Order Code RS21499
Updated September 12, 2006
CRS Report for Congress
Received through the CRS Web
Indian Gaming Regulatory Act: Gaming on
Newly Acquired Lands
M. Maureen Murphy
Legislative Attorney
American Law Division
Summary
The Indian Gaming Regulatory Act (IGRA) (P.L. 100-497) generally prohibits
gaming on lands acquired for Indians in trust by the Secretary of the Interior (SOI) after
the date of enactment of IGRA, October 17, 1988. The exceptions, however, may be
significant because they raise the possibility of Indian gaming proposals for locations
presently unconnected with an Indian tribe. Among the exceptions are land: (1)
contiguous to or within reservation boundaries; (2) acquired after the SOI determines
acquisition to be in the best interest of the tribe and not detrimental to the local
community and the governor of the state concurs; (3) acquired for tribes that had no
reservation on the date of enactment of IGRA; (4) acquired as part of a land claim
settlement; (5) acquired as part of an initial reservation for a newly recognized tribe; and
(6) acquired as part of the restoration of lands for a tribe restored to federal recognition.
S. 1260, S. 2078, H.R. 2353,H.R. 3431, H.R. 4696, and H.R. 4893 include more
stringent standards for gaming on newly acquired Indian lands. The reported versions
of H.R. 4893 and S. 2078 would tighten the standards for tribes to secure exceptions to
IGRA’s prohibition on gaming on lands acquired after 1988. This report will be updated
as warranted.
Requirements for Gaming on “Indian Lands”. The Indian Gaming
Regulatory Act (IGRA)1 provides a framework for gaming on “Indian lands,”2 according
to which, Indian tribes may conduct gaming that need not conform to state law. The three
classes of gaming authorized by IGRA progress from class I social gaming, through class
II bingo and non-banking card games, to class III casino gaming.3 One of the requirements
for class II and class III gaming is that the gaming be “located in a State that permits such
crsphpgw
1 P.L. 100-497, 102 Stat. 2467, 25 U.S.C. §§ 2701 - 2721; 18 U.S.C. §§ 1166 - 1168.
2 25 U.S.C. § 2703(4).
3 25 U.S.C. §§ 2703((6) - (8), and 2710.
Congressional Research Service ˜ The Library of Congress

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gaming for any purpose by any person, organization or entity.”4 The federal courts have
interpreted this to permit tribes to conduct types of gaming permitted in the state without
state limits or conditions. For example, tribes in states that permit “Las Vegas” nights for
charitable purposes may seek a tribal-state compact for class III casino gaming.5 On the
other hand, the fact that state law permits some form of lottery or authorizes a state lottery
is not, in itself, sufficient to permit a tribal-state compact permitting all forms of casino
gaming.6
Geographic Extent of IGRA Gaming. A key concept of IGRA is its territorial
component. Gaming under IGRA may only take place on “Indian lands.” That term has
two meanings. (1) “all lands within the limits of any Indian reservation”; and (2) “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.”7 Under the first alternative, gaming under IGRA may take place on any land
within an Indian reservation, whether or not the tribe or a tribal member owns the land
and whether or not the land is held in trust. Determining the applicable boundaries of a
reservation is a matter of congressional intent and may entail a detailed analysis of the
language of statutes ceding tribal reservation land, and the circumstances surrounding
their enactment as well the subsequent jurisdictional history of the land in question.8
The second alternative has two prongs: (a) the land must be in trust or restricted9
status, and (b) the tribe must exercise governmental authority over it. Determining trust
or restricted status involves Department of the Interior records. Determining whether a
tribe exercises governmental authority may be a simple factual matter involving whether
the tribe has a governmental organization that performs traditional governmental
4 25 U.S.C. §§ 2710(b)(1)(A), and 2710(d)(1)(B).
5 Mashantucket Pequot Tribe v. State of Connecticut, 737 F. Supp. 169 (D. Conn. 1990), aff’d,
913 F.2d 1024 (2nd Cir.1990), cert. denied, 499 U.S. 975 (1991). Compacts may prescribe, with
exacting detail, the specifics of each game permitted. See, e.g., the compact between New York
State and the Seneca Nation, Appendix A, listing 26 permitted games and the specifications for
each. Available at [http://www.sni.org/gaming.pdf], when visited April 10, 2003.
6 Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F. 3d 1250 (9th Cir. 1994), opinion
amended on denial of rehearing, 99 F. 3d. 321 (9th Cir. 1996), cert. denied, 521 U.S. 1118 (1997);
State ex rel. Clark v. Johnson, 120 N.M. 562; 904 P. 2d 11 (1995).
