Gaming on Trust Lands Acquired After October 17, 1988, 58769-58776 [E6-16490]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs
• Indian Affairs Bureau

[Federal Register Volume 71, Number 193 (Thursday, October 5, 2006)]
[Proposed Rules]
[Pages 58769-58776]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-16490]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 292

RIN 1076-AE81


Gaming on Trust Lands Acquired After October 17, 1988

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Bureau of Indian Affairs proposes to establish procedures 
that an Indian tribe must follow in seeking to conduct gaming on lands 
acquired after October 17, 1988. The Indian Gaming Regulatory Act 
allows Indian tribes to conduct class II and class III gaming 
activities on land acquired after October 17, 1988, only if the land 
meets certain exceptions. This proposed rule establishes a process for 
submitting and considering applications from Indian tribes seeking to 
conduct class II or class III gaming activities on lands acquired in 
trust after October 17, 1988.

DATES:  Comments must be received on or before December 4, 2006.

ADDRESSES: You may submit comments, identified by the number 1076-AE-
81, by any of the following methods:
     Federal rulemaking portal: https://www.regulations.gov 
Follow the instructions for submitting comments.
     Fax: 202-273-3153.
     Mail: Mr. George Skibine, Director, Office of Indian 
Gaming Management, Office of the Deputy Assistant Secretary--Policy and 
Economic Development, 1849 C Street, NW., Mail Stop 3657-MIB, 
Washington, DC 20240.
     Hand delivery: Office of Indian Gaming Management, Office 
of the Deputy Assistant Secretary--Policy and Economic Development, 
1849 C Street, NW, Room 3657-MIB, Washington, DC, from 9 a.m. to 4 
p.m., Monday through Friday.
    Comments on the information collection in this rule are separate 
from comments on the rule. If you wish to comment on the information 
collection, you may send a facsimile to (202) 395-6566. You may also e-
mail comments to: OIRA--DOCKET@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Office of 
Indian Gaming Management, (202) 219-4066.

SUPPLEMENTARY INFORMATION: The authority to issue this document is 
vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C. 
2, 9, and 2710. The Secretary has delegated this authority to the 
Principal Deputy Assistant Secretary--Indian Affairs by part 209 of the 
Departmental Manual.

Background

    The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721, was 
signed into law on October 17, 1988. Section 20 of IGRA, 25 U.S.C. 
2719, prohibits gaming on lands that the Secretary of the Interior 
acquires in trust for an Indian tribe after October 17, 1988, unless 
the land qualifies under at least one of the exceptions contained in 
that section. If none of the exceptions in Section 20 applies, Section 
20(b)(1)(A) of IGRA provides that gaming can still occur on the lands 
if:
    (1) The Secretary consults with the Indian tribe and appropriate 
State and local officials, including officials of other nearby tribes;
    (2) After consultation, the Secretary determines that a gaming 
establishment on newly acquired (trust) lands would be in the best 
interest of the Indian tribe and its members, and would not be 
detrimental to the surrounding community; and
    (3) The Governor of the State in which the gaming activity is to be 
conducted concurs in the Secretary's determination.

[[Page 58770]]

    On September 28, 1994, the Bureau of Indian Affairs (BIA) issued to 
all Regional Directors a Checklist for Gaming Acquisitions and Two-Part 
Determinations Under Section 20 of the Indian Gaming Regulatory Act. 
This Checklist was revised and replaced on February 18, 1997. On 
November 9, 2001, an October 2001 Checklist was issued revising the 
February 18, 1997 Checklist to include gaming related acquisitions. On 
March 7, 2005 a new Checklist was issued to all Regional Directors 
replacing the October 2001 Checklist.
    The proposed regulations implement Section 20 of the Indian Gaming 
Regulatory Act (IGRA) by articulating standards that the Department 
will follow in interpreting the various exceptions to the gaming 
prohibition on after-acquired trust lands contained in Section 20 of 
IGRA. Subpart A of the draft proposed regulations define key terms 
contained in Section 20 or used in the regulation. Subpart B delineates 
how the Department will interpret the ``settlement of a land claim'' 
exception contained in Section 20(b)(1)(B)(i) of IGRA. This subpart 
clarifies that, in almost all instances, Congress must enact the 
settlement into law before the land can qualify under the exception. 
Subpart B also delineates what criteria must be met for a parcel of 
land to qualify under the ``initial reservation'' exception contained 
in Section 20 (b)(1)(B)(ii) of IGRA. The proposed regulation sets forth 
that the tribe must have present and historical connections to the 
land, and that the land must be proclaimed to be a new reservation 
pursuant to 25 U.S.C. 467 before the land can qualify under this 
exception. Finally, Subpart B articulates what criteria must be met for 
a parcel of land to qualify under the ``restored land for a restored 
tribe'' exception contained Section 20 (b)(1)(B)(iii) of IGRA. The 
proposed regulation sets forth the criteria for a tribe to qualify as a 
``restored tribe'' and articulates the requirement for the parcel to 
qualify as ``restored lands.'' Essentially, the regulation requires the 
tribe to have modern connections to the land, historical connections to 
the area where the land is located, and requires a temporal connection 
between the acquisition of the land and the tribe's restoration. 
Subpart C sets forth how the Department will evaluate tribal 
applications for a two-part Secretarial Determination under Section 
20(b)(1) of IGRA. Under this exception, gaming can occur on off-
reservation trust lands if the Secretary, after consultation with 
appropriate State and local officials, including officials of nearby 
tribes, makes a determination that a gaming establishment would be in 
the best interest of the tribe and its members and would not be 
detrimental to the surrounding community. The Governor of the State 
must concur in any Secretarial two-part determination. The proposed 
regulation sets forth how consultation with local officials and nearby 
tribes will be conducted and articulates the factors the Department 
will consider in making the two-part determination. The proposed 
regulation also gives the State Governor up to one year to concur in a 
Secretarial two-part determination, with an additional 180 days 
extension at the request of either the Governor or the applicant tribe.

