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Land-into-trust for gaming under more scrutiny
Thursday, April 28, 2005

The land-into-trust process came under fire at a Senate hearing on Wednesday as the Interior Department's Inspector General confirmed a probe into the issue and Sen. John McCain (R-Arizona) promised a hearing to address the controversy.

Tribes are acquiring trust lands and using them for gaming under questionable circumstances, McCain said at the Senate Indian Affairs Committee hearing. "I think this is a huge problem," he said.

McCain specifically referred to a Congressional rider that allowed a California tribe to open an off-reservation casino in the Bay Area without obtaining state and federal approval. The designation for gaming "was put into an appropriations bill -- a bizarre situation to say the least," the chairman of the committee said.

Tribes have engaged in other dubious tactics, Inspector General Earl E. Devaney told the committee. He said he has already drafted an audit into a technique that has surfaced in Oklahoma, where tribes have asked the Bureau of Indian Affairs to acquire land for non-gaming purposes only to open a casino at a subsequent date.

The technique allows the tribes to skip a lengthy review process normally required for gaming acquisitions. "That's a problem," he said. "The BIA didn't know it happened."

Devaney characterized his audit as "limited" and didn't mention any tribes by name. But the Chickasaw Nation and at least two other tribes in eastern Oklahoma -- the Cherokee Nation and the Choctaw Nation -- have acquired land under these circumstances, according to previous stories published on Indianz.Com.

"Our recent evaluation of this process found 10 instances in which tribes have converted the use of lands taken into trust after 1988 from non-gaming purposes to gaming purposes without the approval of BIA or NIGC," Devaney said. "Surprisingly, we also learned that neither the BIA or NIGC even had a process for identifying these conversions." In a March 2003 story, Indianz.Com counted 11 Chickasaw Nation gaming facilities that were opened under this practice.

Sen. Tom Coburn (R-Oklahoma), a new member of the committee, agreed that the situation presents a major problem in a state with 39 federally recognized tribes of all sizes. "Trust lands ... determine the winners and losers in Oklahoma," he said. "The fact is," he added, "that it's not necessarily a fair process."

Coburn was elected to the Senate in November amid opposition from politically active tribes like the Cherokee Nation. Without mentioning any by name, he accused these large tribes of hurting smaller tribes -- particularly those in western Oklahoma.

"Those that are in the game want to keep those that are not in the game from being in the game," the conservative Republican said. "I think that is something else that we need to look at."

Other federal witnesses at the hearing also signaled concern with the process. Phil Hogen, the chairman of the National Indian Gaming Commission, promised close scrutiny of proposals to acquire trust lands for gaming that may be located far away from an existing reservation.

"If some developer is the driving force and there really is not a legitimate claim [to the land], we ought to say no in those cases," he testified.

Tom Heffelfinger, the U.S. Attorney for Minnesota and the chair of the Native American Issues subcommittee at the Department of Justice, said the process opens tribes to potentially shady deals. "All the good locations are taken," he told the committee. "The pressure therefore -- because of the amount of money that can be had -- is to identify new lands in which gaming can be operated under some kind of arrangement."

"As those relationships become more and more bizarre, the need for Department of Justice to look into those is going to become greater and greater because of concerns of theft, fraud or abuse," he said.

Devaney suggested that a legislative fix is in order to give the BIA and the NIGC more authority to "monitor and enforce" tribal use of trust lands. "The approval is granted and then after that, nobody monitors to ensure that what was approved is actually happening," he testified.

McCain said these and other land-into-trust issues deserved their own hearing and pledged to hold one in the future. "We would appreciate any legislative recommendations," he told the federal witnesses.

Just last month, the committee held a hearing on the Bay Area casino controversy. McCain supports a bill that would require the Lytton Band of Pomo Indians, the tribe involved in the dispute, to undergo a lengthy review and approval process before opening a gaming establishment on the newly acquired trust land.

Lytton Band Chairwoman Margie Mejia said it would be unfair to subject the tribe to scrutiny. She noted that the tribe lost its land because it was illegally terminated by the U.S. "We did not ask the federal government to take our name and our land," she testified. "But that happened."

Chickasaw Nation Gov. Bill Anoatubby has previously denied any wrongdoing in relation to his tribe's casino sites although he and other former and current tribal officials confirmed their tactics. Anoatubby has since declined to talk about the issue with Indianz.Com. The Chickasaw Nation has the most gaming facilities of any tribe in Oklahoma and more than any other tribe in the country.

Relevant Documents:
Testimony: Oversight Hearing Before the Senate Committee on Indian Affairs on the Regulation of Indian Gaming (April 27, 2005)

Relevant Links:
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS
Land into Trust, National Congress of American Indians - http://www.ncai.org/main/pages/issues/
governance/land_into_trust.asp