INDIAN GAMBLING IN OHIO: A NON-ISSUE FOR ISSUE SIX

INDIAN GAMBLING IN OHIO:

A NON-ISSUE FOR ISSUE SIX

PROFESSOR BLAKE A. WATSON

UNIVERSITY OF DAYTON SCHOOL OF LAW

SEPTEMBER 22, 2008

EXECUTIVE SUMMARY

I am currently a Professor of Law at the University of Dayton School of Law. I am a former attorney with the United States Department of Justice. In 2003, I published an article entitled Indian Gambling in Ohio: What are the Odds? in the Capital University Law Review. In the spring of 2008, I taught a course entitled Federal Indian Law and Indian Gambling.

It is my opinion that, under current federal law, one can conclude with confidence that no Indian tribe will be able to establish a casino in Ohio. Consequently, tribal gambling in Ohio is a non-issue for Issue Six.

The Indian Gaming Regulatory Act (IGRA) of 1988 requires that tribal gambling must be conducted on (1) land within an Indian reservation; or (2) land held in trust by the United States for the benefit of a tribe or individual Indian. There are no federally-recognized Indian tribes located in Ohio, no Indian reservations in Ohio, and no Indian “trust” lands in Ohio.

The IGRA generally prohibits tribal gaming on land acquired after October 17, 1988. However, there are three exceptions to this rule that in theory could apply to Ohio. However, it is extremely unlikely that Indian gambling will come to Ohio under these exceptions.

“New tribe” exception – It is possible, under the IGRA, that a group of Indians in Ohio could petition to become a federally-recognized tribe, receive a land base as a reservation, and thereafter open a casino. The federal government, however, is not actively considering any petitions for recognition from Indians in Ohio. Moreover, the General Accounting Office (GAO) predicts it "could take 15 years to resolve all the petitions currently awaiting active consideration."

“Land claim” Exception – It is possible, under the IGRA, that a tribe from another state could open a casino in Ohio on lands taken into trust by the United States as part of a settlement of a land claim.

Do the Eastern Shawnee Tribe of Oklahoma have a “land claim settlement”? No. The Tribe did bring a lawsuit in 2005 in federal court in Toledo that claimed property rights in Ohio. At about the same time, a similar lawsuit in New York was dismissed because the tribe waited too long to bring its claims. The Eastern Shawnee suit was dismissed in July 2007 after the Tribe entered into settlements with some of the defendants. The Tribe hopes to establish casinos at Botkins and Monroe, but the land in Botkins and Monroe was not at issue in the Tribe’s lawsuit. In April 2007, Judge James G. Carr said he would not sign anything that could be seen as "settlement of a land claim." A news article written shortly after the lawsuit was concluded reported that “Judge James Carr has always refused to endorse language in settlements that referred to land claims and repeated that in his dismissal.” Judge Dismisses Eastern Shawnee Lawsuit, Lima News (July 27, 2007).

A recent development makes it even harder to satisfy the “land claim” exception. On May 20, 2008, the Bureau of Indian Affairs issued a regulation that “clarifies that, in almost all instances, Congress must enact the settlement into law before the land can qualify under the exception.” It is most unlikely that the Eastern Shawnee Tribe could persuade Congress to pass legislation on its behalf given (1) Judge Carr’s public position; and (2) the opposition of the State of Ohio. In June 2008 the House of Representatives rejected a bill that would have endorsed a land claim settlement between two Indian tribes in Michigan and the state of Michigan. The settlement was rejected even though it had been approved by the current governor, Democrat Jennifer Granholm, and her immediate predecessor, Republican John Engler. In contrast, the State of Ohio has never agreed to, or endorsed, the Eastern Shawnee’s “settlement,” and instead strongly opposed the Tribe’s proposed settlement in proceedings before Judge Carr.

“Governor Approval” Exception – It is possible, under the IGRA, that a tribe from another state could open a casino in Ohio on lands taken into trust by the United States that were not part of a settlement of a land claim. However, the tribe would have to (1) persuade the federal government to take the land into trust; (2) persuade the Secretary of the Interior that gambling on such lands would be in the best interest of the Indian tribe; (3) persuade the Secretary of the Interior that gambling on such lands would not be detrimental to the surrounding community; and (4) persuade the Governor of Ohio to affirmatively concur with the Secretary's determination that tribal gambling should be permitted.

According to news accounts, the Eastern Shawnee Tribe in April 2008 filed two “land-to-trust” applications with the Interior Department to have the United States take land into trust in Botkins and Monroe. The United States, however, has not agreed to take any land into trust in Ohio for the benefit of the Tribe, and the Tribe has not satisfied any of the other statutory and regulatory conditions necessary in order to bring Indian gambling to Ohio.

Federal regulations state that “as the distance between the tribe's reservation and the land to be acquired increases,” the Secretary must give “greater scrutiny” to the tribe's application and “greater weight” to the concerns of the state and local governments. Off-reservations are disfavored, and no tribe has persuaded the federal government to take land into trust for an “off-reservation” casino located in another state.

