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.”