Law

Oklahoma tribe seeks action on New Mexico casino

Monday, March 17, 2008

The Fort Sill Apache Tribe of Oklahoma is asking a federal judge to force the Bush administration to clear the way for a casino hundreds of miles away in New Mexico.

The tribe has 30 acres of trust land in southern New Mexico. But plans for a Class II facility there have been scuttled because the Bureau of Indian Affairs is dragging its feet, according to documents filed in court last Tuesday.

The documents point to a court settlement in which the BIA promised to "accept and timely process a Fort Sill Apache Tribe application for a reservation proclamation" for the New Mexico site. But it's been nearly two years since the application was submitted and no decision has been made, Chairman Jeff Houser said in a declaration.

"[F]rom May 6, 2006 until Tuesday, March 11, 2008, the Fort Sill Apache Tribe received no official correspondence from the United States or any of its agents or agencies relating to the status of or request for any additional information on the tribe's request for a reservation proclamation," Houser said under oath.

The delay hasn't stopped the tribe from trying to use the land, however. An 11,000-square-foot temporary facility was set to open as early as this month, before state and federal officials began raising questions about the plan.

Sens. Pete Domenici (R-New Mexico) and Jeff Bingaman (D-New Mexico) said the site can't be used for a casino because it was taken into trust after the passage of the Indian Gaming Regulatory Act of 1988. The law bars gaming on newly acquired lands except in certain circumstances.

The National Indian Gaming Commission, in a preliminary review, also warned the tribe not to open the facility. New Mexico Gov. Bill Richardson (D) sent about 50 state troopers to the site to prevent gaming activities from occurring there.

But by obtaining a reservation proclamation, the tribe could open the gaming facility even though the site is about 750 miles from tribal headquarters in Apache, Oklahoma.

Approval of the reservation application stands in contrast to a new policy issued by the Bush administration in January. Assistant secretary Carl Artman, the head of the BIA, said tribes will face additional scrutiny for seeking casinos hundreds of miles from existing reservations.

The Fort Sill Apache Tribe doesn't have a reservation, the court settlement notes. And since the New Mexico site was already placed in trust, the BIA can't impose the new policy on the tribe.

But Artman, in an interview last month, said that the tribe can't do whatever it wants on the land without proper federal approval. "When we acquire land, we just don't do it in a vacuum," he said. "We do ask those questions, whether it will be used for [a casino]. We ask what the purpose will be."

"If it was acquired in 2002, I think that you've got the post-'88 issue you're going to have to contend with," Artman said of the Fort Sill Apache site.

In a closely-related case, the BIA was asked to approve a reservation proclamation for the Sault Ste. Marie Tribe of Chippewa Indians in Michigan. The agency failed to take action for more than 20 years, forcing the tribe to keep a $41 million casino in the dark due to post-'88 IGRA issues.

Last August, a federal judge ordered the federal government not to "take any further action and steps to impede, prevent, stop, or otherwise interfere with the plaintiff's opening and operating said new gambling casino." The Fort Sill Apache Tribe is citing the case in hopes of bolstering its position for the New Mexico site.

"Thus we submit the Department of Interior ... would be hard pressed in any judicial proceeding to justify a decision withholding a formal proclamation of reservation status, or to show that any such negative conclusion was other than arbitrary and capricious and an abuse of discretion," the tribe's attorneys said in a memo.

The Department of Justice has not filed a response to the tribe's request for action. But in an interview with The Las Cruces Sun-News, a BIA official disputed the suggestion that the tribe was promised a right to engage in gaming in New Mexico.

"That's not the case, and if that were the case, I think they'd make sure to include a provision like that in the settlement agreement," George Skibine, the head of the BIA's Office of Indian Gaming Management, told the paper.