The Myth of Inevitability, Part 3

Friday was a bad day for the St. Regis Mohawk and Stockbridge-Munsee Band of Mohican tribes of New York.

Here they’d been, touting that their proposed Catskills casino plans were a ‘done deal’, with the Governor and several senators by their side - when they got a call from Secretary of the Department of the Interior, Dirk Kempthorne, informing them that their applications to take the land into trust had been denied.

You see, the Indian Gaming Regulatory Act of 1988 (IGRA) established criteria for the Bureau of Indian Affairs (BIA) and the director of the Office of Indian Gaming to follow when reviewing applications to take off-reservation land into trust for gaming purposes.

But the Indian Reorganization Act of 1934 (IRA) provides for the Department of the Interior (DOI) to exercise its discretion in determining whether to allow any land into trust.

So in essence, the DOI can trump the BIA in approving whether a tribe can or cannot use off-reservation land on which to build casinos.

And on Friday, the DOI issued some new guidelines for all parties to consider when reviewing applications for taking land into trust for gaming.

Apparently, the DOI is concerned that some of these applications were asking to take land into trust which was sometimes hundreds or even thousands of miles away from the original reservation. And since this was not a reasonably commutable distance, it could therefore not be considered a practical source of employment for tribe members. Additionally, there could be "negative impacts on tribal life" if tribe members were to move from their reservation to be closer to casino jobs.

And this was the problem for the two tribes which wanted to build in the Catskills, one of which was over 350 miles away from its reservation lands.

But there’s more than meets the eye to these new guidelines, referred to as Part 151, which I’ve quoted here from a Department of the Interior Press Release dated 1/4/08:

• Part 151 contains two provisions of particular relevance to applications that involve land that is a considerable distance from the reservation. It states that, as the distance between the tribe’s reservation and the land to be acquired increases, the Secretary shall give:

• 1) greater scrutiny to the tribes justification of anticipated benefits from the acquisition; and
• 2) greater weight to concerns raised by state and local governments as to the acquisition’s potential impacts on regulatory jurisdiction, real property taxes and special assessments.

• Part 151 does not elaborate further on how or why the Department is to give “greater scrutiny” or “greater weight” to the above factors as the distance increases.

Purpose of Guidance

• The guidance clarifies how to interpret and apply the Part 151 terms ‘greater scrutiny’ and ‘greater weight’ when considering the taking of off-reservation land into trust status for gaming purposes.

• The guidance directs that a reviewer ask specific questions for those applications with lands that exceed a “commutable distance” from the reservation because of the impact that such a distant acquisition may or may not have on life on the reservation.
• The guidance emphasizes that as the distance from the reservation increases, greater weight should be given to state and local concerns, including jurisdictional problems and potential conflicts of land use and the removal of the land from the tax
  rolls.

But what does this mean to us?

It means that it is the dawn of a new day down at the Department of the Interior. It means that they are aware of ‘reservation shopping’ and it’s abuses. And most importantly, it appears to mean that they’re prepared to do something about it.

A closer inspection of the new guidelines reveals that there will be “greater scrutiny” of benefits and “greater weight” to state and local governments. In other words, it’s not going to be a free ride for tribes and their casino investors any longer.

It cannot be understated that this is very hopeful news for any community under the cloud of becoming the home to an unwanted casino, not merely the ones many miles off the reservation.

Remember, the Mashpee Wampanoags are not an impoverished western tribe.

Remember, the Glenn Marshall debacle and other news of unrest within the Tribe has harmed the image of their tribal government.

Remember, we have an 18-member Regional Task Force clamoring to have a voice in this decision, and that seven towns have already voted to oppose it.

And remember, in a letter to the BIA, current Wampanoag Tribal Chairman Shawn Hendricks wrote that

"The lands in Mashpee are unsuited to gaming or other economic development ... because of their location on Cape Cod, which has a fragile ecosystem, including sensitive wetlands and limited highway access.”

We can certainly argue as much here on the South Shore.

And remember, the Wampanoags have taken the highly unusual step of asking to take their reservation land in Mashpee and the land in Middleboro into trust at the same time. Red flag?

But most importantly, always remember that it’s only a done deal if you don’t do anything.

(If you'd like to thank Secretary Kempthorne, please send a letter to him at Department of the Interior, 1849 C Street, N.W., Washington DC 20240)