The Bureau of Indian Affairs has approved a land-into-trust application for gaming for a Michigan nation and has denied an application for a New York nation because it was incomplete.
Larry Echo Hawk, the Interior Department’s Assistant Secretary for Indian Affairs, approved an application for off reservation trust land for a proposed casino in Marquette County, Michigan, for the Keweenaw Bay Indian Community. Hawk said he determined that the gaming facility would be in the best interest of the Keweenaw Nation and would not be detrimental to the surrounding community. The decision was announced in a statement on December 20.
On the same day, Echo Hawk dismissed an application submitted by the Cayuga Nation of New York for the acquisition of trust land for a casino in Seneca County, New York. The application, which was incomplete, was returned to the nation, Echo Hawk said. The nation can submit a new application when it is able to address all of the application requirements, he said.
The Keweenaw’s land into trust application is the third application approved for an off reservation casino in recent months. In June Echo Hawk rescinded a controversial Bush-era “guidance memorandum” issued in January 2008 which said, among other things, that tribes cold not develop casinos on off-reservation land that was not within “commutable distance” of their reservations. The memo didn’t define “commutable,” but former Assistant Secretary-Indian Affairs Carl Artman, who issued the guidance memo, indicated in testimony to Congress that 40 miles was the farthest a tribe could go from its reservation. Even though the guidance memo has been rescinded, commutable distance continues to play a role in approving off reservation casino land. On September 2, Echo Hawk announced approvals for proposed off reservation gaming facilities for the Enterprise Rancheria of Maidu Indians in Yuba County, California, and the North Fork Rancheria of Mono Indians in Madera County, California, both of which are less than 50 miles away from the nations’ reservations. At the same time, Echo Hawk denied applications from the Guidiville Band of Pomo Indians in California and the Pueblo of Jemez in New Mexico. The Guidiville Band sought a gaming facility more than 100 miles from its existing tribal lands in Mendocino County while the Pueblo of Jemez had proposed a casino in Dona Ana County near the New Mexico-Texas border almost 300 miles away from its reservation in northwest of Albuquerque.
The Indian Gaming Regulatory Act (IGRA) prohibits gaming on lands acquired in trust after its enactment in 1988, but then provides three exceptions to that rule:
- Reservation Exceptions apply to newly-acquired lands that are within or contiguous to the boundaries of the tribe’s reservation; within the boundaries of former reservations; or, for Oklahoma tribes, within the boundaries of a former reservation.
- Equal Footing Exceptions potentially allow for gaming if the lands are taken into trust for settlement of a land claim; for an initial reservation of tribe acknowledged under the federal acknowledgment process; or the restoration of lands for a tribe that is restored to federal recognition.
- Two-Part Determination Exception, the most rigorous exception, requires the Interior Secretary to determine the proposed casino in the best interest of the tribe and would not be detrimental to the surrounding community, and that the governor the state agrees and negotiates a tribal-state gaming compact.
Echo Hawk said he did a careful and thorough review of the Keweenaw Bay Indian Community’s application. “The tribe’s application satisfies the rigorous standards contained in the Indian Gaming Regulatory Act and our regulations,” he said. “The tribe demonstrated that it has a significant historical connection to the proposed gaming site, and its proposal to move an existing gaming facility closer to its reservation has strong support from the local community.”
The Keweenaw Bay Indian Community, also known as the Lake Superior Band of Chippewa Indians, is located in Baraga County, Mich., and has approximately 3,310 members and more than 6,000 acres of existing trust lands on its reservation in the state’s Upper Peninsula. The Band operates two class III gaming facilities — the Ojibwa I Casino on its reservation in Baraga and the Ojibwa II Casino in Chocolay Township, Marquette County, Mich., which is around 90 miles from its tribal headquarters. The Ojibwa II Casino was approved by a Secretarial Determination and governor’s concurrence in 2000. The nation plans to relocate the Ojibway II Casino to an 80-acre parcel also in Marquette County, which is 18 miles closer to its reservation. The current Ojibwa II Casino is located in a residential neighborhood, and the proposed facility is located in an area intended for commercial development at a former airport. The proposed new casino would include 135,000 square feet, with the capacity for 600 slot machines and up to 20 gaming tables. Echo Hawk said the proposed facility will generate additional revenues for the Tribe’s government and create around 60 new jobs.
The new site is also part of the nation’s aboriginal territory.”The Tribe has submitted documentation demonstrating that it has a significant historical connection to the proposed gaming site, including the fact that the site is within territory ceded by the Tribe by treaties. The Tribe’s members continue to exercise hunting and fishing rights reserved under those treaties in and around the area of the proposed gaming facility,” Echo Hawk said. The proposed gaming facility would be consistent with surrounding land use and has met the environmental criteria required under the a National Environmental Protection Act. .In addition, the nation has agreements with local authorities for the delivery of certain municipal services and law enforcement at the proposed new site. Michigan Gov. Rick Snyder has one year to concur in the Echo Hawk’s determination. If he declines to concur the nation cannot conduct gaming on that site.
In Cayuga’s case, the nation had asked Interior to take an unspecified number of acres of land within its reservation in Seneca Falls in central New York into trust for a Class III gaming facility. The nation has not trust land, but owns several parcels of land in fee simple. The nation has approximately 475 citizens.
The application did not address all of the regulations governing fee-to-trust or gaming on lands acquired in trust after October 17, 1988, Echo Hawk said. “The Department has not disapproved the Tribe’s application but has removed the Tribe’s application from consideration. The Tribe can submit a new application at a later date, when it is prepared to address all of the relevant factors in the Department’s regulations,” Echo Hawk said. He said he could not comment further since the Cayuga proposal is no longer pending before the department. “If the Cayuga submits a new application for the acquisition of land into trust for gaming, the Department will review that application pursuant to IGRA and our regulations,” he said.
Meanwhile, the Cayuga Nation is awaiting the resolution of a long-running leadership dispute through the Interior Board of Indian Appeals. In August, the BIA endorsed a resolution by the Cayuga Nation Council to remove Clint Halftown and Tim Twoguns as the nation’s federal representative and alternate representative, and recognized the council’s appointment of new members, including two new federal representatives. Halftown appealed the ruling to the IBIA where it is pending.