U.S. Interior Department efforts to fix a “broken” system of federal recognition and assist American Indian tribes seeking new lands for gambling and government purposes are being challenged by some tribes and anti-gambling critics who fear an explosion of new casinos.
Tribal governments largely applaud efforts by Kevin Washburn (left), assistant secretary for Indian affairs, to revise Interior’s Office of Federal Acknowledgement (OFA) recognition process, which can last up to 30 years and cost indigenous groups several million dollars.
Tribal leaders are also pleased that Interior has broken through a logjam of land/trust petitions caused by a virtual moratorium on applications during the George W. Bush administration.
But efforts by Interior and Washburn to facilitate tribes have generated some criticism.
Interior since 2010 has processed more than 1,000 land/trust applications, placing into federal trust more than 200,000 acres for housing, hospitals and health clinics and other governmental services.
Interior under the Obama administration also rescinded the controversial “commutability” memo by former Assistant Secretary Carl Artman, which stymied tribal efforts to place newly acquired lands in federal trust for casinos.
Interior in the past three years has processed 19 applications from tribes seeking to place land in trust for casinos, approving 12 and rejecting seven.
Perhaps the most controversial decision was the approval in August of an application by the Menominee Indian Tribe of Wisconsin to establish a casino in Kenosha, 160 miles from its upstate reservation. The project still needs approval from Governor Scott Walker.
The decision surprised industry observers who believed that despite rescinding the Artman memo, Interior would limit casinos distant from tribal reservations.
Calling the decision “difficult,” Washburn said there was precedence for off-reservation casinos in Wisconsin, noting the Forest County Potawatomi in 1991 opened a casino in Milwaukee, 200 miles south of its upstate reservation.
A number of tribal leaders are critical not only of the Kenosha ruling, but Interior’s more flexible policy toward land/trust applications for casinos.
John Tahsuda, principal of Navigators Global, a tribal government relations firm, suggests amending the Indian Gaming Regulatory Act to provide Interior with clear rules on land/trust decisions.
“The notion you can make rules malleable is what causes the average Joe to distrust the system,” Tahsuda says.
“I understand the fear of opening (IGRA) and having harmful legislation put in its place,” he says. “Nobody wants to amend IGRA. But major laws are amended routinely. Often and over time you need to adjust laws to meet changing circumstances.”
Former Interior official Bryan Newland supports the Kenosha ruling.
“I thought it was a good decision,” Newland told Gambling Compliance.com. “It was consistent with department policy to look at each application on an individual basis.
“Tribal gaming in Wisconsin is unique and different from tribal gaming in Michigan, California and elsewhere. I don’t think you can look at any one decision and think that it spells a precedent for any future decision.”
The 8,500-member Menominee Tribe has a high rate of poverty and unemployment. And elected officials in Kenosha are strongly behind the $800 million project, which is expected to create thousands of jobs.
Indigenous groups can achieve federal recognition through Congress, the federal courts and the OFA.
But Congress has long regarded the OFA process as long, costly and often unfair. Experts in Indian law contend the process has grown more convoluted, lengthy and expensive since passage of IGRA made the land/trust applications more controversial.
Washburn’s “discussion” draft of amendments to the OFA regulations was applauded by most tribal leaders.
Under one proposed rule change, tribes would only have to trace their ancestry and continuity as a tribal organization back to 1934. Tribes must now show continuity and ancestry dating back to “first contact.”
The discussion draft also calls for eliminating a requirement that an “external entity” be used to identify the group as Indian since 1900.
The relationship between indigenous groups and non-Indian agencies has historically been a tenuous one, particularly for tribes in colonial times prior to the establishment of the United States.
Senator Richard Blumenthal of Connecticut and others criticized the effort, claiming easing the rules will lead to more Indian casinos.
“This is a real watershed change, an upheaval moment in the whole tribal recognition process to lower the bar and dilute the standards,” Blumenthal told News Time.com.
“It would open the floodgates,” Blumenthal said. “This could enable some groups to achieve federal recognition without meeting the standards and criteria that other tribes had to meet.”
Washburn downplayed the criticism.
“We want to be getting worthy tribes through the process,” he said. “More important, it is simply the matter of justice. We have to come up with just results, results that people trust.”