Indian Gaming Regulatory Act: Gaming on Newly Acquired Lands
Indian Gaming Regulatory Act (IGRA):
Gaming on Newly Acquired Lands
Updated May 28, 2008
M. Maureen Murphy
American Law Division
Indian Gaming Regulatory Act (IGRA):
Gaming on Newly Acquired Lands
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 or
Secretary) after October 17, 1988. The exceptions, however, raise the possibility of
Indian gaming proposals for locations presently unconnected with an Indian tribe.
Among the exceptions are land: (1) 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; (2) acquired for tribes that had no reservation on the
date of enactment of IGRA; (3) acquired as part of a land claim settlement; (4)
acquired as part of an initial reservation for a newly recognized tribe; and (5)
acquired as part of the restoration of lands for a tribe restored to federal recognition.
On May 20, 2008, the Bureau of Indian Affairs (BIA) of the Department of the
Interior (DOI) issued a final regulation specifying the standards to be satisfied by
tribes seeking to conduct gaming on lands acquired after October 17, 1988. The
regulation includes limiting definitions of some of the statutory terms and
considerable specificity in the documentation required for tribal applications.
Previously, on January 4, 2008, it issued departmental guidance on off-reservation
acquisitions for gaming and rejected more than 20 tribal applications for taking off-
reservation land into trust for gaming purposes.
Legislative proposals include H.R. 1654 and H.R. 2562, which contain
provisions to tighten the standards for tribes to secure exceptions to IGRA’s
prohibition on gaming on lands acquired after 1988, and several bills dealing with
recognition of particular tribes or transfers of specific pieces of property (S. 310/
H.R. 505, S. 375/H.R. 679, H.R. 28, H.R. 65, H.R. 106, H.R. 673, H.R. 1294, and
H.R. 3490), which include provisions that preclude gaming. Two bills, H.R. 2176
and H.R. 4115, would ratify land claim settlement agreements and authorize trust
acquisition of land in Michigan which would qualify for gaming. H.R. 3752 would
provide that IGRA will not apply to a newly recognized tribe until it has been
continuously recognized for 25 years. H.R. 3787 would require a local public
hearing before a trust acquisition.
This report will be updated as warranted.
Requirements for Gaming on “Indian Lands”........................1
Geographic Extent of IGRA Gaming...............................1
How Land is Taken Into Trust....................................2
“Indian Lands” Acquired After Enactment of IGRA...................3
Other Exceptions for Gaming on Land Acquired
after October 11, 1988......................................3
Final Rule for Gaming on Newly Acquired Trust Lands................4
Indian Gaming Regulatory Act (IGRA):
Gaming on Newly Acquired Lands
Requirements for Gaming on “Indian Lands”
The Indian Gaming Regulatory Act (IGRA)1 provides a framework for gaming2
on “Indian lands,” 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 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 for5
charitable purposes may seek a tribal-state compact for class III casino gaming. 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
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.
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].
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.
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
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 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
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,
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.th
United States, 249 F. 3d 1213 (10 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.
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
13 See, e.g., § 707 of the Omnibus Indian Advancement Act, P.L. 106-568, 114 Stat. 2868,
2915, 25 U.S.C. § 1042e, mandating that the SOI take any land in Oklahoma that the
discretion to acquire land in trust for individual Indian tribes; principal among them
is the Wheeler-Howard, or Indian Reorganization Act of 1934 (IRA).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
“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” land. One exception, sometimes
referred to as a two-part determination, 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 consent, consultation with local officials, or SOI determination as to
tribal best interest and effect upon local community. They relate to any of five
(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 restricted16
status by SOI for the tribe.
(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
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).
16 25 U.S.C. § 2719(a)(2)(A)(i) and 2719(a)(2)(A)(ii).
in that state that are “within the Indian tribe’s last recognized reservation within the
S t at e.”17
(3) A tribe may have gaming on lands taken into trust as a land claim
(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’s 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
Final Rule for Gaming on Newly Acquired Trust Lands
The Bureau of Indian Affairs (BIA) of the Department of the Interior (DOI)
issued a final rule for gaming on newly acquired trust lands, 25 C.F.R., Part 292, on
May 20, 2008.21 The new rule applies to all requests under 25 U.S.C. § 2719 on
which there has not been final agency action prior to June 19, 2008, the effective date
of the regulation. There is an exception to this for DOI or NIGC opinions issued
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’s 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.ni gc . go v/ L i n kC l i ck.aspx?link= NIGC+Uploads%2 findianlands%2f33_
nottawaseppihuronpotawatomi bnd.pdf&t abid=120&mi d=957].
