Tribal Gaming: Off-Reservation Casinos
On the controversial subject of off-reservation tribal casinos, the Bureau of Indian Affairs (BIA) of the U.S Department of the Interior has sent mixed signals. An early summer announcement by BIA head Larry Echo Hawk seemed to presage a renewed willingness to approve tribal casinos located far from tribal lands, but BIA rulings in specific cases did not form a clear pattern on such projects.
Echo Hawk announced in mid-June that he would launch a reconsideration of a 2008 BIA policy statement that tribal casinos would not be approved if they were beyond commuting distance from the tribe’s reservation. That formal policy, Echo Hawk said, was unnecessary and had been issued without adequate consultation with tribes.
Four BIA rulings announced on September 1, however, created considerable uncertainty over the standards that will apply to off-reservation gaming. BIA approved applications by two California tribes for land to be taken into trust for tribal casinos, but rejected applications from another California tribe and a New Mexico tribe, largely because those proposed casino sites were so distant from existing tribal lands.
The two successful tribes applied for lands as part of the “two-part determination” established by the Indian Gaming Regulatory Act (IGRA), which allows tribal casinos on land acquired after 1988 so long as BIA and the state’s governor each concludes that the casino development is in the tribe’s interest and is not detrimental to the surrounding communities. Although BIA approved the applications of the North Fork Rancheria of Mono Indians and the Enterprise Rancheria of Maidu Indians, those tribes still must secure approval by California Governor Jerry Brown, who has until September 1, 2012 to announce his decision.
In each case, the BIA ruling brushed aside significant local opposition to the proposed casino. Voters in Yuba County, site of the Enterprise Rancheria property, split 51 to 48 against a casino on that site, but BIA’s Echo Hawk gave greater weight to official actions by the county government that favored the proposal. In the North Fork Rancheria case, a tribe with a casino 39 miles from the proposed site opposed the proposed casino. Merely increasing competition, according to BIA’s Echo Hawk, did not demonstrate that the neighboring tribe would suffer any “detrimental impact.”
In both cases, Echo Hawk stressed the modest distances between the proposed casino sites and tribal lands – each casino would be about 36 miles from the tribal headquarters.
Much greater distances between tribal lands and proposed casinos spelled failure for the two unsuccessful tribes. The Pueblo of Jemez in New Mexico hoped to develop a casino on a site almost three hundred miles from its existing reservation, while the Guidiville Band of Pomo Indians planned a casino on a parcel more than one hundred miles from its reservation. Although BIA’s Echo Hawk had previously questioned the importance of having an off-reservation casino within “commuting distance” of tribal lands, he applied precisely that concept in rejecting the Guidiville Band application. Tribal governments, he wrote, likely could not exercise meaningful control over such distant locations.
The confusion over off-reservation casinos thoroughly muddied the waters surrounding a proposal by the Stockbridge-Munsee Tribe of Wisconsin to place a casino in the Catskills region of New York State. In February, BIA rejected a proposed gaming compact for the project, objecting to the great distance (several hundred miles) between the tribe’s reservation and the casino site, as well as to a requirement in the tribal-state gaming compact that the site be used only for gaming. In September, after Echo Hawk had announced the rescission of the prior commuting-distance rule, BIA advised the tribe that it was reconsidering the proposed casino in the Catskills.
The U.S. Court of Appeals for the District of Columbia Circuit resolved one disputed issue under IGRA in May in a unanimous ruling in Amador County v. Salazar, No. 10-5240. Under IGRA, the Secretary of the Interior has the option of taking no action on a proposed tribal-state gaming compact, which allows the compact to take effect. Some lower courts had accepted the government’s position that the courts could not review the legality of such compacts because there was no administrative action for the court to examine. The court of appeals concluded that the courts have ample jurisdiction to review such instance. The Secretary, the court explained, has a statutory duty to disapprove any compacts that violate IGRA. If a party can demonstrate that the Secretary violated that duty by taking no action on a proposed compact, the courts can reverse that statutory violation.
The court remanded the case to the trial court to examine the county’s substantive objections to the compact signed between California and the Buena Vista Rancheria of Me-Wuk Indians.
