Kathryn Quoted on NIGC's Withdrawal of Proposed Class II Regulations and New "Section 20" Regulations

In this Cape Cod Times article, Kathryn is quoted on the impact of the NIGC's decision to withdraw the most controversial proposed Class II regulations, as well as the impact of the new "Section 20" regulations issued by the Interior Department, on the Mashpee Wampanoag's efforts to open a casino in Massachusetts.

The links between the withdrawn and proposed regs are intriguing from the perspective of the Mashpee. Both outcomes do little to harm the tribe’s efforts to open a casino in Massachusetts, and may in fact assist the tribe in maintaining some political leverage.

Read the article here.

New "Section 20" Regulations: The Best Interests Exception

So here we go with the “best interests” exception, otherwise known as the “two-part determination.” Follow this:

Under IGRA's section 2719, an exception is made to the general prohibition against gaming on newly acquired lands when gaming on the lands is "in the best interest of the tribe and its members, and would not be detrimental to the surrounding community." We call this the "best interests" exception; it also is referred to as the "Secretary's two-part determination." Specifically, IGRA requires that the Secretary of the Interior must first consult with the tribe, the state, local officials, and officials of nearby tribes, and then determine that gaming on the newly acquired lands would be in the best interest of the tribe and its members and would not be detrimental to the surrounding community. Importantly, the state's governor must concur in the Secretary's determination; as we've pointed out on numerous occasions, this is essentially veto power over tribal gaming under this exception. The consultation and governor's concurrence requirements create potential political obstacles to the likelihood that a tribe may conduct gaming on newly acquired lands under the "best interests" exception, as demonstrated by the fact that only three tribes currently operate gaming on newly acquired lands under this exception (the Keweenaw Bay Indian Community of the Lake Superior Bands of Chippewa Indians operate a casino in Choclay Township, outside of Marquette, Michigan; the Forest County Potawatomi operate a casino in Milwaukee, Wisconsin; and the Kalispell Tribe conducts gaming in Airway Heights, Washington).

The new regulations detail the process for approval of a "best interests" exception application. (Much of the process tracks what the BIA had followed under the "Checklist for Gaming Acquisitions and Two-Part Determinations Under Section 20 of IGRA" and the January 2008 "Guidance on Taking Off-Reservation Land Into Trust for Gaming Purposes.") A few things worth noting:

"Surrounding community" is defined in section 292.2 as including "local governments and nearby Indian tribes located within a 25-mile radius of the proposed gaming establishment." A local government or tribe further away may be included in the consultation process if the tribe shows that "its governmental functions, infrastructure or services will be directly, immediately and significantly impacted" by the gaming.

The tribe's application must describe the benefits and impacts of the gaming on the tribe and its members. Specifically, the regulations require information about projected gaming income, projected tribal employment, tourism, proposed uses of income, possible adverse impacts and plans to address the same, distance between the land and the tribe's core governmental functions, historical connections to the land, and "any other information" relevant to the Secretary's determination on this point.

Similarly, the tribe's application must include information about the detrimental impacts of the gaming on the surrounding community, such as environmental impacts; impacts on the social structure, infrastructure, services, housing, community character, and land use patterns; impacts on economic development, income, and employment; treatment of compulsive gambling; impacts on other tribes' traditional cultural connections to the land; the costs of the anticipated impacts; and "any other information" relevant to the Secretary's determination on this point.

Assuming the Secretary determines that gaming on the land would be in the best interest of the tribe and its members, and would not be detrimental to the surrounding community, then the Secretary will notify the state's governor and request her concurrence. If the governor concurs, then the tribe's application will be approved. The governor's written "non-concurrence" will prevent the tribe from using the land for gaming purposes, though the tribe may pursue a land-into-trust application for non-gaming purposes. Under the new regulations, the governor may also do nothing. If the governor issues neither a concurrence or a "non-concurrence" within a year (which may be extended by an additional 180 days) of the Secretary's notification and request for concurrence, then the Secretary's determination essentially will expire, requiring the tribe to start over.

Next time, some commentary on this exception from an article or two in which Kathryn is quoted.