20 25 U.S.C. § 2719(b)(iii).
21 73 Federal Register 29354. On October 5, 2006, the Bureau of Indian Affairs (BIA)
issued a proposed regulation setting standards for determining whether class II or class III
gaming may take place on after-acquired lands. 71 Federal Register 58769. The comment
period was extended to February 1, 2007, 71 Federal Register 70335 (December 4, 2006);
71 Federal Register 70335 (January 17, 2007), and corrections issued. 71 Federal Register
70335. There were earlier proposed regulations that never became effective, 65 Federal
Register 55471 (September 14, 2000). An earlier proposal, 57 Federal Register 51487 (July
previously, which reserve “full discretion to qualify, withdraw or modify such
In addition to specifying procedures for securing determinations as to whether
land may qualify for one of IGRA’s exceptions to its prohibition on gaming on newly
acquired trust lands, the rule specifies factors that will be considered in making
determinations under the statute. The rule covers both the two-part Secretarial
Determination that gaming would benefit the tribe and not be detrimental to the
surrounding community and the other exceptions to IGRA’s ban on gaming on lands
acquired after October 17, 1988: lands contiguous to the reservation boundaries;
lands taken into trust on the basis of land claims settlements; initial reservations for
newly acknowledged tribes; and lands restored to newly restored tribes. Requests for
Secretarial Determinations must be directed to the SOI. Land-into-trust applications
or applications requiring a determination of reservation status are to be directed to
the BIA’s Office of Indian Gaming; requests for opinions on whether a particular
parcel meets one of the other exceptions may be directed either to the BIA’s Office
of Indian Gaming or the NIGC.23
Secretarial Determination. The rule specifies both procedures and
application requirements for Secretarial Determinations that gaming on newly
acquired lands would be in the best interest of the tribe and not detrimental to the
surrounding community.24 The information to be included in consultation letters sent25
to state and local governments is specified. The rule specifies that a tribal
application for a Secretarial Determination may be submitted at the same time as the26
application to have the land taken into trust. The regulation includes: (1) a
definition of “surrounding community” that covers local governments and tribes27
within a 25-mile radius; (2) detailed requirements as to projections that must
accompany the application respecting benefits to the tribe and local community,28
potential detrimental effects, and proposals to mitigate any detrimental impacts. In
addition to projected benefits and detrimental impacts, the application for the
Secretarial Determination must include: (1) proof of present ownership and title
22 25 C.F.R. § 292.26 (this and subsequent references to 25 C.F.R. Part 292 are to the
version published in 73 Federal Register 29354, 29375). The regulation specifies that it
“shall not apply to applicable agency actions when, before the effective date ... the
Department or the National Indian Gaming Commission (NIGC) issued a written opinion
regarding the applicability of 25 U.S.C. § 2719 for land to be used for a particular gaming
establishment, provided that the Department or the NIGC retains full discretion to qualify,
withdraw or modify such opinions.” 25 C.F.R. § 292.26(b).
23 25 C.F.R. § 292.3.
24 25 C.F.R. §§ 292.13 - 24.
25 25 C.F.R. § 292.20. The letter rule stipulates topics which recipients are to be asked to
address in their comments; these parallel the potential detrimental effect factors which the
tribe must address in its application. 25 C.F.R. §§ 292.20 (b) (1) - (6) (consultation letter);
26 25 C.F.R. § 292.15.
27 25 C.F.R. § 292.2.
28 25C.F.R. §§ 292.17 - 18.
status of the land; (2) any approved gaming ordinance, tribal organic documents, or
gaming management contract; (3) distance of the land from any tribal reservation or
trust lands and from the tribal governmental headquarters; and (4) the class III
gaming compact, if one has been negotiated, otherwise, the proposed scope,
including size, of the gaming operation.29
Among the detailed information which an application must contain on the
projected benefits of the proposed gaming establishment are projections about
income, tribal employment, benefits to the relationship with the non-Indian
community; distance from the tribal government’s location; and evidence of
“significant historical connections, if any, to the land.”30 The rule also specifies that
the following types of information may be included to “provide a basis for a
Secretarial Determination”: consulting agreements, financial and loan agreements,
and any other agreements relating to the gaming establishment or the land on which
it will be located.31
For evaluating the potential detrimental impact on the surrounding community,
the rule requires submission of information to satisfy requirements of the National
Environmental Policy Act; it also details a variety of factors that must be addressed
as aspects of the potential impact on the social and economic life of the surrounding
community. For example the application must address anticipated impacts on the
community’s character, land use patterns, economic development, and compulsive
gambling within the community. Costs and potential sources of revenue to mitigate
these effects must be identified. There is also a provision that requires an assessment
of the impact on the “traditional cultural connection to the land” of any other tribe
which has a significant historical connection to the land.32
Upon determining that gaming on the new lands would be in the best interest
of the tribe and not detrimental to the local community, SOI must notify the state’s
governor, who must concur in the determination 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.33
29 25 C.F.R. § 292.16.
