[Federal Register Volume 71, Number 193 (Thursday, October 5, 2006)]
[Proposed Rules]
[Pages 58769-58776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16490]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 292
RIN 1076-AE81
Gaming on Trust Lands Acquired After October 17, 1988
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs proposes to establish procedures
that an Indian tribe must follow in seeking to conduct gaming on lands
acquired after October 17, 1988. The Indian Gaming Regulatory Act
allows Indian tribes to conduct class II and class III gaming
activities on land acquired after October 17, 1988, only if the land
meets certain exceptions. This proposed rule establishes a process for
submitting and considering applications from Indian tribes seeking to
conduct class II or class III gaming activities on lands acquired in
trust after October 17, 1988.
DATES: Comments must be received on or before December 4, 2006.
ADDRESSES: You may submit comments, identified by the number 1076-AE-
81, by any of the following methods:
Federal rulemaking portal: http://www.regulations.gov
Follow the instructions for submitting comments.
Fax: 202-273-3153.
Mail: Mr. George Skibine, Director, Office of Indian
Gaming Management, Office of the Deputy Assistant Secretary--Policy and
Economic Development, 1849 C Street, NW., Mail Stop 3657-MIB,
Washington, DC 20240.
Hand delivery: Office of Indian Gaming Management, Office
of the Deputy Assistant Secretary--Policy and Economic Development,
1849 C Street, NW, Room 3657-MIB, Washington, DC, from 9 a.m. to 4
p.m., Monday through Friday.
Comments on the information collection in this rule are separate
from comments on the rule. If you wish to comment on the information
collection, you may send a facsimile to (202) 395-6566. You may also e-
mail comments to: [email protected].
FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Office of
Indian Gaming Management, (202) 219-4066.
SUPPLEMENTARY INFORMATION: The authority to issue this document is
vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C.
2, 9, and 2710. The Secretary has delegated this authority to the
Principal Deputy Assistant Secretary--Indian Affairs by part 209 of the
Departmental Manual.
Background
The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721, was
signed into law on October 17, 1988. Section 20 of IGRA, 25 U.S.C.
2719, prohibits gaming on lands that the Secretary of the Interior
acquires in trust for an Indian tribe after October 17, 1988, unless
the land qualifies under at least one of the exceptions contained in
that section. If none of the exceptions in Section 20 applies, Section
20(b)(1)(A) of IGRA provides that gaming can still occur on the lands
if:
(1) The Secretary consults with the Indian tribe and appropriate
State and local officials, including officials of other nearby tribes;
(2) After consultation, the Secretary determines that a gaming
establishment on newly acquired (trust) lands would be in the best
interest of the Indian tribe and its members, and would not be
detrimental to the surrounding community; and
(3) The Governor of the State in which the gaming activity is to be
conducted concurs in the Secretary's determination.
[[Page 58770]]
On September 28, 1994, the Bureau of Indian Affairs (BIA) issued to
all Regional Directors a Checklist for Gaming Acquisitions and Two-Part
Determinations Under Section 20 of the Indian Gaming Regulatory Act.
This Checklist was revised and replaced on February 18, 1997. On
November 9, 2001, an October 2001 Checklist was issued revising the
February 18, 1997 Checklist to include gaming related acquisitions. On
March 7, 2005 a new Checklist was issued to all Regional Directors
replacing the October 2001 Checklist.
The proposed regulations implement Section 20 of the Indian Gaming
Regulatory Act (IGRA) by articulating standards that the Department
will follow in interpreting the various exceptions to the gaming
prohibition on after-acquired trust lands contained in Section 20 of
IGRA. Subpart A of the draft proposed regulations define key terms
contained in Section 20 or used in the regulation. Subpart B delineates
how the Department will interpret the ``settlement of a land claim''
exception contained in Section 20(b)(1)(B)(i) of IGRA. This subpart
clarifies that, in almost all instances, Congress must enact the
settlement into law before the land can qualify under the exception.
Subpart B also delineates what criteria must be met for a parcel of
land to qualify under the ``initial reservation'' exception contained
in Section 20 (b)(1)(B)(ii) of IGRA. The proposed regulation sets forth
that the tribe must have present and historical connections to the
land, and that the land must be proclaimed to be a new reservation
pursuant to 25 U.S.C. 467 before the land can qualify under this
exception. Finally, Subpart B articulates what criteria must be met for
a parcel of land to qualify under the ``restored land for a restored
tribe'' exception contained Section 20 (b)(1)(B)(iii) of IGRA. The
proposed regulation sets forth the criteria for a tribe to qualify as a
``restored tribe'' and articulates the requirement for the parcel to
qualify as ``restored lands.'' Essentially, the regulation requires the
tribe to have modern connections to the land, historical connections to
the area where the land is located, and requires a temporal connection
between the acquisition of the land and the tribe's restoration.
