IGA Tradeshow: Proposed compact and trust regulations create misunderstanding

March 30, 2023 6:00 PM
Photo: CDC Gaming Reports
  • Buck Wargo, CDC Gaming Reports
March 30, 2023 6:00 PM
  • Buck Wargo, CDC Gaming Reports

The U.S. Department of Interior’s proposed regulations on tribal-state compacting and placing land into trust have created widespread misunderstanding. Paula Hart, director of the Office of Indian Gaming at the Department of Interior, spoke of that misunderstanding this week at the Indian Gaming Tradeshow & Convention in San Diego.

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In December, Interior announced the publication of proposed revisions in two regulations, one regarding the fee-to-trust process and one on Class III gaming compacts. The intent of the proposed rules is to provide clearer and more efficient processes for tribes applying to place land into trust and/or enter into gaming compacts, Hart said.

Interior has received numerous comments due to news articles that incorrectly state that proposed changes protect the tribes from states demanding taxes.

“People believe that, because the (two proposals) are being presented on the same track, for some reason state governments and commercial gaming organizations feel like we’re expanding gaming – that there will be gaming everywhere and that tribes can go anywhere to game,” Hart said.

One of the proposed changes that governs the review and approval of tribal-state gaming compacts would provide clarity on the criteria the Department of Interior considers when deciding whether to approve these compacts by clarifying boundaries, better defining key terms, and more clearly outlining when the Department must review a gaming compact.

“We’re implementing more than 20 years of approval letters, technical-assistance letters, litigation, and all of the things we’ve seen and watched develop over the years that we really need to put these into regulations,” Hart said.

The compact regulations started as a matter of process to inform tribes about when and where a compact has to be submitted and how many days are involved. “It basically tells you how to get your compact approved,” Hart said. She noted that when tribes and states negotiate with no clarity, the states push back on the tribes.

“We took all of the deemed-approved letters and our past practices and developed the regulations to implement those things we have already been doing,” Hart said. “It wasn’t changing anything. It was clarifying how we interpreted the law for the last 30 years.”

Fee-to-trust land acquisitions, also called land into trust, transfer a land title to the federal government to be held in trust for the benefit of an individual or tribe. Acquisition of land in trust is essential to tribal self-determination and will help maximize the tribe’s eligibility for federal services and programs.

The concept behind it is that federal policies dating back more than a century have eroded the tribal land base across the United States. By placing lands into trust status through the Department of Interior, tribes can reacquire lands within or near their reservations, establish a land base for tribal communities, and clarify jurisdiction over their lands.

Tribes have faced delays and increasing costs in efforts to develop housing projects, manage law-enforcement agencies, and develop local economies as a result of unnecessary hurdles in the land-into-trust process.

“I would say 99% of the land acquisitions aren’t for gaming,” Hart said. “We’re not touching regulations that make land eligible for gaming. You still need a compact for gaming on those lands. You still need the governor to concur. That’s one of the biggest misconceptions out of all of the comments I’ve read. Non-Indians believe we’re blowing open the United States and that Indian casinos will be everywhere, because (they believe) it’s so easy to take land into trust and open up a casino. It’s not. It’s a difficult process and it’s staying the same.”

The changes would lead to a more efficient, less cumbersome, and less expensive fee-to-trust process by clarifying the Secretary of the Interior’s authority to put land into trust for tribes, reducing processing time, and establishing clear decision-making criteria. The proposed amendments also place an express focus on taking land into trust for conservation purposes, officials said.