New "Section 20" Regulations: Restored Lands Exception

Still more in our series on the National Indian Gaming Commission’s new “Section 20” regulations concerning gaming on newly acquired lands:

In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (iii) the restoration of lands for an Indian tribe that is restored to Federal recognition." The new regulations, in 25 C.F.R. sections 292.7 to 292.12, set out the requirements for the restored lands exception.

The tribe must show that it was federally recognized, that its recognition was terminated or otherwise lost, and that it then subsequently was "restored" to federal recognition. Importantly, the tribe must also show that the land in question was part of a "restoration of lands" connected to the tribe's restored federal recognition. Each of these requirements is detailed in the new regulations.

The tribe's original federal recognition may be evidenced by U.S.-tribal treaty negotiations, organization under the Indian Reorganization Act (or the Oklahoma Indian Welfare Act), federal legislation, land acquired by the U.S. for the tribe's benefit, or other demonstration of the existence of a government-to-government relationship between the tribe and the U.S.

Termination of the tribe's recognition may be through federal termination legislation, federal restoration legislation that acknowledges prior recognition, or consistent federal records indicating termination of the government-to-government relationship with the tribe.

Restoration of the tribe's federal recognition may be by federal statute, the federal administrative acknowledgment process, or a federal court decision (in which the U.S. is a party) or a court-approved settlement agreement (entered into by the U.S.).

The status of lands as part of the "restoration of lands" varies with the mechanism of restoration of federal recognition. If restored via statute, then the statute must direct or authorize the Interior Secretary to take land into trust, and the land in question must be within the geographic area referenced by the statute. If no geographic area is specified in the restoration legislation, or if the tribe's federal recognition is restored via administrative acknowledgment or court decision, then the land in question must meet the requirements of section 292.12: the land must be located in the state (or states) where the tribe currently is located (as with the initial reservation exception, the tribe's current location is determined by the presence of tribal government and population centers); the tribe must have a "significant historical connection" to the land; and the tribe must have at least one "modern connection" to the land. For restored lands, modern connections include: within a "reasonable commuting distance" of the tribe's existing reservation, "near" the residences of a "significant number" of tribal members, within 25 miles of the tribe's headquarters or other government facilities, or "other factors [that] demonstrate the tribe's current connection to the land." Additionally, the tribe must show a "temporal connection" between the acquisition of the land and the restoration of the tribe's federal recognition, in the form of evidence that either the land was included in the tribe's first land-into-trust request following its restoration or the tribe requested that the land be taken into trust within 25 years of its restoration (this latter temporal connection also requires that the tribe is not operating gaming on other lands).

Up next: the Big One. We’ll explain the new regs concerning the “best interests” exception, otherwise known as the “two-part determination.”

New "Section 20" Regulations: Initial Reservation Exception

More on the National Indian Gaming Commission’s new “Section 20” regulations concerning gaming on newly acquired lands:

In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process." In 25 C.F.R. section 292.6, the new regulations set forth four conditions for meeting the initial reservation exception.

First, as the statutory language indicates, the tribe must be federally recognized through the federal administrative tribal acknowledgment process (see 25 C.F.R. pt. 83). Second, the tribe must not already operate a gaming facility under IGRA's restored land exception. Third, the land must be proclaimed as a reservation under 25 U.S.C. section 467, and must be the first proclaimed reservation of the tribe following its federal recognition.

The fourth requirement applies to tribes without a proclaimed reservation on the effective date of the new regulations (June 19, 2008). For those tribes, in order for the land to be a proclaimed initial reservation, the land must be located in the state (or states) where the tribe currently is located. The tribe's current location is determined by the presence of tribal government and population centers. Additionally, the land must be "within an area" where the tribe has "significant historical connections," and at least one "modern connection," to the land. Modern connections include: "near" the residences of a "significant number" of tribal members; within 25 miles of the tribe's headquarters or other government facilities; or "other factors that establish the tribe's current connection to the land."

