WASHINGTON – While one part of the Interior Department continues consultations on rules for off reservation gaming, another is consulting with a senator on a legislative proposal to restrict a tribe’s ability to take newly acquired land into trust for gaming.

The BIA’s Office of Indian Gaming Management has held tribal consultations around the country this fall on a proposed rule that establishes criteria for implementing Section 20, Two-Part Determination of the Indian Gaming Regulatory Act – the part of the law that deals with putting land into trust for gaming when the land has been acquired after IGRA was passed Oct. 17, 1988.

Consultations will take place at the National Congress of American Indians and the Global Gaming Expo conferences during the week of Nov. 15 – 19.

Meanwhile, Interior Department officials are working with Sen. Dianne Feinstein, D-Calif., on a proposal to limit – or eliminate – the ability of tribes to establish off reservation gaming operations, according to a number of Washington sources, including within the senate.

The proposal may be an IGRA amendment or a “Carcieri fix” to the Indian Reorganization Act of 1934 to fix a U.S. Supreme Court ruling named after the governor of Rhode Island.

Murmurs about Feinstein’s behind-the-scenes efforts first surfaced in September at the New England Gaming Summit when Mashpee Wampanoag Chairman Cedric Cromwell brought the issue to light.

“Since the senator has not consulted with Indian country, and since her draft language has not been the subject of public hearings, we do not know exactly what the language says. Based on her long-held anti-Indian gaming stance, however, we can assume that her proposed language will be devastating for newly recognized and disadvantaged tribes,” Cromwell said.

Feinstein’s office did not re-spond to a request for comment.

By the time the Federal Bar Association’s annual one-day Indian Law Conference took place in Washington on Nov. 5, the murmurs had turned into a loud cacophony.

Interior Department officials who attended the conference – Deputy Solicitor Pilar Thomas among them – were in a “neither deny nor confirm” mode when asked about Interior officials working with Feinstein on the proposal’s language and whether Interior would consider tribal consultations on the draft proposal.

Thomas did not respond to a request for comment.

Tribal leaders, attorneys and others involved in Indian law and gaming issues in Washington are complaining loudest about the absence of tribal consultation and transparency. Ironically, many of them asked not to be identified.

“It’s a little kabuki theater going on and everybody knows it’s going on. And it appears that this effort by Sen. Feinstein has been removed from Assistant Secretary-Indian Affairs Larry Echo Hawk’s jurisdiction and that Interior Deputy Secretary David Hayes is now conducting negotiations with the senator,” a lobbyist said.

“That’s in contravention of the presidential order on consultation. There is a process. It’s called proposed regulation, notice and comment. The process is being ignored and that’s not the change we had hoped for or came to believe in,” he said.

Hayes did not respond to an e-mail seeking comment.

Echo Hawk’s office could not respond in time for publication.

There are rumors and confirmations from a number of people who don’t want to go on the record, said Joe Valandra, Rosebud Sioux, a gaming consultant and former National Indian Gaming Commission chief of staff.

“Sen. Feinstein definitely has something in the works and it appears that the high level Interior officials are involved. I just wish we knew exactly what it is,” Valandra said, expressing frustration at the lack of openness.

“The more light the better no matter who dislikes it. I think people hide behind the situation way too often. The U.S.A. is the trustee for Indian lands and those to be taken into trust and in my view we should ask the trustees to act in the best interest of Indian tribes, not any other interest,” Valandra said.

Feinstein has been one of the most outspoken opponents of off reservation gaming in Congress, but why would Interior officials work with her to limit tribes’ opportunities?

For “obvious” political reasons, Valandra said.

“Sen. Feinstein is the head of the appropriations committee that deals with appropriations for Interior’s budget. That comes up often. And, as I understand it, Sen. Feinstein and David Hayes have had a close working relationship for years and she has been sort of a sponsor for him as he moved in and out of government positions and at one point worked on her staff.”

Those are typical Washington scenarios, Valandra said.

A sensitive Indian country issue that isn’t often spoken about is that some wealthy tribes in California and elsewhere don’t want other tribes establishing casinos near their gaming operations and cutting into their market share, Valandra said.

All these undercurrents make for the absence of a unified voice in Indian country.

“Those tribes with more resources can speak louder than everyone else because that’s what happens in the politics of Washington, D.C.,” Valandra said.

Organizations such as the National Indian Gaming Association and the United South and Eastern Tribes support limiting off reservation gaming to a tribe’s aboriginal or historic areas.

That’s the position held by Ietan Consulting, a Washington lobbying firm.

“Consistent with the positions of NIGA and other intertribal organizations, we are advocating for a requirement of an aboriginal or ancestral tie to land when acquiring off reservation land for gaming,” partner Wilson Pipestem said.

Pipestem declined to say whether his firm is working with Feinstein or to answer other questions which he said could compromise the firm’s strategic planning for its clients.

Because Feinstein’s proposal has remained shadowy, the fear is it will eliminate all off reservation gaming. And the instant fear is that she will attach it to an appropriations bill during the lame duck session that began in mid-November.

Repealing such legislation would be next to impossible, Valandra said.