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Off Reservation Gaming

The Indian Gaming Regulatory Act provides many exceptions for tribal governments to promote casinos on newly acquired land.  Additionally, Congress  has passed legislation that provides an exception for a specific Tribe.   

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 authority of the California Governor to grant concurrence is currently awaiting the California Supreme Courts ruling in United Auburn Indian Community v. Governor Newsom.  The Court will determine if the Governor's concurrence is an exercise of his “executive powers” or if there must be a legislative action that empowers the Governor to make this decision.  Federal law merely says that the Governor may concur -- if the Governor does not concur that land will not go into trust.