In January 2008, the Interior Department issued a “Guidance on Taking Off-Reservation Land into Trust for Gaming Purposes” which states that the IGRA “was not intended to encourage the establishment of Indian gaming facilities far from existing reservations.” The Guidance instructs on page four that “no application to take land into trust beyond a commutable distance from the reservation should be granted unless it carefully and comprehensively analyzes the potential negative impacts on reservation life and clearly demonstrates why these are outweighed by the financial benefits of tribal ownership in a distant gaming facility.” The six-page document can be found at http://www.indianz.com/docs/bia/artman010308.pdf .

Immediately after issuing the Guidance, the Department of the Interior rejected eleven requests to take into trust “off-reservation” lands for gaming purposes. In one instance, involving the St. Regis Mohawk Tribe, the “land-to-trust” application was supported by state officials. The St. Regis Mohawk Tribe’s land-to-trust application was denied because the proposed casino was approximately 350 miles from the Tribe’s reservation. The Eastern Shawnee Tribe’s reservation in Oklahoma is more than 600 miles from Ohio.

Even if a tribe from another state somehow persuades the Department of Interior to place land in Ohio into trust, in order to conduct gaming on such lands, the tribe must also (1) persuade the Secretary of the Interior to find that gambling on such lands would be in the best interest of the Indian tribe and its members; (2) persuade the Secretary of the Interior to find that gambling on such lands would not be detrimental to the surrounding community; and (3) persuade the Governor of Ohio to affirmatively concur with the Secretary's determination that tribal gambling should be permitted. Consequently, under the “governor approval” exception, even if a Tribe somehow wins approval from the federal government, the governor of Ohio has an absolute “veto” power.

In 2006 Arizona Senator John McCain proposed a bill to strictly limit the use of exceptions in IGRA for purposes of establishing “off-reservation” casinos. A similar bill was introduced into the House of Representatives by Richard Pombo (R-Calif.). Ohio’s Senator George Voinovich also introduced a bill to limit Indian gaming. In September of 2006, the House voted 247-171 in favor of Representative Pombo’s bill, but the vote took place under a suspension of the House rules which required that the bill receive a favorable two-thirds vote. Although the IGRA was not amended, the Department of the Interior has issued regulations and its Guidance and has made it more difficult to establish “off-reservation” casinos.

Since 1988, there have been only three Indian tribes that have opened “off-reservation” casinos pursuant to the “governor approval” exception (the Potawatomi’s casino in Milwaukee, Wisconsin, the Kalispel Tribe’s casino near Spokane, Washington, and the Keweenaw Bay Indian Community’s casino near Marquette, Michigan). The only “out-of-state” tribal casino in operation is located in Kansas City, Kansas, and is owned by the Wyandotte Nation of Oklahoma. The state of Kansas contends that this casino is illegal, and is challenging the Tribe’s position that the casino was authorized by an act of Congress.

Your rating: None Average: 3.3 (8 votes)

The people at the top of the wealth and power pyramid are DESTROYING us.

MONEY IS POWER. DON'T GIVE THE KIND OF SELFISH PEOPLE WHO SAY TO THEMSELVES...
"Hey, I think I'll dedicate myself to a money making scheme that might get me millions, or, as in the case of Nevada's Sheldon Adelson, billions! All at the expense of the American people, including families, and tax payers. Who cares, the hell with everyone else. And I can even whitewash it all, by claiming it creates jobs. That's right, I can make a fool of the American public and get rich at the same time! Isn't it great?"...
MORE POWER.

These television character villains are no role models. Greed is over rated.

Well informed American patriots are courageously trying to fight back against these manipulators. Sadly, the struggle often looks bleak on all fronts. Battles are lost on a daily basis. But gratefully, some battles are indeed won. The noble effort continues. History is not yet written.

I see Ohio issue 6 as one of these battles. Small as it may seem in the scheme of things, in times like these, every victory must me cherished.

Best Regards,
informed american patriot

[Sheldon Adelson links]

http://www.philipweiss.org/mondoweiss/2008/04/when-i-was-a-ki.html

http://mparent7777-1.livejournal.com/700528.html

http://www.richardsilverstein.com/tikun_olam/2008/06/25/sheldon-adelson-...

http://judicial-inc.biz/8Who.owns.las.vegas.htm

http://www.wakeupfromyourslumber.com/node/5172

http://www.davidduke.com/index.php?s=sheldon+adelson

http://www.jewwatch.com/jew-capitalists-gambling.html

Who's behind Ohio issue 6?

The My Ohio Now Casino is a privately held company owned by Rick A. Lertzman and Brad A. Pressman.

It's partner is the corporation Lakes Entertainment, a company that consults with Native American tribes in developing casino gaming. It was founded by Lyle Berman.
http://www.inc.com/magazine/20050501/poker_pagen_2.html

It's board of directors is as follows -
Lyle Berman, Timothy Cope, Morris Goldfarb, Ray Moberg, Neil Sell, Larry Barenbaum, and Richard White (Weiss).
http://www.lakesentertainment.com/xml/?func=officers

They've got a fight of their hands.
http://www.dispatchpolitics.com/live/content/local_news/stories/2008/09/...

http://www.noissue6.com/
http://www.votenocasinos.com/
http://www.fopohio.org/files/casino%20issue.pdf

LOVE your country.

BEWARE of the government, the media, and the crooks seem to who own them both.

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.