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(Carrie Levine is reporter with Legal Times, an ALM publication.)

WASHINGTON, DC-Native American tribes around the country are complaining about lengthy delays at the Interior Department, raising questions over whether Interior Secretary Dirk Kempthorne is blocking action on some gaming applications because of his personal reservations about off-reservation gambling. Tribal representatives–including Washington lawyers and lobbyists–say that overall the delays have cost tribes and state governments millions of dollars in lost revenue, without much explanation for their cause. Tribal representatives and lobbyists are now pressing Congress to intervene.

So far, the rumblings have drawn little notice inside the Beltway, but they are getting louder. The Senate Committee on Indian Affairs, chaired by Sen. Byron Dorgan, decided last week to hold an Oct. 4 hearing on the backlog at Interior. And New York Gov. Eliot Spitzer has written a sharply worded letter of complaint to Rep. Nick Rahall, chairman of the House Natural Resources Committee, about Kempthorne’s handling of an application from a New York tribe, asking that committee to hold its own hearing.

“[Kempthorne], as a government official, should not be able to hold up a project by a continuing failure to reach a decision,” Spitzer writes, pointing out that the tribe’s application has been complete for about seven months. “I am aware that Secretary Kempthorne does not like off-site Indian casinos, but this cannot be the basis of a refusal to act.”

Rethinking the Process

The tribes’ complaints about delays at Interior aren’t limited to off-reservation gaming applications, but those are among the most controversial. Officials at Interior say Kempthorne is working to reconcile his past stance with his current role as a trustee when it comes to gaming. As governor of Idaho, Kempthorne, a Republican, opposed casinos on nonreservation land.

Earlier this year, Interior Associate Deputy Secretary James Cason sent letters to tribes that had pending applications to take new land into trust as reservation property with the intention of putting gaming on it. The department provided copies of two such letters to Legal Times.

In the letters, Cason acknowledged that the law allows tribes to “conduct casino gaming off-reservation” if the application meets specific conditions. But, in a version that went in February to the Ba River Band of Lake Superior Chippewa and the St. Croix Chippewa tribes of Wisconsin, which have a joint application pending, Cason wrote, “please be advised that we share the concerns that many have expressed with off-reservation gaming and so-called ‘reservation shopping.’” Some critics have said efforts by tribes to open casinos on land far from current reservations is troubling, even when tribes assert historical ties to the property. Cason writes in the letter that the department is considering “a paradigm where the likelihood of accepting off-reservation land into trust decreases with the distance the subject parcel is from the Tribe’s established reservation or ancestral lands, and the majority of tribal members.”

Cason writes that the 109th Congress considered legislation to restrict such applications, and he expects efforts to continue, though that legislation failed. Because of public concern, he writes, “the Department will be reviewing the regulations,” and anticipates changes to the rules that “may result in fewer off-reservation properties being accepted into trust.” Cason also urges tribes “to become fully aware of the changing environment and to discuss the risks of pursuing an off-reservation gaming application with your tribal council, legal counsel, and business partners” before deciding whether to proceed.

John Dossett, general counsel for the National Congress of American Indians, says the group has been trying to draw attention to delays at Interior for at least the last decade. “This administration has been cautious about off-reservation acquisitions” but has been trying to help move other backlogs along, he says.

A Question of Trusts

Applications to bring land into trust for tribes go through a lengthy process, and the details of each differ. The St. Regis Mohawk application to put a casino by the Monticello Raceway in New York has been lengthy and contentious but is essentially complete. Spitzer gave the necessary state approval in February. But Interior still must issue a determination, and those involved with the tribe’s efforts say it’s unusual for it to take this long.

“It’s unique and unprecedented,” says Shenan Atcitty, the Holland & Knight partner who represents the St. Regis Mohawks. Lorraine White, chief of the St. Regis tribe, says the tribe has spent years going through the application process and has poured tribal funds into it.

“To actually conclude this very difficult application process, and then to be held hostage by a single man who has, perhaps, personal opinions and bias towards off-reservation gaming is deplorable,” White says. Spitzer, meanwhile, says in his letter that Kempthorne should reject the application if he has a legal basis, but “his problem seems to be that he has no legal reason for rejecting this application. He just fails to approve it.”

The tribe and the state have a compact that will eventually give New York up to 25% of the annual revenue from slot machines at the casino, which means the state could reap millions of dollars from the project. White and others point to reported comments from Cason and other officials who say Kempthorne’s views play a role.

After checking with Cason on the accuracy of the comments, an Interior spokeswoman said Cason has made similar such remarks, and has said of Kempthorne: “As secretary, he has a different role to play, and he has to reconcile his public policy stance with his role as a trustee. So he’s looking at past precedents and decisions, and the circumstances in individual cases, in order to come up with a proper, well-founded, balanced decision.”

The St. Regis Mohawk tribe is one of the most outspoken, but others, too, say Interior has been slow to respond on a variety of issues. Tribes are also raising questions about how environmental impact statements required by Interior are processed.

George Skibine, director of the Office of Indian Gaming, says there are four applications that are ready for a decision, including the St. Regis Mohawk application. Other tribes have applications in the process.

Many tribes are concerned about jeopardizing chances further with harsh public comments. One tribal lobbyist with pending applications before the department wouldn’t rule out suing to force a decision, but thinks litigation could take so long, it would put off a decision until the next presidential administration takes over. “Tribes that expect a trustee to act in a timely manner,” he says, “are losing hundreds of thousands of dollars of opportunity for economic development, as well as risking fragile alliances with local communities to support their projects.”

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