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Commentary

Do Warring Tribes Go Against The Purposes of IGRA?

Author: Rob Waldroup

I. Introduction

The creation of Indian casinos and the processes under which they are established has created a paradox: many tribes attempt to enter into the multi-billion dollar business venture of Indian gaming, only to be blocked through legal and administrative challenges made by other tribes fearing competition. The purpose behind allowing the creation of Indian casinos in the United States is first and foremost to “provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”[1] Allowing inter-tribal conflicts to interfere with that purpose undermines tribal sovereignty for every tribe.

A look into a current situation (the case of the Catawba Nation attempting to enter the business of Indian gaming through petitioning the Department of the Interior (DOI) to take land into trust for gaming purposes) will show how these inter-tribal conflicts begin and the toll they take on less-prosperous tribes. The process of taking land into trust for gaming purposes is arduous enough, and it is made nearly impossible when other tribes add a legal challenge against affirmative decisions for the tribe who is petitioning.

Indian gaming is not a new concept. Some pre-contact dice games have been played since time-immemorial.[2] The Indian Gaming Regulatory Act, the Federal legislation that acknowledges the ability of Federally-Recognized Indian Tribes to conduct various types of gaming on Federal Indian Trust Land, is the modern application of an ancient tradition among Native American Tribes. In October of 1988, the Indian Gaming Regulatory Act (IGRA) was enacted by Congress.[3] The purpose of IGRA is to regulate the conduct of gaming on “Indian Lands,” as it is defined in the Act.[4] IGRA also establishes the National Indian Gaming Commission (NIGC) and the regulatory structure behind Indian Gaming in the United States. [5] The NIGC may oversee the regulation of Indian Gaming and review pending applications from federally recognized tribes that want to conduct Class III (casino-style gaming) on lands held in trust by the Department of the Interior (DOI).[6]

Among the many provisions of IGRA, there exists a prohibition on certain gaming occurring on lands acquired after the passage of IGRA.[7] This prohibition does not apply to lands acquired after 1988 if said lands are taken into trust by the Secretary of the Department of the Interior as part of “the restoration of lands for an Indian Tribe restored to federal recognition.”[8] Gaming may occur on newly acquired lands if certain criteria for the exception are met.[9]The “Restored Lands” Exception is a perfect example of just how arduous the process is for a tribe who would like to build a casino gaming enterprise. With the added costs and pressures caused from litigating challenges made by other tribes, it discourages tribes who could otherwise meet the exceptions of § 2719 to pursue Indian gaming.

Discussing the regulatory framework of the Restored Lands exception and how that framework is applied through the lens of the Catawba Indian Nation trust acquisition for gaming purposes will elucidate the major obstacles for tribes who are trying to fulfill the purposes of IGRA by going through the processes. Many tribes who attempt the processes of taking fee-land into trust for gaming purposes are met with extreme opposition, many times stemming from legal challenges made by other tribes. These inter-tribal conflicts go against the purposes of IGRA all in the name of financial gain.

II. Mapping The Regulatory Framework of The Restored Lands Exception

Understanding the Restored Lands exception is vital to grasping the difficulty that the regulatory framework entails for the majority of tribes who attempt to take land into trust for gaming purposes.[10] After gaining that understanding, it will show how debilitating additional challenges, especially those made by other tribes who already have the financial backing of gaming revenue, truly are for the tribe who is petitioning to enter the business.

The Restored Lands exception of IGRA is rooted in the Code of Federal Regulations, Chapter 25, Sections 292.7-12. These regulations set out the criteria that must be met in order for a tribe to petition for fee-land to be taken into trust for gaming under this exception. Section 292.7 details the general process through which a tribe must establish that they meet the requirements for their proposed acquisition to be taken into trust under the Restored Lands exception. The tribe must have been federally recognized, proven by the criteria in 292.8. The tribe must have at some time later lost its government to government relationship via one of the methods of 292.9. The tribe must have regained its government to government relationship by the means specified in 292.10. The acquired lands must meet the criteria in 292.11. There are also some key definitions that must be understood in order to get the full picture of the criteria which is discussed within the regulatory framework.