Previous Rulemaking Activity

    On September 14, 2000, we published proposed regulations in the 
Federal Register (65 FR 55471) to establish procedures that an Indian 
tribe must follow in seeking a Secretarial Determination that a gaming 
establishment would be in the best interest of the Indian tribe and its 
members and would not be detrimental to the surrounding community. The 
comment period closed on November 13, 2000. On December 27, 2001 (66 FR 
66847), we reopened the comment period to allow consideration of 
comments received after November 13, 2000, and to allow additional time 
for comment on the proposed rule. The comment period ended on March 27, 
2002. On January 28, 2002 we published a notice in the Federal Register 
(67 FR 3846) to correct the Effective Date section which incorrectly 
stated that the deadline for receipt of comments was February 25, 2002 
and was corrected to read ``Comments must be received on or before 
March 27, 2002.'' No further action was taken to publish the final 
rule.
    We are publishing a new proposed rule because we have determined 
that the rule should address not only the exception contained in 
Section 20(b)(1)(A) of IGRA (Secretarial Determination), but also the 
other exceptions contained in Section 20, in order to explain to the 
public how the Department interprets these exceptions.

Procedural Requirements

Regulatory Planning and Review (Executive Order 12866)

    This document has been determined not to be a significant 
regulatory action and is not subject to review by the Office of 
Management and Budget (OMB).
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. The annual number of 
requests and applications to conduct gaming on trust lands under the 
exceptions or two-part determination of IGRA have been small. Since 
IGRA was enacted, approximately two applications per year qualify and 
have been approved to operate a gaming establishment on trust land 
under the general exceptions and only three positive two-part 
determinations have successfully qualified to operate a gaming 
establishment on trust land under the exception to the gaming 
prohibition in Section 20 (b)(1)(A) of IGRA.
    (b) This rule will not create serious inconsistencies or otherwise 
interfere with an action taken or planned by another Federal agency. 
The Department of the Interior (DOI), BIA is the only governmental 
agency that makes the determination whether to take land into trust for 
Indian tribes.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
This rule sets out the procedures and criteria for the submission of an 
application from an Indian tribe seeking to conduct class II or class 
III gaming activities on land acquired by the Secretary of the Interior 
under Section 20 of the IGRA.
    (d) OMB has determined that this rule will not raise novel legal or 
policy issues. For this reason, OMB review is not required under 
Executive Order 12866.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Indian tribes are not considered to be small entities for the purposes 
of this Act.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment,

[[Page 58771]]

investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal government or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required because only Indian tribes may 
conduct gaming activities on land acquired after October 17, 1988, only 
if the land meets the exceptions in Section 20 of IGRA.

Takings Implication Assessment (Executive Order 12630)

    In accordance with Executive Order 12630, the Department has 
determined that this rule does not have significant takings 
implications. The rule does not pertain to the ``taking'' of private 
property interests, nor does it impact private property. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13121, the Department has 
determined that this rule does not have significant Federalism 
implications because it does not substantially and directly affect the 
relationship between the Federal and State governments and does not 
impose costs on States or localities. A Federalism Assessment is not 
required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Does not unduly burden the judicial system;
    (b) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (c) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards. The rule does not preempt any statute.

