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.