BIA Approves Two Gaming Sites, Rejects Two Others

BIA Approves Two Gaming Sites, Rejects Two Others

Gale Courey Toensing
9/2/11

The head of the BIA has approved land into trust applications for two gaming sites in California and rejected two others in California and New Mexico.

Assistant Secretary of the Interior for Indian Affairs Larry Echo Hawk and Deputy Assistant Del Laverdure announced the decisions in a press call today, September 2, and issued a press release with links to fact sheets on each determination.

Applications for proposed gaming facilities from the Enterprise Rancheria of Maidu Indians in Yuba County, California, and the North Fork Rancheria of Mono Indians in Madera County, California, were approved while two negative decisions were issued on applications from the Guidiville Band of Pomo Indians in California, and the Pueblo of Jemez in New Mexico.

“We understand gaming applications can generate strong feelings on many sides, but it is our job to focus on the law and to ensure that we have a clear, sound and thorough process for reviewing those proposals,” Echo Hawk said. “Our existing regulations provide clear and adequate standards for reviewing tribal applications. This is one of the reasons I recently rescinded what is known as the ‘commutability memo’ issued by the previous administration and announced the department would move forward in reviewing pending off reservation gaming applications under existing regulations.”  The ‘commutability memo’ Echo Hawk rescinded in June was issued in 2008 and said, among other things, that tribes could not develop casinos on off reservation land that was not within “commutable distance” of the reservation. It didn’t define “commutable.”

But commutability continues to play a factor in approving off reservation gaming applications.  “Under our regulations we look at whether a parcel is within reasonable commuting distance from its reservation,” Laverdure said. And the further away it is, the more scrutiny the applications gets, he said.

The Enterprise Rancheria wants to operate a gaming facility on 40 acres of land in Yuba, County, California, which is 36 miles south of the tribe’s headquarters in Oroville in Butte County.  “The gaming facility would only be 36 miles from its government headquarters, allowing the Tribe’s government to exercise governmental power over the gaming site,” Echo Hawk said. The Enterprise Rancheria has around 800 members and currently only 40 acres of land in trust, which have been held in trust since 1915 and are currently used for residential purposes, according to the fact sheet. The proposed gaming site is approximately 40 miles north of Sacramento, CA.  The Tribe originally submitted its application in 2002. The proposed facility would include 1,700 machines, and an eight-story/170 room hotel. The BIA estimates the casino would yield annual net revenues of $46.2 million by year seven, with $19.3 million in cash available to the Tribe’s government in year seven.

The North Fork Rancheria of Mono Indians is proposing to operate a gaming facility with 2,500 gaming machines and a 200-room hotel on 305 acres of land in Madera County, California – 36 miles southwest of the tribe’s headquarters in North Fork, and 38 miles driving distance from its existing trust lands. The North Fork Rancheria has 1,750 members and currently has only 80 acres of land in trust, located in the Sierra Nevada foothills, four miles east of the town of North Fork, CA. Those lands are currently used for residential purposes. The BIA estimates that the casino would generate net revenues of $53.8 million by year seven, with $19 million in cash available to the Tribe’s government in year seven.

Under the Indian Gaming Regulatory Act, the governor has veto power over the land into trust acquisition. The governor of California has one year to concur in Echo Hawk’s determinations on the Enterprise Rancheria and the North Fork Rancheria before the parcels can be acquired in trust for each tribe to conduct gaming. If the governor does not concur in the Assistant Secretary’s determination for each tribe, or if he simply does not respond to a request to concur, then the tribes may not conduct gaming on the proposed site.

Commutability was a factor in the BIA’s decision to decline to take land into trust for both the Guidiville Band of Pomo Indian and the Pueblo of Jemez . The Guidiville Band of Pomo Indians had sought to develop a gaming facility in Richmond, California, more than 100 miles from its existing tribal lands in Mendocino County. The Pueblo of Jemez proposed a casino in Dona Ana County near the New Mexico-Texas border almost 300 miles away from its reservation in northwest of Albuquerque.

“We have closely reviewed the proposals from the Guidiville Band of Pomo Indians and the Pueblo of Jemez and have determined that they do not meet the requirements under the law necessary for approval,” said Echo Hawk. “The Guidiville Band’s application did not satisfy many of the requirements to develop a gaming facility at that particular site. With the Pueblo of Jemez, we had significant concerns about the Tribe’s ability to effectively exercise jurisdiction over a parcel nearly 300 miles from its existing reservation.”

The Indian Gaming Regulatory Act (IGRA) generally prohibits tribes from conducting gaming on lands acquired after 1988 when the law was enacted, but provides a number of exceptions. The Guidiville Band was seeking land into trust under IGRA’s “restored lands” exception, but could not prove it has both a modern connection and a significant historical connection to the proposed gaming site – two of the requirements to qualify for that exception.  “The Tribe relies upon anecdotal evidence and presumptions relating to the larger Pomo cultural group, rather than historical evidence relating to its own predecessors, to support its claim of a `significant historical connection’ to the site,” Echo Hawk said. The tribe could amend its fee-to-trust application for a different purpose, or submit a new gaming application for other lands, Echo Hawk said.

Two factors doomed the Pueblo of Jemez’s application—governmental power and distance. The IGRA requires a tribe to exercise governmental power over lands in order for them to be “Indian lands” eligible for gaming. In the Jemez’s case, the tribe had enteredinto several intergovernmental agreements with local governments near its proposed casino site in Anthony, New Mexico—300 miles away from its reservation—to exercise governmental power of the proposed trust lands.  The intergovernmental agreements and the 300-mile distance between Jemez’s reservation and its proposed casino would prevent the tribe from properly exercising governmental power over the site, Echo Hawk said. In addition, the assistant secretary noted the tribe was “unlikely to demonstrate a significant historical connection to the site, which, when coupled with the great distance between the site and the Tribe’s reservation, would make it difficult to render a positive Secretarial Determination under our gaming regulations. “

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