Gaming on Trust Lands Acquired After October 17, 1988, 29354-29380 [E8-11086]
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Federal Register / Vol. 73, No. 98 / Tuesday, May 20, 2008 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 292
RIN 1076–AE81
Gaming on Trust Lands Acquired After
October 17, 1988
Bureau of Indian Affairs,
Interior.
ACTION: Final rule.
AGENCY:
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SUMMARY: The Bureau of Indian Affairs
(BIA) is publishing regulations
implementing section 2719 of the Indian
Gaming Regulatory Act (IGRA). IGRA
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
rule articulates standards that the BIA
will follow in interpreting the various
exceptions to the gaming prohibitions
contained in section 2719 of IGRA. It
also 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: Effective Date: June 19, 2008.
FOR FURTHER INFORMATION CONTACT:
George Skibine, Director, Office of
Indian Gaming, (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
2719. The Secretary has delegated this
authority to the 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. 25
U.S.C. 2719 (a/k/a section 20 of IGRA)
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 2719 applies, section
2719(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 lands would be in
the best interest of the Indian tribe and
its members, and would not be
detrimental to the surrounding
community; and
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(3) The Governor of the State in which
the gaming activity is to be conducted
concurs in the Secretary’s
determination.
On September 28, 1994, the BIA
issued to all Regional Directors a
Checklist for Gaming Acquisitions and
Two-Part Determinations under section
20 of IGRA. 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. On September
21, 2007 the Checklist was revised and
issued to all Regional Directors
replacing the March 2005 Checklist.
The regulations implement section
2719 of 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 2719 of
IGRA. Subpart A of the regulations
define key terms contained in section
2719 or used in the regulation. Subpart
B delineates how the Department will
interpret the ‘‘settlement of a land
claim’’ exception contained in section
2719(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 2719(b)(1)(B)(ii) of IGRA. The
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 2719(b)(1)(B)(iii) of IGRA. The
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
2719(b)(1)(A) of IGRA. Under this
exception, gaming can occur on offreservation trust lands if the Secretary,
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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 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 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.
Subpart D clarifies that the regulations
do not disturb existing decisions made
by the BIA or the National Indian
Gaming Commission (NIGC).
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.
On October 5, 2006, we published a
new proposed rule in the Federal
Register (71 FR 58769) because we have
determined that the rule should address
not only the exception contained in
section 2719(b)(1)(A) of IGRA
(Secretarial Determination), but also the
other exceptions contained in section
2719, in order to explain to the public
how the Department interprets these
exceptions. The comment period ended
on December 5, 2006. On December 4,
2006, we published a notice in the
Federal Register (71 FR 70335) to
extend the comment period and make
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corrections. The comment period ended
on December 19, 2006. On January 17,
2007, we published a notice in the
Federal Register (72 FR 1954) to reopen
the comment period to allow for
consideration of comments received
after December 19, 2006. Comments
received during the comment period
ending December 5, 2006, and February
1, 2007, were considered in the drafting
of this final rule.
Review of Public Comments
Stylistic and conforming changes
were made to the proposed regulations
and are reflected throughout the final
regulations. Substantive changes, if any,
are addressed in the comments and
responses below:
Subpart A—General Provisions
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Section 292.1
this part?
What is the purpose of
One comment regarded the
applicability of section 2719 of IGRA to
restricted fee lands and suggested a
change in § 292.1. Another comment
regarded the applicability of section
2719 to trust or restricted lands of
individual Indians.
Response: The recommendation to
modify § 292.1 was not adopted,
because section 2719(a) refers only to
lands acquired in trust after October 17,
1988. The omission of restricted fee
from section 2719(a) is considered
purposeful, because Congress referred to
restricted fee lands elsewhere in IGRA,
including at sections 2719(a)(2)(A)(ii)
and 2703(4)(B). Section 292.1 was not
amended to include land taken in trust
after October 17, 1988 for individual
Indians, nor land acquired after October
17, 1988 in restricted fee by individual
Indians, because the language in section
2719 of IGRA is limited to Indian tribes.
Also, it is important to note that the
final regulations do not address any
restrictions on tribally owned fee land
within reservation boundaries, because
even though such lands are ‘‘Indian
lands’’ pursuant to section 2703(4), they
are not encompassed by the prohibition
in section 2719. In addition, tribally
owned fee land outside of reservation
boundaries is not encompassed by
section 2703(4) unless a Federal law,
other than 25 U.S.C. 177, directly
imposes such limitations on the land,
and the Indian tribe exercises
governmental power over them.
Several comments regarded whether
the regulations for section 2719 should
include the requirements of
‘‘governmental powers’’ referenced in
section 2703(4), and ‘‘jurisdiction’’
referenced in section 2710.
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Response: Section 2719 does not
specifically reference the ‘‘governmental
powers’’ and ‘‘jurisdictional’’
requirements that are referenced in
other sections of IGRA. Therefore, the
final regulations do not include
references to these requirements. The
governmental powers and jurisdictional
analysis is not required for the specific
purpose of determining whether newly
acquired lands are otherwise exempt
from the general prohibition for lands
acquired after October 17, 1988. The
governmental powers and jurisdictional
requirements are, however, a necessary
element for determining whether
gaming may be conducted on newly
acquired lands. Therefore, depending on
the nature of the application or request,
the governmental powers and
jurisdictional elements may be part of
the analysis.
Section 292.2 How are key terms
defined in this part?
Appropriate State and Local Officials
Several comments suggested that the
25-mile radius is too narrow and either
recommended that the regulation
include a larger mile limit or no mile
limit at all.
Response: These recommendations
were not adopted. From the
Department’s prior experience
implementing section 2719, the 25-mile
radius allows for the adequate
representation of local officials when
conducting an analysis under section
2719(b)(1)(A). See discussion of the
term ‘‘surrounding community’’ below.
A few comments suggested that the
regulation is too broad as it applies to
‘‘local officials’’ and suggested that the
regulation qualify the term ‘‘local
officials’’ by using examples. A few
other comments suggested that the term
‘‘local officials’’ was too vague and
similarly suggested that the regulation
qualify the term by using examples.
Response: These recommendations
were not adopted. The term ‘‘local
officials’’ is adequate. Because
governmental organization varies from
community to community, it is not
practical to qualify the term ‘‘local
officials’’ in either an effort to broaden
or limit its applicability.
One comment suggested that the
definition should be broadened to
include other State officials or the
Attorney General.
Response: This recommendation was
not adopted. The only State official
recognized under the definition is the
Governor. However, the regulation does
not limit the Governor from consulting
with other State officials.
One comment suggested that the
definition should apply to appropriate
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State and local officials in other States
if within the 25-mile radius.
Response: The definition includes
local officials from other States if they
are within the 25-mile radius. However,
the definition only recognizes the
Governor of the State in which the
proposed gaming establishment is
located.
Section 292.2 How are key terms
defined in this part?
Contiguous
Several comments related to the
definition of contiguous. One comment
suggested removing the definition from
the section. A few other comments
suggested keeping the definition, but
removing the second sentence that
specifies that contiguous includes
parcels divided by non-navigable waters
or a public road or right-of-way. A few
comments suggested including both
navigable and non-navigable waters in
the definition. Many comments
regarded the concept of ‘‘corner
contiguity.’’ Some comments suggested
including the concept, which would
allow parcels that only touch at one
point, in the definition. Other comments
suggested that the definition exclude
parcels that only touch at a point.
Response: The recommendation to
remove the definition was not adopted.
Likewise, the recommendation to
remove the qualifying language
pertaining to non-navigable waters,
public roads or right-of-ways was not
adopted. Additionally, the suggestion to
include navigable waters was not
adopted. The concept of ‘‘corner
contiguity’’ was included in the
definition. However, to avoid confusion
over this term of art, the definition uses
the language ‘‘parcels that touch at a
point.’’
Section 292.2 How are key terms
defined in this part?
Federal recognition or federally
recognized:
A few comments suggested modifying
the definition to follow the Department
of the Interior (DOI) and NIGC
definitions of Indian tribe in 25 CFR
290.2 and 502.13.
Response: This recommendation was
adopted in part. We maintained the
reference to the list of recognized tribes
as it provides notice to the public. In
response to comments indicating
confusion caused by separate
definitions of ‘‘tribe’’ and ‘‘Federal
recognition or federally recognized,’’ the
Department deleted the separate
definitions and included a single
definition of ‘‘Indian tribe or tribe.’’
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Section 292.2 How are key terms
defined in this part?
Former reservation:
One comment suggested deleting the
word ‘‘last’’ in the definition.
Response: This recommendation was
not adopted because the definition
clarifies that the last reservation be in
Oklahoma, which is consistent with the
language of the statute.
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Section 292.2 How are key terms
defined in this part?
Land claim:
One comment suggested striking the
words ‘‘any claim’’ and adding the
words ‘‘a legal action seeking title or
possession of land.’’
Response: This recommendation was
not adopted because a land claim does
not have to be filed in court in order to
fall under the definition; the land claim
does have to allege that the subject land
was held in trust or subject to a
prohibition against alienation on or
before October 17, 1988. IGRA’s date of
enactment was added to clarify that
claims accruing after its enactment are
not included within its scope.
One comment suggested modifying
paragraph (1) to read, ‘‘or a
constitutional, common law, statutory
or treaty-based right to be protected
from government taking of Indian
lands.’’
Response: This recommendation was
adopted in part. The words ‘‘the
Constitution’’ were added to paragraph
(1), but the recommendation to qualify
the cause of action to a takings claim
was not adopted.
One comment suggested including
State law claims in the definition.
Response: The recommendation was
not adopted because the land claims
within the meaning of IGRA arise under
Federal statute, Federal common law,
the U.S. Constitution or a treaty and
jurisdiction lies in Federal, not State
court.
One comment suggested adding
language in paragraph (1) that reads,
‘‘for the determination of title to lands,’’
and language in paragraph (2) that
reads, ‘‘or the United States.’’
Response: The recommendation to
modify paragraph (1) was not adopted
because it is too narrow; not all claims
brought under the definition are for the
determination of title to lands—
sometimes they are brought for
compensation. The recommendation
regarding adding the words ‘‘or the
United States’’ was not adopted because
the United States is included in the
word ‘‘governmental.’’
A few comments suggested various
modifications to paragraph (1) regarding
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the words ‘‘Indian’’ or ‘‘Indian lands’’ in
order to remove confusion with the
definition of Indian lands in IGRA.
Response: These recommendations
were adopted and the references to
Indian and Indian lands were removed.
Section 292.2 How are key terms
defined in this part?
Legislative termination:
One comment suggested deleting the
brackets around ‘‘and/or its members’’
in order to be consistent with § 292.9(b)
and § 292.10(c).
Response: This recommendation was
adopted.
Section 292.2 How are key terms
defined in this part?
Nearby Indian tribe:
A number of comments regarded the
25-mile radius limitation. Some
comments suggested the definition
include no mile limitation while others
offered various extensions of the mile
limitation based on whether the area is
urban or rural.
Response: These recommendations
were not adopted. The 25-mile radius is
consistent throughout the regulations
and provides uniformity for all the
parties involved in the Secretarial
Determination process.
One comment suggested that the
definition include a tribe’s Federal
agency service area.
Response: This recommendation was
not adopted because a tribe’s service
area is too difficult to define for
purposes of applying a limitation to
nearby Indian tribes.
One comment suggested striking the
reference to 25 U.S.C. 2703(4).
Response: This recommendation was
adopted.
A few comments suggested that the
definition should include any tribes
with significant cultural or historical
ties to the proposed site. One comment
suggested that the definition include
any tribe within the same county as the
proposed gaming site, and another
comment suggested that the definition
include any tribe within the same State.
Response: These recommendations
were not adopted because they are
beyond the scope of the regulations and
inconsistent with IGRA. The statute
specifically uses the word nearby.
Therefore, ‘‘any’’ tribe cannot be
included in the definition.
One comment suggested that the
definition should include tribes whose
on-reservation economic interest may be
detrimentally affected by the proposed
gaming site. Another comment
suggested creating a standard for
‘‘detrimental impact on nearby tribe.’’
Response: These recommendations
were not adopted. The definition
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qualifies a ‘‘nearby tribe’’ in terms of
distance to a proposed gaming
establishment. Thus, if an Indian tribe
qualifies as a nearby Indian tribe under
the distance requirements of the
definition, the detrimental effects to the
tribe’s on-reservation economic interests
will be considered. If the tribe is outside
of the definition, the effects will not be
considered. The Department will
consider detrimental impacts on a caseby-case basis, so it is unnecessary to
include a standard. The definition of
‘‘nearby Indian tribe’’ is made consistent
with the definition of ‘‘surrounding
community’’ because we believe that the
purpose of consulting with nearby
Indian tribes is to determine whether a
proposed gaming establishment will
have detrimental impacts on a nearby
Indian tribe that is part of the
surrounding community under section
20(b)(1)(A) of IGRA. See discussion of
the term ‘‘surrounding community’’
below.
Section 292.2 How are key terms
defined in this part?
Newly acquired lands:
Several comments inquired as to the
applicability of section 2719 to
restricted fee lands, and to trust or
restricted lands of individual Indians.
Response: In response to these
inquiries, a definition of ‘‘newly
acquired lands’’ was added to the
regulations. It encompasses lands the
Secretary takes in trust for the benefit of
an Indian tribe after October 17, 1988.
It does not encompass lands acquired by
a tribe in restricted fee after October 17,
1988 as discussed above in a response
in § 292.1. It does not include land
taken in trust after October 17, 1988 for
individual Indians, nor land acquired
after October 17, 1988 in restricted fee
by individual Indians, because the
language in section 2719 of IGRA is
limited to Indian tribes.
Section 292.2 How are key terms
defined in this part?
Reservation:
In response to comments, the
definition of reservation is clarified and
amended to include four paragraphs.
The definition now specifically includes
land acquired by a tribe from a
sovereign, such as pueblo grant lands,
acknowledged by the United States.
Such grants occurred prior to the land
coming under the jurisdiction of the
United States, and is a closed set. The
definition also specifically includes
land set aside by the United States for
Indian colonies and rancherias for the
permanent settlement of the tribe,
which were encompassed in part by the
prior reference to ‘‘judicial
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determination, or court-approved
stipulated entry of judgment to which
the United States is a party.’’ Both
pueblo grant lands and rancherias are
treated as reservations under existing
Indian lands opinions.
One comment objected that land
acquired under the Indian
Reorganization Act (IRA), for purposes
of reorganizing the half-bloods residing
thereon, would not fall within the
meaning of reservation as defined in the
proposed rule.
Response: This recommendation was
adopted and such land is now
specifically included in the definition. If
such land was proclaimed a reservation
by the Secretary, it would be
encompassed with the definition of
reservation under both paragraphs (1)
and (3). If that land was not proclaimed
a reservation, it would nevertheless fall
within paragraph (3) of the revised
definition, as land acquired by the
United States to reorganize adult
Indians pursuant to statute.
One comment questioned whether the
definition of reservation could be
interpreted as including a disestablished
reservation, or the area of a reservation
that was ceded, leaving a diminished
reservation.
Response: Reservation within these
regulations does not include a
disestablished reservation. Reservation
does not include land ceded from the
reservation that resulted in a
diminished reservation. In addition,
because the term ‘‘reservation’’ has
different meanings under different
statutes, the reference to ‘‘judicial
determination, or court-approved
stipulated entry of judgment to which
the United States is a party’’ was deleted
as overly broad and likely inconsistent
with both the purposes of IGRA and the
distinction in IGRA between
‘‘reservation’’ and ‘‘trust land.’’
One comment suggested that the term
‘‘reservation’’ in IGRA be the same as
Indian Country in 25 U.S.C. 1151.
Response: We did not adopt this
comment because Congress in enacting
IGRA chose to use the concept of Indian
lands instead of Indian Country.
Moreover, Congress in IGRA
distinguishes between trust lands and
reservations in section 2719. Therefore
for the purposes of these regulations
that interpret section 2719 of IGRA,
‘‘reservation’’ for purposes of gaming on
after acquired lands is limited to the
four delineated categories in the
definition of reservation and not lands
that could be Indian Country for other
purposes. Thus for the purposes of
determining whether gaming can occur
pursuant to section 2719, reservation
does not include all property held in
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trust, as IGRA distinguishes reservation
from trust lands in its definitions.
Section 292.2 How are key terms
defined in this part?
Surrounding community:
Several comments related to the
requirement that local governments and
nearby Indian tribes be within 25 miles
of the site of the proposed gaming
establishment. Some comments
suggested a greater distance, for
example 50 miles; others urged no limit
and instead recommended alternate
factors, for example the community as
defined by the National Environmental
Policy Act (NEPA). One comment
suggested that the surrounding
community include any tribe in the
State where the gaming facility is
located.
Response: These recommendations
were not adopted. The definition was
modified so it is consistent with the rest
of the regulations and the word radius
was added. The 25-mile radius is
consistent throughout the regulations
and provides uniformity for all parties
involved in the Secretarial
Determination process. There is no
legislative history informing
Congressional intent in defining how
the term ‘‘surrounding community’’ in
section 20(b)(1)(A) of IGRA should be
interpreted. However, it is reasonable to
assume that Congress did not intend
that all possible communities be
consulted, no matter how distant,
because Congress was concerned with
how a proposed gaming establishment
would affect those individuals and
entities living in close proximity to the
gaming establishment, or those located
within commuting distance of the
gaming establishment. The
‘‘surrounding community’’ is defined in
order for the Secretary to determine
whether a proposed gaming
establishment would be detrimental to
the ‘‘surrounding community.’’ Since
1994, the BIA has published a
‘‘Checklist’’ to guide agency officials in
implementing section 20 of IGRA. The
‘‘surrounding community’’ was first
defined to include local governments
within 30 miles of the proposed gaming
establishment, and nearby Indian tribes
within 100 miles of the proposed
gaming establishment. The Checklist
was subsequently modified in 1997 to
include only those local governments
whose jurisdiction includes or borders
the land, and nearby Indian tribes
located within 50 miles of the proposed
gaming establishment because our
experience with the 1994 standard was
that it included communities that were
not impacted by the gaming
establishment. In addition, this
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modification was made so that the term
‘‘surrounding community’’ would be
similar to the consulted community
under 25 CFR part 151. In 2005 the
Checklist modified the term
‘‘surrounding community’’ to include
local governments within ten miles of
the proposed gaming establishment. The
2005 modification was made because
the purpose of the consultation with
State and local officials is to assess
detriment to the surrounding
community, and our experience in
limiting the consultation to those local
governments with jurisdiction over the
land or adjacent to the land was too
narrow. Ultimately, our objective in the
regulation is to identify a reasonable
and consistent standard to define the
term ‘‘surrounding community’’ and we
believe that it is reasonable to define the
surrounding community as the
geographical area located within a 25mile radius from the proposed gaming
establishment. Based on our experience,
a 25-mile radius best reflects those
communities whose governmental
functions, infrastructure or services may
be affected by the potential impacts of
a gaming establishment. The 25-mile
radius provides a uniform standard that
is necessary for the term ‘‘surrounding
community’’ to be defined in a
consistent manner. We have, however,
included a rebuttable presumption to
the 25-mile radius. A local government
or nearby Indian tribe located beyond
the 25-mile radius may petition for
consultation if it can establish that its
governmental functions, infrastructure
or services will be directly, immediately
and significantly impacted by the
proposed gaming establishment.
One comment suggested changing the
definition to ‘‘surrounding
governmental entities’’ because it would
limit the consultation process to a
government-to-government basis.
Response: This recommendation was
not adopted because IGRA uses
‘‘surrounding community.’’
One comment suggested that the
definition be limited to local
governments and nearby Indian tribes
within the State of the applicant tribe’s
jurisdiction.
Response: This recommendation was
not adopted. The definition includes
local governments and nearby tribes
located in other States if they are within
a 25-mile radius.
Section 292.2 How are key terms
defined in this part?
Tribe:
Several comments requested a more
elaborate definition of tribe. One
comment suggested that all references of
‘‘Indian tribe’’ be changed to ‘‘tribe.’’
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Response: The comments
recommending a more elaborate
definition of Indian tribe were adopted.
The definition was renamed ‘‘Indian
tribe or tribe.’’ It is unnecessary to
change all references of ‘‘Indian tribe’’
to ‘‘tribe’’ because they are now both
defined.
Section 292.2 How are key terms
defined in this part?
General comments regarding § 292.2:
One comment suggested adding a
definition of trust land.
Response: This recommendation was
adopted in part and is addressed in the
definition of ‘‘newly acquired lands.’’
One comment suggested adding a
definition of ‘‘gaming’’ that includes
ancillary structures such as hotels and
parking.
Response: This recommendation was
not adopted because it is outside the
scope of the regulations and
inconsistent with IGRA.
One comment suggested adding a
definition of ‘‘State or States.’’
Response: This recommendation was
adopted in part. The statutory term
‘‘State or States’’ along with some
defining language was inserted in
§§ 292.4, 292.6 and 292.12 in order to
add clarity.
Subpart B—Exceptions to Prohibitions
on Gaming on Newly Acquired Lands
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Section 292.3 When can a tribe
conduct gaming activities on trust
lands?
The Department received a few
comments on this section; mostly
related to structure. Additionally, a few
comments suggested that this section is
an appropriate section to add a
paragraph discussing the applicability
of these regulations to applications for
Secretarial Determinations and requests
for lands opinions that tribes submitted
before the effective date of these
regulations; for those both acted upon
and those that are pending.
Response: The recommendation
regarding pending and acted upon
Secretarial Determinations and requests
for lands opinions was adopted and
addressed in new § 292.26. The
comments related to structure were not
adopted because the section was deleted
in its entirety and replaced with new
§ 292.3: ‘‘How does a tribe seek an
opinion on whether its newly acquired
lands meet, or will meet, one of the
exceptions in this subpart?’’ The former
section did not offer anything that is not
covered in other parts of the regulation.
Therefore, in response to comments
requesting guidance on the process for
seeking opinions under section 2719,
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the Department added the new section.
Paragraph (a) allows a tribe to submit a
request for an Indian lands opinion to
either the NIGC or to the Office of
Indian Gaming (OIG). As a general
matter under this paragraph, a tribe
should submit the request to NIGC
when newly acquired lands are already
in trust and, for example, there is a
pending gaming ordinance or
management contract before the NIGC
Chairman or there is a question whether
NIGC has, or would have, regulatory
jurisdiction under IGRA. The tribe
should submit the request to OIG if the
request concerns reservation boundaries
or reservation status. Paragraph (b)
requires the tribe to submit a request for
an Indian lands opinion to the OIG if
the tribe must also request a land-intotrust application in order to game on the
newly acquired lands or the request
concerns whether a specific area of land
is a reservation. An opinion provided in
response to a request under paragraphs
(a) or (b) is not, per se, a final agency
action under the Administrative
Procedures Act (APA). Final agency
action only occurs when agency officials
act on a determination pursuant to
powers granted them by Congress.