Subpart C sets forth how the Department will evaluate tribal
applications for a two-part Secretarial Determination under Section
20(b)(1) of IGRA. Under this exception, gaming can occur on off-
reservation trust lands if the Secretary, after consultation with
appropriate State and local officials, including officials of nearby
tribes, makes a determination that a gaming establishment would be in
the best interest of the tribe and its members and would not be
detrimental to the surrounding community. The Governor of the State
must concur in any Secretarial two-part determination. The proposed
regulation sets forth how consultation with local officials and nearby
tribes will be conducted and articulates the factors the Department
will consider in making the two-part determination. The proposed
regulation also gives the State Governor up to one year to concur in a
Secretarial two-part determination, with an additional 180 days
extension at the request of either the Governor or the applicant tribe.
Previous Rulemaking Activity
On September 14, 2000, we published proposed regulations in the
Federal Register (65 FR 55471) to establish procedures that an Indian
tribe must follow in seeking a Secretarial Determination that a gaming
establishment would be in the best interest of the Indian tribe and its
members and would not be detrimental to the surrounding community. The
comment period closed on November 13, 2000. On December 27, 2001 (66 FR
66847), we reopened the comment period to allow consideration of
comments received after November 13, 2000, and to allow additional time
for comment on the proposed rule. The comment period ended on March 27,
2002. On January 28, 2002 we published a notice in the Federal Register
(67 FR 3846) to correct the Effective Date section which incorrectly
stated that the deadline for receipt of comments was February 25, 2002
and was corrected to read ``Comments must be received on or before
March 27, 2002.'' No further action was taken to publish the final
rule.
We are publishing a new proposed rule because we have determined
that the rule should address not only the exception contained in
Section 20(b)(1)(A) of IGRA (Secretarial Determination), but also the
other exceptions contained in Section 20, in order to explain to the
public how the Department interprets these exceptions.
Procedural Requirements
Regulatory Planning and Review (Executive Order 12866)
This document has been determined not to be a significant
regulatory action and is not subject to review by the Office of
Management and Budget (OMB).
(a) This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. The annual number of
requests and applications to conduct gaming on trust lands under the
exceptions or two-part determination of IGRA have been small. Since
IGRA was enacted, approximately two applications per year qualify and
have been approved to operate a gaming establishment on trust land
under the general exceptions and only three positive two-part
determinations have successfully qualified to operate a gaming
establishment on trust land under the exception to the gaming
prohibition in Section 20 (b)(1)(A) of IGRA.
(b) This rule will not create serious inconsistencies or otherwise
interfere with an action taken or planned by another Federal agency.
The Department of the Interior (DOI), BIA is the only governmental
agency that makes the determination whether to take land into trust for
Indian tribes.
(c) This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
This rule sets out the procedures and criteria for the submission of an
application from an Indian tribe seeking to conduct class II or class
III gaming activities on land acquired by the Secretary of the Interior
under Section 20 of the IGRA.
(d) OMB has determined that this rule will not raise novel legal or
policy issues. For this reason, OMB review is not required under
Executive Order 12866.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Indian tribes are not considered to be small entities for the purposes
of this Act.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment,
[[Page 58771]]
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal government or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required because only Indian tribes may
conduct gaming activities on land acquired after October 17, 1988, only
if the land meets the exceptions in Section 20 of IGRA.
Takings Implication Assessment (Executive Order 12630)
In accordance with Executive Order 12630, the Department has
determined that this rule does not have significant takings
implications. The rule does not pertain to the ``taking'' of private
property interests, nor does it impact private property. A takings
implication assessment is not required.
Federalism (Executive Order 13132)
In accordance with Executive Order 13121, the Department has
determined that this rule does not have significant Federalism
implications because it does not substantially and directly affect the
relationship between the Federal and State governments and does not
impose costs on States or localities. A Federalism Assessment is not
required.
Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Does not unduly burden the judicial system;
(b) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(c) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards. The rule does not preempt any statute.
National Environmental Policy Act
The Department has determined that this rule does not constitute a
major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required under the
National Environmental Policy Act of 1969.