National Environmental Policy Act

    The Department has determined that this rule does not constitute a 
major Federal action significantly affecting the quality of the human 
environment and that no detailed statement is required under the 
National Environmental Policy Act of 1969.

Paperwork Reduction Act

    The information collection has been reviewed and cleared by the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget under the Paperwork Reduction Act of 1995, as amended. The 
collection has been assigned the tracking number of OMB Control Number 
1076-0158. The clearance expires November 30, 2006.
    The collection of information is unique for each tribe even though 
each submission addresses the requirements found in Sec.  292.16.
    All information is collected in the tribe's application. 
Respondents submit information in order to obtain a benefit. Each 
response is estimated to take 1,000 hours to review instructions, 
search existing data sources, gather and maintain necessary data, and 
prepare in format for submission. We anticipate that two responses will 
be submitted annually for an annual burden of 2,000 hours.
    Submit comments on the proposed information collection to 
Attention: Desk Officer for the Department of the Interior, Office of 
Information and Regulatory Affairs, OMB by facsimile at (202) 395-6566 
or by e-mail to OIRA--DOCKET@omb.eop.gov. You should also send comments 
to the BIA official as found in the ADDRESSES section. The BIA solicits 
comments in order to:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the BIA, 
including whether the information will have practical utility;
    (2) Evaluate the BIA's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond.
    OMB is required to make a decision between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, your 
comment to OMB has the best chance of being considered if OMB receives 
it within 30 days of publication. This does not affect the deadline for 
the public to comment to BIA on the proposed rule.

Consultation With Indian tribes (Executive Order 13175)

    Under the criteria in Executive Order 13175, we have conducted 
consultation meetings with tribal leaders regarding the proposed 
regulations in the following locations: Uncasville, Connecticut on 
March 30, 2006; Albuquerque, New Mexico on April 5, 2006; Sacramento, 
California on April 18, 2006 and Minneapolis, Minnesota on April 20, 
2006. A notice of the consultation meetings was published in the 
Federal Register on April 11, 2006 (71 FR 18350). In addition, a draft 
regulation was sent to all tribal leaders in the lower 48 states on 
March 15, 2006, seeking comments on the draft regulation. Numerous 
comments were received by the Department. The Department revised the 
draft regulation in response to written comments and oral comments 
received at the consultation meetings. No action is taken under this 
rule unless a tribe submits an application to acquire land under 
Section 20 of IGRA.

Effects on the Nation's Energy Supply (Executive Order 13211)

    This rule does not have a significant effect on the nation's energy 
supply, distribution, or use as defined by Executive Order 13211.

Data Quality Act

    In developing this rule, we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-554).

Clarity of This Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
     Be logically organized;
     Use the active voice to address readers directly;
     Use clear language rather than jargon;
     Be divided into short sections and sentences; and
     Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments as instructed in the ADDRESSES section. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the specific sections that 
are unclearly written, which sections or sentences are too long, the 
sections where you feel lists or tables would be useful, etc.

Public Comment Solicitation

    If you wish to comment on the rule, please see the different 
methods listed in the ADDRESSES section; we cannot accept comments via 
the Internet at this time. Our practice is to make comments,

[[Page 58772]]

including names and home addresses of respondents, available for public 
review during the hours listed in the ADDRESSES section. Individual 
respondents may request that we withhold their home address from the 
rulemaking record, which we will honor to the extent allowable by law. 
There may be circumstances in which we would withhold from the 
rulemaking record a respondent's identity, as allowable by law. If you 
wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

List of Subjects in 25 CFR Part 290

    Indians--Business and finance, Indians--gaming.

    Dated: September 18, 2006.
Michael D. Olsen,
Principal Deputy Assistant Secretary--Indian Affairs.

    For reasons stated in the preamble, the Bureau of Indian Affairs 
proposes to add Part 292 to Chapter I of Title 25 of the Code of 
Federal Regulations as follows:

PART 292--GAMING ON TRUST LANDS ACQUIRED AFTER OCTOBER 17, 1988

Subpart A--General Provisions
Sec.
292.1 What is the purpose of this part?
292.2 How are key terms defined in this part?
292.3 When can a tribe conduct gaming activities on trust lands?
Subpart B--Exceptions to Prohibition on Gaming on After-Acquired Trust 
Lands
292.4 What criteria must trust land meet for gaming to be allowed 
under the exceptions listed in 25 U.S.C. 2719(a) of IGRA?

