IGRA s Initial Reservation Exception and the Reservation Proclamation Requirement Padraic McCoy 1

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1 IGRA s Initial Reservation Exception and the Reservation Proclamation Requirement Padraic McCoy 1 Congress enacted the Indian Gaming Regulatory Act ( IGRA ) in 1988 to promote tribal economic development and self-sufficiency, and to build strong tribal governments. IGRA authorizes tribal gaming on reservations and trust lands, but prohibits gaming on land placed into trust after IGRA s enactment date unless, among other exceptions, the land constitutes the initial reservation of a newly recognized tribe. Rather than giving this phrase its plainlanguage meaning, the Department of the Interior (the Department ) requires tribes to obtain a formal proclamation that the new trust land is a reservation. This is an unwarranted construction of the statute, unduly burdens tribes, and delays or increases the cost of tribal economic development by creating unnecessary skepticism in the marketplace. 2 IGRA Section 20 s Initial Reservation Exception. IGRA authorizes casino-style gaming on Indian lands, which includes (a) all lands within any Indian reservation and (b) all tribally- or individually-held trust or restricted lands. 3 IGRA Section 20 prohibits gaming on land taken into trust or restricted status for a tribe after IGRA s enactment date (October 17, 1988), so-called after-acquired lands. 4 However, Section 20 contains several exceptions. Certain of the Section 20 exceptions 5 were enacted to place newly recognized tribes on an equal footing with tribes that had gaming-eligible lands before IGRA. Congress foresaw that, for example, some non-federally recognized tribes would win federal recognition after IGRA, and that such tribes should have the same opportunity to take advantage of IGRA-authorized gaming as other tribes. One such exception is where land is taken into trust as part of the initial reservation of an Indian tribe newly recognized by the Secretary of the Interior ( Secretary ) under the regulatory acknowledgment process. 6 Unfortunately, but not by accident, Congress failed to define what it meant by initial reservation. The Department s Proclamation Requirement. Here s the problem. The Department proposes to require by regulation (and already informally requires 7 ) that, in order for a particular tract of land to qualify as an initial reservation for IGRA Section 20 purposes, a tribe must obtain a proclamation. A proclamation is a formal statement signed by the Assistant Secretary Indian Affairs that a particular tract of land constitutes a reservation. 8 If this requirement were a mere formality, there wouldn t be much of an issue. But, like most approvals tribes are required to obtain from the Department, the proclamation requirement results in a significant layer of federal process timely, costly, and subject to unpredictable discretion. Allotment, the IRA, and Section 7 Proclamations. In an attempt to rescue Indians and tribes from their primitive lifestyles, 9 Congress embarked on a new national policy in the late 1800s to break up the country s Indian land base into small, individually owned parcels or allotments. 10 Those in power believed that private property had magical mystical qualities about it that led people directly to a civilized state. 11 It wasn t long before the new allotment policy was an admitted total failure, a disaster for tribal communities. The Indian problem that allotment was meant to address (poverty, 1

2 homelessness, joblessness, a healthcare and education crisis) in some cases was getting much worse. In response, Congress enacted the Indian Reorganization Act (the IRA ) 12 in 1934 to halt allotment and rebuild the Indian land base, and thereby repair Indian communities. A prime ingredient of this reversal was IRA Section 5, which gives the Secretary the authority to acquire any interest in land, water, or surface rights for the purpose of providing land for Indians. 13 Barring some special law, IRA Section 5 is the principal statute under which the Department accepts land into trust for Indians and tribes for gaming and non-gaming purposes. IRA Section 7 authorizes the Secretary to add new trust lands to existing reservations and to proclaim new Indian reservations. Unless some other statute requires the Secretary to act, 14 IRA s Section 7 authority is always discretionary. While Congress intent in IRA Section 7 is not entirely clear, 15 today it s really a holdover from an earlier era when certain laws applied only to Indian reservations. 16 However, in 1948 Congress passed the Indian country statute, in essence broadening the bounds of tribal and federal jurisdiction to include trust and restricted lands, as well as reservations. 17 Soon, that statute or very similar ones (like IGRA s Indian lands definition) became the guidepost to measure the geographic application of federal laws related to Indians and tribes. If IGRA applied only to reservations, then the Department s proclamation requirement would arguably have some justification. Yet, tribal trust lands generally constitute reservations even without a formal proclamation. The Proclamation Process. To govern the process, the Department has created internal proclamation procedures that haven t gone through public or tribal notice and comment or been implemented as regulations. 