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.