30 25 C.F.R. § 292.17. “Significant historical connection” is defined elsewhere to mean
“that the land is located within the boundaries of the tribe’s last reservation under a ratified
or unratified treaty, or a tribe can demonstrate by historical documentation, the existence of
the tribe’s villages, burial grounds, occupancy or subsistence use in the vicinity of the land.”
31 25 C.F.R. § 291.17(j).
32 25 C.F.R. § 292.18.
33 25 C.F.R. § 292.23.
Contiguous Lands. IGRA exempts newly acquired trust lands “within and
contiguous to the boundaries of the reservation of the Indian tribe on October 17,34
1988.” The rule defines “contiguous” to mean “two parcels of land having a
common boundary notwithstanding the existence of non-navigable waters or a public35
road or right-of-way and includes parcels that touch at a point”
Land Claim Settlement. IGRA includes an exception to its prohibition of
gaming on after-acquired lands for “land ... taken into trust as part of ... a settlement
of a land claim.”36 The rule elaborates on this by setting forth three methods by
which land resulting from a land claim may qualify for this exception: (1) the land
may have been the subject of land claim settlement legislation37 ; (2) the land may
have been acquired under the settlement of a land claim executed by the parties,
including the United States, which returns some land to the tribe and “extinguishes
or resolves with finality the claims regarding the land returned”38; or (3) the land may
have been acquired under the settlement of a land claim not executed by the United
States but entered into as a final court order or “is an enforceable agreement that in
either case predates October 17, 1988 and resolves or extinguishes with finality the
land claim at issue.”39
Initial Reservation for A Newly Acknowledged Tribe. IGRA provides
an exception to its prohibition on gaming on after-acquired lands for “lands ... taken
into trust as part of ... the initial reservation of an Indian tribe acknowledged by the
Secretary under the Federal acknowledgment process.”40 To satisfy this exception,
the rule requires that (1) the tribe must have been acknowledged through the
administrative acknowledgment process under 25 C.F.R., Part 83; (2) the tribe must
have no gaming facility under the newly restored lands exception under IGRA; and
(3) the land must be the first proclaimed reservation after acknowledgment.41 If the
tribe has no proclaimed reservation, the tribe must demonstrate its governmental
presence and tribal population in the state and its significant historical connections42
with the area within the state, as well as a modern connection.
34 25 U.S.C. § 2719(a)(1).
35 25 C.F.R. § 292.2.
36 25 U.S.C. § 2719(b)(1)(B)(i).
37 25 C.F.R. § 292.5(a). The rule covers land ‘[a]cquired under a settlement of a land claim
that resolves or extinguishes with finality the tribe’s land claim in whole or in part, thereby
resulting in the alienation or loss of possession of some or all of the lands claimed by the
tribe in legislation enacted by Congress.”
38 25 C.F.R. § 292(5)(B)(1).
39 25 C.F.R. § 292.5.
40 25 U.S.C. § 2719(b)(1)(B)(ii).
41 25 C.F.R. §§ 292.6(a)(b) and (c).
42 25 C.F.R. § 292.6(d). Two modern connections are mentioned, either of which would
qualify: the land must be near where a significant number of tribal members reside; it must
be within a 25-mile radius of tribal headquarters or facilities that have existed at least two
Restored Lands. IGRA provides an exception to its prohibition of gaming
on after-acquired lands for “lands ... taken into trust as part of ... the restoration of43
lands for an Indian tribe that is restored to Federal recognition.” The rule specifies
that the tribe must satisfy three requirements before the restored lands exception may44
be invoked: (1) the tribe must have been federally recognized at one time; (2) it
must have lost its government-to-government relationship with the federal4546
government; and (3) it must have been restored to federal recognition. The lands
must meet certain criteria.47 Trust acquisition of the lands may have been mandated48
by restoration legislation. If trust acquisition is authorized but not mandated by
restoration legislation and the legislation does not specify a particular geographic
area, the rule requires that: (1) the lands must be in the state where the tribe’s
government or population is located; (2) the tribe must demonstrate one or more49
modern connections to the land; (3) it must show significant historical connection
to the land; and (4) there must be a temporal connection between the date of50
acquisition of the land and the date of the tribe’s restoration. Similar requirements
apply to tribes acknowledged under the administrative process, provided they have
not had an initial reservation proclaimed after October 17, 1988. Tribes recognized
years at that location.