Paperwork Reduction Act
The information collection has been reviewed and cleared by the
Office of Information and Regulatory Affairs, Office of Management and
Budget under the Paperwork Reduction Act of 1995, as amended. The
collection has been assigned the tracking number of OMB Control Number
1076-0158. The clearance expires November 30, 2006.
The collection of information is unique for each tribe even though
each submission addresses the requirements found in Sec. 292.16.
All information is collected in the tribe's application.
Respondents submit information in order to obtain a benefit. Each
response is estimated to take 1,000 hours to review instructions,
search existing data sources, gather and maintain necessary data, and
prepare in format for submission. We anticipate that two responses will
be submitted annually for an annual burden of 2,000 hours.
Submit comments on the proposed information collection to
Attention: Desk Officer for the Department of the Interior, Office of
Information and Regulatory Affairs, OMB by facsimile at (202) 395-6566
or by e-mail to [email protected]. You should also send comments
to the BIA official as found in the ADDRESSES section. The BIA solicits
comments in order to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the BIA,
including whether the information will have practical utility;
(2) Evaluate the BIA's estimate of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond.
OMB is required to make a decision between 30 and 60 days after
publication of this document in the Federal Register. Therefore, your
comment to OMB has the best chance of being considered if OMB receives
it within 30 days of publication. This does not affect the deadline for
the public to comment to BIA on the proposed rule.
Consultation With Indian tribes (Executive Order 13175)
Under the criteria in Executive Order 13175, we have conducted
consultation meetings with tribal leaders regarding the proposed
regulations in the following locations: Uncasville, Connecticut on
March 30, 2006; Albuquerque, New Mexico on April 5, 2006; Sacramento,
California on April 18, 2006 and Minneapolis, Minnesota on April 20,
2006. A notice of the consultation meetings was published in the
Federal Register on April 11, 2006 (71 FR 18350). In addition, a draft
regulation was sent to all tribal leaders in the lower 48 states on
March 15, 2006, seeking comments on the draft regulation. Numerous
comments were received by the Department. The Department revised the
draft regulation in response to written comments and oral comments
received at the consultation meetings. No action is taken under this
rule unless a tribe submits an application to acquire land under
Section 20 of IGRA.
Effects on the Nation's Energy Supply (Executive Order 13211)
This rule does not have a significant effect on the nation's energy
supply, distribution, or use as defined by Executive Order 13211.
Data Quality Act
In developing this rule, we did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-554).
Clarity of This Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
Be logically organized;
Use the active voice to address readers directly;
Use clear language rather than jargon;
Be divided into short sections and sentences; and
Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments as instructed in the ADDRESSES section. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the specific sections that
are unclearly written, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, etc.
Public Comment Solicitation
If you wish to comment on the rule, please see the different
methods listed in the ADDRESSES section; we cannot accept comments via
the Internet at this time. Our practice is to make comments,
[[Page 58772]]
including names and home addresses of respondents, available for public
review during the hours listed in the ADDRESSES section. Individual
respondents may request that we withhold their home address from the
rulemaking record, which we will honor to the extent allowable by law.
There may be circumstances in which we would withhold from the
rulemaking record a respondent's identity, as allowable by law. If you
wish us to withhold your name and/or address, you must state this
prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
List of Subjects in 25 CFR Part 290
Indians--Business and finance, Indians--gaming.
Dated: September 18, 2006.
Michael D. Olsen,
Principal Deputy Assistant Secretary--Indian Affairs.
For reasons stated in the preamble, the Bureau of Indian Affairs
proposes to add Part 292 to Chapter I of Title 25 of the Code of
Federal Regulations as follows:
PART 292--GAMING ON TRUST LANDS ACQUIRED AFTER OCTOBER 17, 1988
Subpart A--General Provisions
Sec.
292.1 What is the purpose of this part?
292.2 How are key terms defined in this part?
292.3 When can a tribe conduct gaming activities on trust lands?
Subpart B--Exceptions to Prohibition on Gaming on After-Acquired Trust
Lands
292.4 What criteria must trust land meet for gaming to be allowed
under the exceptions listed in 25 U.S.C. 2719(a) of IGRA?
``Settlement of a Land Claim'' Exception
292.5 What must be demonstrated to meet the ``settlement of a land
claim'' exception?
``Initial Reservation'' Exception
292.6 What must be demonstrated to meet the ``initial reservation''
exception?
