LAS VEGAS – Efforts to achieve a congressional “fix” to a U.S. Supreme Court ruling limiting the federal government’s ability to take land into trust for American Indian tribes are being wrongly framed by the public and politicians as a gambling issue, tribal delegates at the recent Global Gaming Expo (G2E) said.
But tribal leaders attending the conference and trade show at the Las Vegas Convention Center contend it is not likely there will be a congressional remedy to what they view as a seriously damaging court ruling without a regulatory solution to the controversy over efforts by some tribes to establish off-reservation casinos.
The Supreme Court in 2009 ruled in Carcieri v. Salazar that tribes not under federal jurisdiction as of 1934 cannot follow a longstanding land into trust process administered by the U.S. Department of the Interior. The ruling stemmed from an attempt by the Narragansett Indian Tribe of Rhode Island to place 31 acres of land in trust for a housing development, a project halted because Gov. Ronald Carcieri feared the land would instead be used for a tribal government casino.
Ongoing efforts to draft a legislative “fix” to Carcieri comes in the midst of growing political opposition to attempts by a handful of tribes to acquire land off their reservations for government casinos. Other newly recognized tribes also hope to acquire land on and off existing reservations for casinos.
Meanwhile, the Department of Interior is holding consultations with tribes over potential changes to Section 20 of the Indian Gaming Regulatory Act of 1988 dealing with off-reservation casinos and those established by newly recognized and landless tribes. The latest consultation occurred at the close of G2E.
John Tahsuda, vice president of Navigators Global LLC, a Washington, D.C., government consulting firm, told G2E attendees during a panel discussion that “there is a perception (Carcieri) is a gaming issue” when, in fact, the ruling potentially impacts all trust applications for newly acquired lands.
George Skibine, an acting assistant secretary for Indian affairs with the Department of Interior, said there are hundreds of pending land/trust applications and only 33 involve casinos. “The gaming part of this is really small,” he said, but the controversy is delaying even the non-gaming land/trust applications.
The leaders of 17 tribal organizations submitted a letter to Sen. Byron Dorgan, D-N.D., outgoing chairman of the Senate Committee on Indian Affairs, stating that failing to address the Carcieri ruling would result in “irrevocable damage. … to tribal sovereignty, tribal culture and the federal trust responsibility.”
Carcieri “is a direct attack on all treaty rights, not just tribes recognized after 1934,” said Kurt Luger, executive director of the Great Plains Indian Gaming Association. “Our sovereignty could be at risk.”
But a legislative fix to Carcieri may not be achieved without a “tighter definition of off-reservation gaming,” Tahsuda said, particularly in view of the fact most of the new Republican majority in the U.S. House is opposed to an expansion of tribal gambling. “That may be the price we’ll have to pay,” he said.
Tribal lawyers and lobbyists attending G2E were also outraged that Sen. Dianne Feinstein, D-Calif., an opponent of gambling in her district, was consulting with Interior on draft legislation and a possible regulatory redrafting of IGRA’s Section 20 that would further limit the ability of tribes not currently operating casinos to acquire and place land in trust for gambling.
Feinstein’s draft legislation, which she hopes to attach to an omnibus appropriations bill for passage in the current lame duck session of Congress, requires tribes to prove “a substantial direct modern connection” and “a substantial direct aboriginal connection” to land it hopes to acquire and have placed in trust status for gambling.
Although the National Indian Gaming Association and several other tribal associations have passed resolutions favoring ancestral ties as a component to off-reservation regulations, they are outraged Interior officials are working with Feinstein on draft legislation without consulting tribes. While the Interior department insists the senator’s legislative language does not represent the position of the Obama administration, many feel actions speak louder than words.
“It’s not fair; it’s not right; and it’s not due process,” NIGA Executive Director Mark Van Norman told GamblingCompliance.com.
The meetings between Feinstein, a longstanding opponent of gambling, and Interior officials would seem to violate a federal policy that requires federal agencies to consult on a government-to-government basis with Indian tribes.
“Without transparency there is no accountability,” said Tom Rodgers of Carlyle Consulting of Alexandria, Va. “Without accountability there is no credibility. And without credibility there is no integrity to the system.”