18 First, in addition to requiring certain documentation, 19 the Department will not initiate its review until after it has acquired the parcel in trust for the tribe. This significantly slows the ultimate goal (i.e., to build a casino and generate tribal revenues) because tribes are forced to successfully push through two back-to-back federal processes one for the trust application and one for the proclamation a tall order for a tribe that has just gone through a years-long and burdensome acknowledgment process. 20 Second, the tribe must describe the justifications (the advantages, need, rationale, etc.) for securing reservation status an odd requirement considering that, in this context, the tribe s justification for requesting the proclamation is that the Department requires it. The tribe must also explain the present and future uses of the property, and describe whether the land is within the tribe s federally defined aboriginal territory. To boot, the request must specifically state how the action meets the purpose of providing land for Indians (from IRA Section 5). This purpose is of course achieved from the trust land acquisition, not the proclamation. Third, the process requires a 30-day public notice of the action, which allows input to affected state and local governments and residents, thereby opening the decision to attack by lawsuit that could interrupt or prohibit the proclamation altogether. This requirement could be especially fatal considering the Department s growing trend to lend more and more weight to such comments and concerns a disturbing tendency considering the United States trust responsibility to tribes 21 and Congress express policy in IGRA to promote tribal economic development. Fourth, the process requires National Environmental Policy Act ( NEPA ) compliance. NEPA is triggered upon any major federal action significantly affecting the quality of the 2

3 human environment. 22 Unless an exemption applies, NEPA compliance most often means completion of an environmental assessment ( EA ) or, worse yet, an environmental impact statement ( EIS ). An EA or EIS can take from a few months to a few years or more and, as with the 30-day notice, opens the action to attack by lawsuit that would consume valuable time, tribal dollars, and resources to address. 23 Finally, both the local Bureau of Indian Affairs ( BIA ) agency and the central (Washington, D.C.) BIA office must be involved in the review and approval process. The local agency assists in preparing and analyzing the request and the central office reviews the request and makes the decision. Importantly, only the Assistant Secretary-Indian Affairs may approve a proclamation. Practically, this means subjecting the proclamation to the prevailing winds of Indian gaming politics in Washington D.C., which results in more lost time to the tribe and a near wrestling match with the Department to deliver the proclamation (even after word that it has approved and signed the document). Even if the proclamation were required, the process is unreasonable in light of the tribe s completion of a similar process to acquire the land in trust. 24 Why a Proclamation is Not Required. First and foremost, a proclamation is not required for land to escape IGRA s after-acquired prohibition because, simply enough, IGRA does not require it. IGRA simply says that, to escape the Section 20 prohibition, the land on which the newly recognized tribe desires to conduct gaming must be that tribe s initial reservation. Second, the Department is wrong to attach a technical meaning to the term initial reservation, 25 which is the effect of requiring a proclamation. Congress left initial reservation undefined in IGRA, instead leaving that term to its ordinary and plain meaning, which courts are required to use. 26 Further, the courts have prohibited a special meaning from being applied to the other, similarly situated, IGRA Section 20 exceptions all are to be applied broadly. 27 Although IGRA Section 20 creates a presumptive bar against gaming on after-acquired lands, that bar should be construed narrowly (and the exceptions to the bar broadly) in order to be consistent with the purposes of the IGRA, which is to encourage gaming. 28 Third, the Department shouldn t require a proclamation for an initial reservation because it doesn t require one for a regular reservation under IGRA. The Department offends the equal-footing goal of the Section 20 exceptions by treating tribes seeking to use the initial reservation exception differently than tribes that had gameable lands before IGRA. There s nothing about the addition of the term initial that should transform reservation as it is commonly defined into something special. Initial Reservation and Reservation Defined. IGRA doesn t define initial reservation, but for purposes of IGRA Section 20 it obviously means the first reservation of a recently acknowledged Indian tribe. 29 Webster s defines reservation as a tract of public land set aside for a particular purpose (as schools, forest, or the use of Indians). 30 Cohen s treatise describes reservation as federally protected Indian tribal lands, or land set aside under federal protection for the residence or use of tribal Indians. 31 The U.S. Supreme Court has said that reservation can be any body of land, large or small, which Congress has reserved from sale for any purpose. 32 The Department s own regulations define Indian reservation as any area established by treaty, Congressional Act, Executive Order, or otherwise for the use or 3