``Restored Lands'' Exception
292.7 What must be demonstrated to meet the ``restored lands''
exception?
292.8 How does a tribe qualify as having been Federally recognized?
292.9 How does a tribe show that it lost its government-to-
government relationship?
292.10 How does a tribe qualify as having been restored to Federal
recognition?
292.11 What are ``restored lands''?
292.12 How does a tribe establish its connection to the land?
Subpart C--Secretarial Determination and Governor's Concurrence
292.13 When can a tribe conduct gaming activities on lands that do
not qualify under one of the exceptions?
292.14 Where must a tribe file an application for a Secretarial
Determination?
292.15 May a tribe request a Secretarial Determination for lands not
yet held in trust?
Application Contents
292.16 What must an application for a Secretarial Determination
contain?
292.17 How must an application describe the benefits of a proposed
gaming establishment to the tribe and its members?
292.18 What information must an application contain on detrimental
impacts to the surrounding community?
Consultation
292.19 How will the Regional Director conduct the consultation
process?
292.20 What information must the consultation letter include?
Evaluation and Concurrence
292.21 How will the Secretary evaluate a proposed gaming
establishment?
292.22 How does the Secretary request the Governor's concurrence?
292.23 Can the public review the application for a Secretarial
Determination?
Information Collection
292.24 Do information collections in this part have Office of
Management and Budget approval?
Authority: 5 U.S.C. 301, 25 U.S.C. 2, 9, 2719, 43 U.S.C. 1457.
Subpart A--General Provisions
Sec. 292.1 What is the purpose of this part?
This part contains procedures that the Department of the Interior
will use to determine whether class II or class III gaming can occur on
land acquired in trust for an Indian tribe after October 17, 1988.
Sec. 292.2 How are key terms defined in this part?
For purposes of this part, all terms have the same meaning as set
forth in the definitional section of the Indian Gaming Regulatory Act
(IGRA), 25 U.S.C. 2703. In addition, the following terms have the
meanings given in this section.
Appropriate State and Local Officials means the Governor of the
State and appropriate officials of units of local government within 25
miles of the site of the proposed gaming establishment.
BIA means Bureau of Indian Affairs.
Contiguous means two parcels of land having a common boundary. For
example, it includes parcels divided by non-navigable waters or a
public road or right-of-way.
Federal recognition or Federally recognized means the recognition
by the Secretary that an Indian tribe has a government-to-government
relationship with the United States and is eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians, and evidenced by inclusion of the tribe on
the list of recognized tribes published by the Secretary under 25
U.S.C. 479a-1.
Former Reservation means lands that are within the jurisdiction of
an Oklahoma Indian tribe and that are within the boundaries of the last
reservation for that tribe in Oklahoma established by treaty, Executive
Order, or Secretarial Order.
IGRA means the Indian Gaming Regulatory Act of 1988, as amended and
codified at 25 U.S.C. 2701-2721.
Land claim means any claim by an Indian tribe:
(1) Arising from a Federal common law, statutory or treaty-based
restraint against alienation of Indian land; and
(2) Made against an individual person or entity (either private,
public, or governmental).
Legislative termination means Federal legislation that specifically
terminates or prohibits the government-to-government relationship with
an Indian tribe or that otherwise specifically denies the tribe [and/or
its members] access to or eligibility for government services.
Nearby Indian tribe means an Indian tribe with tribal Indian lands,
as defined in 25 U.S.C. 2703(4) of IGRA, located within a 25-mile
radius of the location of the proposed gaming establishment, or, if the
tribe is landless, within a 25-mile radius of its government
headquarters.
Regional Director means the official in charge of the BIA Regional
Office responsible for all BIA activities within the geographical area
where the proposed gaming establishment is to be located.
Reservation means that area of land which has been set aside or
which has been acknowledged as having been set aside by the United
States for the use of the tribe, the exterior boundaries of which are
more particularly defined in a final treaty, agreement, Executive
Order, Federal statute, Secretarial Order or Proclamation, judicial
determination,
[[Page 58773]]
or court-approved stipulated entry of judgment to which the United
States is a party.
Secretary means the Secretary of the Interior or an authorized
representative.
Secretarial Determination means a two-part determination that a
gaming establishment on newly acquired lands:
(1) Would be in the best interest of the Indian tribe and its
members; and
(2) Would not be detrimental to the surrounding community.
Surrounding community means local governments and nearby Indian
tribes located within 25 miles of the site of the proposed gaming
establishments.
