    [Senate Hearing 107-925]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 107-925

             BAY MILLS INDIAN COMMUNITY LAND CLAIMS SETTLEMENT ACT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                          ONE HUNDRED SEVENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                    S. 2986

    TO PROVIDE FOR AND APPROVE THE SETTLEMENT OF CERTAIN LAND CLAIMS OF THE
                      BAY MILLS INDIAN COMMUNITY, MICHIGAN

                                   __________

                                OCTOBER 10, 2002
                                 WASHINGTON, DC

    84-595              U.S. GOVERNMENT PRINTING OFFICE
                                WASHINGTON : 2003
    ____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpr.gov  Phone: toll free (866) 512-1800; (202) 512�091800
    Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                          COMMITTEE ON INDIAN AFFAIRS

                       DANIEL K. INOUYE, Hawaii, Chairman

                BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

    KENT CONRAD, North Dakota            FRANK MURKOWSKI, Alaska
    HARRY REID, Nevada                   JOHN McCAIN, Arizona,
    DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
    PAUL WELLSTONE, Minnesota            CRAIG THOMAS, Wyoming
    BYRON L. DORGAN, North Dakota        ORRIN G. HATCH, Utah
    TIM JOHNSON, South Dakota            JAMES M. INHOFE, Oklahoma
    MARIA CANTWELL, Washington

            Patricia M. Zell, Majority Staff Director/Chief Counsel

             Paul Moorehead, Minority Staff Director/Chief Counsel

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page
    S. 2986, text of.................................................     2
    Statements:
        Bennett, George, tribal councilor and former chair, Grand
          Traverse Band of Ottawa and Chippewa Indians...............    27
        Boldrey, Lance, deputy legal counsel to Governor John Engler
          of Michigan................................................    19
        Bonior, Hon. David E., U.S. Representative from Michigan.....     7
        Bouschor, Bernard, chairman, Sault Ste. Marie Tribe of
          Chippewa Indians of Michigan...............................    25
        Fletcher, Matthew, esquire, Law School, University of
          Michigan...................................................    27
        Inouye, Hon. Daniel K., U.S. Senator form Hawaii, chairman,
          Committee on Indian Affairs................................     1
        Lufkins, L. John, president, executive council, Bay Mills
          Indian Community of Michigan...............................    16
        Martin, Aurene, Deputy Assistant Secretary for Indian
          Affairs, BIA, Department of the Interior, Washington, DC...    12
        Stabenow, Hon. Debbie, U.S. Senator from Michigan............     8
        Stupak, Hon. Bart, U.S. Representative from Michigan.........    10

                                    Appendix

    Prepared statements:
        Bay Mills Indian Community...................................    37
        Bennett, George..............................................    51
        Boldrey, Lance...............................................    88
        Bouschor, Bernard............................................    98
        Boylan, Virginia, counsel to the Bay Mills Indian Community
          (with attachment)..........................................   112
        Lufkins, L. John.............................................    33
        Martin, Aurene (with responses to questions).................   120
    Additional material submitted for the record:
        Letters......................................................   128

              BAY MILLS INDIAN COMMUNITY LAND CLAIM SETTLEMENT ACT

                                  ----------

                           THURSDAY, OCTOBER 10, 2002

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 11:27 a.m. in
    room 485, Senate Russell Building, Hon. Daniel K. Inouye
    (chairman of the committee) presiding.
        Present: Senator Inouye.

     STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
                 CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        The Chairman. The Committee on Indian Affairs meets this
    morning to receive testimony on S. 2986, a bill to provide for
    and approve the settlement of certain claims to lands in the
    State of Michigan of the Bay Mills Indian Community.
        [Text of S. 2986 follows:]

        The Chairman. I would like to express my apologies for
    being late, but as some of you are aware, we are deep in debate
    on Iraq at this moment.
        I am pleased to welcome as our first witness today a great
    leader in the House, the Honorable Leader, Congressman Bonior.

      STATEMENT OF HON. DAVID E. BONIOR, U.S. REPRESENTATIVE FROM
                                MICHIGAN

        Mr. Bonior. Good morning, Mr. Chairman, and thank you for
    the opportunity to appear with you today. It is always good to
    see you and be with the committee.
        I am also delighted to appear this morning with Senator
    Stabenow and Congressman Stupak in support of S. 2986. As
    always, it is wonderful to appear with constituents from my
    home State, which I assume you will hear from shortly.
        I am the sponsor of the companion bill in the House of
    Representatives, H.R. 5459, because I believe this is sound
    legislation that provides final settlement to a land claim held
    by the Bay Mills Indian Community. I am pleased that our House
    bill has bipartisan support and the cosponsorship of Don Young.
    Our offices have been working closely to move the legislation
    forward.
        S. 2986 and our House companion provide for congressional
    approval of the agreement reached between the Bay Mills Indian
    Community and the State of Michigan. In exchange for
    relinquishing a claim of land in Charlotte Beach, Michigan, the
    Bay Mills Indian Community receives land in Port Huron,
    Michigan which, Mr. Chairman, is in my district. The Bay Mills
    Indian Community is a federally recognized Indian tribe whose
    ancestors lived in semi-autonomous bands of Chippewa on the
    shores of the Upper Great Lakes in what is now the State of
    Michigan and the Province of Ontario. The land-swap issue has
    focused on the planned gaming facility that would be located in
    Port Huron. Mr. Chairman, the most important thing I can offer
    you today in my support for this legislation is that my own
    community of Port Huron held a referendum on this issue on June
    26, 2001. The voters gave approval by a 55- to 45-percent
    margin. I believe we ought to heed their reasons for supporting
    this settlement.
        Casino gaming would benefit the Port Huron community and
    the economy. Port Huron's unemployment rates exceed the State
    and National levels. I was told recently that it is up to 14
    percent. The casino will be an $80 million facility creating
    more than 3,000 jobs in the community. It is expected to
    provide a $207 million boost to the local economy.
        Port Huron, I would note, is the only U.S-Canadian border
    crossing in Michigan without a casino to compete. Residents in
    Port Huron have for years watched as residents of Michigan,
    approximately about 5,000 a day, simply cross the Blue Water
    Bridge with their money to the gaming facility which is located
    right across the bridge on the river. The planned casino in
    Port Huron will be a development close to the downtown area,
    will make efficient use of existing attractions and
    infrastructure in the city, and the casino will also generate
    more than $10 million per year in payments to State and local
    governments in Michigan.
        I also believe it is worth noting that the Bay Mills Indian
    Community will benefit from the gaming casino in a way that
    will improve the lives of the tribal members of the larger
    Native American population in our State. Gaming funds are used
    for education. The Bay Mills is the only tribe in Michigan, as
    far as I know, to provide for a community college that serves
    the entire Indian population of the State. For housing, casino
    revenue has helped the tribe to provide low- interest loans to
    its members and the bulk buying of manufactured homes. For
    health care, the tribe operates a medical clinic that serves
    the physical and mental health needs of tribal members. For
    jobs and training, Bay Mills is one of the few tribes in
    Michigan where a majority of the workers in their casino are
    tribal members.
        In addition to this support for community service programs,
    there is an existing agreement between the Bay Mills Indian
    Community and Port Huron for a percentage of the revenue from
    gaming to be set aside for social service needs of the
    community. I have heard from the local United Way in support of
    this legislation because they are pleased that there will be an
    increase in much needed social service programs for the
    residents of Port Huron because of this agreement.
        I thank you again for the opportunity to appear before you
    today. Before I close, I want to simply acknowledge Port Huron
    City Councilmember Cliff Schrader. Mr. Schrader has served on
    the city council for eight years and has served as mayor pro
    tem. He has been a Port Huron resident for 51 years. Prior to
    his service on the city council, he served on the school board.
    Mr. Schrader gave me this morning a box of over 1,200
    preliminary job applications from the citizens of Port Huron.
    In addition to the reasons cited in my comments and those of my
    colleagues, I add these 1,200 reasons in support of S. 2986.
        I thank my chairman and colleague and friend for the
    opportunity to speak this morning.
        The Chairman. Congressman, I just have one question, a
    clarification. Did you say that the United Way favors this?
        Mr. Bonior. That is correct. There is a very close
    relationship in the City of Port Huron between the United Way--
    they are a very vital part of the community, and there is going
    to be a set-aside for them to deal with many of the social
    issues that a community that has 14 percent unemployment is
    grappling with.
        The Chairman. Thank you very much.
        Now, it is my pleasure to call upon the junior Senator from
    the State of Michigan, the Honorable Debbie Stabenow.

     STATEMENT OF HON. DEBBIE STABENOW, U.S. SENATOR FROM MICHIGAN

        Senator Stabenow. Thank you, Mr. Chairman.
        First, I want to thank you personally for your patience and
    your willingness to take time for yourself and your committee
    at this very difficult time, as we are debating very weighty
    matters in the Senate. I appreciate your staff's help and
    support in focusing on this issue and allowing us this hearing
    today. So thank you very much for your willingness to do that.
        I appreciate the opportunity to appear before the committee
    to discuss my bill, S. 2986, which as you know was introduced
    last month. S. 2986, The Bay Mills Indian Community Land Claims
    Settlement Act, would approve, ratify, and implement, upon
    approval of the Secretary of the Interior, the terms of a
    landmark agreement between the Bay Mills Indian Community in
    Brimley, Michigan and the State of Michigan. I welcome today's
    hearing as a forum to provide more information to the committee
    on the details of the land claims settlement and to hear the
    viewpoints from my constituents.
        Mr. Chairman, I want to welcome everyone to the committee
    hearing today. I know there are those that are on both sides of
    this issue, and they are sincere individuals and we appreciate
    their coming and giving their input. I work closely with all
    the tribes in Michigan on a wide variety of issues, and I look
    forward to reviewing their testimony on this legislation.
        Mr. Chairman, the settlement referenced in S. 2986 was
    reached this year after much discussion between the State of
    Michigan and the Bay Mills Indian Community. The agreement
    settles the tribe's longstanding claim to over 110 acres of
    land that was once deeded to the Governor of the State to hold
    in trust for the ancestral bands of the Bay Mills Indian
    Community. This land, in what is now called Charlotte Beach,
    Michigan was later sold for unpaid taxes and without the
    knowledge of the bands or consent of the State.
        On the judicial front, the Bay Mills Indian Community has
    been unable to resolve the tribe's land claim for the tribe and
    the current Charlotte Beach landowners. I am sure Bay Mills
    executive council president, L. John Lufkins, will speak more
    thoroughly today on the legal aspects and the history of the
    tribe's efforts to remedy this land claim in the court of law.
    The settlement agreement of S. 2986 would extinguish the Bay
    Mills Indian Tribe's claims to the Charlotte Beach lands, and
    in turn provide them with alternative land located in Port
    Huron, MI.
        As noted in the settlement agreement, both the Governor of
    Michigan and the Bay Mills Indian Community believe that
    resolution of the tribe's claim will lead to a clearing of the
    property title for the current Charlotte Beach property owners.
    As it stands presently, local assessors have reduced the
    property values of the Charlotte Beach landowners by 90 percent
    and clouded their property titles. The Governor of Michigan
    could not attend today's hearing, but I am quite confident that
    his representative, Lance Boldrey, will effectively convey the
    State's position on this bill, and its decision to settle the
    Bay Mills Indian Community's land claim.
        Testimony this morning may assert that the Community's
    claim to the land in Charlotte Beach is unfounded, since some
    legal avenues have been exhausted. In response to that
    contention, I do not believe that the State of Michigan would
    enter into this settlement agreement or potentially others like
    it if a tribe's land claims were false or historically
    inaccurate.
        Mr. Chairman, S. 2986 would provide for congressional
    approval of the land claim settlement between the State of
    Michigan and Bay Mills. As outlined in the settlement, the
    alternative lands provided to the tribe for the relinquishment
    of their claim to land are in Port Huron, Michigan. We are
    pleased to have leaders from Port Huron with us today.
        The voters in the city of Port Huron supported a ballot
    initiative last year to allow gaming in their city. This
    settlement outlines the mechanisms which the tribe would follow
    should off-reservation gaming be conducted on this alternative
    land. I believe a community's input is vital concerning gaming
    issues. My legislation deals solely with the agreement reached
    between the Bay Mills Tribe and the State of Michigan. I
    believe my Senate colleagues on the committee today should be
    concerned with the main issue of the land claims settlement. It
    is a sound and valid agreement, and I would urge that it be
    approved.
        Thank you, Mr. Chairman, very much, and I want to thank my
    colleagues also--Congressman Bonior, Congressman Bart Stupak--
    for joining me today and for being involved in initiating this
    legislation in the House and sharing their testimony today.
        Thank you.
        The Chairman. I thank you very much, Senator.
        I just have one question. What is the distance between the
    Bay Mills Reservation and the alternative site?
        Senator Stabenow. The exact distance, I am not sure I could
    tell you. There is certainly some distance between Brimley and
    Port Huron, 300 and some miles I am told.
        The Chairman. I thank you very much.
        Senator Stabenow. Thank you.
        The Chairman. And now it is my pleasure to call upon the
    Honorable Bart Stupak, Member of the United States House of
    Representatives. Congressman.