``Settlement of a Land Claim'' Exception

292.5 What must be demonstrated to meet the ``settlement of a land 
claim'' exception?

``Initial Reservation'' Exception

292.6 What must be demonstrated to meet the ``initial reservation'' 
exception?

``Restored Lands'' Exception

292.7 What must be demonstrated to meet the ``restored lands'' 
exception?
292.8 How does a tribe qualify as having been Federally recognized?
292.9 How does a tribe show that it lost its government-to-
government relationship?
292.10 How does a tribe qualify as having been restored to Federal 
recognition?
292.11 What are ``restored lands''?
292.12 How does a tribe establish its connection to the land?
Subpart C--Secretarial Determination and Governor's Concurrence
292.13 When can a tribe conduct gaming activities on lands that do 
not qualify under one of the exceptions?
292.14 Where must a tribe file an application for a Secretarial 
Determination?
292.15 May a tribe request a Secretarial Determination for lands not 
yet held in trust?

Application Contents

292.16 What must an application for a Secretarial Determination 
contain?
292.17 How must an application describe the benefits of a proposed 
gaming establishment to the tribe and its members?
292.18 What information must an application contain on detrimental 
impacts to the surrounding community?

Consultation

292.19 How will the Regional Director conduct the consultation 
process?
292.20 What information must the consultation letter include?

Evaluation and Concurrence

292.21 How will the Secretary evaluate a proposed gaming 
establishment?
292.22 How does the Secretary request the Governor's concurrence?
292.23 Can the public review the application for a Secretarial 
Determination?

Information Collection


292.24  Do information collections in this part have Office of 
Management and Budget approval?

    Authority: 5 U.S.C. 301, 25 U.S.C. 2, 9, 2719, 43 U.S.C. 1457.

Subpart A--General Provisions


Sec.  292.1  What is the purpose of this part?

    This part contains procedures that the Department of the Interior 
will use to determine whether class II or class III gaming can occur on 
land acquired in trust for an Indian tribe after October 17, 1988.


Sec.  292.2  How are key terms defined in this part?

    For purposes of this part, all terms have the same meaning as set 
forth in the definitional section of the Indian Gaming Regulatory Act 
(IGRA), 25 U.S.C. 2703. In addition, the following terms have the 
meanings given in this section.
    Appropriate State and Local Officials means the Governor of the 
State and appropriate officials of units of local government within 25 
miles of the site of the proposed gaming establishment.
    BIA means Bureau of Indian Affairs.
    Contiguous means two parcels of land having a common boundary. For 
example, it includes parcels divided by non-navigable waters or a 
public road or right-of-way.
    Federal recognition or Federally recognized means the recognition 
by the Secretary that an Indian tribe has a government-to-government 
relationship with the United States and is eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians, and evidenced by inclusion of the tribe on 
the list of recognized tribes published by the Secretary under 25 
U.S.C. 479a-1.
    Former Reservation means lands that are within the jurisdiction of 
an Oklahoma Indian tribe and that are within the boundaries of the last 
reservation for that tribe in Oklahoma established by treaty, Executive 
Order, or Secretarial Order.
    IGRA means the Indian Gaming Regulatory Act of 1988, as amended and 
codified at 25 U.S.C. 2701-2721.
    Land claim means any claim by an Indian tribe:
    (1) Arising from a Federal common law, statutory or treaty-based 
restraint against alienation of Indian land; and
    (2) Made against an individual person or entity (either private, 
public, or governmental).
    Legislative termination means Federal legislation that specifically 
terminates or prohibits the government-to-government relationship with 
an Indian tribe or that otherwise specifically denies the tribe [and/or 
its members] access to or eligibility for government services.
    Nearby Indian tribe means an Indian tribe with tribal Indian lands, 
as defined in 25 U.S.C. 2703(4) of IGRA, located within a 25-mile 
radius of the location of the proposed gaming establishment, or, if the 
tribe is landless, within a 25-mile radius of its government 
headquarters.
    Regional Director means the official in charge of the BIA Regional 
Office responsible for all BIA activities within the geographical area 
where the proposed gaming establishment is to be located.
    Reservation means that area of land which has been set aside or 
which has been acknowledged as having been set aside by the United 
States for the use of the tribe, the exterior boundaries of which are 
more particularly defined in a final treaty, agreement, Executive 
Order, Federal statute, Secretarial Order or Proclamation, judicial 
determination,

[[Page 58773]]

or court-approved stipulated entry of judgment to which the United 
States is a party.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Secretarial Determination means a two-part determination that a 
gaming establishment on newly acquired lands:
    (1) Would be in the best interest of the Indian tribe and its 
members; and
    (2) Would not be detrimental to the surrounding community.
    Surrounding community means local governments and nearby Indian 
tribes located within 25 miles of the site of the proposed gaming 
establishments.
    Tribe means an Indian tribe.