Tribe means an Indian tribe.
Sec. 292.3 When can a tribe conduct gaming activities on trust lands?
This section implements Section 20 of IGRA (25 U.S.C. 2719). A
tribe may conduct class II or class III gaming activities on land
acquired by the Secretary in trust for the benefit of a tribe after
October 17, 1988, only if:
(a) The land meets the criteria or exceptions in Subpart B; or
(b) The Secretary makes a determination under Subpart C of this
part and the Governor of the State in which the gaming activity is to
be conducted concurs in that determination.
Subpart B--Exceptions to Prohibition on Gaming on After-Acquired
Trust Lands
Sec. 292.4 What criteria must trust land meet for gaming to be
allowed under the exceptions listed in 25 U.S.C. 2719(a) of IGRA?
(a) For class II or class III gaming to be allowed on trust or
restricted fee land under section 2719(a)(1) of IGRA, the land must
either:
(1) Be located within or contiguous to the boundaries of the
reservation of the tribe on October 17, 1988; or
(2) Meet the requirements of paragraph (b) of this section.
(b) For land to be eligible under this paragraph, it must belong to
a tribe that had no reservation on October 17, 1988, and must be
located:
(1) Within the boundaries of the tribe's former reservation;
(2) Contiguous to other land held in trust or restricted status by
the United States for the tribe in Oklahoma; or
(3) In a state other than Oklahoma and within the tribe's last
recognized reservation within the State or States within which the
tribe is now located.
``Settlement of a Land Claim'' Exception
Sec. 292.5 What must be demonstrated to meet the ``settlement of a
land claim'' exception?
This section contains criteria for meeting the requirements of IGRA
Section 20(b)(1)(B)(i).
(a) Gaming may be conducted on lands covered by this section only
when the land has been acquired in trust as part of the settlement of a
land claim that either:
(1) Has been filed in Federal court and has not been dismissed on
substantive grounds; or
(2) Is included on the Department's list of potential pre-1966
claims published under the Indian Claims Limitation Act of 1982 (Pub.
L. 97-394, 28 U.S.C. 2415) and meets the criteria in paragraph (b) of
this section.
(b) To be eligible under paragraph (a)(2) of this section, land
must be covered by a settlement that either:
(1) States that the tribe is relinquishing its legal claim to some
or all of the lands as part of the settlement, results in the
alienation or transfer of title to tribal lands within the meaning of
25 U.S.C. 177, and has been enacted into law by the United States
Congress; or,
(2) Returns to the tribe lands identical to the lands claimed by
the tribe, does not involve an alienation or transfer of title to
tribal lands that is prohibited under 25 U.S.C. 177, and is either:
(i) Duly executed by the parties and entered as a final order of a
Federal court of competent jurisdiction; or
(ii) Settled by an agreement executed by the State in which the
lands claimed by the tribe are located.
``Initial Reservation'' Exception
Sec. 292.6 What must be demonstrated to meet the ``initial
reservation'' exception?
This section contains criteria for meeting the requirements of IGRA
Section 20(b)(1)(B)(ii). Under this section, gaming may be conducted
only when all of the following conditions are met:
(a) The tribe has been acknowledged (Federally recognized) through
the administrative process under 25 CFR Part 83;
(b) A majority of the tribe's members reside within 50 miles of the
location of the land or the tribe's government headquarters are located
within 25 miles of the location of the land;
(c) The land is located within an area where the tribe has
significant historical and cultural connections;
(d) The land has been proclaimed to be a reservation under 25
U.S.C. 467; and
(e) This reservation is the first proclaimed reservation of the
tribe following acknowledgment.
``Restored Lands'' Exception
Sec. 292.7 What must be demonstrated to meet the ``restored lands''
exception?
This section contains criteria for meeting the requirements of IGRA
Section 20(b)(1)(B)(iii), called the ``restored lands'' exception. The
term ``restored lands'' is defined in Sec. 292.11. Gaming may only
occur under this section when all of the following criteria have been
met:
(a) The tribe at one time was Federally recognized, as evidenced by
its meeting the criteria in Sec. 292.8;
(b) The tribe at some later time lost its government-to-government
relationship by one of the means specified in Sec. 292.9; and
(c) At a time after termination, the Tribe was restored to Federal
recognition by one of the means specified in Sec. 292.10.
Sec. 292.8 How does a tribe qualify as having been Federally
recognized?