7 25 U.S.C. § 2703(4).
8 See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998); Solem v. Bartlett, 465
U.S. 463 (1984).
9 “Restricted fee land” is defined to mean “land the title to which is held by an individual Indian
or tribe and which can only be alienated or encumbered by the owner with the approval of the
SOI because of limitations in the conveyance instrument pursuant to federal law.” 25 C.F.R. §
151.2 If restricted land is involved, it may only be considered “Indian lands,” for IGRA
purposes if the tribe “exercises governmental power” over it. Kansas v. United States, 249 F. 3d
1213 (10th Cir. 2001), held that a tribe could not accept governmental authority by consent from
owners of restricted land whom the tribe had accepted into membership.

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functions such as imposing taxes.10 On the other hand, it could be a matter requiring
judicial construction of federal statutes.11
How Land is Taken Into Trust. Congress has the power to determine whether
to take tribal land into trust.12 There are many statutes that require the Department of the
Interior to take land into trust for a tribe or an individual Indian.13 An array of statutes
grant the SOI the discretion to acquire land in trust for individual Indian tribes; principal
among them is the Wheeler-Howard, or Indian Reorganization Act of 1934.14 Procedures
for land acquisition are specified in 25 C.F.R., Part 151. By this process Indian owners
of fee land, i.e., land owned outright and unencumbered by liens that impair
marketability, may apply to have their fee title conveyed to SOI to be held in trust for their
benefit. Among the effects of this process is the removal of the land from state and local
tax rolls and the inability of the Indian owners to sell the land or have it taken from them
by legal process to collect on a debt or for foreclosure of a mortgage.
“Indian Lands” Acquired After Enactment of IGRA. Lands acquired in trust
after IGRA’s enactment are generally not eligible for gaming if they are outside of and not
contiguous to the boundaries of a tribe’s reservation. There are exceptions to this policy,
however, that allow gaming on certain “after acquired” or “newly acquired” lands. One
exception permits gaming on lands newly taken into trust with the consent of the governor
of the state in which the land is located and SOI: (1) consults with state and local
officials, including officials of other tribes; (2) determines “that a gaming establishment
on the newly acquired lands would be in the best interest of the Indian tribe and its
members”; and (3) determines that gaming “would not be detrimental to the surrounding
community.”15
Other Exceptions for Gaming on Land Acquired after October 11, 1988.
Other exceptions permit gaming on after-acquired land and do not require gubernatorial
consent, consultation with local officials, or Secretarial determination as to tribal best
interest and effect upon local community. They relate to any of five circumstances:
10 See, e.g., Indian Country U.S.A., Inc. v. Oklahoma, 829 F. 2d 967 (10th Cir. 1987), involving
a tribe that exercised taxing authority.
11 See, e.g., Rhode Island v. Narragansett Tribe of Indians, 816 F. Supp 796 (D. R.I. 1993), aff’d,
modified, 19 F. 3d 685 (1st Cir. 1994), cert. denied 513 U.S. 919 (1994). This case held that,
despite the fact that a federal statute conveyed civil and criminal jurisdiction over a tribe’s
reservation to a state, the criterion of exercising governmental power was satisfied by various
factors including federal recognition of a government-to-government relationship, judicial
confirmation of sovereign immunity, and a federal agency’s treatment of the tribe as a state for
purposes of administering an environmental law.
12 U.S. Const. art. I, § 8, cl. 3 (Indian Commerce Clause), and id., art. IV, § 3, cl. 2 (Property
Clause).
13 See, e.g., § 707 of the Omnibus Indian Advancement Act, P.L. 106-658, 114 Stat. 2868, 2915,
25 U.S.C. § 1042e, mandating that the SOI take any land in Oklahoma that the Shawnee Tribe
transfers.
14 Act of June 18, 1934,ch. 57, 48 Stat. 985, 25 U.S.C. § 465. This statute specifies that such
land is to be exempt from state and local taxation.
15 25 U.S.C. § 2719(b)(1).

