Last year, we wrote an article with economist Alan Meister criticizing the Interior Department's now infamous January 2008 guidance memo on off-reservation gaming.  In the memo, Interior created the "commutable distance" test, and also made a number of other substantive and procedural changes to how Interior handled land-into-trust applications related to gaming on off-reservation lands.

Now the Obama administration's Interior Department is taking another look at the memo.  Calling the issue of off-reservation land acquisitions "important" and "controversial," deputy assistant secretary George Skibine predicted a relatively quick decision on whether to change current policy and practice under the memo.

About time, we say!  Though we've heard on the down low that the memo was intended to stave off stronger legal reform and satisfy critics of off-reservation gaming in Congress, there's little doubt that the memo set forth, as we characterized it, some highly questionable guidance.

But the Wall Street Journal predicts that a change in Interior policy would be "a move likely to spur a new wave of casino development."

Not so fast, we say!  Even with relaxation -- or even abolition -- of the commutable distance test and the other constraints spelled out in the memo, a tribe pursuing off-reservation gaming faces three sets of substantial hurdles.

First is the requirement that the land be taken into trust in the first place.  Federal regulations are far from lax in this regard, and also require an opportunity for the state and local governments to comment on a tribe's land-into-trust application.

Second is the need to meet at least one of the exceptions to IGRA's general prohibition on newly acquired (meaning after 1988) lands.  These exceptions are limited, and are not as easily met as critics of off-reservation gaming contend.  The only exception that does not require some tie to the tribe's reservation or ancestral lands, the "best interests" exception, has a built-in gubernatorial veto.

And third is the full set of requirements in the rest of IGRA, including the tribal-state compact requirement for Class III gaming.

Those are a lot of legal and political hurdles to clear before we see a new wave of off-reservation tribal casino development.

Read our 2008 article in the Gaming Law Review&Economics, "Questionable Federal Guidance on Off-Reservation Indian Gaming: Legal and Economic Issues"

Read the Wall Street Journal story