For a tribe to qualify as having been at one time Federally
recognized for purposes of Sec. 292.7, at least one of the following
must be true:
(a) The United States at one time entered into treaty negotiations
with the tribe;
(b) The Department determined that the tribe could organize under
the Indian Reorganization Act or the Oklahoma Indian Welfare Act;
(c) Congress enacted legislation specific to, or including, the
tribe indicating that a government-to-government relationship existed;
(d) The United States at one time acquired land for the tribe's
benefit; or
(e) Some other evidence demonstrates the existence of a government-
to-government relationship between the tribe and the Federal
Government.
Sec. 292.9 How does a tribe show that it lost its government-to-
government relationship?
For a tribe to qualify for purposes of Sec. 292.7, it must have
lost its government-to-government relationship by one of the following
means:
(a) Legislative termination; or
(b) Termination demonstrated by historical written documentation
from the Departments of the Interior or Justice. The documents must
show that the Executive Branch no longer recognized the government-to-
government relationship with the tribe or its members.
[[Page 58774]]
Sec. 292.10 How does a tribe qualify as having been restored to
Federal recognition?
For a tribe to qualify as having been restored to Federal
recognition for purposes of Sec. 292.7, the tribe must show at least
one of the following:
(a) Congressional enactment of legislation recognizing,
acknowledging, or restoring the government-to-government relationship
between the United States and the tribal government (required for
tribes terminated by Congressional action);
(b) Recognition through the administrative Federal Acknowledgment
Process under 25 CFR 83.8; or
(c) A judicial determination or court-approved stipulated entry of
judgment that:
(1) Was entered into by the United States; and
(2) Provides that the tribe's government-to-government relationship
with the United States was never legally terminated despite action by
the Executive Branch purporting to terminate the relationship with the
tribe or its members.
Sec. 292.11 What are ``restored lands?''
For lands to qualify as ``restored lands'' for purposes of Sec.
292.7, it must be demonstrated that:
(a) The legislation restoring the government-to-government
relationship between the United States and the tribe requires or
authorizes the Secretary to take land into trust within a specific
geographical area and the lands are within the specific geographical
area; or
(b) If there is no restoration legislation, or if the restoration
legislation does not provide geographic parameters for the restoration
of lands, the tribe has a modern connection and a significant
historical connection to the land and there is a temporal connection
between the date of the acquisition of the land and the date of the
Tribe's restoration; and
(c) If the tribe is acknowledged under 25 CFR 83.8, it does not
already have an initial reservation proclaimed after October 17, 1988.
Sec. 292.12 How does a tribe establish its connection to the land?
To establish a connection to the land for purposes of Sec. 292.11,
the tribe must meet the criteria in paragraphs (a), (b), and (c) of
this section.
(a) A modern connection is established if a majority of the tribe's
members reside within 50 miles of the land or if the tribe's government
headquarters are located within 25 miles of the land.
(b) A significant historical connection to the land can be
established if:
(1) The land is located within the boundaries of the tribe's last
reservation reserved to the tribe by a ratified or unratified treaty;
or
(2) The land is located in an area to which the tribe has
significant documented historical connections, significant weight being
given to historical connections documented by official records of the
Bureau of Indian Affairs or the Department of the Interior, or by the
Indian Claims Commission, other Federal court, or congressional
findings.
(c) A reasonable temporal connection between the date of the
acquisition of the land and the date of the tribe's restoration is
established if:
(1) The land is the first land that the tribe has acquired since
the tribe was restored to Federal recognition; or
(2) The tribe submitted an application to take the land into trust
within 25 years after the tribe was restored to Federal recognition.
Subpart C--Secretarial Determination and Governor's Concurrence
Sec. 292.13 When can a tribe conduct gaming activities on lands that
do not qualify under one of the exceptions?
A tribe can conduct gaming on land covered by this part that does
not meet the criteria in Subpart B only after all of the following
occur:
(a) The tribe asks the Secretary in writing to make a Secretarial
Determination that a gaming establishment on land subject to this part
is in the best interest of the tribe and its members and not
detrimental to the surrounding community;
(b) The Secretary consults with the tribe and appropriate State and
local officials, including officials of other nearby tribes;
(c) The Secretary makes a determination that a gaming establishment
on newly acquired lands would be in the best interest of the tribe and
its members and would not be detrimental to the surrounding community;
and
(d) The Governor of the State in which the gaming activity is to be
conducted concurs in the Secretary's Determination (25 U.S.C.
