fee to trust

Gaming on Newly Acquired Lands Rule Apparently Not Submitted to GAO

Kate Fort2 Comments

A recent Congressional Research Service (CRS) report detailed the number of agency rules which were not passed on to the Government Accounting Office (GAO).  Hat tip, Constitutional Law Prof Blog.  The report concludes that over 1,000 rules over the past 10 years had not been submitted to the GAO.  The reason for this requirement, according to the CRS report is as follows:

Agency regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established. Therefore, Congress has a vested interest in overseeing the regulations that agencies issue pursuant to those statutes. Because congressional authority over agency rulemaking was believed to have waned in recent decades (while presidential authority over rulemaking had increased), the CRA was enacted in an attempt to reclaim a measure of congressional control.107 Although Congress can learn about the issuance of agency rules in many ways, the requirement in Section 801(a)(1)(A) of the CRA that agencies submit all of their final rules to GAO and Congress before they can take effect helps to ensure that Congress will have an opportunity to review, and possibly disapprove of, agency rules.

Curious, we decided to try to find out if the recent advisory letter turned rule regarding gaming on newly acquired trust lands (with the 25 mile radius or near a “significant number of tribal members” requirement) was one that hasn’t been submitted to the GAO pursuant to the Congressional Review Act.   It appears it is.  25 CFR 292, “Gaming on Trust Lands Acquired After October 17, 1988” does not come up in a search of the GAO’s database Federal Rules Database.

News Article on Grand Traverse Band Fee to Trust Issues

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

PESHAWBESTOWN — A local American Indian tribe wants to expand its reservation.

Nearly 80 acres of additional land in northwest Michigan is a good start.

The Grand Traverse Band of Ottawa and Chippewa Indians acquired a 78-acre parcel in Antrim County’s Milton Township last week.

Tribal Chairman Derek Bailey said the land trust soon will house 22 residential sites for band members.

The recent land acquisition addressed a “fundamental need” for tribal housing located near Turtle Creek Casino in Williamsburg and Grand Traverse Resort & Spa in Acme, Bailey said.

The parcel originally was zoned for agricultural development, said Chris Weinzapfel, Milton Township zoning administrator. But the band spent $1.5 million on road, sewer, water and electrical improvements, in hopes it could obtain residential zoning rights.

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SCIA Trust Acquisition Delay Hearing — Featuring Derek Bailey

Matthew L.M. Fletcher

Via Indianz.

BIA Fee to Trust Handbook — May 2008

Matthew L.M. Fletcher

This has been floating around, so we’ll post it here.

Written Testimony in SCIA Hearing on Trust Land Acquisition Delays

Matthew L.M. Fletcher

From SCIA:

Panel 1
MR. GEORGE SKIBINE
Acting Principal Deputy Assistant Secretary for Indian Affairs, U.S. Department of the Interior, Washington, DC

Accompanied by: MS. VICKI FORREST, Deputy Bureau Director for Trust
Services, Ll.S. Department of the Interior, Washington, DC

Panel 2
MR. CARL J. ARTMAN
Esquire, Professor of Practice, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Arizona

THE HONORABLE DEREK BAILEY
Chairman, Grand Traverse Band of Ottawa and Chippewa Ind ians, Peshawbestown, Michigan

SCIA to Consider the Carcieri Fix and Akaka Bills Tomorrow

Matthew L.M. Fletcher

Here is the agenda for tomorrow’s meeting, from SCIA.

SCIA Hearing on Trust Acquisitions — Witness List

Matthew L.M. Fletcher

From the SCIA (there might be a typo down there… 🙂):

Panel 1
MR. GEORGE SKIBINE
Acting Principal Deputy Assistant Secretary for Indian Affairs, U.S. Department of the Interior, Washington, DC

Accompanied by: MS. VICKI FORREST, Deputy Bureau Director for Trust
Services, Ll.S. Department of the Interior, Washington, DC

Panel 2
THE HONORABLE CARL J. ARTMAN
Updated: Esquire, Professor of Practice, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Arizona

THE HONORABLE DEREK BAILEY
Chairman, Grand Traverse Band of Ottawa and Chippewa Ind ians, Peshawbestown, Michigan

Fitch Ratings Waiting for Federal Government to Make Indian Gaming Decisions

Matthew L.M. Fletcher

From dBusinessNews (via Pechanga):

In a special report released today (Nov 2009 Fitch Report), Fitch Ratings says there are two important issues that will determine the future for the Native American gaming industry’s expansion: whether tribes will have access to the debt capital needed to finance growth, and federal government policy decisions regarding approvals for future Native American gaming developments on off-reservation lands. Investor sentiment on the Native American gaming sector has soured in this economic downturn, as poor trends in regional gaming markets pressure credit profiles, three tribes defaulted on bond payments in 2009, and the Mashantucket Pequot Tribal Nation recently announced a forbearance agreement with its senior lenders after the Tribal Chairman made comments highlighting investors’ concerns about the unique legal issues involved in lending to a tribal government.