Communications from administrative
agencies thus range ‘‘from obvious
agency action, such as adjudications
and regulation, to informal
pronouncements, such as opinion
letters,’’ which are not ?nal agency
actions. See, e.g., Sabella v. United
States, 863 F. Supp. 1, 4 (D.D.C. 1994).
Cheyenne-Arapaho Gaming
Commission v. NIGC, 214 F. Supp. 2d
1155, 1158 (N.D. Okla. 2002); Sabella,
863 F. Supp. at 5.
Section 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?
This section was renamed ‘‘What
criteria must newly acquired lands meet
under the exceptions regarding tribes
with and without a reservation?’’
For clarity, the references to ‘‘trust
lands’’ in this subpart were changed to
‘‘newly acquired lands.’’
One comment suggested a rule in this
section that precludes structures and
activities that support or are ancillary to
gaming operations on contiguous lands.
Response: This recommendation was
not adopted because section 2719 of
IGRA is concerned with lands on which
gaming will occur. Support or ancillary
operations to gaming facilities do not
play a part in the analysis as to whether
gaming will be permitted under this
section.
One comment objected to any
requirement that would limit a tribe to
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acquiring new lands for gaming that are
‘‘adjacent’’ to their original reservation.
Response: The requirement that limits
a tribe to contiguous lands for gaming
purposes is already written into law and
these regulations cannot make a
substantive change to that law.
A few comments suggested a
substantial revision of this section so
that it would eliminate inaccuracies,
conform to the statute and add clarity.
Response: The suggestions were
adopted in part and the section was
revised in order to address the concerns
and more closely mirror the statute.
‘‘Settlement of a Land Claim’’ Exception
Section 292.5 What must be
demonstrated to meet the ‘‘settlement of
a land claim’’ exception?
This section was renamed ‘‘When can
gaming occur on newly acquired lands
under a settlement of a land claim?’’
Comments on paragraph (a):
One comment suggested that the rule
should require that, along with the
State, the affected local governments
also must approve a settlement if it is to
qualify for the exception.
Response: This recommendation was
not adopted because the regulations can
neither dictate the language of
Congressional legislation nor the parties
to a particular settlement agreement;
whether it is a final order or some other
enforceable agreement. If a local
government is a party in a matter
concerning a settlement of a land claim,
then its approval would be necessary.
One comment suggested that the rule
should require that a tribe have a
demonstrable historical connection to
the site chosen.
Response: This recommendation was
not adopted because the regulations can
neither dictate the requirements of
Congressional legislation nor the terms
to a particular settlement agreement;
whether it is a final order or some other
enforceable agreement.
One comment suggested the following
insertion at paragraph (a)(2): ‘‘Has been
resolved by congressional enactment;
or.’’
Response: This recommendation was
addressed through the changes to
paragraph (a).
One comment suggested adding a new
paragraph (a)(3) as follows: ‘‘Relates to
the acquisition, transfer or exchange of
land to compensate for or replace land
within a reservation that is damaged or
otherwise rendered uninhabitable by a
natural disaster, catastrophic event, or
other action.’’
Response: This recommendation was
not adopted because it is unnecessary to
either include or exclude, in the
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regulations, claims based on particular
sets of facts and circumstances.
A few comments suggested that under
paragraph (a)(1), the rule should state
that land would not be eligible for
gaming if the claim is dismissed on
procedural grounds.
Response: This recommendation was
not adopted because a dismissal on
procedural grounds, i.e., laches, does
not necessarily mean that a claim lacks
merit and may not resolve other issues
related to impairment of title or loss of
possession.
One comment was concerned that
under paragraph (a)(1), the language
‘‘has not been dismissed on substantive
grounds’’ is vague and another comment
suggested dropping the clause
altogether.
Response: This recommendation was
adopted.
One comment suggested that
paragraph (a)(1) should include actions
filed in State court.
Response: The recommendation was
not adopted because the land claims
within the meaning of IGRA arise under
Federal statute, Federal common law,
the U.S. Constitution or a treaty and
jurisdiction lies in Federal, not State
court.
One comment suggested that under
paragraph (a)(1), language be added as
follows: ‘‘wherein the relief sought is
(A) return of land, (B) conveyance of
replacement land, or (C) monetary and
Congress enacts legislation to mandate
that a portion of the monetary recovery
(i.e., the judgment funds) be used to
purchase real property.’’
Response: The recommendation was
not adopted because the regulations
cannot dictate the terms of a settlement
or the relief a tribe may seek. While the
language of the regulation does not
specifically address the scenarios
addressed in the comment, when a
particular land claim otherwise meets
the definition, whether for example the
legal basis involves the impairment of
title or other real property interest such
as a lease, and the relief includes the
return of land, conveyance of
replacement land, or money for the
purchase of other real property, the land
claim may meet the requirements of this
section as long as it is either subject to
Congressional enactment or returns to
the tribe all of the lands claimed by the
tribe.
One comment suggested paragraph
(a)(2) be replaced with the following
language: ‘‘Is a legal claim of a tribe that
has not been filed in Federal or State
court.’’
Response: The recommendation was
not adopted; however, the definition
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and regulation allow for a land claim
that is not filed in court.
One comment suggested adding a new
paragraph (a)(3) to read: ‘‘Has been the
subject of Federal legislation which
allows for acquisition of land.’’
Response: The recommendation was
adopted in part and is in included in
paragraph (a) of the reorganized section.
One comment suggested replacing in
paragraph (a)(2) ‘‘included’’ with
‘‘identified.’’
Response: Due to a reorganization of
this section, the suggestion is no longer
relevant.
Comments on paragraph (b):
One comment suggested replacing in
paragraph (b) ‘‘must be covered by’’
with ‘‘must have been acquired
pursuant to.’’
Response: Due to a reorganization of
this section, the suggestion is no longer
relevant.
One comment suggested the following
edits in paragraph (b)(1): ‘‘States that the
tribe is relinquishing its legal land claim
to some or all of the lands claimed by
the tribe as part of the settlement,
results in the alienation or transfer of
title to tribal some or all of the lands
claimed by the tribe within the meaning
of 25 U.S.C. 177, and has been enacted
into law by the United States Congress;
or’’
Response: Due to reorganization of
this section, the suggestion is no longer
relevant, but the concepts behind the
edits were adopted in part, and
incorporated into the reorganized
section.
One comment suggested the following
edits in paragraph (b)(2): ‘‘Returns to the
tribe lands identical to the entirety of
the exact lands claimed by the tribe,
does not involve an alienation or
transfer of title to tribal lands claimed
by the tribe that is prohibited under 25
U.S.C. 177, and is either:’’
Response: Due to a reorganization of
this section, the suggestion is no longer
relevant.
One comment suggested deleting the
following language under paragraph
(b)(1): ‘‘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.’’
Response: This recommendation was
adopted in part as it pertains to 25
U.S.C. 177.
One comment suggested replacing
paragraph (b)(2) with ‘‘Returns to the
tribe lands or allows acquisition of
lands that the tribe has a historical
connection to and is either * * * ’’
Response: This recommendation was
not adopted because the regulations
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cannot dictate the terms of the
settlement.
One comment suggested modifying
the language in paragraph (b)(2)(i) to
include both Federal and [S]tate court.’’
Response: This recommendation was
not adopted. The definition precludes
actions filed in State court because land
claims, within the meaning of IGRA, are
based on Federal law. In addition,
comments revealed that the proposed
regulations could be read to identify
settlements between a tribe and State
without the involvement of the Federal
Government. The final regulations
clarify that the U.S. must be a party to
the settlement.
One comment suggested adding a new
paragraph (b)(2)(iii) that reads:
‘‘Acquired pursuant to Federal
legislation.’’
Response: This recommendation was
adopted in part and reflected in the
reorganized section.
One comment suggested that the
exception should be amended to apply
to an out-of-court settlement that is
approved by the United States and that
only requires the non-Indian party to
voluntarily vacate the premises, pay
damages, or allows the settlement
agreement to be implemented through
Secretarial approval of some form of
conveyance of interest in Indian land
under existing law.
Response: The recommendation to
amend the exception to apply under the
exact scenario described by the
comment was not adopted; however, to
the extent that the United States is a
party, the scenario would fit under the
exception.
One comment suggested replacing the
introduction with ‘‘Under this section,
class II or class III gaming may be
conducted on trust lands only if the
criteria of both (a) and (b) are met.’’
Response: This recommendation was
not adopted. The section was
reorganized and the recommendation is
no longer relevant.
A few comments suggested that the
rule should require a settlement to be
ratified either by Congress or consented
to by the affected local government.
Response: This recommendation was
adopted to the extent that it relates to
Congressionally enacted settlements and
to the extent an affected local
government is a party to a particular
settlement agreement, whether it is a
final order or some other enforceable
agreement.
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‘‘Initial Reservation’’ Exception
Section 292.6 What must be
demonstrated to meet the ‘‘initial
reservation’’ exception?
One comment suggested that
§ 292.6(a) inappropriately restricts the
scope of the ‘‘Federal acknowledgment
process’’ to the regulatory procedures in
25 CFR part 83.
Response: The Department does not
accept the recommendation to apply
these regulations more broadly to
recognition by means other than that
through 25 CFR part 83. The plain
meaning of the statute suggests that it
applies to tribes acknowledged by this
process and no others.
Comments on paragraph (b):
Several comments suggested deleting
paragraph (b). One comment stated that
there is no mention of location with
respect to tribal members or tribal
government in IGRA and that it is unfair
to tribes with widely dispersed
populations due to allotment and
termination. One comment
fundamentally disagreed with and
recommended eliminating the 50-mile
majority membership requirement.
Response: These recommendations
were adopted in part. While a so-called
‘‘modern connections’’ requirement was
not eliminated entirely, the paragraph
was modified in response to a number
of comments that suggested that the
requirement encompass a wider range of
criteria. The 50-mile majority
requirement was eliminated and the
paragraph was amended to reference a
significant number of tribal members or
other factors that demonstrate the tribe’s
current connection to the land. The
inclusion of a modern connections
requirement provides an element of
notice to the surrounding community
yet the elimination of the 50-mile
majority requirement recognizes that the
standard is too difficult to apply in
today’s mobile work related
environment.
A few comments suggested reducing
the 50-mile majority requirement to 25
miles so the mileage requirements are
the same for both the ‘‘tribal majority
test’’ and the ‘‘headquarters test’’ in
paragraph (b). Another comment
suggested making the ‘‘50-mile majority
test’’ and the ‘‘headquarters test’’
conjunctive instead of disjunctive, for
example; making the ‘‘or’’ an ‘‘and.’’
Response: These recommendations
were not adopted because the purpose
of the exception is to assist newly
recognized tribes in economic
development. As long as the tribe has a
modern connection to the land, the
surrounding community has notice of
the tribal presence.
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Several comments suggested that the
‘‘headquarters test’’ is easily
manipulated and should not be
included. Some comments suggested
increasing the 25-mile limit.
Response: The recommendations to
remove the headquarters test and to
alter the 25-mile radius were not
adopted because the headquarters test is
a useful means of determining whether
a tribe has a modern connection to the
newly acquired land and the 25-mile
radius is both useful and consistent.
(The word radius was added to the
regulation to provide clarity.)
Nonetheless, the concerns raised by
these comments are legitimate because
the version of the headquarters test in
the proposed regulations could be
construed as being open to
manipulation. Therefore, the qualifier
was added in the final regulations that
the tribe’s headquarters or other tribal
governmental facilities be in existence
at that location for at least two years at
the time of the application for land-intotrust. The addition of ‘‘other tribal
governmental facilities’’ was necessary
due to concerns that tribes often operate
out of more than one headquarters or
facility.
One comment suggested that the
‘‘headquarters test’’ is not in the best
interest of the tribe because it may
separate a headquarters from a tribal
population center.
Response: This concern was
addressed through the modification of
paragraph (b). A tribe may show a
modern connection through not only a
nearby headquarters but also through
other tribal governmental facilities.
Comments on paragraph (c):
A few comments suggested deleting
the reference to ‘‘cultural connection’’
because it is essentially a subset of
historical connections and adds
redundancy and confusion to the
regulation.
Response: This recommendation was
adopted.
One comment suggested adding
specific examples of significant
historical and cultural connections in
paragraph (c), for example, ‘‘designated
in a treaty, whether ratified or not.’’
Another comment stated that the term
‘‘significant historical connection’’ is
too vague to offer any protection to
tribes or citizens and that the regulation
should not allow gaming on lands to
which a tribe has only a transient
connection. Several comments
specifically suggested a definition for
‘‘significant historical connections.’’
Response: This recommendation was
adopted in part through the addition of
the new definition ‘‘significant
historical connections.’’
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One comment suggested deleting (c).
Response: This recommendation was
not adopted. The significant historical
connection requirement insures that the
tribe has a preexisting connection to the
newly acquired lands proposed to be its
initial reservation. Furthermore, the
Department does not believe it is good
policy to create an initial reservation in
an area where the tribe has no
preexisting connection.
One comment suggested that the word
‘‘area,’’ as it relates to the term
‘‘significant historical connection,’’ is
too broad. The comment suggested that
gaming should be limited to ancestral
homelands and that language should be
inserted to reference 25 CFR 151.11(b)
so that as distance from homeland
increases—nearby local officials, State
officials and tribe’s input gains greater
weight.
Response: This recommendation was
not adopted because the actual land to
which a tribe has significant historical
connection may not be available.
Additionally, input from nearby local
officials, State officials and other tribes
is not part of the Initial Reservation
analysis in section 2719.
One comment suggested that the
significant historical connection
requirement should be uninterrupted
connection. Another comment
suggested that the requirement should
show historically exclusive use.
Response: These recommendations
were not adopted. They would create
too large a barrier to tribes in acquiring
lands and they are beyond the scope of
the regulations and inconsistent with
IGRA.
General comments on § 292.6:
One comment noted that there is
nothing in the ‘‘Initial reservation’’
section of the regulations regarding
process so the public has an opportunity
to comment.
Response: Unlike the exception in
IGRA section 2719(b)(1)(A), the
exceptions in section 2719(b)(1)(B) do
not reference an opportunity for public
comment. Because the section
2719(b)(1)(B) exceptions do not require
public comment and since they present
a fact-based inquiry, it is unnecessary to
include a requirement for public
comment in the regulations.
Nonetheless, there are opportunities for
public comment in other parts of the
administrative process—for example, in
the process to take the land in trust and
during the NEPA review process.
Although the regulations do not provide
a formal opportunity for public
comment under subpart B of these
regulations, the public may submit
written comments that are specific to a
particular lands opinion. Submissions
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may be sent to the appropriate agency
that is identified in § 292.3.
One comment suggested that the
regulations include the process by
which the BIA will make their
decisions. Another comment suggested
that the regulations need to include
standards by which the Secretary will
make a decision.
Response: These recommendations
were adopted in part. If the tribe does
not have a proclaimed reservation on
the effective date of these regulations,
§ 292.6(d) provides standards that the
tribe must demonstrate in order to be
proclaimed a reservation under the
initial reservation exception.
One comment suggested that the
regulations add a section that provides
that lands far removed from historical
territory shall not be taken into trust for
gaming.
Response: This recommendation was
not adopted because the comment raises
issues pertaining to 25 CFR part 151—
Land Acquisitions.
One comment suggested that the
tribes should be required to analyze
sites that are close to aboriginal
homelands.
Response: This recommendation was
not adopted. Newly acquired lands with
significant historical and cultural
connections may or may not include
those that are close to aboriginal
homelands.
A few comments suggested striking all
of paragraphs (b) and (d) along with a
large amount of (c) and (e) so that this
paragraph would limit ‘‘initial
reservation’’ to a tribe acknowledged
under part 83 and the condition that
‘‘the land is located within the external
boundaries of the first reservation of
lands set aside for the tribe.’’
Response: This recommendation was
not adopted, as it does not take into
account the present circumstances of
the tribe’s location.
One comment suggested crossreferencing ‘‘significant historical
connections’’ in the section to
§ 292.12(b).
Response: The intent of this
recommendation was adopted through
adding a definition of significant
historical connections to the definition
section.
One comment suggested that the
request for an opinion should include
the distance of the land from the
location where the tribe maintains core
governmental functions.
Response: The recommendation was
not adopted because the distance from
the tribal headquarters or other
governmental facility is just one of three
methods by which a tribe can meet the
modern connections requirement and is
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therefore not always necessary.
Additionally, it is not within the scope
of IGRA to restrict such analysis to
locations with ‘‘core’’ governmental
functions.
One comment suggested that the
regulations require a tribe to provide
information about the tribe’s ancestral
ties to the land.
Response: The recommendation was
not adopted; however, ancestral ties
would be part of the significant
historical connection analysis.
One comment suggested that the
regulations use only one test for both
the ‘‘initial reservation’’ exception and
the ‘‘restored lands’’ exception; the test
being that a majority of tribal members
live within 50 miles of the proposed
gaming site.
Response: This recommendation was
not adopted. The regulations articulate
a ‘‘modern connections’’ test for both
the ‘‘initial reservation’’ and ‘‘restored
lands’’ exceptions but the 50-mile
majority requirement was eliminated
from each for the reasons discussed
under the comments for paragraph (b).
One comment noted that the BIA does
not define what uses can be made of an
initial reservation. The commenter was
concerned about an initial reservation
established solely for casino
development.
Response: An initial reservation may
be used solely for the establishment of
a casino.
One comment suggested a
‘‘contemporary ties’’ test instead of
using the ‘‘modern connections test’’ as
set forth in the proposed regulations.
Response: This recommendation was
adopted in part. The term
‘‘contemporary ties’’ was not used, but
the modern connections test as set forth
in the proposed regulations was
modified using some of the suggestions
that were given in relation to the
‘‘contemporary ties’’ test.
One comment suggested striking (e)
and replacing it with ‘‘the tribe has not
conducted gaming on any other lands
proclaimed to be a reservation under 25
U.S.C. 467.’’
Response: This recommendation was
not adopted. Gaming is allowed on the
initial reservation under this exception.
If other newly acquired land is declared
a reservation, gaming can occur on it
under a two part determination without
precluding gaming on the initial
reservation. To preclude gaming on the
initial reservation would be contrary to
the congressional intent in providing
this exception.
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‘‘Restored Lands’’ Exception
Section 292.7 What must be
demonstrated to meet the ‘‘restored
lands’’ exception?
A few comments noted that there are
no opportunities for public comment on
restored lands decisions.
Response: Unlike the exception in
IGRA section 2719(b)(1)(A), the
exceptions in section 2719(b)(1)(B) do
not reference an opportunity for public
comment. Because the section
2719(b)(1)(B) exceptions do not require
public comment and since they present
a fact-based inquiry, it is unnecessary to
include a requirement for public
comment in the regulations.
Nonetheless, there are opportunities for
pubic comment in other parts of the
administrative process—for example, in
the process to take the land in trust and
during the NEPA review process.
Although the regulations do not provide
a formal opportunity for public
comment under subpart B of these
regulations, the public may submit
written comments that are specific to a
particular lands opinion. Submissions
may be sent to the appropriate agency
that is identified in § 292.3.
One comment suggested that the tests
for significant historic connections and
modern connections are deficient
because they allow tribes without true
historic ties and with inadequate
modern ties to game on lands under the
restored lands exception.
Response: The Department received
comments suggesting the opposite of
this argument as well; suggesting that
the historical and modern tests were too
restrictive. The final regulations
consider both sides of this issue and
modifications were made accordingly.
One comment suggested using the
term ‘‘recognized by the United States’’
instead of the term ‘‘federally
recognized’’ because of a concern of
confusion arising from the defined term
‘‘federally recognized’’ in the proposed
regulations.
Response: This recommendation was
not adopted; however, the potential
confusion was remedied through the
omission of a defined term ‘‘federally
recognized’’ in the final regulation in
favor of a modification of the term
‘‘Indian tribe or tribe.’’
One comment suggested adding a
paragraph to § 292.7 that the lands
acquired in trust for the tribe meet the
requirements of § 292.11.
Response: This recommendation was
adopted for purposes of clarity.
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Section 292.8 How does a tribe qualify
as having been federally recognized?
One comment suggested that
paragraph (a) include more details
regarding the treaty negotiations with
the tribe. For example, the comment
suggested including the following
requirements: Detailing who negotiated
with a tribe; that the negotiations be
authorized by the Department; that the
facts and subject matter of the
negotiations be memorialized; that the
tribe be organized at the time of the
negotiation; and that a definition of
‘‘negotiates’’ be included to mean a goaloriented government-to-government
discussion.
Response: These recommendations
were not adopted. Paragraph (a) will be
applied on a case by case basis.
One comment suggested that
paragraph (b) should require that the
Department make the opinion formally,
in writing, and according to governing
regulations.
Response: This recommendation was
not adopted. While the opinions are
always going to be in writing, in the past
they were made with varying degrees of
formality depending on the situation
presented. Regulatory guidance making
these requirements mandatory is not
feasible and is unnecessary.
One comment suggested paragraph (b)
should not use the word ‘‘could’’
because there is a difference between
tribes that could and tribes that actually
did organize under the Acts.
Response: This recommendation was
not adopted because a Departmental
opinion that a tribe could organize is
evidence of Federal recognition,
regardless of whether the tribe actually
organized under the Acts.
One comment suggested that the word
‘‘including’’ in paragraph (c) be
removed and that the paragraph be
modified to require the legislation to
specifically name the tribe in question
and to describe the substance of the
relationship.
Response: This recommendation was
adopted in part. The word ‘‘including’’
was removed and replaced with the
word ‘‘naming.’’
A few comments suggested paragraph
(d) needs modification. One comment
suggested differentiating between land
acquired for organized and land
acquired for landless Indians without
‘‘ethno historic coherence.’’ Another
comment argued that the section is too
permissive because it qualifies a tribe as
having been recognized if the United
States acquires land in trust for a tribe’s
benefit.
Response: These recommendations
were not adopted. Paragraph (d), as
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written, provides sound guidance to the
Department in issuing its opinion
regarding whether a tribe was once
federally recognized.
One comment suggested paragraph (e)
should require certain standards
regarding the tribe, the relationship with
the Federal Government, and what
constitutes evidence.
Response: These recommendations
were not adopted because the regulation
needs no further elaboration and is clear
on its face.
One comment suggested striking the
word ‘‘federally’’ from the introduction
sentence and the word ‘‘Federal
Government’’ from paragraph (e).
Response: These recommendations
were not adopted because IGRA is a
Federal statute concerning federally
recognized tribes, 25 U.S.C. 2703(5).
One comment suggested that the
section include a paragraph (f) that
requires the tribe seeking a lands
opinion to be the political and
genealogical successor to the tribe
identified through paragraphs (a)
through (e).
Response: This recommendation was
not adopted because it is unnecessary.
These concerns are addressed and
inherent in the restored lands analysis
under §§ 292.9–12.