4 occupancy of Indians. 33 Tribal trust lands are acquired (i.e., set aside ) by the United States for a tribe and generally for a specific purpose, and thus without a proclamation meet these definitions of reservation. Further, and picking up the jurisdictional importance of the term (key for IGRA purposes), the Department has also defined reservation as any area of land over which [a] tribe is recognized by the United States as having governmental jurisdiction. 34 Since tribes have jurisdiction over their trust lands, 35 trust lands qualify as reservations. 36 In addition, years of case law on the subject confirm that trust lands are reservations for jurisdictional purposes. For instance, the courts have said that reservation surely encompasses both trust lands and formally designated reservations, 37 and that tribal trust lands are a de facto reservation, 38 a reservation for purposes of federal criminal jurisdiction 39 and for purposes of tribal immunity. 40 Congress real concern in IGRA s Indian lands definition (which sets out where a tribe can conduct gaming) was not that the gaming site attain any formal title or distinction, but at a more pragmatic level that the tribe would have jurisdiction over the gaming site. In other words, since a tribe is the principal regulator of its tribal casino under IGRA, Congress had to ensure that the principal regulator could lawfully exert governmental authority over the casino s location. Further, Indian country marks the bounds of tribal jurisdiction and Indian country includes both reservations and trust lands. Thus, as long as a tribe has land in trust, it can exercise jurisdiction over that land and satisfy Congress practical concern that the tribal casino will be subject to the tribe s jurisdiction. Whether a newly recognized tribe s first land base is a formally designated reservation or whether it constitutes a reservation because it s tribal trust land shouldn t matter. A tribe has jurisdiction over both. Conclusion. The Department should stop requiring newly recognized tribes to obtain a proclamation to conduct gaming on their initial reservations. Reservation is a loosely-defined term that unquestionably includes tribal trust lands. Alternatively, the Department should revise the proclamation process when it is used for IGRA Section 20 purposes to reflect the fact that tribes using that exception just completed a similar fee-to-trust process. Whatever it does, the Department should interpret IGRA Section 20 s initial reservation exception with a strong eye toward IGRA s intent to promote tribal economic development. Tribes are still recovering from the effects of allotment and other failed federal policies, and IGRA is an important part of an overall tribal recovery plan. The Department s narrow interpretation of Section 20 only impedes that recovery. 1 Attorney, Faegre & Benson LLP s Indian Law Practice, Boulder, Colorado. J.D., UCLA 2001; M.A. American Indian Studies, UCLA, A descendant of the Quechan Nation. I thank Elizabeth Schmiesing, Mandi Hill, Laura Hutchings, and Zoe Bulick for their valuable input on this article. 2 The added burden of having to obtain a formal proclamation causes skepticism not only about the gameability of Indian lands but also more generally about doing business with tribes. Both of these considerations can affect, sometimes significantly, the cost of capital to tribes and the goal of promoting tribal economic development. 4

5 3 25 U.S.C. 2703(4). The NIGC defines Indian lands virtually the same way. 25 CFR IGRA is Public Law , 25 U.S.C et seq. Trust lands are owned by the United States in trust for a particular tribe or individual Indian, while restricted lands are owned by the tribe or individual with a restriction against title so that the owner cannot sell, mortgage, lease, or otherwise encumber the property without federal approval (or in some cases in Oklahoma, without state court approval) U.S.C Those at Section 20(b)(1)(B)(ii) (the initial reservation exception) and 20(b)(1)(B)(iii) (the restored lands exception) U.S.C. 2719(b)(1)(B)(ii). The regulatory acknowledgement process is found at 25 CFR Part 83 (1978). 7 In effect, the Department already imposes the requirement because it will not give an Indian lands opinion or otherwise confirm that a tract of land is a tribe s initial reservation for IGRA purposes without a reservation proclamation. See Checklist For Gaming Acquisitions, Gaming Related Acquisitions, And IGRA Section 20 Determinations (Office of Indian Gaming, U.S. Department of the Interior, September 2007) Federal Register (October 5, 2006). Proposed as 25 CFR Part 292. The proposed regulations would also require that (1) the land is located within an area where the tribe has significant historical and cultural connections and (2) a majority of the tribe s members reside within 50 miles of the location of the land or the tribe s headquarters are within 25 miles of the land. Id. at Annual message to Congress, Chester A. Arthur, See, e.g., the General Allotment Act, 24 Stat. 388 (February 8, 1887). 11 Vine Deloria, Jr. and Clifford M. Lytle, AMERICAN INDIANS, AMERICAN JUSTICE (1997) U.S.C. 461 et seq U.S.C See, e.g., IGRA Section 20(b)(3) regarding the Miccosukee Tribe of Florida. 15 That intent surely had nothing to do with the IGRA after-acquired exceptions or the federal acknowledgement process, both of which came along much later (1988 and 1978, respectively). 