[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
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                      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.]
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                            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.
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