        STATEMENT OF HON. BART STUPAK, U.S. REPRESENTATIVE FROM
                                MICHIGAN

        Mr. Stupak. Thank you, Mr. Chairman, and thank you for the
    courtesy of allowing me to testify here today.
        I want to thank Senator Stabenow for bringing forth this
    legislation, and Mr. Bonior for being the sponsor in the House
    and the work they have both done on this legislation. I hope
    that after this hearing today, this legislation will be marked
    up and will move, as I would like to see this legislation
    passed yet this year.
        If I may, Mr. Chairman, I would submit my formal statement
    for the record, and let me just try to summarize, if I may.
        The Chairman. Without objection, so ordered.
        Mr. Stupak. Thank you.
        If I seem anxious to move this legislation, I have been in
    the House of Representatives now for 10 years, and I have been
    working on this problem since 1994. I was first contacted in
    1994, not by the Native American tribes, but by the landowners.
    The landowners in Charlotte Beach have, as Senator Stabenow
    testified, 90 percent devaluation of their property because of
    the cloud on their title. They cannot get loans to make
    improvements. When they sell their property, it has to be less
    than the fair market value. There are many problems. Local
    assessors have reduced Charlotte Beach property valuation, as I
    said, by 90 percent. So it was the landowners that contacted
    me.
        In 1996, Bay Mills did file litigation on their land claims
    to try to get back their land, or at least some equitable
    settlement. The Sault Sainte Marie Tribe was also involved,
    however they did not join in the lawsuit. A Federal judge then
    dismissed the lawsuit, saying the Sault Tribe was an
    indispensable party, and therefore the claim could not go
    forward. There have been other legal actions that I will let
    other people testify to later today.
        But I have been working with the tribes, both the Sault
    Tribe and the Bay Mills Tribe to try to work out a solution. I
    introduced legislation in 1999 in the 106th Congress. I have
    reintroduced legislation in the 107th Congress with different
    boundary lines on where a possible land-swap could take place.
    To tell you the truth, Senator, it has taken in most of the
    State of Michigan based upon some treaties from 1856 I believe
    the year was, and a couple of other treaties. So the distance
    between Bay Mills and Port Huron was all part of the treaty
    lands that were ceded to the United States, and at one time was
    the claimed property of some of the tribes in Michigan. So the
    fact that it is some 300 miles away did not make any difference
    then, and I hope it does not in deliberation on this
    legislation.
        This bill, as I said, my bill was introduced in the 107th
    Congress. We have not had a hearing yet in the House Resources
    Committee, but the new version, the one that is before us
    today, we are optimistic that it will move. With the
    sponsorship of Congressman Dave Bonior and Congressman Don
    Young, I am confident if we can move it through the Senate, we
    can get action on the House side yet this year.
        The thing is, it is time to bring this logjam to an end.
    For almost 10 years now, we have been dealing with this
    legislation. We have tried different locations. We have tried
    different angles to please everybody. I think it is just one of
    these situations where not everyone is going to be happy. But
    because not everyone will get on board, we cannot prevent this
    legislation from moving forward. It is time to end the logjam.
    It is time to move this legislation.
        Some people will say this thing will not solve anything. I
    totally disagree. If there is another tribe who would have the
    same claim as Bay Mills, let's say like the Sault Tribe, I am
    sure when this legislation moves, they can go back to the
    Governor who negotiated this and get the same kind of agreement
    and commitment from that Governor, Governor Engler, to reach
    out and resolve these land claims.
        The settlement is very limited. It is a very specific
    solution for a localized problem in my district. It was arrived
    at between negotiations between the Bay Mills Tribe and
    Governor Engler. I thank Governor Engler for helping to resolve
    this problem.
        I have more Native American tribes, seven of them, in my
    district than in the rest of the State. There are 12 recognized
    tribes in Michigan; 7 are in my district. I have worked closely
    with all of them since I came to Congress in 1993. The Keweenaw
    Bay Indian Community which is up in the Keweenaw Peninsula has
    offered a resolution of support of this bill. The Michigan
    Intertribal Council, a consortium of all 12 recognized Michigan
    tribes, has stated its support for the bill in writing. I would
    not support this bill if I did not believe it solved a title
    problem in my district, and I do not believe this bill in any
    way would damage other tribes and my constituents in my
    district.
        So Mr. Chairman, I thank you for bringing forth this
    hearing during this busy week and once again I would urge you
    to have the hearing, mark it up and move it. Again, after a
    decade, I think it is time to move forward with this
    legislation.
        Thank you very much, sir.
        The Chairman. I thank you very much, Congressman.
        What is the status of the House bill at this moment? Have
    you had hearings on it?
        Mr. Stupak. We have not yet, sir.
        The Chairman. Is there a possibility that the committee
    will consider the measure?
        Mr. Stupak. Mr. Bonior and Mr. Young have been moving it,
    and I am quite confident that they will have a hearing and they
    would move this legislation, hopefully in the same manner that
    this body will today.
        The Chairman. Congressman Bonior, do you have any schedule
    that you can share with us?
        Mr. Bonior. Mr. Chairman, I do not, but Mr. Stupak is
    correct. We are hopeful that we can bring something to the
    floor in short order. A number of the leaders in the House on
    both sides of the aisle have been supportive of doing this. We
    expect that it will get done there, and we are hoping to march
    in lock-step with the Senate in doing it at the same time.
        The Chairman. Well, I can assure you that this committee
    will do what it can to do the right thing.
        Mr. Bonior. Thank you.
        The Chairman. I thank the Senator and Congressmen. Thank
    you very much.
        Mr. Bonior. We appreciate you for your time.
        Mr. Stupak. Thank you, Mr. Chairman.
        The Chairman. And may I now call upon the deputy assistant
    secretary for Indian Affairs of the Bureau of Indian Affairs,
    Aurene Martin. Welcome to the committee.

      STATEMENT OF AURENE MARTIN, DEPUTY ASSISTANT SECRETARY FOR
      INDIAN AFFAIRS, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE
                                INTERIOR

        Ms. Martin. Thank you. Good morning, Mr. Chairman.
        My name is Aurene Martin and I am the Deputy Assistant
    Secretary of Indian Affairs at the Department of the Interior.
    I would like to thank you for the opportunity to testify today
    regarding the Department's views on S. 2986, which deals with
    the settlement of land claims of the Bay Mills Indian
    Community.
        S. 2986 would ratify an agreement between the State of
    Michigan and the Bay Mills Indian Community, settling the
    tribe's claim to land located in the Upper Peninsula of
    Michigan. While we are encouraged by the efforts of the State
    and the tribe to reach agreement on this important issue, the
    Department cannot support S. 2986 at this time. Under the terms
    of S. 2986, the Bay Mills Indian Community would extinguish
    their claim to land located in the Charlotte Beach area of
    Chippewa County, Michigan. In exchange for this action, the
    tribe would receive title to lands located in Port Huron, MI,
    which is located over 250 miles from the tribe's current
    reservation. By the express terms of S. 2986, this land is
    deemed reservation land of the Bay Mills Indian Community as
    lands received as part of a land claims settlement, as those
    are defined in the Indian Gaming Regulatory Act.
        S. 2986 also directs the Secretary to take those lands into
    trust within 30 days of receipt of a title insurance policy
    which shows the land is not subject to certain encumbrances.
        Finally, S. 2986 incorporates the terms of the settlement
    agreement executed by the State of Michigan and the Bay Mills
    Indian Community into the Act.
        Although the Department is continuing to review this
    legislation, we have three main concerns with the terms of S.
    2986 and the incorporation of the underlying agreement. First,
    the Department is concerned that as part of the settlement
    agreement, terms are included which govern the operation of
    class III gaming on Indian lands. The Department, pursuant to
    the requirements of the Indian Gaming Regulatory Act, is
    required to review and approve tribal-State compacts before
    they become effective. Here, no such review is required under
    the terms of the settlement agreement, even though the
    operation of class III gaming is clearly contemplated and
    several citations are made to the Indian Gaming Regulatory Act
    in the body of the document. It is the Department's position
    that agreements regarding the operation of class III gaming on
    Indian lands must be included in an approved tribal-State
    compact, which is reviewed and approved by the Secretary as
    required by the Indian Gaming Regulatory Act.
        Second, the Department is concerned about the precedent
    this legislation may set regarding the circumvention of the
    Indian Gaming Regulatory Act [IGRA]. By authorizing this
    settlement, Congress could be setting a statutory standard for
    the payment of class III gaming fees that a tribe may pay to
    the State and this could also create a dangerous opening for
    other parties who may wish to access Congress for legislative
    approval of gaming agreements in the future.
        By the terms of S. 2986, the settlement agreement executed
    by the State of Michigan and the Bay Mills Indian Community are
    incorporated into the act. The provisions of this agreement
    include the requirement that the community pay 8 percent of net
    win profits to an economic development corporation created by
    the State in exchange for a limited geographic exclusivity. If
    enacted, S. 2986 would create a threshold payment that could
    become the minimum for any tribe who enters into negotiations
    for the operation of class III gaming in the State of Michigan,
    and could serve as the minimum amount any State would feel
    justified asking for in any compact negotiation.
        Passage of this settlement agreement could also create an
    incentive for parties wishing to circumvent the Federal review
    process to approach Congress for legislative approval of gaming
    agreements. That is, parties who feel their agreement may not
    find favor or may not be approved by the Department would be
    more likely to approach Congress for a legislative solution or
    ratification of their agreement.
        Finally, S. 2986 directs the Secretary of the Interior to
    place land described in the legislation into trust within 30
    days of receipt of the title insurance. This would limit or
    entirely preclude the Department from making other reviews,
    including environmental reviews and consultation with State and
    local entities that are currently conducted pursuant to
    regulations governing the fee to trust process.
        In closing, I would like to commend the efforts of the
    parties here to reach agreement on such serious and oftentimes
    contentious issues. However, the Department is unable to
    support this legislation at this time.
        Again, I would like to thank the committee for the
    opportunity to testify and ask that my written statement be
    entered into the record. I would be happy to answer any
    questions.
        [Prepared statement of Ms. Martin appears in appendix.]
        The Chairman. I thank you very much, Secretary.
        You have indicated that the Department cannot support this
    measure at this time. Does that mean that if certain amendments
    are incorporated, such as requiring a compact between the
    government of the State and the government of the tribe,
    pursuant to the Indian Gaming Regulatory Act [IGRA], and if the
    appropriate actions are taken to take lands in trust pursuant
    to the law--would that satisfy the Department?
        Ms. Martin. I believe that those would address the bulk of
    our concerns, but we have not completed our review of the bill
    and the underlying settlement agreement, so I cannot tell you
    for sure that we would then change our position.
        The Chairman. If the amendment addresses the Department's
    remaining concerns, would that suffice?
        Ms. Martin. If the amendment would also address all other
    concerns we had?
        The Chairman. In other words, would it be the policy of the
    U.S. Government to try to help Native Americans in settling
    claims?
        Ms. Martin. Yes; that is our policy.
        The Chairman. And if such settlement can be achieved
    through legislation, would you favor that?
        Ms. Martin. Yes; we would.
        The Chairman. And if this measure meets all of the
    statutory requirements that you have set forth, would that
    suffice?
        Ms. Martin. I believe that it would, and we would be happy
    to work with the parties to resolve those issues.
        The Chairman. And therefore, in your view, with such
    amendments, this measure would not set any dangerous precedent?
        Ms. Martin. I think that if our concerns regarding the
    Indian Gaming Regulatory Act and the need for agreements which
    address the conduct of class III operations were addressed,
    that that would alleviate our concerns.
        The Chairman. With those changes, should the Federal
    Government be a party to the settlement agreement?
        Ms. Martin. Generally speaking, I believe that the
    Department would prefer that tribes and States come to
    agreement on their own. But in the case of land settlements, I
    think it is necessary for the Federal Government to be
    involved, and also in the case of agreements which govern the
    conduct of class III gaming.
        The Chairman. Will this settlement agreement, as amended as
    you have suggested, resolve all tribal claims to land in the
    Charlotte Beach area?
        Ms. Martin. I do not believe so. My understanding is that
    the Sault Ste. Marie Tribe also has a claim to those same lands
    and this settlement agreement does not address those claims.
        The Chairman. If the Sault Ste. Marie Tribe came forth and
    was able to achieve the same type of agreement with the
    government of Michigan, would you support it?
        Ms. Martin. Well, we would be generally supportive. It is
    our policy to try to assist tribes and States in coming to land
    settlements.
        The Chairman. Do you happen to have suggested language for
    amendments?
        Ms. Martin. Unfortunately, I do not have suggested language
    for amendments. We are in the preliminary stages of that
    review, but we would be happy to work with the parties to
    create such language.
        The Chairman. Some of the witnesses that will follow your
    presentation will raise concerns about the policy of an Indian
    Tribe conducting gaming on lands acquired in a land settlement,
    but located over 250 miles away from the tribe's traditional
    lands. Is there a policy on such a matter?
        Ms. Martin. The Administration does not have a specific
    policy regarding the distance a gaming establishment may be
    located from a reservation, although the Indian Gaming
    Regulatory Act does allow for that under section 20. I think
    the most analogous situation is in regard to the restoration of
    lands or to an initial reservation created for a newly
    acknowledged tribe or federally acknowledged tribe. I think
    that the furthest distance that we have approved for gaming for
    restored or initial reservation has been less than 25 miles
    from their aboriginal lands of the group that is involved. As
    for a set policy or whether we have a specific distance that we
    would say that is too far away from your aboriginal lands, you
    cannot conduct gaming, we do not have a set policy on how we
    would do that.
        The Chairman. Assuming that this measure with the
    appropriate changes is adopted by the Congress and signed by
    the President, should amendments to this agreement be subject
    to approval of the U.S. Government?
        Ms. Martin. To the extent that they might affect the land
    settlement or the conduct of Class III gaming, yes I believe
    that they should.
        The Chairman. Well, I thank you very much, Madam Secretary.
    I have one more question. Will the enactment of this bill
    compromise your legal position if the Sault Ste. Marie Tribe
    decides to bring a claim in the Federal Court against the
    United States?
        Ms. Martin. I cannot say for sure that it would. My
    understanding is that the United States has not certified the
    claim on behalf of the Bay Mills Indian Community, nor has the
    Sault Ste. Marie Tribe sought to pursue the land claim, so that
    has not been certified as well. But I think a congressional
    approval of this land claim settlement would provide evidence
    that the claim is indeed valid and could affect our legal
    position with regard to that claim.
        The Chairman. Have there been other instances in which
    Indian Tribes have been able to acquire land after October 17,
    1988, and use the land for gaming under the land settlement
    exception of the IGRA?
        Ms. Martin. I cannot say for sure, but I do believe that
    prior to my tenure at the Department, the exception was used on
    one occasion in the late 1990's. I think that may have occurred
    in the State of Michigan as well.
        The Chairman. So in your mind, this is a precedent.
        Ms. Martin. There is one other time that that exception has
    been used, yes.
        The Chairman. Ms. Martin, I thank you very much.
        Ms. Martin. Thank you.
        The Chairman. And now may I call upon the president of the
    executive council of the Bay Mills Indian Community of
    Michigan, L. John Lufkins, and the Deputy Legal Counsel to
    Governor John Engler, Lance Boldrey.

    STATEMENT OF L. JOHN LUFKINS, PRESIDENT, EXECUTIVE COUNCIL, BAY
                   MILLS INDIAN COMMUNITY OF MICHIGAN

        Mr. Lufkins. Good morning, Mr. Chairman.
        The Chairman. Mr. President.
        Mr. Lufkins. My name is John Lufkins and I serve as the
    elected president of the executive council of the Bay Mills
    Indian Community.
        I want to thank you, Mr. Chairman and members of the
    committee, for allowing me the opportunity to testify here
    today on S. 2986. I ask that you include my entire written
    statement in the record, along with other materials that the
    tribe has prepared for the committee.
        The Chairman. Without objection, so ordered. We will make
    them part of the record.
        Mr. Lufkins. Thank you, Mr. Chairman.
        Our tribe is one of four original tribes in Michigan that
    has maintained a government-to-government relationship with the
    United States since treaty times. This legislation is the final
    step in redressing a great wrong done to our ancestors over 100
    years ago. Our tribe is very grateful to Senator Stabenow and
    to Representatives David Bonior and Don Young for sponsoring
    bills to settle the tribal land claims. We also want to thank
    our Congressman Bart Stupak for his unwavering support over the
    years to resolve this issue.
        To give you some history, in 1855 a treaty with the United
    States set aside lands for our Tribe in what was then known at
    the Hay Lake Reserve. That area is now referred to as Charlotte
    Beach. However, just before the land was to be set aside by the
    United States, it was purchased by two non-Indians in violation
    of the treaty. To recover the lands, the tribe's annuities
    under the treaty were used to repurchase the land. No longer
    trusting the United States, the chiefs decided to convey the
    property to the State of Michigan to hold in trust for the
    tribe. That decision was wrong because the property was sold 20
    years later for unpaid taxes. There was disbelief among our
    ancestors that the State of Michigan was no more able to
    protect our lands from alienation than the United States had
    been.
        Repeated complaints made by our ancestors to the United
    States Indian agents went unanswered. Over the next 90 years,
    my people did not forget this wrong. Unfortunately, we had no
    idea how to make it right. Our resources went to ensure our
    physical survival and to protect the remaining lands that we
    had. Like many tribes during the Claims Commission era, we
    focused on the accounting claims and eventually received
    damages, but not until legislation was enacted in 1997 to give
    a divisional split. I might add that Bay Mills was the only
    tribe in Michigan under the Treaty of 1855, was the only
    recognized tribe that had an ongoing government-to-government
    relationship. And so the claim was filed on behalf of Bay Mills
    and the descendants of the treaty.
        Our tribe has also engaged over the years in pursuing its
    treaty fishing rights. The original case is now known as United
    States v. Michigan. Again, Bay Mills was the leader in that
    fight to restore our treaty rights.
        Because of these battles, our tribe was unable to focus
    resources on the return of the Charlotte Beach lands until
    recently. However, our people have never forgotten the loss of
    these lands and we filed a claim in 1980 under the section 2415
    process at that time. The United States declined to assist the
    tribe because when the land was lost, the State held it in
    trust, not the United States. This, in fact, is why we are here
    today. Our Federal case was dismissed in 2000. Again, we lost
    on technical grounds. We never had a chance to argue the merits
    of our claim because the Sault Ste. Marie Tribe, only
    recognized by the United States in 1975, never attempted to
    participate in the case. The tribe refused to waive sovereign
    immunity to be named as plaintiff. Instead, it assisted the
    landowners in their fight to have the case dismissed for
    failure to join as an indispensable party.
        This effort was successful and the cloud remains on the
    landowners' title. As I am sure you will agree, this is a
    frustrating history. With this in mind, I ask your support for
    S. 2986. This legislation ratifies the settlement that the
    Tribe has reached with the State. It releases the recorded Bay
    Mills claim to the Charlotte Beach property by having Congress
    extinguish the claim. By ratifying this settlement, it will
    provide the tribe with alternative property that will be a
    substitute for the former Hay Lake Reserve, now known as
    Charlotte Beach.
        The alternate land located in Port Huron, MI will be placed
    in trust by the Secretary for the benefit of Bay Mills and will
    be treated as land which should have been in trust for the
    tribe all along. The land will be used for gaming. The location
    of Port Huron was agreed to by the people, the State and the
    people of the tribe, the State and the people of Port Huron who
    voted, as Congressman Bonior said, in a referendum. The tribe
    agrees in the settlement to limit class III gaming to two
    facilities at its present reservation location and to one
    facility in the alternate land in Port Huron.
        The economic benefits to the tribe and the local community
    will be substantial and very important to our self-
    determination and sovereignty goals. The settlement does not
    affect any other tribe. While there may be some competitive
    issues, they are not new to Michigan and not a violation of any
    law, Federal or State.
        The settlement expressly incorporates the IGRA exemption
    that lands taken into trust and settlement of the land claim
    are exempt from the ban on gaming on lands acquired off-
    reservation after 1988.
        Bay Mills is the first Indian tribe to secure settlement of
    its land claim since the Act was adopted, and thus we are the
    first to fall within the terms of the exception. The exception
    is there for a reason, and we are following the roadmap
    established by Congress.
        We would also like to express our sincere thanks to the
    Governor of Michigan, John Engler, for his help in achieving
    this creative resolution to the longstanding land claims.
    Without his able-bodied support, we would not have gotten as
    far as we have. The settlement reflects the mutual recognition
    of the importance of working cooperatively to eliminate old
    grievances and to develop mutually beneficial solutions. I am
    proud to have signed the settlement of the land claim on behalf
    of the Bay Mills Indian Community. I am not boasting when I say
    that this agreement should be applauded by the Federal
    Government as an example of what can be achieved when a State
    and an Indian tribe work together to devise resolutions to
    disputes that will benefit all citizens, both the State and of
    the tribe. In fact, I sincerely hope that our settlement will
    be used as a precedent, furthering tribes with legitimate land
    claims to bring their issues to the table for resolution. We
    can achieve more at the table than in all the courts of the
    land.
        Again, I respectfully ask each member of the committee and
    of the Senate to vote yes on S. 2986. This will end the
    controversy that has brought pain to my people and uncertainty
    to the people who live at Charlotte Beach. My people have
    waited patiently, but with confidence that this wrong would be
    made right.
        I thank you for allowing me to testify and I will be glad
    to answer any questions, or try to answer any questions you may
    have.
        [Prepared statement of Mr. Lufkins appears in appendix.]
        The Chairman. I thank you very much, Mr. President.
        Has any Federal or State court ever ruled that your
    community does not have a valid potential claim over the
    Charlotte Beach area?
        Mr. Lufkins. There has been no court that has made any
    ruling other than the claim is being dismissed on technical
    grounds.
        The Chairman. So no court has ever ruled that you do not
    have a claim?
        Mr. Lufkins. They have never ruled that we do not have a
    claim. As a matter of fact, during the 2415 process, I was the
    administrative officer for the Bureau of Indian Affairs of the
    Michigan Agency when Bay Mills brought this claim. When we took
    it to the solicitor, the solicitor reviewed it and of course
    they said the land was in trust by the State; your argument is
    with the State; take it up with the State. It took us a long
    time from that point to get to this point, where we found a
    Governor who was willing to recognize the claim and negotiate a
    settlement with us.
        The Chairman. As other witnesses have testified, this
    alternative site is not within your traditional tribal area.
        Mr. Lufkins. That is true. It is outside our geographical
    boundaries.
        The Chairman. Section 9 of the tribal-State gaming compact
    requires that gaming revenues from a casino facility on newly
    acquired land be shared amongst all of the Indian Tribes in
    Michigan. Would the settlement alter the terms of the tribal-
    State gaming compact and render this provision unenforceable?
        Mr. Lufkins. No, sir; I do not believe it would.
        The Chairman. You were here when the deputy assistant
    secretary testified. I asked questions as to whether she would
    change her position if certain amendments were made to the bill
    before us. Do you have any thoughts on those amendments?
        Mr. Lufkins. I had listened to your questions to the deputy
    assistant secretary, and while I do not agree with all of her
    answers, we are prepared to offer some amendments. As a matter
    of fact, Mr. Boldrey, along with our legal staff, prepared some
    amendments to be introduced in his testimony.
        The Chairman. Because it was this committee, that drafted
    the IGRA, we are bound to make certain that the provisions of
    that statute are upheld.
        May I now call upon Mr. Boldrey.

     STATEMENT OF LANCE BOLDREY, DEPUTY LEGAL COUNSEL TO GOVERNOR
                        JOHN ENGLER OF MICHIGAN

        Mr. Boldrey. Thank you, Mr. Chairman, for inviting me to
    testify today.
        My name is Lance Boldrey and I am here on behalf of
    Governor John Engler, who sends his regards to this committee
    and his sincere thanks for moving forward with the hearing on
    this bill. Governor Engler also sends his thanks to Senator
    Stabenow and to Congressmen Bonior and Stupak for their
    tireless efforts on this matter.
        We are here today to ask your approval of a settlement
    between Michigan and the Bay Mills Indian Community of a
    longstanding land claim. As you have already heard today, by
    passing S. 2986, you will send a message that this committee
    and the Congress encourage cooperation between States and
    tribes. You will also be providing clear title to innocent
    homeowners and economic opportunity to a depressed community.
        The history that led to the Community's claim to land in
    the Charlotte Beach area has been thoroughly explained by
    President Lufkins. Litigation of the claim began in 1996 when
    the Community filed suit in Federal and State court. The
    Community's attempts at judicial resolution failed when the
    State suit was dismissed as untimely and the Federal suit was
    dismissed on the grounds that the Sault Ste. Marie Tribe of
    Chippewa Indians was a necessary party and the suit could not
    proceed in their absence.
        In making that ruling, it is important to recognize that
    the district court did not declare the relative interests of
    the Sault Tribe and the Bay Mills Indian Community, but found
    only that the Sault Tribe had a claim that in the words of the
    court was, ``not patently frivolous.'' The Sixth Circuit Court
    of Appeals subsequently affirmed this decision, finding that
    the Sault Tribe has a potential claim.
        At the end of the day, no court has ever addressed the full
    substance of the Community's land claim. Today, the families
    who own land in the area known as Charlotte Beach have a cloud
    on their title and are unable to obtain title insurance or
    mortgages, leading the local township to reduce property
    assessments by 90 percent. Given sovereign immunity of the
    tribes, the landowners cannot sue to clear title, leaving
    congressional action as the only means to resolve claims that
    are having a real impact on the lives of innocent landowners.
        For the past several years, the Community has worked with
    local communities and the State in an attempt to settle its
    claims. Prior efforts have failed because of impacts they would
    have had on other tribes. Today, though, we ask you to ratify a
    settlement that resolves the land claim in exchange for
    alternative land in an area that welcomes the Bay Mills Indian
    Community with open arms and in a manner that has no impact on
    the interests of other tribes.
        The bill would extinguish the Community's land claims,
    direct alternative land in Port Huron be taken in trust for the
    community, and effectuate the settlement agreement between the
    Community and the Governor.
        Two aspects of the bill merit further discussion and have
    been raised in questions this morning. First, its effects on
    the title of the Charlotte Beach property owners, and second,
    the prospect of a casino in Port Huron. First, the bill would
    lift the cloud on the titles of the Charlotte Beach homeowners.
    Some have claimed that this cloud cannot truly be lifted absent
    a settlement involving the Sault Tribe. However, while the
    Sault Tribe has asserted that it has a potential claim to the
    Charlotte Beach property, the simple fact is that no such claim
    has ever been brought. Only the Bay Mills Indian Community has
    a recorded challenge causing a cloud on title, and the bill
    would lift that cloud.
        Again, the Federal Courts have not decreed that the Sault
    Tribe has a viable claim or adjudicated the relative interests
    of the Sault Tribe and the Bay Mills Indian Community. Despite
    this, the State is willing to enter into a settlement agreement
    with the Sault Tribe if it now does assert a claim. State and
    tribal representatives have been talking about the potential
    for settlement and I am optimistic and hopeful that we will
    resolve our differences. Of course, the State does believe that
    any settlement must fit the general parameters of the
    Community's settlement, and any resulting gaming location must
    be in an area where it is welcomed by local residents and where
    it does not have an impact on another tribe's gaming
    operations.
        As the State continues to discuss settlement with the Sault
    Tribe, however, this bill should not come to a halt. The Bay
    Mills Indian Community has expended considerable effort and
    years of effort in working with local officials to garner
    support for this settlement, and those efforts should not be
    jeopardized.
        Second, in addition to clearing the property titles of the
    families who call Charlotte Beach home, the bill will provide
    economic opportunity to a depressed community. Congressman
    Bonior's testimony amply covered the benefits for the city of
    Port Huron, so I would now like to turn my attention to briefly
    address criticism of the bill which is based on one valid
    argument and several faulty ones.
        The valid complaint is that the settlement agreement by its
    terms could be amended without the involvement of Congress.
    This was a drafting oversight and we suggest that the bill be
    amended to fix this by inserting language into the bill stating
    that the sentence in the settlement agreement allowing
    amendments without the involvement of Congress or any other
    party be deleted in its entirety.
        I would now like to address some of the other arguments you
    have heard this morning. The first is that the bill would set a
    precedent for the use of the exception to IGRA's general
    prohibition on gaming on land acquired in trust after 1988, and
    that the land claim exception is not available here. The IGRA
    exception we are talking about states nothing more than that
    gaming can be conducted on lands acquired after 1988 if,
    ``lands are taken into trust as part of the settlement of a
    land claim.'' That is the entirety of the provision. While it
    is true that no tribe currently operates a gaming facility on
    land taken in trust in settlement of a land claim, the clear
    and unambiguous language of IGRA authorizes such an operation.
    Nothing in IGRA suggests that the land claim exception should
    be artificially limited, nor would this be in keeping with the
    longstanding principle that statutes dealing with tribes be
    interpreted in their favor.
        Furthermore, since 1988, there have in fact been five
    congressional acts directing that land be taken into trust for
    various tribes to settle tribal land claims. While casino
    facilities may not be operating on those lands today, under the
    terms of IGRA those lands are eligible for casinos. Also, it
    must be noted that the argument that you will hear later today
    that the section 2719 exceptions and the land claim exception
    should be construed narrowly was in fact advanced by the State
    of Michigan in recent litigation in the case of Grand Traverse
    Band of Ottawa and Chippewa Indians v. United States Attorney
    in the State of Michigan. The argument for a narrow
    interpretation of various exceptions was flatly rejected by
    that court. That court also specifically addressed the land
    claim exception describing it as, ``unequivocal and
    unrestricted.''
        Turning to the distance argument that has been made today,
    there is no requirement that land be taken in trust in
    settlement of a land claim only in the immediate vicinity of a
    tribe's existing reservation. Indeed, the exception is an
    exception to the general rule that gaming be within or
    contiguous to 1988 reservation lands. While opponents later
    today will cite a number of cases and statutes for their claim
    that a distance limitation should be engrafted onto IGRA's land
    claim exception, those cases and statutes are utterly
    irrelevant to the question at hand. Virtually all of them deal
    with the restored lands exception, a different exception within
    IGRA that by definition must encompass land previously held by
    the tribe.
        The simple fact is, there is not one single case or one
    word of text in either IGRA or the Indian Reorganization Act
    that supports finding some unexpressed geographic limitation in
    IGRA's land claim exception.
        Finally, I would like to respond to the technical
    objections that were leveled against the bill by the Department
    of the Interior and that have also been voiced by some other
    opponents. It has been claimed that the settlement agreement
    somehow circumvents the Secretary's or the State legislature's
    role in approving compacts. This is simply untrue. Nothing in
    the settlement agreement amends the compact in any way. No
    provisions of the settlement agreement regulate the community's
    gaming activities. Sections in the agreement providing for
    revenue payments in exchange for limited exclusivity in the
    tribe's right to operate electronic gaming do not alter the
    compact which does not itself even include any such revenue
    provisions.
        In the past, prior revenue sharing provisions between the
    State of Michigan and the Bay Mills Indian Community, as well
    as the State and six other tribes, were entered by a Federal
    court in a consent decree without Interior's involvement. That
    court found those provisions agreeable. Our State Court of
    Appeals later held that these provisions were a conditional
    gift, not required to be in a compact and not required to
    involve in any way the State legislature. Most importantly, in
    2001, just last year, the State of Michigan and the Keweenaw
    Bay Indian Community entered into a Federal consent decree
    involving a casino the State contended was operating illegally.
    That decree contained the exact same provisions found in the
    agreement between the Bay Mills Indian Community and the State
    of Michigan. When the Department of Interior argued to the
    Federal court that these were compact-like provisions requiring
    the Secretary's concurrence, the Federal court ruled that those
    objections were without merit. Thus, this argument that
    Interior raises has been disposed of by the courts not once,
    not twice, but three separate times.
        Second, you raised a moment ago the issue that some
    opponents have claimed that the settlement agreement nullifies
    the rights of other tribes found in section nine of their
    compacts. Section nine of Michigan State gaming compacts is an
    intertribal revenue sharing provision insisted upon by the
    State as a disincentive to applications to have the Secretary
    take off-reservation lands into trust for gaming purposes. It
    is aimed squarely at a different exception in Section 20 of
    IGRA than the exception permitting gaming on land taken into
    trust in settlement of a land claim. The conclusion that this
    section is inapplicable in this situation is bolstered by the
    only legal analysis performed by a disinterested party, a 1995
    memorandum of the Department of Interior concluding that this
    compact section is triggered only when a tribe makes
    application to the secretary to have land taken into trust
    pursuant to the best interest determination exception.
        Last, I would like to address the objection raised by the
    Department of the Interior with respect to the 30-day
    requirement for the Department of the Interior to take land
    into trust. This is a mandatory acquisition that Congress would
    be directing, so it does not follow the ordinary course of
    affairs as a discretionary acquisition under the IRA. This in
    essence is no different than the acquisition process currently
    followed and mandated by the Congress for acquisitions
    involving other tribes in Michigan, the Little Traverse Bay
    Bands and the Little River Band.
        In conclusion, I hope the committee will defer to the
    State's negotiated choice of location for alternative lands and
    respect an agreement that was reached only after difficult and
    lengthy negotiations between two sovereign governments. To
    those who criticize the bill on the grounds that it creates a
    precedent for the use of IGRA's land claim exception, it should
    be said that any precedent here is wholly positive. Congress
    would be approving a land claim that was a settlement
    negotiated by a State and tribe, where the alternative lands
    are identified, where there is local support for gaming in an
    existing market, where it is in the area of the State that
    would have the least possible impact on other tribal gaming
    operations, and where the agreement requires congressional
    approval.
        It is no wonder then that a majority of Michigan tribes
    either support or are silent on this bill, and I urge you to
    support this bill, too, sending a message to States and tribes
    to resolve their disputes through reasoned and principled
    negotiation, rather than simply resorting to the courtroom.
        Thank you again for the opportunity to testify, and I would
    ask that my written testimony be entered into the record. I am
    happy to respond to any questions you might have.
        [Prepared statement of Mr. Boldrey appears in appendix.]
        The Chairman. Your statement will be made part of the
    record.
         This measure, simply put, would ask the Government of the
    United States, Congress, and the President, to ratify an
    agreement that was reached by the Governor and the Bay Mills
    Community. Is that correct?
        Mr. Boldrey. That is correct.
        The Chairman. And in that agreement, if this ratification
    is forthcoming, would it mean that the community can begin
    operating a casino?
        Mr. Boldrey. As soon as the land is taken into trust under
    the existing language of IGRA, that is correct.
        The Chairman. Even without the usual processes requires by
    the act?
        Mr. Boldrey. That investigatory process has already taken
    place, by Interior and by the National Indian Gaming
    Commission. The Tribe currently operates two gaming facilities
    in Michigan, has already been authorized to operate those
    facilities and does so pursuant to an existing compact that is
    in the Federal Register.
        The Chairman. Does the tribe operate a casino now?
        Mr. Lufkins. We operate two casinos, sir.
        The Chairman. But not on the alternative land?
        Mr. Lufkins. Not on the alternative land, no sir.
        The Chairman. So this is a separate casino?
        Mr. Lufkins. A separate casino.
        The Chairman. And you do not think that this should be
    subject to the laws of the United States?
        Mr. Boldrey. This is entirely subject to the laws of the
    United States. It would operate under the existing compact.
        The Chairman. Then if a provision is placed in this bill
    saying that it will be subject to the laws, you will not object
    to that?
        Mr. Boldrey. Not at all.
        The Chairman. Would you object to the Department and the
    Congress having the right to approve any changes to the
    settlement agreement?
        Mr. Boldrey. Absolutely. That is precisely what we propose
    amending the bill to do.
        The Chairman. And would you concur with the responses made
    by the deputy assistant secretary to other questions?
        Mr. Boldrey. I do have a difficulty with some of the other
    questions or responses she made. One concern is that inserting
    the Department of the Interior into essentially the settlement
    agreement itself I think is inappropriate in this case because
    the Department here has declined to prosecute this claim,
    despite repeated requests by the Bay Mills Indian Community. I
    think the agreement should stand as it has been negotiated
    between the two parties that have signed it.
        The Chairman. Just as a matter of curiosity, I believe I
    know the answer, is it true that the State of Michigan has no
    liability for this claim, but you have initiated the
    settlement. Why so?
        Mr. Boldrey. That is correct. At this point, the State has
    no liability because the tribe's claims against the State were
    extinguished in State court because they were untimely filed.
    However, the landowners and the citizens of the State still
    feel a very real impact from this, and the State feels some
    peripheral impact from this as well because the State also is a
    landowner in the Charlotte Beach area so the State currently if
    we were to try to dispose of those lands, I think we would
    probably have difficulty finding a buyer.
        The Chairman. As you may be aware, this committee completed
    its business a few weeks ago, but in order to accommodate the
    request made by the Senate delegation from the State of
    Michigan, we reopened our agenda to consider this measure. And
    as a result, time is of the essence. The Senate may be
    ajourning 1 week from today. The debate on Iraq is now going
    on. Would you be willing to sit with the deputy assistant
    secretary and work out a few amendments?
        Mr. Boldrey. Absolutely.
        The Chairman. Because if the Department is opposed to it,
    we have almost no choice here.
        Mr. Boldrey. We appreciate that and we are certainly
    willing to work through this.
        The Chairman. I would suggest that you have lunch with her
    right away. [Laughter.]
        Mr. Boldrey. Thank you, Mr. Chairman.
        The Chairman. You have a free lunch coming.
        I have just one question, Mr. Boldrey. I forgot to ask
    this. This is an agreement between the State of Michigan
    Michigan and the tribe.
        Mr. Boldrey. Between the Governor and the tribe, correct.
        The Chairman. Why did you not have the Federal Government
    involved in it?
        Mr. Boldrey. Again, the Federal Government was asked
    numerous times to become involved in this and declined. They
    were asked by the tribe beginning in 1980 to become involved
    and to prosecute the claim. In the late 1980's and early
    1990's, when this claim was really beginning to become a
    current issue, it was raised to members of our congressional
    delegation at that time and the State attempted to get the
    Federal Government involved, and the Federal Government
    declined.
        Mr. Lufkins. And also, sir, if I may add, title to any
    Indian lands has to be cleared by Congress.
        The Chairman. It appears from testimony that the Sault Ste.
    Marie Tribe may very well have a valid claim to the Charlotte
    Beach lands. Now, if that claim is asserted you have indicated
    that the Governor of the State of Michigan would be very happy
    to once again involve himself in bringing about a settlement.
    Having heard the testimony and the questions asked, how do you
    think you would bring about this agreement? In the same way, or
    with changes?
        Mr. Boldrey. I think we would have to go back, frankly, and
    take a look at the concerns we have heard raised today and make
    sure that those are addressed. I think the format that we have
    followed with the Bay Mills Indian Community would be the same
    format we would follow with the Sault Ste. Marie Tribe. That
    has certainly been our contemplation.
        The Chairman. And so I hope you two get together right
    away.
        With that, I thank you very much.
        Mr. Lufkins. Thank you, Mr. Chairman.
        Mr. Boldrey. Thank you.
        The Chairman. And now may I call upon the chairman of the
    Sault Ste. Marie Tribe of Chippewa Indians of Michigan, Bernard
    Bouschor, and the tribal councilor and former chair of the
    Grand Traverse Band of Ottawa and Chippewa Indians, George
    Bennett.
        Gentlemen, welcome.
        Mr. Chairman.

    STATEMENT OF BERNARD BOUSCHOR, CHAIRMAN, SAULT STE. MARIE TRIBE
                    OF CHIPPEWA INDIANS OF MICHIGAN

        Mr. Bouschor. It is a pleasure to see you once again,
    Senator. When you mentioned the Indian Game Regulatory Act,
    prior to enactment we were quite actively involved with the
    development of that particular act that Congress ultimately
    approved. And we do appreciate your guiding hand in getting
    that process completed.
        What we found over the time of the development of the act
    itself and our own particular efforts in trying to get a casino
    in an area such as Detroit, we were one of the few communities
    that were able to achieve the process of getting it approved
    through the Indian Gaming Regulatory Act process, with the
    Governor's approval, almost to the point where the Governor
    would sign it, but he choose not to at the very last. He set up
    a commercial gaming operation within the State of Michigan,
    which I think at this point would have been a more appropriate
    vehicle to attempt to acquire a casino in the Port Huron area.
        Obviously, it is our belief that it does not comply with
    the Indian Gaming Regulatory Act requirements. The Senate bill,
    we are opposed to it under the present format. We are opposed
    to the settlement agreement. This does not alleviate the issue
    of the Charlotte Beach landowners. We have provided you written
    testimony from ourselves. We have also provided some testimony
    from the Charlotte Beach attorney that would indicate that
    they, too, are opposed to the bill itself because it does not
    clear up the title. It is an opportunity that I think Bay Mills
    was looking for an economic benefit, and thought that Port
    Huron would be a way to do that. We can understand and respect
    each tribal group's view and opinion.
        We believe that Bay Mills has contrary--we are not
    attorneys, I am not an attorney--I have been chairman now for
    close to 17 years, and have been involved with tribal
    government for most of my adult life. As a result of that, I
    have seen many things that have occurred within Indian Country.
    I do recognize the sovereignty of each of us to agree or
    disagree, either on Federal legislation or in some cases how
    tribes view what other tribes are doing.
        The reference in saying that it does not have an impact on
    other tribes we disagree with. We have developed a commercial
    casino within the Detroit area, which is a large metropolitan
    area, and that was built and open in November 2000. We are
    going through a process of looking at building a permanent
    facility. Obviously, with the development of other casinos in
    the area, it does put us at a disadvantage. The commercial
    casino that we built within the State of Michigan is heavily
    taxed, per the Michigan Gaming Regulatory Act, which we knew
    when we enter in it, that would be the requirement. The issues
    related to the particular agreement and settlement of land
    claims, and as a vehicle in trying to enter this bill, I think
    tries to find the exception within the Indian Gaming Regulatory
    Act, but yet there is no lawsuit that exists at this time that
    would have the vehicle to support this.
        So really what it is is a legislative act in Congress
    attempting to afford the opportunity to the Bay Mills Indian
    Community to open a casino in Port Huron under the Indian
    Gaming Regulatory Act that should be more appropriately decided
    by the State of Michigan legislative bodies to determine if
    they want to amend the Michigan Gaming Regulatory Act would be
    more appropriate, in my view.
        Again, not an attorney. I have been involved for a number
    of years with my distinguished gentleman to my left, George
    Bennett, and former chairman of the Grand Traverse Band
    Community. We feel that the effort to promote this in this
    fashion is not appropriate. We are objecting to it. We have
    provided you testimony. A lot of statements were made here from
    the Senators which I respect--Senator Stabenow, the reference
    to the Governor. The Governor has been actually good for
    Michigan, good for the tribes in developing gaming
    opportunities and we appreciate that; and good for generally
    the State of Michigan at this point. But in this case, we
    disagree with how this bill is being rushed through Congress.
    We believe that it should be reviewed extensively, affording us
    the opportunity to delve into a lot of the other testimony that
    has been provided so we can add more information to provide to
    you, Senator, and the committee as to our view on this
    particular matter.
        I might point out that Charlotte Beach, which is a
    community next to Sault Ste. Marie, which is our home
    community, and Bay Mills Indian Community have a join ancestry.
    The Charlotte Beach and the landowners that reside in the area,
    many of which are our own community members put us in a
    somewhat difficult situation when the title issue kept cropping
    up, as to do we try to litigate or fight the issue in
    relationship to Bay Mills' efforts to look at reason to settle
    that particular claim. As Mr. Lufkins did indicate, we waded in
    on the sign of the landowners in that particular case because
    we felt it was inappropriate for the community to go after this
    particular site. We knew the claim for over 50 years. We chose
    not to act upon it, because we knew the impact that it would
    have on our existing community members who resided in the area.
        It is unfortunate that it did have some impact as to the
    title insurance and value of the land, but we continue to
    support Charlotte Beach landowners. They continue to support
    and are opposed to this bill as it is presented because it does
    not solve their problem. That is the opinion that we have.
    Obviously, if the State is desirous to work with us, we will
    attempt to resolve that issue with them.
        Thank you.
        [Prepared statement of Mr. Bouschor appears in appendix.]
        The Chairman. I thank you very much. Before I ask any
    questions, may I recognize the former chair, George Bennett.