In the definitions section, section 292.2, "significant historical connection" is defined as either within the boundaries of the tribe's last treaty reservation, or documentation of the existence of tribal villages, burial grounds, occupancy, or subsistence use in the vicinity of the land.

Up tomorrow: the “restored lands” exception.

New "Section 20" Regulations: Settlement of a Land Claim Exception

The Interior Department's new "Section 20" regulations clarify when settlement lands will meet the exception to IGRA's general prohibition against gaming on newly acquired lands. In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (i) a settlement of a land claim."

Under 25 C.F.R. section 292.5, the land must be either acquired through resolution of the claim via federal statute, a settlement agreement executed by the parties (including the U.S.), or a final court order or judicially enforceable settlement agreement. The last settlement mechanism, a court order or judicially enforceable settlement, must predate IGRA's enactment (October 17, 1988).

In section 292.2, the new regulations also limit "land claim" to claims arising under federal law ("United States Constitution, Federal common law, Federal statute or treaty"). Additionally, the claim must have accrued on or before IGRA's date of enactment or involve lands placed in trust or restricted status on or before the same date.

Not too much here that rocks the boat. Up tomorrow: the “initial reservation” exception.

Interior Issues New "Section 20" Regulations: Big News, Big Implications

In section 2719 (or, as it's often called, "Section 20," in reference to the numbering of the statutory sections in bill form), the federal Indian Gaming Regulatory Act (IGRA) sets forth a general prohibition against tribal gaming on trust lands acquired after IGRA's date of enactment:

Except as provided in subsection (b) of this section, gaming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988 . . . .

Such lands are commonly referred to as "newly acquired" or "after acquired" lands. There are, however, a number of general and state- and tribe-specific exceptions.

These exceptions, though relatively rarely applied, are political lightning rods, giving rise to charges of "reservation shopping." For more than eight years, the Interior Department has been working on regulations interpreting section 2719. (Since 1994, the BIA's application of the section 2719 exceptions has been guided by a "Checklist for Gaming Acquisitions and Two-Part Determinations Under Section 20 of IGRA" issued by the BIA's Office of Indian Gaming Management. A checklist, of course, doesn’t carry the force of law or even of formal policy.)

In late May, Interior published its new "Section 20" regulations in the Federal Register. This is big news for a whole bunch of tribes. In the next few posts, we'll walk you through the new regulations (25 C.F.R pt. 292), so stay tuned.

The Second of Two New "Indian Lands" Opinions by NIGC

On May 19, the NIGC, through its acting general counsel, issued two opinions on whether particular land satisfied IGRA's "Indian land" requirement, so that the tribe could conduct gaming on the land.

We discussed the first opinion, concerning the Poarch Band of Creek Indians, in our last post. The second opinion concerned the Fort Sill Apache Tribe's plans to open a Class II operation on trust lands in New Mexico. Here, too, section 2719 applied, as the land was acquired by the Tribe in 1998. The Tribe argued that one of three exceptions to IGRA's general prohibition against gaming on newly acquired lands should apply: last recognized reservation, restored lands, and/or initial reservation.

As for the last recognized reservation exception under section 2719(a)(2)(B), the NIGC concluded that the Tribe is not "presently located" in New Mexico and that the Tribe failed to provide sufficient evidence that the land was located within the boundaries of its last recognized reservation. The restored lands exception (section 2719(b)(1)(B)(iii)) did not apply here, as there was insufficient evidence that the Tribe's tribal status was "restored," and that the land in question was part of a "restoration of lands." Finally, the initial reservation exception (section 2719(b)(1)(B)(ii)) did not apply, as the BIA provided information that although the land was coded as "reservation" land, it had not yet determined whether to proclaim the trust land in question as a reservation. Further, the initial reservation exception is limited to tribal groups acknowledged through the administrative process.

Both opinions are available through the NIGC's website, here.

Two New "Indian Lands" Opinions by NIGC

On May 19, the NIGC, through its acting general counsel, issued two opinions on whether particular land satisfied IGRA's "Indian land" requirement, so that the tribe could conduct gaming on the land.

