[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
GAMING ON OFF-RESERVATION RESTORED AND NEWLY-ACQUIRED LANDS
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
Tuesday, July 13, 2004
__________
Serial No. 108-101
__________
Printed for the use of the Committee on Resources
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona Stephanie Herseth, South Dakota
Tom Osborne, Nebraska George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Dennis R. Rehberg, Montana Ruben Hinojosa, Texas
Rick Renzi, Arizona Ciro D. Rodriguez, Texas
Tom Cole, Oklahoma Joe Baca, California
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
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Page
Hearing held on Tuesday, July 13, 2004........................... 1
Statement of Members:
Gibbons, Hon. Jim, a Representative in Congress from the
State of Nevada, Prepared statement of..................... 13
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan.......................................... 3
Prepared statement of.................................... 3
McCrery, Hon. Jim, a Representative in Congress from the
State of Louisiana......................................... 4
Response to questions submitted for the record........... 5
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Statement of Witnesses:
Bearskin, Leaford, Col. USAF, Ret., and Tribal Chief,
Wyandotte Nation, Wyandotte, Oklahoma...................... 51
Prepared statement of.................................... 53
Lohse, Leslie, Treasurer, Paskenta Band of Nomlaki Indians,
Orland, California......................................... 69
Prepared statement of.................................... 70
Luger, J. Kurt, Executive Director, Great Plains Indian
Gaming Association, Bismarck, North Dakota................. 73
Prepared statement of.................................... 76
Marquez, Deron, Chairman, San Manuel Band of Mission Indians,
Highland, California....................................... 66
Prepared statement of.................................... 67
Martin, Aurene M., Principal Deputy Assistant Secretary-
Indian Affairs, U.S. Department of the Interior............ 17
Prepared statement of.................................... 19
Response to questions submitted for the record........... 20
Norris, Christine, Principal Chief, Jena Band of Choctaw
Indians, Jena, Louisiana................................... 44
Prepared statement of.................................... 47
Stevens, Ernest L., Jr., Chairman, National Indian Gaming
Association................................................ 36
Prepared statement of.................................... 39
Additional materials supplied:
Johnson, Hon. Nancy L., The Honorable Christopher Shays and
The Honorable Rob Simmons, Joint statement submitted for
the record................................................. 89
McCarthy, John, Executive Director, Minnesota Indian Gaming
Association, Statement submitted for the record............ 90
OVERSIGHT HEARING ON GAMING ON OFF-RESERVATION RESTORED AND NEWLY-
ACQUIRED LANDS.
----------
Tuesday, July 13, 2004
U.S. House of Representatives
Committee on Resources
Washington, D.C.
----------
The Committee met, pursuant to notice at 10:05 a.m., in
Room 1324, Longworth House Office Building, Hon. Richard W.
Pombo presiding.
Present: Representatives Pombo, Young, Tauzin, Duncan,
Jones, Gibbons, Walden, Hayworth, Osbourne, Flake, Rehberg,
Kildee, Abercrombie, Pallone, Kind, Inslee, Tom Udall, Mark
Udall, Baca, and Herseth.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Chairman Pombo. The Committee on Resources will come to
order.
The Committee is meeting today to hear testimony on the
issue of gaming on off-reservation restored and newly-acquired
lands.
Under Rule 4(g) of the Committee Rules, any oral opening
statements at hearings are limited to the Chairman and the
Ranking Minority Member. This will allow us to hear from our
witnesses sooner and help members keep their schedules.
Therefore, if other members have statements, they can be
included in the hearing record under unanimous consent.
Today, it is my hope to receive testimony that sheds a
clear light on how the Indian Gaming Regulatory Act applies to
certain situations in which a tribe seeks to operate a gaming
establishment on newly-acquired trust land. We are going to
focus on situations where the trust lands are not within or
adjacent to a tribe's existing reservation and on trust lands
sought by tribes that have no reservation. On October 17, 1998,
the Indian Gaming Regulatory Act was signed into law by
President Ronald Reagan. This law has had a dramatic impact on
Indian country by providing a regulatory framework within which
tribes exercise their inherent sovereign authority to operate
gaming establishments in States where gaming is permitted.
Because of gaming, some of the most poverty stricken
members of society have seen economic, social, cultural, and
medical benefits never before imagined. This has meant new
operations for jobs, housing, education, health care, and
cultural preservation. On the other hand, it has been pointed
out that in passing IGRA, Congress did not promise that gaming
would be an economic boon for all tribes in all parts of the
country. The date of enactment of IGRA, October 17, 1988, is
important to remember. The Act generally prohibits gaming on
lands placed into trust by the Secretary of Interior after this
date.
As with most laws, there are several exceptions to this
rule. These exceptions have recently turned out to be very
complex in application and sometimes confusing to the public.
This is because different tribes have different legal and
historical circumstances surrounding their applications to
place newly-acquired lands into trust. Furthermore, a number of
tribes are split as to the merits of gaming on newly-acquired
lands, especially in cases where a tribe seeks to place land in
trust in an area to which it has no aboriginal or legal ties.
Finally, States and local governments have mixed views on
this issue as well. Today's hearing should provide more clarity
about how IGRA is being applied, giving members of the
Committee an idea of how to address concerns raised by
witnesses and by others who submit their comments for the
hearing record.
I would now like to recognize Mr. Kildee for his opening
statement.
[The prepared statement of Mr. Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
Today it's my hope to receive testimony that sheds a clear light on
how the Indian Gaming Regulatory Act applies to certain situations in
which a tribe seeks to operate a gaming establishment on newly-acquired
trust land. We're going to focus on situations where the trust lands
are not within or adjacent to a tribe's existing reservation, and on
trust lands sought by tribes that have no reservation.
On October 17, 1988, the Indian Gaming Regulatory Act was signed
into law by President Ronald Reagan. This law has had dramatic impacts
in Indian Country by providing a regulatory framework within which
tribes exercise their inherent sovereign authority to operate gaming
establishments in states where gaming is permitted. Because of gaming,
some of the most poverty-stricken members of society have seen
economic, social, cultural, and medical benefits never before imagined.
This has meant new opportunities for jobs, housing, education, health
care, and cultural preservation.
On the other hand, it has been pointed out that in passing IGRA,
Congress did not promise that gaming will be an economic boon for all
tribes in all parts of the country.
The date of enactment of IGRA--October 17, 1988--is important to
remember. The Act generally prohibits gaming on lands placed into trust
by the Secretary of the Interior after this date. As with most laws,
there are several exceptions to this rule. These exceptions have
recently turned out to be very complex in application, and sometimes
confusing to the public. This is so because different tribes have
different legal and historical circumstances surrounding their
applications to place newly-acquired lands into trust.
Furthermore, a number of tribes are split as to the merits of
gaming on newly-acquired lands, especially in cases where a tribe seeks
to place land in trust in an area to which it has no aboriginal or
legal ties. Finally, states and local governments have mixed views on
this issue as well.
Today's hearing should provide more clarity about how IGRA is being
applied, giving members of the Committee an idea of how to address
concerns raised by witnesses and by others who submit their comments
for the hearing record.
______
STATEMENT OF THE HON. DALE E. KILDEE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Kildee. Thank you, Mr. Chairman, and thank you very
much for having this hearing. As one who helped write IGRA a
few years ago, I know it is not a perfect bill, but I think it
was a good bill following the Cabazon decision, and we do know
that many tribes have achieved some economic stability because
of this, and I am very happy that you are having this hearing
and very happy for your deep interest in Indian matters, Mr.
Chairman.
Mr. Chairman, last month this committee held a hearing on
the land settlement bills of the Bay Mills community and the
Sioux St. Marie tribe, two tribes located in my State of
Michigan. I expressed at that time my strong opposition to
those bills because I believe that congressional approval of
land settlement legislation should be approved carefully and
should not include provisions that would serve to undermine the
Indian Gaming Regulatory Act, IGRA, and would promote bad
public policy regarding Indian land claim settlements. In
addition, I voiced my concern that these bills would allow off-
reservation Indian gaming at lands several hundred miles away
from the tribe's existing reservations where they have no
historical ties.
I am aware of proposals before this committee that, if
approved, would circumvent the Department of Interior's
administrative process for taking lands into trust for tribes
and would avoid the process for approving the use of that land
for off-reservation gaming purposes for land acquired after
October 17, 1988. Mr. Chairman, I would much rather develop a
thoughtful and participatory plan to deal with this issue than
have this committee take action on legislation on a piecemeal
basis.
I look forward to hearing from the witnesses today so that
we can begin a dialog, and again, I thank you for having this
hearing.
[The prepared statement of Mr. Kildee follows:]
Statement of The Honorable Dale E. Kildee, a Representative in Congress
from the State of Michigan
Mr. Chairman, last month this committee held a hearing on the land
settlement bills of the Bay Mills community and the Sault Ste. Marie
tribe, two tribes located in my state, the State of Michigan.
I expressed my strong opposition to those bills because I believe
that Congressional approval of land settlement legislation should be
approached carefully and should not include provisions that would serve
to undermine the Indian Gaming Regulatory Act (IGRA) and would promote
bad public policy regarding Indian land claim settlements.
In addition, I voiced my concern that these bills would allow off-
reservation Indian gaming on land several hundred miles away from the
tribes existing reservations where they have no historical ties.
I am aware of proposals before this committee that, if approved,
would circumvent the Department of the Interior's administrative
process for taking land into trust status for tribes and would avoid
the process for approving the use of that land for off-reservation
gaming purposes for land acquired after October 17, 1988.
Mr. Chairman, I would much rather develop a thoughtful and
particpatory plan to deal with this issue than have this committee take
action on legislation on a piecemeal basis.
I look forward to hearing from the witnesses today so that we can
begin the dialogue on this issue. Thank you.
______
Chairman Pombo. Thank you. I would now like to introduce
our first witness, The Honorable Jim McCrery of Louisiana's
Fourth District.
Let me take the time to remind all of today's witnesses
that under Committee Rules, oral statements are limited to 5
minutes. Your entire written statement will appear in the
record.
Mr. McCrery, I want to welcome you to the Resources
Committee. It is great to have you in here. If you are ready,
you can begin.
STATEMENT OF THE HON. JIM McCRERY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF LOUISIANA
Mr. McCrery. Thank you, Mr. Chairman, and I want to thank
the Committee for undertaking this mission to explore IGRA and
the potential ramifications of IGRA if no changes are made in
that underlying law. I come to you today out of fear that if no
changes are made in the current law, we risk having a
proliferation of gambling in this country that hasn't been
explored properly or in depth, and I don't think that we would
like the results. The reason I have this fear is because of a
personal experience in Louisiana fairly recently dealing with a
federally recognized tribe, the Jena Band of Choctaw. And let
me say at the outset, I don't blame for 1 minute the Jena Band
for trying to establish land in trust for the purpose of
operating gaming facilities where they did. They were operating
under what they believed to be the law and were acting in what
they believed to be the interest of their tribal members.
Having said that, though, I think that the law needs to be
changed to make it clear that similarly situated tribes would
not even try to take into trust land as far away from their
traditional service area, land that by their own admission when
they were applying to become a federally recognized tribe was
not their historical lands. In fact, they said in their
application for Federal recognition that the Choctaws that were
in the region that I will talk about in a minute were not part
of the Jena Band. The Jena Band came from Mississippi and
therefore they were completely separate and ought to be
recognized as a separate Federal tribe, and they were. But now,
when it came time to try to bring land into trust for the
purpose of operating gaming facilities, they said, Oh, no, we
have historical ties to that area; the Choctaws were there.
Yes, the Choctaws were there, but not the Jena Band of
Choctaws.
So if you look at the map that I have displayed here, it
will give you a visual representation of the kinds of distances
we are talking about. If you will see the three light-colored
parishes or counties in the middle of the state, one of those
parishes, the easternmost, has a black dot in the middle of it.
That black dot is Jena and LaSalle Parish. That is where most
of the members of the tribe live, and that three-parish area
was designated as their administrative service area by BIA when
the tribe was federally recognized.
The Jena Band initially tried to take land into trust down
on the very southwest corner of the State. You see a black dot
in the very southwest corner. That is Vinton, Louisiana, right
on the Texas border. Why did they want to go to Vinton? Because
Texas has no gambling, has no casinos, and so it is a great
market. There are existing casinos in that area operated by
for-profit corporations, and so it is a logical place to want
to establish a gaming operation. The problem is it is more than
a hundred miles away from their traditional service area. The
BIA eventually turned down that application, not necessarily
because of the distance, but because of defects in the compact
that was agreed to with the Governor.
When that was turned down, they then turned their attention
to another location about a hundred miles away in my
congressional district, Logansport, Louisiana up in northwest
corner of the State. Once again, you can see it is right on the
Texas border, a great place for a casino because of Texas, the
Dallas market and so forth, but it is a hundred miles away,
almost a hundred miles away from their traditional service
area.
So it is clearly forum shopping. They are clearly looking
for the best market for their casino without regard to their
administrative service area, to their historical lands. That,
to me, is wrong. If we allow that, if we continue to allow
that--and by the way, the BIA recommendation was in the case of
Logansport to approve it, and they did approve it. Thankfully,
the Governor of the State, the new Governor, doesn't approve of
it. So I don't think it is going to happen. So now I am told
that the tribe is looking into their administrative area for
locating a casino, and I think that is swell. Give them land in
trust in their administrative service area. They can build a
casino and get after it, but we ought not allow tribes all over
the country to go wherever they want to build a casino.
That is my point. I thank you for your attention.
[Mr. McCrery's response to questions submitted for the
record follows:]
Response to questions submitted for the record by The Honorable Jim
McCrery, a Representative in Congress from the State of Louisiana
Question 1: When tribes seek to enter already established gaming areas,
doesn't that create an unlevel playing field since tribes are
not subject to state regulations; are not subject to the
restrictions placed on riverboat gaming; do not pay state
taxes, etc?
Yes. Tribes may operate casinos without the burden of negotiating
state regulatory processes and also benefit from their tax exempt
status, whereby they are able to forgo paying state and federal gaming
and income taxes. In Louisiana, for example, Indian casinos avoid
paying a state tax of nearly 22 percent of the adjusted gross of all
gaming revenues. This gives tribes the advantage of having more revenue
to invest in the promotion and expansion of their operation.
They are also exempt from other state regulations such as those
that limit the size and scope of a casino operation. In Louisiana, the
majority of state licensed casinos are located on riverboats that, by
law, cannot be larger than 30,000 square feet. However, tribes may
construct land based casinos with no restriction on how large a casino
they may build. This ``unlevel'' playing field also affects local,
parish, and state governments which rely on tax revenues from casinos
for administering government programs.
Question 2: What is your position on ``reservation shopping'' and
``off-reservation gaming?'' What should be the national policy?
I believe that the approval of the Jena's off-reservation site sets
a terrible national precedent. I do not believe that, in passing the
Indian Gaming Regulatory Act (IGRA), Congress intended to unequivocally
endorse off-reservation sites and I certainly do not believe that we
intended the law to allow tribes to forum shop for the best location
for a casino.
If we are to revisit IGRA, I believe we should define more clearly
the exceptions by which a tribe may build a casino on newly-acquired
lands. I believe tribes should be limited to constructing casinos on
lands within their traditional service area or on land where they have
a proven historical connection. This should remain true for landless
tribes who seeking to build a casino as part of their initial
reservation.
Question 3: What is your view on the Jena's latest effort to establish
gaming in their home area?
During a meeting with the tribe, I told the chief of the Jena Band
that I would not oppose efforts to build a casino in their traditional
service area.
______
Chairman Pombo. Thank you.
Mr. McCrery. I would be glad to answer any questions.
Chairman Pombo. Just on the specifics of this, the area
where they currently are, where their trust lands are, is that
a sparsely populated area?
Mr. McCrery. It is. It is a rural area. There is an urban
area right in the center of the State in Rapides Parish, which
is the biggest of the three parishes. Right in the center of
that parish is Alexandria, Louisiana, which the city itself--I
am estimating, but I believe the population of the city itself
is 50 to 60 thousand people, and Rapides Parish is probably
80,000, 90,000 people. So the LaSalle Parish is a very rural
parish. Grant Parish is mostly pine trees, but Rapides Parish
is an urban parish.
Chairman Pombo. On the two areas that you have there where
they attempted to have land taken into trust for a casino,
would it have not made more sense if they were going to do this
to go into an area that already had existing casinos?
Mr. McCrery. Well, obviously that is why they were going
there.
Chairman Pombo. Yes.
Mr. McCrery. Because it is a proven market. What I think we
have to ask ourselves, though, is should we allow an Indian
tribe with no historical roots in those areas, no tribal lands
established in those areas, to just willy nilly go into
competition with taxpaying for-profit entities that have been
established there and proven the market. I don't think that is
a good idea.
Chairman Pombo. Thanks.
Mr. Kildee, do you have any questions?
Mr. Kildee. Just briefly.
Whether it be Indian gaming or non-Indian gaming, both
entities look at marketing, and one of the elements of
marketing, of course, is access. Is there an interstate running
through the light area there, those parishes? Is there an
interstate highway running through there?
Mr. McCrery. Yes, sir. Interstate 49 runs diagonally
northwest to southeast through Rapides Parish.
Mr. Kildee. OK. Because that would be more of a positive
marketing thing if there is no interstate. Very often in his
history of our country--and I share your concerns. I expressed
those last week, and I think we are trying to see whether we
should be settling these things here in this committee or use
the power that the BIA has, and then ultimately, of course, we
have to approve any extinction of claims, land claims, but we
do know historically very often Indians were isolated and put
in very remote places. Very often that does create problems
because of their isolation, but the fact that there is an
interstate here would indicate that there is access to their
proposed casino.
I just want to make that point and thank you very much for
your testimony.
Mr. McCrery. Thank you, Mr. Kildee. There is no question
that marketing possibilities exist and transportation exists.
From Shreveport to Alexandria is about a little over an hour, I
would say an hour and 20 minutes by interstate. Likewise, from
Baton Rouge to Alexandria is only an hour and a half by
interstate, all interstate. So there are marketing
possibilities there, but don't be misled. The reason they went
to the northwest corner and the southwest corner is because the
market is proven there and Texas is right there. You have the
Houston market that comes over because they have nowhere else
to go. They have no casinos in Texas. So they come to
Louisiana. That is why we have casinos in Shreveport and
Bossier City. That is why they have them in Lake Charles,
because of the Texas market.
There is no question that those markets are more favorable
than central Louisiana. I don't deny that, but I question the
policy of allowing Indian tribes to just go where the best
market is regardless of where their reservation is, regardless
of where their historic roots are, and just set up a casino.
That, to me, doesn't make good policy sense. We don't allow
for-profit taxpaying entities to go anywhere they want and set
up casinos. They have to go to a State, first of all, that has
legalized it. Indian tribes don't have to do that. On their
reservation, they can establish a casino even in a State that
does not allow gambling in the general economy.
So I just question whether we want to endorse a policy that
allows Indian tribes that are treated differently from every
other gambling operation to go wherever they want to set up a
casino.
Mr. Kildee. Mr. Chairman, if I could.
Chairman Pombo. Yes.
Mr. Kildee. You mentioned that an Indian tribe could
establish a casino willy nilly wherever they wanted even if the
State did not permit gaming. That is not the case. What the
Cabazon decision said is that if a State outlaws gaming or a
form of gaming, then they can outlaw it all over, but if they
only regulate it, then State regulations do not apply on
sovereign territory. We have to be very careful not to minimize
the true nature of the sovereignty, because it is sovereign
territory.
Now, Hawaii, for example, and Utah, they outlaw gaming,
period, and therefore Indian gaming is not permitted there. So
the Cabazon decision was very clear on that.
Mr. McCrery. It is, but those cases are very rare. Most
States do regulate some form of gambling, and again, I would
point out that the two locations where they were trying to
establish a casino were not on their reservation, were not on
tribal lands. They were seeking to take land into trust more
than a hundred miles away and almost a hundred miles away in
the other instance from their administrative service area,
which is clearly where their roots are. They said so in their
application for recognition, and so I think it is tantamount to
forum shopping and allowing Indian tribes to willy nilly set up
shop wherever they want to if you don't do something to
constrain that in the current law.
Mr. Kildee. Just to get back to my original point about the
Cabazon decision, we had a Governor of Rhode Island a few years
ago who wanted to block and had succeeded in blocking an Indian
tribe from gaming, saying that he felt that gaming was not
healthy for Rhode Island, yet they have a lottery. I said, If
you think it is not healthy, why don't you outlaw your own
lottery? He said because we need the money. So Indians might
need the money also.
Mr. McCrery. And I hope that they are very successful in
operating a casino in their administrative service area. I
encourage them to move forward with that. I have no objection
to that.
Mr. Kildee. Thank you.
Chairman Pombo. Mr. Hayworth.
Mr. Hayworth. Thank you, Mr. Chairman. Let me welcome my
colleague from the Ways and Means Committee, and, indeed, as I
welcome the gentleman from Louisiana and look around the room,
I see many who were with us on a night, if memory serves, my
second term in Congress, my first on the Ways and Means
Committee, dealing with the whole question of taxation of
tribal enterprises and, of course, the Committee found, the
majority of members on both sides of the aisle joining
together, that Article I, Section 8 of the Constitution
outweighed any type of report from the GAO.
But one of the real concerns you again raise before this
committee, Mr. McCrery, and it deals with exactly where are the
proper general venues; if we accept the notion of sovereignty
and we have recognition, where, in fact, are the proper venues
for gaming enterprises. You touched on this and perhaps it is
more appropriate in and we will go in depth with our second
panel, but I just want to make sure I understand. The BIA
issued a finding or rendered a decision that would allow this
particular tribe to go, in your opinion, out of venue, that is
to say to open a new venue apart from tribal lands. You
obviously are not pleased with that decision. I just want to
get on the record not so much their reasoning, because we will
hear from the BIA in a second, but why you believe that
reasoning is incorrect.
Mr. McCrery. I believe it is incorrect because a hundred
miles is too far to allow a tribe to go from their historical
roots, from the area that was set up by the Federal Government
as the administrative service area, which I presume the Federal
Government believed would ultimately lead to lands taken into
trust for a reservation in their administrative service area.
There had to be some rationale for putting their administrative
service area in central Louisiana, and I will say that in the
BIA decision denying permission to go forward in the southwest
Louisiana location, there was language in the denial letter
from BIA expressing concern about the distance from their
administrative service area. Unfortunately, that same concern
didn't seem to matter much in the second one when they approved
it in northwest Louisiana.
And I will say, too, parenthetically here, I thought the
BIA, frankly, gave short-shrift to concerns that were being
expressed by the surrounding communities for the northwest
Louisiana location. Now, clearly, the economic interest in
Shreveport and Bossier City were opposed to the location of the
Indian casino because of the tax revenues from the taxpaying
casinos in Shreveport-Bossier. So they clearly had economic
interests. They were trying to protect those economic
interests. I admit that and they would too.
But they were undertaking at the time the decision came
down, which was issued right before Christmas Day, that would
have shed more light on some of the questions that had been
raised about the economic consequences of the location of the
casino there, public infrastructure that was available, all
questions that had been raised by local entities that had not
been properly vetted in my view by the BIA, and these economic
interests had hired an outfit from California to do a complete
study and were going to give the results of that study to BIA
for their study, and the BIA said we don't need that; we will
just go ahead and approve it; we have sufficient evidence
before us.
So I did think the BIA gave rather short-shrift to those
interests in that area, but basically, Mr. Hayworth, I believe
that Indian tribes that want to establish casinos need to do it
in the area where they have a reservation, where they have
their historical roots, and again, you will hear from a panel,
the next panel and the panel after, from the Jena Band. They
will probably contend that they do have historical roots in
that area, and they are entitled to their opinion. My research
shows the opposite, and again, if you will take a look at their
application for recognition, they disavowed any connection to
the Choctaws that were actually in northwest Louisiana.
So I just think it is too far. If we allow this, then we
stand the danger of seeing Indian casinos pop up all over the
country, and I don't think that will be good for the country.
Mr. Hayworth. Well, Mr. McCrery, I thank you very much for
the points you make and a chance to amplify again. I do look
forward to the testimony on the additional panels, both with
BIA and from the Jena Band and from the National Indian Gaming
Association. So I think it is good that we are having a variety
of opinions offered here today, and, Mr. Chairman, I thank you
for bringing this up. I thank all of those who attend, because
as we talked about on that fateful night so many years ago, it
is important for everyone concerned to get on the record and
give us some background.
So in that spirit, again, I thank you, Mr. McCrery, and I
thank you, Mr. Chairman.
Mr. McCrery. Thank you.