Only Indian Tribes are included under the umbrella of IGRA, and thus the only groups eligible to qualify for the Restored Lands exception. As defined in IGRA, the term “Indian Tribe” is defined as any tribe, band, nation, or other organized group or community of Indians.[11] Those Indian Tribes must also be recognized as eligible by the Secretary of the Department of the Interior for the special programs and services provided by the United States to Indians because of their status as Indians.[12] The tribe must also be recognized as having the powers of self-government.[13]

Indian gaming may only be conducted on Indian Lands, as they are defined under IGRA. “Indian Lands” is defined in IGRA as all lands within the limits of any Indian reservation.[14] It also includes those lands whose title is either held in trust by the United States for the benefit of any Indian tribe or individual or those subject to restriction against alienation and over which an Indian tribe exercises governmental power.[15]

The petitioning tribe looking to have a parcel taken into trust through the Restored Lands exception must have been “Federally Recognized” at some point in their history. “Federally Recognized” is defined specifically as it contributes to the process of being granted the Restored Lands exception.[16] For a tribe to have been federally recognized, for the purposes of meeting the Restored Lands exception, the tribe must have: i) entered into treaty negotiations with the United States at one time;[17] ii) been determined by the DOI to be able to organize under the Indian Reorganization Act or Oklahoma Indian Welfare Act;[18] iii) had Congress enact legislation specific to, or at least including, the tribe indicating that a government-government relationship existed;[19] iv) had the United States acquire land into trust for the tribe’s benefit in the past;[20] v) provide some other evidence that shows that a government-government relationship exists between the tribe and the United States federal government.[21]

Next, A tribe must also show that it lost its government-government relationship. To prove this, a tribe must provide proof of legislative termination,[22] or termination demonstrated by historical documents which show that the Executive Branch no longer recognizes a government-government relationship with the tribe or its members.[23]

Finally, The tribe must then be restored to Federal recognition. To prove this restoration, a tribe must show: congressional enactment of legislation that restores the government-government relationship;[24] the tribe has been recognized through the Federal Acknowledgment Process;[25] or there has been a judicial determination/court approved judgement that was entered into by the United States and provides that the relationship was never terminated despite claims from the Executive Branch.[26]

For a tribe’s petitioned parcel to be taken into trust under the Restored Lands exception there must be demonstrated restoration legislation, and that legislation requires or authorizes the Secretary of the DOI to take land into trust within a specific area and the lands are within that geographic area.[27] If there is no restoration legislation, or if geographic parameters do not exist, the tribe must have modern and significant historical connection to the parcel. There must also exist a temporal connection between the date of the acquisition and the tribe’s restoration.[28]If the tribe is acknowledged under the Federal Acknowledgement Process, there cannot be an initial reservation proclaimed after the IGRA’s enactment.[29] In other words, the tribe seeking to be granted the Restored Lands exception cannot have had their original reservation granted to them after 1988, unless Congressional recognition has been given.[30]

A modern connection to the land is established if a majority of the tribe’s members reside within 50 miles of the parcel, or if the tribe’s headquarters are located within 25 miles of the land.[31] A significant historical connection is established if the parcel is located within the tribe’s last reservation via a treaty (ratified or unratified), or if there are documented historical connections.[32] Those historical connections are weighted more heavily if there is documentation by the Bureau of Indian Affairs, DOI, Indian Claims Commission, other Federal court, or Congress.[33]

A temporal connection must also exist between the date of the parcel’s acquisition and the tribe’s restoration. That temporal connection is established by evidencing that the land is the first land that the tribe has acquired since being restored to Federal recognition.[34] Alternatively, the tribe must have submitted an application to take land into trust within 25 years of their restoration.[35] The decision to accept the trust acquisition involves a system of administrative processes described in a guide written by the DOI.[36]  The land to be acquired must also be nearby the tribe’s existing reservation.[37]The tribe is required to provide an economic development plan if the land that is to be acquired will be used for business purposes.[38]

