Off Reservation Gaming
The Indian Gaming Regulatory Act provides many exceptions for tribal governments to promote casinos on newly acquired land. Current controversial examples of clear exceptions are the Lytton Band of Pomo promoting a casino in San Pablo and the Federated Indians of the Graton Rancheria promoting a casino on the outskirts of Rohnert Park. Previous Congressional exceptions include the United Auburn Indian Community in Placer County and Paskenta Band of Nomiaki Indians in Tehama County.
The following exceptions avoid the Governor’s concurrence and review by the Secretary of the Interior.
25 US Section 20 2710 (b)(1)(B)(i) – (iii) Subsection (a) will not apply when lands are taken into trust as part of –
(i) a settlement of a land claim
(ii) the initial reservation of an Indian tribe acknowledged by the Secretary
under the Federal acknowledgment process, or
(iii) the restoration of lands for an Indian tribe that is restored to Federal
Unique California Indian Law: While the above Congressional exceptions have occurred in recent years in California, the greater expansion of off-reservation gaming is occurring due to past judicial and current administrative exceptions supporting tribal governments declaring the status of ‘landless’ tribes. California has a unique Indian law history in the development of Reservations and Rancherias and the recognition of tribal governments. Each tribal government’s federal recognition and land status must be reviewed independently. California Indians do not have ratified treaties for reservations in California with the federal government. Tribal land and tribal governments were established by Executive Orders, Acts of Congress, or Secretarial Orders.
The Congressional Acts of 1906 (34 Stat. 383) and 1908 (35 Stat. 70-76) were Appropriation Acts that provided money to purchase land for residential and agricultural use for homeless Indians, often of no specific tribal affiliation. Commonly these were small family groups or totally unrelated racially mixed Indian families joined together on land. It is important to note here, that the process for taking land into trust did not develop until the Indian Reorganization Act of 1934. There is a specific process governed by regulation to change the status of fee-land into trust land. Indians that shared a common residence of a federal area were permitted by the BIA to organize under the terms and conditions of the Act.
Challenges to tribal claims of historic or aboriginal lands must be made immediately to the Secretary of the Interior in order stop spurious determinations. Tribes should be required to more than satisfy as a matter of historical fact that Indians have resided continuously in the specific site of the casino project. There should be evidence of Indian title to the land. The evidence must be strong and compelling and the claim on the land must be continuous and current. It must be much more than an option with prominent real estate developers or gaming investors for a casino.
Discretionary land acquisitions or “two-part determinations” for gaming provide greater opportunity for communities of citizens, local and state government to assert their legitimate concerns over the development of a casino. Support of the community is necessary if the tribe wishes to be successful in the establishment of tribal gaming operations.
Section 20 concurrences for land acquired after October 17, 1988 require a two-part determination approval for the establishment of land for gaming facilities after the enactment of IGRA. The information for the determination is prepared in the Department of the Interior, Bureau of Indian Affairs-Indian Gaming Management. The research and compliance items are given to the Secretary of the Interior to review in order to develop a concurrent opinion with the Governor of the state.
Tribes promoting gaming off-reservation under Section 20 do not have the legal authority to ‘obligate’ the Governor to concur with the Secretary of the Interior. The Governor's concurrence is an exercise of “executive powers” on an infrequent and episodic basis. The law merely says that the Governor may concur -- if the Governor does not concur, the tribe does not get a tribal state compact.
The objective criteria must include meaningful evidence that the Cities/Counties have provided the opportunity for public comment and allowed for the public to engage in debate. This must be done before the Governor can concur in the federal determination of no detrimental impacts to the surrounding community or in the contractual agreement of a tribal state compact. The established criteria of the Governor’s determination will be supported by evidence of responsible government actions representing the majority of their constituents and regional neighbors.
For State policy, see-Governor's Off Reservation Proclamation below (2005).
Evolving State Policy: 2013 - State Court Challenges to Governor's limited Executive Powers in California's State Consitution
For the new federal policy see- 2008: Guidiance on taking off-reservation lands into trust for gaming