Not uncommon for Indian casino approval to take 8 years or more, lawyers say

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NORFOLK, Va. (WAVY) — An Indian tribe’s quest to bring a world-class casino to Norfolk could take years.

In mid-December, the City of Norfolk announced the Pumunkey Indian Tribe is in negotiations to buy 20 acres of city land to construct $700 million casino.

The resort, which would sit on the banks of the Elizabeth River next to Harbor Park, would include a hotel, restaurants, luxury spa and a possible entertainment venue, according to the tribe. 

However, even when a purchase of that land is complete, a legal gaming operation can’t happen without approval on the federal level.

The Pamunkey Indian Tribe can conduct gaming in the Commonwealth if they meet three criteria:

  1. The tribe must have Indian Gaming Regulatory Act (IGRA) eligible gaming lands.
  2. A National Indian Gaming Commission must approve a gaming ordinance.
  3. The Department of Interior must approve a tribal-state compact if class III gaming is to be conducted.

“This process will not begin until a tribe has submitted a land-into-trust application to the Secretary of Interior,” said Kevin Quigley, an attorney who specializes in Indian gaming law. 

Conceptual rending of a proposed casino in Norfolk. (Credit: Jay T. Smith, Capital Results)

In May, Quigley and his partner Tom Foley were hired by the New Kent County Board of Supervisors to speak to the community about how Indian casino’s come to be.

Rumors had been swirling at the time that the Pamunkey Indian Tribe was looking to open up a casino nearby after a financial partner had purchased 600-plus acres in the northwestern part of the county.

Since neither the land in New Kent County nor Norfolk is a part of the Pamunkey Reservation, the tribe would have to pursue trust land in order to comply with the IGRA. In Norfolk’s case, the land would no longer be under city control and would be tax exempt.

“The tribe can try to get trust land acquisition in any number of places it has a historical connection to,” Quigley said. 

The federal process includes community input before the land is accepted into a trust. But even then, the gaming ordinance can only be approved in part if a “modern connection” is made. 

A “modern connection,” according to Quigley, can be demonstrated by either showing that the land is near where a significant number of tribal members reside, the land is within a 25-mile radius of tribal governmental facilities that have existed for at least two years at the time the land-into-trust application is submitted, or other factors establishing the tribe’s current connection to the land. 

VIDEO: Pamunkey tribe intends to bring resort casino to Norfolk

Finally, if the casino is to have more than what is considered class II gaming — bingo games, linked e-bingo machines, e-pull tabs machines, etc. — they would have to strike a deal with current casino-free Virginia.

“The (IGRA) does not grant tribes gaming rights,” Quigley said. “States have rights under certain circumstances.” 

A state-tribe compact would need to be drafted and approved by the federal government in order for class III gaming. This means the state would get a say if traditional casino games like slots, blackjack, lotteries, craps and roulette were permitted.

If it seems like a time-consuming process, Quigley said, it is.

“Generally, in our experience over the last 20-plus years, it’s not uncommon for gaming-related trust applications to stretch out eight years, nine years, 10 years or more before any decision is made,” Quigley said. 

The Suffolk-based Nansemond Indian Tribe sent a letter to Norfolk Mayor Kenny Alexander expressing their desire to have a seat at the table. 

“This is our ancestral land, our community, and the foundation for our future,” Nansmond Chief Samuel Bass wrote in the letter. “Discussions that have happened to date have been incomplete without our voice.”

The Pamunkey tribe has also seen opposition in the past from by MGM Resorts, which runs a new casino in Maryland, just outside Washington, D.C. The group opposed the tribe’s federal recognition. 

“We do not anticipate it taking anywhere near eight years,” said Jay Smith, a spokesperson for the Pamunkey tribe. 

Foley further stressed that the processes could change soon, as they are under review by the Trump Administration. 

“The process could not begin until an application was submitted and the regulations in place at the time of application would apply,” Foley said. 

Copyright 2019 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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