One comment suggested using
Professor Cohen’s test for Federal
recognition, which it characterized as
Congressional or Executive action and a
continuing relationship with the group,
and that restored lands opinion should
be made by the BIA’s Branch of
Acknowledgment and Research (BAR),
now the Office of Federal
Acknowledgment (OFA).
Response: These recommendations
were not adopted because OFA’s
expertise is in analyzing a petitioner
under other criteria, such as
community, political influence, and
genealogy, not land matters. The section
already requires Executive or
Congressional action. The continuing
relationship can be evaluated under (e),
but is not required when any of factors
(a) through (d) are demonstrated.
Section 292.9 How does a tribe show
that it lost its government-togovernment relationship?
A comment questioned how old a
document must be to be considered
‘‘historical’’ and another comment
wanted to include as acceptable
evidence, documentation from sources
other than the Federal Government,
including oral histories, to show that the
Federal Government either affirmatively
terminated its relationship or that the
relationship ceased to exist, such as
through inaction.
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Response: These recommendations
were not adopted. Although ‘‘historical’’
is somewhat imprecise, it adds clarity to
the type of documentation that is
acceptable evidence under this section.
Modern documents about events in the
past are not acceptable evidence.
Acceptable documentation is written
documentation from the Federal
Government specifically terminating the
relationship, or indicating consistently
that there is no longer a government-togovernment relationship with the tribe
or its members. Historical or modern
accounts that conclude or assume that
there is no government-to-government
relationship, or that the relationship has
lapsed through inaction of the tribe or
the government, are secondary evidence
and are not acceptable evidence within
the meaning of this section. Similarly,
historical or modern accounts that the
Federal Government did not or does not
acknowledge a specific responsibility
with the group because there is no
longer a trust asset to protect or
disburse, or because the Federal
Government did not or does not know
who the group is, are not acceptable
evidence, even if the account is from the
Federal Government.
One comment stated that in paragraph
(a), the Congressional action must be
clear that the relationship was
terminated and that the tribe be
identified by name.
Response: This recommendation was
not adopted because the commenter did
not suggest how to clarify the paragraph.
The paragraph, as written, is sufficient
to address the commenter’s concerns.
One comment suggested adding the
phrase ‘‘clearly and affirmatively acted
to’’ after ‘‘Executive Branch,’’ in
paragraph (b), in order to preclude tribes
from asserting that administrative errors
constitute deliberate acts of termination.
Response: This recommendation was
not adopted because the words ‘‘show’’
and ‘‘no longer’’ are adequate.
A few comments argued that the
paragraph (b) should give no excessive
deference to the Department of the
Interior or the Department of Justice and
that all branches of the Federal
Government should be given equal
weight. One comment suggested adding
‘‘Federal Government’’ at the end of the
first sentence. In addition to adding
‘‘Federal Government,’’ another
comment suggested striking everything
but the first sentence.
Response: This recommendation was
adopted in part and the paragraph was
modified by using the words ‘‘Federal
Government.’’ The second sentence was
retained because it is necessary.
One comment stated that in paragraph
(b) the rule should make clear that the
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documentation include evidence that
the tribal government existed at the time
of the termination, that the acts
constituting the termination were
unambiguous, and that the subsequent
acts by the Government were consistent
with the tribe’s termination.
Response: This recommendation was
not adopted. Tribe is a defined term and
the definition is adequate to address the
commenter’s concern. The language
pertaining to government action
requires that the action be
unambiguous. When termination is
unambiguous, then it is not necessary to
review whether subsequent acts are
consistent with the termination.
One comment suggested striking the
language ‘‘or its members’’ in paragraph
(b) because the comment stated that
there cannot be a government-togovernment relationship with members
apart from a tribal government.
Response: This recommendation was
not adopted. The language was kept in
order to accommodate a wide variety of
circumstances.
One comment suggested modifying
the preamble of this section with the
following: ‘‘as having at some later time
lost its government-to-government
relationship with the United States.’’
The comment stated that the change
makes the preamble consistent with the
language of § 292.7(b) and the
introductions to §§ 292.8 and 292.10.
Response: This recommendation was
adopted in general and the section was
modified accordingly. The specific
words ‘‘with the U.S.’’ were not added
as they are understood in light of
§ 292.8.
One comment questioned whether
California rancherias should be allowed
to qualify as restored lands under IGRA.
Response: While the California tribes
indeed share a unique path towards
restoration, if the newly acquired lands
otherwise meet the requirements of the
statute and regulations, the exception
pertains to them.
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Section 292.10 How does a tribe
qualify as having been restored to
Federal recognition?
One comment suggested changing the
term ‘‘tribal government’’ to ‘‘tribe,’’ in
paragraph (a), in order to be consistent.
Response: This recommendation was
adopted.
One comment stated that paragraph
(a) should make clear that the statute
must be unambiguous as to its intent
and identify the tribe being restored.
Response: This recommendation was
not adopted because the present
language anticipates this clarity and
specificity.
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One comment stated that 25 U.S.C.
2719(b)(1)(B)(iii) unambiguously
restricts application of the restored
lands exception to ‘‘an Indian tribe that
is restored to Federal recognition.’’
Thus, it argues, paragraph (a) is overly
broad and should be modified because
it allows recognition, acknowledgment
or restoration through legislative
enactment, including a tribe’s initial
recognition.
Response: This recommendation was
not adopted because Congress has not
been clear in using a single term in
restoration bills. Additionally, the
addition of ‘‘(required for tribes
terminated by Congressional action)’’ in
paragraph (a) addresses this issue. To
the extent this comment concerned
‘‘initial’’ recognition by Congress where
no prior relationship existed, legislation
would not be encompassed by § 292.9.
Several comments suggested that this
section needs to include administrative
actions of restoration, recognition, and
reaffirmation that are outside the
Federal acknowledgment process. For
example, one comment suggested
modifying paragraph (b) to read;
‘‘[r]ecognition through administrative
action,’’ and another suggested
‘‘recognition through other official
action of the Secretary or his/her
designee.’’
Response: This recommendation was
not adopted. Neither the express
language of IGRA nor its legislative
history defines restored tribe for the
purposes of section 2719(b)(1)(B)(iii).
When Congress enacted IGRA in 1988,
it authorized gaming by existing
federally recognized tribes on newly
acquired lands if those lands were
within or contiguous to the boundaries
of an existing reservation. If the tribe
had no reservation, Congress authorized
gaming on newly acquired lands within
the boundaries of its former reservation.
We can safely infer that Congress
understood that a list of federally
recognized tribes existed and authorized
on-reservation, or on former reservation,
gaming for those tribes. We must,
therefore, provide meaning to
Congress’s creation of an exception for
gaming on lands acquired into trust ‘‘as
part of the restoration of lands for an
Indian tribe restored to Federal
recognition.’’ We believe Congress
intended restored tribes to be those
tribes restored to Federal recognition by
Congress or through the part 83
regulations. We do not believe that
Congress intended restored tribes to
include tribes that arguably may have
been administratively restored prior to
the part 83 regulations.
In 1988, Congress clearly understood
the part 83 process because it created an
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exception for tribes acknowledged
through the part 83 process. The part 83
regulations were adopted in 1978. These
regulations govern the determination of
which groups of Indian descendants
were entitled to be acknowledged as
continuing to exist as Indian tribes. The
regulations were adopted because prior
to their adoption the Department had
made ad hoc determinations of tribal
status and it needed to have a uniform
process for making such determinations
in the future. We believe that in 1988
Congress did not intend to include
within the restored tribe exception these
pre-1979 ad hoc determination.
Moreover, Congress in enacting the
Federally Recognized Indian Tribe List
Act of 1994 identified only the part 83
procedures as the process for
administrative recognition. See Notes
following 25 U.S.C. 479a.
The only acceptable means under the
regulations for qualifying as a restored
tribe under IGRA are by Congressional
enactment, recognition through the
Federal acknowledgment process under
25 CFR 83.8, or Federal court
determination in which the United
States is a party and concerning actions
by the U.S. purporting to terminate the
relationship or a court-approved
settlement agreement entered into by
the United States concerning the effect
of purported termination actions. While
past reaffirmations were administered
under this section, they were done to
correct particular errors. Omitting any
other avenues of administrative
acknowledgment is consistent with the
notes accompanying the List Act that
reference only the part 83 regulatory
process as the applicable administrative
process.
One comment stated that paragraph
(c) is contrary to the Federally
Recognized Indian Tribe List Act of
1994, which it stated controls the
analysis of this rule. The comment
argues that a ‘‘court-approved stipulated
entry of judgment’’ is not a ‘‘decision’’
on the merits as specified in the Act.
Response: According to Department’s
analysis, paragraph (c) is not
inconsistent with the List Act. The
litigation encompassed by § 292.10
concerns challenges to specific actions
taken by the Federal Government
terminating, or purporting to terminate
a relationship, such as the Tillie
Hardwick litigation in California. There
is no reason under IGRA or the List Act
to preclude a settlement concerning
challenged termination actions from
‘‘restoring’’ a government-to-government
relationship if the U.S. is a party and the
court approves it.
One comment suggested adding the
following language to paragraph (c):
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‘‘Was entered into by the United States
which:’’ and striking paragraph (1).
Response: This recommendation was
adopted in part and the paragraph was
modified accordingly.
One comment suggested separating (c)
into two parts as follows: ‘‘(c)
Recognition through a judicial
determination; or (d) Recognition
through a court-approved stipulated
entry of judgment or other settlement
agreement.’’ The comment stated that
recognition through a judicial
determination should be sufficient,
whether or not the judicial
determination satisfies the criteria set
forth in paragraphs (1) and (2).
Response: This recommendation was
not adopted. While the structure of the
paragraph was changed, the criteria set
forth in (1) and (2) are still necessary. At
issue is the government-to-government
relationship between the U.S. and the
tribe, and the U.S. must be a party in
order to be bound by the court’s
decision.
One comment suggested that a courtapproved ‘‘settlement agreement’’
should be sufficient, whether or not it
is styled a ‘‘stipulated entry of
judgment.’’
Response: This recommendation was
adopted.
One comment suggests striking the
word ‘‘Provides,’’ in paragraph (2), and
replacing it with ‘‘Settles claims’’ in
order to remedy a potential scenario
where the settlement agreement omits
pertinent language but, nonetheless,
settles the tribe’s claim that it was never
legally terminated.
Response: This recommendation was
adopted, consistent with prior
administrative practice concerning the
Tillie Hardwick litigation.
One comment stated that since there
are no judicial findings in a courtapproved stipulated entry of judgment,
such means provide an inadequate basis
to restore a tribe.
Response: This concern was
addressed through the revision to
paragraph (c). The relevant operative
language in the Federal court
determination or court-approved
settlement agreement must include
language pertaining to termination
rather than restoration.
One comment noted that parties do
not enter into judicial determinations.
Thus, it argued, paragraph (1) does not
make sense as it pertains to paragraph
(c).
Response: This concern was
addressed and the paragraph was
amended accordingly.
One comment suggested that the
regulations should provide a
mechanism to give notice of any action
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to affected local communities.
Furthermore, the comment suggested
that the rule should make clear that the
party has standing to intervene if it can
demonstrate that it is affected and that
the tribe should not be able to raise
sovereign immunity as a bar.
Response: These recommendations
were not adopted because they are
beyond the scope of the regulations and
inconsistent with IGRA.
One comment suggested inserting
language requiring the applicant group
to clearly establish by documented
evidence that its current members are
directly descended from members of the
terminated tribe.
Response: This recommendation was
not adopted because requiring
genealogies of tribal members is beyond
the scope of the regulations,
inconsistent with IGRA and not
necessary in order to decide whether the
applicant tribe is a restored tribe.
Section 292.11 What are ‘‘restored
lands?’’
One comment suggested striking the
word ‘‘specific’’ in paragraph (a). A few
comments suggested striking any
language in paragraph (a) and § 292.11
pertaining to a geographical area or
parameters.
Response: These recommendations
were not adopted. The regulations
include a contingency for legislation
that requires or authorizes the Secretary
to take land into trust for the benefit of
a tribe within a specific geographic area
because in such scenarios, Congress has
made a determination which lands are
restored. Because the inclusion or
exclusion of specific geographical areas
in restoration legislation is beyond the
control of the Department, the
regulations must address both
contingencies.
One comment suggested that language
in paragraph (b) should provide expert
administrative guidance to Congress
when it drafts restoration legislation.
Response: This recommendation was
not adopted because it is outside the
scope of the regulations and
inconsistent with IGRA.
One comment suggested that the
criteria in paragraph (b) should apply to
land acquired by a tribe that is
recognized through 25 CFR 83.8 as well.
Response: This recommendation was
adopted and the paragraph was
modified accordingly. In order to adopt
this and other recommendations, the
section was re-organized.
One comment suggested that
paragraph (b) and all related paragraphs
in § 292.12 should be revised with the
requirement that the tribe’s modern and
historical connection to the land must
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have been continuous since at least
before October 17, 1988.
Response: This recommendation was
not adopted because it is inconsistent
with the purposes of this provision of
IGRA and is thus beyond the scope of
the regulations.
One comment suggested inserting the
words ‘‘recognized, acknowledged or’’
into both paragraph (a) and (b) because
the broader language is consistent with
§ 292.10(a). Also, the comment
suggested adding the words ‘‘for the
benefit of the tribe’’ in paragraph (a) and
replacing the words ‘‘the restoration’’
with the word ‘‘such’’ in paragraph (b).
Response: These recommendations
were adopted in part and the paragraphs
were modified accordingly.
One comment suggested modifying
paragraph (b) by replacing ‘‘modern
connection’’ with ‘‘contemporary ties.’’
The comment also suggested striking the
word ‘‘significant’’ and removing the
temporal requirement.
Response: These recommendations
were not adopted. However, the modern
connections test as set forth in the
proposed regulations was modified
using some of the suggestions that were
given in relation to the ‘‘contemporary
ties’’ test. Striking the word
‘‘significant’’ and removing the temporal
requirement would so broaden the
benefit to restored tribes that it would
be detrimental to other recognized
tribes, contrary to Congressional intent.
One comment suggested striking the
words ‘‘the restoration’’ from paragraph
(b) and striking the language pertaining
to the modern, historical and temporal
requirements in § 292.12. Instead, the
comment suggested replacing the
reference to the requirements with:
‘‘The land is located within an area
where the tribe has connections to the
lands that meet the requirements of
§ 292.12.’’
Response: These recommendations
were adopted in part. The phrase ‘‘the
restoration’’ is necessary and therefore
retained in the regulations. The
recommendation pertaining to
referencing § 292.12, instead of listing
the requirements, was adopted.
One comment stated that there is a
structural ambiguity in § 292.11 because
the conjunctions are not clear and that
the section needs clarified. For example,
the paragraph could be read as requiring
(a or b) and c, or it could be read as
requiring a or (b and c).
Response: This recommendation was
adopted and the section was modified
in order to clarify that ‘‘the tribe must
show at least one of the following’’ in
order for the newly acquired lands to
qualify as restored lands.
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One comment suggested adding a
number of paragraphs in order to
address Oklahoma tribes in this section.
Response: This recommendation was
not adopted because it in unnecessary to
single them out. Limitations on the
Oklahoma tribes are specifically
addressed in other parts of section 2719
and the regulations.
One comment stated that the rule
should conform more closely to
applicable law and suggested adding a
paragraph (d) to require that the land be
the first trust acquisition following
restoration.
Response: This recommendation to
add a paragraph (d) was not adopted;
however, temporal limitations are
addressed in § 292.12 of the regulations.
Section 292.12 How does a tribe
establish its connection to the land?
This section was renamed, ‘‘How does
a tribe establish its connection to newly
acquired lands for the purposes of the
‘restored lands’ exception?’’
Paragraph (a):
Several comments concerned the
‘‘headquarters test’’ in paragraph (a).
Comments ranged from support to
requests to eliminate the test all
together. For example, some comments
requested that the rule be excluded
because it is arbitrary and potentially
subject to abuse or manipulation; some
suggested removing the test without
explanation—one comment suggests
that the headquarters test was designed
specifically to accommodate a particular
tribe. Some comments suggested that if
the headquarters test is included, there
should be a temporal requirement that
requires the headquarters to be located
within 25 miles of the proposed lands
since before the enactment of IGRA.
Another comment suggested the
temporal requirement be 30 years. One
comment stated that 25 miles is too
great a distance, while another comment
suggested it should be extended to 50
miles.
Response: The recommendations to
remove the headquarters test and to
alter the 25-mile radius were not
adopted because the headquarters test is
a useful means of determining whether
a tribe has a modern connection to the
newly acquired land and the 25-mile
radius is both useful and consistent.
(The word radius was added to the
regulation to provide clarity).
Nonetheless, the concerns raised by
these comments are legitimate because
the version of the headquarters test in
the proposed rule could be construed as
being open to manipulation. Therefore,
the qualifier was added in the final rule
that the tribe’s headquarters or other
tribal governmental facilities be in
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existence at that location for at least two
years at the time of the application for
land-into-trust. The language of ‘‘other
tribal governmental facilities’’ was
added to address concerns that tribes
often operate out of more than one
headquarters or facility.
A few comments suggested adding a
paragraph to the modern connection test
that allows land that is located within
the tribe’s service area—as designated
by legislation restoring the governmentto-government relationship with the
tribe, or by the BIA, Department of
Health and Human Services or by the
Department of Housing and Urban
Development. Similarly, one comment
suggested including the following
language at the end of paragraph (a): ‘‘or
the land has been designated by the BIA
as included within the [t]ribe’s service
population area.’’
Response: These recommendations
were not adopted because the service
area is not necessarily defined by the
DOI and would thus add complication
to the analysis due to the added
necessity of collaboration with other
agencies. Furthermore, the tribe’s
service area is often based on factors not
connected with the DOI’s section 2719
analysis and is often ill-defined,
overlapping and potentially
inconsistent.
Several comments suggest removing
the ‘‘modern connections’’ test because,
for example, the test is not in the plain
language of IGRA, and the test is
contradicted by case law (e.g., Grand
Traverse Band of Ottawa and Chippewa
Indians v. United States Attorney, 198
F.Supp. 2d 920 (W.D. Mich. 2002), aff’d
369 F.3d 960 (6th Cir. 2004);
Confederated Tribes of the Coos, Lower
Umpqua, and Suislaw Indians v.
Babbitt, 116 F.Supp. 2d 155 (D.C. Cir.
2000)) that focuses on whether the lands
were historically occupied by the tribe.
Response: This recommendation was
not adopted. Though the ‘‘modern
connections’’ test is not in the plain
language of IGRA, nor is the test for a
historical connection. The cases cited by
the commenter do not limit the
Department from considering a modern
connection and only discuss the
historical connection in relation to the
process by which the Department made
its decision. Additionally, the cases
cited by the commenter provide
guidance for the interpretation of
section 2719(b)(1)(B)(iii); lands that are
taken into trust as part of the restoration
of lands for an Indian tribe that is
restored to Federal recognition. The
Secretary has discretion to require a
modern connection as part of the
restoration of lands. The modern
connection test remains in the final
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regulations because it offers a
mechanism to balance legitimate local
concerns with the goals of promoting
tribal economic development and tribal
self-sufficiency, both of which are
reflected in IGRA.
Several comments addressed concerns
about the ‘‘modern connection test’’ and
suggested modifying it. For example, a
few comments stated that the test for a
modern connection to the land is too
permissive and suggested that the
casino site must be in the immediate
vicinity of the tribe’s current population
or that the 50-mile majority requirement
be narrowed. Several comments
suggested that the modern connection
test is too narrow and should be
broadened to allow the Department to
consider a greater degree of facts and
circumstances or to expand or eliminate
the 50-mile majority requirement. A few
comments noted that a hard-line 50mile majority requirement presents
practical difficulties when it comes to
implementation.
Response: The recommendations to
narrow the modern connection test were
not adopted. Given the potential
difficulty and confusion in
administering the 50-mile majority
requirement, the recommendations to
eliminate the requirement were adopted
in favor of a test that allows for the
consideration of a number of different
factors. Additionally, in balancing these
concerns, the Department added the
following language in paragraph (a):
‘‘The land is located within the State or
States where the Indian tribe is
presently located, as evidenced by the
tribe’s governmental presence and tribal
population, and the tribe can
demonstrate one or more of the
following modern connections to the
land.’’
One comment suggested requiring
both a majority population test and a
headquarters test.
Response: This recommendation was
not adopted. As noted, the 50-mile
majority requirement was eliminated.
Nonetheless, the purpose of the
exception is to assist restored tribes in
economic development. As long as the
tribe has a modern connection to the
land, the surrounding community has
notice of the tribal presence.
One comment suggested adding a
requirement for a culturally significant
modern connection.
Response: This recommendation was
not adopted because it is not clear what
the commenter intended by ‘‘culturally
significant.’’ Assuming the commenter
suggested a more narrow interpretation
of modern connections, the
recommendation is not adopted
because, while the modern connections
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requirement was not eliminated
entirely, the paragraph was modified in
response to a number of comments that
suggested that the requirement
encompass a wider range of criteria. As
discussed above, the 50-mile majority
requirement was eliminated and the
paragraph was amended to reference a
significant number of tribal members or
other factors that demonstrate the tribe’s
current connection to the land. The
inclusion of a modern connections
requirement provides an element of
notice to the surrounding community
yet the elimination of the 50-mile
majority requirement recognizes that the
standard is too difficult to apply in
today’s mobile work related
environment.
One comment suggested striking (a)
and replacing it with the following:
‘‘Contemporary ties to the area in which
the land is located.’’
Response: This recommendation was
not adopted; however, the modern
connections test as set forth in the
proposed regulations was modified
using some of the suggestions that were
given in relation to the ‘‘contemporary
ties’’ test.
Paragraph (b):
One comment requested a definition
of ‘‘tribe’’ that states that an
unconnected group of Indians, with no
common ethno historic affiliation, does
not constitute a tribe for the purpose of
paragraph (b).
Response: This recommendation was
not adopted. Tribe is defined in the
definition section and applies
throughout the regulations.
One comment stated that the phrase
‘‘significant historical connection’’ in (b)
is interpreted too broadly, and that it
should only be found when a tribe has
had exclusive use and occupancy of an
area. Additionally, the comment
suggested that an Indian Claims
Commission determination on restored
lands should be binding.
Response: This recommendation was
not adopted. In response to numerous
comments, the term ‘‘significant historic
connection’’ is now defined in the
definition section of these regulations.
While not limited to the tribe’s
exclusive use and occupancy area, the
definition specifies certain criteria that
a tribe must show in order to meet the
definition, e.g., ‘‘the land is located
within the boundaries of the tribe’s last
reservation under a ratified or unratified
treaty, or a tribe can demonstrate by
historical documentation the existence
of the tribe’s villages, burial grounds,
occupancy or subsistence use in the
vicinity of the land.’’
One comment suggested that a tribe
should not be able to establish a
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historical connection if they are a
disparate group of traveling Indians
traveling through territory at some point
in their distant history.
