohawk Tribe of New York, whose off-reservation casino was denied based on the memorandum.
Alex Skibine, a professor of law at the University of Utah, agreed with that assessment. He said the timing of the early January actions likely violated the administrative and constitutional rights of the affected tribes.
"The tribes obviously did not have proper notice of the two new factors, and thus, they did not have time to respond or rebut if you will the presumptions these two factors created," said Skibine, whose twin brother, George Skibine, is the director of the Office of Indian Gaming Management at the Bureau of Indian Affairs.
Members of the House committee took issue with Artman's moves as well. Rep. Nick Rahall (D-West Virginia), the chairman, questioned why the BIA didn't engage in any sort of public comment or consultation before coming up with the policy.
"The potential change to the federal policy towards Indian tribes is disturbing," said Rahall. "We have to question if this administration is advocating a policy to keep Indians
on the reservation."
Artman defended his actions, saying it was "too late" in the administration to engage in a formal rule-making process. He said tribes were well aware that he was developing new guidance, which he described as an "internal" management document rather than a new policy.
Even more changes are in store for tribes seeking land for casinos. Artman is finalizing regulations for the Section 20 process of IGRA, an entirely different section than the two-part
These rules were subject to a lengthy tribal consultation process. The exact date of their release is not yet known.
Of Interior’s Recently Released Guidance On Taking Land Into Trust For Indian
Tribes And Its Ramifications
(February 27, 2008)
Off-Reservation Gaming Policy:Guidance on taking off-reservation land into
trust for gaming purposes
(January 3, 2008)
BIA Letters:Big Lagoon
| Chemehuevi Tribe
Hannahville Indian Community
| Jemez Pueblo
| Lac du Flambeau Band of Lake Superior
| Los Coyotes Band of
Cahuilla and Cupeño Indians
| Mississippi Band of Choctaw Indians
| St. Regis Mohawk Tribe
| Stockbridge Munsee Band of Mohican
| Seneca-Cayuga Tribe
| United Keetoowah Band of Cherokee Indians
| Other January 4 Tribes
House Natural Resources Committee - http://resourcescommittee.house.gov