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NIGC develops system to track Indian lands
Thursday, July 28, 2005

Indianz.Com Listening Lounge, Senate Indian Affairs Committee oversight hearing on Lands eligible for gaming pursuant to the Indian Gaming Regulatory Act, July 27, 2005.
Note: All files in MP3 format.
Intro - 5:18 - 938k
Vitter, Voinovich - 22:40 - 3.9MB
Panel I - 35:00 - 6MB | Q&A - 20:17 - 3.5MB
Panel II - 32:10 - 5.5MB | Q&A - 21:26 - 3.7MB
• Witness List

The National Indian Gaming Commission has launched a full-scale review of every tribal casino to ensure they are operating within the law, the agency's top lawyer said on Wednesday.

Penny Coleman, the acting general counsel at NIGC, said the agency is developing a system to track the land status of all 404 tribal casinos and identify new concerns. The goal is to determine whether the casinos are operating on Indian lands as defined by the Indian Gaming Regulatory Act of 1988.

The overwhelmingly majority of tribal casinos are on Indian lands, Coleman observed. They are located within the boundaries of a reservation or are located on lands that are held in trust and over which the tribe has governmental authority.

But Coleman confirmed that problems have arisen throughout Indian Country. Some tribes are operating casinos on land without following IGRA, which establishes a rigorous process for gaming on lands acquired in trust after 1988.

"Recently, we sent a team to the state of Oklahoma to obtain copies of deeds, maps and other documentation on some of the gaming sites," Coleman told the Senate Indian Affairs Committee. "In California, we also hired a title company to conduct title searches on some sites."

Coleman said the comprehensive review comes in response to internal criticism. In a pending report, the Interior Department's Inspector General found at least 10 instances of tribes operating casinos on land that was taken into trust without following the IGRA process. The report will state that the NIGC and the Bureau of Indian Affairs have no way to track the land status issue.

"We're making these decisions as we determine that they are important or when we find out that there might be a big problem," Coleman testified. "And that's not necessarily great government."

Although Coleman mentioned certain states, she didn't identify any tribes. In earlier reports, Indianz.Com has identified nearly a dozen instances in which the Chickasaw Nation and other large tribes in Oklahoma didn't necessarily follow IGRA before opening casinos on land taken into trust after 1988. The BIA has confirmed that some tribes have skipped the process.

"We are aware that this has happened in the state of Oklahoma, for instance," George Skibine, the BIA's acting deputy assistant secretary for policy and economic development, said at a hearing in May. Skibine appeared at yesterday's hearing but did not directly address the issue.

As for California, sources have told Indianz.Com that federal authorities are interested in some of the most lucrative casinos in the southern part of the state.

The issue has spurred debate, especially among smaller tribes in Oklahoma. Two tribes filed lawsuits in hopes of challenging the Indian land status of other tribal casinos. One was dismissed while the other is pending in federal court.

Several members of Congress are interested due to the controversy involving off-reservation gaming but also out of concern for the rights of smaller tribes. "Trust lands ... determine the winners and losers in Oklahoma," said Sen. Tom Coburn (R-Oklahoma), a member of the committee, at a hearing in May. "The fact is," he added, "that it's not necessarily a fair process."

Sen. David Vitter (R-Louisiana), an opponent of all forms of gaming, has introduced a bill to address the debate. He testified yesterday that tribes should be required to state whether they will open a casino on newly acquired trust lands.

In the cases being reviewed, that sort of notification didn't happen. The Chickasaw Nation, for example, acquires land in trust for a non-gaming purposes under a less strict process. Only later does the tribe open a casino on the property.

The federal government can't prohibit such changes in use, Skibine said in previous testimony, because there aren't any deed restrictions imposed on trust lands. At the same time, the BIA and the NIGC currently have no way to determine if any change in use happened, something that Coleman said would be corrected under the system in development.

The NIGC and the BIA have signed a memorandum of understanding to determine Indian lands issues. Together, the agencies have issued about 50 written opinions, Coleman said.

But due to the expansion of the $19 billion Indian gaming industry, the NIGC has 50 Indian land determinations pending, Coleman told the committee. Most of them will be simple to decide, she said, yet there are only 10 attorneys on staff handling the workload.

"It sounds to me like you could use some more help," asked Sen. John McCain (R-Arizona), the chairman of the committee.

"Absolutely," Coleman responded. The NIGC's current budget is $12 million, entirely derived from fees imposed on tribes with casinos.

Under the Indian Gaming Regulatory Act, "Indian lands" is defined as:

(A) all lands within the limits of any Indian reservation; and
(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.

Under 25 C.F.R. § 502.12, "Indian lands" means:

(a) Land within the limits of an Indian reservation; or
(b) Land over which an Indian tribe exercises governmental power and that is either --
(1) Held in trust by the United States for the benefit of any Indian tribe or individual; or
(2) Held by an Indian tribe or individual subject to restriction by the United States against alienation.

Witness List/testimony:
Oversight Hearing Before the Senate Committee on Indian Affairs on Lands eligible for gaming pursuant to the Indian Gaming Regulatory Act (July 27, 2005)

Relevant Links:
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS