With the pending Shinnecock Tribe's federal recognition in the news, we thought folks might appreciate the basics of "off-reservation" gaming.

First, of course, is that common usage of the term "off-reservation gaming" usually means gaming on newly acquired lands.  That is, people commonly say "off-reservation casino" to refer to any effort to open a gaming establishment on new lands.  Often, those lands actually have some tie to the tribe's reservation, so the "off-reservation" part is something of a misnomer.  "Gaming on newly acquired lands" is more accurate, but apparently it's too much of a mouthful for most people.  With that little lecture on legal terminology out of the way, let's move on to some basic rules.

Rule No. 1 is that IGRA generally prohibits gaming -- both Class II and Class III -- on trust lands that are acquired after 1988 (that is, "newly acquired lands").  And in the next statutory breath, IGRA sets out a handful of exceptions to that general prohibition.  This means that any gaming operation on lands that are taken into trust after 1988 must fit into one of IGRA's exceptions.

Most of the exceptions are tied to tribal lands.  The first exception is for newly acquired lands is that if the lands are within or contiguous to the tribe's existing reservation, then gaming will be allowed on those lands.  The next exception is for tribes that didn't have a reservation in 1988, but the lands are within the last recognized reservation the tribe had, and also are within the state where the tribe currently is located.  There's also a special exception on this point for tribes in Oklahoma, given the "checkerboard" nature of tribal lands in that state.

There also are a set of exceptions for three circumstances.  First, when the land is taken into trust to settle the tribe's land claim.  Second, when the land is taken into trust as part of a newly recognized tribe's reservation.  And third, for tribes that were terminated and then had their federal recognition restored, there's an exception for their restored lands.

So far, then, all the exceptions have some tie to the tribe's reservation (existing, historical, restored, or new) or the tribe's ancestral lands (the basis for a land claim, and generally the basis for locating reservations).

The final exception is the "best interests" exception.  This is the only one that doesn't require any ties to reservation or ancestral lands.  Under this exception, gaming on newly acquired lands will be allowed if two statutory conditions are met.  First, that the Interior Secretary determines that gaming on the land is in the best interest of the tribe and its members, and will not be detrimental to the surrounding community.  To make this determination, the Secretary is required to consult with the tribe, state and local officials, and officials of other nearby tribes.  And there's a second condition -- the state's governor must concur.  In other words, the governor has veto power over the Secretary's determination.

But that's not all.  Rule No. 2 is that gaming on newly acquired lands must meet all of IGRA's other requirements.  The lands in question must qualify as "Indian lands" under the statutory definition, and gambling must be legal in the state.  For Class III gaming, the tribe must enter into a compact with the state.

And that's still not all.  The Interior Department's "commutable distance" test is still out there, as is the Supreme Court's Carcieri decision, which impacts the Secretary's ability to take land into trust for tribes that are federally recognized after 1934.

In short, as we've said many times, these are not mean legal and political hurdles.  Gaming under any of the exceptions is relatively rare -- and gaming under the "best interests" exception is extraordinarily difficult.