16 COHEN S HANDBOOK OF FEDERAL INDIAN LAW (2005 ed.) ( Cohen ) at , note 413. For example, the Major Crimes Act of 1885 originally applied to Indian reservations. It was later changed to apply to Indian country: reservations, trust and restricted lands, and dependent Indian communities. 18 U.S.C U.S.C (1948). 18 On file with the author and available through the Office of Indian Gaming, U.S. Department of the Interior. 19 For example, the trust deed, a survey, a legal description, etc. 20 Since its creation in 1978, the regulatory acknowledgment process has been widely indicted as overly burdensome, too costly in terms of money and resources for unrecognized tribes to support, and for containing standards that are nearly impossible to meet (e.g., that the group prove that it has existed on a substantially continuous basis since 1900, 25 CFR 83.7(a)). 21 The federal trust responsibility has been codified into many laws and confirmed by many courts. See, e.g., the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450, 450a; Executive Order Consultation and Coordination With Indian Tribal Governments (November 6, 2000) (tribes are under federal protection ); Cherokee Nation v. Georgia, 30 U.S. 1, (1831) (Chief Justice Marshall called Indian tribes domestic dependent nations and explained that their relation to the United States resembles that of a ward to his guardian ); Seminole Nation v. United States, 316 U.S. 286, (1941) (the United States has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealing with the Indians, should therefore be judged by the most exacting fiduciary standards ). 22 NEPA is codified at 42 U.S.C , and implemented at 40 CFR Parts See also the Department of the Interior Manual, Part

6 23 Granted, if the proclamation and the fee-to-trust processes are close enough in time, the NEPA compliance document used for the fee-to-trust process can be used for the proclamation. However, since the proclamation review cannot begin until the land is already in trust, this requirement could mean a whole separate NEPA compliance process (i.e., a second EA or EIS). The key is to push the Department to begin the review and issue the proclamation as soon as possible after it has acquired the land in trust. 24 See 25 CFR Part Courts generally disfavor applying technical meanings to statutory language unless the intent for such a narrow reading is clear in the statute. See Muscarello v. United States, 524 U.S. 125, (1998). 26 Courts must give words in a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import. Grand Traverse v. U.S. Atty. for the Western Dist. of Michigan, 369 F.3d 960, 967 (6th Cir. 2004); see also Sac & Fox Nation v. Norton, 240 F.3d 1250, 1264 (10th Cir. 2001). 27 See City of Roseville v. Norton, 348 F.3d 1020, (D.C.Cir. 2003) (all Section 20(b)(1)(B) exceptions embody policies counseling for a broader reading and stating that these exceptions should be treated similarly ). 28 See Grand Traverse, 369 F.3d at 971. Interestingly, there s no reason under the statute that a tribe that regains its federal recognition in any manner, after having lost it, could not as an alternative use the restored lands exception in IGRA Section 20(b)(1)(B)(iii) without a proclamation. 29 The Department Solicitor has taken the position that the initial in initial reservation simply means a tribe s first reservation following federal acknowledgement. See the memorandum from Associate Solicitor to Midwest Regional Director concerning Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan, at 5 (June 25, 2003) (available at 30 Webster's Third New Int'l Dictionary 1930 (1993) (cited in Arizona Public Svc. Co. v. U.S. EPA, 211 F.3d 1280, 1293 (D.C. Cir. 2000)). 31 Cohen, 3.04[2][c][ii]. 32 United States v. Celestine, 215 U.S. 278, 285 (1909) CFR Part 81.1(q) CFR Part 151.2(f) (which implements IRA Section 5). 35 See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) (tribes have jurisdiction over their Indian country lands). Trust lands are Indian country. 18 U.S.C. 1151(c). 36 The Department was careful in the proposed Section 20 regulations not to include mere trust lands within its definition of reservation (although this contravenes years of case law on the matter). The proposed regulations define reservation as lands set aside for the use of a tribe, the exterior boundaries of which are more particularly defined in a final treaty, agreement, Executive Order, Federal statute, Secretarial Order or Proclamation, judicial determination, or court-approved stipulated entry or judgment to which the United States is a party. 71 Fed. Reg. at Trust lands fail here because their boundaries are only defined in the trust deed and the United States public notice of the acquisition. 37 Arizona Public Svc. Co. 211 F.3d at See also United States v. Sohappy, 770 F.2d 816, (9th Cir. 1985) (holding that tribal trust land is a reservation ); United States v. McGowan, 302 U.S. 535, (1938); United States v. Pelican, 232 U.S. 442, 449 (1914). 38 United States v. Azure, 801 F.2d 336, 339 (8th Cir. 1986). See also Okla. Tax Comm n v. Citizen Band of Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991) (trust land is validly set apart and thus qualifies as a reservation ). 39 U.S. v. John, 437 U.S. 634, (1978). 40 HRI, Inc. v. EPA, 198 F.3d 1224, 1250 (10th Cir. 2000) ( trust land outside a formally designated reservation can qualify as a reservation ). 6