The first opinion concerned a parcel of land near Montgomery, Alabama, on which the Poarch Band of Creek Indians currently is conducting gaming. In 2003, Alabama officials questioned whether the Band's Class II operation was legal. The land was taken into trust in 1995, thus triggering section 2719's general prohibition against gaming on lands acquired after 1988 -- unless the land satisfies one of the handful of exceptions set out in IGRA. The NIGC concluded that the land met the "restored lands" exception, as it was taken into trust as part of the Band's restoration of lands following federal tribal acknowledgement in 1984.

Interestingly, the NIGC opinion was issued while the Interior Secretary continues to contemplate formal regulations governing newly acquired lands. As the acting general counsel noted at the start of her opinion letter, "I recognize that this decision, coming from me and at this time, is a bit unusual." Referencing the assistance provided by the Band and the delay in the issuance of the opinion, the letter states that it would be "significantly unfair" to require the Band to wait for new regulations.

As for the nearly five years that passed between the state's request for review and the NIGC opinion letter, the letter states, "Thank you for your extraordinary patience as our office reviewed the question of the status of the Parch Band's Tallapoosa Site. I recognize that this review was disruptive to the Tribe financially and for that I apologize."

More on the second opinion, concerning the Fort Sill Apache Tribe’s plans to open a Class II operation in New Mexico, in our next post.

Nelson Westrin, Former NIGC Vice Chair and a Leader in Indian Gaming Regulation, Has Died

We are sorry to share the sad news that Nelson Westrin passed away last week. He was 61.

After he provided legal counsel to Michigan's governor regarding Class III compact negotiations, Nelson was named by Gov. Engler as the state's Racing Commissioner in 1993. A few years later, he became the Executive Director of the newly created Michigan Gaming Control Board, charged with regulating the state's nascent casino industry. Nelson held this position for six years, and was responsible for proposing legislation and developing and implementing regulations governing the Detroit casinos. He also was the Governor's designated state representative under Michigan's 1993 and 1998 tribal-state compacts, and directed the inspection and audit of Class III tribal gaming operations in the state.

In 2002, Nelson was appointed by President Bush to serve on the three-member National Indian Gaming Commission, where he was elected Vice Chair. During his tenure as NIGC Vice Chair, Nelson was instrumental in shaping the NIGC's policy and practices. He developed and authored the NIGC's first ever Government-to-Government Tribal Consultation Policy, and also helped to promulgate amendments to the MICS and new regulations clarifying the distinction between Class II and Class III machines.

After his three-year term with the NIGC ended, Nelson was a partner with the Lansing firm of Honigman Miller, where he practiced in the areas of gaming regulation and federal Indian and tribal law.

We first met Nelson when he was the NIGC Vice Chair. He was committed to tribal sovereignty and the federal government's obligation to work with tribes on a government-to-government level. He knew that respect for tribal sovereignty was not inconsistent with effective regulation of Indian gaming, and his work at the NIGC achieved both.

Nelson also was extraordinarily generous and genuinely nice. At our first meeting with him in Washington, DC, we brought along a copy of our book, Indian Gaming and Tribal Sovereignty: The Casino Compromise, which had just come out. When we presented it to him, he pulled out the copy he had already bought -- and read. What followed was a highly interesting and enjoyable discussion about the importance of tribal gaming and the challenges of effectively implementing and enforcing IGRA.

Most recently, we had the good fortune to be able to perform a small favor for Nelson. In mid-May, as he was experiencing some health issues, he asked us to sit on a panel, along with attorneys Mary Magnuson and Lance Boldrey, at a gaming industry conference. The panel was on the future of tribal-state compact negotiations, an area in which Nelson certainly had both experience and expertise. After the conference, we emailed Nelson to report on the success of the panel, and to thank him for inviting us to participate, particularly since we had the pleasure of meeting Mary and Lance, both of whom practice in the area of Indian gaming. Nelson's reply, of course, was characteristically gracious. He expressed the hope that we would soon meet and work together again—an honor for us.

We will miss Nelson very much, both personally and professionally. His untimely death is no small loss to the industry and the best ideals of Indian gaming.

Read more here in the Lansing State Journal.