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Problematic Process

As a federally recognized tribe with both the right to engage in gaming activities and the financial backing to make it happen,

we believe that if the commonwealth is ready to authorize gaming, our project should be part of it.

” —Robert Gray, chief of Virginia’s Pamunkey tribe,

noting it would consider operating a commercial casino rather than jump through federal hoops to take land into trust for gaming

A Problematic Process As a concession to states, the commercial casino industry and anti-gambling interests,

authors of the Indian Gaming Regulatory Act (IGRA) largely limited casinos to tribal lands in existence when the act was passed by Congress in 1988.

But the federal law did allow Section 20 exemptions for newly recognized and restored tribes and property acquired in a federal lands claim.

The exemptions were intended to provide “equal footing” for tribes not eligible for gambling when the act was passed.

IGRA also allows tribes to develop casinos on trust land off existing reservations, a process referred to as

“two-part determinations” because it requires approval from the governor and proof a casino is in the best

interest of the tribe and not harmful to nearby Indian and non-Indian communities.

Problematic Process often fraught with politics and likely to result in years of litigation.

“It’s a high bar to clear,” says Newland.

“You have to incur millions of dollars of expense to compile the material needed to get through the bureaucratic process.

Then if you get a favorable decision, there’s the legal cost to defend the decision in court. “The process has become very difficult.”

The process grew more complex with the 2009 U.S. Supreme Court ruling in Carcieri v. Salazar, which limited Interior’s authority to place land in trust for tribes.

Justices in Carcieri ruled that Interior could not place land in trust for tribes not “under federal jurisdiction”

with enactment of the Indian Reorganization Act of 1934.

Problematic Process Justices, however, did not define “under federal jurisdiction,

” giving antigambling groups and tribes opposed to new competition legal ammunition to contest Section 20 petitions.

Carcieri caused a lengthy and expensive bureaucratic process to drag on even longer and become even more costly.

“The opposition from existing tribal casinos was not anticipated, nor was Carcieri,” says attorney Alex Skibine,

who served as deputy counsel for the House Committee on Interior and Insular Affairs when IGRA was drafted.

The Supreme Court ruling in Carcieri allows opponents to question whether Interior has the authority to place land in trust for gambling.

Congress has rebuffed efforts to enact a legislative “fix” to the Supreme Court ruling in Carcieri. “The problem is not with IGRA,” tribal attorney Judith Shapiro says of the difficulty in acquiring land for casinos.

“The problem is with Carcieri.”

“The easy ones have already been done,” Shapiro says of the trust land casino development in the early years of IGRA.

“There hasn’t been a lot of growth. That’s been true for a long time.

” Pamunkey tribal Chief Robert Gray says he would consider operating a casino in Norfolk,

Virginia under commercial law rather than struggle through IGRA’s long, complicated and expensive process.

“As a federally recognized tribe with both the right to engage in gaming activities and the financial backing to make it happen,

we believe that if the commonwealth is ready to authorize gaming, our project should be part of it,” Gray said in a statement.

“To consider other projects without taking into consideration the Pamunkey casino in Norfolk and the potential of additional Pamunkey casinos in Virginia would fail to take a much-needed comprehensive approach to gaming.

 Jackson says gambling under IGRA may be problematic,

but it still provides opportunity for indigenous Americans, particularly newly recognized, restored and landless tribes.

“There are plenty of examples around the country where the revenues from gaming are providing services tribal members would otherwise not have access to,” Jackson says.

Section 20 projects are becoming a rarity.

“Instead of 20 a year,” she says, “there may be one or two.”

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