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(1) Any tribe without a reservation on October 17, 1988, is allowed to have gaming
on newly acquired lands in Oklahoma that are either within the boundaries of the tribe’s
former reservation or contiguous to other land held in trust or restricted status by SOI for
the tribe.16
(2) If a tribe that had no reservation on October 17, 1988, and is “presently” located
in a state other than Oklahoma, it may have gaming on newly acquired lands in that state
that are “within the Indian tribe’s last recognized reservation within the State.”17
(3) A tribe may have gaming on lands taken into trust as a land claim settlement.18
(4) A tribe may have gaming on lands taken into trust as the initial reservation of a
tribe newly recognized under the Bureau of Indian Affairs’ process for recognizing groups
as Indian tribes19;
(5) A tribe may have gaming on lands representing “the restoration of lands for an
Indian tribe that is restored to federal recognition.”20
Proposed Regulations for Gaming on Newly Acquired Trust Lands. On
January 25, 2006, the Department of the Interior issued, in draft form, a proposed rule that
would establish criteria for implementing IGRA’s section 20, regarding the eligibility for
gaming on land taken into trust after October 17, 1988.21 In 2000, SOI had sought public
comments on a proposed regulation to govern the two-part determination process,22
extended the comment period,23 but never issued final regulations. SOI expects to
circulate the current draft proposal to Indian tribes for consultation before publishing a
proposed rule in the Federal Register.24
16 25 U.S.C. § 2719(a)(2)(A)(i) and 2719(a)(2)(A)(ii).
17 25 U.S.C. § 2719(a)(A)((2)(B). There are other specific exceptions for certain lands involved
in a federal court action involving the St. Croix Chippewa Indians of Wisconsin and the
Miccosukee Tribe of Indians of Florida.. 25 U.S.C. § 2719(b)(2).
18 Under this provision SOI took into trust a convention center in Niagara Falls, N.Y, now being
used for casino gaming by the Seneca Nation, on the basis of legislation settling disputes over
the renewal of 99-year leases in Salamanca, N.Y., 25 U.S.C. §§ 1174, et seq.
19 See CRS Report RS21109, The Bureau of Indian Affairs’ Process for Recognizing Groups as
Indian Tribes, by M. Maureen Murphy. In an opinion on “Trust Acquisition for the Huron
Potawatomi, Inc.,” the DOI Solicitor General’s office stated that “the first time a reservation is
proclaimed ..., it constitutes the ‘initial reservation’ under 25 U.S.C. § 2719(b)(1)(B), and the
... [tribe] may avoid the ban on gaming on ‘newly acquired land for any lands taken into trust as
part of the initial reservation — those placed in trust before or at the time of the initial
proclamation. Land acquired after the initial proclamation of the reservation will not fall within
the exception.” Memorandum to the Regional Director, Midwest Regional Office, Bureau of
Indian Affairs 2 (December 13, 2000). [http://www.nigc.gov/nigc/documents/
land/potawatomi.jsp] (last visited March 24, 2005).
20 25 U.S.C. § 2719(b)(iii).
21 Available at [http://www.indianz.com/docs/bia/bia012506.pdf] (last visited February 1, 2006).
22 65 Fed. Reg. 55471 (September 14, 2000). An earlier proposal, 57 Fed. Reg. 51487 (July 15,
1991) was never issued in final form.
23 66 Fed. Reg. 666847.
24 Hearing Before the Senate Committee on Indian Affairs on Off-Reservation Gaming: The
(continued...)

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Legislation in the 109th Congress.
S. 1260 would require tribes seeking
gaming on new lands, with gubernatorial consent, to meet a higher standard than the
current standard of best interest of the tribe and not detrimental to surrounding community
and would also require concurrence of the state legislature. Under the legislation, SOI
must consider the results of an economic impact study of the proposed gaming, and
determine that the gaming “would not have a negative economic impact, or any other
negative effect, on any unit of government, business, community, or Indian tribe located
within 60 miles of the land.” In addition, there is a requirement that the gaming be on
land within a state where the tribe is primarily located and with which there is the tribe’s
“primary geographic, social, and historical nexus.” There is also a provision requiring
that tribes prepare environmental impact statements before using Indian lands for class
II or class III gaming. S. 1518 would limit class III gaming to games permitted in the state
for commercial purposes and subject tribal class III gaming to state laws and restrictions.
S. 2078 would eliminate the exception to IGRA’s prohibition on gaming on land
acquired in trust after IGRA’s passage that is based on the two-part secretarial
determination except for written requests submitted to the Secretary before April 15,
2006. It would limit the exception based on land claim settlements to require statutory
authority and that the land be in a state in which the tribe’s reservation or last recognized
reservation land is located. For an exception based on initial reservation, there would be
three requirements: (1) the land must be in the state to which the tribe has “an historical
and geographic nexus, as determined by the Secretary”; (2) there must be a “temporal
connection ... between the acquisition of the land and the date of recognition of the tribe,
as determined by the Secretary” and (3) the Secretary must determine (after consultation
with tribal and local officials, providing public notice, an opportunity to comment, and
a public hearing) “that a gaming establishment on the land ... would be in the best interest
of the Indian tribe and members of the tribe ... and [that it] would not create significant,
unmitigated impacts on the surrounding community.”
