Like many tribes seeking to take land into trust for the purposes of establishing a casino, the Shawnee Tribe faced a daunting array of legal, legislative and regulatory obstacles to make its goal of establishing a gaming facility in Oklahoma a reality.

But the tribe persevered, and the fulfillment of its casino dream is finally within sight. As the Obama administration concluded, Principal Interior Department Deputy Assistant Secretary for Indian Affairs Lawrence Roberts signed a Record of Decision (ROD) providing initial approval to the Shawnee Tribe’s request to acquire 102.98 acres of land in trust for gaming. One year later in January 2018, the Trump administration gave final sign-off on the tribe’s application and announced it will take land in trust for the tribe for gaming purposes.

With final approval, the landless tribe can build a 42,000-square-foot Class II and Class III gaming facility in Oklahoma’s Panhandle operating 600 machines and six-to-eight table games with a restaurant, retail shops and administrative space estimated to generate $20 million annual for the local economy, creating 200 jobs.

Getting to this final sign-off was anything but easy however. In the January 2017 ROD and accompanying letter to Oklahoma Gov. Mary Fallin, Roberts explained he completed review for the federal government to take 102.98 acres of land in the City of Guymon, Texas County, Okla., in trust for the tribe and made a determination of eligibility for gaming pursuant to the Indian Gaming Regulatory Act (IGRA) that generally prohibits Indian gaming on lands acquired by tribes after Oct. 17, 1988. The secretary wrote the Shawnee Tribe’s site meets an exception to the act, the Secretarial determination (also referred to as the two-part determination).  In line with this exception, he determined gaming development would be in the tribe’s best interest and not detrimental to surrounding communities.

But approvals made at the end of the Obama administration to take land in trust for Indian gaming purposes raised concern from a congressman—House Natural Resources Committee Chairman Rob Bishop. In February 2017, he sent a letter to Acting Deputy Interior Secretary James Cason that committee staff had “identified several examples of last-minute approvals of Indian casinos located outside existing reservations,” adding “while the last-minute nature of these actions does not necessarily imply wrongdoing, it begs scrutiny, especially as the decisions were rendered with little or no transparency and with no notification to the Committee ...” The letter did not call out last-minute decisions directly; it likely referenced the Shawnee decision.

COMING TO A DECISION

Despite concerns, the Shawnee Tribe’s casino plans moved forward. Gov. Fallin announced support for the secretary’s determination in March 2017, which was needed as IGRA’s Secretarial determination exception requires state governor approval where gaming would occur. Last February in Oklahoma, Interior Secretary Ryan Zinke, with Gov. Fallin and Chief of the Shawnee Tribe Ron Sparkman, signed a letter detailing his final decision to take the land in trust.

The approval included analysis required by the Indian Reorganization Act (IRA), which establishes the Secretary’s authority to acquire land in trust. The IRA’s regulations detail conditions for the Secretary to acquire land in trust and call on the secretary to analyze criteria, e.g., the tribe’s need for the land, purpose for its use, impact of removing the land from local and state tax rolls, jurisdictional problems, compliance with the National Environmental Policy Act (NEPA) and land location.

Secretary Zinke determined the tribe’s request is in line with IRA as it is “necessary to facilitate tribal self-determination, economic development or Indian housing.” He explained the land base and gaming facility development “would create employment opportunities for tribal members, fund important tribal governmental programs and fund other development opportunities that will facilitate tribal self-determination and economic stability.” He noted tribal lack of land precludes it from fully engaging in self-determination and self-governance, limits participation in certain Bureau of Indian Affairs programs, curbs ability to provide services to 2,000-plus members and impairs ability to generate economic development.

While the Interior Department received supportive comments from officials and individual community members, it also heard many concerns about the land acquisition. Secretary Zinke’s letter notes the department received comments from Texas County and City of Guymon officials who raised issue with impact of removing the land from tax rolls, loss of future taxes and increased public services demand. The Panhandle Citizens for Truth in Gaming opposition noted detriment to the community. Ultimately, the department found expected net benefits through increased jobs and tourism outweighed concerns.

Concern over the location, 370 miles east of the tribe’s headquarters, was raised, but, under IRA, as distance between the proposed site and a tribe’s reservation grows, the Secretary must give greater scrutiny to a tribe’s justification of anticipated benefits. The Secretary discussed strict limitations imposed on the tribe’s ability to acquire land by the Shawnee Status Act and found “for all practical purposes, the only land the tribe can acquire in trust is in the Oklahoma Panhandle.” Secretary Zinke determined the “concerns raised by the local jurisdictions with regulatory authority over the site are outweighed by the anticipated benefits to the tribe and the local community.”

After Congress passed the Shawnee Status Act to federally recognize the tribe and clarify its eligibility to have land taken into trust, the tribe submitted this application to acquire land in trust in February 2015. Three years and two administrations later, the tribe ends 160 years of being landless, moving forward on its plans to develop a gaming facility.