Indian gaming has probably seen its best days when it comes to phenomenal growth in a variety of states. Those 30 years will probably never be replicated. Increased competition and more challenges in the land-into-trust process are to blame.
The process for putting land purchased or otherwise acquired by an Indian tribe “into trust” as sovereign reservation land capable of hosting a casino is not getting any easier. It may, in fact get harder under new regulations proposed by the Trump administration.
At a recent panel at the 2018 NIGA Indian Gaming Tradeshow several experts on putting land into trust talked about the process. The efforts included for Bureau of Indian Affairs office George Skibine, Aurene Martin of Spirit Rock Consulting and Sara Setshwaelo, a California attorney specializing in Indian law.
The process begins when a tribe petitions the Department of the Interior, which begins a long deliberative process that usually faces hostile local governments because it removes land from the tax rolls.
Since one of the most common reasons for putting land into trust is for a casino, that issue is addressed by the Indian Gaming Regulatory Act of 1988. It makes it very difficult to put land acquired after that date into trust.
There are exceptions, but they generally apply to tribes that did not have land in 1988 or have other extenuating circumstances.
Skibine was National Indian Gaming Commission acting chairman for several years. He discussed the “two-part” determination which can be used to put land recently acquired by a tribe into trust. It requires consultation with state and local officials, and the governor of the state must sign off on it.
“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,” he said. He says the current administration, unlike the Obama administration is not anxious to put land into trust.
Martin, who worked for the BIA during the George W. Bush administration, says that administration’s policies weren’t actually that different from Obama’s. But Trump is another story, she says.
“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,” said Martin. “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.”
Regarding Trump, Martin said, “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.”
Setshwaelo, who serves on the tribal council of the Ione Band of Miwok Indians in California, talked about her tribe’s long struggle to put 288 acres into trust, an effort that began in 1994 after it was restored to federal recognition.
“It has taken many, many years, with a lot of good people working on it,” she said.
Competitive Pressures
Indian gaming was born in 1988 with the passage of the Indian Gaming Regulatory Act. It grew without much competition in states such as California where there were no Las Vegas style casinos. At that time only five states had commercial casinos or cardrooms. However, since 1988 twenty-two states have legalized commercial gaming. That factor alone makes it impossible to negotiate the kind of exclusivity that tribal casinos thrive on.
Zeke Fletcher, an attorney and member of the Grand Traverse Band of Ottawa & Chippewa Indians in Michigan, observed last week that many compacts are coming up for renewal. “It’s my opinion that tribes and states are going to have to start thinking outside the box about what an economic benefit might look like,” he said during a symposium celebrating 30 years of Indian Gaming held at the 2018 NIGA Tradeshow.
At the same panel Larry Roberts, a former Bureau of Indian Affairs assistant secretary noted that IGRA was created due to a compromise reached by the Reagan administration, which wanted a process whereby tribes could negotiate with their states—with the Department of the Interior signing off on those agreements to make sure they were fair to the tribes and the states.
At first, the future of Indian gaming was in doubt, recalled Roberts. “For some time, I think there was a concern and a discussion about whether Indian gaming was going to last (or) whether Congress would step in and end it,” Roberts said. “Because gaming as a whole has expanded, the risk (of IGRA going away) is lower than it might have been in previous years.”
Fletcher pointed out that despite the federal ban on taxing Indian gaming, that “revenue sharing” is nothing more or less than a tax. “So, you have to have the state provide some meaningful concessions that provide a substantial economic benefit to the tribe,” he said.
But with the proliferation of commercial gaming competition the geographic exclusivity that states could once hold out as an inducement is vanishing. This is made more difficult because IGRA does not allow provisions that are not related directly to gaming. That prevents states from offering carrots in other areas in return for “revenue sharing.”