Sec.  292.3  When can a tribe conduct gaming activities on trust lands?

    This section implements Section 20 of IGRA (25 U.S.C. 2719). A 
tribe may conduct class II or class III gaming activities on land 
acquired by the Secretary in trust for the benefit of a tribe after 
October 17, 1988, only if:
    (a) The land meets the criteria or exceptions in Subpart B; or
    (b) The Secretary makes a determination under Subpart C of this 
part and the Governor of the State in which the gaming activity is to 
be conducted concurs in that determination.

Subpart B--Exceptions to Prohibition on Gaming on After-Acquired 
Trust Lands


Sec.  292.4  What criteria must trust land meet for gaming to be 
allowed under the exceptions listed in 25 U.S.C. 2719(a) of IGRA?

    (a) For class II or class III gaming to be allowed on trust or 
restricted fee land under section 2719(a)(1) of IGRA, the land must 
either:
    (1) Be located within or contiguous to the boundaries of the 
reservation of the tribe on October 17, 1988; or
    (2) Meet the requirements of paragraph (b) of this section.
    (b) For land to be eligible under this paragraph, it must belong to 
a tribe that had no reservation on October 17, 1988, and must be 
located:
    (1) Within the boundaries of the tribe's former reservation;
    (2) Contiguous to other land held in trust or restricted status by 
the United States for the tribe in Oklahoma; or
    (3) In a state other than Oklahoma and within the tribe's last 
recognized reservation within the State or States within which the 
tribe is now located.

``Settlement of a Land Claim'' Exception


Sec.  292.5  What must be demonstrated to meet the ``settlement of a 
land claim'' exception?

    This section contains criteria for meeting the requirements of IGRA 
Section 20(b)(1)(B)(i).
    (a) Gaming may be conducted on lands covered by this section only 
when the land has been acquired in trust as part of the settlement of a 
land claim that either:
    (1) Has been filed in Federal court and has not been dismissed on 
substantive grounds; or
    (2) Is included on the Department's list of potential pre-1966 
claims published under the Indian Claims Limitation Act of 1982 (Pub. 
L. 97-394, 28 U.S.C. 2415) and meets the criteria in paragraph (b) of 
this section.
    (b) To be eligible under paragraph (a)(2) of this section, land 
must be covered by a settlement that either:
    (1) States that the tribe is relinquishing its legal claim to some 
or all of the lands as part of the settlement, results in the 
alienation or transfer of title to tribal lands within the meaning of 
25 U.S.C. 177, and has been enacted into law by the United States 
Congress; or,
    (2) Returns to the tribe lands identical to the lands claimed by 
the tribe, does not involve an alienation or transfer of title to 
tribal lands that is prohibited under 25 U.S.C. 177, and is either:
    (i) Duly executed by the parties and entered as a final order of a 
Federal court of competent jurisdiction; or
    (ii) Settled by an agreement executed by the State in which the 
lands claimed by the tribe are located.

``Initial Reservation'' Exception


Sec.  292.6  What must be demonstrated to meet the ``initial 
reservation'' exception?

    This section contains criteria for meeting the requirements of IGRA 
Section 20(b)(1)(B)(ii). Under this section, gaming may be conducted 
only when all of the following conditions are met:
    (a) The tribe has been acknowledged (Federally recognized) through 
the administrative process under 25 CFR Part 83;
    (b) A majority of the tribe's members reside within 50 miles of the 
location of the land or the tribe's government headquarters are located 
within 25 miles of the location of the land;
    (c) The land is located within an area where the tribe has 
significant historical and cultural connections;
    (d) The land has been proclaimed to be a reservation under 25 
U.S.C. 467; and
    (e) This reservation is the first proclaimed reservation of the 
tribe following acknowledgment.

 ``Restored Lands'' Exception


Sec.  292.7  What must be demonstrated to meet the ``restored lands'' 
exception?

    This section contains criteria for meeting the requirements of IGRA 
Section 20(b)(1)(B)(iii), called the ``restored lands'' exception. The 
term ``restored lands'' is defined in Sec.  292.11. Gaming may only 
occur under this section when all of the following criteria have been 
met:
    (a) The tribe at one time was Federally recognized, as evidenced by 
its meeting the criteria in Sec.  292.8;
    (b) The tribe at some later time lost its government-to-government 
relationship by one of the means specified in Sec.  292.9; and
    (c) At a time after termination, the Tribe was restored to Federal 
recognition by one of the means specified in Sec.  292.10.


Sec.  292.8  How does a tribe qualify as having been Federally 
recognized?