Chairman Pombo. Mr. Abercrombie.
Mr. Abercrombie. Thank you.
Mr. McCrery, just a couple of things. I find it real
interesting that we are one of the States that outlaw gambling,
much to the delight of my good friend from Nevada, because at
least two hotels in Las Vegas make their money off everybody in
Hawaii who flies in and leaves all the money that we get from
tourism in Nevada.
The idea here about taxpaying entities--and you don't
really have to answer this. I want to make some observations.
If you care to reply to it, it is OK. Is the argument against
it that it is just not just off the reservation or the
administrative area or whatever your reference is to, and
perhaps those who are paying taxes; is the idea they are not
paying taxes? Because it is a free enterprise system. If an
Indian tribe wants to establish a casino somewhere and wants to
pay the taxes, you wouldn't have an objection then, would you?
Mr. McCrery. Not if they adhered to the existing laws in
the State with respect to establishing a casino. No, I would
have no objection.
Mr. Abercrombie. Yes, because that is all under the compact
and under the gaming law and so on. Is one of the principal
objections then simply that one pays taxes and one doesn't?
Mr. McCrery. It is a principal objection when we allow a
non-taxpaying entity to use that advantage in the marketplace.
Mr. Abercrombie. OK.
Mr. McCrery. Without any constraints, yes.
Mr. Abercrombie. Fair enough, because one of the
arguments--
Mr. McCrery. Especially with respect to gambling which is a
very tightly regulated industry.
Mr. Abercrombie. Sure. We have all kinds of regulations.
This is one of the reasons that I am such an adamant supporter
of the Jones Act, because all these cruise ship lines don't pay
any taxes, but we don't seem to have any objection. We let them
advertise all over the place. They compete with all the other
tourist venues in the country that do pay taxes. They are
foreign owned. They are foreign flagged. They have foreign
employees. We have offshore manufacturers. We don't take tax
these people. They are crawling all over the Congress right
now. I guess it is your committee. They are probably beating on
your door right now, wondering where you are, trying to get you
to give them some kind of a break.
We have foreign investment in this country. People come
from elsewhere and invest in this country, but the cruise ships
have always irritated me because they don't pay taxes, and we
have the cruise ships operating in Hawaii now. They started on
July 1st. They obey all of the health laws, environmental laws,
labor laws, and they are paying taxes, and they are American
flagged and American sailed right now.
So I just wanted to make sure that if a tribe wants to
invest in a casino and meets all of the other elements
necessary under the law and are willing to pay taxes, then
would it be your opinion that they should be treated, then,
like any other investing entity?
Mr. McCrery. Yes.
Mr. Abercrombie. OK.
Mr. McCrery. If Indian tribes want to form a corporation
and develop a casino under the laws of the State, that is fine
with me.
Mr. Abercrombie. OK. Thanks. That means a lot.
The other thing, Mr. Chairman, is just an observation,
because I think that Representative McCrery makes a good point
about historical roots and then Representative Kildee made that
point that in terms of historical roots, many of the tribal
entities were driven out of places that they were before. So
historical roots sometimes can take two or three different
spots, as it can for many of us in this room. My ancestors were
driven out of Scotland by the English, and they were so smart,
they went to Ireland, and that is why they ended up in Canada
and then the United States.
Mr. Kind. And you were so smart to end up in Hawaii.
Mr. Abercrombie. And, of course, as you well know, I was
about to say I was born, of course, in Buffalo, but I am short,
not slow, and I got to Hawaii. So I think the key here probably
is the question of investment and whether the investment can be
seen as being fair competition. If it is, then I think anybody
ought to be able to compete regardless of where their
historical roots are.
Thank you.
Thanks, Mr. McCrery. I appreciate your candor.
Mr. McCrery. Thank you.
Chairman Pombo. Further questions?
Mr. Kind.
Mr. Kind. Thank you, Mr. Chairman. Mr. Chairman, I do want
to thank you and the Ranking Member and members of this
committee for holding this very important hearing. Obviously
from Wisconsin with many of the nations located in my State,
this is an issue that does come up with quite regularity, some
initiated by the tribes themselves as far as off-gaming
reservation opportunities, some being initiated by local
communities who are dealing with high chronic unemployment,
economic development issues, trying to stimulate the economic
activity in their own area, and they are looking to some of the
success that has occurred with some of the nations within
Wisconsin to help generate some economic development plans.
So this hearing, again, from multiple view points, I think
can be very helpful for our committee as we wrestle with off-
gaming reservation issues, and there is a law in place, IGRA
88, that sets forth the process or the procedure for moving
from FITA trust and setting up these type of opportunities for
sovereign nations that exist within our own country.
Just for a point of clarification, I thank my colleague
from Louisiana for his testimony here today, because this does
offer a nice little case sample of a lot of the issues that are
arising in many other states throughout the Nation. But just
for a point of clarification, does Louisiana right now have
their own state-run lottery?
Mr. McCrery. Yes, we do.
Mr. Kind. So you are one of the 40 States that do, and we
are looking at the possible inclusion of two more States that
are moving forward on it. Based on your testimony, it is also
my understanding that your Governor had opposed the site
proposal in southwestern Louisiana.
Mr. McCrery. No.
Mr. Kind. She didn't?
Mr. McCrery. The old Governor.
Mr. Kind. The old Governor?
Mr. McCrery. The immediate past Governor, I should say.
Mr. Kind. OK.
Mr. McCrery. In fact, entered into a compact with the Jena
Band to establish land in trust in Vinton. It was OK with him,
the new Governor, but then when that compact was declared
illegal by the BIA based on the agreement with the State to pay
fees to the State and local governments, then they shifted
their attention to northwest Louisiana. And in their defense,
the Governor, the sitting Governor at that time, told them that
he would not cooperate with them if they didn't go to some
parish that had approved gambling, and the parishes in their
administrative area had not approved gambling. So they were
kind of under the gun to look someplace else, although I
believe they could have pursued a different section of the
Federal law to get a casino in that administrative area without
the Government.
Mr. Kind. The BIA has approved a northwest location now,
hasn't it?
Mr. McCrery. They did approve right before Christmas the
Logansport location, and the current Governor, who just took
over, is opposed to that.
Mr. Kind. But the former Governor was in favor of that
location?
Mr. McCrery. Well, the former Governor said he wouldn't
object as long as they went to a parish that had approved some
form of gambling.
Mr. Kind. What about community support in both locations?
Could you refresh the Committee on whether there was local
community support for those?
Mr. McCrery. Yes. And bear in mind that Logansport and
DeSoto Parish had not approved casino gambling. They had
approved video poker, and so that qualified as some form of
gambling. The Logansport area and DeSoto Parish--DeSoto Parish
is a rural area, and its economy is not very good. They need
jobs in that area. So they ended up being supportive, although
I will say by a vote of six to five of the parish governing
board, the police jury, we call it. They narrowly voted six to
five in favor of endorsing this project.
But I would say probably if you took a vote in DeSoto
Parish, a majority of the people in DeSoto Parish would have
said yes, we want the casino, because it meant jobs.
Conversely, the areas just north of DeSoto Parish, which are
much more populated, Caddo Parish and Bossier Parish,
Shreveport and Bossier City, where we have five existing
casinos on river boats--they don't sail. They just sit there.
It is a long story.
Mr. Kind. Just a couple more issues.
Mr. McCrery. They opposed it, obviously.
Mr. Kind. Just from the basis of your testimony, I get the
sense that there is some dispute in regards to the historical
claim of the Jena Band in regards to these locations.
Mr. McCrery. Yes.
Mr. Kind. We will probably hear some testimony in regards
to that as well. What about any opposition of nearby tribes?
Was there some conflict with other existing tribes in the area,
or did that exist?
Mr. McCrery. There was some, but I think generally the
other tribes were supportive. I think there was maybe one tribe
that had some objections, and they may have been left over from
the Vinton choice, because that particular tribe that I am
talking about has a casino inland, so to speak, from Texas, and
the Jena Band's casino would have been direct competition for
that Indian tribe's casino. So they objected, and I think there
may have been some hard feelings left over from that. So they
objected. But I think, generally, the other tribes were OK.
Mr. Kind. OK. Mr. Chairman, I see my time has expired. I
want to thank you again for holding this hearing today.
Chairman Pombo. Mr. Gibbons.
Mr. Gibbons. Thank you very much, Mr. Chairman, and I was
sorry to see my friend from Hawaii, formerly of Buffalo,
formerly of Canada, formerly of Ireland, and formerly of
Scotland, leave. I wanted to thank him for making Nevada as
successful as it is.
And coming from Nevada, Mr. Chairman, obviously I am very
pro-gaming. It is our number one industry in the State, and I
think like the rest of us here, none of us would oppose a
tribal casino anywhere as long as it met the same standards. We
would all welcome them to compete with the rest of us as well,
and I think that is fair. But we years ago set up IGRA as a
means to provide economic opportunity for business growth in
the Native American community that I think is very important,
and I think it would be a mistake, maybe even an irresponsible
mistake, for us to set a precedent by passing legislation which
would circumvent the Indian Gaming Regulatory Act right now to
give an unfair advantage over one side versus the other.
I do agree with Mr. McCrery that, you know, there are
things that need to be looked at in this area, but I really
don't have a question because my friend from Hawaii set the
standard, and he said if the tribe is going to meet the same
standards and the regulatory requirements, pay the same taxes,
then we should all welcome it and encourage that type of
business expansion, and I think that is correct as well.
I would just like to ask unanimous consent, because I
missed the early part of the hearing, Mr. Chairman, to submit a
written opening statement for the record. With that, I will
yield back the balance of my time.
Mr. McCrery. Mr. Gibbons, let me respond.
Chairman Pombo. If the gentleman would suspend, without
objection, the opening statement will be included and all
Members' opening statements will be included.
[The prepared statement of Mr. Gibbons follows:]
Statement of The Honorable Jim Gibbons, a Representative in Congress
from the State of Nevada
Mr. Chairman, first I would like to thank you for providing the
Committee with yet another opportunity to address the very important
issue of Native American gaming, and the potential ramifications this
booming industry may have on lands issues nation-wide.
I would like to take this opportunity to reiterate some of the more
pressing points I made at the opening of the June 24th Hearing on a
similar issue regarding my strong opposition to allowing Indian Tribes
to ``reservation shop'' in order to set up illegitimate gaming
operations.
However, for the record, I should stress that I am not opposed to
legitimate Native American gaming in general--I support every
Americans' right to pursue success and prosperity in business--within
the bounds of law and common decency.
I have very serious concerns with allowing Indian tribes to abuse
the privileges granted to them in Indian Gaming Regulatory Act by
seeking private legislative favors in the form of land swaps so that
they may establish casinos on non-ancestral lands.
Mr. Chairman, the issue we are examining today is one that may have
a tremendous impact on the State of Nevada and our number one employer:
Gaming.
If Congress takes the unprecedented path of passing bills designed
to help tribes acquire non-ancestral lands solely for the purpose of
gaming, my constituents and their livelihoods will certainly suffer.
I harbor a deep concern with any bill designed to provide a certain
unfair advantage to one business-seeking group or entity over all
others who follow the letter of the law in the pursuit of their
business opportunity.
If Congress were to move forward with any reservation-shopping
legislation, we would be giving a tremendous advantage to the Native
American gaming community, leaving the non-Native American gaming
entities, like those in Nevada, to operate in an unfair and biased
business atmosphere.
It would be terribly irresponsible for us to set the precedent of
passing any legislation designed to circumvent the IGRA process and
give one tribe an unfair advantage over all other tribes and non-Native
American business interests.
I believe that IGRA provides the Native American community with a
tremendous opportunity for business growth and it would be in all of
our best interests to stand firm and maintain the legislation and
preserve its original intent.
With that, Mr. Chairman, I will say that I look forward to hearing
from our witnesses today and to engaging them in some questions at the
appropriate time.
______
Mr. Gibbons. Thank you, Mr. Chairman.
Chairman Pombo. Certainly.
Mr. McCrery. Let me just point out something that I haven't
said yet, and it relates to Mr. Abercrombie's statement, Well,
if they all conform to the same regulations and so forth. Under
the Louisiana law, the casinos in southeast Louisiana and
northwest Louisiana are under some size constraints and other
constraints that the Jena Band's casino would not be under.
They would not be limited in terms of their size. They would
not be limited in terms of other facilities that they could
have joining the casino, and the other for-profit entities
operating as casinos in Louisiana are constrained by Louisiana
law, and the thing that would put them at a particular
competitive disadvantage is the size constraint. They can have
only so many square feet of gambling space in their casinos.
That would not apply to an Indian casino in Louisiana.
Mr. Gibbons. Well, Mr. McCrery, I think there are other
issues as well that come into play here, and I know that we see
in Nevada many casinos have a very small margin of profit in
many of these, and that it takes a larger operation in order to
be even successful. So as you divide up the pie of people who
are coming to that form of entertainment from around the
country, the more you put competition in there, the smaller
that profit margin gets, and to have an opportunity to compete
without having to pay the same property taxes, the same
business tax, same State tax on profits, etc., comply with the
same regulation, have the same restrictions in terms of signage
and setbacks and frontage and requirements gives an definite
advantage over the other and makes it very difficult for those
people who have large investments as well in some of these
operations to meet those obligations.
So I would agree that if everybody wants to compete on an
even field, that is welcomed, but again, we established IGRA to
provide economic opportunities which allow for them to have
some of those exclusions, and I think it was a well-intended
piece of legislation that should be met and continued today.
Thank you, Mr. Chairman.
Chairman Pombo. Mr. Pallone.
Mr. Pallone. Mr. Chairman, I want to ask a question, but I
just wanted to say, generally speaking, I agree with Mr.
Gibbons that we should be following IGRA and its principles,
and I think that the notion that somehow there is some kind of,
you know, rush that we are going to have all these casinos in
areas that are not on existing reservations is probably a
little overblown. I don't think that there is any mad scramble
to do a lot of this off-reservation activity.
The problem that I see, though, is that, you know, I like
to give credence to the State and the local municipality if
they, in fact, favor gaming and we have had a lot of
situations. As you know, Connecticut is probably the worst
example where a tribe legitimately--I think of the Eastern
Pequots as one example where a tribe legitimately deserves
recognition. They meet all the criteria. The BIA has announced
it, and this State is opposed to it because they don't want
gaming. So it is hard. I think you have to look at these
individually and not have sort of overall themes that this is
not right or that is not right.
So the one thing that bothered me, and this is the question
I wanted to ask, you said a hundred miles is too far to go,
because as some of my colleagues have mentioned, you know, we
have tribes in eastern States, including my own, that were
forced all the way to Oklahoma, halfway across the country. So
to say that there should be a distance, I don't think you can
say as an absolute that any particular distance is too far
away. I think you have to look at the history.
Let me give you an example, and this will be my question.
If there was a tribe, for example--I mean, all the Oklahoma
tribes pretty much or most of them had roots along the eastern
seaboard. What if one of them decided that they wanted to go--I
will use the State of Vermont. I think that was Algonquin, but
let us say that there was a tribe out in the Midwest that
decided they wanted to have a reservation in Vermont and they
had all the historical indications to show that they were
originally in Vermont, were forced out by U.S. Government
policies. The Governor of Vermont, local municipality says we
would like to have back and establish a reservation on their
traditional homeland. I mean, would you have a problem with
that?
Mr. McCrery. No. There are existing guidelines for the
Bureau of Indian Affairs to use for the establishment of
reservations, for land in trust, for administrative service
areas, and I think they should continue to use those guidelines
and provide sovereignty in those areas where appropriate.
Mr. Pallone. And I think that is my only point here, which
is that we have to follow the IGRA guidelines. We have to
certainly say that the tribe has historical roots to any land
that they want to acquire, but if the local towns and the State
are not opposed to it and it fits all that, then I don't see
any reason why it shouldn't be allowed, and I think you agree.
Mr. McCrery. I agree. All I am asking this committee to do
is look at IGRA, examine it with an eye toward what I think is
a potential problem. You may be right. There may be no rush to
do this in other parts of the country. I don't know. It is not
my committee's jurisdiction, and I haven't spent a lot of time
on this other than this one instance, but I am here just to
give you the benefit of the example in my State and in my
district, and I think it is worth exploring, and that is why I
think this hearing is a great idea, and if at the end of the
hearing, the collective wisdom of this committee is IGRA works
just fine the way it is, hey, I am happy.
But I am concerned. I am expressing that concern today. I
think this committee ought to listen to that concern and
consider it and either make some changes--maybe it is just as
simple as saying that distance from administrative service
areas or traditional reservation or whatever should be one of
the considerations that the BIA and the Department of Interior
makes in making a decision. I don't know.
Mr. Pallone. Thank you.
Thank you, Mr. Chairman.
Mr. McCrery. Thank you.
Chairman Pombo. Further questions for the witness?
Mr. Tauzin.
Mr. Tauzin. Mr. Chairman, I would be remiss if I didn't
welcome my--
Mr. McCrery. And I would be remiss if I didn't welcome you.
It is good to see you back.
Mr. Tauzin. It is good to be back.
Mr. McCrery. Yes.
Mr. Tauzin. And it is good to be back with my dear
colleagues on both sides of the aisle in the House room where I
have worked for nearly a quarter of a century, and this has
been a hard few months for me to be away. I watched you on
television, by the way, from the hospital.
Mr. McCrery. Oh, yes.
Mr. Tauzin. And it was really ugly, I have to tell you.
Seriously, Jim, I wanted to thank you for coming before our
committee. You and I have a slightly different view on this and
we have expressed it publicly and privately and have had many
discussions about it, but I wanted to thank you for your
service to our State and for your deep involvement in many
issues that confront not only Louisiana, but the Nation, and
your service on the Ways and Means Committee and your deep and
abiding friendship on a personal level. I just wanted to
express that publicly to you.
Mr. McCrery. Well, thank you.
Mr. Tauzin. And welcome you to the Committee.
Mr. McCrery. I appreciate it.
Mr. Tauzin. Thank you, Mr. Chairman.
Chairman Pombo. Thank you, Mr. McCrery.
Mr. McCrery. Thank you.
Chairman Pombo. Now I would like to call up our next
witness, Aurene Martin, the Principal Deputy Assistant
Secretary for Indian Affairs. She is accompanied by George T.
Skibine, Director of Indian Gaming Management at the BIA.
Is the Director with us?
Ms. Martin. He is.
Chairman Pombo. All right. Are you going to answer
questions?
Mr. Skibine. Maybe, yes.
Chairman Pombo. Then sit up there.
If I could have you both stand and raise your right hand.
[Witnesses sworn.]
Chairman Pombo. Thank you. Let the record show they both
answered in the affirmative.
Welcome back to the Committee.
Ms. Martin, we can begin with you.
STATEMENT OF AURENE M. MARTIN, PRINCIPAL DEPUTY ASSISTANT
SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF INTERIOR;
ACCOMPANIED BY GEORGE T. SKIBINE, DIRECTOR, INDIAN GAMING
MANAGEMENT, BUREAU OF INDIAN AFFAIRS
Ms. Martin. Good morning, Mr. Chairman and members of the
Committee. My name is Aurene Martin, and I am the Principal
Deputy Assistant Secretary for Indian Affairs at the Department
of Interior. I would like to thank the Committee for the
opportunity to present the views of the Department of Interior
on our application of the Indian Gaming Regulatory Act to off-
reservation gaming acquisitions.
Before I discuss the Indian Gaming Regulatory Act and its
requirements, I would like to note that this issue has received
considerable attention within the Department. We have discussed
at length what the Department's obligations are under the Act
and where the Secretary has discretion to make certain
determinations. We do not take this responsibility lightly and,
in fact, make decisions only after extensive deliberation and a
careful look at the law.
Contrary to popular belief, tribes cannot simply buy a
parcel of land anywhere and set up a gaming establishment. They
must meet a number of requirements before they can operate
Class III gaming. They must acquire land in trust. They must
meet one of the requirements or exceptions contained in IGRA
for gaming on off-reservation lands, and the tribe must have a
valid state tribal compact that authorizes them to game on
those lands. It sounds easy, but any one of these processes can
take years, and many tribes have been unable to meet all of
these requirements and begin the operation of gaming.
The Indian Gaming Regulatory Act generally provides that
gaming can occur on all lands held in trust on behalf of a
tribe prior to October 17, 1988. After that date, off-
reservation lands may only be used for Class III gaming where
two actions occur: One, the Secretary makes what is known as
the two-part determination, a determination that gaming on the
parcel is in the best interest of the tribe and that it is not
detrimental to the surrounding community; second, the Governor
of that State must concur with the Secretary's determination or
the two-part determination fails and gaming is not authorized.
Within the Department, we have had extensive debate on our
responsibility with regard to the two-part determination and
what, if any, discretion the Secretary may have in making the
determination. In part, this has been driven by our questions
with regard to tribal applications for lands that are far from
their current reservations and whether IGRA contemplated
limiting the distance a tribe can go from their reservation.
Ultimately, we determined that IGRA contemplated this type of
gaming and intended to establish a balance in which States have
the ability to control whether those types of facilities may be
built. We have also determined that the Secretary's discretion
in making the two-part determination is limited to the
objective determinations she is required to make, that is if it
is in the best interest of the tribe and whether it would be a
detriment to the surrounding community.
There are three additional exceptions to the prohibition on
gaming on Indian lands acquired after October 17, 1988 and
which are located off reservation. Tribes may game on off-
reservation lands after that date in the following instances:
if the lands are acquired by the tribe as a settlement of a
land claim, if the lands are acquired by the tribe that is
newly recognized and they are to be deemed part of our initial
reservation, and if the lands are restored to a tribe that was
previously recognized but for some reason was later not
recognized and their recognition has been restored.
There have been a number of FITA trust acquisitions in
which one of the exceptions apply. Again, the Department does
not take its responsibility to determine whether a tribe's FITA
trust acquisition meets one of the exceptions lightly and has
made those determinations very conservatively. To date, the
Department has not negotiated a land claim settlement which
contemplated a land transfer for gaming purposes and its terms.
The Department also feels that a tribe should have
geographical, historical, and traditional ties within an
initial reservation site, and with regard to restored lands,
the Department believes that legislation should designate the
location of those lands or that the lands in question must have
geographical and historical connection to the tribe and a
temporal relation to the restoration of the tribe's
recognition.
However, each of these determinations is made on a case-by-
case basis. As part of or discussion regarding the application
of the off-reservation provisions of IGRA, the Department
discussed the advisability of adopting a blanket policy with
regard to those acquisitions. We ultimately determined that
adopting a blanket policy would not be appropriate because each
application is different and the situation of each tribe with
respect to the local community and the State in which it is
located is unique.
I would like to note that IGRA does not authorize the
Department to take lands in trust status. It merely outlines
the situations in which lands may be used for gaming purposes.
In every one of the situations listed above, the lands in
question must also be acquired in trust pursuant to the
regulatory process outlined in 25 CFR Part 151, our regulations
for processing lands to become trust lands.
In addition to setting out the process for review of a FITA
trust application, the regulations require that the Department
comply with NEPA and with the Department of Justice standards
for title review; and finally, to open a Class III
establishment, the tribe must have a valid Class III tribal
state compact. This is a document executed by a tribe in a
State to govern the operation of Class III gaming by the tribe.
It outlines the role each will play in the gaming operation and
its regulation. Once agreed to, the compact must be approved by
the Department and published in the Federal Register to be
valid. Any one of these processes can and often do take years
to complete. The failure of a tribe to make it through any one
of the processes will keep them from operating Class III
gaming.
The Department believes that IGRA sets out a balanced
framework for the operation of Class III gaming. It allows a
State and a tribe to come to agreement regarding whether Class
III gaming may be operated within a State and further gives the
States powers to absolutely deny a tribe the ability to operate
gaming on lands acquired off reservation and subject to a two-
part determination after October 17, 1988.
Again, I would like to thank the Committee for the
opportunity to testify and I would be happy to answer any
questions.
[The prepared statement of Ms. Martin follows:]
Statement of Aurene M. Martin, Principal Deputy Assistant Secretary--
Indian Affairs, U.S. Department of the Interior
Good morning, Mr. Chairman and Members of the Committee. My name is
Aurene Martin, and I am the Principal Deputy Assistant Secretary for
Indian Affairs at the Department of the Interior. I am pleased to be
here today to discuss the role of the Department in implementing
Section 20 of the Indian Gaming Regulatory Act of 1988 (IGRA).
