WASHINGTON — It’s unlikely that anyone will ever accuse the Bureau of Indian Affairs of acting in haste.
Just ask Bill Iyall, the chairman of the Cowlitz Tribe in Washington state: It took 26 years for the tribe to win federal recognition from the BIA, the first requirement for opening a casino. That happened in 2000. And after getting the Bureau of Indian Affairs to sign off on its purchase of 152 acres of new land — another requirement — the tribe is still fighting opponents in federal court for the right to begin building a gambling empire near the town of La Center.
The Cowlitz Tribe’s experience offers an obvious lesson: Even with the Obama administration moving to make it easier to open off-reservation casinos, tribes still face a long, long road, with many potential pitfalls.
Under the change announced in June 2011, Larry Echo Hawk, then head of the BIA and a former Idaho candidate for governor, rescinded a 2008 Bush administration policy that banned off-reservation casinos if they were not within easy driving distance.
Echo Hawk, who resigned in April to be part of the Quorum of the Seventy, which is the Mormon church’s third-highest governing body, said he was scrapping the so-called “commutable distance” rule because it had been adopted without any consultation with the tribes. The Bush administration’s rule had essentially frozen attempts by tribes to open new casinos beyond their reservations.
Though that roadblock has been removed, tribes still must show a historical or legal connection to any new land that they seek to place in trust. If that is not possible, tribes must satisfy the BIA’s “two-part determination” in getting approval for an off-reservation casino.
Under that test, the Interior secretary must consult with the tribe, neighboring tribes, and state and local officials to assess whether the proposed casino is in the “best interests” of the community.
If the secretary decides that’s the case, the governor of a state must then agree.
The new proposals are likely to force the BIA to tackle tougher cases.
“All of the easy and clear-cut decisions with respect with tribes being able to engage in gaming have been answered,” said Barry Brandon, former chief of staff for the National Indian Gaming Commission.
Brandon predicted more applications from tribes “off the beaten track” that will assert that they have historical connections to land that might be more than 100 miles away from their headquarters.
Even if tribes can satisfy the BIA’s requirement, they could run into more snags from both Congress and the courts.
In the Senate, John McCain of Arizona and Dianne Feinstein of California have introduced bills to make it harder for tribes to buy new land for casinos. McCain wants to reinstate the commutable-distance standard, and Feinstein wants to force tribes to show that their current members and ancestors have a “substantial” link to the land.
Two court cases, one involving the Cowlitz casino and another involving the Gun Lake Casino in Michigan, could go a long way toward settling the issue. In both cases, opponents claim that the casinos should not be allowed because they violate a 2009 Supreme Court ruling that tribes not under federal jurisdiction by 1934 cannot take new land into trust.