    For a tribe to qualify as having been at one time Federally 
recognized for purposes of Sec.  292.7, at least one of the following 
must be true:
    (a) The United States at one time entered into treaty negotiations 
with the tribe;
    (b) The Department determined that the tribe could organize under 
the Indian Reorganization Act or the Oklahoma Indian Welfare Act;
    (c) Congress enacted legislation specific to, or including, the 
tribe indicating that a government-to-government relationship existed;
    (d) The United States at one time acquired land for the tribe's 
benefit; or
    (e) Some other evidence demonstrates the existence of a government-
to-government relationship between the tribe and the Federal 
Government.


Sec.  292.9  How does a tribe show that it lost its government-to-
government relationship?

    For a tribe to qualify for purposes of Sec.  292.7, it must have 
lost its government-to-government relationship by one of the following 
means:
    (a) Legislative termination; or
    (b) Termination demonstrated by historical written documentation 
from the Departments of the Interior or Justice. The documents must 
show that the Executive Branch no longer recognized the government-to-
government relationship with the tribe or its members.

[[Page 58774]]

Sec.  292.10  How does a tribe qualify as having been restored to 
Federal recognition?

    For a tribe to qualify as having been restored to Federal 
recognition for purposes of Sec.  292.7, the tribe must show at least 
one of the following:
    (a) Congressional enactment of legislation recognizing, 
acknowledging, or restoring the government-to-government relationship 
between the United States and the tribal government (required for 
tribes terminated by Congressional action);
    (b) Recognition through the administrative Federal Acknowledgment 
Process under 25 CFR 83.8; or
    (c) A judicial determination or court-approved stipulated entry of 
judgment that:
    (1) Was entered into by the United States; and
    (2) Provides that the tribe's government-to-government relationship 
with the United States was never legally terminated despite action by 
the Executive Branch purporting to terminate the relationship with the 
tribe or its members.


Sec.  292.11  What are ``restored lands?''

    For lands to qualify as ``restored lands'' for purposes of Sec.  
292.7, it must be demonstrated that:
    (a) The legislation restoring the government-to-government 
relationship between the United States and the tribe requires or 
authorizes the Secretary to take land into trust within a specific 
geographical area and the lands are within the specific geographical 
area; or
    (b) If there is no restoration legislation, or if the restoration 
legislation does not provide geographic parameters for the restoration 
of lands, the tribe has a modern connection and a significant 
historical connection to the land and there is a temporal connection 
between the date of the acquisition of the land and the date of the 
Tribe's restoration; and
    (c) If the tribe is acknowledged under 25 CFR 83.8, it does not 
already have an initial reservation proclaimed after October 17, 1988.


Sec.  292.12  How does a tribe establish its connection to the land?

    To establish a connection to the land for purposes of Sec.  292.11, 
the tribe must meet the criteria in paragraphs (a), (b), and (c) of 
this section.
    (a) A modern connection is established if a majority of the tribe's 
members reside within 50 miles of the land or if the tribe's government 
headquarters are located within 25 miles of the land.
    (b) A significant historical connection to the land can be 
established if:
    (1) The land is located within the boundaries of the tribe's last 
reservation reserved to the tribe by a ratified or unratified treaty; 
or
    (2) The land is located in an area to which the tribe has 
significant documented historical connections, significant weight being 
given to historical connections documented by official records of the 
Bureau of Indian Affairs or the Department of the Interior, or by the 
Indian Claims Commission, other Federal court, or congressional 
findings.
    (c) A reasonable temporal connection between the date of the 
acquisition of the land and the date of the tribe's restoration is 
established if:
    (1) The land is the first land that the tribe has acquired since 
the tribe was restored to Federal recognition; or
    (2) The tribe submitted an application to take the land into trust 
within 25 years after the tribe was restored to Federal recognition.

Subpart C--Secretarial Determination and Governor's Concurrence


Sec.  292.13  When can a tribe conduct gaming activities on lands that 
do not qualify under one of the exceptions?

    A tribe can conduct gaming on land covered by this part that does 
not meet the criteria in Subpart B only after all of the following 
occur:
    (a) The tribe asks the Secretary in writing to make a Secretarial 
Determination that a gaming establishment on land subject to this part 
is in the best interest of the tribe and its members and not 
detrimental to the surrounding community;
    (b) The Secretary consults with the tribe and appropriate State and 
local officials, including officials of other nearby tribes;
    (c) The Secretary makes a determination that a gaming establishment 
on newly acquired lands would be in the best interest of the tribe and 
its members and would not be detrimental to the surrounding community; 
and
    (d) The Governor of the State in which the gaming activity is to be 
conducted concurs in the Secretary's Determination (25 U.S.C. 
2719(b)(1)(A)).


