The National Indian Gaming Commission
is again expressing concerns about tribes who promise not to use newly acquired lands for casinos, only to change their minds about it at a later date.
In a 30-page opinion issued on Monday, the NIGC's top attorney said the Fort Sill Apache Tribe
of Oklahoma won approval of a
land-into-trust application after saying it would not use a site in southern New Mexico for gaming.
"No development is proposed at this time," the Bureau of Indian Affairs
noted in a July 2001 letter that supported the acquisition.
But earlier this year, long after the land was placed in trust, the tribe informed the NIGC that it was going to open a Class II facility anyway. The move immediately sparked controversy in New Mexico, whose otherwise Indian-friendly governor dispatched about 50 state troopers to the 30-acre site in hopes of blocking gambling activities.
When it comes to gaming, the standoff with Gov. Bill Richardson
(D) wasn't too surprising, despite his pro-tribal views. As the $26 billion tribal casino industry continues to grow, tribes face increasing demands from states, who want to control more and more aspects of Indian gaming, including the ability to stop it.
In the eyes of the NIGC, though, the Fort Sill Apache case affects the way tribes interact with the federal government. The opinion calls out the tribe for breaking a "promise" not to use the site for a casino.
"Broken promises affect the overall integrity of the process and the relationship between the federal family and tribes," Penny Coleman, the NIGC's acting general counsel wrote in the opinion
This isn't the first time the NIGC has voiced such concerns. In a recent case, the agency reluctantly said the Ponca Tribe
of Nebraska could use a site in Iowa for gaming even though the tribe had promised not to do so when the land was acquired.
"Without a consequence for those who boldly promise whatever suits them, we are concerned by the tarnish the Ponca's actions may have on the credibility and good faith of other tribes that attempt to have land taken into trust," the NIGC said in a December 31, 2007, decision
The promises are important because the Indian Gaming Regulatory Act
bars gaming on lands acquired after 1988. By agreeing not to use a site for a casino, tribes can avoid a lengthy review process that requires federal -- and sometimes state -- approval.
But in both the Apache and Ponca cases, the NIGC said it can't use a broken promise against a tribe. Regardless of the reason the land was taken into trust, the agency looks to other factors to determine whether the site meets one of the exceptions in Section 20 of IGRA.
"The law," Coleman observed, "consistently shows that the NIGC cannot consider such factors in its analysis."
Unlike the Poncas, though, the Apaches didn't convince Coleman that the New Mexico site met any of the Section 20 exceptions, which are the subject of newly finalized regulations. As a result, the NIGC said the land cannot be used for gaming since it was taken into trust after 1988.
Despite the negative ruling, the Apaches still have a shot at using the land for gaming. The tribe is awaiting on a decision from the BIA to declare the site as a reservation and has filed a lawsuit to force action.
If that happens, the opinion indicates that the tribe will meet of the Section 20 exceptions. Coleman noted that the tribe is already exercising jurisdiction at the site.
But the reservation proclamation comes with strings attached. According to a footnote in the opinion, outgoing assistant secretary Carl Artman told the tribe that the BIA will have to conduct an environmental assessment "at a minimum" before gaming can occur on the land.
Fort Sill Apache ancestors -- including the famed leader Geronimo -- lived in New Mexico before they were imprisoned by the U.S. military in Florida. The federal government no longer recognized the tribe's rights to its land in New Mexico and Arizona and the tribe was removed to Oklahoma.
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