Indian Gaming Regulatory Act: Gaming on Newly Acquired Lands

Indian Gaming Regulatory Act: Gaming on Newly Acquired Lands

Order Code RS21499
Updated April 2, 2007
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.
On October 5, 2006, the Bureau of Indian Affairs (BIA) of the Department of the
Interior (DOI) issued a proposed regulation to specify the standards that must be
satisfied by tribes seeking to conduct gaming on lands acquired after October 17, 1988.
The proposal includes limiting definitions of some of the statutory terms and
considerable specificity in the documentation required for such applications. Legislative
proposals include H.R. 1654 in the 110th Congress and two reported bills in the 109th
Congress, H.R. 4893 and S. 2078, all of which contain provisions to 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
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).

CRS-2
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
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 (DOI) records. Determining
whether a tribe exercises governmental authority may be a simple factual matter
3 25 U.S.C. §§ 2703((6) - (8), and 2710.
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.

CRS-3
involving whether the tribe has a governmental organization that performs traditional
governmental 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 DOI to take land into
trust for a tribe or an individual Indian.13 An array of statutes grant the Secretary of the
Interior (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 after 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
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).

CRS-4
consent, consultation with local officials, or SOI determination as to tribal best interest
and effect upon local community. They relate to any of five circumstances:
(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 Regulation for Gaming on Newly Acquired Trust Lands. On
October 5, 2006, the Bureau of Indian Affairs (BIA) issued a proposed regulation setting
standards that DOI will use in determining whether class II or class III gaming may take
place on after-acquired lands.21 With respect to the two-part determination, the proposal
includes : (1) a requirement that the application for a gaming determination on land not
yet in trust must be filed at the same time as the application to have the land taken into
trust; (2) a definition of “surrounding community” that covers local governments and
tribes within a 25-mile radius; (3) detailed requirements as to projections which must
accompany the application respecting benefits to the tribe and local community, potential
detrimental effects, and proposals to mitigate any detrimental effects.
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 71 Fed. Reg. 58769. The comment period was extended to February 1, 2007, 71 Fed. Reg.
70335 (December 4, 2006); 71 Fed. Reg. 70335 (January 17, 2007), and corrections issued. 71
Fed. Reg. 70335.

CRS-5
The proposed regulation includes a level of specificity that may prove controversial.
Indian gaming interests may criticize elements of the proposed regulation as too
restrictive; opponents of gaming may seek further limiting interpretations of various
statutory language. On the other hand, some may find that the proposed regulation
involves a degree of specificity that will further transparency, thereby improving the
deliberative process as well as the ability of potential challengers to assess the pros and
cons of appealing SOI decisions on land acquisition for gaming. For example, applicants
must provide information on: (1) distance of the land from tribal “core governmental
functions”; (2) consulting agreements; (3) financial and loan agreements; (4) proposed
programs for compulsive gamblers; (5) impact costs to the local community and means
of mitigation; (6) projected benefits to the relationship between the tribe and the local
community; and (7) “anticipated impacts on the social structure, infrastructure, services,
housing, community character, and land use patterns of the surrounding community.” 22
Upon determining that a trust acquisition is in the best interest of the tribe and not
detrimental to the local community, SOI must notify the state’s governor, who must act
within one year, with a possible one-time 180-day extension, or SOI will inform the
applicant tribe that the application is no longer under consideration.
Unlike earlier proposed regulations, issued for public comment but never finalized,23
the current proposal is not limited to the two-part SOI determination. It also covers: (1)
newly acquired contiguous lands, defining “contiguous” to include parcels separated by
non-navigable waters or a public road or right-of-way; (2) initial reservations for newly
acknowledged tribes, requiring the land to be “within an area where the tribe has
significant historical and cultural connections,” and located within 50 miles of the tribal
headquarters or within a 50-mile radius of the residences of a majority of the tribe’s
members; (3) “restored lands” for a tribe restored to federal recognition, requiring that if
“restoration legislation does not provide geographic parameters ... the tribe [must have]
... a modern connection and a significant historical connection to the land and ... a
temporal connection between the date of the acquisition of the land and the date of the
Tribe’s restoration”; and (4) land acquisitions under land claim settlements, by requiring
that the land must have been acquired in trust as part of the settlement of a land claim
filed in federal court or included in DOI’s list of potential pre-1966 claims and involving
a relinquishment of the tribe’s legal claim to land or a return to the tribe of “tribal lands
identical to the lands claimed by the tribe.” 24 The proposal also specifies how a tribe may
establish its connection to land, both in modern times and historically.

Legislation. To date, in the 110th Congress, only one bill, H.R. 1654, has been
introduced addressing the issue of gaming on newly acquired lands. It would apply the
two-part SOI determination, but not the gubernatorial concurrence, to the exceptions for
land claim settlements, initial reservations for newly recognized tribes, and restored lands
for a newly restored tribes.
22 Proposed 25 C.F.R. § 292.17 and 292,18, 71 Fed. Reg. 58769, 58774-58775..
23 65 Fed. Reg. 55471 (September 14, 2000). An earlier proposal, 57 Fed. Reg. 51487 (July 15,
1991) was never issued in final form.
24 Proposed 25 C.F.R. §§ 292.2, 292. 5, 292.6, 292.7, and 292.11. 71 Fed. Reg.58769, 58774-
58775.

CRS-6
In the 109th Congress, there were several bills, two of which were reported, S. 2078
(by the Senate Committee on Indian Affairs) and H.R. 4893 (by the House Committee on
Resources).
S. 2078 would have eliminated, except for applications received by the SOI as
of April 15, 2006, the exception to IGRA’s prohibition on gaming on land acquired in
trust after IGRA’s passage that is based on the two-part SOI determination. It would have
limited 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, it would have required: (1)
the land to be in the state to which the tribe has “an historical and geographic nexus, as
determined by the Secretary”; (2) a “temporal connection ... between the acquisition of
the land and the date of recognition of the tribe, as determined by the Secretary” and (3)
that SOI 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. 4893 would have preserved 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 would have preserved other
exceptions for tribes that had submitted written trust or gaming applications prior to
March 7, 2006, but would have required that the land 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 pre-March 2006 applications, the bill would
have eliminated the ability to use a land claim settlement as a means of having gaming on
newly acquired lands. H.R. 4893 would have applied more stringent standards than
current law for newly recognized, acknowledged, restored or landless tribes to qualify
lands for gaming. Had the bill been enacted, such tribes would have had to 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 would have: (1) permitted tribes, subject to certain
conditions, including state legislative approval, to lease land (except in Arizona) for
gaming to another in-state tribe; (2) prohibited 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) required SOI
to issue a regulatory requirement that all applications for gaming on new lands establish
an aboriginal or analogous historic connection to the land.
crsphpgw