The difficulties in this process extend beyond the regulatory framework.  The journey of the Catawba Indian Nation to get a parcel known as the “King’s Mountain Site” in Kings Mountain, North Carolina taken into trust for gaming purposes is a long one. It started when The Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 restored the Catawba Indian Nation’s federal recognition.[39] The Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 is the culmination of a century-long struggle against the State of South Carolina over aboriginal land claims.[40] The 1993 Act, which restored the Catawba Indian Nation’s Federal Recognition, made IGRA wholly inapplicable to the Catawba Indian Tribe.[41] This was later retracted in a 2019 bill that “clarified” that the tribe was entitled to have land taken into trust for gaming purposes under the Restored Lands exception.[42] The 2019 Senate bill also authorized the DOI to take the parcel into trust (the Kings Mountain Site), for the purposes of gaming.[43]

III. The Catawba Indian Nation And Their Trust Acquisition Under The Restored Lands Exception Exemplifies The Difficulties of The Regulatory Process

The difficulties of the Catawba weaving their way through the regulatory framework of the Restored Lands exception started in 2013 when the Catawba submitted what is known as their “Mandatory Application” to the Secretary of the Interior in order to have the Kings Mountain Site taken into trust, pursuant to the 1993 Catawba Settlement Act.[44] However, on March 23, 2018 (five years later) the Deputy Secretary of the Interior issued a memorandum detailing that the mandatory authority of the DOI did not extend to the Site because it is outside of South Carolina.[45] The Deputy Secretary further explained that the mandatory acquisition provision between the Catawba and South Carolina did not extend to North Carolina since it was not part of the agreement.[46] The Catawba then retracted the Mandatory Application on April 4, 2018.[47] On September 17, 2018, the Catawba submitted what is known as the “Discretionary Application” from which the Site was taken into trust.[48] A Discretionary Application is one in which the discretionary authority of the Secretary of the DOI (sourced in the Indian Reorganization Act) is called upon to decide whether to take a parcel into trust or not.

On March 12, 2020 the Department of The Interior (DOI) accepted the proposal of the Catawba Indian Nation to take approximately 16.6 acres of land in Kings Mountain, North Carolina, into trust for the benefit of the tribe and for the purpose of gaming.[49] Their decision was based on the determination that the land falls under the Restored Lands exception.[50] This is detailed by the DOI in the decision by showing that the Catawba have completed the 3 phases of recognition required to meet the Restored Lands exception: initial Federal Recognition, dissolution of that Recognition, and finally, Restoration of Federal Recognition.

IV. The Eastern Band of Cherokee Indians’ Challenge Goes Against The Purpose of IGRA

The intertribal conflicts that result from DOI decisions create competitions between tribes for gaming revenue. The tribe who is petitioning to have a parcel taken into trust for the purposes of gaming is the only party who would want a more efficient and streamline process. Other nearby tribes see trust acquisitions for gaming as potential competition and often challenge the DOI decision to approve an acquisition. IGRA’s purpose is “to promote tribal economic development, tribal self-sufficiency, and strong tribal government.”[51] When tribes initiate legal challenges against each other in the context of gaming it undermines the purpose of IGRA because the tribe who is looking to gain economic independence is prevented from doing so by another tribe. The DOI decision on the Kings Mountain Site was met with one of these inter-tribal challenges, namely from the Eastern Band of Cherokee Indians (EBCI).[52]

The EBCI complaint lists reasons for which the DOI erred in their determination to accept the King’s Mountain Site into trust for the Catawba Indian Nation.[53] The EBCI maintains that: i) the King’s Mountain Site falls within the EBCI’s traditional aboriginal territory;[54] ii) that the DOI failed to consult the EBCI;[55] iii) that an Environmental Impact Survey was not properly done on the site;[56] iv) the EBCI was not consulted in accordance with the National Historic Preservation Act (NHPA); and, v) the 1993 Catawba Settlement Act has substantive issues which were not addressed in the DOI decision.[57]