Fitch believes many investors are likely to take a ‘wait-and-see’ approach with respect to these ongoing debt workout and restructuring efforts before committing significant additional funds to the sector, making it unlikely a tribe would be successful in arranging debt financing for a large-scale greenfield casino development at the present time (for additional information on this topic see Fitch research ‘Managing Through Distress: Considerations for Investors in Distressed Native American Gaming Credits’, dated May 11, 2009). However, over the longer term, the federal government’s policy stance with respect to approvals for off-reservation gaming projects will be the most important factor shaping the future growth path of the Native American gaming industry.

‘Right now the Native American gaming sector is feeling the effects of poor gaming operating trends and unfavorable credit market conditions, but those issues are likely to be less limiting down the road assuming an economic recovery and improved investor sentiment on the sector,’ said Megan Neuburger, Director at Fitch. ‘Actions taken by the federal government under the Bush Administration in 2008 were clearly an effort to curb off-reservation gaming expansion. Department of Interior officials have recently made public comments that they are in the process of reviewing their policy on off-reservation gaming approvals, and we’re closely following the developments to assess their impact on the industry.’

According to the report, since the promulgation of the Indian Gaming Regulatory Act (IGRA) set the framework for the Native American gaming industry in 1988, there has been significant political controversy. Proponents of expansion tout the benefits of economic development, while opponents decry ‘reservation shopping’ and the ills associated with the expansion of casino gaming. While it has never been easy for a tribe to obtain the regulatory approvals necessary for gaming on off-reservation land, recent developments have made the likelihood of a successful outcome even more remote. These developments include guidance and a rule published by the U.S. Department of the Interior in 2008, as well as the 2009 U.S. Supreme Court ruling in Carcieri v. Salazar.

In the special report, Fitch explains these developments, the associated impact on the approval process, and the actions the federal government may take under the Obama Administration with respect to these issues, as well as providing a summary of the implications for the credit outlook for the sector. ‘Native American Gaming Insights: Off-Reservation Gaming Approvals: How Will the Feds Play Their Hand?’ is now available on Fitch’s web site at ‘www.fitchratings.com’.

Additional information is available at ‘www.fitchratings.com’.

Off-Reservation Gaming Review Close to Completion

Matthew L.M. Fletcher

From ICT:

NEW YORK – Sen. Charles Schumer, D-N.Y., says the Obama administration will make a critical decision on off-reservation gaming policy in the coming weeks.

Schumer told the Times Herald Online that he recently spoke with Interior Secretary Ken Salazar, who is reviewing a “guidance memorandum” issued by former Interior Secretary Dirk Kempthorne in January 2008. The controversial guidance placed a new hurdle on land into trust applications for gaming – a “commutability” standard under which the applied-for land is to be considered in light of its distance from a nation’s reservation, regardless of whether it is within a nation’s historical territories.

The memo caused an uproar across Indian country, not only because distance isn’t mentioned in the Indian Gaming Regulatory Act, but also because the guidance effectively amounted to a new regulation that had been promulgated without consultation with the nations, raising memories of the days of federal paternalism and policies to keep Indians on reservations.
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Bill Rice on the Carcieri Fix in ICT

Matthew L.M. Fletcher

from ICT:

Recent newspaper reports suggest that there is concern in Rhode Island, and perhaps elsewhere, that aCarcieri fix to the Indian Reorganization Act of 1934 will allow tribes to acquire trust land wherever they choose, resulting in tribes building Indian casinos willy-nilly outside their reservations and without appropriate input from the state. These reports appear designed to create unjustified fears of an Indian gaming boogey man hiding in a closet of the Carcieri fix.

In February, the Supreme Court interpreted the IRA as granting the secretary of the Interior authority to acquire land only for tribes under federal supervision when the IRA was enacted in 1934 – thereby creating “second class” tribes of those brought under federal authority after 1934.

As a result of this litigation, a development meant to provide homes for tribal members has sat uncompleted and deteriorating for many years. The Carcieri fix would simply put all federally recognized tribes on equal footing, creating an even playing field in matters of land acquisition. This would, in turn, allow the secretary of the Interior to acquire land from willing sellers to meet the needs of Indian tribes and their people. All peoples are entitled to peacefully acquire lands for homes, sustenance, and to pursue their social, cultural and economic development. Indian peoples are not excepted from this rule.

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