Sec.  292.14  Where must a tribe file an application for a Secretarial 
Determination?

    A tribe must file its application for a Secretarial Determination 
with the Regional Director of the BIA Regional Office having 
responsibility over the land where the gaming establishment is to be 
located.


Sec.  292.15  May a tribe apply for a Secretarial Determination for 
lands not yet held in trust?

    Yes. A tribe can apply for a two-part Secretarial Determination 
under Sec.  292.13 for land not yet held in trust. The tribe must file 
its application for a two-part Secretarial Determination at the same 
time that it applies under 25 CFR Part 151 to have the land taken into 
trust.

Application Contents


Sec.  292.16  What must an application for a Secretarial Determination 
contain?

    An application requesting a Secretarial Determination under Sec.  
292.13 must include the following information:
    (a) The full name, address, and telephone number of the tribe 
submitting the application;
    (b) A description of the location of the land, including a legal 
description supported by a survey or other document;
    (c) Proof of identity of present ownership and title status of the 
land;
    (d) Distance of the land from the tribe's reservation or trust 
lands, if any, and tribal government headquarters;
    (e) Information required by Sec.  292.17 to assist the Secretary in 
determining whether the proposed gaming establishment will be in the 
best interest of the tribe and its members;
    (f) Information required by Sec.  292.18 to assist the Secretary in 
determining whether the proposed gaming establishment will not be 
detrimental to the surrounding community;
    (g) The authorizing resolution from the tribe submitting the 
application;
    (h) The tribe's gaming ordinance or resolution approved by the 
National Indian Gaming Commission in accordance with 25 U.S.C. 2710, if 
any;
    (i) The tribe's organic documents, if any;
    (j) The tribe's class III gaming compact with the State where the 
gaming establishment is to be located, if one has been negotiated; and
    (k) Any existing or proposed management contract required to be 
approved by the National Indian Gaming Commission under 25 U.S.C. 2711 
and 25 CFR Part 533.


Sec.  292.17  How must an application describe the benefits of a 
proposed gaming establishment to the tribe and its members?

    To satisfy the requirements of Sec.  292.16(e), an application must 
contain:
    (a) Projections of class II and class III gaming income statements, 
balance sheets, fixed assets accounting, and cash flow statements for 
the gaming entity and the tribe;

[[Page 58775]]

    (b) Projected tribal employment, job training, and career 
development;
    (c) Projected benefits to the tribe and its members from tourism;
    (d) Projected benefits to the tribe and its members from the 
proposed uses of the increased tribal income;
    (e) Projected benefits to the relationship between the tribe and 
non-Indian communities;
    (f) Possible adverse impacts on the tribe and its members and plans 
for addressing those impacts;
    (g) Distance of the land from the location where the tribe 
maintains core governmental functions;
    (h) Evidence that the tribe owns the land in fee or holds an option 
to acquire the land at the sole discretion of the tribe, or holds other 
contractual rights to cause the lands to be transferred directly to the 
United States;
    (i) Evidence of historical connections, if any, to the land; and
    (j) Any other information that may provide a basis for a 
Secretarial Determination that the gaming establishment would be in the 
best interest of the tribe and its members, including copies of any:
    (1) Consulting agreements relating to the proposed gaming 
establishment;
    (2) Financial and loan agreements relating to the proposed gaming 
establishment; and
    (3) Other agreements relative to the purchase, acquisition, 
construction, or financing of the proposed gaming facility, or the 
acquisition of the land where the facility will be located.


Sec.  292.18  What information must an application contain on 
detrimental impacts to the surrounding community?

    To satisfy the requirements of Sec.  292.16(f), an application must 
contain the following information on detrimental impacts of the 
proposed gaming establishment:
    (a) Information regarding environmental impacts and plans for 
mitigating adverse impacts, including information that allows the 
Secretary to comply with the requirements of the National Environmental 
Policy Act (NEPA); e.g., an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS);
    (b) Reasonably anticipated impacts on the social structure, 
infrastructure, services, housing, community character, and land use 
patterns of the surrounding community;
    (c) Impacts on the economic development, income, and employment of 
the surrounding community;
    (d) Costs of impacts to the surrounding community and 
identification of sources of revenue to mitigate them;
    (e) Proposed programs, if any, for compulsive gamblers and the 
sources of funding; and
    (f) Any other information that may provide a basis for a 
Secretarial Determination that the gaming would not be detrimental to 
the surrounding community, including memoranda of understanding and 
inter-governmental agreements with affected local governments.

Consultation


Sec.  292.19  How will the Regional Director conduct the consultation 
process?