Response: We received comments
pertaining to the issue raised by this
comment that argue both in favor of and
against a tribe’s ability to establish a
connection to the land when their past
contacts were transitory or brief in
nature. The definition of ‘‘significant
historical connection’’ establishes
criteria which require something more
than evidence that a tribe merely passed
through a particular area.
One comment suggested (b)(2) should
reflect advisories in case law that
support the general idea that there are
limits to what can be included as
restored lands. Another comment
suggested that the term ‘‘significant’’ in
paragraph (b) is too vague.
Response: These recommendations
were addressed through the addition of
a definition for ‘‘significant historical
connection.’’
A few comments suggested modifying
(b)(2) by striking the word
‘‘documented’’ and one comment
suggested adding ‘‘whether evidenced
by documentation or oral history.’’
Response: This recommendation was
not adopted because the paragraph was
restructured. The definition of
‘‘significant historical connection’’ calls
for ‘‘historical documentation.’’ Because
a significant historical connection
would be documented there is no need
to include oral history as acceptable
evidence. Such oral history is
unnecessary when documentation is
available; it would be insufficient alone.
One comment suggested adding the
words ‘‘or by other means’’ in paragraph
(b)(1) because there are other valid
means by which a reservation may have
been established other than by treaty for
purposes of § 292.12(b).
Response: This recommendation was
not adopted because it is unnecessary.
The reference to reservation under a
ratified or unratified treaty is only one
manner in which a significant historical
connection can be demonstrated
according to the definition. There is no
need to broaden this portion of the
definition because the evidence of the
tribe’s villages, burial grounds,
occupancy or subsistence use in the
vicinity of the land will identify the
historical connections without raising
the ambiguity that ‘‘other means’’ may
create.
One comment suggested modifying
the language in the introduction to
§ 292.12 to read ‘‘§ 292.11(b).’’
Response: This recommendation was
rendered unnecessary by the rewriting
of § 292.11.
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One comment suggested changing the
word ‘‘court’’ to ‘‘courts’’ in paragraph
(b)(2).
Response: This recommendation was
not adopted because the paragraph was
restructured and the reference to
specific evidence deleted as
unnecessarily restrictive.
One comment stated that the word
‘‘significant’’ in paragraph (b) is
insufficient because it is ambiguous and
provides little guidance as to temporal
requirements. Some comments
suggested deleting the word
‘‘significant’’ in paragraph (b) because it
seems to create a higher standard for
historical ties in comparison to modern
ties. A few comments also suggested
deleting the language pertaining to
giving Federal Government documents
significant weight. One comment
suggested modifying the language to
read, ‘‘the land is located in an area to
which the tribe has significant
documented historical connections; or
the tribe can establish any other
evidence that demonstrates the
existence of a significant historical
connection to the land or area in which
the land is located.’’
Response: These recommendations
were adopted in part and addressed by
the changes to the definition of
significant historical connection. The
suggestion to delete ‘‘significant’’ was
not adopted because the word reinforces
the notion that the connection must be
something more than ‘‘any’’ connection.
The definition does not include a
temporal requirement because such
inquiry is highly dependant of the facts
and circumstances of each tribe’s
historical connection to the land. The
suggestion regarding the weight given to
Federal Government documents was
adopted as unnecessarily restrictive.
One comment suggested adding
aboriginal language in paragraph (b).
Response: This recommendation was
not adopted because it is unclear what
the comment was meant to accomplish.
Paragraph (c):
One comment requested that the rules
put all restored tribes on an even
playing field by incorporating the, so
called, Grand Traverse standard into the
rule.
Response: This recommendation was
adopted in so far as we followed the
Grand Traverse standard that if the tribe
is acknowledged under 25 CFR 83.8,
and already has an initial reservation
proclaimed after October 17, 1988, the
tribe may game on newly acquired lands
under the restored lands exception
provided that it is not gaming on any
other land.
One comment suggested that the rule
further define ‘‘temporal connection’’
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because the degree of temporal
connection to the land varies among
tribes, especially since their posttermination relations with State and
local governments likewise varies,
depending on the level of hostilities.
Response: This recommendation was
not adopted. The paragraph, as written,
takes into account a wide range of
variables.
One comment suggested change the
temporal limit from 25 to 20 years.
Response: This recommendation was
not adopted. The Department received
numerous comments arguing for both
less than and more than 25 years. The
25 year number is both a practical and
reasonable number based on the
Department’s experience under section
2719.
One comment stated that (c) is
inadequate because (c)(1) allows
anywhere from a 6 minute to a 100 year
span and (c)(2) gives a 25 year period.
One comment suggested changing the
conjunction between paragraph (1) and
(2) under (c) from an ‘‘or’’ to an ‘‘and’’
because the commenter suggested that
this would make the section consistent
with court decisions.
Response: These recommendations
were not adopted. Paragraph (c)(1)
considers that there are often a number
of impediments involved in a tribe’s
efforts to acquire restored lands after the
event officially restoring the tribe. Also,
placing a time cap on the ability of a
tribe to acquire land for gaming, when
it is their first attempt to acquire a site
for gaming, is contrary to Federal Indian
policy as stated in IGRA. However, a
cap of 25 years, as discussed in (c)(2),
addresses the concerns about a tribe’s
open ended ability to acquire lands for
gaming. If a tribe already has newly
acquired lands, then a time cap and its
limiting effect to acquire a site for
gaming does not undermine IGRA’s
stated policy goals.
One comment suggested modifying
paragraph (c)(1) by striking ‘‘tribe has’’
and adding ‘‘United States * * * in
trust status for the tribe.’’
Response: This recommendation was
addressed by the addition of the
definition for ‘‘newly acquired lands.’’
One comment suggested striking
(c)(1)&(2). One comment suggested
striking (c)(2) and replacing it with the
following: ‘‘if a tribe has acquired no
other land for gaming purposes since its
restoration without regard to how much
time has passed since the tribe’s
restoration.’’
Response: These recommendations
were not adopted because the temporal
limitation effectuates IGRA’s balancing
of the gaming interests of newly
acknowledged and/or restored tribes
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with the interests of nearby tribes and
the surrounding community.
One comment suggested modifying
paragraph (c)(1) to read, ‘‘The land is
the first land that the tribe has acquired
pursuant to the Department of the
Interior’s regulations or procedures for
gaming acquisitions since the tribe was
restored to Federal recognition and the
tribe is not gaming on any other trust
lands; or.’’ The comment stated that the
phrase ‘‘trust land’’ should be added
because § 292.12(c)(1) should only
apply to land which has been acquired
in trust; not to land which a tribe has
acquired in fee. The phrase ‘‘pursuant to
the Department’s * * *’’ should be
added because a tribe should not lose its
chance to satisfy the criteria in
§ 292.12(c)(1) if it acquires land in trust
for housing which is not intended for
gaming and had not been acquired
pursuant to the procedures for gaming
acquisitions. The phrase ‘‘and the tribe
* * *’’ is added to ensure that this
paragraph in not used by a tribe which
is already gaming.
Response: The recommendation
regarding the phrase ‘‘trust land’’ was
adopted in part through use of the term
‘‘newly acquired lands,’’ clarifying the
type of land contemplated under (c).
The recommendation to exclude trust
land used for housing was unnecessary
because paragraph (c)(2) allows a tribe
that already has newly acquired lands,
to acquire a site for gaming as long as
the tribe submits an application within
25 years of its restoration. The
recommendation to qualify (c)(1) with
the phrase ‘‘the tribe is not gaming on
any other trust lands’’ was adopted in
part and added to (c)(2). The definition
of newly acquired lands includes tribal
land acquired in trust but does not
include tribal fee land.
General Comments on § 292.12:
One comment suggested that the rule
specify what role the NIGC plays in the
restored lands opinion. One comment
stated that there is nothing in the rule
that discusses the process the BIA will
use to make restored lands opinions.
Response: These comments are
addressed with the addition of § 292.3
discussing the application process.
One comment suggested adding a
geographical nexus requirement to
§ 292.12 in addition to the historical and
temporal requirements.
Response: This recommendation was
not adopted as the regulation’s
requirement of a modern, historical and
temporal connection adequately
implements the policy goals of IGRA.
One comment suggested that the
regulations should require a tribe to
acquire their former reservation land if
it is available. One comment suggested
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that tribes should not be permitted to
acquire restored lands if they were
already compensated for such lands by
some other means.
Response: These recommendations
were not adopted because they do not
have a basis in IGRA.
One comment suggested making the
language in §§ 292.11 & 292.12
consistent with § 292.6.
Response: This recommendation was
adopted. The Department made efforts
to make these sections consistent where
uniformity is necessary.
Subpart C—Secretarial Determinations
and Governor’s Concurrence
Section 292.13 When can a tribe
conduct gaming activities on lands that
do not qualify under one of the
exceptions?
This section was renamed ‘‘When can
a tribe conduct gaming activities on
newly acquired lands that do not qualify
under one of the exceptions in subpart
B of this part?’’
Several comments suggested
restricting the scope of consultation
required under paragraph (b) by deleting
‘‘local officials, including officials of
nearby tribes’’ thereby preventing
excessive complication of the
application process and promoting
tribal self-determination.
Response: This recommendation was
not adopted because the statute requires
consultation with nearby tribes and
local officials, 25 U.S.C. 2718(b)(1)(A).
One comment recommended that no
land be taken into trust without the
consent of the State and the affected
county.
Response: This recommendation was
not adopted because the comment raises
issues pertaining to 25 CFR part 151—
Land Acquisitions. Nonetheless, section
2719 of IRGA only requires the
Governor’s concurrence. Since this
section of IGRA requires consultation
with the Governor, local officials and
nearby tribes, but only specifies the
concurrence of the Governor, Congress
has implicitly rejected the need for
concurrence by other officials.
One comment suggested that citizen
input and State legislative participation
should be included in the Secretary’s
determination that the casino will not
be detrimental to the community. One
comment, on behalf of a concerned
citizen, opposed the Secretary’s
authority to permit gambling in
communities without her input.
Response: These recommendations
were not adopted because the
regulations already require consultation
with appropriate State and local
officials, consistent with the statutory
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language. Further, there are various
opportunities for local input in the
process, depending on which exception
is at issue.
One comment suggested that the
regulations impose additional
restrictions on gaming on lands
acquired after October 17, 1988.
Response: The regulations were
designed to conform to and interpret
section 2719 of IGRA; every effort was
made to stay consistent in that regard.
Additional restrictions are inconsistent
with 25 U.S.C. 2719.
One comment suggested that
paragraph (b) use the phrase ‘‘nearby
Indian tribes’’ and paragraph (d) read
‘‘The Governor of the [S]tate in which
the gaming establishment is to be
located concurs in the Secretary’s
Determination’’ in order to conform to
IGRA.
Response: This recommendation was
adopted and language was modified
accordingly.
One comment stated that the two-part
Secretarial Determination exception
cannot be interpreted as requiring a
tribe to have an ancestral tie to the lands
they seek to acquire.
Response: The two-part Secretarial
Determination does not require a tribe to
have an ancestral tie to the lands they
seek to acquire.
Section 292.14 Where must a tribe file
an application for a Secretarial
Determination?
The Department did not receive any
comments regarding this section.
Section 292.15 May a tribe apply for a
Secretarial Determination for lands not
yet held in trust?
One comment stated that requiring a
tribe to file its application for a two-part
Secretarial Determination at the same
time as its land-into-trust application
precludes the tribe from using the land
they have placed into trust for economic
development. Accordingly, the
comment suggested modifying § 292.15
in light of this concern.
Response: This recommendation was
not adopted. The requirements in
§ 292.15 address land that is not yet
held in trust. The section does not
address a tribe’s existing trust land.
Application Contents
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Section 292.16 What must an
application for a Secretarial
Determination contain?
Several comments suggested that a
tribe be required to submit only the
information required under § 292.16,
paragraphs (a) through (d) at the time it
submits its land-into-trust application.
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The information required by § 292.16
paragraphs (e) and (f) could be
submitted as the information becomes
available.
Response: This recommendation was
not adopted because the application for
a Secretarial Determination must
include all of the information in
§ 292.16 for the application to be
complete.
One comment suggested that an
additional requirement in paragraph (d)
be added to require the tribe to submit
‘‘evidence of an aboriginal or significant
historical connection to the land,
including cultural ties based upon
actual inhabitance.’’ This would,
according to the commenter, bring the
regulation into conformance with
section 2719.
Response: This recommendation was
not adopted because it is beyond the
scope of the regulations and
inconsistent with IGRA.
One comment observed that,
throughout the regulations,
‘‘application’’ is used to refer both to the
tribe’s initial written request and to the
subsequent application package
developed by the BIA Regional Office
for submission to the Secretary, creating
confusion.
Response: In consideration of the
comment, changes were made
throughout the regulations accordingly.
Several comments suggested striking
paragraphs (d) and (k).
Response: These recommendations
were not adopted because paragraphs
(d) and (k) inform the decision making
process.
One comment suggested striking
paragraphs (j) and (k) because these
documents are not site specific and are
either already on file with the BIA or do
not apply.
Response: These recommendations
were not adopted because paragraphs (j)
and (k) inform the analysis. The word
‘‘Any’’ was deleted from the beginning
of former paragraph (k) and the words
‘‘if any’’ were added to modified
paragraph (l) for clarification.
Several comments noted that, while
the Regional Director is required by
§ 292.20(a)(2) to provide officials with
information regarding the proposed
scope of the gaming, §§ 292.16–292.18
do not require the applicant tribe to
submit this information.
Response: In response to these
comments, language was added in (j)
regarding the proposed scope of gaming
and the size of the proposed gaming
establishment.
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Section 292.17 How must an
application describe the benefits of a
proposed gaming establishment to the
tribe and its members?
Several comments suggested changing
‘‘benefits’’ in the title of § 292.17 to
‘‘impacts.’’
Response: This recommendation was
adopted in part. The words ‘‘and
impacts’’ were added to the title of
§ 292.17. The section was renamed
‘‘How must an application describe the
benefits and impacts of a proposed
gaming establishment to the tribe and its
members?’’
Several comments suggested that
paragraph (f) require a more specific
identification of adverse impacts.
Response: This recommendation was
not adopted because an adverse impacts
analysis is fact specific and will vary
depending on the given facts and
circumstances.
One comment suggested that § 292.17
require consideration of land use,
development alternatives to gaming,
whether the proposed project is
consistent with the tribe’s economic
needs (if any), and how fulfillment of
such needs will be balanced against offreservation environmental impacts.
Response: This recommendation was
not adopted because development
alternatives and environmental impact
are addressed in the National
Environmental Policy Act (NEPA)
process.
One comment noted that paragraph (i)
is a new requirement not previously
contained in the discussion draft
circulated prior to the publication of the
proposed regulation.
Response: The concern raised by the
commenter does not violate any
standards or procedures.
Several comments suggested that
paragraph (h) be amended to read
‘‘* * * or holds other contractual rights
to cause the land to be transferred to the
United States, or to the [t]ribe.’’
Response: This recommendation was
not adopted because it is unnecessary.
The first clause of paragraph (h) covers
the commenter’s concern.
One comment suggested that ‘‘if any’’
be stricken from paragraph (i) to require
the applicant tribe to establish that it
‘‘aboriginally’’ used and occupied the
land where it wishes to build a gaming
establishment.
Response: This recommendation was
not adopted because historical
connections are not mandatory under
IGRA for purposes of this subpart of the
regulations.
Several comments suggested striking,
in their entirety, paragraphs (a), (e), (g),
and (j), and striking ‘‘from the proposed
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uses of the increased tribal income’’
from paragraph (d).
Response: These recommendations
were not adopted because all of the
paragraphs are necessary in order to
determine what is in the tribe’s best
interest.
One comment suggested striking ‘‘and
the tribe’’ from paragraph (a), as it
would be ‘‘voluminous and time
consuming.’’
Response: This recommendation was
not adopted because the words ‘‘and the
tribe’’ must be included in the
paragraph in order to conduct a
thorough analysis under the two-part
determination.
Several comments suggested replacing
‘‘facility’’ in paragraph (j), subparagraph
(3) with ‘‘establishment.’’
Response: This recommendation was
adopted, and the word ‘‘facility’’ was
replaced with the word
‘‘establishment.’’
One comment suggested adding ‘‘Any
information provided within the
application that is of a commercial or
financial nature shall be protected from
release to the public pursuant to the
exemptions of the Freedom of
Information Act [(’’FOIA’’)], 5 U.S.C.
522(b)(4).’’
Response: This recommendation was
not adopted because the FOIA
provisions that protect commercial and
financial information and the
corresponding procedures stand on their
own and need not be specifically
referenced in these regulations.
One comment suggested requiring the
information provided under § 292.17 be
shared with State and local
governments, who should be accorded
the opportunity to respond to the
information supplied by the tribe.
Response: This recommendation was
not adopted because the Secretary can
evaluate the financial information
without having comments or analysis by
the State or local governments.
Nevertheless, the Department will
provide financial information to the
Governor under § 292.22 if there is a
favorable Secretarial Determination.
Section 292.18 What information must
an application contain on detrimental
impacts to the surrounding community?
Several comments argued that tribal
gaming by an out-of-State tribe is per se
detrimental to the community.
Response: This recommendation was
not adopted. While the regulations
allow for a finding that gaming by an
out-of-State tribe is detrimental to the
community, such a finding will be made
on a case-by-case basis.
Several comments suggested that
‘‘detrimental to the surrounding
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community’’ in paragraph (c) should be
defined to consider the adverse impacts
on self-sufficiency and economic
development of other tribes in the State.
Response: This recommendation was
not adopted because the definition of
‘‘surrounding community’’ already
includes Indian tribes. Extending
consideration to other tribes in the State
goes beyond the Department’s
interpretation of the statute.
One comment raised the concern that
§ 292.18 did not limit the Secretary’s
discretion to consider ‘‘detrimental
information’’ regarding non-Indian
gaming interests.
Response: The Secretary can consider
detrimental information regarding nonIndian gaming interests; it is considered
within paragraph (c). While such
interests can be considered, they are
limited to surrounding community
consistent with section 2719.
One comment suggested it was
premature to require an environmental
assessment (EA) or environmental
impact statement (EIS) before the
Secretary makes his decision.
Response: An EA or EIS are products
of the NEPA process. The Secretary
must have the results of the NEPA
analysis in order to consider whether or
not there is detriment to the
surrounding community.
Several comments proposed the
following subsection: ‘‘An analysis by a
qualified traffic engineer of the traffic
impacts on the surrounding community
and the mitigation measures necessary
to alleviate the traffic impacts which
would be caused by the proposed
gaming establishment.’’
Response: This recommendation was
not adopted because it is unnecessary;
it is implicit in (a) and (b).
One comment recommended that the
regulation specify that ‘‘surrounding
community’’ includes communities
across State lines.
Response: This recommendation was
not adopted because it is not necessary.
The definition of surrounding
community is defined by mileage, and
is not limited by State boundaries.
Several comments suggested that
paragraph (e) implied that the treatment
program rather than compulsive
gambling is a detrimental impact, and
that there are no detrimental impacts to
the surrounding community from
compulsive gamblers who are not
enrolled in treatment programs. It was
suggested that paragraph (e) be changed
to read, ‘‘Costs of compulsive gambling
attributable to the proposed gaming
establishment, including the cost of
treatment programs and the primary and
secondary social costs attributable to
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compulsive gamblers enrolled and not
enrolled in treatment programs.’’
Response: This recommendation was
adopted in part, and (e) was revised in
order to clarify that the potential
detrimental impact is any anticipated
costs of treatment programs.
One comment suggested striking ‘‘if
any’’ from paragraph (d).
Response: This recommendation was
not adopted because the words ‘‘if any’’
do not appear in paragraph (d) of this
section.
Several comments suggested
amending paragraph (c) to read,
‘‘Impacts on the economic development,
income, and employment of the
surrounding community, including any
significant impacts on the income and
employment generated by Indian
gaming of nearby Indian tribes.’’
Response: This recommendation was
not adopted because tribes are already
included in ‘‘surrounding community.’’
Several comments suggested adding
further specificity to the information
that is required in the application and
set forth in paragraphs (a) through (f) of
§ 292.18.
Response: These recommendations
were not adopted because the
regulations, as written, provide
sufficient specificity.
Several comments suggested striking
paragraphs (d) and (e).
Response: The recommendation was
not adopted because paragraphs (d) and
(e) are required, according to the
Department’s definition and
understanding of detriment.
Several comments suggested
amending paragraph (a) to add a proviso
‘‘if required pursuant to NEPA’’
following the reference to an EA or an
EIS.
Response: This recommendation was
adopted and paragraph (a) was modified
accordingly.
One comment suggested striking from
paragraph (a) ‘‘ e.g. an Environmental
Assessment * * * Statement (EIS).’’
Response: This recommendation was
not adopted because the examples
provide useful guidance.
One comment suggested striking
paragraph (f) to give tribes discretion to
include, rather than the Secretary
discretion to mandate, any additional
information.
Response: This recommendation was
not adopted because a well informed
Secretary will promote sound decision
making.
One comment suggested amending
paragraph (a) to read, ‘‘Information
regarding environmental impacts and
plans for mitigating detrimental impacts
on the surrounding community * * *’’
to conform to statutory language.
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Response: This recommendation was
not adopted because the NEPA uses
‘‘adverse.’’
One comment noted that ‘‘social
structure’’ in paragraph (b) is vague and
undefined.
Response: This recommendation was
not adopted because the term ‘‘social
structure’’ is necessary in order to
interpret the statute.
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Consultation
Section 292.19 How will the Regional
Director conduct the consultation
process?
Several comments suggested that 60
days was not a sufficient time for State
and local officials to collect the
necessary information to prepare a
consultation letter.
Response: The State and local officials
are not being asked to prepare a
consultation letter, they respond to the
Regional Director’s letter. The relevant
information is available at the time
when the regulations require a
consultation letter and therefore 60 days
is adequate time for State and local
officials to comment.
Several comments recommended that
the Regional Director be required to
notify appropriate officials if the tribe
addresses or resolves any issue pursuant
to paragraph (c)(2), and that such
officials should be accorded a
reasonable time to respond.
Response: This recommendation was
not adopted because such a procedure
would inject unnecessary delay into the
process.
One comment requested that the
Department exempt from the
requirements of § 292.19 pending
applications that have already
completed the required consultations
with the surrounding community under
the current checklist procedures.
Response: This recommendation was
not adopted. We are not including a
general exemption in the regulations,
but the Department will make a case-bycase determination whether pending
applications have completed the
necessary consultation.
One comment suggested the 25-mile
radius for tribes to be included in the
consultation process be expanded to 100
miles.
Response: This recommendation was
not adopted as the focus on section 2719
is the surrounding community.
One comment suggested including the
applicant tribe in the § 292.19
consultation process.
Response: This comment was not
adopted because the tribe is already
included in the process in paragraph (c)
where the tribe can respond to issues
raised in the responses.
