Selected testimony
Senate Committee on Indian Affairs
Oversight Hearing on Off Reservation Gaming: The Process for Considering Gaming Applications
February 1, 2006
Sen. McCain asks NIGC, ‘What’s going on?’ with Cowlitz opinion
Sen. John McCain (R-Ariz.): What about November of 2005? Your organization reviewed a site-specific gaming ordinance determining that lands sought to be taken into trust by the Cowlitz Tribe was quote restored land and could therefore be used for gaming. The NIGC issued this opinion at the same time the BIA was considering a land into trust application for the Cowlitz as a quote initial reservation. We are told that communities, local governments and other tribes affected by the Cowlitz proposal seem to have been caught completely off guard by your decision, Ms. Coleman. What’s going on here?
Penny Coleman, Acting General Counsel, National Indian Gaming Commission: The Cowlitz ordinance decision is really an anomaly. It’s the only time that we’ve been in this situation where it was trust acquisition that hadn’t happened and we had a site-specific ordinance. This was written in such a way that it said if the lands are acquired into trust, then these lands would be Indian lands.
The Department of the Interior and the state Attorney General’s office was notified of this issue. They knew this was happening and in fact when the tribe came to us and told us they were going to do it, we were not exactly thrilled with it because we knew that this was a very unusual situation and it is generally much better to let the processes go through, but the Indian Gaming Regulatory Act requires that we make a decision on an ordinance in 90 days.
And so when push came to shove, Nov. 25, Chairman of the National Indian Gaming Commission had to make a decision as to whether to approve or disapprove this ordinance, and so he needed to know whether or not the ordinance was illegal. And so we—the office of general counsel—gave him an opinion on it.
McCain: What do you have to say, Mr. Skibine? About that situation. How can we avoid that in the future?
George Skibine, Department of the Interior, Acting Deputy Assistant Secretary, Policy and Economic Development for Indian Affairs: How can we avoid that situation? I think that we are working—the Department—is working with the chairman of the National Indian Gaming Commission at this point to see if we can find a solution so that situations like this do not continue to occur and hopefully we can come to an understanding between the Secretary and the chairman on how these can be processed in light of the chairman’s obligation under IGRA.
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Sen. Thomas is amazed that “restored lands” is not defined
Sen. Craig Thomas (R-Wyo.): Doesn’t the law pretty well describe what the conditions are? Isn’t that a rather uh simple decision to be made as to whether these lands qualify or not?
Skibine: Well, I’m not sure it’s that simple. And I think that the opinions … that are … issued by the Solicitor’s Office and the NIGC general counsel often are lengthy and complex decisions, so—
Thomas: Why is that?
Skibine: Well, I think that to decide whether a tribe qualifies as a restored tribe and the land it is seeking qualifies as a restored land the statute just says that it qualifies if it’s a restored land for a restored tribe.
Thomas: Isn’t restored land defined?
Skibine: No. It’s not. And there has been litigation on this issue and I think there are at least three or more decisions on the books that essentially interpret that exception. … And I think the information the solicitor’s office tries to follow in making their opinions followed those court decisions, but I’m not sure it’s all that simple. [He hands off to Coleman.]
Thomas: Would you comment? It just seems like there ought to be a criteria for um the acquisition of land and it doesn’t seem like it ought to be thrown up into the legal dispute each time that happens.
Coleman: [Restored lands is not actually acquiring land … Section 151…] What we look to is based on what the court cases have said, and the court cases have said that you look to the factual circumstances, that you look to historical relationship of the tribe to the land, you look to the modern relationship, you look to the actual location. In other words if a tribe is in Wyoming and wants to move to Denver, well then that would suggest those weren’t restored lands. And you also look at the timing. When was the tribe recognized, if they were recognized in 1979 and in 2006 they come and say we already acquired 2,000 acres of land into trust but we want this piece because it’s a big population area and it’s 30 years later, we’re going to say, your timing’s off. And all of those criteria come from the court cases who have looked at these issues and we’ve been guided by those.
Thomas: Does there need to be a more clearly defined role in terms of the law?
Coleman: Well I think that even to the extent that Mr. Skibine regulations tries to define it more clearly, it’s playing off of those court cases, and you can only go so far as far as establishing standards. There’s got to be some interpretation. I would expect that restored lands to a restored tribe is going to continue to be the most difficult analytically but—
Thomas: I know, but my question is, could it be described more clearly in the law?
Coleman: Um. It could be described more clearly in the law but it probably couldn’t be described any more clearly than the case law’s already described it.
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Sen. McCain demands regulations from Department of the Interior
McCain: Well, Mr. Skibine, it’s been 17 years since the passage of the law [the Indian Gaming Regulatory Act]. And as Sen. Dorgan’s pointed out, we need to have regulations.
We’re going to send you a letter today asking for the exact time in which we can expect regulations to be sent to the Federal Register and implemented. I’m a little dispirited when you sort of as an aside said, well, we haven’t begun a consultation with the Indian tribes over the proposed regulations. That means that we have a long way to go.
I don’t see how we can effectively regulate Indian gaming and certainly exercise Congressional oversight unless there’s regulations to implement the law we passed.
So I would like for you to take the message back to the Secretary that we expect the issuance of regulations implementing a law that was passed 17 years ago to be issued. And I won’t—and it’s covered various administrations, but it really is unacceptable 17 years later not to have regulations written to implement a law which is now applies to a 19 or 20 billion dollar a year business. We shouldn’t be doing that. OK?
Skibine: [responds that soon after he became director of the Indian Gaming office in 1995 he began looking at regulatory implementation. He said he did develop regulations for “distribution of per capita revenues” and “for Secretarial procedures.”]