2719(b)(1)(A)).
Sec. 292.14 Where must a tribe file an application for a Secretarial
Determination?
A tribe must file its application for a Secretarial Determination
with the Regional Director of the BIA Regional Office having
responsibility over the land where the gaming establishment is to be
located.
Sec. 292.15 May a tribe apply for a Secretarial Determination for
lands not yet held in trust?
Yes. A tribe can apply for a two-part Secretarial Determination
under Sec. 292.13 for land not yet held in trust. The tribe must file
its application for a two-part Secretarial Determination at the same
time that it applies under 25 CFR Part 151 to have the land taken into
trust.
Application Contents
Sec. 292.16 What must an application for a Secretarial Determination
contain?
An application requesting a Secretarial Determination under Sec.
292.13 must include the following information:
(a) The full name, address, and telephone number of the tribe
submitting the application;
(b) A description of the location of the land, including a legal
description supported by a survey or other document;
(c) Proof of identity of present ownership and title status of the
land;
(d) Distance of the land from the tribe's reservation or trust
lands, if any, and tribal government headquarters;
(e) Information required by Sec. 292.17 to assist the Secretary in
determining whether the proposed gaming establishment will be in the
best interest of the tribe and its members;
(f) Information required by Sec. 292.18 to assist the Secretary in
determining whether the proposed gaming establishment will not be
detrimental to the surrounding community;
(g) The authorizing resolution from the tribe submitting the
application;
(h) The tribe's gaming ordinance or resolution approved by the
National Indian Gaming Commission in accordance with 25 U.S.C. 2710, if
any;
(i) The tribe's organic documents, if any;
(j) The tribe's class III gaming compact with the State where the
gaming establishment is to be located, if one has been negotiated; and
(k) Any existing or proposed management contract required to be
approved by the National Indian Gaming Commission under 25 U.S.C. 2711
and 25 CFR Part 533.
Sec. 292.17 How must an application describe the benefits of a
proposed gaming establishment to the tribe and its members?
To satisfy the requirements of Sec. 292.16(e), an application must
contain:
(a) Projections of class II and class III gaming income statements,
balance sheets, fixed assets accounting, and cash flow statements for
the gaming entity and the tribe;
[[Page 58775]]
(b) Projected tribal employment, job training, and career
development;
(c) Projected benefits to the tribe and its members from tourism;
(d) Projected benefits to the tribe and its members from the
proposed uses of the increased tribal income;
(e) Projected benefits to the relationship between the tribe and
non-Indian communities;
(f) Possible adverse impacts on the tribe and its members and plans
for addressing those impacts;
(g) Distance of the land from the location where the tribe
maintains core governmental functions;
(h) Evidence that the tribe owns the land in fee or holds an option
to acquire the land at the sole discretion of the tribe, or holds other
contractual rights to cause the lands to be transferred directly to the
United States;
(i) Evidence of historical connections, if any, to the land; and
(j) Any other information that may provide a basis for a
Secretarial Determination that the gaming establishment would be in the
best interest of the tribe and its members, including copies of any:
(1) Consulting agreements relating to the proposed gaming
establishment;
(2) Financial and loan agreements relating to the proposed gaming
establishment; and
(3) Other agreements relative to the purchase, acquisition,
construction, or financing of the proposed gaming facility, or the
acquisition of the land where the facility will be located.
Sec. 292.18 What information must an application contain on
detrimental impacts to the surrounding community?
To satisfy the requirements of Sec. 292.16(f), an application must
contain the following information on detrimental impacts of the
proposed gaming establishment:
(a) Information regarding environmental impacts and plans for
mitigating adverse impacts, including information that allows the
Secretary to comply with the requirements of the National Environmental
Policy Act (NEPA); e.g., an Environmental Assessment (EA) or an
Environmental Impact Statement (EIS);
(b) Reasonably anticipated impacts on the social structure,
infrastructure, services, housing, community character, and land use
patterns of the surrounding community;
(c) Impacts on the economic development, income, and employment of
the surrounding community;
(d) Costs of impacts to the surrounding community and
identification of sources of revenue to mitigate them;
(e) Proposed programs, if any, for compulsive gamblers and the
sources of funding; and
(f) Any other information that may provide a basis for a
Secretarial Determination that the gaming would not be detrimental to
the surrounding community, including memoranda of understanding and
inter-governmental agreements with affected local governments.
Consultation
Sec. 292.19 How will the Regional Director conduct the consultation
process?