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Several comments suggested that,
‘‘Citizens within a 50-mile radius
(Public notices posted)’’ be added to the
requirements of paragraph (a) so as to
solicit comments from the community.
One comment suggested rewriting
paragraph (b), in its entirety, with a
focus on notice requirements.
Response: These recommendations
were not adopted. The Department
consults with appropriate State and
local officials and nearby tribes.
Therefore, the Department is not
amending the regulations to solicit
citizen comments directly. It is most
appropriate that citizen comments
funnel through appropriate State, local
and tribal officials. Also, public
comments are provided for in the NEPA
process.
One comment suggested that 30 days
was a sufficient comment period.
Response: This recommendation was
not adopted because the 60-day
comment period provides a balance
between those wanting a longer period
and those wanting a shorter time for
comment.
One comment suggested changing
‘‘nearby tribes’’ in paragraph (a)(2) to
the previously-defined ‘‘nearby Indian
tribes.’’
Response: This recommendation was
adopted and the paragraph was
modified accordingly.
Several comments suggested that the
BIA be required to meet with local
officials throughout the acquisition
process and that the comment period
was not a legitimate consultation
process.
Response: This recommendation was
not adopted because the Secretarial
Determination in section 2719 is not a
negotiation process. Creating additional
opportunities for back-and-forth is
unnecessary, causes delay and is
inconsistent with IGRA.
One comment suggested that the term
‘‘consultation comments’’ in paragraph
(c)(1) was unclear and should be
defined to include any comments
received from residents and businesses.
Response: This recommendation was
adopted and corresponding edits were
made in order to clarify the paragraph.
Several comments suggested that
officials of whom consultation is
requested have access to information
provided by the applicant pursuant to
§ 292.17.
Response: Consistent with the
protection Congress affords financial,
commercial or proprietary information
under the FOIA, this recommendation
was not adopted.
Several comments suggested requiring
the information provided under § 292.18
be shared with State and local
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governments, who should be accorded
the opportunity to respond to the
information supplied by the tribe.
Response: This recommendation was
not adopted because the requested
process would add unnecessary delay at
this stage of the process.
Section 292.20 What information must
the consultation letter include?
One comment considered it ‘‘absurd’’
to require local communities and nearby
tribes, rather than the applicant tribe, to
provide funding to mitigate problems
that might emerge from the proposed
casino and to propose programs to
address compulsive gambling
(paragraph (b)).
Response: This comment
misconstrues paragraph (b)(5). In order
to clarify the paragraph, it was modified
to make clear that the consultation letter
is only requesting information regarding
the anticipated costs, if any, of
treatment programs. The paragraph does
not consider the issue of who will bear
such costs.
One comment suggested that
paragraph (b)(4) be changed to,
‘‘Reasonable estimates of costs of
impacts * * *’’ to eliminate the
implication that all costs will be
reimbursed by the applicant tribe.
Response: This recommendation was
adopted in part. The word ‘‘anticipated’’
was inserted wherever necessary.
Several comments suggested that
paragraph (b)(4) be changed to, ‘‘Costs of
impacts to the surrounding community,
including nearby Indian tribes* * *’’
and that the tribes be consulted in this
determination.
Response: This recommendation was
not adopted because ‘‘nearby Indian
tribes’’ are included in the definition of
surrounding community.
One comment suggested amending
paragraph (b)(6) to read, ‘‘Any other
information that may assist the
Secretary in determining whether
gaming is or is not detrimental to the
surrounding community’’ to avoid
sounding conclusory.
Response: This recommendation was
adopted.
One comment suggested adding,
‘‘such as the size of the proposed
gaming establishment’’ to paragraph
(a)(3).
Response: This recommendation was
not adopted because the proposed
language is already included in the
paragraph.
One comment suggested striking
paragraph (b)(4) and (5).
Response: This recommendation was
not adopted because the paragraphs are
necessary to the evaluation.
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One comment suggested that
paragraph (b) should not apply to
entities that do not intend to file a
protest against the proposed
establishment.
Response: This recommendation was
not adopted because it is not necessary.
The paragraph does not compel
recipients to comment.
One comment suggested that the
consultation letter and the published
notice should specify the studies
(including one on crime and one on
impacts on existing gaming) and
provide the Web site where these
studies can be viewed.
Response: This recommendation was
not adopted because it is unnecessary.
The information is routinely available
should an individual decide that they
want such data.
Evaluation and Concurrence
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Section 292.21 How will the Secretary
evaluate a proposed gaming
establishment?
Several comments suggested that the
regulations should provide that lands
‘‘far from the tribe’s existing reservation
will be disfavored for taking into trust
for the purposes of gaming.’’
Response: This recommendation was
not adopted because it refers to an issue
that is considered when the Secretary
takes lands into trust under 25 CFR part
151.
Several comments suggested that the
Secretary, when making his
determination pursuant to paragraph
(b), must not consider the financial
effects of competition on other Indian or
non-Indian gaming establishments, in
accordance with the Congressional
intent of IGRA.
Response: This recommendation was
not adopted because the Secretary does
not necessarily include in the analysis
the financial effects of competition on
other gaming establishments; however,
the Secretary does examine detrimental
effect on the surrounding community
and nearby tribes, including detrimental
financial effects.
Several comments suggested that all
appropriate State, local, and nearby
tribal officials should also be notified of
a disapproval pursuant to paragraph (c).
Response: Because of restructuring,
this comment addresses § 292.21(b).
This recommendation was not adopted
because it is unnecessary. Interested
parties can make individual inquiries if
there is a need.
One comment suggested that
community disapproval of a casino
should require the Secretary to
disapprove an application.
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Response: This recommendation was
not adopted because it is not consistent
with IGRA.
One comment suggested rewriting
§ 292.21 to read:
(b) The Secretary will consider all the
information submitted or developed under
§ 292.18 and all the documentation received
under § 292.19 in evaluating the proposed
gaming establishment’s detrimental impacts
on the host-community and surrounding
counties. (c) If the Secretary disapproves of
the gaming proposal, the Secretary will
inform the tribe and set forth the reasons for
the disapproval. (d) If the Secretary approves
of the gaming proposal, the Secretary will
proceed under § 292.22.
Response: This recommendation was
not adopted because the changes are
unnecessary. The paragraph, as
amended, is sufficient to address the
commenter’s concerns.
One comment suggested adding a new
paragraph:
The Secretary will make a presumption
that the proposed project will have a
detrimental effect on the surrounding
community if the proposal negatively
impacts the stewardship, economic
development, or cultural preservation plans
of a federally recognized tribe that does have
a strong ancestral or cultural nexus to the
lands in question. That presumption may be
overcome only by compelling evidence.
Response: This recommendation was
not adopted because it is beyond the
scope of the regulations and
inconsistent with IGRA.
One comment recommended that the
regulation establish specific standards
by which the Secretary must abide in
making his two-part determination.
Response: This recommendation was
not adopted because the regulations
provide the necessary procedures and
standards for the Secretary to make a
decision.
One comment suggested that any
findings must be supported by
substantial evidence in the record and
that the findings include the evidence
that is contained in the record.
Response: This recommendation was
not adopted because it is unnecessary.
Including a standard of proof adds a
layer of potential ambiguity to the
analysis.
Section 292.22 How does the Secretary
request the Governor’s concurrence?
Several comments suggested that the
Governor’s retention of a silent veto
power over the proposal (paragraph (d))
is inconsistent with the Congressional
intent of IGRA, and that the State must
therefore be required to respond to the
tribe’s proposal.
Response: This recommendation was
not adopted because the Governor’s
silent veto is consistent with IGRA.
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Several comments suggested that a
lack of response from the Governor
should be interpreted as a concurrence.
Response: This recommendation was
not adopted because there is no
statutory basis on which to create a
regulation that says a Governor’s silence
means concurrence.
One comment recommended that the
Governor and the State legislature must
concur in the decision.
Response: This recommendation was
not adopted because IGRA specifically
identifies the Governor and not the
State; this provision is distinguished
from other sections of IGRA that
specifically mention the State.
One comment suggested that, if the
Governor does not respond to a request
for concurrence within the established
period, the tribe should be permitted to
reinstate the findings of fact within a
reasonable period of time or, in the
alternative, the tribe can provide
information to supplement the material
provided under §§ 292.16–292.18.
Response: This recommendation was
not adopted. As a courtesy, however,
the Department will notify the tribe
when the time period has passed
without a response from the Governor.
One comment disapproved of the
Governor’s power to approve or veto the
proposal.
Response: The power is specifically
detailed in IGRA.
One comment suggested replacing,
‘‘makes a favorable Secretarial
Determination’’ in paragraph (a) with,
‘‘approves the tribal gaming proposal.’’
Response: This recommendation was
not adopted because it is an
unnecessary change.
One comment suggested striking
paragraph (b), subparagraph (2), because
the regulations do not require that the
Governor be given notice of the intent
to place a gaming facility on land
already held in trust.
Response: This recommendation was
not adopted because it is premised on
a misreading of the statute and it is no
longer applicable because the section
was reorganized.
One comment suggested amending
paragraph (b), subparagraph (1), to read,
‘‘The land is not eligible for gaming
pursuant to 25 U.S.C. 2719(b)(1)(A)’’ so
as to not preclude gaming pursuant to
the exceptions set forth in 25 U.S.C.
2719(b)(1)(B).
Response: This recommendation was
adopted in part. An additional section,
now § 292.23, was added to the
regulations in order to clarify what
happens if the Governor does not
affirmatively concur with the Secretarial
Determination.
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Several comments suggested that the
18-month period is too long.
Response: This recommendation was
not adopted because the one-year time
period with a possibility of a six-month
extension is reasonable.
Section 292.23 Can the public review
the application for a Secretarial
Determination?
This section was renamed ‘‘What
happens if the Governor does not
affirmatively concur with the Secretarial
Determination?’’ and reorganized.
One comment suggested clarifying
former § 292.23 by indicating whether a
formal FOIA request must be filed to
review the application or if the
application is immediately available,
subject to the limitations on disclosure
in the FOIA, the Privacy Act, and the
Trade Secrets Act, upon request.
Response: This recommendation was
not adopted because it is implicit that
the application is available for review.
One comment suggested replacing,
‘‘the tribe’s application * * * over the
land’’ with the following:
The local BIA agency or Regional Office
will provide a minimum of two copies of the
tribe’s application and all supporting
documents for public review to: (1) Governor
of the [S]tate’s office; (2) Public County
Office within the proposed host-community;
and (3) the tribe’s application and all
material will also be available at the local
BIA agency or Regional Office having
administrative jurisdiction over the land.
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Response: This recommendation was
not adopted because the modification is
unnecessary.
Several comments suggested that
§ 292.23 explicitly provide that the BIA
will consult with the applicant tribe
regarding what information should be
protected from disclosure.
Response: This recommendation was
not adopted; however, it will be
suggested that the tribe submit a
suggested redacted version of its
documentation along with the full
application, in order to speed the
Department’s identification and review
of the material the tribe considers
protected from disclosure.
One comment stated that § 292.23’s
public review provisions are,
‘‘inadequate in the digital age.’’
Response: This recommendation was
not adopted because the provisions set
forth in this section are adequate to
provide public review.
Section 292.24 Do information
collections in this part have Office of
Management and Budget approval?
This section was renamed—‘‘Can the
public review the Secretarial
Determination?’’ and reorganized.
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One comment suggested that former
§ 292.24 is in violation of the Paperwork
Reduction Act (PRA), which requires
the agency to include in its burden
estimate all collections of information
that will be solicited (even if voluntary)
by ‘‘ignoring’’ the financial burden
imposed on State and local governments
and private entities.
Response: This recommendation was
not adopted because this section is
compliant with the PRA. The
information collection requirements,
along with a corresponding comment
period, were published in the Federal
Register on January 19, 2007. The
requirements were approved by the
OMB on February 27, 2007 and expire
on February 28, 2010.
General Comments on the Section 2719
Regulations
Several comments suggested adding a
so-called, ‘‘grandfather clause’’ in the
regulations. For example, one comment
suggested adding the following
language: ‘‘This regulation shall apply
prospectively and existing Indian
gaming on Indian lands recognized as
eligible for gaming by the Secretary, the
National Indian Gaming Commission,
Congress or a Federal court shall not be
disturbed.’’ Some comments suggested
waiving the regulations for complete
applications that have been actively
reviewed. Other comments suggested
the regulations only apply to
applications received after a certain
date. Finally, several comments
suggested that the regulations should
apply to all pending applications with
an opportunity to amend.
Response: This recommendation was
adopted in part. A new § 292.26 was
added in order to address these issues.
During the course of implementing
IGRA section 20, the Department and
the NIGC have issued a number of legal
opinions to address the ambiguities left
by Congress and provide legal advice for
agency decisionmakers, or in some
cases, for the interested parties facing an
unresolved legal issue. These legal
opinions typically have been issued by
the Department’s Office of the Solicitor
or the NIGC’s Office of General Counsel.
In some cases, the Department or the
NIGC subsequently relied on the legal
opinion to take some final agency
action. In those cases, section 292.26(a)
makes clear that these regulations will
have no retroactive effect to alter any
final agency decision made prior to the
effective date of these regulations. In
other cases, however, the Department or
the NIGC may have issued a legal
opinion without any subsequent final
agency action. It is expected that in
those cases, the tribe and perhaps other
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parties may have relied on the legal
opinion to make investments into the
subject property or taken some other
actions that were based on their
understanding that the land was eligible
for gaming. Therefore, section 292.26(b)
states that these regulations also shall
not apply to applicable agency actions
taken after the effective date of these
regulations when the Department or the
NIGC has issued a written opinion
regarding the applicability of 25 U.S.C.
2719 before the effective date of these
regulations. In this way, the Federal
Government may be able to follow
through with its prior legal opinions
and take final agency actions consistent
with those opinions, even if these
regulations now have created a conflict.
However, these regulations will not
affect the Department’s or the NIGC’s
ability to qualify, modify or withdraw
its prior legal opinions. In addition,
these regulations do not alter the fact
that the legal opinions are advisory in
nature and thus do not legally bind the
persons vested with the authority to
make final agency decisions.
One comment suggested including the
Checklist for Gaming Acquisitions
Gaming-Related Acquisitions and IGRA
Section 2719 Determinations, in the
regulations.
Response: This recommendation was
not adopted. To the extent that the
Checklist is inconsistent with the
regulations, the regulations control.
Matters in the Checklist that are not
covered by the regulations, and are not
otherwise inconsistent with the
regulations, remain in effect.
One comment suggested that the
regulations include a provision that says
an application is still eligible for
consideration even if a tribe is unable to
include all the itemized information in
the application.
Response: In order to promote
informed decisionmaking, this
recommendation was not adopted.
One comment suggested that the
regulations clearly define the role of
NIGC.
Response: Other than the changes to
§ 292.3, this recommendation was not
adopted. The roles and responsibilities
of the NIGC cannot be addressed by the
Department of the Interior regulations
and instead must be defined by that
agency’s own regulations.
One comment suggested adding an
evidentiary standard to subpart B stating
that the burden rests on the applicant
tribe to demonstrate that a section 2719
exception applies.
Response: This recommendation was
not adopted. It is understood that the
burden is on the applicant tribe to
establish its eligibility for an exception.
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These regulations establish the
standards that the applicant must meet.
One comment suggested that subpart
B be revised to provide clarity and
consistency by specifying which agency
or official will issue opinions covered
by § 292.4.
Response: This recommendation was
adopted in the revised § 292.3.
One comment suggested that the
regulations indicate what constitutes
final agency action and that the
regulations specify what constitutes a
record and what is the appeals process,
if any.
Response: This recommendation was
not adopted. The standard provisions of
the Administrative Procedure Act apply.
Several comments suggested that the
regulations be rejected in their entirety
because they promote ‘‘casino
shopping.’’
Response: This recommendation was
not adopted. The standards included in
these regulations will limit the concerns
addressed by the commenter consistent
with the existing provisions of IGRA.
One comment suggested that if the
local community does not want a
casino, that should be the end of the
inquiry.
Response: This recommendation was
not adopted because IGRA requires only
a Governor’s concurrence, not a local
community concurrence.
Several comments suggested that
there be a role for public comment and
participation in the initial reservation
and restored lands to restored tribes
processes.
Response: Unlike the exception in
IGRA section 2719(b)(1)(A), the
exceptions in section 2719(b)(1)(B) do
not reference an opportunity for public
comment. Because section 2719(b)(1)(B)
presents a fact-based inquiry, it is
unnecessary to include a requirement
for public comment in the regulations.
Nonetheless, there are opportunities for
public comment in other parts of the
administrative process—for example, in
the process to take the land in trust and
during the NEPA review process.
Although the regulations do not provide
a formal opportunity for public
comment under subpart B of these
regulations, the public may submit
written comments that are specific to a
particular lands opinion. Submissions
may be sent to the appropriate agency
that is identified in § 292.3.
One comment suggested including a
‘‘fair-play’’ clause to ensure that
speculators do not use tribes and that
there are no misrepresentations in the
process.
Response: This recommendation was
not adopted because it is beyond the
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scope of the regulations and
inconsistent with IGRA.
One comment suggested that cities be
given advance notice of gaming related
trust land requests and that there be a
good faith requirement that the parties
negotiate the issues before the
application is accepted.
Response: This recommendation was
not adopted because it is beyond the
scope of the regulations and
inconsistent with IGRA.
One comment suggested that the
Department should consult with any
other tribe that can show historical ties
to a particular site.
Response: This recommendation was
not adopted. The Department will
consult with a nearby Indian tribe at
which time it can explain its significant
historical connection to the land, and
show any detrimental impact on that
tribe’s traditional cultural connection to
the land.
One comment suggested that tribes be
required to submit development
agreements.
Response: This recommendation was
not adopted because it is beyond the
scope of the regulations and
inconsistent with IGRA.
One comment suggested that the
regulations comply with the mandates
of Adams v. U.S., 319 U.S. 3212 (1943)
and U.S. v. Fox, 94 U.S. 315 (1876)
regarding State cession of jurisdiction.
The comment argues that State
legislatures must give permission to
cede jurisdiction to the Federal
Government.
Response: This recommendation was
not adopted because the comment raises
issues pertaining to 25 CFR part 151—
Land Acquisitions, not IGRA.
Several comments suggested that the
regulations define ‘‘gaming’’ and the
scope of gaming, i.e., the range of
proposals to which the regulations
would apply.
Response: This recommendation was
not adopted as outside the scope of
these regulations.
Several comments suggested adding a
definition for ‘‘detrimental to the
surrounding community’’ and including
the standards by which the Department
will make its decision regarding
detrimental to the surrounding
community.
Response: This recommendation was
not adopted because the Department
will evaluate detriment on a case-bycase basis based on the information
developed in the application and
consultation process.
One comment suggested that the
Department of the Interior is without
authority to issue these regulations
since IGRA grants NIGC rule making
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authority and that only the NIGC has
authority to make decisions regarding
what constitutes Indian lands under
IGRA.
Response: The NIGC’s rule making
authority is not to the exclusion of the
Department of the Interior. Section 2719
specifically references the Secretary of
the Interior.
Procedural Requirements
Regulatory Planning and Review
(Executive Order 12866)
The Office of Management and Budget
(OMB) has determined that this rule is
significant. OMB’s guidance on
Executive Order 12866 requires that a
cost-benefit analysis be done for
significant rules and that it contain
three elements. These elements are a
statement of record, an examination of
alternative approaches, and an analysis
of costs and benefits.
The anticipated expenses or costs to
the public or to the tribes who submit
applications for gaming on land
acquired after October 17, 1988 will be
more than $100 million, therefore the
rule is an economically significant
regulatory action.
The intent of Executive Order 12866
is to provide decision makers with
appropriate information to determine
that a regulatory action imposing costs
and yielding benefits, or otherwise
having the effects sought by authorizing
legislation, is both needed and is
economically justified.
The Indian Gaming Regulatory Act of
1988 (IGRA) generally prohibits gaming
on land acquired in trust after October
17, 1988, but provides several
exceptions. Executive Order 12866
applies only to gaming on land under
the general exception, which requires a
two-part determination by the Secretary
that gaming on the land would be in the
best interest of the tribe and its
members, and not detrimental to the
surrounding community.
No cost-benefit analysis is necessary
for gaming on newly acquired trust land
under the exceptions for lands located
within or contiguous to the boundaries
of the reservation (former reservation in
Oklahoma, or last recognized
reservation for tribes outside Oklahoma
that have no reservation) of the Indian
tribe on October 17, 1988; or lands that
are taken into trust as part of a
settlement of a land claim, the initial
reservation of an Indian tribe
acknowledged by the Secretary under
the Federal acknowledgment process, or
the restoration of lands for an Indian
tribe that is restored to Federal
recognition. Tribes eligible under these
exceptions are permitted to game on
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lands acquired in trust after October 17,
1988. For these exceptions the rule
establishes regulations for the Secretary
in establishing eligibility. Establishing
eligibility is a factual analysis and
decision that incurs no cost or benefits.
This rule establishes regulations that
will impose costs on the tribe, the
Bureau of Indian Affairs, State and local
governments, and the public in the
expectation that gaming revenues will
increase for the benefit of the tribe,
employees, and the surrounding
community.
Tribes wishing to game on land
acquired in trust after October 17, 1988
that are not excepted will need to make
an application to the Secretary for a
two-part determination. The Secretary
of the Interior and Federal employees to
whom the Secretary’s authorities under
IGRA are or will be delegated will incur
costs for preparing and reviewing the
application.
These regulations establish
requirements for the submission, review
and approval of a land acquisition
application and a two-part
determination in a timely manner. The
anticipated expenses or costs to the
public or to the tribes who submit
applications will be substantial. Tribes
will be required to gather and submit
information to the Secretary that
substantiates both parts of the two-part
determination. The cost of application
will vary widely for gaming projects of
different size and complexity from two
man-years to five man-years, or more for
each application.
IGRA requires the Secretary to consult
with the Indian tribe and appropriate
State, and local officials, including
officials of other nearby Indian tribes in
making a two-part determination.
Responding to the consultation will
impose costs on State, local, and other
tribal governments. In aggregate the cost
is estimated at one to two man-years for
each application.
Compliance with the National
Environmental Policy Act (‘‘NEPA’’)
will be required. While NEPA
documents are Federal documents to be
used by decision makers in taking major
Federal actions, the cost associated with
preparing the studies will be primarily
a cost of the tribe. Depending on the
NEPA document required, preparation
is expected to cost between 4 and 20
man-years, or more, and the BIA will
expend from one to three man-years
reviewing and supplementing the
studies for each application.
NEPA requires the consideration of
input from all parties on the expected
impact on the human environment of
the proposed major Federal action. The
cost to the public and interested parties
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will vary widely. For controversial
actions interested parties may prepare
parallel studies that are nearly equal in
scope to the NEPA document, so the
average estimated cost may be one-half
the cost of NEPA compliance, therefore
from 2 man-years to 10 man-years for
each application.
