Off-Reservation Gaming

Background

Currently, the four ways that a tribe may conduct gambling on land acquired after the passage of IGRA are:

1. By obtaining local support and seeking a “two-part determination”;
2. By obtaining a finding that the land was received for the settlement of a land claim;
3. By obtaining a finding that the land was taken into trust for a tribe that was recognized after the passage of the 1988 law; or
4. By obtaining a finding that the land was restored to a tribe that was wrongfully derecognized by the federal government.

On June 14, 2011, then-Assistant Secretary for Indian Affairs Larry Echo Hawk announced that the Obama Administration rescinded a rule that blocked Indian tribes from building casinos far from their reservations. However, there are still a number of significant hurdles that must be cleared by any tribe wishing to take advantage of the new policy.

• The tribe generally must have land acquired in trust by the Department of the Interior for the benefit of the tribe.
• The tribe must receive a positive determination from the Department that off-reservation gaming is in the best interest of the tribe and is not detrimental to the surrounding community. 
• The tribe also must have the concurrence from the Governor of the state in which the gaming facility would be located (the "two-part" test). 
• Public comment will be sought and considered during the approval process, and local communities have several meaningful opportunities to provide input on a tribe’s application for off-reservation gaming, as well as for the acquisition of land into trust on behalf of a tribe. 
• Finally, the tribe must enter into a tribal-state gaming compact to govern the conduct of gaming at the proposed facility, and many states require gaming compacts to be approved by the state legislature.

Status (as of 10/16/12)

Federal Legislation

Senator Diane Feinstein (D-Calif.), Senator Jon Kyl (R-Ariz.) and Senator Pat Roberts (R-Kan.) are co-sponsors of S. 771, which would clarify that tribes seeking to open casinos on land acquired after the passage of the Indian Gaming Regulatory Act of 1998 (IGRA) must either: 

• Demonstrate both a modern and an aboriginal connection to the land they wish to game on; or
• Go through the established two-part determination process.

Senator John McCain (R-Ariz.) and Sen. Kyl are the two cosponsors of S. 1424, which would temporarily freeze the approval of any new off-reservation land for Indian casinos by the U.S. Department of Interior ("DOI") where the new land was "beyond a reasonable commuting distance" from the existing reservation and impose new requirements on the Secretary of Interior when making off-reservation land in trust for gaming decisions.  The legislation was introduced in response to the recent decision in June to eliminate the so-called "commutability standard" created by the DOI in 2008. 

Supreme Court Decisions

Salazar v. Patchak

Earlier in 2012 in an 8-1 ruling, the Supreme Court ruled that a neighboring landowner can sue to reverse the decision of the U.S. Secretary of the Interior to take land into trust on behalf of a Michigan tribe that wants to build a casino on the parcel.  In Match-E-Be-Nash-She-Wish Band of Pottowatami Indians v. Patchak, Nos. 11-246, 11-247 (June 18, 2012), Justice Elena Kagan rejected two arguments by the tribe and the federal government: that sovereign immunity barred the suit by Jeffrey Patchak, and that he lacked standing to sue.

The case now returns to the U.S. District Court for the District of Columbia to decide Patchak’s underlying claim that the tribe (usually referred to as the “Gun Lake Band”) cannot receive trust lands because it was not under federal jurisdiction when the Indian Reorganization Act (IRA), 25 U.S.C. § 465, was adopted in 1934.  The Gun Lake Band was first recognized as a tribe in 1998.

AGA Position

The AGA actively supports both S. 771 and S. 1424.