The petitioners were:

• One Nation United, a nonpartisan public educational organization, founded in 1984, representing over 300,000 individuals, property owner groups, elected officials, state and national trade associations, many small businesses, and local governments in thirty-seven states across America;
• Stand Up for Clark County Citizens, a citizen-based, grassroots organization based in Washington State concerned over the potential impacts of a Class III casino proposed by the Cowlitz Tribe in Clark County;
• Stand Up For California, a nonprofit, statewide coalition-building group that acts as an advocate and informational resource on the complexities of tribal gaming expansion;
• The American Land Rights Association, a grassroots organization founded in 1978, with 26,000 members located in all 50 states and dedicated to the protection of private property rights, ALRA is a national informational clearinghouse and support coalition; and finally,
• Citizens Against Reservation Shopping is a group comprised of Clark County, Washington, citizens formed in June of 2005 to oppose the Cowlitz Tribe's plan to build a casino in their county, CARS membership represents a broad sprectrum of Vancouver and Clark County, WA, citizens.

Issue: Why is a petition for rulemaking regarding Section 20 of the Indian Gaming Regulatory Act (IGRA) necessary?

1. The Federal/State/Local Bargain on Tribal Gaming. When IGRA was enacted in 1988, it essentially legalized gaming in much of the United States in order to resolve a series of legal decisions and pending cases defining tribal rights to conduct gaming. Since casino gaming is at the heart of state and local police powers, this federal assertion of power had to be balanced by providing real powers to states and local governments even as tribal gaming was authorized in defined situations. Section 20 of IGRA is a key element in that balance.

"IGRA is intended to create a balance between tribal rights to conduct gaming and rights of the state and the community not to have gaming established over their strong objections"

2. What Section 20 Does for States, Local Governments, Communities and the Public. Congress passed section 20 to create balance. It provides crucial protections to states and local communities by establishing a general prohibition on gaming on lands acquired after the enactment of IGRA. To escape the general Section 20 prohibition against gaming on "after acquired lands", the Secretary of the Interior must either make the "two-part" determination, or find that one of three exceptions to the prohibition exists.

"Section 20 is the key portion of IGRA that creates balance, empowering states and communities to express their opinions on gaming in their area and to demonstrate its adverse impacts"

3. The Two Part Process and Determination. The Secretary must determine, after consulting with affected tribes and communities, that gaming is in the best interest of the tribe and not detrimental to the surrounding community. The Governor of the affected state must then concur in the Secretary's finding. This is the two-part determination, and it is critically important to citizens. Without community support for gaming, it is extraordinarily difficult for a tribe to force gaming development on any community. From the outset of IGRA implementation, tribes facing strong local opposition have sought ways to avoid the two-part determination by attempting to fit into one of the exceptions to section 20.

"The two part test is not mandatory or fixed in its outcome; it allows tribes and localities to document benefits and detriments and the Secretary and the Governor to make reasoned findings. It is a test that should be applied, not avoided."

4. The Exceptions. There are three exceptions to section 20, two of which require discretionary decision-making. Gaming is permitted on post-IGRA lands if the land is part of: 1) the settlement of a land claim; 2) the initial reservation of a newly-recognized tribe; or 3) the restoration of lands to a restored tribe. The first exception is largely factual; the second two a mix of fact and discretion. Decisions regarding exceptions 2 and 3 are currently made on an ad hoc basis, without any requirements, notice, other due process, or consultation with affected states, communities or the public. The record and recent Congressional hearings make clear that the exceptions are swallowing the rule, as numerous tribes are now seeking to avoid the two-part test and to establish casinos over the objection of states and communities. Local communities nationwide are upset and mistrustful regarding how these exceptions are being applied, which is typically by cutting communities out of the process.

"Tribal strategy number one is now to avoid the two part test by claiming an exception. Without regulations in place, both the NIGC and the BIA render decisions on exceptions, and are being asked to render many more, that proceed without community notice or the opportunity to submit evidence or be heard and convey no standards for decisions."

5. No Rules in 18 years? Congress, the NIGC and the BIA have repeatedly acknowledged the need to promulgate regulations to implement these discretionary aspects of section 20, but they have done nothing for nearly two decades. Now, a combination of state, local and Congressional pressure, combined with the embarrassing disclosure of the number of restored lands and initial reservation claims pending, have forced the BIA to at least initiate consideration of proposed regulations.

"It is inexcusable that after 18 years, the NIGC and BIA continue to make decisions regarding the applicability of a section 20 exception without a formal process or standards. Their approach blatantly disregards community interests. The federal government is foisting these devastating casinos on communities, without so much as providing notice that it is considering the applicability of an exception".

6. The Present Rulemaking Approach Once Again Disregards Our Interests. The BIA's recent effort to establish rules belies the agency's bias in favor of tribal development. The BIA has announced that it has drafted section 20 rules, largely in response to Senator McCain's disbelief that no rules exist to implement section 20, and his demand that something be done. Incredibly, the BIA has also announced that it will consult with Indian tribes, and apparently no one else, about the rules before publishing them for public comment. Although section 20 was passed to protect states, communities and the public, the BIA has determined that it needs to consult only with Indian tribes about the substance of the rules.

"IGRA is not tribal property, and BIA should not treat it as if it is. Section 20, in particular, belongs to everyone affected by the avalanche of tribal gaming proposals. It is the essential provision for achieving a balance between tribal ambition and community protection as gaming continues to expand. "

7. We Must Have a Voice Too. Because the BIA has not deemed it necessary to consult with community representatives, or even the state attorneys general, there was no choice but for communities to file their own petition outlining our justification for the rulemaking, our view of the problems with section 20, and our own proposed regulations. Section 20 affects states, local governments and communities directly. Exceptions to Section 20, declared without notice by the BIA or the NIGC (which lacks jurisdiction to make such decisions), strip communities of their rights even to participate in the process.

"The BIA's apparent disregard of community and state interests in the rulemaking process, even as they undertake full consultation with tribal entities, make it likely that our concerns will not be included in the draft regulations. For that reason, we felt compelled to defend our interests by conveying our concerns in this Petition. Rules are needed to preserve our voice.

8. What Our Rules Do and Why They Are Important. The rules we propose establish standards that all tribes seeking an exception to the two-part determination must meet. To qualify for the restored lands exception, for example, a tribe must be able to demonstrate a significant cultural and historic connection to the land involved, as well as exclusive use and occupancy. For reservation designations, the Tribe will have to demonstrate the same criteria and that gaming is not the primary purpose of the land acquisition. Our regulations would establish a formal process by which these decisions will be made and through which the public can participate.

"No longer will it suffice for a tribe to select a desirable community and claim that it occasionally used the area at some point in the past to escape community review. The government has an obligation to the public as well, and these regulations ensure that decisions regarding the future of our communities are made with full disclosure and ample opportunity for our voice to be heard."