Before discussing our role in implementing Section 20 of IGRA, I
want to address a common misconception regarding this statutory
provision: Section 20 of IGRA does not provide authority to take land
into trust for Indian tribes. Rather, it is a separate and independent
requirement to be considered before gaming activities can be conducted
on land taken into trust after October 17, 1988, the date IGRA was
enacted into law. The basis for the administrative decision to place
land into trust for the benefit of an Indian tribe is established
either by a specific statute applying to a tribe, or by Section 5 of
the Indian Reorganization Act of 1934 (IRA), which authorizes the
Secretary to acquire land in trust for Indians ``within or without
existing reservations.'' Under these authorities, the Secretary applies
her discretion after consideration of the criteria for trust
acquisitions in our ``151'' regulations (25 CFR Part 151). However,
when the acquisition is intended for gaming, consideration of the
requirements of Section 20 applies before the tribe can engage in
gaming on the trust parcel.
In enacting Section 20, Congress struck a balance between tribal
sovereignty and states' rights. Specifically, Section 20(a) provides
that if lands are acquired in trust after October 17, 1988, the lands
may not be used for gaming, unless one of the following statutory
exceptions applies:
(1) The lands are located within or contiguous to the boundaries
of the tribe's reservation as it existed on October 17, 1988;
(2) The tribe has no reservation on October 17, 1988, and ``the
lands are located...within the Indian tribe's last recognized
reservation within the state or states where the tribe is presently
located;''
(3) The ``lands are taken into trust as part of: (i) the
settlement of a land claim; (ii) the initial reservation of an Indian
tribe acknowledged by the Secretary under the Federal acknowledgment
process; or (iii) the restoration of lands for an Indian tribe that is
restored to Federal recognition.''
(4) There is also a specific exception for lands taken into trust
in Oklahoma for Oklahoma tribes.
Since 1988, the Secretary has approved 32 applications that have
qualified under these various exceptions to the gaming prohibition
contained in Section 20(a) of IGRA. I have attached to my testimony a
document listing the various tribes that have qualified under the
exceptions since October 17, 1988.
The decision of whether land that is either already in trust, or
that is proposed to be taken into trust for gaming, qualifies under any
of the exceptions I just mentioned is made on a case-by-case basis.
Through case-by-case adjudication, the Department has developed
criteria to determine whether a parcel of land will qualify under one
of the exceptions. For instance, to qualify under the ``initial
reservation'' exception, the Department requires that the tribe have
strong geographical, historical and traditional ties to the land. To
qualify under the ``restoration of lands'' exception, the Department
requires that either the land is either made available to a restored
tribe as part of its restoration legislation or that there exist strong
historical, geographical, and temporal indicia between the land and the
restoration of the tribe. The Department's definition of restored land
has been guided by fairly recent federal court decisions in Michigan,
California, and Oregon.
Finally, an Indian tribe may also conduct gaming activities on
after-acquired trust land if it meets the requirements of Section 20(b)
of IGRA, the so-called ``two-part determination'' exception. Under
Section 20(b)(1)(A),
(1) gaming can occur on the land if the Secretary, after
consultation with appropriate state and local officials, and officials
of nearby tribes, determines that a gaming establishment on newly-
acquired land will be in the best interest of the tribe and its
members, and would not be detrimental to the surrounding community, but
(2) only if the Governor of the state in which the gaming
activities are to occur concurs in the Secretary's determination.
Since 1988, state governors have concurred in only three positive
two-part determinations for off-reservation gaming on trust lands: the
Forest County Potawatomi gaming establishment in Milwaukee, Wisconsin;
the Kalispel Tribe gaming establishment in Airway Heights, Washington;
and the Keweenaw Bay Indian Community gaming establishment near
Marquette, Michigan.
Currently, there are eight applications for two-part determinations
under Section 20(b)(1)(A) pending with the Bureau of Indian Affairs for
sites in New York, Wisconsin, Michigan, and California. Many more
applications are rumored to be in development but have not bee
submitted to the Department, including potential applications from
tribes located in one state to establish gaming facilities in another
state. It is within the context of this emerging trend that Secretary
Norton has raised the question of whether Section 20(b)(1)(A) provides
her with sufficient discretion to approve or disapprove gaming on off-
reservation trust lands that are great distances from their
reservations, so-called ``far-flung lands.''
We have spent substantial effort examining the overall statutory
scheme that Congress has formulated in the area of Indian self-
determination and economic development. This includes a careful
examination of what Congress intended when it enacted Section 20
(b)(1)(A). Our review suggests that Congress sought to establish a
unique balance of interests. The statute plainly delineates the
discretion of the Secretary, limiting her focus to two statutory
prongs. Also, by requiring that the Governor of the affected state
concur in the Secretary's determination, the statute acknowledges that
in a difference of opinion between a sovereign tribe and an affected
state, the state prevails. Further, at least on its face, Section
20(b)(1)(A) does not contain any express limitation on the distance
between the proposed gaming establishment and the tribe's reservation,
nor is the presence of state boundaries between the proposed gaming
establishment and the tribe's reservation a factor.
Our review indicates that the role of the Secretary under section
20(b)(1)(A) is limited to making objective findings of fact regarding
the best interests of the tribe and its members, and any detriment to
the surrounding community. Therefore, while the trust acquisition
regulations provide broad discretion, Section 20(b)(1)(A) does not
authorize the Secretary to consider other criteria in making her two-
part determination, thus limiting her decision-making discretion to
that degree.
This concludes my remarks. I will be happy to answer any questions
the Committee may have. Thank you.
______
[The Department of the Interior's response to questions
submitted for the record follows:]
Response to questions submitted for the record by the Bureau of Indian
Affairs, U.S. Department of the Interior
QUESTION 1: In 1988, with in the passage of the Indian Gaming
Regulatory Act (IGRA), Congress sought to limit tribal Gaming
to existing tribes and reservations, and provided limited
exceptions for newly recognized and landless tribes. Congress
did not anticipate the major expansion in tribal gaming and
certainly did not envision the latest trend of tribes seeking
gaming ``off-reservation'' and distant from their reservation
or traditional service area. Please identify, for the
Committee, where ``off-reservation'' gaming exists today, and
where it is proposed today by Class II and Class III gaming.
ANSWER: The following chart provides an overview of the approved
``off-reservation'' gaming acquisitions since the enactment of the
Indian Gaming Regulatory Act. This chart does not include restored
lands or lands taken into trust as part of the initial reservation.
[GRAPHIC] [TIFF OMITTED] T4995.004
The following chart provides an overview of the proposed ``off-
reservation'' gaming acquisitions. This chart does not include land in
a traditional service area or on or adjacent to the Tribe's
reservation.
[GRAPHIC] [TIFF OMITTED] T4995.005
QUESTION 2: What is the DOI's position on ``reservation shopping'' and
``off-reservation gaming''?
ANSWER: Secretary Norton has raised the question of whether Section
20(b)(1)(A) provides her with sufficient discretion to approve or
disapprove gaming on off-reservation trust lands that are great
distances from their reservations, so-called ``far-flung lands.''
Under 25 U.S.C. Sec. 2719(b)(1)(A), gaming can be conducted on
newly-acquired off-reservation trust land if the Secretary, after
consultation with the Indian tribe and appropriate state and local
officials, including officials of nearby tribes, determines that a
gaming establishment on the land would be in the best interest of the
tribe and its members, and would not be detrimental to the surrounding
community, but only if the Governor of the state concurs in the
Secretary's determination.
We have carefully examined what Congress intended when it enacted
Section 20 (b)(1)(A). Our review suggests that Congress sought to
establish a unique balance of interests. The statute plainly delineates
the discretion of the Secretary, limiting her focus to two statutory
prongs. Also, by requiring that the Governor of the affected state
concur in the Secretary's determination, the statute acknowledges that
in a difference of opinion between a sovereign tribe and an affected
state, the state prevails. Further, at least on its face, Section
20(b)(1)(A) does not contain any express limitation on the distance
between the proposed gaming establishment and the tribe's reservation,
nor is the presence of state boundaries between the proposed gaming
establishment and the tribe's reservation a factor.
Our review indicates that the role of the Secretary under section
20(b)(1)(A) is limited to making objective findings of fact regarding
the best interests of the tribe and its members, and any detriment to
the surrounding community. Therefore, while the trust acquisition
regulations provide broad discretion, Section 20(b)(1)(A) does not
authorize the Secretary to consider other criteria in making her two-
part determination, thus limiting her decision-making discretion to
that degree.
QUESTION 3: Please identify for the Committee how many tribes are
currently seeking recognition today?
ANSWER: As of July 1, 2004, there are 236 groups seeking to be
acknowledged as Indian tribes. Of the 236, 130 have only submitted
letters of intent, 69 have submitted partial documentation, 10 are no
longer in touch with the Department, 5 will need Congressional
legislation to go through the process, and 22 groups are the
Department's immediate workload. Of the 22 groups, 6 are under active
consideration and 13 are on the ``Ready, Waiting for Active
Consideration'' list. Three groups are in the post-final decision
appeal process.
QUESTION 4: How many tribes are seeking tribal gaming now?
ANSWER: There are 23 pending applications from federally recognized
tribes to take land into trust for gaming purposes.
QUESTION 5: How many are seeking gaming on their reservation or
traditional service area and how many are seeking gaming off-
reservation or on land distant from their traditional service
area?
ANSWER: There are 13 federally recognized tribes seeking gaming on
their reservation or traditional service area, and 10 Federally
recognized tribes seeking gaming off-reservation or on land distant
from their traditional service area.
______
Chairman Pombo. Thank you, Ms. Martin. I have a whole bunch
of questions I want to ask you, but I am going to try to limit
it.
What is the BIA's policy on the conversion of lands to
trust status for the purpose of gaming when there is
substantial local community opposition to proceeding with that?
How do you handle that?
One of the things in California that has really made this
an issue in recent years is different tribes trying to bring
land into trust in a community that is very much opposed to
that, and that is having an impact on all of the Indian gaming
operations in California. What is your overall policy when it
comes to that?
Ms. Martin. Well, it specifically depends on the situation
that we are confronted with. In the off-reservation context, it
makes a great deal of difference to us, especially with respect
to the two-part determination. If a local community is opposed
to it, then there is more of a chance that we may not go
through with the two-part determination because there is more
of a chance that the Governor will not consent to that two-part
determination, but where one of the exceptions might apply or
if it is on reservation, then there is more of a chance that we
would look at what the tribe's needs are in that specific
instance. Where it is on reservation, I think we have more of
an inclination to approve a FITA trust transfer, because it is
within the confines of the tribe's sovereign area.
Chairman Pombo. If you could as a follow-up to this
hearing, could you provide for my office a written update on
the status on the Menominee Band of Milwaukee Plymouth proposal
to convert lands to trust status? If you could just provide
that to me in writing, specifically what is the current
involvement of the Sacramento Region BIA office and what will
the role of the Washington office be after the application is
submitted. I would appreciate it if you could provide that for
me.
Ms. Martin. I would be happy to do that. I would like to
note for you that all gaming acquisitions must be approved by
the Assistant Secretary or the Assistant Secretary's designee.
So that would have to come to us.
Chairman Pombo. OK. Also, in your written testimony, you
say that you have attached testimony, a document listing the
various tribes that have qualified under the exception since
October 17, 1988. You did not submit that, and if you could
provide that for the record, that document for some reason
didn't come with your testimony.
Ms. Martin. I would be happy to do that.
Chairman Pombo. Thank you.
Further questions? Mr. Inslee, questions?
Mr. Inslee. No.
Mr. Young.
Mr. Young. Is this thing on?
Chairman Pombo. Yes.
Mr. Young. I can never tell because I am the only guy in
the world that doesn't have a red light, of all people.
Chairman Pombo. I usually turn it on.
Mr. Young. I figured you did.
Ms. Martin, I only have a couple of small questions. You
know I am very interested in a couple--by the way, I am the
last author of this legislation. Mr. Udall and I worked on this
for a purpose, and it has been a success. That was 1900, I
think, just after Custer, if I am not mistaken, and we were
trying to pay for the war at that time.
But anyway, we thought and we were correct that this was an
opportunity for those who lived in reservations to, in fact,
establish an economic boost for not only the reservation but
the future generations of the Indian tribes, and I am very
proud of that legislation; but I have had a great deal of
interest over the years following the tribes that have applied
and how they have followed the rules, and that to me is
crucially important, the rules and the definition of the BIA
and interpretation of IGRA. And I have the tribe of the
Wyandottes, for instance, and I have called you personally and
then I have called Mr. Griles and I have called Ms. Norton, and
every one of you have told me I will get back to you when we
get more information.
This has been 6 months, actually a year, because there is a
great injustice that occurred in Kansas which I do not
appreciate, because my interpretation, because of the decisions
made by the BIA, they had every legal right to start the
casino, which they did, and then by action of a preliminary
finding, the Attorney General for the State of Kansas attacked,
confiscated, arrested the product of the casino, and now we
have had a new court decision that said he was totally out of
line. I think this could have been avoided if there has been a
sound decision made previous to the action of the Attorney
General, and I just would encourage yourself and your attorney
to be more up to speed about very hot issues, and that has not
occurred.
So somebody down there had better get their act together
and respond, especially when the Vice Chairman and former
Chairman of this Committee makes an inquiry, and that is all it
was and it did not happen. Would you like to respond to that?
Ms. Martin. Well, first of all, I would like to apologize
for any lack of communication we have had with you. The
situation with regard to the Wyandotte has been a very long
time in the making, and the last time I did check on this,
there was a determination that was pending before the National
Indian Gaming Commission, which I believe was made and resulted
in the action you have described.
Mr. Young. No. It was a preliminary finding, and the action
was taken by the Attorney General, and the court has ruled him
totally out of line.
Now, are you aware of that, Counsel?
Mr. Skibine. I am not counsel, but--
Mr. Young. Well, somebody better know the answer to that.
Mr. Skibine. But we are aware of the Wyandotte situation.
Essentially, when the BIA made a determination initially--well,
it goes back several years. The BIA had made a determination
that the tribe was--the acquisition of that parcel was
contiguous to the tribe's reservation and therefore would
qualify on their under IGRA as Indian lands, but then that
determination was essentially overturned by a court decision.
Mr. Young. And then the courts returned it.
Mr. Skibine. Well, then what did was we--returned to us for
determination whether the acquisition was mandatory, and we
made a determination that the acquisition of this land was
mandatory under an Act of Congress, but in making that
determination, we did not make the determination the tribe
could game on the land. We only made the determination that
tribe--that we had to take the land in trust for that tribe
under that Act of Congress, and in the Federal Register Notice
that we published, we specifically stated that the BIA was not
making a determination that the tribe could be--
Mr. Young. And did not deny it.
Mr. Skibine. We didn't make a decision.
Mr. Young. There was no decision made.
Mr. Skibine. There was no decision made on that.
Mr. Young. This is where I still suggest, Ms. Martin, that
you and your colleagues down there have to keep, especially
when a Congressman makes the inquiry, up to speed on where we
are going and what is going to happen, because what has
happened I think is a terrible injustice. Under Section 20,
they are totally eligible, and I just think someone has dropped
the ball, and as an author of IGRA, because of other pressures,
if they follow the rules and follow the steps forward set forth
in--and it is, in fact, classified tribal lands and the courts
have ruled that it is, then you have a responsibility to
respond, and you did say that to the Chairman, that you would
respond on the side of the tribe, not opposition to, especially
pressure brought by other individuals and other tribes.
See, I am one of these people that I told other people that
do not like gambling, if you don't like gambling, I will
eliminate it all, but one cannot be right for one and wrong for
the other. It is universal, and that was the intent of IGRA. I
just want to suggest that. You know, just because one tribe has
gambling here and they oppose it because another tribe wants it
over here, then eliminate them both, but don't allow one tribe
to dominate another tribe and say, No, you can't have it, but
we have ours and we don't want yours.
Now, someone said the market is not there. Mr. Gibbons said
the market is not there. I will be one of the first ones to
agree. There ought to be a lot of studying in the gaming issue
because it is very high overhead industry. Before you get
involved in it, then they ought to make a decision, yes, it is
economical or it is not. But I don't think it is right for the
BIA to take sides with an existing operation against another
side.
Let the free market decide that. That is just a statement,
not a question. Let the free market decide it. But I would
suggest anybody in this room that is interested in gambling,
check the overhead. It is not the money-maker people think it
is. It is extremely expensive, high overhead, and the returns
are not that great, but that is their decision under IGRA. It
is not the decision of anyone else.
I yield back the balance of my time.
Chairman Pombo. Further questions?
Mr. Tauzin. Mr. Chairman.
Chairman Pombo. Mr. Tauzin.
Mr. Tauzin. Thank you, Mr. Chairman.
Ms. Martin, later on today, we are going to hear from
Principal Chief Norris of the Jena Band on Choctaws in
Louisiana. My colleague was here to testify as to his
perspective on that incredible journey they have been through
with the Interior Department and the State of Louisiana.
I wanted to make a couple of points and then ask you a
couple of questions. First of all, you hear from them a pretty
sad story in which this landless tribe trying to acquire land
in trust in a community that wanted them, wanted their
presence, has been blocked, essentially, and they are now in
the situation that the only way they can possibly succeed in
their application is to go back to the service area where the
Government has correctly pointed out the community doesn't want
their presence as a gaming facility, and they literally applied
to your department with thousands of pages of documents
indicating their historic presence in the community that wants
their presence, and yet the Department has declined to take the
land as part of the initial reservation for this tribe, to take
it into trust that they might proceed.
My position from day one has been exactly as Chairman
Young's position, the author of the legislation. We are keenly
aware that existing facilities in Louisiana, both Indian gaming
facilities and private commercial gaming facilities were
launching a huge federally funded operation here in Washington,
D.C., which the press has commented on rather extensively
lately, launching this huge heavily funded lobbying
organization designed to block this particular tribe from
establishing land in trust to be able to compete with the
gaming facility and to earn some revenues for the tribe in a
community that desperately wanted them, wanted the employment,
wanted the facility there, has effectively now been blocked.
Our position from day one was don't let it happen like
that; let it be settled on its merits; consider the thousands
of pages of historic documents indicating their physical and
historic presence in the area they want to establish this land
in trust and make a decision.
Instead, you will hear today from the Jena Tribe, and I
quote: ``While we provided these materials to the Department
nearly two years ago, we are not aware that Interior has
considered the merits of our request in any serious fashion.
Instead, the Department declined to take the land in trust as
part of the initial reservation as restored lands.'' Instead,
the Department went through the two-part determination and left
this tribe in a position where the Governors, both the last
Governor and the incumbent Governor, have both failed to
respond and therefore blocked the capacity of this tribe to
locate in the area in which they have tried to get these lands
restored, and they are left now to going back to an area where
the communities don't want them.
What I see here is what Chairman Young sees. I see a
situation where we have authorized Indian gambling, rightly or
wrongly. We have authorized commercial gambling in our State,
rightly or wrongly. You can have a good debate over that, but
we have done it. The incumbents organize. They hire expensive
lobbyists and they block any competition, and so they keep a
landless tribe like the Jena Choctaws from ever having a
chance. They block them at every turn.
The Department had a chance to consider their information
and to solve this dilemma. Instead, as the tribe will testify
today, they are not aware that ``Interior has considered the
merits of our request in any serious fashion''. If that is
correct, if that is a correct statement, then I am led to the
conclusion that the politics of money and competition have
defeated this tribe in its only chance to succeed, and if that
is true, that is pretty sad. That is really pretty sad.
So within the couple of seconds I have left, would you
please comment, Ms. Martin? Is that what happened? Why hasn't
the Department seriously considered the historic documentation?
Why hasn't the Department responded to this tribe's request to
have the land taken in trust as part of their initial
reservation?
Ms. Martin.
Ms. Martin. When the Jena Band came to us about their
acquisition near Logansport, they had a number of requests that
they were making. They wanted the land to be considered initial
reservation or, in the alternative, they wanted it to be
considered for a two-part determination.
Mr. Tauzin. Sure. Right.
Ms. Martin. They, I thought ultimately, I thought--this was
their decision. They ultimately decided that they would pursue
the two-part determination after we had long discussions about
the historical record.
A two-part determination does not require us to go through
the historical analysis. It merely requires that we make the
finding with regard to the best interest of the tribe and the
detriment to the surrounding community.
Mr. Tauzin. If I can stop you there, did they decide to go
to the two-part determination--my recollection is that they
decided to go that route because it was pretty clear you
weren't going to seriously consider an application to take it
into trust as an initial reservation. Is that correct?
Ms. Martin. We felt that the historical documentation that
they had provided to us was tenuous.
Mr. Tauzin. But you made no ruling.
Ms. Martin. We did not.
Mr. Tauzin. But you pretty well signalled them we are not
going to do this for you. Right?
Ms. Martin. We signalled that there would be a lot more
work that would have to be done for us to make a historical
determination.
Mr. Tauzin. And are they correct in saying that you did not
consider the merits of their request in any serious fashion? Is
that correct?
Ms. Martin. Well, they opted to go for the two-part
determination.
Mr. Tauzin. So you stopped considering it?
Ms. Martin. We stopped considering it. They have not
renewed their request to have us consider it.
Mr. Tauzin. But again, here is the impression I got when
you all were going through that, was that, you know, there was
a pretty strong signal that, Look, you are not going to succeed
here; you better go try something else; you better go talk to
the Governor and work with the Governor, and we will work with
the two-part determination; if the Governor is willing to
negotiate a compact with you, then you can go forward. And the
Governor's term was about to end, and I will tell you what my
impression was. My impression was that the high-paid political
lobbyists over here in Washington, D.C. representing the
competitors to this tribe's application figured out that if
they could just push this thing long enough, just stop it from
happening long enough, that the incumbent Governor would be
gone, the one who had agreed to negotiate a compact, and there
would be a new Governor and then they could block it, they
could block the two-part determination.
And as you recall, the only request my office ever made was
of you was don't let that happen, give them an answer on their
request in time enough for the Governor to make the
determination. You know when the answer came in? The answer
came as the Governor was preparing to depart the mansion and
the new Governor was coming in, and there was no time left to
do the negotiations and work out a compact, which was, as you
know, a very serious, contentious negotiation, requiring the
Governor and the tribe to make agreements that didn't affect
the other tribes in the State adversely.
It looks to me, it just looks to me, that the competitors
from a financial standpoint were able to drag this thing out
long enough so that the only option for this tribe was a two-
part determination granted them at moment when the Governor was
coming in who wouldn't consider them at all, and now they are
left with an impossible situation--I want to go back to their
service area--where the parishes have already voted not to
cooperate with them. It is just an ugly mess and it smells to
high heaven. It smells to me like high-paid lobbyists were able
to delay this thing in a way that it ended up guaranteeing the
failure of this landless tribe to do what other tribes are
doing, and I am in the same position as Mr. Young. Once we
authorize, once we say you can do this, we ought to treat all
of them fairly. We ought not let the incumbent high-paid
lobbyists around here work the system in a way--this bizarre
Alice in Wonderland system in some cases, Mr. Young--to work it
in a way that ends up with an unfair result.
I think we have an unfair result here. That is my personal
view. I kind of differ with my friend from Shreveport on this,
but if it did come out unfairly, I just want you to know how
disappointed I am at the process, and perhaps maybe there is
some way to salvage this in a way that has more fairness to it;
but again, it is not out of prejudice for the Jenas or
prejudice against the Coushattas or anybody else in our State.
It is simply to make sure that the system works fairly and that
money doesn't drive the answer simply because money can work
the process and delay it in a fashion that ends up with a
negative result for a tribe. That is my problem, and I think
that happened in this case, and I know you have a different
view, and I accept that and I respect that. I just think that
some people worked this very carefully and very creatively in a
way that guaranteed this landless tribe would not succeed, and
that is not, in my opinion, very fair.
Thank you, ma'am.
Chairman Pombo. The gentleman's time has expired.
Mr. Duncan.
Mr. Duncan. Ms. Martin, I had to be at another subcommittee
meeting hearing, so I haven't heard all of the testimony, but
Chairman Young has pointed out some problems and Chairman
Tauzin just said that he thinks money and lobbyists are
controlling too much of this process. You end up your testimony
by saying: ``Our review indicates that the role of the
Secretary under Section 20(b)1(a) is limited to making
objective findings of fact regarding the best interest of the
tribe and its members and any detriment to the surrounding
community.''
What I am wondering about, do you feel that your
authority--do you have any regulatory authority if there are
abuses? For instance, I have been given an article from ``Time
Magazine'' from a year and a half ago that says most of the
revenues are going to non-Indians and it tells about a group of
Table Mountain Indians where some of the members of the tribe
are getting an average of $350,000 each while some of the other
members of the tribe are getting nothing. Are there any
problems in this program right now that you see?
