Land to trust 'hysteria' threatens to backfire

Jim Adams
5/25/05

WASHINGTON - As debate over land into trust reached a high pitch in two
congressional hearings, some federal officials and tribal leaders expressed
puzzlement over what one called a "hysteria," and the agitation threatened
to rebound on the interests of tribes who fanned the issue in the first
place.

Doubts about the issue and the wisdom of writing bills about it came to the
front at a recent hearing of the House Resources Committee, whose chairman,
Richard Pombo, R-Calif., has prepared a "discussion draft bill" on the
taking of off-reservation lands for tribal gaming.

Wade Blackdeer, vice chairman of the Ho-Chunk Nation of Wisconsin,
testified, "This legislation appears designed to address a problem that
does not exist."

"Headlines and political grandstanding notwithstanding," he said, "tribes
are not, for all intents and purposes, able to engage in off-reservation
gaming."

Several tribal witnesses at the April 27 session recounted the enormous
bureaucratic barriers to an application for trust status under the Indian
Gaming Regulatory Act of 1988 (IGRA). The checklist for the "two-part
determination" application runs 13 pages, said Chief Charles Enyart of the
Eastern Shawnee Tribe of Oklahoma. It requires a "thorough environmental
review" and consultation with nearby tribes and local governments, as well
as support by the state governor.

"Indian gaming is not 'out of control,'" Enyart said. "The land acquisition
process is long and difficult, and there are more than adequate safeguards
against the establishment of unwanted gaming operations."

(A U.S. Circuit Court decision underscored his argument just a week after
he spoke. On May 3, the 10th Circuit ruled against a claim of the Shawnee
Tribe, another band recognized in 2000, for the former Sunflower Army
Ammunition Plant in Kansas, located within former reservation boundaries of
the Absentee Shawnee.

Since Congress had already passed a bill giving the land to the local
county economic development corporation, the claim was moot, said the
court.)

Separately, Paula Hart of the BIA's Office of Indian Gaming debunked the
issue at a recent conference of journalists sponsored by Syracuse
University's Center for Indigenous Law, Governance and Citizenship. After
outlining the "two-part determination" process and observing that only
three tribes had successfully completed it in its entire history, she
added, "I have to say I think it's hysteria."

She said, however, that the bulk of the existing off-reservation casinos -
about a dozen - had gone through other procedures. Some, such as the highly
successful Seneca Nation of Indians' Class III casino in Niagara Falls,
fell under an exception for land claims settlements. Others had been
approved by congressional legislation.

But Enyart said in his testimony that only 33 gaming-related trust
applications were currently pending out more than 560 tribes, and that
since 1988 only 36 had been approved. "These numbers certainly do not
justify a major overhaul of IGRA," he said.

The issue generated very real emotions, however, and some internal
contradictions. Even while opposing Pombo's draft, Blackdeer recounted
rivalries between the Ho-Chunk and other Wisconsin tribes over locating
casinos. He criticized the competing tribes for attempting to "leap-frog"
over Ho-Chunk territory to gain access to its market population.

Blackdeer said the competition caused his own tribe "to do precisely what
it does not wish to do: attempt to establish gaming in areas to which it
may have no historic connection, with the potential effect of reducing the
market of an established gaming facility." He suggested some new
restrictions in Interior regulations. Without them, he said, "the scramble
for markets will continue."

Pombo excluded the New York state land claims situation from his hearing,
sparing the session bewildering new layers of complexity. In the intense
and fluid aftermath of the U.S. Supreme Court ruling in the City of
Sherrill v. Oneida Indian Nation of New York case and Gov. George Pataki's
withdrawal of his comprehensive settlement bill, the land into trust issue
has taken several wild bounces.

New York-based Iroquois (Haudenosaunee) tribes with existing casinos
originally protested Pataki's offer of new Catskills casinos to several
Iroquois expatriate nations who had relocated out of state in the 19th
century (and to a non-Iroquois nation also pressing a land claim). Along
with Midwestern and California tribes, they lobbied the issue in Congress.

But the Sherrill decision undercut their own "unilateral" claim of
sovereignty over repurchased land, forcing them to apply to the Interior
Department. For historical reasons, the federal government holds no Indian
trust land in New York state; existing reservations have "restricted fee"
status preventing their alienation. To complicate things further, Interior
has separate offices for gaming land and for non-gaming tribal land. Both
the Oneida Indian Nation and the Cayuga Nation of Indians have filed
applications to make their recently acquired land "Indian country,"
although they have not made public what track or mix of tracks they are
following.

In the meantime, their state and local neighbors have turned the land into
trust issue against them. Pataki and several upstate counties are opposing
the applications. The town of Verona, adjoining the Oneida's Turning Stone
Resort and Casino, has said it will issue a tax bill this year for about
$400,000 for the complex, which it has assessing at $378 million.

Cayuga and Madison counties are trying to exert regulatory control over
gasoline stations owned by the Cayuga's LakeSide Enterprises, threatening
to enforce a weights and measures inspection of the pumps. Cayuga lawyer
Daniel French is attempting to negotiate an arrangement that would not cede
tribal sovereignty.

So far the Sherrill decision has not legally affected the Cayuga's status.
That nation is currently operating two small Class II casinos under the
protection of a pre-Sherrill District Court injunction declaring its land
"Indian country." The 2nd Circuit Court of Appeals recently remanded their
case to the district judge for a rehearing in light of Sherrill, but left
the injunction in place.

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