Artman issues gaming rules as he leaves BIA ofice
Twenty years after the passage of the Indian Gaming Regulatory Act of 1988, the Bush administration finalized long-awaited regulations for gaming-related land acquisitions on Monday.

In the works for more than two years, the rules address a controversial aspect of the $26 billion tribal casino industry. They define criteria for the acquisition of new lands -- away from existing reservations -- for gaming facilities.

The overwhelming majority of the 400-plus tribal casinos in operation today are located within reservation boundaries. But there are a growing number of tribes who are seeking to acquire lands that aren't part of a reservation.

In general, IGRA bars gaming on lands acquired after 1988. But Section 20 of the law set outs four exceptions: for Oklahoma tribes with former reservations, for newly recognized tribes, for restored tribes and for tribes with land claim settlements.

A tribe that can't satisfy any of the exceptions can still pursue gaming on newly acquired lands so long as the state governor concurs. This is known as the two-part determination process that has only been successful three times since 1988.

Some of the four exceptions, however, are more common. In Oklahoma, at least a dozen gaming facilities have been opened on lands taken in trust after 1988.

More than two dozen newly recognized and restored tribes have been able to open casinos on post-1988 lands as well. Most of these facilities are located in western states.

The land claim exception has been used only sparingly. Since 1988, only two tribes have successfully opened casinos on land taken into trust under a settlement.

The Bureau of Indian Affairs developed internal policy to address all of these cases, including the two-part determination ones. But the regulations, which were published in the Federal Register today, lay out the criteria in public for the first time since 1988.

For the most part, the rules do not break new ground. But there are some notable criteria that mainly apply to newly recognized tribes and restored tribes.

The BIA has set a 25-mile radius for consulting local officials and nearby tribes for these types of land acquisitions. This is less restrictive than the 50-mile and 100-mile requirements that were part of internal policy during the Clinton administration but more restrictive than a 10-mile limit that the Bush administration adopted in 2005.

Also, the BIA eliminated a proposal that required a "majority" of tribal members live within 50 miles of the gaming site. The mileage limit was struck but the regulations still require a tribe to demonstrate "modern" connections to the land.

For restored tribes, the BIA has developed criteria that might be seen as restrictive. As one example, a tribe has to submit a land-into-trust application within 25 years of being restored to qualify for this exception.

Additionally, the "reasonable commuting distance" test that was adopted in January as part of a controversial BIA policy against off-reservation gaming has been included as one way of determining whether a tribe can meet the restored exception.

As for two-part determination, the process remains difficult to complete but the BIA appears to have rejected proposals to make it even harder. The regulations state that a tribe does not have to demonstrate any type of connection to the proposed gaming site.

The 25-mile radius requirement for consulting local officials and nearby tribes also applies to two-part determinations. But the BIA said IGRA only requires the governor's concurrence -- not that of state legislatures, county governments or any other state officials.

The "reasonable commuting distance" test is not part of the criteria for the two-part determination process. But the January policy still applies when the BIA considers the tribe's land-into-trust application, an entirely separate process.

As for the Oklahoma exception, the rules do not appear to make any changes to the process. Unlike newly recognized and restored tribes, who are essentially given one shot to engage in gaming on post-1988 lands, Oklahoma tribes have unlimited opportunities to open casinos on newly acquired lands.

Barring a legal challenge, the rules become effective on June 19. They were signed by outgoing assistant secretary Carl Artman, who is resigning at the end of this week, on May 12.

Federal Register Notice:
Part I-IV | Part V | PDF

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