Ms. Martin. Well, with respect the amount of money that
goes outside of the tribe, the Indian Gaming Regulatory Act
does place a limit on the amount of money a tribe can pay to a
gaming contractor. It sets that limit. I think it is at 30
percent of the tribe's net gaming revenues.
With respect to how much money a tribal member might be
paid under a per capita distribution, that is something that we
do handle within the Department of Interior, and I would defer
to Mr. Skibine to talk a little bit about that, the review of
those plans, the RAPs.
Mr. Skibine. You mean the Revenue Allocation Plans?
Ms. Martin. Well, you were asking about the different
amounts of money that tribal members might get.
Mr. Duncan. All I am asking--I don't know as much about
this as many of these other members do, and I am just
wondering. We are starting to see some articles about abuses or
problems within the whole system, and I am just wondering do
you see any problems or abuses within the system, and if so, do
you feel that your department or you have the authority to
correct those abuses or those problems, or do you think the
system is just working perfectly the way it is now. That is all
I am asking.
Mr. Skibine. Let me try to respond. With respect to
articles that allege that contractors and management companies
are getting too much money, I think this is an issue that is
regulated by the National Indian Gaming Commission, and we are
not here--we are not the National Indian Gaming Commission. So
I think that if there was a witness from the NIGC, that would
be the proper person to respond to that.
With respect to taking land into trust and to Section 20
determinations, I have handled these issues since 1995, and as
a career employee, we have never ever seen improprieties in the
submission by tribes for taking lands into trust or by seeking
the views of the opposition. Our determinations are made on the
record, and we have never been aware that there is a problem.
As far as we are concerned, the process of making the Section
20 determination does work well, and I think that if we look at
our record since 1988 or since 1995 when I was there, I think
it is documented that we have made all of these decisions on
the record. Some of them have been positive for tribes. Some of
them have been negative, but that is the way it goes based on
the factors that we consider.
So we do not think that with respect to the issues
regarding taking land into trust that there really is a
problem.
Mr. Duncan. Well, let me ask another question.
Mr. Skibine. Yes.
Mr. Duncan. When you all read about all these megamillions
going to lobbyists, were you surprised, and do you agree with
Chairman Tauzin that money and lobbyists are too much in
control of this whole system or this whole process?
Ms. Martin, what do you say about that?
Ms. Martin. Well, when we first heard about that, I was
shocked at the amount of money was that was mentioned in the
articles, completely shocked, but the way that IGRA is
designed, a tribe is able to spend the money that they make
through gaming on specific items that they deem are important
to their governmental operations or to the best interest of
their tribe.
Mr. Duncan. You mentioned some limits within the law. Do
you think we should put a limit on the amount of money that can
be paid for lobbying activities?
Ms. Martin. I don't know that that can be practically done.
That would mean that we would have to go into every single
tribe that operates gaming and take a look at exactly what they
spend their money on and determine if that is appropriate or
not, and I don't know that if that is a practical way to--
Mr. Duncan. That would be a pretty easy thing to find out.
The media seems to find it out pretty easily.
My time is up. Thank you very much.
Chairman Pombo. We can get into that issue at another time,
but unless you want to start limiting the amount of money that
corporations can spend on lobbying and everything else, I think
you better leave this one alone.
Mr. Young. Especially if any of you are looking to the
future.
Chairman Pombo. Are there further questions?
Moving right along, Mr. Gibbons.
Mr. Gibbons. Thank you, Mr. Chairman. I don't plan to
become a lobbyist after I leave here anyway.
Let me ask a question, Ms. Martin, that under Section 20 of
IGRA which requires some sort of consultation before land can
be taken into trust in non-heritage or non-ancestral lands for
another tribe, that consultation with other tribes, how much of
that consultation is relied upon in your organization for a
determination of whether or not to take that land into trust?
Ms. Martin. We haven't been directly confronted with that
kind of situation while I have been at the Department, but it
is my understanding that we have in the past looked at that,
and I would defer to Mr. Skibine who has handled one of those
cases.
Mr. Skibine. We do consultation with tribes that are
located within 50 miles of the proposed site, and they provide
submission and we look at it very carefully and it becomes part
of the record. What we do not do is, for instance, if there is
a tribe with a casino within 50 miles, in our view, competition
alone is not going to be a determining factor as to whether to
approve this application.
Mr. Gibbons. So if one tribe established a casino on trust
land in an area that was lucrative for casino operations in
that area, then you would not oppose one or several other
tribes moving in and creating their casinos on adjacent land to
that tribe; there would be no justification in your mind to
deny these other tribes the same opportunity that had been
created for the previous tribe that was there?
Mr. Skibine. We will look at the record. We will look, but
in itself, if another tribe is located and said, Hey, we have a
casino this area, therefore you have to disapprove this because
it is going to competition, that alone will not be sufficient
for us to agree.
Mr. Gibbons. All right. By itself, it wouldn't be, but how
much does it weigh in your consideration in granting that?
Mr. Skibine. Well, there is no set percentage on how much
it weighs. We just consider it and we carefully look at the
arguments that they are making.
Mr. Gibbons. Have you ever denied a tribe from taking land
into trust on the basis of someone objecting to it because it
would be competition?
Mr. Skibine. Well, I think during the Hudson Dog Track
issue in the previous Administration, the Administration
disapproved a request from three tribes in Wisconsin to take
land in trust in Hudson, Wisconsin, and in part, it was made
because of the fact that, from what I recall, there were tribes
in between that were objecting to this application based on
competition.
Mr. Gibbons. Ms. Martin, who in the National Indian Gaming
Commission audits the payments and the operations of these
casinos in order to determine how much of the money is being
actually spent in either contractors or management firms? Who
does the auditing of that operation?
Ms. Martin. Well, the Commission operates and has several
different--I am not intimately familiar with the Commission,
but they do have different divisions and they do have, I
believe, an audit division that does review those audits.
Mr. Gibbons. So they can determine whether or not the
amount that is being paid to these management firms is
appropriate in terms of the profitability or the income that is
coming into the casino?
Ms. Martin. Yes, I believe.
Mr. Gibbons. Now, if there is a contract in there, does the
contract dictate or does the standards of profitability--in
other words, who is making one money on this? What I am worried
about is the opportunity for mischief to be created where these
management firms are taking advantage of a tribe on one of the
casinos? What makes that determination?
Ms. Martin. Well, I think that IGRA sets out a basis or a
limit on the amount of money that a contractor can collect.
Mr. Gibbons. It caps it.
Ms. Martin. It caps it.
Mr. Gibbons. It caps it, but it doesn't tell you when there
is less profit whether or not they are taking advantage of
them.
Ms. Martin. Well, I believe that the cap is on net revenues
so that all of the funds above net revenues are profit for the
tribe at least.
Mr. Gibbons. Let me real quick-like ask a quick question.
There has been press reports lately due to disputes over who is
eligible for tribal membership, including reports of lengthy
and extensive litigation over the issue of tribal memberships.
Do you have any views on why individual Indians would engage in
disputes over tribal membership, including the payment of high
legal fees to obtain a tribal membership in one tribe that they
may or may not yet be a member of? Why are they engaged in that
sort of activity?
Ms. Martin. Well, I don't know for every single person what
their motivation might be. There are, I think, some particular
cases where tribal members may receive per capita payments and
a person may want to be eligible for one of those payments, and
so they would seek membership because of that.
Mr. Gibbons. OK. Why would they resist it would be the
alternative.
Ms. Martin. I would like to comment, though, on your
question with regard to the location of a gaming facility and
whether we would allow or disapprove of a FITA trust
application within the area of another off-reservation
facility. We haven't had to directly address that question in
terms of FITA trust applications, but we have had a number of
concerns with regard to gaming compacts that have come before
us and expressed a geographic limitation on competition from
other tribes coming in, and it is of great concern to us at the
Department, but we do not feel that IGRA allows us to
disapprove a compact in those circumstances.
Mr. Gibbons. Well, IGRA doesn't provide for any limitation,
geographic limitation, does it?
Ms. Martin. It does not provide for a limitation, but it
does not prohibit a limitation.
Mr. Gibbons. Thank you, Mr. Chairman.
Chairman Pombo. Any further questions?
Mr. Young.
Mr. Young. By the way, Ms. Martin, I want to compliment you
on your professionalism before this group. That is always a
pleasure. So I want to compliment you, but I do have one
question.
On the Section 20 determination, does the Department of
Interior or IGRA make that determination, or is it both?
Ms. Martin. Well, IGRA delegates that determination to the
Secretary, but it limits her consideration to two factors: the
best interest of the tribe, which can be based on a number of
factors, that is what we expect the economic benefit to be to
the tribe, whether there will be employment opportunities
afforded to the tribal members because of the operation, if
there is going to be an increase in our other associated
services such as health care or education. The other finding
the Secretary has to make is whether it is a detriment to the
local community, that is were there going to be environmental
factors that make it a negative.
Mr. Young. What you are saying is IGRA makes a
recommendation to the Department of Interior. In conjunction,
you make the determination, or do you make the determination
individually?
Ms. Martin. We make the determination based on IGRA.
Mr. Young. You make the determination.
OK. That is all I have.
Chairman Pombo. Mr. Walden.
Mr. Walden Thank you, Mr. Chairman.
In my district, the Warm Springs Tribe is looking at
acquiring some land and putting it into trust so that can they
can petition the Governor and open a casino in a community that
is about 17 miles in the land that they already have pre-IGRA
in trust. That is land is on the side of hill in the Columbia
Gorge National Scenic Area. They could, as I understand it, go
ahead and construct a casino on land that is already within the
scenic area that they have had in trust pre-IGRA.
Ms. Martin. As long as they have a valid tribal State
compact that authorizes them to game on such a location.
Mr. Walden All right. So the Governor would still have to
approve whether or not they could locate the land they already
have in trust pre-IGRA?
Ms. Martin. Unless they already have a tribal state compact
that authorizes that, they would have to go to the Governor.
Mr. Walden. OK. I know they do have gaming already on the
reservation, but I don't know that it allows for more than one
facility. In this situation, though, the concern is that the
land they have acquired is in a neighboring community that
actually is supportive of having this facility constructed as
opposed to my hometown that wasn't. The land that they have
pre-IGRA is my hometown and up on a hill. This is off in a port
area. I guess I am just wondering what the process is in these
circumstances. I am assuming that they petition you, as they
have, I believe, and that then if it is benefit of the tribe,
both economically and if the community is supportive, it sounds
like from what I am hearing today, those are the big barriers.
Is that right? They still have to get the Governor's approval.
I realize that.
Ms. Martin. Right. Those would be key factors in our making
the two-part determination, but it would ultimately also have
to be concurred in by the Governor, and then they would also
have to have the compact.
Mr. Walden All right. If people outside of this community
where they are looking at acquiring the land have objections,
what role is there for them to play?
Ms. Martin. We would look at their comments, weigh them in
the consideration, but if the immediate community that is
affected really wants to have the gaming, I think that might
be--we would take more consideration of that into effect, and,
in fact, that is some of what happened with the Jena two-part
determination. The immediate community wanted the casino while
surrounding communities, actually communities that were quite a
bit further away, objected to it. Ultimately, we looked at the
local community that was immediately affected.
Mr. Walden So the local community's input has greater
weight than a neighboring community?
Ms. Martin. Yes.
Mr. Walden And you still use as the other criteria the
affect on the tribe economically?
Ms. Martin. Yes, we do.
Mr. Walden Which would allow them to come in. Is there
anything else that weighs in beyond those two points as major
considerations?
Ms. Martin. No. It is those two factors, and, in fact, the
lengthy discussion we had with regard to whether we could
consider distance was a result of our concerns with distance
altogether. We looked at the legislative history of IGRA and
what the letter of the law says, and we concluded that we could
not look at other factors.
Mr. Walden I see.
All right. Thank you, Mr. Chairman.
Thank you for your answers.
Chairman Pombo. Thank you.
No further questions.
Mr. Pallone.
Mr. Pallone. Mr. Chairman, I just am having difficulty
because I have the fisheries hearing going on at the same time,
and know I mentioned that to you, if we can avoid that in the
future.
I just wanted to ask--you know, I made a statement in the
beginning that there doesn't seem to be an explosion of off-
reservation Indian gaming, but could you tell us how many
applications for taking lands into trust for off-reservation
gaming have actually been since 1988 and for how many
applications have you actually made a determination?
Ms. Martin. I believe that the total number of applications
we received is somewhere around 43. We have made--well, we have
made positive determinations in 31 of those cases, but there
has been State concurrence.
[Mr. Skibine confers with Ms. Martin. ]
Ms. Martin. Well, State concurrence on off-reservation two-
part determinations, there have only been three since 1988.
Mr. Pallone. OK. And then you also mention--I wasn't here.
Again, I was at the fisheries hearing--with this two-part
determination, I was told by my staff that you made some
statement about how they don't look or they don't pay a lot of
attention to historical roots, and I know that Congressman
McCrery mentioned that, and that was one of the questions that
I asked him as well. Is that true that they don't pay attention
to that, and why is that the case, if it is?
Ms. Martin. Well, with regard to the two-part
determination, again, we went through a lengthy analysis of the
legislative history and what the letter of the law says, and we
concluded that as with distance, which is a concern, IGRA does
not authorize or contemplate our looking at a tribe's
historical ties with regard to a two-part determination. We do,
however, look at those historical ties when we look at the
exceptions, the land claim settlement, restored lands, or
initial reservation proclamations.
Mr. Pallone. So your decision not to look at it that much
or not to pay too much attention is based on the statute
itself?
Ms. Martin. It is and the legislative history behind where
we can't find guidance within the letter of the law.
Mr. Pallone. OK. Thank you.
Chairman Pombo. No further questions.
I want to thank the witnesses for their testimony and
remind you that there will be further questions that will be
submitted in writing. If you could answer those in writing for
the Committee, I would appreciate it.
Ms. Martin. Sir, could I say one more thing, please?
Chairman Pombo. Yes.
Ms. Martin. I just wanted to--I see Chairman Tauzin is back
in the room, and I just wanted to let you and the Committee
know that I was the decisionmaker on the Jena Band two-part
determination, and I can guarantee to you absolutely that there
was no influence of high-priced lobbyists in my decision,
either to make or not make the decision, and that, in fact, the
other side has accused me of trying to help the tribe before
the Governor went out of office.
Mr. Tauzin. Would the gentleman yield?
Chairman Pombo. Mr. Tauzin.
Mr. Tauzin. Yes. I thank you for that statement. I want to
clear the record too. I would never, as I said, ever suggest
that there was influence on your office or that you yielded to
influence. My concern was that this thing, the process, is so
long, so complicated that people can--with the exercise of
proper finances, they can help drag out a process, and my
complaint from day one about the way this thing was going was
not about how it would come out, because should have been a
subjective decision made on the basis of the evidence before
the Interior Department. That is all I ever asked for. My prime
concern was that people were going to drag this process out and
they were going to use whatever they could do in order to keep
you guys from making a decision in time for the Governor to
act, and I think they succeeded, and I was told last year
whenever this was occurring that that was the game that these
high-paid lobbyists were trying to perform.
So I am not saying that you did anything or that the
Department did anything untoward. I don't think you did. I
think the process lends itself to the high-paid lobbyist using
it for delay and slow-rolling the process in order to ensure
that decisions can't be made in a timely fashion, and I think
that happened in this case. So that is my complaint. It is not
with any one of you. Certainly, as I said, I have the deepest
respect for both you and the Department and for the work you
do. My concern is that we have set up a system that
unfortunately allows for people to misuse the system in a way
that helps their competitive advantage, and that is wrong, and
that is all I am saying.
I thank you.
Ms. Martin. Thank you, sir.
Chairman Pombo. Thank you. I am going to dismiss this panel
and call up our next panel, consisting of Ernie Stevens, who is
the Chairman of National Indian Gaming Association, who is
accompanied by Mark Van Norman; Principal Chief Christine
Norris of the Jena Band of Choctaw Indians. She is accompanied
by Heather Sibbison of the law firm of Patton Boggs; and Chief
Leaford Bearskin of the Wyandotte Nation.
Now that I have you all seated, if I could have you stand
and raise your right hand.
[Witnesses sworn.]
Chairman Pombo. Thank you very much. Let the record show
they all answered in the affirmative.
Mr. Stevens, we are going to begin with you.
Mr. Young. Mr. Chairman.
Chairman Pombo. Mr. Young.
Mr. Young. Mr. Chairman, if I may at this time have the
privilege, because I mentioned to Ms. Martin my interest in the
Wyandottes for the last 8 years, I would like to--he is being
recognized, but I would like to recognize on my own behalf
Chief Leaford Bearskin. He is the Chief of the Wyandotte Nation
since 1983, and not only that, I am going to do this because
there are only a few of us in this room that the maturity, and
he has a little more years than I do, but he has served our
Nation in many different ways, including 41 years in the U.S.
Government. More than that, though, during World War II, he was
the chief aircraft commander of the B-24 labrador [sic] bomber
in New Guinea as part of the 90th Armament Group on the Fifth
Air Force and flew 46 combat missions of heavy bombers. He
served as squadron commander in Korea, and that is my time. He
was later commander of Strategic Air Command at Headquarters in
Nebraska and after retired as lieutenant colonel, from a
sergeant to lieutenant colonel, which is phenomenal considering
I went from a private E-1 to private E-1 three times. I hope
your appreciate that.
Mr. Tauzin. There has got to be a story there.
Mr. Young. He has been the Chief of the Wyandotte tribal
organization and has been recognized by many different groups
about his leadership and his contribution to not only his
tribes, but to the Nation and the State itself, and I
personally will tell you I believe that this man has led the
Wyandotte as should have been led, but more than that, I think
they have been screwed over by the U.S. Government, and I think
that is very inappropriate.
And I will say again they qualify for Section 20. He is
here to testify what happened to them, the affects upon the
tribe itself and why I believe it was the wrong thing to do as
the Government has enforced it and the State of Kansas has
enforced it. So I would just like to acknowledge a great
American.
Chief, I am glad to have you here today, and it is a
pleasure to have you representing not only your tribe, but this
Nation as a whole, and thank you for your service to this great
Nation as we all serve it. Thank you, Chief.
Mr. Bearskin. Mr. Young, thank you very much. I would like
you to talk to my board of directors and maybe I can get a
raise.
Mr. Young. Now you are talking my language.
Mr. Tauzin. Mr. Young, did he fly a labrador or a
liberator?
Mr. Young. Liberator. I can't pronounce it.
Mr. Tauzin. Mr. Bearskin, did you fly a labrador or a
liberator?
Mr. Bearskin. Liberator.
Chairman Pombo. I tell you, sometimes I mess up on people's
names, but the former Chairman set such a low standard that I
can't do any worse.
Mr. Stevens.
STATEMENT OF ERNIE STEVENS, JR., CHAIRMAN,
NATIONAL GAMING ASSOCIATION
Mr. Stevens. Good morning, Mr. Chairman, and again, I as
well am greatly honored to be next to a great chief and a great
soldier. As you know, many of our soldiers from the beginning
of any conflict in this country have stepped up in great
numbers and mostly in terms of volunteers. And I just talked to
my nephew yesterday, and he is stationed in an Army camp. He
has been back. He was on the front line. On 9-11, he signed up
to go defend his country and has been there, been through the
toughest part of that conflict, and his platoon sergeant said
they may be going back over soon.
So with that, sir, I just wanted to say how impressed and
how intimidated just a little bit I am to sit next to such a
great soldier, like my father.
Mr. Chairman, I would like to say good morning to you and
the rest of the committee members. I know people are busy here.
We will try to be as brief as we can and summarize my statement
for the record. I have a detailed statement that I will submit
for the record, and I will try to summarize that as quickly as
I can.
I am honored to be here this morning to share NIGA's views
on the issues of tribal land acquisition for gaming purposes.
This subject requires some historical overview to put the topic
into perspective. There are also a few members of NIGA's
executive board present as well today.
As you know, Indian tribes were independent self-governing
communities long before the arrival of European nations. Upon
their arrival, the nations of England, France, and Spain all
entered into treaties with tribes to maintain their peace,
build wartime alliances, and establish a means of trade and
commerce. When the U.S. was formed, it too entered into
treaties with tribes for the same reasons. When the U.S.
ratified the Constitution, it specifically acknowledged the
importance of trade and tribal governments in the commerce
clause which states that Congress shall have the power to
regulate commerce with foreign nations and among several States
and with the Indian tribes.
Over the next 200 years, the United States continued to
acknowledge the governmental status of Indian tribes through
the hundreds of Federal laws and regulations and U.S. Supreme
Court decisions. Despite these promises of peace and
friendship, Federal policies in the 1800s devastated the Indian
tribes and their economies. The United States Indian population
plunged from 15 million in 1492 to only 250,000 in 1890.
The first of these policies, removal, forced a number of
these tribes to leave their homelands in the east and to travel
to remote areas west of the Mississippi River. Tens of
thousands of Indians died on the trails of tears on their way
to Oklahoma and other reservations. Today, the removal policy
would be denounced as ethnic cleansing. Our Indian nations
still suffer from the damage and dislocation caused by the
removal policy.
After the removal policy proved a failure, the United
States turned to the policy of allotment and assimilation. The
Allotment Act violated the treaties which agreed to preserve
tribal homelands by wrongly selling the reservation lands for
settlement to non-Indians. By 1934, the policy of allotment
alone caused the loss of over a hundred million acres of Indian
lands. Couple that with Indian lands lost through the removal
policy, the total grows well over to 300 million acres lost.
In 1934, Congress acknowledged the allotment was a complete
failure and altered its Indian policy through the enactment of
the Indian Reorganization Act. Reorganization authorized the
Secretary of Interior to acquire lands in trust for Indian
tribes. In 1953, Congress again shifted its Indian policy, this
time to termination which ended the Federal Government's
recognition of certain tribes as governments along with the
rights to their homelands. In the 1960s, President Kennedy and
Johnson moved away from the termination policy. In 1970,
President Nixon formally repudiated termination and announced a
new policy supporting Indian self-determination which remains
in tact today.
Through the self-determination policy, the Federal
Government established programs similar to those used to help
support State and local governments. These programs seek to
help tribes rebuild their communities and rebuild reservation
economies. In addition, tribes began to look for a steady
stream of tribal governmental revenue. With the rise of the
State lotteries, many tribes looked to gaming as the answer for
their budgetary concerns. State governments and commercial
gaming operations challenged the rights of tribes to conduct
gaming on their lands. These challenges culminated in the
Supreme Court case California v. Cabazon Band of the Mission
Indians in which the court upheld the right of tribes as
governments to conduct gaming on their lands. The court
reasoned that gaming is crucial to generating tribal
governmental revenue and knows that gaming has become an
essential means of employment.
In 1988, one year after the Cabazon decision, Congress
enacted the Indian Gaming Regulatory Act, or IGRA, to promote
tribal economic development, tribal self-sufficiency, and
strong tribal governments. In the 15 years since the enactment
of IGRA, Indian gaming has become the native American success
story. Tribal governments have used gaming to rebuild many
communities that were all but forgotten. Gaming has helped to
preserve our culture and is providing a hope for an entire
generation of Indian youth. Schools, hospitals, roads, and good
relationships with surrounding communities are just a few
examples.
IGRA generally requires that tribal gaming be conducted on
Indian lands, but the Act also makes important exceptions that
account for problems created by the United States historical
policies of removal, allotment, and termination, as I
previously noted. For example, many tribes have sought for more
than a hundred years to restore their homelands wrongly taken
through the removal and allotment policies. Accordingly, IGRA
recognizes that tribes may conduct gaming on lands placed in
trust as a part of a land claim settlement. In addition, the
governmental status of a number of tribes was wrongly
terminated either by Congress in direct acts of termination or
through wrongful administrative termination by the Bureau of
Indian Affairs. As a result, IGRA also recognized that newly
acknowledged and restored tribes can conduct gaming on their
initial reservations and restored lands.
IGRA also contains a more general exception which permits
tribes to apply to the Secretary of the Interior to use after-
acquired lands for land gaming purposes. This two-part process
first requires the Secretary to consult with local governments
and neighboring tribal governments to determine whether the use
of lands for gaming would be in the best interest of the tribe
and not detrimental to the surrounding community. We believe
that it is important for the Secretary to consult with
neighboring Indian tribes because the tribes have an interest
in the development and impacts of new gaming operations in the
area. Second, the Governor of the State must be consulted and
must concur before the land can be taken into trust and used
for gaming purposes. Congress intended the Governor to make
that decision in good faith, considering the interests of all
concerned parties. And as previous stated this morning, only
three tribes have successfully navigated the process in over 15
years under IGRA. That is the Fourth County Potawatomi Tribe in
Milwaukee, Wisconsin, the Kalispel Tribe in Spokane,
Washington, and the Keweenaw Bay Indian Community in Marquette,
Michigan. These tribes have shown that the use of after-
acquired lands for Indian gaming under Section 20 is positive
for the tribe involved, the local communities, and the State
when this process is used properly.
To briefly conclude, Mr. Chairman, we feel that the media
sensation that Indian gaming is exploding is overblown. IGRA's
exceptions are narrow. They recognize that tribal government
lands were wrongly taken and acknowledge that tribes in these
situations should be treated fairly. While the Section 20 two-
part determination process is not without its difficulties, we
feel that as long as the process is followed and that the
necessary parties are fully consulted, that those difficulties
will be addressed. In our view, Section 20 should not be
amended at this time.
Mr. Chairman, that is the summary of my complete statement,
and the only thing I really wanted to add is, you know, there
was a little bit of discussion throughout the morning about
taxes, and tribes, you know, are governments and I know you
that we are not subject to tax, but tribes do pay Social
Security taxes as employers. Tribal members are taxed. Vendors
pay income tax, and overall Indian gaming generates over seven
billion in Federal, State, and local revenues each year, in
addition to that, approximately 70 million to charitable
contributions. And what I said previously in my testimony about
service agreements, we are on a very high percentage basis
working cooperatively with our communities around us, and I
think Section 20 also addresses that.
So we feel that there are positive examples throughout this
country about working cooperatively with the neighbors in these
areas. So we think it is cumbersome, but we think it is a
process that is appropriate, and we think that the three
examples there are great examples, and to say that this is
reservation shopping or it is blown out of proportion or there
is an explosion of gaming is certainly, on behalf of the record
as we see it and report it to you today, is certainly not an
appropriate analogy.
[The prepared statement of Mr. Stevens follows:]
Statement of Ernest L. Stevens, Jr., Chairman,
National Indian Gaming Association
INTRODUCTION
Good morning Chairman Pombo, Ranking Member Rahall, and Members of
the Committee. My name is Ernest Stevens, Jr., and I am Chairman of the
National Indian Gaming Association and a member of the Oneida Nation of
Wisconsin. The National Indian Gaming Association (NIGA) is an
intertribal association of 184 federally recognized Indian Tribes
united with the mission of protecting and preserving tribal sovereignty
and the ability of Tribes to attain economic self-sufficiency through
gaming and other economic endeavors. I am honored to be here this
morning to share NIGA's views on the issue of tribal land acquisitions
for gaming purposes.
Indian Tribes as Governments
The complex issue of tribal land acquisitions for gaming purposes
requires a historical overview of the status of Indian Tribes as
governments and tribal landholdings to place the subject in proper
perspective.
Before Columbus, Indian tribes were independent sovereigns vested
with full ownership and authority over their lands. European nations
acknowledged Indian nations as sovereigns and entered into treaties to
acquire lands, establish commerce, and preserve the peace. When the
United States was established, it too recognized the sovereign status
of Tribes through treaties for these same reasons. The U.S. during the
late 1700s and early 1800s was vulnerable to recurring attack from
England. Thus, the United States sought to maintain peace with tribal
governments and sought them as allies. The new government also sought
to build its economy, and recognized that securing an exclusive trade
relationship with tribal governments would further that goal.
The United States Constitution specifically acknowledges the
importance of trade with tribal governments in the Commerce Clause,
which states that ``Congress shall have power to regulate commerce with
foreign nations, and among the several states, and with the Indian
tribes.'' U.S. Const., Art. I, Sec. 8, cl. 3. For these reasons, the
United States policy on Indian affairs in the formative years of the
new Republic was one of respect and recognition that tribal governments
were necessary allies to protecting the Union both politically and
economically.
During the Revolutionary War, the United States adopted the legal
principles and practice of European nations and acknowledged the
sovereign status of Indian tribes, with full ownership and authority
over their lands. The 1778 Treaty with the Delaware Nation was the
United States' first Indian treaty, and it provided:
[A] perpetual peace and friendship shall henceforth take
place through all succeeding generations: and if either of the
parties are engaged in a just and necessary war with any other
nation or nations, that then each shall assist the other in due
proportion to their abilities, till their enemies are brought
to reasonable terms of accommodation.
[W]hereas the United States are engaged in a just and
necessary war, in defense of life, liberty and independence,
against the King of England the Delaware nation stipulate[s]
and agree[s] to give a free and safe passage through their
country to the troops affording to said troops supplies of
corn, meat, [and] horses. And engage to join the troops of the
United States with a number of their best and most expert
warriors.
My own tribe, the Oneida Nation, assisted General Washington and
the United States by providing food for the troops during the cold
winters in Valley Forge.
In the Northwest Ordinance of 1787, the Continental Congress
pledged that the United States would pursue a just policy toward Indian
nations:
The utmost good faith shall always be observed towards the
Indians, their land and property shall never be taken from them
without their consent; and in their property, rights, and
liberty, they never shall be invaded or disturbed.
For over two hundred years, the United States Constitution,
treaties, hundreds of federal laws, and U.S. Supreme Court decisions
all acknowledge that Indian Tribes are governments. The 2000 Executive
Order on Consultation and Coordination with Indian Tribal Governments,
issued by President Clinton and later affirmed by President Bush,
provides:
Our Nation, under the law of the United States has recognized
the right of Indian tribes to self-government. As domestic
dependent nations, Indian tribes exercise inherent sovereign
powers over their members and their territory. The United
States work[s] with Indian tribes on a government-to-government
basis concerning Indian tribal self-government, tribal trust
resources, and Indian tribal treaty and other rights.
Consultation between sovereigns is still the cornerstone of
Federal-Tribal government-to-government relations today.
Historic Loss of Indian Lands
Despite these promises of peace and friendship, federal policies
throughout the 1800s caused significant damage to tribal communities
and the Indian land base. The Indian population in the United States
plunged from 15 million before Columbus to only 250,000 by the end of
the Indian Wars in 1890. During this same time, Indian nations lost
hundreds of millions of acres of their homelands and were pushed onto
the most remote corners of the United States.
Removal Policy
During the late 1820s, the United States established the ``Removal
Policy'' and forced the Cherokees and other Tribes to walk a number of
Trails of Tears. Tens of thousands died on their way to remote lands
west of the Mississippi River. Many others stayed behind, and today the
Cherokee Nation is represented by both the Cherokee Nation of Oklahoma
and the Eastern Band of Cherokees in North Carolina. Many other Tribes
were divided by the Removal Policy and are represented on both sides of
the Mississippi. Today, the ``Removal Policy'' would be denounced as a
form of ethnic cleansing. Indian nations continue to suffer from the
damage and displacement caused by the Removal Policy.
Allotment and Assimilation
In 1868, the United States continued to enter into treaties with
Tribes for land exchanges which proclaimed, ``From this day forward all
war between the parties to this agreement shall forever cease. The
Government of the United States desires peace, and its honor is hereby
pledged to keep it.'' The treaties promised that the United States
would acknowledge that the reserved lands would serve as the
``permanent home'' of the respective Indian nations.
However, the United States adopted a policy of Allotment and
Assimilation, which violated each of these treaties. The Allotment
Policy also ignored Tribal government laws on land use, and parceled
out tribal lands in 160-acre units to heads of individual tribal
households. After heads of households received their allotments, the
Government sold the remaining reservation lands to non-Indians. As a
direct result of the Allotment policy, Indian land holdings plunged
from 138 million acres in 1887 to 48 million acres by 1934. All told,
Removal and Allotment caused the taking of well over 300 million acres
of Indian homelands.
Indian Reorganization
In 1934, in cooperation with Congress, President Roosevelt secured
the enactment of the Indian Reorganization Act to promote ``local self-
government'' for Indian Tribes. Recognizing that tribal communities had
been devastated by the loss of almost 100 million acres of land, the
Act gave the Secretary of the Interior authority to reacquire lands in
trust for Tribes and individual Indians. The Act was very well intended
and remains law today, but has never been adequately funded.
Termination Policy
In the 1950s, federal policy turned towards Termination.
Termination essentially ended the federal government's recognition of
certain Indian Tribes as governments and sought rapid assimilation of
individual Indians, instructing them to disband and adopt a non-Indian
way of life. These Tribes also lost their homelands again passing
Indian lands into the hands of non-Indians. Tribes not directly
terminated faced severe program budget cuts, and reservation economies
were completely ignored.
The cumulative effect of all of these policies destroyed tribal
economies and the Indian land base. Indeed, in the 1960s, Indian
communities faced the highest national rates of poverty, crime, poor
health care access, education dropouts, and countless other social and
economic problems. Reservation economies were in ruins.
The Era of Self-Determination and the Indian Gaming Regulatory Act
The federal government again recognized the failure of its Indian
policy, and again shifted its views. In the 1960s, Presidents Kennedy
and Johnson included Indian Tribes in federal community development
programs, in the War on Poverty, and in Civil Right legislation to
strengthen tribal self-governance. In 1970, President Nixon formally
announced the federal policy supporting Indian Self-Determination, and
repudiated the Termination Policy. At the heart of the new policy was
the federal government's commitment to foster reservation economic
development and helping tribal governments to attain economic self-
sufficiency. The federal government began to make available to tribal
governments a number of the programs that were used to help state and
local governments. These programs provide Tribes with the ability to
rebuild their communities, and have created new economic opportunities
throughout Indian country.
In addition, in the late 1960s, Tribes began to look for a steady
stream of tribal governmental revenue separate from federal program or
appropriation funds. At the time, the recent rise in State government
lottery systems caused a number of Tribes to consider gaming as the
answer for their budgetary concerns.
State governments and commercial gaming operations challenged the
rights of Tribes to conduct gaming on their lands. These challenges
culminated in the Supreme Court case of California v. Cabazon Band of
Mission Indians, 480 U.S. 202 (1987). The Court in Cabazon upheld the
right of Tribes, as governments, to conduct gaming on their lands. The
Court reasoned that Indian gaming is crucial to tribal self-
determination and self-governance because it provides tribal
governments with a means to generate governmental revenue for essential
services and functions. The Supreme Court also recognized that
California Tribes were left on reservations that ``contain little or no
natural resources which can be exploited,'' so the Court acknowledged
that Indian gaming is also essential to provide tribal employment. In
1988, one year after the Cabazon decision, Congress enacted the Indian
Gaming Regulatory Act to promote ``tribal economic development, tribal
self-sufficiency and strong tribal government.'' 25 U.S.C. Sec. 2702.
In approximately 30 years (just over 15 years under IGRA), Indian
gaming has become the Native American Success Story. Today,
approximately 65% of the federally recognized Indian Tribes in the
lower 48 states have chosen to use gaming to aid their communities.
Indian gaming has helped many Tribes begin to rebuild communities that
were all but forgotten. Because of Indian gaming, our Tribal
governments are stronger, our people are healthier and our economies
are beginning to grow. Indian country still has a long way to go. Too
many of our people continue to live with disease and poverty. But
Indian gaming has proven to be one of the best available tools for
Tribal economic development.
In 2003, Indian gaming generated 500,000 jobs nationwide and $16
billion in gross tribal government revenues (net tribal gaming revenues
are much smaller when accounting for payroll, operating costs,
overhead, and debt service). Indian gaming is funding essential tribal
government services, including schools, health clinics, police and fire
protection, water and sewer services, and child and elderly care. And,
Indian gaming generates over $7 billion in added revenue for the
Federal, State and local governments. Despite the fact that Indian
Tribes are governments, not subject to taxation, individual Indians pay
federal income taxes, people who work at casinos pay taxes, those who
do business with casinos pay taxes, and those who get paid by casinos
pay taxes. As employers, Tribes also pay employment taxes to fund
social security and participate as governments in the federal
unemployment system. In short, Indian gaming is not only helping
rebuild Indian communities, but it is also revitalizing nearby
communities.
Treatment of After Acquired Lands Pursuant to IGRA
IGRA establishes a general policy that Indian Tribes should only
conduct gaming on lands held in trust by the United States prior to
passage IGRA on October 17, 1988. 25 U.S.C. Sec. 2719. Congress also
accounted for historical circumstances such as diminished reservations,
terminated Tribes, and Indian land claims, and established reasonable
exceptions to provide for the use of ``after acquired'' lands when
necessary.
In addition, Congress established a more general exception for the
use of ``after acquired'' lands for gaming where the Secretary of the
Interior after consultation with local governments and neighboring
Indian tribes determines that Indian gaming on the lands is in the best
interests of the Tribe and would not be detrimental to the surrounding
community. The Governor of the State must then concur in the
Secretary's decision. Of course, the Tribe must also successfully
negotiate a compact with the State before conducting class III gaming
on such lands.
Within Reservation and Contiguous Land
Recognizing the excessive loss of Indian lands and sporadic
checker-board landholdings due to Removal and Allotment, Congress
through IGRA permits Tribes to conduct gaming on lands within or
contiguous to existing reservations. 25 U.S.C. Sec. 2719(a)(1). These
``contiguous'' land acquisitions are generally without controversy. For
example, the White Earth Ojibwe reservation was heavily checker-boarded
by the loss of trust lands under the Allotment Policy, and without much
fanfare, the White Earth Band reacquired a 61-acre parcel of land
within its existing reservation area for gaming in 1995.
Land Claim Settlements
For similar reasons, IGRA permits gaming on Indian lands reaffirmed
through a land settlement. 25 U.S.C. sec. 2719(b)(1)(B)(i). In our
view, these trust acquisitions are simply a measure of justice for
Tribes that have suffered historical wrongs. Where lands were
wrongfully taken and are restored through land settlement, in essence,
they relate back in time to the original holding of the lands by the
Tribe.
Newly Acknowledged and Restored Tribes
In addition, the governmental status of a number of Tribes was
wrongly terminated, either by Congress in direct acts of termination or
through wrongful Administrative termination by the Bureau of Indian
Affairs and other agencies. As a result, IGRA also recognizes that
newly acknowledged and restored Tribes can conduct gaming on their
initial reservations and restored lands. Congress reasoned that these
lands should be available for gaming because these Tribes have the same
sovereign status as other federally recognized Indian Tribes. See 25
U.S.C. Sec. 479a (Federally Recognized Indian Tribe List Act).
For example, the Mohegan Tribe's land was taken into trust under
the exception for the initial reservation for newly recognized tribes.
25 U.S.C. Sec. 2719(b)(1)(B)(ii). Of course, the residents of
Uncasville were well aware of the Tribe's historical status as a State-
recognized Indian tribe and the status of their lands as a state Indian
reservation. The Grande Ronde Indian Community in Oregon was restored
to recognition after termination, and in 1990, the Secretary acquired
about five acres of land in trust pursuant to the exception for Tribes
restored to recognition. 25 U.S.C. Sec. 2719(b)(1)(B)(iii).
Section 20 Two-Part Consultation Process
Section 20 of the Indian Gaming Regulatory Act also provides that
an Indian Tribe may apply to the Secretary to place land into trust for
gaming purposes. This process has sometimes been criticized as divisive
among tribal governments, and has led to media hype regarding the
unbridled proliferation of tribal gaming operations. While the
procedure is not without its difficulties, we feel that as long as the
process in IGRA is followed and the necessary parties are consulted,
that there is no need at this time to amend the Act.
The two-part determination process is significant. Upon application
by a Tribe the Secretary of the Interior begins a review to make a
determination of whether the acquisition of the land in trust for
gaming purposes would be in the best interests of the Indian tribe. The
Secretary must also consult with the local area government and
neighboring Indian tribes to ensure that such acquisition ``would not
be detrimental to the surrounding community.'' 25 U.S.C.
Sec. 2719(b)(1)(A).
We believe it is important for the Secretary to consult with local
governments and neighboring Indian Tribes because the local community
and Tribes in the area have an interest in the development of new
gaming venues in their area. Certainly, local governments may be
impacted by additional calls on their resources. Generally, tribal
governments have been generous in negotiating agreements with local
governments to underwrite those services and mitigate the impacts of
gaming.
Neighboring Indian Tribes may also be impacted by new gaming
venues, either through a market impact or concerns about overlapping
aboriginal areas. Consultation can help to identify and address such
concerns. It is important to remember that the Secretary of the
Interior has a trust responsibility to the neighboring Tribes as well
as to the applicant Tribe.
If the Secretary makes a determination favorable to the applicant
Tribe, then the process turns to the Governor of the State in which the
land is located. The Governor is consulted to ensure that the overall
interests the State are considered, and the process will not move
forward unless the Governor concurs with the Secretary's determination.
The Governor's concurrence serves as a condition precedent to the use
of ``after acquired'' lands for Indian gaming. The Governor's
concurrence authority should be exercised in ``good faith,'' just as
Congress provided for in the tribal-state compact process.
While we are aware of reports of a number of Tribes have applied
for ``after acquired'' land to be placed in trust for gaming outside
the historical exceptions, only three Indian Tribes have successfully
navigated the Section 20 two-part process: the Forest County Potawatomi
Tribe in Milwaukee, Wisconsin, in 1990; the Kalispel Tribe in Spokane,
Washington, in 1997; and the Keweenaw Bay Indian Community in
Marquette, Michigan, in 2000. In our view, these Tribes have shown
that, when the two-part determination process is properly applied, the
use of ``after acquired'' lands for Indian gaming is positive for the
Tribes involved, the local communities, and the State.
The Forest County Potawatomi Tribe, for example, invested $120
million in its gaming facility and has been a leader in creating jobs
in Milwaukee, with 7,000 jobs. The Tribe also dedicates $14 million
annually to fund the Milwaukee Indian School, a school that is
dedicated to educating all Indian children in the Milwaukee area. In
Forest County, the Tribe has created an additional 667 jobs and
generates approximately $11.5 million payroll. With its gaming revenue,
the Tribe has created new community infrastructure, including a new $10
million health and wellness center for both tribal members and tribal
employees. The Forest County Potawatomi Tribe is also very generous
with its resources, and has assisted both the Sokagon Chippewa Tribe
and the Red Cliff Band of Chippewa in Wisconsin.
The Kalispel Tribe has also been a community leader in creating
jobs, with 1,500 new jobs at its facility. The Tribe also contributes
over $500,000 a year to the City of Airway Heights to aid the City in
its governmental services, and makes a number of contributions to other
local charities.
The Keweenaw Bay Indian Community (``KBIC'') has also achieved
important success at its Marquette, Michigan facility. KBIC's casino is
responsible for about 300-400 local area jobs (about 65% of which are
held by non-Indians). The Tribe is one of the largest employers in the
local economy. KBIC assists the local government with revenue for many
government projects, including a new truck for the fire department, a
new drug enforcement dog for the police department, and construction of
a radio tower for the community ambulance service. KBIC is also
generous in funding the YMCA, the school hockey program, youth events
and other special events in the community.
CONCLUSION
To summarize, the media attention is overblown there is no
explosion of off-reservation Indian gaming. IGRA includes narrow
exceptions for gaming on after-acquired lands that address the wrongful
land takings caused by the Removal, Allotment, and Termination
policies. While the Section 20 two-part determination procedure is not
without its difficulties, we feel that as long as the process is
followed, and that local governments and affected Indian Tribes are
fully consulted, that these difficulties will be addressed. In over 15
years, only three Tribes have successfully used the Section 20 two-part
process. In our view, Section 20 should not be amended at this time.
Mr. Chairman and Members of the Committee, this concludes my remarks.
Once again, thank you for providing me this opportunity to testify.
______
Chairman Pombo. Thank you.
I will now recognize Principal Chief Norris.
STATEMENT OF PRINCIPAL CHIEF CHRISTINE NORRIS,
JENA BAND OF CHOCTAW INDIANS, JENA, LOUISIANA
Ms. Norris. Good morning, Chairman Pombo and members of the
Committee. I thank you this morning for allowing me this
opportunity to come before you. I ask your indulgence as this
is my first experience in being in such an arena as this.
My name is Christine Norris. I am tribal chief of the Jena
Band of Choctaw Indians. You have heard this morning from
Congressman McCrery who represents a population in Louisiana
who are my competitors. I respectively realize that he speaks
for these people, but I am also glad that you have the
opportunity to hear from the tribe itself. At this point, this
has not been done thus far. So I thank you for this
opportunity.
The policies and procedures of Section 20 of IGRA are of
particular importance to my tribe. We are newly recognized and
recently restored to Federal recognition. For us, there is no
such thing as on-reservation gaming because we have no
reservation. That is the point that I want to bring out and
make you realize, that we are different from the other tribes
in Louisiana as when we were federally recognized in 1995
through the Federal acknowledgment process, we had no land. We
are a landless tribe. That is the difference. The Coushattas,
the Tunica-Biloxi, the Chitamacha tribes upon Federal
recognition had land and thus that is where their casinos are.
Through the years, the Bureau of Indian Affairs recognized
the Jena Band as Indian people and provided modest services to
the group there that was in Jena, Louisiana; however, it wasn't
until 1995 that we reaffirmed our tribal status, although we
had no land, no money, no reservation. Nonetheless, we
identified properties within our three-parish service area.
This is because this is where our people lived. I had to
provide for these people health care, homes. We have a few
parcels in trust now that we have requested that Interior
designate them as our initial reservation. The total acreage
only amounts to less than 105 acres. This is considerably less
than the reservation land bases of the other three federally
recognized tribes in Louisiana.
Like many other tribes, my tribe made the sovereign
decision to conduct a tribal gaming operation to generate funds
to enhance our Federal Government programs. The Jena band
consists of 241 tribal members, a very small receiving a very
small budget from the Federal Government.
We have brought some exhibits with us that will show you,
on Exhibit A, our three parishes that form our service area. In
these three parishes, Grant, LaSalle, and Rapides, all three of
the parishes have voted out any form of gaming. While we
continue to pursue the gaming avenue, our former Governor,
Governor Foster, played a large role in suggesting that this
tribe look at lands outside of its parish area. Governor Foster
informed us that he would not negotiate a tribal state gaming
compact with us for any facility located within our service
area, and he even stated that he would oppose our efforts to
acquire trust lands within the three-parish service area. This
is what led the tribe in the very first place to look at the
area of Vinton, Louisiana.
We learned from our many mistakes there in Vinton. Number
one, we did not have the community support in the political
arena from the local politicians. After we sought to work with
the State in the local and governments, we embarked on several
years to identify alternate sites for a gaming facility, one
located outside of our service area, but still within an area
which our people had an historical connection. We are not
saying the Jena Band lived in Logansport, Louisiana. What we
are saying is we submitted historical data to show where
Choctaw people lived there. We were of the Choctaw Nation. Only
until the nineteenth century were these tribes broken out into
various names of tribes. We were all Choctaw people.
Our attempts to do so were met at every turn by casino
interests looking to protect their own market. Not only did we
have the competition of 16 land-based casinos in Louisiana,
there were also three other Federal Indian tribes having
casinos in Louisiana. Realizing the competition, this is a free
market. This is what competition is all about and develops a
healthy attitude among people. We were received with closed
doors. At every turn that we went, we were met by opposition.
In Logansport, Louisiana, it is only 62 miles, I want to
point out, from the border of our service area. We attempted to
locate a casino there. Learning from the mistakes in Vinton, we
went to the people there. We reached out to see if this is an
area that wanted us. The people--it is a rural area just like
our parishes of Rapides, LaSalle, and Grant Parish--they
endorsed us with open arms. The police jury did vote for us. We
had the support of the mayors, the Chamber of Commerce. They
attended trips with us to Washington before they testified to
Interior on our behalf.
On Exhibit B, on the maps, they are borrowed from a book
written by several Indian history experts published before
enactment of the Gaming Regulatory Act. These maps as well as
thousands of pages of historic documents demonstrate the
Choctaw connection to the area of Logansport and northwestern
and central Louisiana. After lengthy consultation with the
Department of Interior, we submitted an application by the two-
part determination process. This process requires the
collection and submission of the factual information that is
time consuming, that is vastly expensive, and imposes great
hardships particularly on landless tribes. These burdens are
even more severe in our case where casino interests were
actively seeking to prevent us from infringing on their
markets.
In December of 2003, after reviewing the merits, Interior
ignored the rhetoric and issued a positive two-part
determination because it requires the Governor to concur in
that determination, and because neither former Governor Foster
nor current Governor Kathleen Blanco have responded to
Interior's request for concurrence, it appears that the
Logansport land will not be taken into trust.
As a result, my tribe is forced to return to our home
parishes and attempt to develop a facility in a community which
clearly opposes our presence there. In these home parishes, we
live with these people. We go to school with them. We work with
them. We attend church with them. Again, we are constantly
being turned back even in our own surrounding communities. We
are made to be felt ashamed of bringing a casino to this area.