H.R. 2353 would prospectively limit each tribe’s gaming to one parcel in the state
where the tribe “has its primary geographic, social, and historical nexus and within the
State or States where the tribe is primarily located.” It would also require that applicants
seeking to have land placed in trust declare whether or not they intend to have gaming on
the land and be bound by any declaration that the land is not to be used for gaming. It
would also require tribes seeking gaming on after-acquired lands, with gubernatorial
consent, to meet a higher standard than the current test of best interest of tribe and not
detrimental to surrounding community. Under the legislation, SOI would have to conduct
an economic impact study and determine that gaming on the newly acquired lands “would
not have a negative economic impact on business, government or Indian tribes within a
50 mile radius.” The bill would also permit landless, newly recognized, or newly restored
tribes to have gaming only if SOI determines: (1) that the proposed site is on “lands
within the State where the Indian tribe has its primary geographic, social, and historical
nexus to the land”; (2) that the gaming would be in the best interest of the tribe and not
detrimental to the surrounding community; and (3) approval is given by the “State, city,
24 (...continued)
Process for Considering Gaming. Testimony of George Skibine, Acting Deputy Assistant
Secretary, Policy and Economic Development for Indian Affairs, U.S. Department of the Interior.
[http://indian.senate.gov/2006hrgs/020106hrg/Skibine.pdf]

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county, town, parish, village and other general purpose political subdivisions of the State
with authority over the land.”
H.R. 3431 would eliminate the land claim, new reservation, and restored lands
exceptions to the prohibition on gaming on newly acquired lands and would require the
state’s governor and legislature to approve an SOI determination that gaming on newly
acquired lands is in tribe’s best interest and not detrimental to the local community.
H.R. 4696 would amend IGRA prospectively. For class II or class III gaming to take
place on lands acquired after the bill is enacted, a tribe must have declared its intention
to have gaming in its application for trust status for the land and obtained approval for its
tribal-state compact from the state legislature and governor. The bill would replace
IGRA’s section 20(b) provisions allowing gaming on newly acquired lands in instances
involving land claim settlements, initial reservations, or restored lands, with a provision
permitting gaming on newly acquired lands for newly acknowledged, restored, or landless
tribes provided three criteria are met: (1) SOI determines that the lands ... are “lands
within the State where the Indian tribe has its primary geographic, social, and historical
nexus to the land”; (2) SOI determines that gaming on the land is in the best interest of
the tribe and not detrimental to the surrounding community; and, (3) state and local
government authorities approve. Gaming under IGRA would be limited to one
contiguous parcel where “the Indian tribe has its primary geographic, social, and historical
nexus and within the State or States where the Indian tribe is primarily located.”
H.R. 489325 preserves the exceptions to IGRA’s prohibition on gaming on lands
acquired after October 17, 1988, for lands that are within or contiguous to a tribe’s
reservation as it existed on October 17, 1988. It also preserves other exceptions for tribes
that have submitted written trust or gaming applications prior to March 7, 2006, but adds
further conditions before such applications may be approved: the land must be in the
state where the tribe primarily resides and within the area where the tribe has a “primary
geographic, historical, and temporal nexus.” For tribes without such applications, the bill
eliminates the ability to use a land claim settlement as a means of having gaming on
newly acquired lands. H.R. 4893 applies more stringent standards than current law for
newly recognized, acknowledged, restored or landless tribes to qualify lands for gaming.
They must secure: (1) an SOI determination that the land is within the tribe’s state and
its “primary geographic, social, historical, and temporal nexus”; (2) an SOI determination
that gaming on the lands would not be detrimental to the surrounding community and
nearby Indian tribes; (3) gubernatorial concurrence in conformance with the laws of the
state; and, (4) a mitigation agreement between the tribe and the county or parish
government with respect to the “direct effects of the tribal gaming activities on the
affected county or parish infrastructure and services.” The bill also (1) permits tribes,
subject to certain conditions, including state legislative approval, to lease land (except in
Arizona) for gaming to another in-state tribe; (2) prohibits gaming on non-contiguous,
out-of-state lands that have not, prior to enactment of this legislation, been approved for
gaming by the SOI, the National Indian Gaming Commission, or a federal court; and (3)
requires SOI to issue a regulatory requirement that all applications for gaming on new
lands establish an aboriginal or analogous historic connection to the land.
25 Text of version which House Committee on Resources has ordered to be reported may be found
at [http://resourcescommittee.house.gov/issues/naia/Text_hr_4893.pdf ].

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