Congress Joins White House Versus Supreme Court On Indian Gaming

March 6, 2023
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The Biden administration and Congress are collaborating to roll back the effects of a 2009 U.S. Supreme Court ruling against new tribes, even though some commercial casinos and Indian gaming operators oppose the effort.

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The Biden administration and Congress are collaborating to roll back the effects of a 2009 U.S. Supreme Court ruling against new tribes, even though some commercial casinos and Indian gaming operators oppose the effort.

Eleven members of the U.S. House of Representatives, led by Republican Tom Cole of Oklahoma who is a Native American, are resurrecting a bill to nullify the Supreme Court decision in Carcieri v. Salazar.

The Carcieri decision prevents the U.S. Department of the Interior from taking land into trust for tribes which came under federal jurisdiction after 1934.

Introduced by Cole on February 27, H.R. 1208 is co-sponsored by seven Democrats and three Republicans.

In the Senate, Republican Jerry Moran of Kansas and Democrat Jon Tester of Montana also support Cole’s bill.

The legislation in the House dovetails with new regulations proposed on November 30, 2022, by Bryan Newland, the Interior Department’s assistant secretary for Indian affairs.

One of the regulations proposed by Newland, a former chairman of the Bay Mills Indian Community in Michigan, would authorize the Interior Department to take land into trust for a tribe no matter how far away the land is from the tribe’s traditional reservation.

“I don’t know if Cole and Newland have talked directly about this, but I understand their staffs are working together to solve problems caused by the Carcieri decision,” said a tribal gaming lobbyist who requested anonymity.

No matter what happens to Newland’s proposed regulations, they are not expected to significantly impact Indian gaming operations, the lobbyist said.

“These regulations and Cole’s bill would not change the Indian Gaming Regulatory Act (of 1988),” the lobbyist said.

“The Obama administration mastered the theater of Indian gaming without really doing much substantively. This is the Biden administration’s attempt to show they are going the extra mile and really doing something for tribal casinos and Indian Country.”

The Carcieri ruling by the Supreme Court remains a formidable roadblock for tribes which gained federal recognition after 1934 and are seeking additional land for economic development, including opening new gaming facilities.

Newland explained his reasons for proposing the new regulations on December 5, 2022, in the Federal Register.

The current application process for taking land into trust for tribes is like “a bungee cord,” Newland wrote.

The farther away land is from a tribe’s reservation, the harder it is under current regulations to approve their application to take land into trust.

“Tribal governments are rational actors that make acquisition decisions carefully based on available resources, planning and purposes valued by the tribe,” Newland wrote in the Federal Register.

But Allison Binney, a Washington, D.C. attorney who represents gaming tribes, said the proposed regulation for taking off-reservation or non-contiguous land into trust “makes no sense to me.”

“This justification (by Newland) basically provides all deference to the Secretary and applicant tribe, and does not take into account any harms or impacts to another tribe, in whose territory the applicant tribe may be trying to acquire trust lands,” said Binney, who served as staff director of the Senate Indian Affairs Committee from 2007 to 2011.

“The proposed rule assumes the land acquisition serves an important interest for the applicant tribe without providing any deference to harms on other tribes with existing trust land, cultural resources or aboriginal territory in the area."

In the commercial casino industry, Las Vegas Sands and MGM Resorts International vehemently oppose Newland’s proposal to loosen restrictions for land-into-trust acquisitions, according to sources.

Las Vegas Sands sent a scorching letter to the Interior Department on the proposed regulations before the comment period on the proposed regulations ended on March 1, sources said.

Las Vegas Sands and MGM did not immediately respond to requests for comment.

The new regulation proposal for taking land into trust for tribes also is opposed by the Republican attorney generals of 20 states, who similarly have submitted a comment letter opposing the changes.

Another opponent is Dan Gelber, the mayor of Miami Beach, Florida.

In a February 28 letter to the Interior Department, Gelber said such a regulation “can and will facilitate and hasten the introduction of off-reservation Indian gaming casinos.”

The other regulation proposed by Newland would clarify how the Interior Department could approve new gambling compacts negotiated between states and tribes.

The proposed changes would expressly allow for the approval of compacts that allow for tribes and states to authorize mobile gaming operated on a state-wide basis by a tribe via servers located on its Indian lands.

The proposal stems from an awkward situation in 2021, when the department waited 45 days before announcing a new gambling compact to allow internet sports betting in Florida had been “deemed approved”, or allowed to take effect without affirmative action by the federal government.

A decision on the appeal of the Interior Department and the Seminole Tribe to reinstate the compact by the U.S. Circuit Court of Appeals in Washington, D.C. is pending.

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