Hastert: Gaming in Shabbona a long way from reality

State Senator J. Bradley Burzynski and State Representative Robert Pritchard on Sept. 27, welcomed a new legal opinion stating the Potawatomi Nation must receive federal approval before opening an Indian gaming facility in Shabbona.Provided by the U.S. Department of Interior, the opinion came in response to an inquiry from Speaker of the House Congressman J. Dennis Hastert on behalf of Burzynski and Pritchard.

“’We felt it was crucial some of these questions be answered immediately because at the Town Hall meeting it organized in August, the Potawatomi Nation announced development plans to include a bingo facility in Shabbona.

 “Based on the opinion from the Department of the Interior, it would appear the tribe has not established the recognition necessary for this property to be considered a reservation,” said Burzynski and Pritchard.

In order to move forward with its plans for Class II gaming, which includes bingo, the Tribe must undertake a series of steps involving the federal government. “None of these steps have been taken by the Tribe,” according to Speaker Hastert in a letter to local lawmakers citing the Department of Interior opinion.

The response from Michael D. Olsen, Principal Deputy Assistant Secretary of Indian Affairs with the Department of the Interior is dated Sept. 22, 2006. Burzynski and Pritchard said they asked for input from the federal government after it became evident there were many unanswered questions surrounding the tribe’s proposal.

“The Prairie Band has been pressuring the County of DeKalb to enter into an intergovernmental agreement which would lend validity to their claim,” said the legislators.

“We believe this to be premature, and we believe the County does not have the authority to enter into such an agreement without recognition on the federal level.”

In his letter to Burzynski and Pritchard, Speaker Hastert pointed out the Department of the Interior’s opinion that the status of the land must be determined prior to gaming occurring on the land – a determination which the Tribe has yet to formally request from the Department. “Residents of Shabbona should be reassured that any plans to bring Indian gaming to their community are a long way from becoming reality,” said Hastert.

“The Department of Interior has a thorough process in place to review such claims, and the Tribe has yet to begin that process.”

The Potawatomi contacted the Department of the Interior more than four years ago to inquire about a claim to land in Shabbona.  A former official within the department, solicitor John Leshy, responded with a preliminary opinion stating the claim could potentially be credible.

The most recent response from the Department addresses Leshy’s letter, acknowledging that “the success of any litigation to vindicate this claim is necessarily uncertain.”

Speaker Hastert said it should be noted that Leshy’s letter predates a recent Supreme Court decision which is referenced in the Department’s response as of “fundamental importance” to any assertion of rights over this land.

In the City of Sherrill vs. Oneida Indian Nation, the Supreme Court held 8-1 for the City of Sherrill in that an Indian nation cannot unilaterally revive Indian sovereign control over lands it had purchased within the exterior boundaries of its reservation. In this case, the Court relied on the justifiable expectation of the local community that its land titles were good based on long, uncontested occupancy.

The Department of the Interior's Olsen wrote: "The status of the land must be determined prior to gaming occurring on this land. The Indian Gaming Regulatory Act (IGRA), 25USC2701 et seq., states that for class II gaming to occur on the land it must be 'Indian Lands,' which are 'all lands within the limits of any Indian reservation; and any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.'"

Olsen's letter goes on to state: "The Department has not yet reviewed this land to determine if it would be considered Indian land within the definition of IGRA, and we do not know if the National Indian Gaming Commission has approved 'any tribal ordinance or resolution concerning the conduct of or regulation of class II gaming on the Indian lands.”

"Any claim to jurisdiction over Indian owned land within a tribe's former territory, and conversely any claim to immunity from such jurisdiction, will have to deal with the complex application of all the factors referenced by the treaties, courts and statutes in the context of the specific claim," wrote Olsen.