Monday, February 11, 2013
M. Maureen Murphy
The Indian Gaming Regulatory Act (IGRA) (P.L. 100-497) generally prohibits gaming on lands acquired for Indians in trust by the Secretary of the Interior (SOI or Secretary) after October 17, 1988. The exceptions, however, raise the possibility of Indian gaming proposals for locations presently unconnected with an Indian tribe. Among the exceptions are land: (1) acquired after the SOI determines acquisition to be in the best interest of the tribe and not detrimental to the local community and the governor of the state concurs; (2) acquired for tribes that had no reservation on the date of enactment of IGRA; (3) acquired as part of a land claim settlement; (4) acquired as part of an initial reservation for a newly recognized tribe; and (5) acquired as part of the restoration of lands for a tribe restored to federal recognition.
An implementing regulation was issued on May 20, 2008; it specifies the standards to be satisfied by tribes seeking to conduct gaming on lands acquired after October 17, 1988. The regulation includes limiting definitions of some of the statutory terms and considerable specificity in the documentation required for tribal applications. During the latter half of 2010, the Department of the Interior (DOI) conducted a series of consultation sessions with Indian tribes focusing on whether the implementing regulation should be revised. On June 13, 2011, DOI determined the regulation to be satisfactory and withdrew earlier departmental guidance, which had been issued before the regulation had become final. The guidance addressed how DOI handled tribal applications for off-reservation land acquisitions for gaming. It had elaborate requirements for a tribe to satisfy with respect to applications for gaming facilities not within commutable distances from the tribe’s reservation.
A June 2012 U.S. Supreme Court Decision, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchaki, appears to have increased the possibility for challenges to secretarial decisions to take land into trust by (1) ruling that individuals who are potentially harmed by the proposed use of land taken into trust have standing under the Federal Administrative Procedure Act to bring suit, and (2) holding that suits to challenge the legality of a DOI decision to take land into trust that do not claim title to the land are not precluded by the Quiet Title Act, which contains a waiver of sovereign immunity for quiet title actions against the United States, except for suits involving Indian title.
In the most recent Congresses, four laws contained gaming prohibitions in connection with specific lands being taken into trust: (1) P.L. 112-97, authorizing acquisition of certain land for the Quileute Indian Tribe in the state of Washington; (2) P.L. 112-212, declaring certain federal land to be held in trust for the Bridgeport Indian Colony; (3) Section 2601(h)(4)(A) of P.L. 111- 11, which prohibits class II and class III gaming on land which the provision transfers to be held in trust for the Washoe Tribe; and (4) P.L. 111-323, which prohibits gaming on federal land transferred to the Hoh Tribe. Legislation in the 112th Congress included a bill requiring tribes to satisfy new standards before newly acquired lands may be found to be eligible for IGRA gaming on the basis of a land claim settlement, an initial reservation, or restoration of lands. There was also a bill to set new standards for taking off-reservation land into trust for gaming and bills providing for federal recognition of tribal status or taking land into trust with explicit provisions relating to gaming. Among them were the Lumbee Recognition Act; the Fountainhead Property Land Transfer Act; the Thomasina E. Jordan Indian Tribes of Virginia Recognition Act; the Native Hawaiian Government Reorganization Act; the Cocopah Lands Act; the Elko Motocross and Tribal Conveyance Act; and the Gila Bend Indian Lands Replacement Clarification Act.
Date of Report: January 25, 2013
Number of Pages: 22
Order Number: RL34325
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