Our people now are just beginning to hold their heads up high
and be proud of who they are, but with the negative publicity
that we receive, that Jena has been around the State forum
shopping, continues to hold my people down. Even my son
attended a church service last Sunday where the pastor said
that he was writing to the Governor to oppose any further
expansion of gambling in Louisiana. I tell him to hold his head
up high and be proud of who he is and that he has the rights
that are afforded other Indian tribes and other entities in
this State. We are asking for that right to be given to us.
We have lived here before gambling. We can continue to
survive and will live after gambling is over with or continues
to be here, but it needs to be done away with, is my feeling,
if we are not allowed to participate in this activity also.
Perhaps we were naive when we first considered Indian
gaming the vehicle for economic development. We had no concept
of the degree to which our efforts would become the focus of
the extremely well-funded attacks from Las Vegas, not only from
them, from tribes such as Coushattas, from the Mississippi
Choctaw. We were not expecting this type of opposition. The
opposition of well-heeded, well-established gaming concerns can
make it incredibly difficult for newly recognized tribes to
participate in the economic benefits for which have been made
available to most other tribes. This very much has become a
struggle between the haves and the have nots.
It is my hope that our story of the long and difficult road
upon which my tribe has been made to travel will give the
Committee and the public a better sense of the realities facing
landless tribes. It is imperative that the public debate about
off-reservation gaming be conducted within the context of these
realities and within the context of the historical facts which
have left tribes like mine in significantly disadvantaged
positions.
We hurt. We cry. And yet we rejoice in the celebration of
life that God has given us. As long as I have breath in me, I
will continue to move my tribe forward to seek a better way of
life for my people so that we may be strong, so that we may be
proud, and we may be productive and give back to our creator
and share with the others the many blessings such as the
freedom that we enjoy today. That very freedom is what allows
me the right and opportunity to seek the health and well-being
and pursuit of happiness for my people.
So my point here is I want you to realize that we were a
landless tribe. We did not seek out off-reservation, so to
speak, only because we took direction from our Governor. We
tried to meet and work with our local state political body in
securing a place to go for my people, and we will continue this
pursuit.
Thank you so much for allowing me this opportunity to meet
with you and speak with you today.
[The prepared statement of Ms. Norris follows:]
Statement of Chief Christine Norris, Jena Band of Choctaw Indians
Chairman Pombo and members of the Committee, I thank you for this
opportunity to speak today on behalf of the Jena Band of Choctaw
Indians of the State of Louisiana. I appear before you in my official
capacity as the elected Chief of my Tribe.
It is our understanding that the focus of today's hearing is on the
policies and procedures which govern the federal government's
acquisition of trust title for off-reservation lands pursuant to the
requirements of Section 20 of the Indian Gaming Regulatory Act ( IGRA
). As you know, Section 20 effectively prohibits gaming on off-
reservation lands acquired in trust after October 17, 1988, unless one
of several exceptions is applicable. Three of the exceptions--initial
reservation, restored lands for restored tribes, and land acquired in
the settlement of a land claim, are intended to even the playing field
for tribes that either had no land, or were dispossessed of their land,
when IGRA was enacted in 1988. The fourth exception--the so-called
``two-part determination''--is available to all tribes. The two-part
determination is, in many ways, the most difficult of the exceptions to
satisfy because it effectively requires the consent of the people who
live in the local area, and it explicitly requires the consent of the
governor.
The policies and procedures of Section 20 are of particular
importance to tribes like mine, which are newly recognized or recently
restored to federal recognition. For us there is no such thing as ``on-
reservation'' gaming because we have no reservation. Unless we can meet
one of Section 20's exceptions, we can never reach a level playing
field with the vast majority of other tribes, which are free to game on
their reservations without resort to the onerous and expensive fee-to-
trust process and without the impediments inherent in the Section 20
limitations on gaming on after-acquired lands.
Over the last few years, the rhetoric surrounding off-reservation
fee-to-trust acquisitions has heightened to a fevered pitch. Like many
others, my Tribe often has been accused of ``forum shopping'' for ``far
flung'' lands. These accusations have been hurled at us not so much by
persons who genuinely oppose gaming on moral or religious grounds, but
rather by persons representing the interests of some of the sixteen
non-Indian casinos and three Indian casinos already operating in the
State of Louisiana. Indeed, in our experience, the folks who most often
cry ``forum shopping'' are not concerned about federal Indian policy,
tribal historical connections to certain lands, or even the moral or
social propriety of gaming; rather, these folks are driven by a desire
to protect the market share of existing gaming operations, both Indian
and non-Indian.
I can think of no other factual and legal situation which better
illustrates the conundrum in which landless and nearly landless tribes
find themselves than that of my Tribe. For this reason, in your general
deliberations on the policy and legal questions inherent in the debate
on off-reservation gaming, I respectfully urge you to consider our
story and the difficulties we have faced. I urge you to remember that
newly-recognized and newly-restored tribes have faced particularly
difficult legal and financial hurdles not generally faced by landless
tribes. I urge you not to make those barriers any more difficult.
Brief History of the Jena Band of Choctaw
Through nine treaties executed between 1786 and 1830, the Choctaw
Nation ceded approximately 23.4 million acres of land to the United
States. Most Choctaw were removed to Oklahoma through the infamous
Trail of Tears, but a few scattered groups remained in Mississippi and
Louisiana. One of those groups eventually settled near the small town
of Jena, Louisiana. We are direct descendants of those Choctaws. In the
late 1800s the federal government again sought to remove remaining
Choctaw to Oklahoma, promising abundant land for those who would
remove. Acting on this promise, some of the Jena Band's ancestors
walked along railroad tracks all the way to Oklahoma, only to learn
that the Oklahoma membership rolls had been closed and that there were
no lands left for allotment. Our ancestors returned to our traditional
homelands in Louisiana, having no choice but to live as sharecroppers
on the very lands they had occupied before they left for Oklahoma.
For many years the Bureau of Indian Affairs provided modest
services to our people, and at one point the Bureau even planned to
move us to Mississippi in order to provide us with land. Due to a lack
of federal funding, however, this was never accomplished. Despite the
fact that we descended from a treaty-recognized tribe, and despite the
fact that we had received Bureau services in the first half of the
twentieth century, the Bureau failed to include us on its initial list
of tribes first published in 1979. As a result, we were forced spend
substantial time researching and applying for formal federal
recognition through the Bureau's administrative process. It took
sixteen years but we finally obtained federal acknowledgment in 1995.
When the Jena Band obtained federal recognition in 1995, we had no
trust lands and no reservation. Not one acre of land was set aside by
the federal government as a reservation. We had no state reservation.
We also had no money.
Our Efforts to Create a Reservation.
Recognizing that we would need a tribal land base adequate to
provide housing, governmental and cultural services to our people, we
identified properties within our three-parish services area that could
form the basis of our reservation. We then asked the Department of the
Interior to acquire trust title to these properties and designate them
as our initial reservation. (I note that the total acreage for all of
the lands for which we have applied for trust status is less, on either
a straight acreage basis or a per capita basis, than the reservation
land bases of the three other federally-recognized tribes in
Louisiana.)
In addition, my Tribe determined that it wished to conduct a tribal
gaming operation to generate the revenue needed to provide
governmental, health and human services to our people. However, my
Tribe's three-parish service area is located in a very conservative,
very religious part of our state. Each one of the parishes which
comprise our service area rejected the allowance of gaming of any kind,
Indian or non-Indian, in a state-wide referendum vote in 1996. I would
like to refer you to Exhibit A attached to my testimony, which is a map
of the parishes of the State of Louisiana that shows where gaming has
been allowed by public referendum and where it has not. You'll see that
there are ``0'' gaming devices allowed in any of our three parishes
(Rapides, Grant and LaSalle). For this reason, and for the reasons
described below, we made every effort to locate a gaming site outside
the three-parish service area.
The one parcel which has not been taken into trust by the federal
government is the one on which we had hoped to develop a class III
gaming facility. Let me tell you briefly about that parcel.
From the time of our initial discussions in mid-2000, our former
governor, M.J. ``Mike'' Foster, informed us that he would not negotiate
a tribal-state gaming compact with us for any facility located within
our three-parish service area, and would oppose our efforts to acquire
trust lands within the three-parish service area. Despite the fact that
all three other federally-recognized tribes in Louisiana operate gaming
facilities pursuant to such compacts, it was Governor Foster's
contention that he would not force any type of gaming facility upon any
parish that had expressed its opposition to gaming through the 1996
state referenda. Further, our tribal members have lived all their lives
with our neighbors. We were cognizant of our neighbors' views, and were
hopeful that we might be able to find an alternative site outside our
service area so as not to offend the sensibilities of those neighbors.
For these reasons, and these reasons alone, we embarked on a several-
year effort to identify an alternative site for our gaming facility,
one located outside our service area, but still located within an area
with which our people had a historical connection. I respectfully refer
you to the two maps provided at Exhibit B to my testimony. These maps
are borrowed from a book written by several Indian history experts
published before enactment of the Indian Gaming Regulatory Act.
1 These maps demonstrate the Choctaw connection to this area
of Louisiana. (I note that we have provided thousands of pages of
documentation to the Department of the Interior documenting our
historical connection to that area of the State.)
---------------------------------------------------------------------------
\1\ Fred B. Kniffen, Hiram F. Gregory & George A. Stokes, The
Historic Tribes of Louisiana (1987).
---------------------------------------------------------------------------
Perhaps most importantly, however, we sought to identify a site in
an area in which the local people affirmatively wanted to host a tribal
gaming facility. We found such a site in Logansport, Louisiana.
Logansport is located in DeSoto Parish, which unfortunately suffers
from one of the highest unemployment rates, and from some of the lowest
family income averages, in the State. For these reasons, Mayor Dennis
Freeman and the DeSoto Parish Police Jury (the elected governing body
of DeSoto Parish) have gone on record, in writing, over and over and
over again supporting the placement of the Jena Choctaw gaming facility
in their area.
We applied to the Department of the Interior to have this
Logansport land taken into trust. Because the land is located in an
area with which we have a strong historical connection, and because we
included the trust application for this land as part of our coordinated
package of lands with which we were trying to create our reservation
land base, we first asked the Department to include the Logansport land
in our ``initial reservation.'' The Department declined to do this.
We then submitted thousands of pages of information documenting our
historical connection to the land near Logansport, and documenting our
legal case for a determination that we are a ``restored'' tribe and
that the Logansport parcel constituted ``restored lands'' within the
meaning of the Indian Gaming Regulatory Act. While we provided those
materials to the Department nearly two years ago, we are not aware that
Interior has considered the merits of our request in any serious
fashion.
Finally, out of some level of desperation, despite the fact that we
are a landless tribe, we agreed to submit a request that the Department
review our application under the significantly more onerous standards
imposed under the ``two-part determination process'' set forth in
Section 2719(b)(1)(a) of IGRA. That provision requires Interior to make
a factual determination that acquiring trust title to the property for
gaming is first, ``in the best interest of the tribe,'' and second
``not detrimental to the surrounding community.'' The Committee should
be aware that the collection and submission of the factual information
necessary to allow for such a determination is enormously time
consuming and expensive, and imposes great hardships, particularly on
landless tribes. In December 2003, Interior issued a positive two-part
determination. Because IGRA requires the governor to concur in that
determination, and because neither former Governor Foster nor current
Governor Kathleen Blanco have responded to Interior's request for a
concurrence, it appears that the Logansport land will not be taken into
trust.
As a result, my Tribe is left with no alternative but to return to
our three-parish service area to try to develop a gaming facility. We
do this with heavy heart. We looked forward to working with a community
desirous of our presence--a community with which we had worked closely
for several years to develop a win-win partnership for all of our
people. Instead, we are forced to return to our home parishes and
develop a facility in a community which clearly opposes our presence
there. It is difficult to believe that this is what the framers of IGRA
intended.
As of the date of this hearing, nine years after receiving federal
recognition, we are still without a single parcel of land on which we
may legally conduct gaming activities.
Conclusion
Perhaps we were naive, but when we first considered Indian gaming
the vehicle for economic development, we had no concept of the degree
to which our efforts would become the focus of virulent and extremely
well-funded attacks from both Las Vegas-based non-Indian casino
operations and from other tribes, most notably the Coushatta and the
Mississippi Choctaw. The opposition of well-heeled, well-established
gaming concerns can make it incredibly difficult for newly-recognized
tribes to participate in the economic benefits which have been made
available to most other tribes. This very much has become a struggle
between the haves and the have-nots.
It is my hope that the story of the long and difficult road upon
which my Tribe has been made to travel will give the Committee and the
public a better sense of the realities facing landless and nearly
landless tribes. We urge that the Committee help better inform the
public about the legal and practical realities facing tribes like ours
and about the significant obstacles inherent in acquiring off-
reservation land in trust. It is imperative that the public debate
about off-reservation gaming be conducted within the context of these
realities, and within the context of the historical facts which have
left tribes like mine in significantly disadvantaged positions.
I once again thank you for the opportunity to tell the Jena Band of
Choctaw Indians' story today. I would be most happy to answer any
questions you may have.
[GRAPHIC] [TIFF OMITTED] T4995.001
[GRAPHIC] [TIFF OMITTED] T4995.002
[GRAPHIC] [TIFF OMITTED] T4995.003
______
Chairman Pombo. Thank you.
Chief Bearskin.
STATEMENT OF CHIEF LEAFORD BEARSKIN, TRIBAL CHIEF, WYANDOTTE
NATION, WYANDOTTE, OKLAHOMA; ACCOMPANIED BY DAVID McCULLOUGH,
ATTORNEY
Mr. Bearskin. Chairman Pombo and members of the Resource
Committee, I thank you for inviting me here today. I consider
it a great honor and a privilege.
My name is Leaford Bearskin. I am the elected chief of the
Wyandotte Nation. I have been the chief for almost 22 years
after being elected in 1983. I understand that the purpose of
my testimony today is to discuss gaming off reservation in
restored and newly-acquired lands. My tribe, the Wyandotte
Nation, opened a casino in Wyandotte County in Kansas on August
28, 2003 after a long and bitter legal study. Although there
are probably others who are more qualified than I to speak
about Indian gaming, perhaps none share the scope of magnitude,
fears, and frustrations that I and my people have encountered.
On April 2, 2004, after 214 days, we opened our doors and
created 48 full-time jobs in Kansas City, Kansas. The Attorney
General of Kansas ordered 23 armed troopers to raid our
facility and threaten patrons and workers alike. These men
seized all our assets and arrested our manager, Ellis Enyart.
Phill Kline, the highest-ranking law enforcement officer in
Kansas later explained his actions as enforcing the laws of the
State of Kansas.
We ask how could this happen. It turns out that the
Attorney General's actions, namely that of invading our
sovereign lands, were precipitated by a legal opinion drafted
by a part-time attorney working for NIGC. This opinion, in
short, stated that our reservation located in Wyandotte County,
Kansas on land that my ancestors named was, quote, not Indian
land because it was not lands acquired in settlement of a land
claim.
I believe that the U.S. Government should follow the law
and not let bureaucrats interpret the laws contrary to what
Congress has passed. The law that the Wyandotte Nation is
following was passed by Congress, not an attorney at the NIGC
who arbitrarily decided that she had the power to harm my
nation as she did so.
Over the years, the Wyandottes have signed 19 treaties with
the U.S. Government. Of these, we have a perfect record. There
are 19 that have been broken, but not by us. I believe there
are illegal and political attempts to break another agreement,
not a treaty, but a law, Public Law 98-602 passed in 1984. I
was there when it happened, and I think some of you were too.
It was a land claim settlement bill. I want to emphasize that.
We have land in trust in Kansas City. This land was taken
into trust for the Wyandotte Nation following every law, every
statute, every standard given by the United States for us to
follow based on a law passed by this body through this
committee in 1984. Some people think that laws only apply to
the Wyandottes if they can be used against us. The legal twists
and turns in this case have been so numerous and in some cases
so ridiculous that it is hard for me. I cannot begin to explain
them in detail, but rest assured, we have followed the law to
the letter in everything we have done.
Right now, this law is being distorted and used against the
Wyandotte Nation. We believe this is not right, but
historically this has always been the case. Whenever an Indian
nation has something that someone else perceives to be of
value, it is usually taken away using legal and political
means. This statement is indisputable. The horrific history of
this Nation in regards to the way my people, the Wyandotte
Nation, and the rest of the Indian nations have been treated is
very real and very well documented.
In the other chamber of this body, there is a resolution
apologizing to the American Indian for the way we have been
treated by the U.S. Government. I appreciate this very, very
much. I ask that the United States follow the laws that it made
and stop the harassment of my people through illegal means by
some of the leaders of the State of Kansas. We have followed
the law. We are being harassed and attacked by the leaders in
the State of Kansas simply because they think they can get away
with it. We feel we are right, and we will continue to fight
this out because we are right and because our rights are being
trampled by a State Attorney General who decided that without
following the law, he could attack my nation and close down my
casino on our trust land.
I hope and pray that my testimony here today will stir this
committee to action to protect and defend those of us that are
playing by the rules and aspiring for the right of economic
freedom and prosperity.
There are things that I know. I know that the Congress of
the United States passed Law 98-602 on October 30, 1984. It was
a land claim settlement bill. I want to emphasize that again. I
know because I was there. I think some of you were there. We as
a nation have struggled now for almost 20 years, ever since the
Congress passed Public Law 98-602 in October of 1984. That law
was passed by the Congress to settle the decades of old land
claims for lands that were taken from my ancestors illegally.
Over 8 years ago, the Secretary of the Interior signed a deed
of trust for lands that the Wyandotte purchased in accordance
with Law 98-602 in July 1996. According to the Bureau of Indian
of Affairs, that land could be used by the Wyandotte for
economic development purposes.
As we sit here today, every conceivable effort has been
made by competing interests, politicians, and even legal
authorities to deprive the Wyandotte of their legal rights. In
short, these people have used every means to deprive my people
of a chance--no, not a chance, but of the right to economic
prosperity that Congress declared we had over 20 years ago.
I am not here for a handout. I am asking for a hand up. All
I ask is that this country, the United States of America, live
up to their word, their word written in Public Law 98-602, and
allow the Wyandotte Nation to move forward with our economic
development. Specifically, I ask this committee to re-affirm
that Public Law 98-602 was a land claim settlement, and if we
do that, we will take care of all the rest ourselves. I think
enough is enough.
Thank you very much.
[The prepared statement of Mr. Bearskin follows:]
Statement of Leaford Bearskin, Col. USAF, Ret.,
Chief, Wyandotte Nation
Chairman Pombo and Members of the Resources Committee. Thank you
for inviting me to testify here this morning. It is a great honor and
privilege.
My name is Leaford Bearskin. I am the elected Chief of the
Wyandotte Nation. I have been the Chief for almost twenty-one years,
having been first elected in 1983.
I understand that the purpose of my testimony today is to discuss
gaming on off-reservation, restored, and newly-acquired lands.
My Tribe, the Wyandotte Nation, opened a Casino in Wyandotte
County, on August 28, 2003, after a long and bitter legal struggle.
Although there are probably others who are more qualified than I to
speak about Indian Gaming, perhaps none share the scope of magnitude,
fears or frustrations that I and my people have encountered.
On April 2, 2004, 204 days after we opened our doors and created 48
full time jobs, the Attorney General of Kansas ordered 23 armed
troopers to raid our facility, threaten patrons and workers alike. His
men seized all of our assets and arrested our Manager, Ellis Enyart.
Phill Kline, the highest-ranking law enforcement officer in Kansas,
later explained his actions as ``enforcing the Laws of the State of
Kansas''.
How can this happen, you may ask? It turns out that the Attorney
General's actions, namely that of invading our sovereign lands, were
precipitated by a legal ``opinion'' drafted by a part time attorney
working for the NIGC. This ``opinion'' in short stated that our
reservation, located in Wyandotte County, Kansas, on land that my
ancestors named, was ``quote'' not Indian Land because it was not land
acquired ``in settlement of a land claim''.
I believe that the United States Government should follow the law
and not let bureaucrats interpret the laws contrary to what congress
has passed. The law that the Wyandotte Nation is following was passed
by Congress, not an attorney at the NIGC who arbitrarily decided she
had the power to harm my nation and then did so.
Over the years, the Wyandottes have signed 19 Treaties with the
government, and of these, we have a perfect record, there are 19 that
have been broken, and none of them by the Wyandotte Nation.
I believe there are legal and political attempts to break another
agreement, not a treaty, but a law, Public Law 98-602 passed October
30, 1984. I was here when this passed, and so were many of you. It was
a land claim settlement bill.
We have land in trust in Kansas City. This land was taken into
trust for the Wyandotte Nation following every law, every statute, and
every standard given by the United States for us to follow based on a
law passed by this body, through this committee in 1984, Public Law 98-
602.
But it seems that laws only apply to the Wyandottes if they can be
used against us.
The legal twists and turns in this case have been so numerous, and
in some cases so ridiculous that it is hard for me to try and explain
them in detail, but rest assured we have followed the law to the
letter.
Right now, the law is being distorted and used against the
Wyandotte Nation, and this is not right, but historically, that has
always been the case.
Whenever an Indian has something that someone else perceives to be
of value, it is usually taken away using legal and political means.
This statement is indisputable, and the horrific history of this nation
in regards to the way my people, the Wyandotte people, and the rest of
the Indian Nations have been treated is very real, and very well
documented.
In the other chamber of this body, there is a resolution
apologizing to the American Indian for the way we have been treated by
the United States government.
I appreciate the gesture, but I would just as soon that this nation
follow the laws that it made, and stop the harassment of my people
through illegal means by some of the leaders of the State of Kansas.
We have followed the law, and are being harassed and attacked by
the leaders of the State of Kansas, simply because they think they can
get away with it.
We are right, and we will continue to fight this out, because we
are right and because our rights are being trampled by a state attorney
general who decided that without following the law, he could attack my
Nation and close down our casino located on trust land.
I also hope that my testimony here today will stir this committee
to action, to protect and defend those of us that are playing by the
rules, and aspiring for the right of economic freedom and prosperity.
All I know is that the Congress of the United States passed Public
Law 98-602 on October 30, 1984.
It was a land claim settlement bill.
I know, because I was there.
So were some of you!
We as a nation have struggled now for almost twenty years, ever
since the Congress of the United States passed Public Law 98-602 in
October of 1984. That law was passed by the Congress to settle a
decades old land claim for lands that were taken from my ancestors
illegally.
Over eight years ago, the secretary of the Interior, signed a deed
of trust for lands that the Wyandotte purchased in accordance with Law
98-602 in July 1996. According to the Bureau of Indian Affairs that
land could be used by the Wyandotte for economic development purposes.
As we sit here today, every conceivable effort has been made by
competing interests, Politicians, and even Legal Authorities to deprive
the Wyandotte of their legal rights. In short, these people have used
every means to deprive my people of a chance, no, of the right, to
economic prosperity that congress declared we had over twenty years
ago.
I'm not here for a hand out. All I ask is that this country, the
United States of America live up to their word, the word written in
Public Law 98-602, and allow the Wyandotte Nation to move forward with
their economic development.
Specifically, I ask this committee to reaffirm that Public Law 98-
602 was a land claim settlement bill.
Enough is enough!
Thank you.
______
Chairman Pombo. Thank you very much.
I would also like to acknowledge that the chief is
accompanied by David McCullough, who is an attorney. He was
sworn in, so he is available for questions.
I am going to recognize Mr. Tauzin first.
Mr. Tauzin. Chief, let me first extend to you, as my
colleague did, my warmest appreciation on behalf of a grateful
Nation for your service to our country and for your
extraordinary career. We thank you for that, sir.
I want to turn to Principal Chief Norris and to follow up
on the conversation that I had with Ms. Martin. Let me first
acknowledge to you, Chief, that my culture, the Acadian Cajun
culture of Louisiana, shares some of your experiences. We were
blended people in Nova Scotia, and in the French Indian War the
Brits were involved in, they ended up acquiring the land, the
sovereignty over Nova Scotia and ended up deciding that we were
not a trustworthy people since we were of French descent, and
they gathered us up at a little church in Beau Pre and without
warning put us on ships, put my ancestors on, separated
husbands and wives and kids on purpose, put them on ships and
dumped them on foreign lands. Some of them were sold into
slavery. Some were dumped into the islands of the Caribbean.
Most were dumped on the shore of Maryland and Massachusetts
with no prospects.