A determination that results in a
gaming facility on after-acquired land
will result in costs to the surrounding
community for roads, police and fire
services, reduction of property tax rolls,
government services, education,
housing, and problem gambling. The
NEPA document will address the
mitigation of significant impacts. The
cost of impacts that are not significant
will be borne by the surrounding
community at an unknown level.
On September 21, 2007, the Assistant
Secretary—Indian Affairs issued a
Checklist for Gaming Acquisitions,
Gaming-related Acquisitions, and IGRA
Section 20 Determinations. The
Checklist provides a systematic format
for Regional Directors to evaluate
specified factors for a two-part
determination.
The benefits of gaming on newly
acquired land will be for the tribe,
employees, State and local government,
nearby businesses, and local economic
conditions. Jobs created by a gaming
establishment generally vary from 500
to 5,000. According to economic
studies, the new employee payroll spent
locally creates secondary jobs at nearby
businesses from 75 to 750. Housing
demand by new employees increases
local property tax collections by
amounts that vary widely depending on
the existing stock of dwellings and the
tax rate. Income tax collections on the
new jobs increase depending on State
income tax rates. Studies have shown
that unemployment and welfare rolls
decrease in the counties surrounding
new gaming facilities, with the benefit
variable depending on existing
unemployment and welfare rates. The
net gaming revenue that is available to
the tribe will vary depending on the
location and size of the new gaming
facility, and is expected to be from
$5,000,000 to $200,000,000.
Currently, there are approximately
225 Indian tribes engaged in class II
(bingo) and class III (casino) gaming.
Although IGRA permits a tribe to
acquire off-reservation land for gaming,
it does not require tribes to do so. The
cost of an application is completely
optional and avoidable for a tribe. Each
applicant tribe may evaluate the high
cost of applying to game on offreservation after-acquired trust land
against the expected net gaming revenue
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to determine whether to incur the cost
of complying with this rule.
The alternative considered was
continuing to review applications using
the Checklist. The costs and benefits
using the Checklist are essentially the
same as under the rule. The alternative
was rejected in favor of establishing
mandatory factors to be used in making
a two-part determination.
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,
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
2719 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.
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Federalism (Executive Order 13132)
In accordance with Executive Order
13132, 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.
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 2719 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.
Information Quality Act
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
collection of information is unique for
each tribe even though each submission
addresses the requirements found in
§ 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.
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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.
Indians—business and finance,
Indians—gaming.
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
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In developing this rule, we did not
conduct or use a study, experiment, or
survey requiring peer review under the
Information Quality Act (Pub. L. 106–
554).
List of Subjects in 25 CFR Part 292
For reasons stated in the preamble, the
Bureau of Indian Affairs amends
subchapter N, chapter I of title 25 of the
Code of Federal Regulations to add part
292 to read as follows:
I
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?
Subpart B—Exceptions to Prohibition on
Gaming on Newly Acquired Lands
292.3 How does a tribe seek an opinion on
whether its newly acquired lands meet,
or will meet, one of the exceptions in
this subpart?
292.4 What criteria must newly acquired
lands meet under the exceptions
regarding tribes with and without a
reservation?
‘‘Settlement of a Land Claim’’ Exception
292.5 When can gaming occur on newly
acquired lands under a settlement of a
land claim?
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‘‘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 newly acquired lands for
the purposes of the ‘‘restored lands’’
exception?
Subpart C—Secretarial Determination and
Governor’s Concurrence
292.13 When can a tribe conduct gaming
activities on newly acquired lands that
do not qualify under one of the
exceptions in subpart B of this part?
292.14 Where must a tribe file an
application for a Secretarial
Determination?
292.15 May a tribe apply for 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 and impacts 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 What happens if the Governor does
not affirmatively concur with the
Secretarial Determination?
292.24 Can the public review the
Secretarial Determination?
Information Collection
292.25 Do information collections in this
part have Office of Management and
Budget approval?
Subpart D—Effect of Regulations
292.26 What effect do these regulations
have on pending applications, final
agency decisions and opinions already
issued?
Authority: 5 U.S.C. 301, 25 U.S.C. 2, 9,
2719, 43 U.S.C. 1457.
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Subpart A—General Provisions
§ 292.1
What is the purpose of this part?
The Indian Gaming Regulatory Act of
1988 (IGRA) contains several exceptions
under which class II or class III gaming
may occur on lands acquired by the
United States in trust for an Indian tribe
after October 17, 1988, if other
applicable requirements of IGRA are
met. This part contains procedures that
the Department of the Interior will use
to determine whether these exceptions
apply.
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§ 292.2
part?
How are key terms defined in this
For purposes of this part, all terms
have the same meaning as set forth in
the definitional section of 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
local government officials within a 25mile radius of the proposed gaming
establishment.
BIA means Bureau of Indian Affairs.
Contiguous means two parcels of land
having a common boundary
notwithstanding the existence of nonnavigable waters or a public road or
right-of-way and includes parcels that
touch at a point.
Former reservation means lands in
Oklahoma that are within the exterior
boundaries of the last reservation that
was established by treaty, Executive
Order, or Secretarial Order for an
Oklahoma tribe.
IGRA means the Indian Gaming
Regulatory Act of 1988, as amended and
codified at 25 U.S.C. 2701–2721.
Indian tribe or tribe means any Indian
tribe, band, nation, or other organized
group or community of Indians that is
recognized by the Secretary as having 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, as
evidenced by inclusion of the tribe on
the list of recognized tribes published
by the Secretary under 25 U.S.C. 479a–
1.
Land claim means any claim by a
tribe concerning the impairment of title
or other real property interest or loss of
possession that:
(1) Arises under the United States
Constitution, Federal common law,
Federal statute or treaty;
(2) Is in conflict with the right, or title
or other real property interest claimed
by an individual or entity (private,
public, or governmental); and
(3) Either accrued on or before
October 17, 1988, or involves lands held
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in trust or restricted fee for the tribe
prior to October 17, 1988.
Legislative termination means Federal
legislation that specifically terminates
or prohibits the government-togovernment relationship with an Indian
tribe or that otherwise specifically
denies the tribe, or its members, access
to or eligibility for government services.
Nearby Indian tribe means an Indian
tribe with tribal Indian lands located
within a 25-mile radius of the location
of the proposed gaming establishment,
or, if the tribe has no trust lands, within
a 25-mile radius of its government
headquarters.
Newly acquired lands means land that
has been taken, or will be taken, in trust
for the benefit of an Indian tribe by the
United States after October 17, 1988.
Office of Indian Gaming means the
office within the Office of the Assistant
Secretary-Indian Affairs, within the
Department of the Interior.
Regional Director means the official in
charge of the BIA Regional Office
responsible for BIA activities within the
geographical area where the proposed
gaming establishment is to be located.
Reservation means:
(1) Land set aside by the United States
by final ratified treaty, agreement,
Executive Order, Proclamation,
Secretarial Order or Federal statute for
the tribe, notwithstanding the issuance
of any patent;
(2) Land of Indian colonies and
rancherias (including rancherias
restored by judicial action) set aside by
the United States for the permanent
settlement of the Indians as its
homeland;
(3) Land acquired by the United States
to reorganize adult Indians pursuant to
statute; or
(4) Land acquired by a tribe through
a grant from a sovereign, including
pueblo lands, which is subject to a
Federal restriction against alienation.
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.
Secretary means the Secretary of the
Interior or authorized representative.
Significant historical connection
means the land is located within the
boundaries of the tribe’s last reservation
under a ratified or unratified treaty, or
a tribe can demonstrate by historical
documentation the existence of the
tribe’s villages, burial grounds,
occupancy or subsistence use in the
vicinity of the land.
Surrounding community means local
governments and nearby Indian tribes
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located within a 25-mile radius of the
site of the proposed gaming
establishment. A local government or
nearby Indian tribe located beyond the
25-mile radius may petition for
consultation if it can establish that its
governmental functions, infrastructure
or services will be directly, immediately
and significantly impacted by the
proposed gaming establishment.
Subpart B—Exceptions to Prohibitions
on Gaming on Newly Acquired Lands
§ 292.3 How does a tribe seek an opinion
on whether its newly acquired lands meet,
or will meet, one of the exceptions in this
subpart?
(a) If the newly acquired lands are
already in trust and the request does not
concern whether a specific area of land
is a ‘‘reservation,’’ the tribe may submit
a request for an opinion to either the
National Indian Gaming Commission or
the Office of Indian Gaming.
(b) If the tribe seeks to game on newly
acquired lands that require a land-intotrust application or the request concerns
whether a specific area of land is a
‘‘reservation,’’ the tribe must submit a
request for an opinion to the Office of
Indian Gaming.
§ 292.4 What criteria must newly acquired
lands meet under the exceptions regarding
tribes with and without a reservation?
For gaming to be allowed on newly
acquired lands under the exceptions in
25 U.S.C. 2719(a) of IGRA, the land
must meet the location requirements in
either paragraph (a) or paragraph (b) of
this section.
(a) If the tribe had a reservation on
October 17, 1988, the lands must be
located within or contiguous to the
boundaries of the reservation.
(b) If the tribe had no reservation on
October 17, 1988, the lands must be
either:
(1) Located in Oklahoma and within
the boundaries of the tribe’s former
reservation or contiguous to other land
held in trust or restricted status for the
tribe in Oklahoma; or
(2) Located in a State other than
Oklahoma and within the tribe’s last
recognized reservation within the State
or States within which the tribe is
presently located, as evidenced by the
tribe’s governmental presence and tribal
population.
’’Settlement of a Land Claim’’ Exception
§ 292.5 When can gaming occur on newly
acquired lands under a settlement of a land
claim?
This section contains criteria for
meeting the requirements of 25 U.S.C.
2719(b)(1)(B)(i), known as the
‘‘settlement of a land claim’’ exception.
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Gaming may occur on newly acquired
lands if the land at issue is either:
(a) Acquired under a settlement of a
land claim that resolves or extinguishes
with finality the tribe’s land claim in
whole or in part, thereby resulting in the
alienation or loss of possession of some
or all of the lands claimed by the tribe,
in legislation enacted by Congress; or
(b) Acquired under a settlement of a
land claim that:
(1) Is executed by the parties, which
includes the United States, returns to
the tribe all or part of the land claimed
by the tribe, and resolves or
extinguishes with finality the claims
regarding the returned land; or
(2) Is not executed by the United
States, but is entered as a final order by
a court of competent jurisdiction or is
an enforceable agreement that in either
case predates October 17, 1988 and
resolves or extinguishes with finality
the land claim at issue.
‘‘Initial Reservation’’ Exception
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§ 292.6 What must be demonstrated to
meet the ‘‘initial reservation’’ exception?
This section contains criteria for
meeting the requirements of 25 U.S.C.
2719(b)(1)(B)(ii), known as the ‘‘initial
reservation’’ exception. Gaming may
occur on newly acquired lands under
this exception only when all of the
following conditions in this section are
met:
(a) The tribe has been acknowledged
(federally recognized) through the
administrative process under part 83 of
this chapter.
(b) The tribe has no gaming facility on
newly acquired lands under the restored
land exception of these regulations.
(c) The land has been proclaimed to
be a reservation under 25 U.S.C. 467
and is the first proclaimed reservation of
the tribe following acknowledgment.
(d) If a tribe does not have a
proclaimed reservation on the effective
date of these regulations, to be
proclaimed an initial reservation under
this exception, the tribe must
demonstrate the land is located within
the State or States where the Indian
tribe is now located, as evidenced by the
tribe’s governmental presence and tribal
population, and within an area where
the tribe has significant historical
connections and one or more of the
following modern connections to the
land:
(1) The land is near where a
significant number of tribal members
reside; or
(2) The land is within a 25-mile
radius of the tribe’s headquarters or
other tribal governmental facilities that
have existed at that location for at least
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2 years at the time of the application for
land-into-trust; or
(3) The tribe can demonstrate other
factors that establish the tribe’s current
connection to the land.
‘‘Restored Lands’’ Exception
§ 292.7 What must be demonstrated to
meet the ‘‘restored lands’’ exception?
29377
longer recognized a government-togovernment relationship with the tribe
or its members or taking action to end
the government-to-government
relationship; or
(c) Congressional restoration
legislation that recognizes the existence
of the previous government-togovernment relationship.
This section contains criteria for
meeting the requirements of 25 U.S.C.
2719(b)(1)(B)(iii), known as the
‘‘restored lands’’ exception. Gaming
may occur on newly acquired lands
under this exception only when all of
the following conditions in this section
are met:
(a) The tribe at one time was federally
recognized, as evidenced by its meeting
the criteria in § 292.8;
(b) The tribe at some later time lost its
government-to-government relationship
by one of the means specified in § 292.9;
(c) At a time after the tribe lost its
government-to-government relationship,
the tribe was restored to Federal
recognition by one of the means
specified in § 292.10; and
(d) The newly acquired lands meet
the criteria of ‘‘restored lands’’ in
§ 292.11.
§ 292.10 How does a tribe qualify as
having been restored to Federal
recognition?
§ 292.8 How does a tribe qualify as having
been federally recognized?
§ 292.11
For a tribe to qualify as having been
at one time federally recognized for
purposes of § 292.7, 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 naming, the tribe
indicating that a government-togovernment 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-togovernment relationship between the
tribe and the United States.
§ 292.9 How does a tribe show that it lost
its government-to-government
relationship?
For a tribe to qualify as having lost its
government-to-government relationship
for purposes of § 292.7, it must show
that its government-to-government
relationship was terminated by one of
the following means:
(a) Legislative termination;
(b) Consistent historical written
documentation from the Federal
Government effectively stating that it no
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For a tribe to qualify as having been
restored to Federal recognition for
purposes of § 292.7, the tribe must show
at least one of the following:
(a) Congressional enactment of
legislation recognizing, acknowledging,
affirming, reaffirming, or restoring the
government-to-government relationship
between the United States and the tribe
(required for tribes terminated by
Congressional action);
(b) Recognition through the
administrative Federal
Acknowledgment Process under § 83.8
of this chapter; or
(c) A Federal court determination in
which the United States is a party or
court-approved settlement agreement
entered into by the United States.
What are ‘‘restored lands’’?
For newly acquired lands to qualify as
’’restored lands’’ for purposes of § 292.7,
the tribe acquiring the lands must meet
the requirements of paragraph (a), (b), or
(c) of this section.
(a) If the tribe was restored by a
Congressional enactment of legislation
recognizing, acknowledging, affirming,
reaffirming, or restoring the
government-to-government relationship
between the United States and the tribe,
the tribe must show that either:
(1) The legislation requires or
authorizes the Secretary to take land
into trust for the benefit of the tribe
within a specific geographic area and
the lands are within the specific
geographic area; or
(2) If the legislation does not provide
a specific geographic area for the
restoration of lands, the tribe must meet
the requirements of § 292.12.
(b) If the tribe is acknowledged under
§ 83.8 of this chapter, it must show that
it:
(1) Meets the requirements of
§ 292.12; and
(2) Does not already have an initial
reservation proclaimed after October 17,
1988.
(c) If the tribe was restored by a
Federal court determination in which
the United States is a party or by a
court-approved settlement agreement
entered into by the United States, it
must meet the requirements of § 292.12.
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§ 292.12 How does a tribe establish
connections to newly acquired lands for the
purposes of the ‘‘restored lands’’
exception?
To establish a connection to the
newly acquired lands for purposes of
§ 292.11, the tribe must meet the criteria
in this section.
(a) The newly acquired lands must be
located within the State or States where
the tribe is now located, as evidenced by
the tribe’s governmental presence and
tribal population, and the tribe must
demonstrate one or more of the
following modern connections to the
land:
(1) The land is within reasonable
commuting distance of the tribe’s
existing reservation;
(2) If the tribe has no reservation, the
land is near where a significant number
of tribal members reside;
(3) The land is within a 25-mile
radius of the tribe’s headquarters or
other tribal governmental facilities that
have existed at that location for at least
2 years at the time of the application for
land-into-trust; or
(4) Other factors demonstrate the
tribe’s current connection to the land.
(b) The tribe must demonstrate a
significant historical connection to the
land.
(c) The tribe must demonstrate a
temporal connection between the date
of the acquisition of the land and the
date of the tribe’s restoration. To
demonstrate this connection, the tribe
must be able to show that either:
(1) The land is included in the tribe’s
first request for newly acquired lands
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 and the tribe is not
gaming on other lands.
Subpart C—Secretarial Determination
and Governor’s Concurrence
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§ 292.13 When can a tribe conduct gaming
activities on newly acquired lands that do
not qualify under one of the exceptions in
subpart B of this part?
A tribe may conduct gaming on newly
acquired lands that do not meet the
criteria in subpart B of this part 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
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officials, including officials of other
nearby Indian 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 establishment is
located concurs in the Secretary’s
Determination (25 U.S.C. 2719(b)(1)(A)).
§ 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.
§ 292.15 May a tribe apply for a Secretarial
Determination for lands not yet held in
trust?
Yes. A tribe can apply for a Secretarial
Determination under § 292.13 for land
not yet held in trust at the same time
that it applies under part 151 of this
chapter to have the land taken into trust.
Application Contents
§ 292.16 What must an application for a
Secretarial Determination contain?
A tribe’s application requesting a
Secretarial Determination under
§ 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 § 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 § 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;
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(j) The tribe’s class III gaming compact
with the State where the gaming
establishment is to be located, if one has
been negotiated;
(k) If the tribe has not negotiated a
class III gaming compact with the State
where the gaming establishment is to be
located, the tribe’s proposed scope of
gaming, including the size of the
proposed gaming establishment; and
(l) A copy of the existing or proposed
management contract required to be
approved by the National Indian
Gaming Commission under 25 U.S.C.
2711 and part 533 of this title, if any.
§ 292.17 How must an application describe
the benefits and impacts of the proposed
gaming establishment to the tribe and its
members?
To satisfy the requirements of
§ 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;
(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 nonIndian 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 from a
third party to the tribe or directly to the
United States;
(i) Evidence of significant 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
establishment, or the acquisition of the
land where the gaming establishment
will be located.
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§ 292.18 What information must an
application contain on detrimental impacts
to the surrounding community?
To satisfy the requirements of
§ 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
an Environmental Assessment (EA), an
Environmental Impact Statement (EIS),
or other information required by the
National Environmental Policy Act
(NEPA);
(b) Anticipated impacts on the social
structure, infrastructure, services,
housing, community character, and land
use patterns of the surrounding
community;
(c) Anticipated impacts on the
economic development, income, and
employment of the surrounding
community;
(d) Anticipated costs of impacts to the
surrounding community and
identification of sources of revenue to
mitigate them;
(e) Anticipated cost, if any, to the
surrounding community of treatment
programs for compulsive gambling
attributable to the proposed gaming
establishment;
(f) If a nearby Indian tribe has a
significant historical connection to the
land, then the impact on that tribe’s
traditional cultural connection to the
land; and
(g) Any other information that may
provide a basis for a Secretarial
Determination whether the proposed
gaming establishment would or would
not be detrimental to the surrounding
community, including memoranda of
understanding and inter-governmental
agreements with affected local
governments.
Consultation
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§ 292.19 How will the Regional Director
conduct the consultation process?
(a) The Regional Director will send a
letter that meets the requirements in
§ 292.20 and that solicits comments
within a 60-day period from:
(1) Appropriate State and local
officials; and
(2) Officials of nearby Indian 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) Provide a copy of all comments
received during the consultation process
to the applicant tribe; and
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29379
(2) Allow the tribe to address or
resolve any issues raised in the
comments.
(d) The applicant tribe must submit
written responses, if any, to the
Regional Director within 60 days of
receipt of the consultation comments.
(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.
detrimental to the surrounding
community.
(b) 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.
(c) If the Secretary makes a favorable
Secretarial Determination, the Secretary
will proceed under § 292.22.
§ 292.20 What information must the
consultation letter include?
§ 292.22 How does the Secretary request
the Governor’s concurrence?
(a) The consultation letter required by
§ 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
include a request to the recipients to
submit comments, if any, 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) Anticipated impacts on the social
structure, infrastructure, services,
housing, community character, and land
use patterns of the surrounding
community;
(3) Anticipated impact on the
economic development, income, and
employment of the surrounding
community;
(4) Anticipated costs of impacts to the
surrounding community and
identification of sources of revenue to
mitigate them;
(5) Anticipated costs, if any, to the
surrounding community of treatment
programs for compulsive gambling
attributable to the proposed gaming
establishment; and
(6) Any other information that may
assist the Secretary in determining
whether the proposed gaming
establishment would or would not be
detrimental to the surrounding
community.
If the Secretary makes a favorable
Secretarial Determination, the Secretary
will send to the Governor of the State:
(a) A written notification of the
Secretarial Determination and Findings
of Fact supporting the determination;
(b) A copy of the entire application
record; and
(c) A request for the Governor’s
concurrence in the Secretarial
Determination.
Evaluation and Concurrence
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 Secretarial
Determination and the supporting
documents will be available for review
at the local BIA agency or Regional
Office having administrative
jurisdiction over the land.
§ 292.21 How will the Secretary evaluate a
proposed gaming establishment?
(a) The Secretary will consider all the
information submitted under §§ 292.16–
292.19 in evaluating whether the
proposed gaming establishment is in the
best interest of the tribe and its members
and whether it would or would not be
PO 00000
Frm 00027
Fmt 4701
Sfmt 4700
§ 292.23 What happens if the Governor
does not affirmatively concur with the
Secretarial Determination?
(a) If the Governor provides a written
non-concurrence with the Secretarial
Determination:
(1) The applicant tribe may use the
newly acquired lands only for nongaming purposes; and
(2) If a notice of intent to take the land
into trust has been issued, then the
Secretary will withdraw that notice
pending a revised application for a nongaming purpose.
(b) If the Governor does not
affirmatively concur 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.
(c) If no extension is granted or if the
Governor does not respond during the
extension period, the Secretarial
Determination will no longer be valid.
§ 292.24 Can the public review the
Secretarial Determination?
E:\FR\FM\20MYR3.SGM
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Federal Register / Vol. 73, No. 98 / Tuesday, May 20, 2008 / Rules and Regulations
Subpart D—Effect of Regulations
§ 292.25 Do information collections in this
part have Office of Management and Budget
approval?
§ 292.26 What effect do these regulations
have on pending applications, final agency
decisions, and opinions already issued?
The information collection
requirements in §§ 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.
jlentini on PROD1PC65 with RULES3
Information Collection
These regulations apply to all requests
pursuant to 25 U.S.C. 2719, except:
(a) These regulations do not alter final
agency decisions made pursuant to 25
U.S.C. 2719 before the date of enactment
of these regulations.