    STATEMENT OF GEORGE BENNETT, TRIBAL COUNCILOR AND FORMER CHAIR,
    GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, ACCOMPANIED
      BY MATTHEW FLETCHER, ESQUIRE, STAFF ATTORNEY, GRAN TRAVERSE
                  BAND OF OTTAWA AND CHIPPEWA INDIANS

        Mr. Bennett. Thank you, Mr. Chairman.
        My name is George E. Bennett. I am a graduate of Antioch
    University with a major in public policy. In addition to that,
    I cochair the International Advisory Council for Native Nations
    Institute at the Udall Center for Public Policy at the
    University of Arizona at Tucson, AZ.
        My Indian name is Nii-gott Ma-Gezzi, which means ``Leading
    Eagle.'' I am here as a tribal councilor and elected official
    of the Grand Traverse Band of Ottawa-Chippewa Indians. From
    1996 to the year 2000, I honorably served as the tribal
    chairman of our tribal council.
        We have come at the request of our tribal council to
    testify before the Senate Committee on Indian Affairs. Let me
    say, Mr. Chairman, megwetch, in our language, thank you for the
    honor of being before your committee today. We are honored to
    be here.
        With that, I would also like to introduce my friend and
    colleague, Matthew Fletcher, who is attorney-at-law who
    graduated from the University of Michigan law school. He does
    the drafting of our legislation and our testimony today, and I
    would like to give him that recognition. He is also a tribal
    member. It is a pleasure to see you again, my friend.
        Mr. Chairman, members of the committee, we wish to submit
    our written testimony for the record and in order to save time
    we would like to summarize our comments before the committee.
        The Chairman. Without objection, your full statement is
    made part of the record.
        Mr. Bennett. Thank you, Mr. Chairman.
        Mr. Chairman, it is somewhat with a heavy heart that we
    appear before the Senate Committee on Indian Affairs to state
    that our tribe opposes the enactment of S. 2986, titled the Bay
    Mills Indian Community Land Claim Settlement Act, as well as
    H.R. 5459, its companion bill in the House of Representatives.
        Mr. Chairman, although the Bay Mills Community and the
    Grand Traverse Band have worked together for years striving for
    sound and reasonable Federal policy, we cannot stand with our
    friends in this matter. S. 2986, if enacted, sets a dangerous
    and unhealthy precedent for Federal-Indian fee-to-trust policy.
    It would unnaturally expand exceptions to the general
    prohibition against Indian gaming under the Indian Gaming
    Regulatory Act for acquired lands after October 17, 1988, under
    the same law; and simply, we feel it is bad congressional
    policy.
        Mr. Chairman, we have not come to oppose our friends,
    rather, to support what we feel is right. We are not here to
    oppose Bay Mills' attempt to establish a land claim to the
    Charlotte Beach properties. We fully recognize that our friends
    have legitimate government concerns to meet the economic and
    social needs of its members. Mr. Chairman, we are here to point
    out that we oppose congressional legislation that coopts
    established and predictable Federal Indian policy that
    otherwise prohibits an Indian tribe from opening a gaming
    facility 257 miles from its home territory.
        We oppose the use of the settlement of an Indian land claim
    exception to IGRA's general prohibition against gaming on
    after-acquired lands where Federal liability was never
    established. We oppose the override of the geographic limits
    inherent in the Indian Reorganization Act fee-to-trust transfer
    statutes. Finally, we oppose the override of the geographic
    limits expressed in the Federal statutes creating the Bay Mills
    Indian Reservation.
        Mr. Chairman, we have come here to make some
    recommendations. First, we support a study commission by your
    Senate committee to study and determine the Secretary of the
    Interior's actual past practice regarding geographic and policy
    limits on fee-to-trust transfers. Secondly, we support a
    congressional waiver of sovereign immunity regarding
    indispensable parties to litigate where the Bay Mills Indian
    Community seeks to establish a valid land claim to the
    Charlotte Beach properties. Third, we support a requirement
    that Bay Mills request a formal opinion on these facts from the
    National Indian Gaming Commission on the application of the
    settlement of land claims exception to the general prohibition
    against gaming on after-acquired lands.
        With that, Mr. Chairman, I appreciate being here. It is
    good to see you. We hope you have a happy journey to South
    Korea.
        Thank you.
        [Prepared statement of Mr. Bennett appears in appendix.]
        The Chairman. I thank you very much, sir.
        If I may ask a question of the chairman of the Sault Ste.
    Marie Tribe. If your tribe is unable to resolve its claims to
    the Charlotte Beach lands, does the tribe intend to initiate a
    court action to resolve its claims?
        Mr. Bouschor. I would have to bring that back to the
    discussion of our Tribal Council. It is an item is near to us.
    A lot of the Community members do reside in that particular
    area. We have sought to protect the members in their ownership
    and their land values over time. The discussions of late that
    have started with the Governor may achieve that, but at this
    point in time we have to continue to express our opposition to
    this bill, because it does not meet the needs of the Charlotte
    Beach landowners.
        The Chairman. If the measure before us is amended as
    suggested by Deputy Assistant Secretary Martin, what would your
    position be?
        Mr. Bouschor. I am not quite sure what all the amendments
    meant, as you might be--you are the authority on the Indian
    Gaming Regulatory Act. The specifics that we are concerned
    about are under the existing format, as I would understand a
    settlement of a land claim, it has to resolve all of the land
    claims issues, not just part of it. If they were all resolved,
    then that would settle that issue at Charlotte Beach and also
    would settle our claim, which is in part Bay Mills' claims as
    well. So it has to be a joint solution to resolve that issue.
    If the State is willing to do that, it is something that could
    be discussed.
        The Chairman. So your claim must be part of this bill.
        Mr. Bouschor. I would think that would be a part of the
    possibility--no guarantees in that. I don't know.
        The Chairman. Mr. Bennett, you made a suggestion that the
    Congress waive the sovereign immunity of any indispensable
    parties to litigation where the Bay Mills Community seeks to
    establish a land claim. Are you suggesting that the Congress
    should waive the sovereign immunity of tribal governments
    without their consent?
        Mr. Bennett. I would have to refer to our attorney on that
    issue.
        Mr. Fletcher. Mr. Chairman?
        The Chairman. Please have a seat.
        Mr. Fletcher. Thank you.
        The Chairman. Will you identify yourself, sir?
        Mr. Fletcher. Certainly. My name is Matthew Fletcher. I am
    staff attorney with the Grand Traverse Band.
        It is my understanding that Congress has waived sovereign
    immunity on two separate occasions involving Band disputes and
    also their land-related disputes in situations like this, such
    as the Navajo-Hopi land dispute in the 1970's and also in the
    aftermath of the Arkansas Riverbed Supreme Court case.
        The Chairman. Without their consent?
        Mr. Fletcher. I am not sure if it was without their
    consent, but if the Sault Ste. Marie Tribe is willing to
    proceed with a land claim or become involved in this bill, then
    the waiver of sovereign immunity certainly would not be
    necessary at that point.
        The Chairman. Sovereignty is the most important aspect of
    the existence of Indian Nations here, and you are willing to
    give that up?
        Mr. Fletcher. No; absolutely not.
        The Chairman. If the Congress was to waive an Indian
    tribe's sovereign immunity for a specific court action, do you
    believe that we would be setting an unhealthy precedent for the
    instances when someone seeks to sue an Indian tribe, without
    the tribe's consent?
        Mr. Fletcher. I am sorry, Mr. Chairman. As we have noted
    before, Congress has waived sovereign immunity for Indian
    tribes in two other land-related disputes. But Congress has
    always had the plenary power to waive tribal sovereign immunity
    in many of the various situations, and it has done so, and
    certainly against the various tribes' consent. I mean, Federal
    Indian policy is replete with instances where the Federal
    Government waives a tribe's sovereign immunity one way or the
    other.
        The Chairman. Chairman Bouschor, since time is of the
    essence as I indicated and the Senate is not going to be in
    session too much longer, if anything is to occur on this
    measure, it will have to be approved by all parties, because if
    the Department of the Interior says no, I do not think this
    committee will be able to act. Would you be willing to sit with
    the Bay Mills people, the Interior people, and the both of you
    sit with that group to come forth with some resolution?
        Mr. Bouschor. I would be willing to do that.
        The Chairman. Because otherwise, we would be having nice
    discussions, and that is about it.
        Mr. Bouschor. That is correct.
        The Chairman. So the lunch is getting bigger, Ms. Martin.
    [Laughter.]
        In the testimony that was presented here, you suggested
    that Congress did not anticipate land approximately 250 miles
    from a reservation area being acquired in a settlement for
    purposes of gaming. Where do you find that intent, because I
    happen to have been the author of the IGRA and I believe I
    participated in just about every debate on this matter.
        Mr. Bouschor. Are you asking me?
        The Chairman. Yes.
        Mr. Bouschor. The reference we were looking at, we were
    looking at the existing treaty land--treaties in which Bay
    Mills participated as well as Grand Traverse Band, at an area
    that was originally cut across the State of Michigan and did
    not include Port Huron within the treaties that we signed with
    the U.S. Government. Although there is no specific reference to
    distance, it has been kind of the guidance from those on the
    Hill that whatever happens would have to stay within that
    existing treaty land. Obviously, there has been some variation
    from that as a result of this bill presentation that did not
    occur when we were dealing with Representative Stupak.
        The Chairman. Maybe I have been operating under a
    misconception, but at one time all of the lands of the United
    States were owned by Native Americans, approximately 550
    million acres. And by treaty, you ended up with 50 million
    acres of land. As a result, you will find Cherokees who lived
    in the Carolinas having been forced to move to Oklahoma--do
    they not have some claim in Carolina?
        Mr. Bouschor. My understanding of the treaties in the
    lands, the answer is yes, they would have a claim to Carolina.
        The Chairman. And so even if land is 1,000 miles away, if
    the claim is valid, is not that claim valid?
        Mr. Bouschor. If you can get the necessary support in order
    to develop some similar type of agreement with a governor,
    obviously that would be something that, and obviously with the
    delegation that is up here, they fashion some claim at
    settlement, that could be possible.
        The Chairman. Then you do not suggest that the bill is
    invalid because of distance?
        Mr. Bouschor. I do not believe that in itself is a reason
    to discount the bill itself. The opposition is more than that.
    It is not just distance. It is factor, and I believe that you
    have noticed in other cases, even with the Interior, the
    reference to distance of taking land in trust, declaring
    reservations, there has been more of an effort by the Interior
    to restrict a lot of our opportunities to acquire land, the
    purpose for the land, the development of the land, and the
    declaration of these kind of strange statuses that the
    Government has imposed on our communities throughout the United
    States.
        The Chairman. I have just been notified that we have
    another vote. Before I adjourn the hearing, may I suggest that
    all parties get together--I am saying this very seriously--to
    work out some sort of agreement. If you do have an agreement,
    have it delivered to Dr. Patricia Zell who is the chief counsel
    of the committee by Tuesday, noon, next Tuesday, because I
    think we are going to go out of session on Wednesday or
    Thursday. If we have an agreement that all parties can sign
    onto, then I will expedite and send it out. But if you cannot
    agree to that, I think we are spinning our wheels. Is that
    acceptable?
        Mr. Bouschor. Thank you for the direction. We will work on
    that.
        Mr. Bennett. Yes, Mr. Chairman.
        The Chairman. And so time is of the essence. Have a good
    lunch.
        The hearing is adjourned.
        [Whereupon, at 12:53 p.m., the committee was adjourned, to
    reconvene at the call of the Chair.]
    =======================================================================