    (a) The Regional Director will send a letter that meets the 
requirements in Sec.  292.20 and that solicits comments within a 60-day 
period to each of the following:
    (1) Appropriate State and local officials; and
    (2) Officials of nearby tribes.
    (b) Upon written request, the Regional Director may extend the 60-
day comment period for an additional 30 days.
    (c) After the close of the consultation period, the Regional 
Director must:
    (1) Submit a copy of the consultation comments to the applicant 
tribe;
    (2) Allow the tribe to address or resolve any issues raised in the 
responses to the consultation letters;
    (d) The applicant tribe must submit written comments, if any, to 
the Regional Director within 60 days of receipt of the consultation 
comments; and
    (e) On written request from the applicant tribe, the Regional 
Director may extend the 60-day comment period in paragraph (d) of this 
section for an additional 30 days.


Sec.  292.20  What information must the consultation letter include?

    (a) The consultation letter required by Sec.  292.19(a) must:
    (1) Describe or show the location of the proposed gaming 
establishment;
    (2) Provide information on the proposed scope of gaming; and
    (3) Include other information that may be relevant to a specific 
proposal, such as the size of the proposed gaming establishment, if 
known.
    (b) The consultation letter must request recipients to submit 
comments on the following areas within 60 days of receiving the letter:
    (1) Information regarding environmental impacts on the surrounding 
community and plans for mitigating adverse impacts;
    (2) Reasonably anticipated impacts on the social structure, 
infrastructure, services, housing, community character, and land use 
patterns of the surrounding community;
    (3) Impact on the economic development, income, and employment of 
the surrounding community;
    (4) Costs of impacts to the surrounding community and 
identification of sources of revenue to mitigate them;
    (5) Proposed programs, if any, for compulsive gamblers and the 
sources of funding; and
    (6) Any other information that may provide a basis for a 
Secretarial Determination that the proposed gaming establishment is not 
detrimental to the surrounding community.

Evaluation and Concurrence


Sec.  292.21  How will the Secretary evaluate a proposed gaming 
establishment?

    (a) The Secretary will consider all the information submitted under 
Sec.  292.17 in evaluating whether the proposed gaming establishment is 
in the best interest of the tribe and its members.
    (b) The Secretary will consider all the information submitted or 
developed under Sec.  292.18 and all the documentation received under 
Sec.  292.19 in evaluating whether the proposed gaming establishment 
would not be detrimental to the surrounding community.
    (c) If the Secretary makes an unfavorable Secretarial 
Determination, the Secretary will inform the tribe that its application 
has been disapproved, and set forth the reasons for the disapproval.
    (d) If the Secretary makes a favorable Secretarial Determination, 
the Secretary will proceed under Sec.  292.22.


Sec.  292.22  How does the Secretary request the Governor's 
concurrence?

    (a) If the Secretary makes a favorable Secretarial Determination, 
the Secretary will send to the Governor of the State:
    (1) A written notification of the Secretarial Determination and 
Findings of Fact supporting the determination;
    (2) A copy of the entire application record; and
    (3) A request for the Governor's concurrence in the Secretarial 
Determination.
    (b) If the Governor does not affirmatively concur with the 
Secretarial Determination:
    (1) The land may not be used for gaming;
    (2) If the land is already held in trust, the applicant tribe may 
use it for other purposes; and
    (3) If the land is proposed for trust status, it may be taken into 
trust for non-gaming uses after consideration of a revised application.
    (c) If the Governor does not respond to the Secretary's request for

[[Page 58776]]

concurrence in the Secretarial Determination within one year of the 
date of the request, the Secretary may, at the request of the applicant 
tribe or the Governor, grant an extension of up to 180 days.
    (d) If no extension is granted or if the Governor does not respond 
during the extension period, the applicant tribe will be notified in 
writing that the Secretarial Determination is no longer valid and that 
its application is no longer under consideration.


Sec.  292.23  Can the public review the application for a Secretarial 
Determination?

    Subject to restrictions on disclosure required by the Freedom of 
Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and 
the Trade Secrets Act (18 U.S.C. 1905), the tribe's application and all 
supporting documents will be available for review at the local BIA 
agency or Regional Office having administrative jurisdiction over the 
land.

Information Collection


Sec.  292.24  Do information collections in this part have Office of 
Management and Budget approval?

    The information collection requirements in Sec. Sec.  292.16, 
292.17, and 292.18 have been approved by the Office of Management and 
Budget (OMB). The information collection control number is 1076-0158. A 
Federal agency may not collect or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control.

[FR Doc. E6-16490 Filed 10-4-06; 8:45 am]
BILLING CODE 4310-4N-P