(b) These regulations apply to final
agency action taken after the effective
date of these regulations except that
these regulations shall not apply to
applicable agency actions when, before
VerDate Aug<31>2005
20:00 May 19, 2008
Jkt 214001
PO 00000
Frm 00028
Fmt 4701
Sfmt 4700
the effective date of these regulations,
the Department or the National Indian
Gaming Commission (NIGC) issued a
written opinion regarding the
applicability of 25 U.S.C. 2719 for land
to be used for a particular gaming
establishment, provided that the
Department or the NIGC retains full
discretion to qualify, withdraw or
modify such opinions.
Dated: May 12, 2008.
Carl J. Artman,
Assistant Secretary—Indian Affairs.
[FR Doc. E8–11086 Filed 5–19–08; 8:45 am]
BILLING CODE 4310–4N–P
E:\FR\FM\20MYR3.SGM
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Agencies
[Federal Register Volume 73, Number 98 (Tuesday, May 20, 2008)]
[Rules and Regulations]
[Pages 29354-29380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11086]
[[Page 29353]]
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Part V
Department of the Interior
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Bureau of Indian Affairs
25 CFR Part 292
Gaming on Trust Lands Acquired After October 17, 1988; Final Rule
Federal Register / Vol. 73, No. 98 / Tuesday, May 20, 2008 / Rules
and Regulations
[[Page 29354]]
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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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs (BIA) is publishing regulations
implementing section 2719 of the Indian Gaming Regulatory Act (IGRA).
IGRA 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 rule articulates standards that the BIA
will follow in interpreting the various exceptions to the gaming
prohibitions contained in section 2719 of IGRA. It also 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: Effective Date: June 19, 2008.
FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Office of
Indian Gaming, (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 2719. The Secretary has delegated this authority to the
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. 25 U.S.C. 2719 (a/k/a section 20
of IGRA) 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 2719 applies,
section 2719(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 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.
On September 28, 1994, the BIA issued to all Regional Directors a
Checklist for Gaming Acquisitions and Two-Part Determinations under
section 20 of IGRA. 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. On September
21, 2007 the Checklist was revised and issued to all Regional Directors
replacing the March 2005 Checklist.
The regulations implement section 2719 of 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 2719 of IGRA. Subpart A of the regulations define
key terms contained in section 2719 or used in the regulation. Subpart
B delineates how the Department will interpret the ``settlement of a
land claim'' exception contained in section 2719(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 2719(b)(1)(B)(ii) of IGRA. The 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 2719(b)(1)(B)(iii) of IGRA. The
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
2719(b)(1)(A) 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 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 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. Subpart D clarifies that
the regulations do not disturb existing decisions made by the BIA or
the National Indian Gaming Commission (NIGC).
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.
On October 5, 2006, we published a new proposed rule in the Federal
Register (71 FR 58769) because we have determined that the rule should
address not only the exception contained in section 2719(b)(1)(A) of
IGRA (Secretarial Determination), but also the other exceptions
contained in section 2719, in order to explain to the public how the
Department interprets these exceptions. The comment period ended on
December 5, 2006. On December 4, 2006, we published a notice in the
Federal Register (71 FR 70335) to extend the comment period and make
[[Page 29355]]
corrections. The comment period ended on December 19, 2006. On January
17, 2007, we published a notice in the Federal Register (72 FR 1954) to
reopen the comment period to allow for consideration of comments
received after December 19, 2006. Comments received during the comment
period ending December 5, 2006, and February 1, 2007, were considered
in the drafting of this final rule.
Review of Public Comments
Stylistic and conforming changes were made to the proposed
regulations and are reflected throughout the final regulations.
Substantive changes, if any, are addressed in the comments and
responses below:
Subpart A--General Provisions
Section 292.1 What is the purpose of this part?
One comment regarded the applicability of section 2719 of IGRA to
restricted fee lands and suggested a change in Sec. 292.1. Another
comment regarded the applicability of section 2719 to trust or
restricted lands of individual Indians.
Response: The recommendation to modify Sec. 292.1 was not adopted,
because section 2719(a) refers only to lands acquired in trust after
October 17, 1988. The omission of restricted fee from section 2719(a)
is considered purposeful, because Congress referred to restricted fee
lands elsewhere in IGRA, including at sections 2719(a)(2)(A)(ii) and
2703(4)(B). Section 292.1 was not amended to include land taken in
trust after October 17, 1988 for individual Indians, nor land acquired
after October 17, 1988 in restricted fee by individual Indians, because
the language in section 2719 of IGRA is limited to Indian tribes. Also,
it is important to note that the final regulations do not address any
restrictions on tribally owned fee land within reservation boundaries,
because even though such lands are ``Indian lands'' pursuant to section
2703(4), they are not encompassed by the prohibition in section 2719.
In addition, tribally owned fee land outside of reservation boundaries
is not encompassed by section 2703(4) unless a Federal law, other than
25 U.S.C. 177, directly imposes such limitations on the land, and the
Indian tribe exercises governmental power over them.
Several comments regarded whether the regulations for section 2719
should include the requirements of ``governmental powers'' referenced
in section 2703(4), and ``jurisdiction'' referenced in section 2710.
Response: Section 2719 does not specifically reference the
``governmental powers'' and ``jurisdictional'' requirements that are
referenced in other sections of IGRA. Therefore, the final regulations
do not include references to these requirements. The governmental
powers and jurisdictional analysis is not required for the specific
purpose of determining whether newly acquired lands are otherwise
exempt from the general prohibition for lands acquired after October
17, 1988. The governmental powers and jurisdictional requirements are,
however, a necessary element for determining whether gaming may be
conducted on newly acquired lands. Therefore, depending on the nature
of the application or request, the governmental powers and
jurisdictional elements may be part of the analysis.
Section 292.2 How are key terms defined in this part?
Appropriate State and Local Officials
Several comments suggested that the 25-mile radius is too narrow
and either recommended that the regulation include a larger mile limit
or no mile limit at all.
Response: These recommendations were not adopted. From the
Department's prior experience implementing section 2719, the 25-mile
radius allows for the adequate representation of local officials when
conducting an analysis under section 2719(b)(1)(A). See discussion of
the term ``surrounding community'' below.
A few comments suggested that the regulation is too broad as it
applies to ``local officials'' and suggested that the regulation
qualify the term ``local officials'' by using examples. A few other
comments suggested that the term ``local officials'' was too vague and
similarly suggested that the regulation qualify the term by using
examples.
Response: These recommendations were not adopted. The term ``local
officials'' is adequate. Because governmental organization varies from
community to community, it is not practical to qualify the term ``local
officials'' in either an effort to broaden or limit its applicability.
One comment suggested that the definition should be broadened to
include other State officials or the Attorney General.
Response: This recommendation was not adopted. The only State
official recognized under the definition is the Governor. However, the
regulation does not limit the Governor from consulting with other State
officials.
One comment suggested that the definition should apply to
appropriate State and local officials in other States if within the 25-
mile radius.
Response: The definition includes local officials from other States
if they are within the 25-mile radius. However, the definition only
recognizes the Governor of the State in which the proposed gaming
establishment is located.
Section 292.2 How are key terms defined in this part?
Contiguous
Several comments related to the definition of contiguous. One
comment suggested removing the definition from the section. A few other
comments suggested keeping the definition, but removing the second
sentence that specifies that contiguous includes parcels divided by
non-navigable waters or a public road or right-of-way. A few comments
suggested including both navigable and non-navigable waters in the
definition. Many comments regarded the concept of ``corner
contiguity.'' Some comments suggested including the concept, which
would allow parcels that only touch at one point, in the definition.
Other comments suggested that the definition exclude parcels that only
touch at a point.
Response: The recommendation to remove the definition was not
adopted. Likewise, the recommendation to remove the qualifying language
pertaining to non-navigable waters, public roads or right-of-ways was
not adopted. Additionally, the suggestion to include navigable waters
was not adopted. The concept of ``corner contiguity'' was included in
the definition. However, to avoid confusion over this term of art, the
definition uses the language ``parcels that touch at a point.''
Section 292.2 How are key terms defined in this part?
Federal recognition or federally recognized:
A few comments suggested modifying the definition to follow the
Department of the Interior (DOI) and NIGC definitions of Indian tribe
in 25 CFR 290.2 and 502.13.
Response: This recommendation was adopted in part. We maintained
the reference to the list of recognized tribes as it provides notice to
the public. In response to comments indicating confusion caused by
separate definitions of ``tribe'' and ``Federal recognition or
federally recognized,'' the Department deleted the separate definitions
and included a single definition of ``Indian tribe or tribe.''
[[Page 29356]]
Section 292.2 How are key terms defined in this part?
Former reservation:
One comment suggested deleting the word ``last'' in the definition.
Response: This recommendation was not adopted because the
definition clarifies that the last reservation be in Oklahoma, which is
consistent with the language of the statute.
Section 292.2 How are key terms defined in this part?
Land claim:
One comment suggested striking the words ``any claim'' and adding
the words ``a legal action seeking title or possession of land.''
Response: This recommendation was not adopted because a land claim
does not have to be filed in court in order to fall under the
definition; the land claim does have to allege that the subject land
was held in trust or subject to a prohibition against alienation on or
before October 17, 1988. IGRA's date of enactment was added to clarify
that claims accruing after its enactment are not included within its
scope.
One comment suggested modifying paragraph (1) to read, ``or a
constitutional, common law, statutory or treaty-based right to be
protected from government taking of Indian lands.''
Response: This recommendation was adopted in part. The words ``the
Constitution'' were added to paragraph (1), but the recommendation to
qualify the cause of action to a takings claim was not adopted.
One comment suggested including State law claims in the definition.
Response: The recommendation was not adopted because the land
claims within the meaning of IGRA arise under Federal statute, Federal
common law, the U.S. Constitution or a treaty and jurisdiction lies in
Federal, not State court.
One comment suggested adding language in paragraph (1) that reads,
``for the determination of title to lands,'' and language in paragraph
(2) that reads, ``or the United States.''
Response: The recommendation to modify paragraph (1) was not
adopted because it is too narrow; not all claims brought under the
definition are for the determination of title to lands--sometimes they
are brought for compensation. The recommendation regarding adding the
words ``or the United States'' was not adopted because the United
States is included in the word ``governmental.''
A few comments suggested various modifications to paragraph (1)
regarding the words ``Indian'' or ``Indian lands'' in order to remove
confusion with the definition of Indian lands in IGRA.
Response: These recommendations were adopted and the references to
Indian and Indian lands were removed.
Section 292.2 How are key terms defined in this part?
Legislative termination:
One comment suggested deleting the brackets around ``and/or its
members'' in order to be consistent with Sec. 292.9(b) and Sec.
292.10(c).
Response: This recommendation was adopted.
Section 292.2 How are key terms defined in this part?
Nearby Indian tribe:
A number of comments regarded the 25-mile radius limitation. Some
comments suggested the definition include no mile limitation while
others offered various extensions of the mile limitation based on
whether the area is urban or rural.
Response: These recommendations were not adopted. The 25-mile
radius is consistent throughout the regulations and provides uniformity
for all the parties involved in the Secretarial Determination process.
One comment suggested that the definition include a tribe's Federal
agency service area.
Response: This recommendation was not adopted because a tribe's
service area is too difficult to define for purposes of applying a
limitation to nearby Indian tribes.
One comment suggested striking the reference to 25 U.S.C. 2703(4).
Response: This recommendation was adopted.
A few comments suggested that the definition should include any
tribes with significant cultural or historical ties to the proposed
site. One comment suggested that the definition include any tribe
within the same county as the proposed gaming site, and another comment
suggested that the definition include any tribe within the same State.
Response: These recommendations were not adopted because they are
beyond the scope of the regulations and inconsistent with IGRA. The
statute specifically uses the word nearby. Therefore, ``any'' tribe
cannot be included in the definition.
One comment suggested that the definition should include tribes
whose on-reservation economic interest may be detrimentally affected by
the proposed gaming site. Another comment suggested creating a standard
for ``detrimental impact on nearby tribe.''
Response: These recommendations were not adopted. The definition
qualifies a ``nearby tribe'' in terms of distance to a proposed gaming
establishment. Thus, if an Indian tribe qualifies as a nearby Indian
tribe under the distance requirements of the definition, the
detrimental effects to the tribe's on-reservation economic interests
will be considered. If the tribe is outside of the definition, the
effects will not be considered. The Department will consider
detrimental impacts on a case-by-case basis, so it is unnecessary to
include a standard. The definition of ``nearby Indian tribe'' is made
consistent with the definition of ``surrounding community'' because we
believe that the purpose of consulting with nearby Indian tribes is to
determine whether a proposed gaming establishment will have detrimental
impacts on a nearby Indian tribe that is part of the surrounding
community under section 20(b)(1)(A) of IGRA. See discussion of the term
``surrounding community'' below.
Section 292.2 How are key terms defined in this part?
Newly acquired lands:
Several comments inquired as to the applicability of section 2719
to restricted fee lands, and to trust or restricted lands of individual
Indians.
Response: In response to these inquiries, a definition of ``newly
acquired lands'' was added to the regulations. It encompasses lands the
Secretary takes in trust for the benefit of an Indian tribe after
October 17, 1988. It does not encompass lands acquired by a tribe in
restricted fee after October 17, 1988 as discussed above in a response
in Sec. 292.1. It does not include land taken in trust after October
17, 1988 for individual Indians, nor land acquired after October 17,
1988 in restricted fee by individual Indians, because the language in
section 2719 of IGRA is limited to Indian tribes.
Section 292.2 How are key terms defined in this part?
Reservation:
In response to comments, the definition of reservation is clarified
and amended to include four paragraphs. The definition now specifically
includes land acquired by a tribe from a sovereign, such as pueblo
grant lands, acknowledged by the United States. Such grants occurred
prior to the land coming under the jurisdiction of the United States,
and is a closed set. The definition also specifically includes land set
aside by the United States for Indian colonies and rancherias for the
permanent settlement of the tribe, which were encompassed in part by
the prior reference to ``judicial
[[Page 29357]]
determination, or court-approved stipulated entry of judgment to which
the United States is a party.'' Both pueblo grant lands and rancherias
are treated as reservations under existing Indian lands opinions.
One comment objected that land acquired under the Indian
Reorganization Act (IRA), for purposes of reorganizing the half-bloods
residing thereon, would not fall within the meaning of reservation as
defined in the proposed rule.
Response: This recommendation was adopted and such land is now
specifically included in the definition. If such land was proclaimed a
reservation by the Secretary, it would be encompassed with the
definition of reservation under both paragraphs (1) and (3). If that
land was not proclaimed a reservation, it would nevertheless fall
within paragraph (3) of the revised definition, as land acquired by the
United States to reorganize adult Indians pursuant to statute.
One comment questioned whether the definition of reservation could
be interpreted as including a disestablished reservation, or the area
of a reservation that was ceded, leaving a diminished reservation.
Response: Reservation within these regulations does not include a
disestablished reservation. Reservation does not include land ceded
from the reservation that resulted in a diminished reservation. In
addition, because the term ``reservation'' has different meanings under
different statutes, the reference to ``judicial determination, or
court-approved stipulated entry of judgment to which the United States
is a party'' was deleted as overly broad and likely inconsistent with
both the purposes of IGRA and the distinction in IGRA between
``reservation'' and ``trust land.''
One comment suggested that the term ``reservation'' in IGRA be the
same as Indian Country in 25 U.S.C. 1151.
Response: We did not adopt this comment because Congress in
enacting IGRA chose to use the concept of Indian lands instead of
Indian Country. Moreover, Congress in IGRA distinguishes between trust
lands and reservations in section 2719. Therefore for the purposes of
these regulations that interpret section 2719 of IGRA, ``reservation''
for purposes of gaming on after acquired lands is limited to the four
delineated categories in the definition of reservation and not lands
that could be Indian Country for other purposes. Thus for the purposes
of determining whether gaming can occur pursuant to section 2719,
reservation does not include all property held in trust, as IGRA
distinguishes reservation from trust lands in its definitions.
Section 292.2 How are key terms defined in this part?
Surrounding community:
Several comments related to the requirement that local governments
and nearby Indian tribes be within 25 miles of the site of the proposed
gaming establishment. Some comments suggested a greater distance, for
example 50 miles; others urged no limit and instead recommended
alternate factors, for example the community as defined by the National
Environmental Policy Act (NEPA). One comment suggested that the
surrounding community include any tribe in the State where the gaming
facility is located.
Response: These recommendations were not adopted. The definition
was modified so it is consistent with the rest of the regulations and
the word radius was added. The 25-mile radius is consistent throughout
the regulations and provides uniformity for all parties involved in the
Secretarial Determination process. There is no legislative history
informing Congressional intent in defining how the term ``surrounding
community'' in section 20(b)(1)(A) of IGRA should be interpreted.
However, it is reasonable to assume that Congress did not intend that
all possible communities be consulted, no matter how distant, because
Congress was concerned with how a proposed gaming establishment would
affect those individuals and entities living in close proximity to the
gaming establishment, or those located within commuting distance of the
gaming establishment. The ``surrounding community'' is defined in order
for the Secretary to determine whether a proposed gaming establishment
would be detrimental to the ``surrounding community.'' Since 1994, the
BIA has published a ``Checklist'' to guide agency officials in
implementing section 20 of IGRA. The ``surrounding community'' was
first defined to include local governments within 30 miles of the
proposed gaming establishment, and nearby Indian tribes within 100
miles of the proposed gaming establishment. The Checklist was
subsequently modified in 1997 to include only those local governments
whose jurisdiction includes or borders the land, and nearby Indian
tribes located within 50 miles of the proposed gaming establishment
because our experience with the 1994 standard was that it included
communities that were not impacted by the gaming establishment. In
addition, this modification was made so that the term ``surrounding
community'' would be similar to the consulted community under 25 CFR
part 151. In 2005 the Checklist modified the term ``surrounding
community'' to include local governments within ten miles of the
proposed gaming establishment. The 2005 modification was made because
the purpose of the consultation with State and local officials is to
assess detriment to the surrounding community, and our experience in
limiting the consultation to those local governments with jurisdiction
over the land or adjacent to the land was too narrow. Ultimately, our
objective in the regulation is to identify a reasonable and consistent
standard to define the term ``surrounding community'' and we believe
that it is reasonable to define the surrounding community as the
geographical area located within a 25-mile radius from the proposed
gaming establishment. Based on our experience, a 25-mile radius best
reflects those communities whose governmental functions, infrastructure
or services may be affected by the potential impacts of a gaming
establishment. The 25-mile radius provides a uniform standard that is
necessary for the term ``surrounding community'' to be defined in a
consistent manner. We have, however, included a rebuttable presumption
to the 25-mile radius. A local government or nearby Indian tribe
located beyond the 25-mile radius may petition for consultation if it
can establish that its governmental functions, infrastructure or
services will be directly, immediately and significantly impacted by
the proposed gaming establishment.
One comment suggested changing the definition to ``surrounding
governmental entities'' because it would limit the consultation process
to a government-to-government basis.
Response: This recommendation was not adopted because IGRA uses
``surrounding community.''
One comment suggested that the definition be limited to local
governments and nearby Indian tribes within the State of the applicant
tribe's jurisdiction.
Response: This recommendation was not adopted. The definition
includes local governments and nearby tribes located in other States if
they are within a 25-mile radius.
Section 292.2 How are key terms defined in this part?
Tribe:
Several comments requested a more elaborate definition of tribe.
One comment suggested that all references of ``Indian tribe'' be
changed to ``tribe.''
[[Page 29358]]
Response: The comments recommending a more elaborate definition of
Indian tribe were adopted. The definition was renamed ``Indian tribe or
tribe.'' It is unnecessary to change all references of ``Indian tribe''
to ``tribe'' because they are now both defined.
Section 292.2 How are key terms defined in this part?
General comments regarding Sec. 292.2:
One comment suggested adding a definition of trust land.
Response: This recommendation was adopted in part and is addressed
in the definition of ``newly acquired lands.''
One comment suggested adding a definition of ``gaming'' that
includes ancillary structures such as hotels and parking.
Response: This recommendation was not adopted because it is outside
the scope of the regulations and inconsistent with IGRA.
One comment suggested adding a definition of ``State or States.''
Response: This recommendation was adopted in part. The statutory
term ``State or States'' along with some defining language was inserted
in Sec. Sec. 292.4, 292.6 and 292.12 in order to add clarity.
Subpart B--Exceptions to Prohibitions on Gaming on Newly Acquired Lands
Section 292.3 When can a tribe conduct gaming activities on trust
lands?
The Department received a few comments on this section; mostly
related to structure. Additionally, a few comments suggested that this
section is an appropriate section to add a paragraph discussing the
applicability of these regulations to applications for Secretarial
Determinations and requests for lands opinions that tribes submitted
before the effective date of these regulations; for those both acted
upon and those that are pending.
Response: The recommendation regarding pending and acted upon
Secretarial Determinations and requests for lands opinions was adopted
and addressed in new Sec. 292.26. The comments related to structure
were not adopted because the section was deleted in its entirety and
replaced with new Sec. 292.3: ``How does a tribe seek an opinion on
whether its newly acquired lands meet, or will meet, one of the
exceptions in this subpart?'' The former section did not offer anything
that is not covered in other parts of the regulation. Therefore, in
response to comments requesting guidance on the process for seeking
opinions under section 2719, the Department added the new section.
Paragraph (a) allows a tribe to submit a request for an Indian lands
opinion to either the NIGC or to the Office of Indian Gaming (OIG). As
a general matter under this paragraph, a tribe should submit the
request to NIGC when newly acquired lands are already in trust and, for
example, there is a pending gaming ordinance or management contract
before the NIGC Chairman or there is a question whether NIGC has, or
would have, regulatory jurisdiction under IGRA. The tribe should submit
the request to OIG if the request concerns reservation boundaries or
reservation status. Paragraph (b) requires the tribe to submit a
request for an Indian lands opinion to the OIG if the tribe must also
request a land-into-trust application in order to game on the newly
acquired lands or the request concerns whether a specific area of land
is a reservation. An opinion provided in response to a request under
paragraphs (a) or (b) is not, per se, a final agency action under the
Administrative Procedures Act (APA). Final agency action only occurs
when agency officials act on a determination pursuant to powers granted
them by Congress. Communications from administrative agencies thus
range ``from obvious agency action, such as adjudications and
regulation, to informal pronouncements, such as opinion letters,''
which are not ?nal agency actions. See, e.g., Sabella v. United States,
863 F. Supp. 1, 4 (D.D.C. 1994). Cheyenne-Arapaho Gaming Commission v.
NIGC, 214 F. Supp. 2d 1155, 1158 (N.D. Okla. 2002); Sabella, 863 F.
Supp. at 5.
Section 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?
This section was renamed ``What criteria must newly acquired lands
meet under the exceptions regarding tribes with and without a
reservation?''
For clarity, the references to ``trust lands'' in this subpart were
changed to ``newly acquired lands.''
One comment suggested a rule in this section that precludes
structures and activities that support or are ancillary to gaming
operations on contiguous lands.
Response: This recommendation was not adopted because section 2719
of IGRA is concerned with lands on which gaming will occur. Support or
ancillary operations to gaming facilities do not play a part in the
analysis as to whether gaming will be permitted under this section.