                                A P P E N D I X

                                  ----------

                  Additional Material Submitted for the Record

    =======================================================================

     Prepared Statement of L. John Lufkins, President, Executive Council,
                           Bay Mills Indian Community

        Mr. Chairman, and members of the committee, I am pleased to be
    invited to present testimony on behalf of the Bay Mills Indian
    Community on S. 2986. I speak here today in my official capacity as
    president of the executive council, which is the elected government of
    the tribe. The legislation before you is extremely important to my
    people; its importance will be better understood by my description of
    the history of the tribe and the origin of this controversy.
        The Bay Mills Indian Community is comprised of the bands of Sault
    Ste. Marie area Chippewa who signed treaties with the United States
    beginning in 1795. Its modern-day reservation is located at the
    juncture of the St. Mary's River and Lake Superior, in the Iroquois
    Point area of Michigan's Upper Peninsula, and on Sugar Island, which is
    just east of Sault Ste. Marie, Michigan, in the St. Mary's River
    Channel. The tribe is one of four in Michigan which has maintained
    government to government relations with the United States since treaty
    times. It adopted a constitution in 1936 under the Indian
    Reorganization Act, and established as its form of government the
    traditional Chippewa public forum, in which all adult members comprise
    the general tribal council. When in session, the general tribal council
    adopts the laws of the tribe. I represent a direct democracy, which
    votes every 2 years to select officers, known as the executive council.
    Total enrollment is approximately 1,500 members. It is on their behalf
    that I speak today.
        I am also very proud to testify on this legislation, as it
    represents the final step in obtaining redress of a great wrong done to
    ancestral bands of the Bay Mills Indian Community over 100 years ago.
    My tribe is deeply grateful to Senator Stabenow for sponsoring the
    bill, and to Congressmen David Bonior and Don Young for sponsoring the
    companion bill in the House. I also wish to acknowledge the assistance
    and support that our Congressman, Bart Stupak has given to the tribe in
    its efforts to achieve redress.
        As do many issues involving Indian tribes, this one was generated
    in a treaty with the United States, signed in Detroit, MI, on July 31,
    1855. Article 1 of that treaty required the United States to withdraw
    from sale certain public lands for selection by the Indian band
    signatories. The first clause sets aside certain lands for the ``six
    [Chippewa] bands residing at or near Sault Ste. Marie''; those bands
    are our ancestors. Among the lands set aside was the property now known
    as Charlotte Beach. At that time, it was called the Hay Lake Reserve.
        One week before the land was withdrawn from public sale, the
    Charlotte Beach property was purchased by two non-Indians, Boziel Paul
    and Joseph Kemp on August 1, 1855. Although complaints were made to the
    resident Indian agent, the sale was not rescinded. In order to recover
    those lands, annuities received under the 1855 treaty were pooled and
    the Charlotte Beach lands were purchased from Boziel Paul and his wife
    on October 12, 1857. This acreage was the only portion of the Hay Lake
    Reserve that was not marshland; the remaining portion of the Reserve
    was determined by the Michigan Agency Superintendent to be unfit for
    allotment.
        No longer confidant that the United States would protect their land
    from loss, the chiefs insisted that title to this property be conveyed
    to the Governor of the State of Michigan, and his successors in office,
    in trust for the two bands of which Shawan and Oshawa-no were chiefs.
    The deed was recorded in the Chippewa County, Michigan, Register of
    Deeds office on that same date. The property was placed on the tax
    rolls in 1866, and was sold in the 1880's for unpaid taxes. With the
    assistance of the Michigan Agency of the Bureau of Indian Affairs and
    at the express invitation of the three bands already there, band
    members relocated to the Iroquois Point reserve on Whitefish Bay of
    Lake Superior--which still comprises a portion of the Bay Mills Indian
    Community Reservation. (Members of the sixth band primarily reside on
    the Garden River Reserve in Ontario, Canada.)
        Equally a part of my Community's history is the other reason why
    the bands consolidated in the Iroquois Point reserve--the loss of the
    fishing encampment ground at the St. Mary's Rapids in Sault Ste. Marie
    in 1853. The reserve had been created by an 1820 treaty, when lands
    were ceded to the United States to build Fort Brady. The reserve stood
    in the way of progress, apparently, for the engineers hired to build
    the first lock at the Soo determined it should go right through the
    reserve. The people there were thrown out of their homes by the U.S.
    Army, and their homes burned to the ground. Many fled to Iroquois
    Point. By the time the treaty giving up the reserve was signed on
    August 1, 1855, the encampment ground reserve was under water. The
    Iroquois Point Reserve received its first refugees before then.
        You should be able to understand the disbelief of the Hay Lake
    Reserve refugees, that the State was no more able to protect their land
    than had the United States. Both of these stories are part of my
    Community's history.
        My ancestors may have had to swallow the loss of the encampment
    grounds by signing a subsequent treaty with the United States. Twenty
    years later, they were less willing to resign themselves to accepting
    loss of their lands.
        Complaints were made to the United States, but no effort was made
    by Indian agents to recover the land. Letters were sent to the
    Governor, but no response was ever received. Over the next 90 years, my
    people did not forget this wrong, but had no idea how to make it right.
    Whatever resources we had were used to ensure our physical survival,
    and to protect what lands remained to us.
        Our efforts focused on asserting outstanding claims against the
    United States, resulting in Indian Claims Commission money damages
    judgments in Dockets 18-E and 58, and 18-R; legislation providing for
    distribution of those funds did not get enacted until 1997 in Public
    Law 105-143--and then only after Bay Mills sued the Secretary of the
    Interior in 1996 to compel the development of a distribution plan.
        Our other main focus was to protect our rights to fish in the
    waters of the Great Lakes ceded in our treaty with the United States on
    March 28, 1836. The United States brought suit on our behalf in 1972
    against the State of Michigan, and we pursued our rights in the
    Michigan court system. Vindication came from the Michigan Supreme Court
    in 1976 in People v. LeBlanc. The Federal case is known as United
    States v. Michigan, and following the 1979 decision upholding the
    rights, the United States, the State and the plaintiff tribes
    successfully negotiated two (2) allocation agreements; the most recent
    agreement was reached in August 2000. Both have received Federal funds
    through the appropriation process, and Congress has also provided the
    financial support for the tribal management of the treaty fishery since
    1981.
        Through these battles, the Hay Lake land claim was not forgotten by
    the people. We thought we would finally obtain justice in 1980, when
    the claim was filed with the Bureau of Indian Affairs under the so-
    called 2415 process. As you may remember, Congress sought to identify
    and correct infringements on Indian land which occurred prior to 1966,
    by directing the filing of trespass claims against third parties under
    28 U.S.C. sec. 2415. The claim was filed in the Federal Register in
    1983, but the United States ultimately declined to pursue the Charlotte
    Beach claim, on the technical ground that the lost land was not in
    trust with the Federal Government, but with the State. According to the
    Department of the Interior Field Solicitor, there was no obligation for
    the United States to seek damages on behalf of the tribe when it was
    not the trustee. Efforts to reverse this decision went nowhere.
        As it was clear that the United States would, or could, do nothing,
    the task of finding a solution remained the tribe's to carry out. It
    became imperative to do so, as title insurance companies began to
    identify the land claim as an exception to the policies issued to
    property in Charlotte Beach. A lawsuit was finally filed against
    approximately 140 landowners in the Federal court in 1996;
    simultaneously, a separate suit was filed in the State Court of Claims
    against the State of Michigan and other State entities.
        The Federal case was ultimately dismissed in 2000. Yet again,
    technical grounds were the reason. Before that, terms for settlement
    were negotiated with attorneys for the landowners, under which a fund
    was created from contributions from the settling defendants; the
    contribution amount was an agreed-upon portion of the value of the
    property owned by each. This method of settlement was preferred by the
    Tribe, as it had no desire to force people from their homes, and
    thereby subject innocents to the same type of wrong and hardship as my
    ancestors endured. Any chance of carrying out the settlement ended with
    the litigation. To this day, the cloud remains on their title.
        The basis for the dismissal of this case was not that the tribe had
    a baseless claim against the Charlotte Beach land; we never were given
    the chance to present it. The case was dismissed because the landowner
    defendants thought another Indian tribe might have a claim to the land,
    as well. That tribe is the Sault Ste. Marie Tribe of Chippewa Indians,
    which was recognized by the Department of the Interior in 1973. That
    tribe never tried to participate in the case, and its lawyer told the
    judge at a hearing that the Sault Tribe would not waive its sovereign
    immunity to be named as an additional plaintiff. Its participation in
    the case was limited to assisting lawyers for the landowners in their
    fight to have the case dismissed for failure to join an indispensable
    party. They were successful, and as I have said before, the cloud
    remains on the landowners' title. To this day, the Sault Tribe has not
    asserted any claim to the property in any court.
        Technical grounds also defeated the Bay Mills case in State court.
    It was dismissed for failure to bring the case within the Michigan
    statute of limitations. The Michigan Supreme Court and the United
    States Supreme Court refused to hear our appeal earlier this year.
    However, the cloud still remains on title to the Charlotte Beach land.
        It is with this frustrating history in mind that I ask you to
    carefully consider S. 2986. The legislation approves, ratifies and
    implements the Land Settlement agreement between the Bay Mills Indian
    Community and the Governor of the State of Michigan. The terms of the
    Settlement were negotiated earlier this year, and deserve my detailed
    discussion.
        * The Settlement releases the claims of the Bay Mills Indian
    Community to the Charlotte Beach property, subject to the approval of
    Congress to the extinguishment of the claims.
        The Settlement provides the tribe with alternate property, which
    substitutes for the Hay Lake Reserve. That Reserve was promised to the
    tribe's ancestors in solemn treaty in 1855, and it is long past time
    that the promise is kept. I also like to think that this alternate land
    finally implements the trust that my ancestors tried to confer on the
    Governor in 1857.
        The alternate land is to be placed in trust with the Secretary of
    the Interior for the benefit of the Bay Mills Indian Community, thereby
    acknowledging its substitution for lands which should have been in
    trust for the tribe all along.
        The alternate land is in Port Huron, Michigan. This location was
    agreed upon by the tribe and the Governor, because it provides
    significant economic advantages to the area and to the tribe, and is
    supported by popular vote of the people of Port Huron. This
    determination is entitled to deference by Federal policymakers.
        The Settlement requires the tribe to limit its gaming facilities to
    two (2) in Chippewa County and the alternate land location. In the
    absence of the Settlement, the tribe may operate as many class III
    gaining facilities as it chooses.
        The Settlement requires the tribe to provide a proportion of its
    electronic gaming revenue to the State. The tribe had agreed to do so
    under a Consent Decree entered in Federal court in 1993, but that
    obligation ended under its own terms in 1997. The Settlement thus
    reinstates the prior status quo.
        The Settlement expressly upholds the terms of the tribal-State
    gaming compact executed on August 20, 1993, and published as approved
    in the Federal Register on November 30, 1993. The State agrees not to
    seek renegotiation of its terms until 2032. The parties thereby
    maintain stability in the conduct of gaming by the tribe for a
    significant period of time--which is a major goal of both tribal and
    State governments.
        The Settlement enables the tribe to establish long-term goals and
    objectives to provide employment opportunities for its members,
    diversify its economic base, expand its governmental services in the
    areas of health, environmental stewardship, adequate housing, and
    education. Without the Settlement, member reliance on the treaty
    fishery for income will continue to require periodic, and contentious,
    allocation disputes with State-licensed fishers and the members of
    other treaty tribes.
        The Settlement and S. 2986 do not affect the rights of any other
    tribe--in Michigan or elsewhere--whether to land, resources, or
    economic opportunities. If any other land claim exists, the claimant
    tribe is free to pursue it. To any concern about additional
    competition, I must point out that no Indian tribe has a right under
    Federal law or policy to be guaranteed a particular market share of
    available customers. Under the free enterprise system, competition
    generates innovation and creation of a better product.
        The Settlement and S. 2986 implement an express exemption to the
    prohibition in the Indian Gaming Regulatory Act of gaming on lands
    acquired after October 17, 1988. That exemption is for lands obtained
    in settlement of a land claim. Nothing in the legislative history of
    the Act, or its implementation by the Bureau of Indian Affairs and/or
    the National Indian Gaining Commission, establish criteria which this
    Settlement violates. Bay Mills is the first Indian tribe to secure a
    settlement of its land claim since the act was adopted, and therefore
    the first to fall within the exception's terms.
        Credit for this creative and advantageous resolution of the Bay
    Mills Land Claim must go to Governor John Engler of Michigan. Although
    it was not easy, the Land Claim Settlement was achieved through the
    mutual recognition of the importance of working cooperatively and
    respectfully to eliminate old grievances and to develop mutually
    beneficial solutions. As a further benefit, the State and tribe have
    created a process by which other, and equally important and difficult,
    issues can be identified and addressed through negotiation.
        I am very proud to say that I signed the Land Claim Settlement on
    behalf of the Bay Mills Indian Community. I am not boasting when I say
    that this agreement should be applauded by the Federal Government--in
    all three of its branches--as exhibit No. 1 of what can be achieved
    when a State and Indian tribe decide to ``bury the hatchet'' and devise
    outcomes to disputes which benefit the citizens of the State, the
    members of the tribe, and their representative governments.
        I hope that the Land Claim Settlement is precedent for other Indian
    tribes and states to bring their disagreements to the table. I think
    that they will find that they can achieve more in that manner than
    fighting in the courts or in the halls of Congress. But all the efforts
    of my tribe and the State negotiators will be for nothing if Congress
    does not exercise its plenary power and approve the Settlement by
    enacting S. 2986. As the duly elected spokesman for my people, I ask
    each member of the committee to vote favorably on this bill. I ask each
    member to end this controversy, which has brought pain to my people and
    uncertainty to the people who have taken their place at Charlotte
    Beach. I ask each member to right a wrong that was done before any of
    us were born, but still lives on today. My people have waited patiently
    and with confidence that this wrong would be made right. Do not make
    their wait in vain.
    [GRAPHIC] [TIFF OMITTED] T4595.001

