TRIBAL GAMING
The IGRA serves as the comprehensive regulatory scheme for tribal gaming throughout the United States, and it provides that a tribe may only conduct gaming on “Indian Lands.” The IGRA defines “Indian Lands” to include, among other things, any lands outside a reservation which are held in “trust” for the tribe—which (until recently) Alaska tribes have virtually none. 18 The 2022 Opinion appears to have encouraged a significant shift for Alaskan tribes to move forward with developing gaming operations. For example, on December 8, 2022, the Chairman of the National Indian Gaming Commission (“NIGC”) approved the Klawock Cooperative Association’s Class III Gaming Ordinance amendment as required by the NIGC’s Revised Model Gaming Ordinance. 19 As a result, Klawock Cooperative Association can now expand its existing Class II gaming operations. Though the 2022 Opinion is being touted as a sign of great progress for Alaskan tribes in the gaming industry, it is important to note that the Opinion is vulnerable to withdrawal just as the 2017 and 2021 Opinions. Recognizing this, the DOI wants to make the trust process clarification provided by the 2022 Opinion less likely to be reversed. On December 5, 2022, the DOI Office of the Assistant Secretary for Indian Affairs published proposed amendments to the regulations governing the land into trust process (25 CFR part 151). 20
recognized tribes have been precluded from reaping the benefits of lands held “in trust”. Another major proposed regulation change is the removal of language that carved out Alaskan Natives from the definition of “Individual Indian.” The purpose of this change is to clarify that the regulations do not limit trust acquisition by Alaska Natives and tribes in any way. The DOI has invited representatives of federally recognized Indian Tribes and Alaska Native Corporations to consult on these proposed changes to the land into trust process. Written comments on the proposed rule changes will be accepted until March 1, 2023, and the proposed regulations will be finalized thereafter. If and when the proposed amendments are approved, Alaskan Native Tribes should have an easier path to establishing gaming facilities on their lands. Conclusion Since the passage of the IGRA, tribal casinos have thrived on Indian Lands throughout the United States. However, Alaskan Native Tribes have, for the most part, historically been excluded from capitalizing on the gaming industry’s success. Now, with the DOI’s 2022 Opinion in hand, Alaskan Native Tribes may move forward to seek the development and expansion of gaming activities on their lands. Although the final administrative rules for trust acquisitions remain undetermined, at least for the foreseeable future, Alaskan Native Americans are celebrating the opportunity to use the land into trust acquisition process to greatly enhance their economic development opportunities through gaming ventures. 21
HEIDI MCNEIL STAUDENMAIER
Partner Coordinator of Native American Law & Gaming Law Services
One major change included in these proposed regulations is to create a new category within the trust acquisition process for “initial Indian acquisitions.” This is designed to fast track the process for tribes applying for trust lands for the first time. Such a change is particularly relevant for lands in Alaska, where many of the federally proving Class II gaming for Kake Tribe) (Apr. 18, 2000) https://www.nigc.gov/images/uploads/indianlands/Orga- nized%20Village%20Kake2.pdf. 18 25 U.S.C. § 2703(4)(B). 19 Notice of Approved Class III Tribal Gaming Ordinance, 88 Fed. Reg. 1091 (Jan. 6, 2023); National Indian Gaming Commission, Bulletin 2018-01, (Jan. 10, 2018) https://www.nigc.gov/images/uploads/bulletins/Bulletin_2018-1_ Revised_Model_Ordinance.pdf. 20 Land Acquisitions, 87 Fed. Reg. 74334 (Dec. 5, 2022). 21 To be sure, on January 17, 2023, the State of Alaska sued the DOI related to the land into trust acquisition for the Central Council of Tlingit and Haida Indian Tribes, arguing that the acquisition limits its sovereign jurisdiction and undermines key terms of the ANCSA. See Complaint, Alaska v. Newland et al. , No. 3:23-cv-00007-SLG (D. Alaska Jan. 17, 2023), ECF No. 1.
MARSHA COTTON Attorney, Commercial Litigation Group Snell & Wilmer, L.L.P For information contact +1 602.382.6598 mcotton@swlaw.com
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IMGL MAGAZINE | JANUARY 2023
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