Tribes with restricted fee lands don't have to follow the Interior Department
's new gaming regulations, according to an eleventh-hour legal opinion from the Bush administration.
The Indian Gaming Regulatory Act
, in general, bars gaming on lands acquired after 1988 except under certain exceptions outlined in Section 20 of the law. The new regulations, which were finalized last August, describe how Interior handles those exceptions.
But on January 18, two days before President Barack Obama
took office, Interior's top legal official removed an entire class of lands from the regulations.
Former solicitor David Bernhardt said the rules only apply to lands that were taken into trust pursuant to the
Indian Reorganization Act
The opinion, which wasn't published on Interior's web site until January 21, acknowledges a departure
from prior positions held by the department. In 2002, former Interior secretary Gale
Norton said tribes with restricted fee lands must follow the Section 20 process.
"Secretary Norton was concerned about the apparent loophole
in [Section 20] with respect to after-acquired fee restricted lands,"
the opinion states.
"She was concerned that ... the department would be inundated with applications to game on after-acquired restricted fee lands,
and that tribes would be allowed to conduct gaming operations on such lands without meeting
one of the exceptions to the prohibition on gaming on newly acquired lands."
But Bernhardt said Norton's reading of IGRA
"based on a misapprehension of the law." After his own review,
he concluded that Congress meant Section 20 to apply
to lands that are acquired in trust under the IRA and not to lands
held in restricted status.
"Based on its review, the department concluded that the
language of [Section 20] is plain and cannot be ignored and that
Secretary Norton's concern about the potential
loophole for restricted fee lands was based on an
incorrect understanding of the law," Bernhardt wrote.
As Obama was being sworn into office on January 20, the National Indian Gaming Commission
used the new interpretation of Section 20 to
approve a controversial off-reservation casino
for the Seneca Nation
of New York. Opponents of the $333 million
downtown Buffalo facility are going to back to court in hopes of overturning
The new interpretation could also help tribes elsewhere, particularly
those in Oklahoma, where restricted fee lands are common.
Last year, the Quapaw Tribe
opened a large $400 million
casino on a restricted allotment that was formerly owned by individual Indians.
The Miami Nation
, also of Oklahoma, has been trying for years to
use a restricted allotment in Kansas for a casino. The NIGC has taken the position that the land is not suitable for gaming but
the new interpretation could help the tribe in court.
The opinion doesn't indicate how many tribes will be affected. "Restricted fee lands continue to exist; especially tribal lands in
what were the original Thirteen Colonies, some General Allotment Act individual allotments,
and tribal lands subject to statutory restrictions," Bernhardt wrote.
Despite the potential "loophole" that Norton was worried about,
a memorandum of understanding signed by Bernhardt in the final days
of the Bush administration states that Interior will still perform
some type of review when a tribe intends to game on restricted fee lands.
The agreement appears to take some authority away from the NIGC
in making decisions on casino projects.
Though Bernhardt left office on January 20, Obama has not named
a replacement. Interior Secretary Ken Salazar
last week said
the president was going to name a member of
the Navajo Nation
whom sources identified as Hilary
, a prominent attorney from New Mexico -- to the post of Solicitor.
The NIGC remains in control of Phil Hogen, a Bush nominee who is a member of the Oglala Sioux Tribe
of South Dakota. Obama has
not named a replacement either.
After joining the Bush administration in May 2001, Bernhardt served as Interior solicitor from September 2006 to January 2009.
In his last week in office, he published five legal opinions -- more
than any in 2008 and more than any in 2007.
Solicitor's Opinion: Applicability of 25 U.S.C. § 2719 to Restricted Fee Lands
(January 18, 2009) |
National Indian Gaming Commission Approval of Seneca Nation Casino
(January 20, 2009)
Section 20 IGRA Regulations:Part
| Part V
Salazar building Interior team with Native hires
(3/5) Last-minute Bush action threatens gaming
NIGC approval of Seneca casino survives challenge