One comment objected to any requirement that would limit a tribe to
acquiring new lands for gaming that are ``adjacent'' to their original
reservation.
Response: The requirement that limits a tribe to contiguous lands
for gaming purposes is already written into law and these regulations
cannot make a substantive change to that law.
A few comments suggested a substantial revision of this section so
that it would eliminate inaccuracies, conform to the statute and add
clarity.
Response: The suggestions were adopted in part and the section was
revised in order to address the concerns and more closely mirror the
statute.
``Settlement of a Land Claim'' Exception
Section 292.5 What must be demonstrated to meet the ``settlement of a
land claim'' exception?
This section was renamed ``When can gaming occur on newly acquired
lands under a settlement of a land claim?''
Comments on paragraph (a):
One comment suggested that the rule should require that, along with
the State, the affected local governments also must approve a
settlement if it is to qualify for the exception.
Response: This recommendation was not adopted because the
regulations can neither dictate the language of Congressional
legislation nor the parties to a particular settlement agreement;
whether it is a final order or some other enforceable agreement. If a
local government is a party in a matter concerning a settlement of a
land claim, then its approval would be necessary.
One comment suggested that the rule should require that a tribe
have a demonstrable historical connection to the site chosen.
Response: This recommendation was not adopted because the
regulations can neither dictate the requirements of Congressional
legislation nor the terms to a particular settlement agreement; whether
it is a final order or some other enforceable agreement.
One comment suggested the following insertion at paragraph (a)(2):
``Has been resolved by congressional enactment; or.''
Response: This recommendation was addressed through the changes to
paragraph (a).
One comment suggested adding a new paragraph (a)(3) as follows:
``Relates to the acquisition, transfer or exchange of land to
compensate for or replace land within a reservation that is damaged or
otherwise rendered uninhabitable by a natural disaster, catastrophic
event, or other action.''
Response: This recommendation was not adopted because it is
unnecessary to either include or exclude, in the
[[Page 29359]]
regulations, claims based on particular sets of facts and
circumstances.
A few comments suggested that under paragraph (a)(1), the rule
should state that land would not be eligible for gaming if the claim is
dismissed on procedural grounds.
Response: This recommendation was not adopted because a dismissal
on procedural grounds, i.e., laches, does not necessarily mean that a
claim lacks merit and may not resolve other issues related to
impairment of title or loss of possession.
One comment was concerned that under paragraph (a)(1), the language
``has not been dismissed on substantive grounds'' is vague and another
comment suggested dropping the clause altogether.
Response: This recommendation was adopted.
One comment suggested that paragraph (a)(1) should include actions
filed in State court.
Response: The recommendation was not adopted because the land
claims within the meaning of IGRA arise under Federal statute, Federal
common law, the U.S. Constitution or a treaty and jurisdiction lies in
Federal, not State court.
One comment suggested that under paragraph (a)(1), language be
added as follows: ``wherein the relief sought is (A) return of land,
(B) conveyance of replacement land, or (C) monetary and Congress enacts
legislation to mandate that a portion of the monetary recovery (i.e.,
the judgment funds) be used to purchase real property.''
Response: The recommendation was not adopted because the
regulations cannot dictate the terms of a settlement or the relief a
tribe may seek. While the language of the regulation does not
specifically address the scenarios addressed in the comment, when a
particular land claim otherwise meets the definition, whether for
example the legal basis involves the impairment of title or other real
property interest such as a lease, and the relief includes the return
of land, conveyance of replacement land, or money for the purchase of
other real property, the land claim may meet the requirements of this
section as long as it is either subject to Congressional enactment or
returns to the tribe all of the lands claimed by the tribe.
One comment suggested paragraph (a)(2) be replaced with the
following language: ``Is a legal claim of a tribe that has not been
filed in Federal or State court.''
Response: The recommendation was not adopted; however, the
definition and regulation allow for a land claim that is not filed in
court.
One comment suggested adding a new paragraph (a)(3) to read: ``Has
been the subject of Federal legislation which allows for acquisition of
land.''
Response: The recommendation was adopted in part and is in included
in paragraph (a) of the reorganized section.
One comment suggested replacing in paragraph (a)(2) ``included''
with ``identified.''
Response: Due to a reorganization of this section, the suggestion
is no longer relevant.
Comments on paragraph (b):
One comment suggested replacing in paragraph (b) ``must be covered
by'' with ``must have been acquired pursuant to.''
Response: Due to a reorganization of this section, the suggestion
is no longer relevant.
One comment suggested the following edits in paragraph (b)(1):
``States that the tribe is relinquishing its legal land claim to some
or all of the lands claimed by the tribe as part of the settlement,
results in the alienation or transfer of title to tribal some or all of
the lands claimed by the tribe within the meaning of 25 U.S.C. 177, and
has been enacted into law by the United States Congress; or''
Response: Due to reorganization of this section, the suggestion is
no longer relevant, but the concepts behind the edits were adopted in
part, and incorporated into the reorganized section.
One comment suggested the following edits in paragraph (b)(2):
``Returns to the tribe lands identical to the entirety of the exact
lands claimed by the tribe, does not involve an alienation or transfer
of title to tribal lands claimed by the tribe that is prohibited under
25 U.S.C. 177, and is either:''
Response: Due to a reorganization of this section, the suggestion
is no longer relevant.
One comment suggested deleting the following language under
paragraph (b)(1): ``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.''
Response: This recommendation was adopted in part as it pertains to
25 U.S.C. 177.
One comment suggested replacing paragraph (b)(2) with ``Returns to
the tribe lands or allows acquisition of lands that the tribe has a
historical connection to and is either * * * ''
Response: This recommendation was not adopted because the
regulations cannot dictate the terms of the settlement.
One comment suggested modifying the language in paragraph (b)(2)(i)
to include both Federal and [S]tate court.''
Response: This recommendation was not adopted. The definition
precludes actions filed in State court because land claims, within the
meaning of IGRA, are based on Federal law. In addition, comments
revealed that the proposed regulations could be read to identify
settlements between a tribe and State without the involvement of the
Federal Government. The final regulations clarify that the U.S. must be
a party to the settlement.
One comment suggested adding a new paragraph (b)(2)(iii) that
reads: ``Acquired pursuant to Federal legislation.''
Response: This recommendation was adopted in part and reflected in
the reorganized section.
One comment suggested that the exception should be amended to apply
to an out-of-court settlement that is approved by the United States and
that only requires the non-Indian party to voluntarily vacate the
premises, pay damages, or allows the settlement agreement to be
implemented through Secretarial approval of some form of conveyance of
interest in Indian land under existing law.
Response: The recommendation to amend the exception to apply under
the exact scenario described by the comment was not adopted; however,
to the extent that the United States is a party, the scenario would fit
under the exception.
One comment suggested replacing the introduction with ``Under this
section, class II or class III gaming may be conducted on trust lands
only if the criteria of both (a) and (b) are met.''
Response: This recommendation was not adopted. The section was
reorganized and the recommendation is no longer relevant.
A few comments suggested that the rule should require a settlement
to be ratified either by Congress or consented to by the affected local
government.
Response: This recommendation was adopted to the extent that it
relates to Congressionally enacted settlements and to the extent an
affected local government is a party to a particular settlement
agreement, whether it is a final order or some other enforceable
agreement.
[[Page 29360]]
``Initial Reservation'' Exception
Section 292.6 What must be demonstrated to meet the ``initial
reservation'' exception?
One comment suggested that Sec. 292.6(a) inappropriately restricts
the scope of the ``Federal acknowledgment process'' to the regulatory
procedures in 25 CFR part 83.
Response: The Department does not accept the recommendation to
apply these regulations more broadly to recognition by means other than
that through 25 CFR part 83. The plain meaning of the statute suggests
that it applies to tribes acknowledged by this process and no others.
Comments on paragraph (b):
Several comments suggested deleting paragraph (b). One comment
stated that there is no mention of location with respect to tribal
members or tribal government in IGRA and that it is unfair to tribes
with widely dispersed populations due to allotment and termination. One
comment fundamentally disagreed with and recommended eliminating the
50-mile majority membership requirement.
Response: These recommendations were adopted in part. While a so-
called ``modern connections'' requirement was not eliminated entirely,
the paragraph was modified in response to a number of comments that
suggested that the requirement encompass a wider range of criteria. The
50-mile majority requirement was eliminated and the paragraph was
amended to reference a significant number of tribal members or other
factors that demonstrate the tribe's current connection to the land.
The inclusion of a modern connections requirement provides an element
of notice to the surrounding community yet the elimination of the 50-
mile majority requirement recognizes that the standard is too difficult
to apply in today's mobile work related environment.
A few comments suggested reducing the 50-mile majority requirement
to 25 miles so the mileage requirements are the same for both the
``tribal majority test'' and the ``headquarters test'' in paragraph
(b). Another comment suggested making the ``50-mile majority test'' and
the ``headquarters test'' conjunctive instead of disjunctive, for
example; making the ``or'' an ``and.''
Response: These recommendations were not adopted because the
purpose of the exception is to assist newly recognized tribes in
economic development. As long as the tribe has a modern connection to
the land, the surrounding community has notice of the tribal presence.
Several comments suggested that the ``headquarters test'' is easily
manipulated and should not be included. Some comments suggested
increasing the 25-mile limit.
Response: The recommendations to remove the headquarters test and
to alter the 25-mile radius were not adopted because the headquarters
test is a useful means of determining whether a tribe has a modern
connection to the newly acquired land and the 25-mile radius is both
useful and consistent. (The word radius was added to the regulation to
provide clarity.) Nonetheless, the concerns raised by these comments
are legitimate because the version of the headquarters test in the
proposed regulations could be construed as being open to manipulation.
Therefore, the qualifier was added in the final regulations that the
tribe's headquarters or other tribal governmental facilities be in
existence at that location for at least two years at the time of the
application for land-into-trust. The addition of ``other tribal
governmental facilities'' was necessary due to concerns that tribes
often operate out of more than one headquarters or facility.
One comment suggested that the ``headquarters test'' is not in the
best interest of the tribe because it may separate a headquarters from
a tribal population center.
Response: This concern was addressed through the modification of
paragraph (b). A tribe may show a modern connection through not only a
nearby headquarters but also through other tribal governmental
facilities.
Comments on paragraph (c):
A few comments suggested deleting the reference to ``cultural
connection'' because it is essentially a subset of historical
connections and adds redundancy and confusion to the regulation.
Response: This recommendation was adopted.
One comment suggested adding specific examples of significant
historical and cultural connections in paragraph (c), for example,
``designated in a treaty, whether ratified or not.'' Another comment
stated that the term ``significant historical connection'' is too vague
to offer any protection to tribes or citizens and that the regulation
should not allow gaming on lands to which a tribe has only a transient
connection. Several comments specifically suggested a definition for
``significant historical connections.''
Response: This recommendation was adopted in part through the
addition of the new definition ``significant historical connections.''
One comment suggested deleting (c).
Response: This recommendation was not adopted. The significant
historical connection requirement insures that the tribe has a
preexisting connection to the newly acquired lands proposed to be its
initial reservation. Furthermore, the Department does not believe it is
good policy to create an initial reservation in an area where the tribe
has no preexisting connection.
One comment suggested that the word ``area,'' as it relates to the
term ``significant historical connection,'' is too broad. The comment
suggested that gaming should be limited to ancestral homelands and that
language should be inserted to reference 25 CFR 151.11(b) so that as
distance from homeland increases--nearby local officials, State
officials and tribe's input gains greater weight.
Response: This recommendation was not adopted because the actual
land to which a tribe has significant historical connection may not be
available. Additionally, input from nearby local officials, State
officials and other tribes is not part of the Initial Reservation
analysis in section 2719.
One comment suggested that the significant historical connection
requirement should be uninterrupted connection. Another comment
suggested that the requirement should show historically exclusive use.
Response: These recommendations were not adopted. They would create
too large a barrier to tribes in acquiring lands and they are beyond
the scope of the regulations and inconsistent with IGRA.
General comments on Sec. 292.6:
One comment noted that there is nothing in the ``Initial
reservation'' section of the regulations regarding process so the
public has an opportunity to comment.
Response: Unlike the exception in IGRA section 2719(b)(1)(A), the
exceptions in section 2719(b)(1)(B) do not reference an opportunity for
public comment. Because the section 2719(b)(1)(B) exceptions do not
require public comment and since they present a fact-based inquiry, it
is unnecessary to include a requirement for public comment in the
regulations. Nonetheless, there are opportunities for public comment in
other parts of the administrative process--for example, in the process
to take the land in trust and during the NEPA review process. Although
the regulations do not provide a formal opportunity for public comment
under subpart B of these regulations, the public may submit written
comments that are specific to a particular lands opinion. Submissions
[[Page 29361]]
may be sent to the appropriate agency that is identified in Sec.
292.3.
One comment suggested that the regulations include the process by
which the BIA will make their decisions. Another comment suggested that
the regulations need to include standards by which the Secretary will
make a decision.
Response: These recommendations were adopted in part. If the tribe
does not have a proclaimed reservation on the effective date of these
regulations, Sec. 292.6(d) provides standards that the tribe must
demonstrate in order to be proclaimed a reservation under the initial
reservation exception.
One comment suggested that the regulations add a section that
provides that lands far removed from historical territory shall not be
taken into trust for gaming.
Response: This recommendation was not adopted because the comment
raises issues pertaining to 25 CFR part 151--Land Acquisitions.
One comment suggested that the tribes should be required to analyze
sites that are close to aboriginal homelands.
Response: This recommendation was not adopted. Newly acquired lands
with significant historical and cultural connections may or may not
include those that are close to aboriginal homelands.
A few comments suggested striking all of paragraphs (b) and (d)
along with a large amount of (c) and (e) so that this paragraph would
limit ``initial reservation'' to a tribe acknowledged under part 83 and
the condition that ``the land is located within the external boundaries
of the first reservation of lands set aside for the tribe.''
Response: This recommendation was not adopted, as it does not take
into account the present circumstances of the tribe's location.
One comment suggested cross-referencing ``significant historical
connections'' in the section to Sec. 292.12(b).
Response: The intent of this recommendation was adopted through
adding a definition of significant historical connections to the
definition section.
One comment suggested that the request for an opinion should
include the distance of the land from the location where the tribe
maintains core governmental functions.
Response: The recommendation was not adopted because the distance
from the tribal headquarters or other governmental facility is just one
of three methods by which a tribe can meet the modern connections
requirement and is therefore not always necessary. Additionally, it is
not within the scope of IGRA to restrict such analysis to locations
with ``core'' governmental functions.
One comment suggested that the regulations require a tribe to
provide information about the tribe's ancestral ties to the land.
Response: The recommendation was not adopted; however, ancestral
ties would be part of the significant historical connection analysis.
One comment suggested that the regulations use only one test for
both the ``initial reservation'' exception and the ``restored lands''
exception; the test being that a majority of tribal members live within
50 miles of the proposed gaming site.
Response: This recommendation was not adopted. The regulations
articulate a ``modern connections'' test for both the ``initial
reservation'' and ``restored lands'' exceptions but the 50-mile
majority requirement was eliminated from each for the reasons discussed
under the comments for paragraph (b).
One comment noted that the BIA does not define what uses can be
made of an initial reservation. The commenter was concerned about an
initial reservation established solely for casino development.
Response: An initial reservation may be used solely for the
establishment of a casino.
One comment suggested a ``contemporary ties'' test instead of using
the ``modern connections test'' as set forth in the proposed
regulations.
Response: This recommendation was adopted in part. The term
``contemporary ties'' was not used, but the modern connections test as
set forth in the proposed regulations was modified using some of the
suggestions that were given in relation to the ``contemporary ties''
test.
One comment suggested striking (e) and replacing it with ``the
tribe has not conducted gaming on any other lands proclaimed to be a
reservation under 25 U.S.C. 467.''
Response: This recommendation was not adopted. Gaming is allowed on
the initial reservation under this exception. If other newly acquired
land is declared a reservation, gaming can occur on it under a two part
determination without precluding gaming on the initial reservation. To
preclude gaming on the initial reservation would be contrary to the
congressional intent in providing this exception.
``Restored Lands'' Exception
Section 292.7 What must be demonstrated to meet the ``restored lands''
exception?
A few comments noted that there are no opportunities for public
comment on restored lands decisions.
Response: Unlike the exception in IGRA section 2719(b)(1)(A), the
exceptions in section 2719(b)(1)(B) do not reference an opportunity for
public comment. Because the section 2719(b)(1)(B) exceptions do not
require public comment and since they present a fact-based inquiry, it
is unnecessary to include a requirement for public comment in the
regulations. Nonetheless, there are opportunities for pubic comment in
other parts of the administrative process--for example, in the process
to take the land in trust and during the NEPA review process. Although
the regulations do not provide a formal opportunity for public comment
under subpart B of these regulations, the public may submit written
comments that are specific to a particular lands opinion. Submissions
may be sent to the appropriate agency that is identified in Sec.
292.3.
One comment suggested that the tests for significant historic
connections and modern connections are deficient because they allow
tribes without true historic ties and with inadequate modern ties to
game on lands under the restored lands exception.
Response: The Department received comments suggesting the opposite
of this argument as well; suggesting that the historical and modern
tests were too restrictive. The final regulations consider both sides
of this issue and modifications were made accordingly.
One comment suggested using the term ``recognized by the United
States'' instead of the term ``federally recognized'' because of a
concern of confusion arising from the defined term ``federally
recognized'' in the proposed regulations.
Response: This recommendation was not adopted; however, the
potential confusion was remedied through the omission of a defined term
``federally recognized'' in the final regulation in favor of a
modification of the term ``Indian tribe or tribe.''
One comment suggested adding a paragraph to Sec. 292.7 that the
lands acquired in trust for the tribe meet the requirements of Sec.
292.11.
Response: This recommendation was adopted for purposes of clarity.
[[Page 29362]]
Section 292.8 How does a tribe qualify as having been federally
recognized?
One comment suggested that paragraph (a) include more details
regarding the treaty negotiations with the tribe. For example, the
comment suggested including the following requirements: Detailing who
negotiated with a tribe; that the negotiations be authorized by the
Department; that the facts and subject matter of the negotiations be
memorialized; that the tribe be organized at the time of the
negotiation; and that a definition of ``negotiates'' be included to
mean a goal-oriented government-to-government discussion.
Response: These recommendations were not adopted. Paragraph (a)
will be applied on a case by case basis.
One comment suggested that paragraph (b) should require that the
Department make the opinion formally, in writing, and according to
governing regulations.
Response: This recommendation was not adopted. While the opinions
are always going to be in writing, in the past they were made with
varying degrees of formality depending on the situation presented.
Regulatory guidance making these requirements mandatory is not feasible
and is unnecessary.
One comment suggested paragraph (b) should not use the word
``could'' because there is a difference between tribes that could and
tribes that actually did organize under the Acts.
Response: This recommendation was not adopted because a
Departmental opinion that a tribe could organize is evidence of Federal
recognition, regardless of whether the tribe actually organized under
the Acts.
One comment suggested that the word ``including'' in paragraph (c)
be removed and that the paragraph be modified to require the
legislation to specifically name the tribe in question and to describe
the substance of the relationship.
Response: This recommendation was adopted in part. The word
``including'' was removed and replaced with the word ``naming.''
A few comments suggested paragraph (d) needs modification. One
comment suggested differentiating between land acquired for organized
and land acquired for landless Indians without ``ethno historic
coherence.'' Another comment argued that the section is too permissive
because it qualifies a tribe as having been recognized if the United
States acquires land in trust for a tribe's benefit.
Response: These recommendations were not adopted. Paragraph (d), as
written, provides sound guidance to the Department in issuing its
opinion regarding whether a tribe was once federally recognized.
One comment suggested paragraph (e) should require certain
standards regarding the tribe, the relationship with the Federal
Government, and what constitutes evidence.
Response: These recommendations were not adopted because the
regulation needs no further elaboration and is clear on its face.
One comment suggested striking the word ``federally'' from the
introduction sentence and the word ``Federal Government'' from
paragraph (e).
Response: These recommendations were not adopted because IGRA is a
Federal statute concerning federally recognized tribes, 25 U.S.C.
2703(5).
One comment suggested that the section include a paragraph (f) that
requires the tribe seeking a lands opinion to be the political and
genealogical successor to the tribe identified through paragraphs (a)
through (e).
Response: This recommendation was not adopted because it is
unnecessary. These concerns are addressed and inherent in the restored
lands analysis under Sec. Sec. 292.9-12.
One comment suggested using Professor Cohen's test for Federal
recognition, which it characterized as Congressional or Executive
action and a continuing relationship with the group, and that restored
lands opinion should be made by the BIA's Branch of Acknowledgment and
Research (BAR), now the Office of Federal Acknowledgment (OFA).
Response: These recommendations were not adopted because OFA's
expertise is in analyzing a petitioner under other criteria, such as
community, political influence, and genealogy, not land matters. The
section already requires Executive or Congressional action. The
continuing relationship can be evaluated under (e), but is not required
when any of factors (a) through (d) are demonstrated.
Section 292.9 How does a tribe show that it lost its government-to-
government relationship?
A comment questioned how old a document must be to be considered
``historical'' and another comment wanted to include as acceptable
evidence, documentation from sources other than the Federal Government,
including oral histories, to show that the Federal Government either
affirmatively terminated its relationship or that the relationship
ceased to exist, such as through inaction.
Response: These recommendations were not adopted. Although
``historical'' is somewhat imprecise, it adds clarity to the type of
documentation that is acceptable evidence under this section. Modern
documents about events in the past are not acceptable evidence.
Acceptable documentation is written documentation from the Federal
Government specifically terminating the relationship, or indicating
consistently that there is no longer a government-to-government
relationship with the tribe or its members. Historical or modern
accounts that conclude or assume that there is no government-to-
government relationship, or that the relationship has lapsed through
inaction of the tribe or the government, are secondary evidence and are
not acceptable evidence within the meaning of this section. Similarly,
historical or modern accounts that the Federal Government did not or
does not acknowledge a specific responsibility with the group because
there is no longer a trust asset to protect or disburse, or because the
Federal Government did not or does not know who the group is, are not
acceptable evidence, even if the account is from the Federal
Government.
One comment stated that in paragraph (a), the Congressional action
must be clear that the relationship was terminated and that the tribe
be identified by name.
Response: This recommendation was not adopted because the commenter
did not suggest how to clarify the paragraph. The paragraph, as
written, is sufficient to address the commenter's concerns.
One comment suggested adding the phrase ``clearly and affirmatively
acted to'' after ``Executive Branch,'' in paragraph (b), in order to
preclude tribes from asserting that administrative errors constitute
deliberate acts of termination.
Response: This recommendation was not adopted because the words
``show'' and ``no longer'' are adequate.
A few comments argued that the paragraph (b) should give no
excessive deference to the Department of the Interior or the Department
of Justice and that all branches of the Federal Government s