It’s unlikely that anyone will ever accuse the Bureau of Indian Affairs of acting in haste.
Just ask Bill Iyall, the chairman of the Cowlitz Tribe in Washington state: It took 26 years for the tribe to win federal recognition from the BIA, the first requirement for opening a casino. That happened in 2000. And after getting the Bureau of Indian Affairs to sign off on its purchase of 152 acres of new land – another requirement – the tribe is still fighting off opponents in federal court for the right to begin building its gambling empire near the town of La Center.
The Cowlitz Tribe’s experience offers an obvious lesson: Even with the Obama administration moving to make it easier to open off-reservation casinos, tribes still face a long, long road, with many potential pitfalls.
Under the change announced in June 2011, Larry Echo Hawk, then head of the BIA, rescinded a 2008 Bush administration policy that banned off-reservation casinos if they were not within easy driving distance.
Echo Hawk, who resigned in April, said he was scrapping the so-called “commutable distance” rule because it had been adopted without any consultation with the tribes. The Bush administration’s rule had essentially frozen attempts by tribes to open new casinos beyond their reservations.
While that roadblock has been removed, tribes still must show a historical or legal connection to any new land that they seek to place in trust. If that is not possible, tribes must satisfy the BIA’s “two-part determination” in getting approval for an off-reservation casino.
Under that test, the secretary of the interior, who oversees the BIA, must consult with the tribe, neighboring tribes and state and local officials to assess whether the proposed casino is in the “best interests” of the community.
If the secretary decides that’s the case, the governor of a state must then agree.
The new proposals are likely to force the BIA to tackle tougher cases, with more landless tribes eager to begin gambling ventures.
“All of the easy and clear-cut decisions with respect with tribes being able to engage in gaming have been answered,” said Barry Brandon, former chief of staff for the National Indian Gaming Commission and now a New York-based consultant who works with tribes around the nation.
He predicted more applications from tribes “off the beaten track” that will assert that they have historical connections to land that might be more than 100 miles away from their headquarters.
Even if tribes can satisfy the BIA’s requirement, they could run into more snags from both Congress and the courts.
In the Senate, John McCain of Arizona and Dianne Feinstein of California have introduced bills to make it harder for tribes to buy new land for casinos.
McCain wants to reinstate the commutable-distance standard. Feinstein wants to force tribes to show that their current members and ancestors have a link to the land, with a requirement that they prove both a “substantial direct modern connection” and a “substantial direct aboriginal connection.”
Two court cases, one involving the Cowlitz casino and another involving the Gun Lake Casino in Michigan, could go a long way toward settling the issue. In both cases, opponents claim the casinos on newly acquired land should not be allowed because they violate a 2009 Supreme Court ruling that said tribes not under federal jurisdiction by 1934 could not take new land into trust.
The Cowlitz case is expected to go to trial later this year in U.S. District Court in Washington, D.C. And just two weeks ago, the Supreme Court said the Michigan case could go to trial as well, rejecting a request by the Obama administration to have the case dismissed. The administration argued unsuccessfully that it had sovereign immunity from lawsuits challenging its title to Indian trust lands.