43 25 U.S.C. § 2719(b)(1)(B)(iii).
44 The regulation provides a non-exclusive list of four methods by which a tribe may
establish its having been federally recognized: (1) treaty negotiations with the United States;
(2) the existence of a determination by DOI that the tribe could organize under the IRA or
the Oklahoma Indian Welfare Act; (3) federal legislation indicating the existence of a
government-to-government relationship; and (4) acquisition by the United States at one time
of land for the benefit of the tribe. 25 C.F.R. §§ 292.8(a) - (d).
45 Ways of establishing loss of government-to-government relationship that are specified
in the rule are: termination legislation, restoration legislation, and “‘[c]onsistent historical
written documentation from the Federal Government effectively stating that it no longer
recognized a government-to-government relationship with the tribe or its members or taking
action to end the government-to-government relationship.” 25 C.F.R. § 292.9.
46 25 C.F.R. § 292.7. To establish that it has been restored to federal recognition, a tribe
must show: restoration legislation; recognition under the administrative process, 25 C.F.R.,
Part 83; or judicial determination in a settlement agreement entered into by the United
States. 25 C.F.R. § 292.10.
47 25 C.F.R. §§ 292.11 - 12.
48 25 C.F.R. § 292.11(a) (requirements for trust acquisitions for tribes restored by federal
49 Modern connections include: reasonable commuting distance of tribal reservation; if tribe
has no reservation, land must be near where a significant number of tribal members reside;
land must be within a 25-mile radius of where the tribal governmental headquarters have
been for at least two years. 25 C.F.R. § 292.12(a).
50 A temporal relationship may be evidenced by a tribe’s first request for newly acquired
lands since restoration or if the tribe is not gaming on other lands, a request for trust
acquisition within 25 years of restoration. 25 C.F.R. § 292.12(c).
by judicial determination or settlement agreement to which the United States is a
party are also subject to similar requirements.51
On January 4, 2008, DOI issued departmental “Guidance on taking off-
reservation land into trust for gaming purposes” and, based on the criteria in the
guidance, sent letters to approximately 22 tribes either rejecting their applications to
take off-reservation land into trust for Indian gaming or returning them as
incomplete.52 The guidance is premised on the policy prompting the Indian
Reorganization Act of 1934 (IRA),53 which is the basis for the BIA’s authority to take
land into trust for Indian tribes. That policy emphasized the abandonment of the
earlier federal policy of allotment and provided a means for tribes to consolidate
reservation lands.54 The new guidance elaborates on the criteria set forth in up in 25
C.F.R. 151.11(b) which require BIA to scrutinize anticipated benefits from off-
reservation acquisitions and heavily weigh state and local concerns about the
jurisdictional, real property tax, and special assessment tax impacts. A key element
of the guidance is an assessment of how much negative effect there will be on
reservation life if proposed gaming facilities are located farther than “ a commutable
distance from the reservation,” including the assessment of (1) how the on-
reservation unemployment rate will be affected; (2) the effect of any exodus of tribal
members from the reservation on reservation life? (3) if tribal members leave the
reservation, the impact on their descendants in terms of tribal membership and
identification with the tribe; and (4) specific on-reservation benefits of the proposal,
51 25 C.F.R. §§ 292.11(b) (administrative acknowledgment); 292.11(c) (judicial
52 Denial letters were issued to: the Big Lagoon Rancheria, the Chemehuevi Indian Tribe,
the Hannahville Indian Community, the Pueblo of Jemez, the Lac du Flambeau Band of
Lake Superior Chippewa Indians of Wisconsin, the Los Coyotes Band of Cahuilla & Cupeno
Indians, the Mississippi Band of Choctaw Indians, the St. Regis Mohawk Tribe, the
Stockbridge Munsee Community of Wisconsin, the Seneca-Cayuga Tribe of Oklahoma, and
the United Keetoowah Band of Cherokee Indians. In addition BIA notified the following
tribes that their applications were incomplete and no further action would be taken on them
as submitted: Ysleta del Sur Pueblo, Turtle Mountain Band of Chippewa, Muckleshoot
Tribe of Washington, Lower Elwha Tribe, Lac Vieux Desert Band of Lake Superior
Chippewa Indians, Kickapoo Tribe and Sac and Fox Nation, Ho-Chunk Nation, Dry Creek
Rancheria, Colorado River Indian Tribes, Confederated Tribes of the Colville Reservation,
and the Burns Paiute Tribe. Documents may be found at [http://www.indianz.com/News/
53 25 U.S.C. §§ 461 et seq.
