Landless tribes have a new opportunity to create reservations if they can meet updated Interior Department regulations on taking land into trust , essential to the process of building casinos that will support them financially .
To be eligible for gaming , newly acquired trust lands must meet certain criteria outlined in Section 20 of the Indian Gaming Regulatory Act ( IGRA ) of 1988 . IGRA prohibits gaming on trust lands acquired after October 17 , 1988 ( the date IGRA was enacted ), but allows for several “ exceptions .” These exceptions are described fully in 25 CFR Section 2719 , and generally include :
1 . If the land was within or contiguous to the boundaries of the tribe ’ s reservation on October 17 , 1988 ( or the tribe ’ s last recognized reservation ); 2 . If the land is acquired into trust as part of the settlement of a land claim ; 3 . If the land is acquired into trust as the initial reservation for a tribe acknowledged by the secretary under the federal acknowledgment process ; 4 . If the lands qualify as “ restored lands ” for a tribe that is restored to federal recognition ; or ,
5 . If the secretary issues a “ Two-Part Determination ” that gaming activities would be ( 1 ) in the best interest of the applicant tribe , and ( 2 ) not detrimental to the surrounding community ; and the state ’ s governor concurs in the determination .
Under exceptions 1- 4 , the tribe must request an Indian Lands Opinion from the Office of Indian Gaming to verify that the lands would qualify for gaming under IGRA . Many , if not most , of the pending applications for gaming-related trust acquisitions today involve exception 5 ( two-part determination ), meaning they will ultimately require approval by the state ’ s governor in addition to Interior . There are no proposed federal amendments or revisions to the federal process for determining gaming eligibility under IGRA .
The New ( Draft ) FTT Rules
After consultation with tribes earlier in 2022 , the Office of the Assistant Secretary for Indian Affairs published the draft regulations ( outlined in 25 CFR Part 151 ) last December . It is expected that the final regulations may be published later this year , perhaps as early as May or June , although no official release date has been announced . While the final rule may be revised pending the outcome of further tribal consultation and public comment , the draft rule contains significant substantive and process-related changes . To remove obstacles that tribes and individual Native Americans have faced in the trust acquisition process , Interior has added new definitions , clarified requirements that have been common practices , and made other minor changes throughout the rule .
A New Category of Acquisition
The proposed rule classifies four different forms of acquisitions — on-reservation , contiguous to reservation , off-reservation , and initial Indian acquisitions — with the last being a new fourth category designed to ease the process for those tribes that do not currently possess any land in trust . Requirements vary for each category , and the application process is more streamlined , as discussed below .
Requirements Eliminated
While the “ purpose ” of a tribal government ’ s acquisition must still be identified , the Bureau of Indian Affairs ( BIA ) would no longer be required to consider its “ need .” It will now be presumed , based on decades of BIA experience in acquiring and administering trust lands , that the tribal community will benefit from the acquisition . This change would apply to all categories , saving tribes the cost and time of documenting why they “ need ” the acquisition ( sorry , consultants ).
For on-reservation acquisitions , the requirement to consult state and local governments is eliminated . However , for acquisitions of contiguous land , state and local governments will continue to have a 30-day period to submit comments regarding impacts on regulatory jurisdiction , real property taxes and special assessments . If no comments are submitted , there will be no need for the secretary to consider these issues .
Furthermore , when reviewing a tribe ’ s request for land that is located within or contiguous to an Indian reservation , the secretary presumes that the acquisition will be approved .
Off-reservation acquisitions would still require state and local government consultation . However , off-reservation applications would no longer require a business plan , and consideration of distance from the reservation is eliminated , with the presumption that the tribal government would factor location into its request and benefits would occur to the tribal community . However , the secretary will generally consider the location of the land
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