Native American Legal Update : Native American Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

As reported in the Wall Street Journal, the Department of Interior is reconsidering a Bush administration policy that limited Tribes from developing off-reservation casinos unless the sites were within “commuting distance” of the reservation. The new policy would eliminate that proximity requirement and allow Tribes to build casinos on trust land farther from their reservations – and thereby likely closer to larger population centers that would offer more customers. Some areas Tribes are considering are actually on their ancestral lands, but were separated from the Tribe’s main land base through 19th Century treaties.

Over 20 Tribal casinos on non-reservation land exist, and about 20 tribes have off-reservation plans in the works. The Confederated Tribes of Warm Springs of Oregon want to develop a casino along the Columbia River Gorge, and the St. Regis Mohawks have plans for a site in the Catskill Mountains, about 350 miles away from the Tribe's reservation -- but less than a two-hour drive from New York City. Some state governors such as David Paterson of New York and Arnold Schwarzenegger of California have come out in favor of certain projects in recent months.

Despite concerns about the economy, some off-reservation casino projects near major population centers have been able to line up financing for construction and operations. A private investment company that has financed start-ups of major Indian casinos in Connecticut and New York, is acquiring a near 50% stake in Empire Resorts Inc., the company that has been working with the St. Regis Mohawks on plans for a casino in Monticello, N.Y.

Tribes across the country have opened hundreds of casinos since the 1987 U.S. Supreme Court ruling that loosened state restrictions on Tribal gaming. In 1988, Congress authorized development off-reservation casinos. Interestingly, some Tribes that developed the first casinos are now working to block off-reservation gaming by other Tribes, and Senators from Nevada, California and Arizona wrote Interior Secretary Ken Salazar to oppose off-reservation gaming, saying it "violates the spirit" of Tribal gaming law.

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With assistance from the local representative in Congress, the Hoh Tribe in northwest Washington state is seeking to relocate its reservation to higher ground on the Olympic Peninsula. On September 25, 2008, U.S. Rep. Norm Dicks introduced House Bill 7073 that would designate the land as part of the Hoh reservation and transfer 37 acres of Olympic National Park property to the Tribe.

The Hoh reservation was created in 1893, and has remained in the same location to the present day. The Tribe, located on about 640 acres of flood plain at the mouth of the Hoh River south of the town of Forks, has purchased an additional 425 acres of land over the past year to relocate its village. If the expansion and relocation program is authorized, national park land would connect the current reservation with the newly acquired land. The tribe will assume responsibility for maintaining the natural wildlife corridor on the park property and could not use it for development.

The relocation program was prompted by consistent flood problems that have plagued the Tribe’s lands since the reservation was created over 100 years ago. Over 90% of the reservation’s 133 residents currently live in a flood zone, and the Tribe’s proximity to the Pacific Ocean leaves residents susceptible to potential tidal surges and tsunamis. Upon Congressional approval of the park land transfer, the tribe could relocate housing in about three years.

Track the Status of House Bill 7073.

Find more information regarding the Hoh Tribe.

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