54 The specific IRA provision upon which the trust acquisitions rely, however, does not
limit the BIA’s power to take land into trust to lands within existing reservations. It reads
as follows: “The Secretary of the Interior is hereby authorized, in his discretion, to acquire,
through purchase, relinquishment, gift, exchange, or assignment lands, within or without
existing reservations, including otherwise restricted allotments, whether the allottee be
living or deceased, for the purpose of providing lands for Indians.” 25 U.S.C. § 465. There
is another IRA provision, 25 U.S.C. § 467, which specifically permits the SOI to proclaim
“new Indian reservations on lands acquired pursuant” to various IRA provisions, including
including whether jobs will be created. The guidance presumes that state and local
governments at a distance from a reservation will be unfamiliar with Indian trust land
jurisdictional issues and that the distance from the reservation will hamper the
efficiency of tribal government operations. Intergovernmental cooperative
agreements are virtually required as is compatibility with state and local zoning and
land use requirements.
To date, in the 110th Congress, two bills, H.R. 1654 and H.R. 2562, have been
introduced addressing the process by which gaming may be authorized on newly
acquired lands. H.R. 1654 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 newly restored tribes.
H.R. 2562 would require the state legislature as well as the governor to concur in the
SOI two-part determination and eliminate the exceptions for land claim settlements,
initial reservations for newly recognized tribes, and restored lands for newly restored
There are other bills, moreover, which would prohibit gaming in connection
with providing federal recognition to a certain tribe or entity or transferring land to
a particular tribe. Among them are the following:
S. 310 and H.R. 505 would provide a process for federal recognition of a Native
Hawaiian governing entity and preclude gaming by that entity.
S. 375 and H.R. 679 would remove a particular limitation presently applicable
to a parcel of real property in Marion County, Oregon, deeded by the United States
to the Confederated Tribes of Siletz Indians of Oregon and the Confederated Tribes
of the Grand Ronde Community of Oregon, and preclude gaming on the land.
H.R. 28 would transfer certain land in Riverside County, California, and San
Diego County, California, from the Bureau of Land Management to be held in trust
for the Pechanga Band of Luiseno Mission Indians, and restrict the use of the lands
to “protection, preservation, and maintenance of the archaeological, cultural, and
wildlife resources thereon.”
H.R. 65 would provide federal recognition for the Lumbee Tribe and preclude
H.R. 106 would provide federal recognition for the Rappahannock Tribe and
preclude gaming on lands taken into trust for the tribe.
H.R. 673 would direct the SOI to take lands in Yuma County, Arizona, into trust
as part of the reservation of the Cocopah Indian Tribe and prohibit IGRA gaming on
H.R. 1294 would provide federal recognition for six Virginia Indian tribes and
preclude tribal gaming.
H.R. 2176 would ratify a land claim settlement concluded between the Bay
Mills Indian Community and the Governor of Michigan; extinguish that tribe’s claim
to certain lands in Charlotte Beach, Michigan; require the SOI to accept in trust
specified land in Port Huron, Michigan; qualify that land for an exception to IGRA’s
prohibition of gaming on newly acquired land; and ratify the settlement agreement,
which contains clauses typical of some included in class III gaming compacts.
H.R. 3490 would transfer administrative jurisdiction of certain federal lands
from the Bureau of Land Management to the Bureau of Indian Affairs, to take such
lands into trust for nongaming purposes for the Tuolumne Band of Me-Wuk Indians
of the Tuolumne Rancheria.
H.R. 3752 would specify that IGRA would not apply to an Indian tribe until the
tribe has been recognized for not less than 25 years.
H.R. 3787 would require SOI to hold a public hearing in the surrounding
community where land requested to be taken into trust for an Indian tribe is located
in order to ascertain the needs and interests of that surrounding community.
H.R. 4115 would ratify a land claim settlement concluded between the Sault Ste.
Marie Band of Chippewa Indians and the Governor of Michigan; extinguish that
tribe’s claim to certain lands in Charlotte Beach, Michigan; require SOI to accept in
trust in trust a specified parcel in Oswego County, Michigan, and a parcel in
Romulus, Michigan; qualify those parcels for exceptions to IGRA’s prohibition of
gaming on newly acquired lands; and ratify the settlement agreement, which contains
clauses typical of some included in class III gaming compacts and requires approval
for the Oswego County trust acquisition by the Town of Vanderbilt and the Romulus
acquisition by the City of Romulus.