After filing the complaint, the EBCI then filed an injunction in District Court for the District of Columbia (D.C.) to prevent the DOI from taking the King’s Mountain site into trust for the Catawba Indian Nation.[58] The Court denied the injunction because it did not find that there would be irreparable harm.[59] The EBCI had to show that the claims raised in their complaint amount to an irreparable harm, which the District Court found was not shown.[60]

While the claims alleged by the EBCI have merit in their own right, a larger issue is the foreseen economic impact that a Catawba gaming enterprise would have on the EBCI’s gaming revenue. The EBCI operates the only Indian gaming enterprise within North Carolina and a 5-state radius.[61] Having a monopoly on this territory undermines the purpose of IGRA by allowing a tribe who has enjoyed gaming revenue for over 20 years to bury an impoverished tribe like the Catawba Indian Nation in legal fees that delay the opportunity for tribal self-sufficiency. 

The DOI decision found that the King’s Mountain Site and the Catawba met the criteria detailed in the relevant regulations for the Restored Lands exception of IGRA.[62] Further, the DOI decision is shored up by the 2019 Senate Bill that affirmed the Catawba Indian Nation’s right to land in North Carolina, which falls within the service area detailed in the bill.[63]This is furthered by the finding that the Catawba would benefit greatly from the economic gains brought by gaming revenue. The DOI found that the significant unemployment of the Tribe’s members, the lack of a prosperous source of revenue for the Tribe, the Tribe’s dependency on funding, and lack of monies for proper infrastructure funding all could be remedied by revenue gotten from gaming.[64]

The amount of time and money, as a result of drawn-out litigation that the EBCI has cost the Catawba, on top of the time that the DOI has made the Catawba wait cannot be stressed enough.

V. Conclusion

Tribes should support each other in trying to shore up their own tribal sovereignty. Supporting other tribes who are going through to the process to gain economic independence from the federal government would be a great place to start. IGRA was drafted in theory to facilitate this, as seen in its policy goals’ section.[65]

The socio-economic impacts of gaming on a tribe who has been previously impoverished should be explored to truly give weight to the impact that gaming revenue can have. Allowing other tribes to impede a tribe from becoming self-sufficient through gaming revenue threatens tribal sovereignty of all tribes, and undermines the purposes of IGRA.


[1]  Indian Gaming Regulatory Act of 1988 Public Law 100-497-Oct. 17, 1988 100th Congress Sec. 2701; 25 U.S.C. ch. 29 at § 2701 et seq., 2702(1), (1988). 

[2] See, Christine Dell’Amore, Prehistoric Dice Boards Found––Oldest Games in America?, National Geographic (10-14-2020), https://www.nationalgeographic.com/news/2010/12/101210-dice-gaming-gambling-native-american-indian-casinos-science/#close.

[3] Indian Gaming Regulatory Act of 1988 Public Law 100-497-Oct. 17, 1988 100th Congress Sec. 2701; 25 U.S.C. ch. 29 at § 2701 et seq. (1988). 

[4] Id. § 2703(4).

[5] Id. § 2702(3). 

[6] Id. § 2704.

[7] Id. § 2719.

[8] Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2719(b)(B)(iii) (1988).

[9] Gaming on Trust Lands Acquired After October 17, 1988, 25 CFR 292.7 et seq. (2008).

[10] For a full list of Indian Land Decisions and the exception under IGRA by which they are decided, See, Indian Land Opinions, National Indian Gaming Commission, October 14, 2020, https://www.nigc.gov/general-counsel/indian-lands-opinions. 34/100 of these decisions were rendered under the legal theory that the tract met the Restored Lands exception.

[11] 25 U.S.C. ch. 29 § 2703(5).

[12] Id. § 2703(5)(A).

[13] Id. § 2703(5)(B).

[14] Id. § 2703(4)(A).

