In January the U.S. Interior Department rejected 11 applications for off-reservation casinos, and at the same time issued a brief set of guidelines for determining whether off-reservation land can be taken into trust to build tribal casinos.
Last week, many tribes fought back, claiming the Interior Department unfairly changed its rule, in hearings held at the House Committee on Natural Resources.
The new rules, which allow the Secretary of the Interior to use distance from an existing reservation as a condition for land applications, could potentially affect both the Mashpee and Aquinnah Wampanoag tribes, which sent leaders to Washington.
While the Indian Gaming Regulatory Act of 1988 makes an exception for newly-recognized tribes to form a reservation, the Interior secretary is utilizing the Indian Reorganization Act of 1934 to establish the new directive.
Under the Reorganization Act, "off-reservation" is defined as anything that is not on or contiguous to a tribe’s reservation.
The Mashpee Wampanoag tribe in August applied to put land in Middleboro and Mashpee into trust as its initial reservation. But because the new rules are vague, it’s hard to tell if the Mashpee tribe’s Middleboro land plans would be affected, said Kathryn Rand, an Indian gaming expert at the University of North Dakota.
The idea of "reservation shopping," or essentially claiming land best for a casino and asking to put it into trust, is politically controversial, and this memo reflects that, Rand said.
"It’s not entirely clear how what seemed pretty straightforward under IGRA (Indian Gaming Regulatory Act), a newly acquired reservation will function under this test," Rand said. "Will the secretary take into account how far it is from the tribe’s historic land? It’s not clear."
The Mashpee tribe does not believe the issue will affect its application, tribal council spokesman Scott Ferson said.
"The tribe feels comfortable with the application that it has in," Ferson said. "Short of something unreasonable, and there’s no expectation that there will be, it will be fine."
One of the applications that was denied was from the Wisconsin-based Stockbridge-Munsee band of Mohican Indians, who are backed by Sol Kerzner and Len Wolman, the Mashpee tribe’s financial backers.
The Aquinnah Wampanoag tribe, which already has a reservation on Martha’s Vineyard, could also be affected by this new rule. The island tribe is considering building a casino in the western or southeastern portions of the state. If tribal leaders attempt to establish trust land away from their existing Aquinnah reservation instead of applying for one of governor’s proposed commercial casino licenses, the BIA’s new regulations could pose a problem.
The new directive only says that the off-reservation casinos should be within a "commutable distance," but does not define what that is.
Cheryl Andrews-Maltais, chairwoman of the Aquinnah tribe, could not be reached for comment.
The change in guidelines was an attempt to help the department wrangle through its backlog, Assistant Secretary for Indian Affairs Carl Artman told the committee Wednesday.
"We weren’t coming up with new policy, we weren’t coming up with new regulations, it doesn’t create anything new," Artman said. "It simply clarifies ... how they should be looking at these applications when they come in."
In at least one case, with the St. Regis Mohawk tribe, an application for a casino in the Catskills region of New York had all preliminary approvals, including from the state’s governor, and was only hinging on a decision from the secretary of the interior, Chief Lorraine White told the committee.
"It was a complete miscarriage of justice for the department to have created a brand new rule one day and apply it the next as the sole basis for denying our application," White said.
The only recourse for these tribes at this point is to appeal in court or start the process over again, Artman said.