Intra-Agency Contestation in Interior Department (or, Interior Scolds NIGC)
A few weeks ago, we told you about the NIGC's May 19 Indian land opinion for the Poarch Band of Cree Indians in Alabama. State officials had challenged the legality of the tribe's Class II operation on a parcel of land near Montgomery. Five years passed. And then the NIGC concluded that the land in question met the "restored lands" exception.
As we noted then, it was interesting that 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.
Those new regulations were issued the very next day, May 20.
A few weeks later, David Bernhardt, the Interior Department Solicitor or chief legal officer (and the third ranking official in the Interior Department), wrote a lengthy letter to NIGC Chairman Phil Hogen, challenging the NIGC's Indian land opinion for the Poarch Band. The letter details the Solicitor's disagreement with the NIGC opinion. Bernhardt wrote,
"Given that the legal conclusions reached by [the NIGC's general counsel] are inconsistent with the legal views of the Office of the Solicitor, and that . . . NIGC has no statutory mandate to issue Indian lands opinions independently, the Secretary has directed me to inform you that he is invoking his authority . . . to review your decision . . . ."
The letter ends with the Solicitor's analysis of the NIGC's authority. Noting that decisions regarding whether land qualifies as "Indian lands" under IGRA may involve "whether a tribe is exercising jurisdiction and governmental authority over those lands; whether gaming is authorized under [IGRA's section] 2719; and a legal analysis of 25 C.F.R. Part 292," the letter concludes, "Resolution of these questions has not been delegated to the NIGC. Moreover, resolution of these issues relies on the particular expertise of the Solicitor's Office regarding overall Indian issues and not just Indian gaming concerns."
Oh, and by the way, Interior just announced that it was delaying the effective date for the new "Section 20" regulations until August 25, 2008.
As we noted then, it was interesting that 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.
Those new regulations were issued the very next day, May 20.
A few weeks later, David Bernhardt, the Interior Department Solicitor or chief legal officer (and the third ranking official in the Interior Department), wrote a lengthy letter to NIGC Chairman Phil Hogen, challenging the NIGC's Indian land opinion for the Poarch Band. The letter details the Solicitor's disagreement with the NIGC opinion. Bernhardt wrote,
"Given that the legal conclusions reached by [the NIGC's general counsel] are inconsistent with the legal views of the Office of the Solicitor, and that . . . NIGC has no statutory mandate to issue Indian lands opinions independently, the Secretary has directed me to inform you that he is invoking his authority . . . to review your decision . . . ."
The letter ends with the Solicitor's analysis of the NIGC's authority. Noting that decisions regarding whether land qualifies as "Indian lands" under IGRA may involve "whether a tribe is exercising jurisdiction and governmental authority over those lands; whether gaming is authorized under [IGRA's section] 2719; and a legal analysis of 25 C.F.R. Part 292," the letter concludes, "Resolution of these questions has not been delegated to the NIGC. Moreover, resolution of these issues relies on the particular expertise of the Solicitor's Office regarding overall Indian issues and not just Indian gaming concerns."
Oh, and by the way, Interior just announced that it was delaying the effective date for the new "Section 20" regulations until August 25, 2008.
Labels: Interior Department, NIGC
posted by Kathryn & Steve at
2:58 PM
0 Comments:
Post a Comment
<< Home