[15] Id. § 2703(4)(B).

[16] 25 CFR 292.8-292.10.

[17] 25 CFR § 292.8(a).

[18] Id. § 292.8(b).

[19] Id. § 292.8(c).

[20] Id. § 292.8(d).

[21] Id. § 292.8(e).

[22] 25 C.F.R. § 292.9(a).

[23] Id. § 292.9(b).

[24] Id. § 292.10(a).

[25] Id. § 292.10(b); For more information on the Federal Acknowledgement Process, See 25 CFR 83.8.

[26] Id. § 292.10(c)(1)-(2).

[27] 25 C.F.R. § 292.11(a).

[28] Id. § 292.11(b).

[29] Id. § 292.11(c).

[30] Id.

[31] Id. § 292.12(a).

[32] Id. § 292.12(b)(1).

[33] 25 C.F.R. § 292.12(b)(2).

[34] Id. § 292.12(c)(1).

[35] Id. § 292.12(c)(2).

[36] Memorandum to Assistant Secretary for Indian Affairs, Solicitor, Chairman, National Indian Gaming Commission, Final Evaluation Report on the Process Used to Assess Applications to Take Land Into Trust For Gaming Purposes (Report No. E-EV-BIA-0063-2003), From Anne L. Richards, Assistant Inspector General for Audits (September 1, 2005).

[37] See 25 C.F.R. § 151.11(b).

[38] Id. § 151.11(c).

[39] Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993, H.B. 2399, 103rd Cong. § 14 (1993), [hereinafter,  “Settlement Act”].

[40] See, e.g., South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986); Catawba Indian Tribe of South Carolina v. State of South Carolina, 865 F.2d 1444 (4th Cir. 1989); Catawba Indian Tribe of South Carolina v. State of South Carolina, 978 F.2d 1334 (4th Cir. 1992); Catawba Indian Tribe of South Carolina v. United States, 24 Cl. Ct. 24 (1991).

[41] See, e.g., Settlement Act at § 12 (Establishment of Expanded Reservation); § 13 (Non-Reservation Properties); § 14 (Games of Chance).

[42] Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993, S. 790, 116th Cong. § 2(b) (2019).

[43] Id.

[44] Supra, note 39; In the Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 there is a provision that the DOI may take an additional ~300 acres into trust for the Catawba.

[45] Memorandum to Secretary, Mandatory Trust Authority Under the Catawba Settlement Act, from Deputy Secretary (Mar. 23, 2018) (Deputy Secretary’s Memorandum).

[46] Id. at 2.

[47] Letter, Chief William Harris to Deputy Secretary Bernhardt (Apr. 2, 2018).

[48] Memorandum to Chief William Harris, Catawba Indian Nation, Catawba Indian Nation Discretionary Application Decision, from Department of the Interior, Office of The Secretary (March 12, 2020), [hereinafter “DOI Decision”]; Until 2020, the Catawba Indian Nation was known as the Catawba Tribe of South Carolina. See 85 Fed. Reg. 5,642 (January 30, 2020).

[49] Id.

[50] See, 25 U.S.C. § 2719.

[51] 25 U.S.C. §2701.

[52] Plaintiff’s Complaint (EBCI Complaint), at 2, (March 17, 2020), Case 1:20-cv-00757, [hereinafter, “EBCI Complaint”].

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction, at 2, (March 17, 2020), Case 1:20-cv-00757-JEB.

[59] Memorandum Opinion, District Court for The District of Columbia, at 9, (April 30, 2020), Case 1:20-cv-00757-JEB.

[60] In the District Court’s denial of the TRO, the court found that the EBCI, at most, is alleging a procedural harm, not an irreparable one.See, Mem. Op. at 7.

[61] See generally, Map of Indian Gaming Location,National Indian Gaming Commission, https://www.nigc.gov/map.

[62] DOI decision, supra note 48, at  3-11.

[63] Id.

[64] DOI decision, supra note 48, at 12-13.

[65] Supra, note 1.

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