    [GRAPHIC] [TIFF OMITTED] T4595.002

    [GRAPHIC] [TIFF OMITTED] T4595.003

    [GRAPHIC] [TIFF OMITTED] T4595.004

    [GRAPHIC] [TIFF OMITTED] T4595.005

    [GRAPHIC] [TIFF OMITTED] T4595.006

    [GRAPHIC] [TIFF OMITTED] T4595.007

    [GRAPHIC] [TIFF OMITTED] T4595.008

    [GRAPHIC] [TIFF OMITTED] T4595.009

    [GRAPHIC] [TIFF OMITTED] T4595.010

    [GRAPHIC] [TIFF OMITTED] T4595.011

    [GRAPHIC] [TIFF OMITTED] T4595.012

    [GRAPHIC] [TIFF OMITTED] T4595.013

    [GRAPHIC] [TIFF OMITTED] T4595.014

    [GRAPHIC] [TIFF OMITTED] T4595.015

    [GRAPHIC] [TIFF OMITTED] T4595.016

    [GRAPHIC] [TIFF OMITTED] T4595.017

    [GRAPHIC] [TIFF OMITTED] T4595.018

    [GRAPHIC] [TIFF OMITTED] T4595.019

    [GRAPHIC] [TIFF OMITTED] T4595.020

    [GRAPHIC] [TIFF OMITTED] T4595.021

    [GRAPHIC] [TIFF OMITTED] T4595.022

    [GRAPHIC] [TIFF OMITTED] T4595.023

    [GRAPHIC] [TIFF OMITTED] T4595.024

    [GRAPHIC] [TIFF OMITTED] T4595.025

    [GRAPHIC] [TIFF OMITTED] T4595.026

    [GRAPHIC] [TIFF OMITTED] T4595.027

    [GRAPHIC] [TIFF OMITTED] T4595.028

    [GRAPHIC] [TIFF OMITTED] T4595.029

    [GRAPHIC] [TIFF OMITTED] T4595.030

    [GRAPHIC] [TIFF OMITTED] T4595.031

    [GRAPHIC] [TIFF OMITTED] T4595.032

    [GRAPHIC] [TIFF OMITTED] T4595.033

    [GRAPHIC] [TIFF OMITTED] T4595.034

    [GRAPHIC] [TIFF OMITTED] T4595.035

    [GRAPHIC] [TIFF OMITTED] T4595.036

    [GRAPHIC] [TIFF OMITTED] T4595.037

    [GRAPHIC] [TIFF OMITTED] T4595.038

    [GRAPHIC] [TIFF OMITTED] T4595.039

    [GRAPHIC] [TIFF OMITTED] T4595.040

    [GRAPHIC] [TIFF OMITTED] T4595.041

    [GRAPHIC] [TIFF OMITTED] T4595.042

    [GRAPHIC] [TIFF OMITTED] T4595.043

    [GRAPHIC] [TIFF OMITTED] T4595.044

    [GRAPHIC] [TIFF OMITTED] T4595.045

    [GRAPHIC] [TIFF OMITTED] T4595.046

    [GRAPHIC] [TIFF OMITTED] T4595.047

    [GRAPHIC] [TIFF OMITTED] T4595.048

    [GRAPHIC] [TIFF OMITTED] T4595.049

    [GRAPHIC] [TIFF OMITTED] T4595.050

    [GRAPHIC] [TIFF OMITTED] T4595.051

    [GRAPHIC] [TIFF OMITTED] T4595.052

    [GRAPHIC] [TIFF OMITTED] T4595.053

    [GRAPHIC] [TIFF OMITTED] T4595.054

    [GRAPHIC] [TIFF OMITTED] T4595.055

    [GRAPHIC] [TIFF OMITTED] T4595.056

    [GRAPHIC] [TIFF OMITTED] T4595.057

    [GRAPHIC] [TIFF OMITTED] T4595.058

    [GRAPHIC] [TIFF OMITTED] T4595.059

    [GRAPHIC] [TIFF OMITTED] T4595.060

    [GRAPHIC] [TIFF OMITTED] T4595.061

    [GRAPHIC] [TIFF OMITTED] T4595.062

    [GRAPHIC] [TIFF OMITTED] T4595.063

    [GRAPHIC] [TIFF OMITTED] T4595.064

    [GRAPHIC] [TIFF OMITTED] T4595.065

    [GRAPHIC] [TIFF OMITTED] T4595.066

    [GRAPHIC] [TIFF OMITTED] T4595.067

    [GRAPHIC] [TIFF OMITTED] T4595.068

    [GRAPHIC] [TIFF OMITTED] T4595.069

    A[GRAPHIC] [TIFF OMITTED] T4595.070

    [GRAPHIC] [TIFF OMITTED] T4595.071

    [GRAPHIC] [TIFF OMITTED] T4595.072

    [GRAPHIC] [TIFF OMITTED] T4595.073

    [GRAPHIC] [TIFF OMITTED] T4595.074

    [GRAPHIC] [TIFF OMITTED] T4595.075

    [GRAPHIC] [TIFF OMITTED] T4595.076

    [GRAPHIC] [TIFF OMITTED] T4595.077

    [GRAPHIC] [TIFF OMITTED] T4595.078

    [GRAPHIC] [TIFF OMITTED] T4595.079

    [GRAPHIC] [TIFF OMITTED] T4595.080

    [GRAPHIC] [TIFF OMITTED] T4595.081

    [GRAPHIC] [TIFF OMITTED] T4595.082

    [GRAPHIC] [TIFF OMITTED] T4595.083

    [GRAPHIC] [TIFF OMITTED] T4595.084

    [GRAPHIC] [TIFF OMITTED] T4595.085

    [GRAPHIC] [TIFF OMITTED] T4595.086

    [GRAPHIC] [TIFF OMITTED] T4595.087

    [GRAPHIC] [TIFF OMITTED] T4595.088

    [GRAPHIC] [TIFF OMITTED] T4595.089

    [GRAPHIC] [TIFF OMITTED] T4595.090

    [GRAPHIC] [TIFF OMITTED] T4595.091

    [GRAPHIC] [TIFF OMITTED] T4595.092

    [GRAPHIC] [TIFF OMITTED] T4595.093

    [GRAPHIC] [TIFF OMITTED] T4595.094

    [GRAPHIC] [TIFF OMITTED] T4595.095

    [GRAPHIC] [TIFF OMITTED] T4595.096

    [GRAPHIC] [TIFF OMITTED] T4595.097