Those hoping for government approval for new Indian gaming land are likely looking at a long, and hostile, process.
Former Bureau of Indian Affairs official George Skibine, Spirit Rock Consulting’s Aurene Martin and California attorney Sara Setshwaelo, offered pieces of the puzzling endeavors tribes must go to as they attempt to convert land into trust at a panel discussion Wednesday morning at the 2018 NIGA Indian Gaming Tradeshow.
“Land-into-trust” is the process used by the federal government to establish reservation land for tribes. Accurate to its title, it’s land held in trust by the U.S. government for tribal use.
The process begins when a tribe petitions the Department of the Interior to take land into trust. Interior then goes through a long determinative process before it approves or denies. (Regional governments often don’t like the maneuver because it takes the land off the tax rolls.)
The Indian Gaming Regulatory Act specified that Tribe casinos would only be approved on land held in trust at the time the act was signed in 1988. There are a handful of exceptions identified in IGRA for tribes who have acquired land after 1988, but those exceptions mainly apply to tribes who held no land or were in some other way disadvantaged when IGRA was passed.
Skibine, who was also acting chairman of the National Indian Gaming Commission before going private in 2011, documented tribes’ wins and losses since 1990 through what is known as the “two-part determinations” process. Gaming can be conducted on newly acquired land if the U.S. Secretary of the Department of Interior, after consultations with necessary state and local officials, determines that a gaming establishment on newly acquired lands would be in the best interest of the tribe, and not detrimental to the surrounding community. The state’s governor also must concur with this assessment.
“It’s much more difficult, because the final decision is made by the governor of the state and there are no (established) standards. He either concurs or doesn’t concur,” Skibine said.
He also noted that the process can take years, as lawsuits, politics and changing administrations can tilt the balance one way or the other. But the current overall atmosphere is not positive, he notes. Barack Obama’s administration had set a goal of converting 500,000 acres of land into trust. The current administration has no similar goal. He also noted that the Trump administration has approved only one request, which had been processed well before the President took office. Approximately 20 more are pending, he said.
Martin, also a former BIA official who now lobbies in Washington, D.C. on behalf of tribes, has experience in land-to-trust dating back to the George W. Bush administration.
While the Bush administration was viewed as less friendly to tribes than the Obama administration, the results weren’t all that different, she notes. During the Bush years, 17 requests were approved; during Obama’s, there were 21.
“Early on in the Obama administration they were somewhat conservative in their views of Indian gaming applications, so you also saw (them) slowing down and taking a look at what’s out there,” she said. “It took them almost two years before they really got their feet on the ground. They were just cautious, but after that they were fairly active.”
With the current administration’s officials sharing philosophies similar to those of the Bush administration, she is not currently optimistic for quick land-to-trust transactions.
“I don’t think anything right now will cause that to change. Their overall bias during the Bush administration has kind of gone away, but they’re still not thrilled about taking land into trust for gaming,” she said.
Setshwaelo, who is a member of the council of the Ione Band of Miwok Indians, related the narrative of her tribe’s attempt at attaining a land trust, which began in 1994 after her tribe was restored in a small county in the center of California.
“It has taken many, many years, with a lot of good people working on it,” she said, noting that the property in question was 288 acres and sits within the tribe’s ancestral territory and modern territory.