Longfellow wrote a beautiful epic poem, ``Evangeline'',
telling the story of my people and how these two lovers who
came to the church at Beau Pre to be married that day were
separated were and spent their lives trying to find one
another. It is a beautiful fictitious story, but nevertheless
it tracks a real story of the Acadian people whose land was
taken from them and never compensated and relocated and
struggled to find a home in Louisiana.
So I share some of your feelings about the history of our
government and the way it has treated Indian tribes in our
country and the way in which land issues have been resolved,
and I sympathize deeply with some of your arguments. I
particularly was impressed with the presence of the Choctaws in
Louisiana. When I saw the historic presentation you were making
to the Bureau of Indian Affairs, it occurred to me that it was
terribly incomplete. There was much more information you could
have gathered. For example, one of the communities that my
grandmother was born in, Leontine Delotte, was a place called
Choctaw, Louisiana in Ward Six next to Chackbay where I was
born. Achaphalia is, I think, a Choctaw word itself. So many
words in the language of the community of our State is Choctaw
Indian origin.
So I was deeply impressed with the presentation, frankly,
you were making, and as you know, I did my best to ensure that
you got a fair process. I think you got slow-rolled, and I
think, as I said, the process worked against you and you didn't
get a fair chance, and I am sad about that as I am sad about
many of the interactions of our government with Indian
populations over the history of our country and the results
that sometimes end up I think unfairly treating your
populations.
And so I thank you for all of your testimony today. I don't
know how this is going to work out for you, Chief Norris.
Again, when we met and you presented your case, I made no
commitments to you on whether you should win or lose, but
simply that you got a fair process, and I am not sure you got
it, and I feel deeply hurt and disappointed that that happened.
Perhaps it can be rescued at some point and your landless tribe
can be made whole and you can have a fair chance to do what any
other Indian tribes are doing in our State, and that is
competing in this area that has meant such great resources to
my friends of the Chitamachas and the Coushattas and others in
the State who have benefited.
I have watched the Chitamachas, what their tribe has been
able to do for their families because of the revenues derived
from their casino. When I first got elected, there was no
casino. There was a 600-acre plot. I went to the first
graduation ceremonies. There were two kids graduating out of
kindergarten into first grade and one going from eight to
twelve, but it was a wonderful ceremony. I remember the tribe
was there to celebrate these young people.
I saw the poverty of those families, and I see the
difference now. I see the senior centers. I see the health care
center, the fire department that has been built, the rec
centers, the cultural center that has been established to teach
the young children of the tribe the history and the culture of
their people. I have seen what an amazing advantage the casino
has been to giving these poor families a share of the American
dream. I wish you would have had that opportunity like the
Chitamachas, and 1 day I hope you have that chance.
And I can only do something that I think you deserve, and
that is offer you an apology that the process didn't work out
as fairly as I think it should have. You should have been given
a chance at success, and I don't think you have.
And I yield back the balance of my time.
Mr. Bearskin. Thank you, sir.
Mr. Tauzin. I recognize Mr. Pallone for a round of
questions.
Mr. Pallone. Thank you, Mr. Chairman.
I am just trying to make sense of, you know, how this all
fits into the overall issue of IGRA and off-reservation-
acquired land. It seems to me that Mr. Stevens is saying that
essentially IGRA should be allowed to continue the way it is
and supports the status quo and thinks that the system works
well, and the other two tribal leaders are suggesting in both
their cases that maybe it doesn't because you see that somehow
you should be an exception on don't fall within IGRA exactly
the way it might be interpreted.
But I still don't understand. In other words, in the case
of the Jena Band, you have been following the IGRA process, but
ran into a problem because of the Governor, because of the
change in the administration, and now the Governor doesn't
support it; is that the main problem that you face right now?
You said you actually met the two-part test. Right?
Ms. Norris. Yes. Yes. In December of last year, the
Interior issued a statement in concurrence with the Governor of
Louisiana who at that time was Governor Mike Foster, that they
would take the land into Logansport into trust for gaming for
the Jena Band.
Mr. Pallone. But now there is a change of administration.
Ms. Norris. Yes. He passed it along to the new
administration, which is Kathleen Blanco, the Governor of
Louisiana.
Mr. Pallone. Now, would you suggest--I am just trying to
move it along because I want to ask the other Chairman a
question too. Would you suggest that there be a change in IGRA,
or you just feel that right now you have become blocked because
of the change of administration?
Ms. Norris. Once again, I believe another door has been
closed to us. There are barriers that have hindered this tribe
into pursuing gaming and moving further. We are at a roadblock
because we have not heard from Interior. We have not heard from
the Governor, only in a responsive letter dated June 1, 2004.
So I am still left out in limbo as to what is going to be
happening with this particular tribe.
Mr. Pallone. So what would you suggest be done by the
Committee or by Congress at this point to address your problem?
Ms. Norris. To address my problem, I am looking for some
responsibility to be taken in this case, whether it is from
Interior, whether it is from the State, in issuing a
concurrence or a nonconcurrence, but I am left just hanging
there, and I think there needs to be a responsibility to our
tribe, to our people, to bring resolution to this. I am asking
for help in endorsing from your committee that some type of
action be taken in our case so we can move forward to whatever
we have to do next to resolve this issue.
Mr. Pallone. OK. And then--
Mr. Tauzin. Would my friend yield a second?
Mr. Pallone. Yes. I do want to get to the other guy.
Mr. Tauzin. I will just take a second.
Mr. Pallone. Sure.
Mr. Tauzin. One of the problems that we see in IGRA that is
presented by the Jena Tribe is the fact that you have landed
tribes and landless tribes. They happen to be a landless tribe,
and so the way they are treated under the law is different from
the way a landed tribe goes through the process, and they seem
to be caught in this cycle of limbo where nobody gives them an
answer. And that is their problem.
Mr. Pallone. No. I understand, and I started in the
beginning here saying although I generally agree with NIGA's
position that we don't want to change IGRA, there may be cases
where there is a problem, and I think you two are the hard
cases, so to speak.
As far as Chief Bearskin is concerned, now have you applied
or ever proceeded through the IGRA process in trying to address
your concerns?
Mr. Bearskin. Yes, we have done that. We have complied with
all the laws and stuff that we have to to get where we are
going.
Mr. Pallone. So the problem is that you claim you fall
under the exception to IGRA, and the AG in Kansas disagrees. So
what are you going to do now? What do you want us to do?
Mr. Bearskin. We want you to reaffirm that the 98-602 says
what it says and that our land was a land claim settlement.
Mr. Pallone. And are you in court now or is this proceeding
through IGRA or in the courts in any way, your claim?
Mr. Bearskin. I think my attorney can better answer that
than I can, sir, if you will.
Mr. Pallone. Sure.
Mr. McCullough. The answer is, yes, we are in court now. We
are in State courts on the seizure that was made by the State
of Kansas, and we are also in Federal Court asserting several
challenges.
Mr. Pallone. But are you looking for any particular
legislation action by Congress to address this, or you are just
going to proceed through the courts?
Mr. McCullough. What we are looking for is we are actually
focusing on the exceptions under the IGRA, as was correctly
pointed out. The land that we have in trust was not taken in
trust specifically through an IGRA process. The land was taken
in trust because there was a special law for the Wyandotte, 98-
602 referred to by the chief several times, that in 1984 set
aside $100,000 for the tribe to purchase land, and within that
language of that particular bill was that the land--it was
mandated that the Secretary take that land into trust, and we
have gone through that process and the Secretary at the
completion of that process took the land into trust in 1996. As
I believe Mr. Skibine referred to earlier, at the time the
exception we were relying upon, was that it was contiguous to
reservation land. The Wyandotte has a tract of land in Kansas
City, Kansas. The 10th Circuit at the completion of litigation
over that issue determined that the particular tract of land
did not qualify for reservation land under IGRA and therefore
that exception did not apply.
The Wyandotte then went back to the NIGC and put forth
claims under essentially the three remaining exceptions, but
specifically it was a land claim, the position of Wyandotte,
that Public Law 98-602 which was the allocation of funds for
Congress as a result of their claims was, in effect, a land
claim. So we are here under the exceptions and the
interpretations under those exceptions.
Mr. Pallone. And you are still pursuing that in the courts
at the same time?
Mr. McCullough. We are.
Mr. Pallone. OK.
Thank you Mr. Chairman.
Mr. Stevens. Chairman Pombo and Congress Pallone, I stand
here as Chairman of the National Indian Gaming Association
supporting the rights of these tribes. I just want to ask--
joining me today is our executive director, Mr. Mark Van
Norman. If he could just give a brief overview of the intent of
our testimony regarding that particular topic.
Mr. Van Norman. Thank you, Mr. Chairman and Congress
Pallone and Congressman Tauzin.
What we intended by our testimony was to say that the
Indian Gaming Regulatory Act provides provisions to right
historical wrongs. The point of having the land claim
settlement provision is for the tribes that have had a land
claim settlement can use their lands the same way that other
tribes can use their lands, and the point is that relates back
in time to their original holding of the lands. That is a
simple matter of justice for them to use their lands.
Similarly, when you have tribes that have been through the
removal process, passed over by the United States, and are
restored to recognition, it is entirely appropriate and just a
matter of simple justice for the tribes to have an initial
reservation that they can use as other Indian lands are used.
So we think that the act, properly applied, would take care of
these positions, situations. We are not saying that the BIA has
properly applied it in every case, but we think that the
statute would make a provision for that and that the BIA should
take a look at these cases and act appropriately.
That is what we are saying.
Mr. Pallone. OK. Thank you.
Ms. Norris. Congressman Pallone and Chairman, if I may, to
clarify my answer to your question on behalf of the Jena Band,
I would like to ask Heather Sibbison to offer up comments on
your question. That is what we are here for today, to give you
a little bit better understanding of our situation.
Ms. Sibbison. Actually, I would just essentially reiterate
Mark's point, which is basically there are two kinds of
exceptions to the rule that you can't game on land acquired
after 1988. There is the regular exception, which is a two-part
determination, and that requires that you put this package of
goodies together, you get the government on board, you get the
locals on board, and there is a pretty standard set of data,
some information you have to be able to provide, and you have
to be able to show certain things to be able to be successful
to go through that exception.
Then there is sort of the second package of exceptions
which are really intended to put tribes that were either not
recognized in 1988 on equal footing with tribes that were
recognized in 1988, because by definition those tribes do not
have reservations on which to conduct on-reservation gaming
operations; and similarly, as Mark is saying, the settlement of
the land claim exception is intended to put a tribe back on the
position it would be in if it hadn't lost its land before 1988,
usually through an illegal transaction based on the non-
intercourse act. So that the second group of exceptions is
intended to put tribes that were disadvantaged because they
weren't in the right--just by historical accident weren't in
the right place on October 17, 1988, back to where they should
be.
In a sense and almost in defense of the Department, I think
part of what is happening is that there are no real guidelines
as to how to interpret those three exceptions, how to decide
what is appropriate to be in this reservation, what are the
standards by which you should decide whether a tribe is a
restored tribe and whether the lands are being restored to it,
and that the problem with the public policy debate and the
rhetoric on off-reservation gaming is there really are no
discernible standards. And so from the Department's standpoint,
it puts the Department in a very awkward position by which,
frankly, I think that they are stymied. It is hard for them to
make decisions because they are afraid they are going to make
the wrong decision. Congressman Tauzin is right. They end up
just not making a decision.
And in the Jena Band's case, you are right. The reason, in
my opinion, the Department was much more comfortable going
through a two-part determination, which is not really
appropriate for this tribe--it is a landless tribe--they are
more comfortable because there is a precedent for it. The
Department knows what to look for, knows that the Governor is
on board, knows that the locals are on board. They have done it
before. The Department would have to correct me, but I think on
initial reservation, there is only ever been one or two, if
ever. There have been very few restored lands, and the problem
is everyone is just having a hard time figuring out where they
fit, and it puts the tribes in a particularly awkward position
because you can't go to a statute or regulation and say, OK, I
fit here for sure. And you have to spend a lot of time and
money trying to convince the Department that you should fit in
that exception, and it is hard for the Department to know
whether you do or not because there are no guidelines, and then
this feeds back into Congressman Tauzin's point about
lobbyists, which is the public debate is so fevered on this
issue now that it is hard to get to the merits and it does put
the Department in an awkward position where it is scary to get
to the merits unless there are clear standards because of the
public debate and the public debate is being fueled by
unfortunate elements and which then gets back to Mark's point,
which is that I think the statute structurally is OK. It has
built into it flexibility for these tribes that were not sort
of up and running in 1988, for whatever reason, but there have
to be regs or guidelines or more thought from you guys to
Interior, telling them what you expect them to do, because I
think they don't know what to do, and it has put the tribes in
a very awkward position.
Mr. Bearskin. Mr. Chairman, if I may, I would like
permission for my attorney to make one more statement for us,
if you would, please.
Chairman Pombo. Yes.
Mr. McCullough. Mr. Chairman, I want to be clear as a
follow-up in the response that I made a few minutes ago, that I
believe the specific question was were we looking for some
change in IGRA by this, was that our proposal, and the answer
is no. We believe there needs to be more clarification as to
how the exceptions are applied; however, in the case of the
Wyandotte, what we believe is that Public Law 98-602, enacted
in 1984, was in settlement of a land claim. The National Indian
Gaming Commission has found that it was not by applying the
standards that they applied. What we are asking for this
committee to do is to reiterate what was done in 1984, that
this land was set aside for the Wyandotte in settlement of a
land claim and therefore, under IGRA, is it is a land claim
settlement which falls under the exception.
Thank you.
Chairman Pombo. OK. Mr. Stevens, you know as well as anyone
the pressures and the controversies that this committee is
dealing with when it comes to this issue.
Mr. Stevens. Sure.
Chairman Pombo. And we have talked in the past about trying
to clarify this issue through legislation and trying to deal
with it, which is exactly what the intent of Congress is,
because a lot of times when Congress passes a law, as it gets
interpreted through a number of different administrations, we
end up with situations that may or may not really be within
what Congress originally intended. And we have looked at a
number of different ways of trying to clarify this. Obviously,
if we try to move forward, there will be a lot of consultation
and a lot of talk between this committee and you and your
membership in trying to deal with how you clarify this. One of
the big issues that we deal with is landless tribes and how do
they ultimately fit into this picture and how do we move
forward.
But one question I have for you is if you have differences
of opinion amongst your membership as to whether or not
something should or should not be approved, do you take a
position on that?
Mr. Stevens. Absolutely not, sir. We represent
approximately 180 tribes, and it is our standing policy that we
do not involve others with issues between tribes. As a matter
of fact, the National Congress of American Indians has a
standing resolution, which is our colleagues here in D.C., and
I wrote the resolution several years ago. So we stand away from
issues where there are tribes that have differences.
Chairman Pombo. So if there is a difference of opinion
amongst the tribes, then you just stay out of it, you don't
take an opinion on that issue?
Mr. Stevens. That is right.
Chairman Pombo. When it comes to landless tribes, should
those tribes be required to acquire land for gaming purposes
inside their lands claim area or within the area where the
tribe resides? Where do you guys generally come down on that?
[Mr. Stevens confers with Mr. Van Norman.]
Mr. Stevens. I'm sorry. I just want to make sure I am on
legal standing with my partner here on this business. In
general, we continue to assert historically, an historical
basis.
Chairman Pombo. Now, do you believe that if you have a
tribe that has historical lands and they are in very isolated
area, that they should be allowed to seek lands in an area that
is more heavily populated or better suited for gaming purposes?
Mr. Stevens. I think it applies to the Section 20 process.
I think that it is a natural, I think, to look for a good area,
but I think we constantly assert the historical rights of
tribes, and that is why I gave probably a little more
historical overview than people really wanted to hear today;
but for us, to the tribes, it means a lot considering what we
have been through throughout the years from European contact
until now.
Mr. Van Norman. Mr. Chairman, could I just amplify that a
little bit?
Chairman Pombo. Yes, Mark.
Mr. Van Norman. We do think it is important that there be a
thorough consultation through the Section 20 process that takes
into account the interests of neighboring tribes, and we
thought that that is an important part of the process because,
you know, those tribes, the Federal Government also has a trust
responsibility to those tribes.
Chairman Pombo. Well, I have some different ideas that the
Committee has been working on to try to deal with this, which
is one of the reasons we wanted to do this hearing, so we could
kind of figure out what are some of the challenges we are up
against in trying to move forward with this, but I appreciate
the testimony of this panel.
Mr. Baca, did you have any questions?
Mr. Baca. Yes, I did do. Thank you very much, Mr. Chairman.
I have a question for Mr. Stevens.
In your testimony, you state that the Secretary of Interior
has a trust responsibility to neighboring tribes as well as
tribes who apply for gaming away from the reservations. Do you
believe that this trust responsibility has been kept?
Mr. Stevens. Well, you know, I struggle with the words
``trust responsibility'' as it pertaining to tribes overall and
certainly historically. You know, I don't really want to look
back over it and would like to look forward and try to assert
that we need them to hold on and--I'm sorry--need to stand by
that trust responsibility from here into the future. So for me
to look back and point out, there are probably several points
in the past that I could assert concern about trust
responsibility, but I would look more to the future for these
tribes that are in the process.
Mr. Baca. And that is following the Section 20 process too
as well, right, which is part of what the responsibility of the
trust fund is, to make sure that they are compliant with the
policies that are currently in place. Is that correct?
Mr. Stevens. Yes.
Mr. Baca. And just as a follow-up, do you believe that the
consultation process between the Secretary and the neighboring
tribes can be improved? If so, how?
Mr. Stevens. I'm not sure if I understand your question.
Mr. Baca. It is just a follow-up to the original one,
question. First of all, the first question was do you believe
the trust fund's responsibility has been kept. You answered
that. As a follow-up to that, how do you believe that the
consultation process between the Secretary and the neighboring
tribes can be improved?
Mr. Stevens. How do I believe it can be improved?
Mr. Baca. Um-hum.
Mr. Stevens. I just think it is just straightforward
communication between all the principals involved.
Mr. Baca. Do you or anyone have a problem, I think to
follow up on what the Chairman indicated in reference to one
tribe--and I think all of us believe in historical land and
rights of tribes within their own areas, but do you believe
that tribe should have the right because they look at a gold
mine or a probability of a highway or a freeway, that they
should be allowed to come, let's say in California, for
example, from a northern portion of California to southern
California even though it is not near their reservation or have
no reservation or have no identify in that area, but yet there
are other tribes that are close by that do have a closer
identity?
Mr. Stevens. No, sir. Again, we continue to assert
historical tribal homelands.
Mr. Baca. And that means that basically what you are saying
is a tribe that is within that area who asserted that area and
lived in that area then should have that right versus a tribe
who does not that wants to come from another portion for the
sake of gaming or other purpose?
Mr. Stevens. Yes. I think it is pretty safe to say that
when we are asserting historically, that we are not condoning a
tribe coming from some other place and going to no place that
they have ever been in their history just for the purposes of
going where there is a large freeway and a large market.
Mr. Baca. And that would create disharmony amongst the
current legislation that is in place. Correct?
Mr. Stevens. I think it would.
Mr. Baca. And it would create chaos and disharmony in terms
of a concept of sovereignty and protection of sovereignty too
as well. Is that correct?
Mr. Stevens. Yes, I think so, and I just want to make sure,
Congressman, you understand--and I said this to Chairman
Pombo--that even though we stand away when there are issues,
the National Indian Gaming Association, you know, we will meet
in the next two days. We have a mid-year meeting in August. We
continue to work cooperatively. So on these issues, we are
talking about them and we are working on these issues. We just
don't get into specifics. So I don't want to in any way, shape,
or form tell you that I don't want nothing to do with this. I
am here to advocate for resolution, for the rights of these
tribes and all Indian tribes. So we are not like standing away
and saying we are hands off. We want to help, but on the
specific issues, we have to stand clear, but we consider this
very much a concern of ours.
Mr. Baca. Thank you very much.
Mr. Tauzin. Mr. Chairman.
Chairman Pombo. Mr. Tauzin.
Mr. Tauzin. Mr. Stevens, you heard Ms. Sibbison, her
comments that at least from the Jena perspective what they saw
was a Federal Government agency who felt of kind of caught
between their duty to operate in the best interest of the
existing tribes who had casinos and at the same time work
through the question of this landless tribe who is filing an
application based upon historic connection, and her evaluation
of the problem that the department is that it doesn't have good
objective criteria to determine historic connection and that
without much more clarity and much more certainty in defining
that criteria, the department is afraid that it is going to
violate one duty or the other; it is caught in between.
Do you concur with that analysis and would you support
Jena's request that either the Congress or the Department work
out some clear regulations, some clarity, some objectivity in
the historic connection review so that your position that
historic connection can be a real and objective standard for
determination of these landless tribes as to where they might
go?
Mr. Stevens. Certainly we support resolution to that. You
know, again, we assert the rights of these tribes, and I would
like to ask Mark to give you a little bit more legal review on
it.
Mr. Tauzin. Please. Do you agree with Ms. Sibbison's
analysis or do you agree with it or would you support our
request, perhaps, for the agency to adopt objective criteria
for determining historic connection?
Mr. Van Norman. I think I agree with Ms. Sibbison's
analysis that there are two parts to the statute.
Mr. Tauzin. Obviously.
Mr. Van Norman. One is for the historical injustices and to
address land settlements and newly recognized tribes, and the
other is a Section 20 process which is more of a consultation
process with the local government and neighboring communities,
and then the way we see it, the Governor has an obligation to
act in good faith and take into account the interests of all
parties concerned. We don't think that the statute needs to be
amended at this time.
Mr. Tauzin. She didn't recommend that. All she recommended
was that there be more clarity at the Department. The
Department is not afraid to make a mistake, that it knows
literally how to evaluate historic connection claims.
Mr. Van Norman. I think one of the problems with the
Department is they don't have deadlines that they act upon.
Mr. Tauzin. Exactly.
Mr. Van Norman. And they take too long to get things done.
Mr. Tauzin. Exactly.
Mr. Van Norman. And I think if the Department were to adopt
internal deadlines, that that would help these situations.
Mr. Tauzin. That is an additional good recommendation, Ms.
Sibbison. So what we are hearing from you is that maybe the
Department needs, number one, deadlines in which to give
somebody an answer so you are not stuck in limbo and, second,
some clarity in knowing how to evaluate these applications.
I just want to amplify what Ms. Sibbison said. What I
learned in watching this process is that is exactly what
happened, that because there was difficulty in reviewing all of
this historic information and knowing how much more research
the tribe had to do to satisfy what might be the requirements
of the law and because the Department obviously is concerned
that it is balancing its duties here, that if it violates one
side or the other, it is going to find itself in court, so it
is slow to give an answer. Even if it had a deadline, it would
probably try to skip a deadline.
So the impression I am getting and the recommendations I am
hearing, Mr. Chairman, is that the Department needs some
clarity in the criteria and maybe some deadlines to work under
so that these tribes who are making these applications know
exactly what they have to do if they are going to try to move
to another piece of land, what is exactly required of them; and
second, that the department has some confidence in making a
determination on time that they are not going to get sued by
both sides because there is too much ambiguity in the process.
I am not against lobbying. I am not against lobbyists. I am
not saying that. But the ambiguity feeds this lobbying fever
and it puts heat on the Department not to make a decision,
which is exactly what happened in our case, and maybe we could
have fairness and justice in many of these historic claims if
we just had clarity, more certainty in the process, and maybe a
deadline or two for the Department to work under.
Is that a fair evaluation?
Mr. Van Norman. I think we would be in favor of deadlines.
Mr. Tauzin. But you never told me whether you would be in
favor of us asking for them to be more--regulations to clarify
historic connection. Do you favor that or not?
Mr. Van Norman. Well, we would have to take a look at them.
One of the things that you will find--
Mr. Tauzin. Why? Why wouldn't you support that?
Mr. Van Norman. Well, you know, there is a wide variety of
circumstances that will come up, and you will see--
Mr. Tauzin. That is the problem. There are so many
circumstances, the Department doesn't know which circumstances
count and which don't, whether a tribe spending the night in an
area is historic presence or whether they had a village there.
The point I am making is why wouldn't you support the
Department coming up with much more certainty and much clearer
standards for settling these very difficult areas? Why wouldn't
you support that?
Ms. Sibbison. Let me clarify too, I actually meant sort of
across the board, not just historical connection.
Mr. Tauzin. Yes.
Ms. Sibbison. The degree to which local--what is going on
locally--
Mr. Tauzin. The whole scene.
Ms. Sibbison. The whole thing, because I agree with Mark
that they really do need to be looked at on a case-by-case
basis and you know need to look at all the puzzle pieces
together to figure out what the right thing to do is.
Mr. Tauzin. But you are not saying anything different, I
don't think. That is why I think we have agreement here.