(a) The Regional Director will send a letter that meets the
requirements in Sec. 292.20 and that solicits comments within a 60-day
period to each of the following:
(1) Appropriate State and local officials; and
(2) Officials of nearby tribes.
(b) Upon written request, the Regional Director may extend the 60-
day comment period for an additional 30 days.
(c) After the close of the consultation period, the Regional
Director must:
(1) Submit a copy of the consultation comments to the applicant
tribe;
(2) Allow the tribe to address or resolve any issues raised in the
responses to the consultation letters;
(d) The applicant tribe must submit written comments, if any, to
the Regional Director within 60 days of receipt of the consultation
comments; and
(e) On written request from the applicant tribe, the Regional
Director may extend the 60-day comment period in paragraph (d) of this
section for an additional 30 days.
Sec. 292.20 What information must the consultation letter include?
(a) The consultation letter required by Sec. 292.19(a) must:
(1) Describe or show the location of the proposed gaming
establishment;
(2) Provide information on the proposed scope of gaming; and
(3) Include other information that may be relevant to a specific
proposal, such as the size of the proposed gaming establishment, if
known.
(b) The consultation letter must request recipients to submit
comments on the following areas within 60 days of receiving the letter:
(1) Information regarding environmental impacts on the surrounding
community and plans for mitigating adverse impacts;
(2) Reasonably anticipated impacts on the social structure,
infrastructure, services, housing, community character, and land use
patterns of the surrounding community;
(3) Impact on the economic development, income, and employment of
the surrounding community;
(4) Costs of impacts to the surrounding community and
identification of sources of revenue to mitigate them;
(5) Proposed programs, if any, for compulsive gamblers and the
sources of funding; and
(6) Any other information that may provide a basis for a
Secretarial Determination that the proposed gaming establishment is not
detrimental to the surrounding community.
Evaluation and Concurrence
Sec. 292.21 How will the Secretary evaluate a proposed gaming
establishment?
(a) The Secretary will consider all the information submitted under
Sec. 292.17 in evaluating whether the proposed gaming establishment is
in the best interest of the tribe and its members.
(b) The Secretary will consider all the information submitted or
developed under Sec. 292.18 and all the documentation received under
Sec. 292.19 in evaluating whether the proposed gaming establishment
would not be detrimental to the surrounding community.
(c) If the Secretary makes an unfavorable Secretarial
Determination, the Secretary will inform the tribe that its application
has been disapproved, and set forth the reasons for the disapproval.
(d) If the Secretary makes a favorable Secretarial Determination,
the Secretary will proceed under Sec. 292.22.
Sec. 292.22 How does the Secretary request the Governor's
concurrence?
(a) If the Secretary makes a favorable Secretarial Determination,
the Secretary will send to the Governor of the State:
(1) A written notification of the Secretarial Determination and
Findings of Fact supporting the determination;
(2) A copy of the entire application record; and
(3) A request for the Governor's concurrence in the Secretarial
Determination.
(b) If the Governor does not affirmatively concur with the
Secretarial Determination:
(1) The land may not be used for gaming;
(2) If the land is already held in trust, the applicant tribe may
use it for other purposes; and
(3) If the land is proposed for trust status, it may be taken into
trust for non-gaming uses after consideration of a revised application.
(c) If the Governor does not respond to the Secretary's request for
[[Page 58776]]
concurrence in the Secretarial Determination within one year of the
date of the request, the Secretary may, at the request of the applicant
tribe or the Governor, grant an extension of up to 180 days.
(d) If no extension is granted or if the Governor does not respond
during the extension period, the applicant tribe will be notified in
writing that the Secretarial Determination is no longer valid and that
its application is no longer under consideration.
Sec. 292.23 Can the public review the application for a Secretarial
Determination?
Subject to restrictions on disclosure required by the Freedom of
Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and
the Trade Secrets Act (18 U.S.C. 1905), the tribe's application and all
supporting documents will be available for review at the local BIA
agency or Regional Office having administrative jurisdiction over the
land.
Information Collection
Sec. 292.24 Do information collections in this part have Office of
Management and Budget approval?
The information collection requirements in Sec. Sec. 292.16,
292.17, and 292.18 have been approved by the Office of Management and
Budget (OMB). The information collection control number is 1076-0158. A
Federal agency may not collect or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control.
[FR Doc. E6-16490 Filed 10-4-06; 8:45 am]
BILLING CODE 4310-4N-P