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.