Ms. Sibbison. Yes.
Mr. Tauzin. And if we have agreement, it might be very good
for all of you to make a request on our committee to help make
that happen, because we can. We can help make that happen, not
changing the law, by simply helping the Department to side some
kind of agreement, some arrangements whereby all the parties
feel like they are going to get an objective rather than a
subjective decision out of the Department.
Thank you.
Mr. Bearskin. Chairman Pombo, can I make a statement about
that?
Chairman Pombo. Yes, sir.
Mr. Bearskin. We are now working with the third Governor of
Kansas. Before we get anything done, we may be working on the
fourth one. I believe in deadlines, yes, sir.
Mr. Stevens. I just want to assert, Congressman and
Chairman, that these concerns will be brought forward to the
tribal leadership and we will continue to discuss this and try
to bring forward some proactive recommendations.
Mr. Tauzin. Thank you.
Mr. Stevens. Yes, sir.
Chairman Pombo. I am going to dismiss this panel, but I
would remind you that members of the Committee may have
additional questions that they will submit to you in writing.
If you would answer those in writing, the hearing record will
be held open to give you a chance to respond to those.
Thank you.
I would like to now call up our final panel of witnesses,
who are: Deron Marquez, Chairman of the San Manuel Bank of
Mission Indians; Leslie Lohse, Treasurer of the Paskenta Band
of Nomlaki Indians; and Kurt Luger, Executive Director of the
Great Plains Indian Gaming Association.
Before you sit down, I am going to have you all stand up
for a minute. If I could have you all stand and raise your
right hands.
[Witnesses sworn.]
Chairman Pombo. Let the record show they all answered in
the affirmative.
Thank you very much. To begin with, I want to apologize for
the length of the hearing. I know you all have been waiting,
but it is something that, obviously, the members have a lot of
interest in.
Mr. Marquez, we are going to begin with you.
STATEMENT OF DERON MARQUEZ, CHAIRMAN,
SAN MANUEL BAND OF MISSION INDIANS
Mr. Marquez. Good morning, Chairman Pombo and Rank Member
Rahall. My name is Deron Marquez, Chairman of the San Manuel
Band Mission Indians based in southern California. I appreciate
the invitation to testify before you.
The subject of acquiring landing to establish tribal
casinos away from existing tribal homelands is a great concern
of ours, that this sort of land acquisitions threatens not only
San Manuel and its interest in particular and its ancestral
homelands, but also the very existence of tribal government
gaming in the future. For centuries, San Manuel people occupied
the San Bernardino and San Gabriel Mountains and their southern
foothills, the Mojave Desert and Napa Valley and out to Barstow
and areas as far east as Twentynine Palms and Yucaipa Valley.
Today, the San Manuel reservation is located in a small area,
850 acres located near San Bernardino and Highlands in
California.
In 1986, San Manuel first established gaming on our
reservation as a tool for generating revenues for our tribe.
Since that time, we have heard elders from our tribe and many
others say that tribal gaming will 1 day go away, that this
source of subsistence will 1 day be part of our history rather
our present. And what then will we have to sustain others? Our
answer at San Manuel has been to diversify our economy and
tribal holdings, but I fear that once again our elders will be
right, acquisition of land for gaming purposes far away from
existing reservation homelands and the enormous sacrifices that
tribal communities must make to do so may be the beginning of
the ends of our tribal government gaming and sovereignty as we
know it today.
Tribal government gaming has proven to be a useful tool for
tribes to become more self-sufficient and more able to provide
opportunities for tribal members to live more abundant lives.
Gaming has provided resources for tribes to more effectively
protect their sovereignty rights where they have come under
increasing threat. It has provided tribes with the opportunity
to focus on revitalizing tribal languages and cultures where
poverty made survival the first obligation for many Indians. It
has given tribes opportunity to reacquire lands that were sold
or taken from them in more desperate days and make them a part
of tribal territory once again.
Without a doubt, acquiring land is key for some tribal
communities to continue to rebuild themselves. There is much
work to be done for most tribal communities to ensure that
their homelands are protected and suitable into the future, but
the efforts to acquire lands far from existing reservations
brings added scrutiny from the general public and now the
Congress to land acquisitions and makes such reacquisition
efforts more difficult, and not long ago, reacquiring land to
build new schools or homes for tribal members did not receive
the level of suspicion it does today. Seeking to have land
taken into trust now takes longer than ever to accomplish. Now
the highest levels of Congress have taken notice of this
practice and rightfully so.
Casino deal acquisitions are not a new idea, but one that
has been refined by clever casino developers. A new pattern is
non-Indian casino developers matching tribes with economic
depressed non-Indian communities in efforts to pull together a
casino deal. Often times, the tribe's existing reservation and
the non-Indian community are miles and miles apart. With such
deals, there can be hidden costs of non-Indian communities
seeking short-term economic relief who are ill-equipped to
adequately assess the entities and individuals they are
partnering with.
This is a hard lesson learned by some Indian tribes. There
is now such a casino deal in the works in San Manuel ancestral
land in the California Cities of Asperia and Barstow. The
proposed land acquisition of Asperia is more than a hundred
miles from the existing reservation of the Timbisha Shoshone
Tribe, and although with a legislative slight of hand, this
deal is more moving forward as an initial reservation rather
than after-acquired lands under the Indian Gaming Regulatory
Act, therefore the Department of Interior is not required to
consult with San Manuel even though this land is within our
ancestral territory and is much closer to our reservation than
the existing Timbisha Shoshone Reservation. Furthermore, it may
not require the concurrence of the Governor to be completed.
Similarly, the Barstow deal would allow the Las Coyotes
Band to build a casino over a 160 miles from its reservation,
again, encroaching on our ancestral lands and others.
These proposed casino deals and ones similar to them have
the added effect of creating enormous tension between tribes
who have claims to these lands as ancestor homelands as well.
The long-term cost to tribes for this activity may also be
substantial. Tribal government is a tool not a toy. Tribal
sovereignty should be exercised responsibly for history shows
that Congress and the courts give little patience where such
powerful rights are abused.
That concludes my testimony. I will be pleased to answer
questions when it is time.
[The prepared statement of Mr. Marquez follows:]
Statement of Chairman Deron Marquez,
San Manuel Band of Mission Indians
Good morning, Chairman Pombo and Ranking Member Rahall. My name is
Deron Marquez, Chairman of the San Manuel Band of Mission Indians based
in Southern California. I appreciate the invitation to testify before
this Committee on the subject of acquiring lands to establish tribal
casinos away from existing tribal homelands. I have great concerns that
these sort of land acquisitions threaten not only San Manuel and its
interest in protecting its ancestral homelands but also the very
existence of tribal government gaming in the future.
For centuries, our Serrano people occupied the San Bernardino and
San Gabriel Mountains and their southern foothills, the Mojave Desert
near Apple Valley and out to Barstow, and areas as far east as Twenty-
nine Palms and Yucaipa Valley. Today, the San Manuel Reservation is
located on a much smaller area, 850 acres located near San Bernardino
and Highland, California. In 1986, San Manuel first established gaming
on our reservation as a tool for generating revenues for our Tribe.
Since that time, we have heard elders from our tribe and many other
tribes say that tribal gaming will one day go away. This source of
sustenance will one day be a part of our history rather than our
present. And what then will we have to sustain ourselves? Our answer at
San Manuel has been to diversify our economy and tribal holdings. But I
fear that once again our elders will be right. Acquisition of land for
gaming purposes far from existing reservation homelands--and the
enormous sacrifices that tribal communities must make to do so--may be
the beginning of the end of tribal government gaming.
Tribal government gaming has proven to be a useful tool for tribes
to become more self-sufficient and more able to provide opportunities
for tribal members to live more abundant lives. Gaming has provided
resources for tribes to more effectively protect their sovereign rights
where they have come under increasing threat. It has provided tribes
with the opportunity to focus on revitalizing tribal languages and
cultures where poverty made survival the first obligation for many
Indians. It has given tribes opportunity to reacquire lands that were
sold or taken from them in more desperate days and make them a part of
tribal territory once again.
Without a doubt, reacquiring land is key for some tribal
communities to continue to rebuild themselves. There is much work to be
done for most tribal communities to ensure that their homelands are
protected and sustainable into the future. But the efforts to acquire
lands far from existing reservations brings added scrutiny from the
general public and now the Congress to land acquisition, and makes such
reacquisition efforts more difficult. Not long ago, reacquiring land to
build new schools or homes for tribal members did not receive the level
of suspicion it does today. Seeking to have land taken into trust now
takes longer than ever to accomplish. Now the highest levels of
Congress have taken notice of this practice and rightfully so.
Casino deal land acquisitions are not a new idea but one that has
been refined by clever casino developers. A new pattern is non-Indian
casino developers matching tribes with economically depressed, non-
Indian communities in efforts to pull together a casino deal.
Oftentimes, the tribe's existing reservation and the non-Indian
community are miles and miles apart. With such deals, there can be
hidden costs to non-Indian communities seeking short term economic
relief who are ill-equipped to adequately assess the entities and
individuals they are partnering with. This is a hard lesson learned by
some Indian tribes.
There is now such a casino deal in the works in San Manuel
ancestral lands in the California Cities of Hesperia and Barstow.
The proposed land acquisition in Hesperia is more than 100 miles
from the existing reservation of the Timbisha Shoshone Tribe. And
through a legislative slight of hand, this deal is moving forward as an
``initial reservation'' rather than an ``after acquired'' lands under
the Indian Gaming Regulatory Act, therefore the Department of the
interior is not required to consult with San Manuel, even though this
land is within our ancestral territory and is much closer to our
reservation than the existing Timbisha Shoshone Reservation.
Furthermore, it may not require the concurrence of the Governor to be
completed.
Similarly, the Barstow deal would allow the Los Coyotes Band to
build a casino over 160 miles from its reservation. Again, encroaching
on the ancestral lands of others.
These proposed casino deals and ones similar to them have the added
effect of creating enormous tension between tribes who have claims to
these lands as their ancestral homelands as well.
The long-term costs to tribes for this activity may also be
substantial. Tribal government is a tool, not a toy. Tribal sovereignty
should be exercised responsibility, for history shows that the Congress
and the courts give little patience where such powerful rights are
abused.
That concludes my testimony. I would be pleased to answer any
questions you may have.
______
Chairman Pombo. Thank you very much, Chairman.
Ms. Lohse.
STATEMENT OF LESLIE LOHSE, TREASURER,
PASKENTA BAND OF NOMLAKI INDIANS
Ms. Lohse. Yes. Thank you, Chairman Pombo, for inviting us
here today.
As Treasurer of the Paskenta Band of Nomlaki Indians and
NCAI Pacific Region Area Vice President and the BIA Policy
Committee Chair, those leadership roles have allowed me a vast
opportunity to experience tribal government and gaming related
issues. We know that nationwide, obviously, after hearing all
of this this morning and knowing what has been going on, that
gaming on off-reservation and restored and newly-acquired lands
is a national issue, but locally for us, it is Tahema County.
Tahema County supervisors have had to twice reject a tribe,
the Greenville Maidu, of Plumas County's proposals to do gaming
in Tahema County noting that they have previously tried to go
down into southern California, Oxnard, California Bay Area,
California. The Tahema County supervisors understand, as we
understand, the Hardwick case which clearly identifies
Greenville's historical lands to be in Plumas County which
where it states 275 acres is located three miles east of
Greenville, Plumas County, California. So you must remember we
talked about and recognition. They were re-recognized as Maidu,
not as a tribe of Wintun or Nomlaki, which we have shown
through anthropological letters and maps that designate clearly
Tahema County as Wintun Nomlaki territory, not Maidu.
So as the Tahema County supervisors and we reject
Greenville and their investors, the Wilmots as they are
identified in their records, their attempt to negatively impact
our homelands, this relocation is identified and driven by the
tribe's out-of-state profiteer who purchased land in Tahema
County. Their legal counsel, Judy Albietz, in her own statement
reflects that the developer approached the tribe with this
project. No consideration was given to Greenville's historical
area because that was not where the investor purchased the
land, and then they hired an out-of-state revisionist historian
to rewrite our history to try and link a tribe, the Greenville
Maidu, with the investor-purchased land. In fact, the only
connection with that area is the fact that the Maidu member,
one of them at one time, married a Wintun Nomlaki or a Wintun
from the area.
This is a disturbing and exploitive picture of tribal
governments. As the Chairman said, this continues to bring
object about terms like ``reservation shopping'', questions
about who we native Americans are and where we are truly from.
It undermines the unrecognized tribes's attempts to regain
their recognition.
I heard this morning about fairness, that IGRA was going to
provide fairness. Is that fair? Higher scrutiny is given to our
desire to protect our sacred sites and our cultural resources.
Is that fair? Negative impacts due to the deals for this these
off-reservation gaming virtually bring in state taxation. I
heard that this morning. Is that fair? State and local
jurisdiction over our tribal lands, that is not fair. The
backlash and pressure on us who are currently compacted to make
the same deals offered by those going off reservation, that is
a negative impact economically as well as tribally and
culturally.
All of these concessions are made that will forever affect
our tribe. While the Wilmots of the world make their profits
from Indian gaming and move on, we are left with that fair
share that we have to provide to the States.
IGRA has worked for many years. These types of attempts to
gain far-stretched off-reservation acquisitions have made
review of IGRA even an issue. I don't believe that IGRA
supports these types of land claims. I know the BIA does
struggle with the legal and political realities of off-
reservation land acquisitions. My concern, though, is the
statement by Mr. Skibine that said that tribes's opinions and
local tribes, their opinions about what is happening, does not
impact as greatly as local communities. I differ with that. We
have heard conflicting reports about the limits that IGRA does
not expand but restricts the gaming by disallowing newly
acquired far from current or prior reservations to do gaming. I
think the key still remains, the State, local, Federal and
local tribal concurrence.
We support any reasonable effort by other tribes to improve
their economic situation and we would be open to the Greenville
Maidu in their attempt to make a gaming facility on their own
ancestral territory, but as they proceed today, we will stand
firm to this type of off-reservation gaming acquisition as do
the Tahema County supervisors, and this type of acquisition
only further perpetuates the terms ``off-reservation gaming is
reservation shopping'', the questions about who we are as
Native Americans and where we are from and the notion that we
are merely special interest groups given an unfair opportunity
to do gaming on land, and it is a shame that we can only take
pride in being Indians and tribal nations if we are doing
gaming, as I heard earlier.
Again, overall, IGRA has worked over the years when applied
properly, and State and local and Federal concurrence is
supported and included. We support your continued efforts to
address IGRA and ensure the local community and local tribal
involvement.
Again, thank you very much for your time and I appreciate
the opportunity. I know there are a lot of other pressing
things on your agendas, but again, thank you.
[The prepared statement of Ms. Lohse follows:]
Statement of Leslie Lohse, Treasurer,
Paskenta Band of Nomlaki Indians of California
Chairman Pombo and members of the Committee, I would like to thank
you for the opportunity to testify on the subject of Gaming on Off-
Reservation, Restored and Newly-acquired Lands. As Treasurer of the
Paskenta Band of Nomlaki Indians of California, I am very involved with
the issues of gaming, including but not limited to the economic
development opportunity, tribal-state compacting, land into trust, and
governmental jurisdiction. I am here today with full authority and
direction from the Paskenta Band of Nomlaki Indians of California
Tribal Council. We are very pleased to see the Committee has taken the
time to address this very important issue, even though we know that
your committee has numerous important tribal and non-tribal issues to
address on a daily basis.
As the National Congress of American Indians (NCAI) Pacific Region
Area Vice-President and U.S. Bureau of Indian Affairs Central
California Agency Policy Committee Chairperson, I have become
increasingly aware and knowledgeable of the many struggles of Tribal
Governments dealing with the issues related to gaming on off-
reservation, restored and newly-acquired lands. Although, for the
record, I am here to represent only my Tribe, my statements will
reflect my experience and acquired knowledge from being a
representative of the above-mentioned organizations. Because of the
precedents that could be set for Indian Country, I feel it is very
important to deliver pertinent information that will assist the
Committee with its findings.
Many examples of the issues arising from off-reservation gaming are
taking place throughout the United States, in California and within our
own County of Tehama. As you may know, the 87-adult member Greenville
Maidu Indians of Plumas County, California (their ancestral territory)
is seeking to relocate to Tehama County, California (the aboriginal
territory of the Paskenta Band) for the sole purpose of conducting
gaming. This quest by the Greenville Maidu follows prior efforts to
engage in commercial gaming on other off-reservation locations in
Oxnard, California and the Bay Area (San Francisco-Oakland,
California).
For a second time, the Greenville Maidu have approached the Tehama
County Supervisors with their proposal to develop a casino and
ancillary facilities. Previously, the Tehama County Supervisors
rejected the Greenville Maidu proposal, but were approached again by
the Tribe with a new agreement. The Minutes of the Meeting of the Board
of Supervisors of the County of Tehama, Tuesday, May 18, 2004,
(Attachment A, see Pages 14 & 15) reflect the following statements made
by Legal Counsel for the Greenville Tribe, Judith Albietz: Ms. Albietz,
when asked why the tribe does not have land in Greenville and if a
site-search was conducted and how this location was chosen, emphasized
that ``the developer approached the Tribe with this project.'' Also,
Ms. Albietz emphasized that ``the developer of the project, the
Wilmots, will be a good partner with Tehama County.'' She further
advised that ``there are very clear rules relative to this proposal,
that there will be a seven-year management agreement, and that the
facility will be run by the Wilmots.''
The Greenville Maidu proposal presents a disturbing and exploitive
picture of Tribal Governments throughout this great nation.
To begin with, the Greenville Rancheria settlement is found in the
Hardwick case. The stipulation and judgment in that matter provides
that the exterior boundaries of the plaintiff tribes' individual
reservations (rancherias) would be restored to pre-termination status.
Therefore, the Greenville Rancheria's ``275 acres, is located
approximately three miles east of Greenville, Plumas County,
California.'' This indicates clearly that the United States and
Greenville Rancheria recognize that the Greenville Maidu's proper land
request should be limited to Plumas County, California, not Tehama
County, California. But, the Wilmots have purchased property in Tehama
County along Interstate 5. Therefore, the Wilmots want to relocate the
Greenville Maidu to this new location. Such relocation will satisfy
this out-of-state investor's appetite for profit. No consideration is
being given to the Maidu's true ancestral territory or the land
recognition indicated in the Hardwick case.
Also, no consideration is being given to the fact that the proposed
site is well within the ancestral territory of the Paskenta Band of
Nomlaki Indians. As evidenced by Attachments B and C, the Paskenta
people, classified as Nomlaki, also referred to as Wintun, Central
Wintun, or Hill and River Wintun, resided ``in the Sacramento River
Valley in present Tehama County, Cottonwood Creek forming the northern
boundary, Stoney Creek forming the southern boundary, the foothill land
to the west, extending to the summit of the Coast Range.'' We
understand that the Wilmots have hired the services of an out-of-state
genealogist to re-write the history of the Native Americans in
California. Now, the Greenville Maidu claim that the ``Tribe's people
have occupied areas along the Sacramento River,'' yet the ``Tribe's
people'' is not defined and it is understood that the tie to Tehama
County is through the marriage of a Greenville Maidu to a Wintun
Indian. Therefore, the tie to the lands of Tehama is through the
Wintun/Nomlaki, yet the revisionist historian would have history read
that it is the Greenville Maidu Tribe which is culturally tied to our
area.
This disturbing stretch and re-write of our history by an out-of-
state revisionist historian and out-of-state profiteer undermines the
core of every sovereign Indian nation. Such liberal re-writes bring
questions from the non-Indian population about the validity of ``who we
(Native Americans) are and where we are from-- and ensuing accusations
of ``reservation shopping.'' We have many un-recognized Tribes waiting
to be re-recognized, but such revisionist historical re-writes all but
seal the fate of the many Indian nations that have true claims. As
Chairperson of the Central Cal Agency Policy Committee and NCAI Area
Vice-President, I have been approached by some of the unrecognized
Tribes expressing their frustration and concern with the recognized
Tribes taking such actions in order to pursue gaming.
``Reservation shopping'' has become the catch phrase in California
as Tribes seek off-reservation land acquisitions to satisfy the gaming
developers' wishes to garner larger profits from Indian gaming. We know
that the Bureau of Indian Affairs struggles with the political and
legal realities of this issue. We have read conflicting reports about
whether the Indian Gaming Regulatory Act (IGRA) ``limits, not expands,
the right to game'' by ``disallow[ing] gaming on newly-acquired lands
far from the current prior reservation.'' Clearly, IGRA provides
language that allows Tribes to game where ``such lands are located
within or contiguous to the boundaries of the reservation of the Indian
Tribe on October 1, 1988...'' 25 U.S.C. Sec. 2719 (a) (1), but the
Greenville Maidu's improper claim that gaming on their currently
proposed site is consistent with IGRA only further fuels negative
issues arising from far-fetched pursuits to do off-reservation gaming.
Such negative issues include, but are not limited to, virtual state
taxation, state and local jurisdiction over tribal lands, negative
economic impacts to other Tribal Governments and the cumulative loss of
Indian Tribes' sovereign status. As with other Tribes across the nation
that seek off-reservation gaming, the Greenville Maidu have offered up
a substantial amount of money to the local community in order to buy
their support. Also, they have offered up substantial local and state
jurisdiction in order to buy support. The Greenville Maidu are
currently without a Tribal-State Compact and will undoubtedly offer up
even more money that will go into the State of California's general
fund to address the State's current budget deficit. The backlash of
such offerings is that the local and State governments begin to look
upon us that are currently doing gaming in the same light. Thereby, we
are pressured into making the same sort of deals in order to continue
our gaming operation. Such undue pressure and Greenville's attempt to
do off-reservation gaming in the Nomlaki homelands erodes our Tribe's
economic stability. We do not believe the above-noted scenario was the
intent of IGRA.
Rather, we believe IGRA was written to support Tribal sovereignty,
self-determination and growth. Instead, it is being used to degrade and
detract from our Tribal Governments. As deals are cut, revisionist
historians re-write our history, and profit-driven investors lure our
Tribal Governments, our Tribal Nations we will continue to lose our
identity. The next time we want to protect a sacred site or our
cultural resources, greater scrutiny will be imposed upon us because of
relocation(s) to off-reservation lands. Tribes are willingly signing
and attesting to documents that will forever change our history and
perhaps cause great damage to the future of Native Americans, all for
the ``projected profits'' put before us by outside developers and
investors.
We understand that gaming provides an opportunity to gain revenue
that may assist with the needs of Tribal Governments. But, as noted
earlier in the statements by Greenville's legal counsel, Ms. Albietz,
the Wilmots will run the operation and the Wilmots will be a good
partner with the County. Based upon those statements we ask: Where is
the Tribal Government? Where is the Tribal jurisdiction? Where is the
protection of Tribal sovereignty? Concessions to the extent being
offered up and the need to re-write history would not be necessary if
the Greenville Maidu Tribe would stay within their own historical area.
We know there is a viable market within Greenville's historical area,
but the Wilmots have purchased property in the Paskenta territory. And,
the concessions made will not affect the Wilmots down the line, because
they will have made their profits from Indian gaming and move on. But,
we as Indian Tribes will remain and suffer the backlash received due to
the re-written history and the agreements drawn up that satisfy the
developers' economic margins and needs.
Mr. Chairman, I will be very clear that the Paskenta Band of
Nomlaki Indians of California's primary concern is the erosion and
degradation of our sovereign status as a Tribal Nation and our special
relationship with the United States Government. Some will charge that
our only concern is with competition, but we emphasize that competition
from a Tribe having a legitimate land claim would be respected by our
Tribe. Yet, what we see here is an attempt to do off-reservation gaming
by a Tribe clearly driven by an out-of-state investor, and concessions
and deals offered that will surely be disastrous to our Tribe's economy
and sovereign status.
We support the reasonable efforts of other Tribes to improve their
economic situation, and will be similarly open to the Greenville Maidu
in any attempt made within their own ancestral territory to do gaming.
However, as the Greenville Maidu proceed today, we will stand firm
along with the Tehama County Supervisors against this type of off-
reservation gaming acquisition. This type of acquisition only further
perpetuates the term ``reservation shopping,'' the questions about
``who we (Native Americans) are and where we are from,'' and the notion
that we are merely ``special interest groups'' given an unfair
opportunity to do gaming upon our tribal lands. Again, overall, IGRA
has worked over the years when applied properly, and when state, local
and federal concurrence and support is included. We support your
continued efforts to address IGRA and to ensure local community and
local tribal involvement.
In closing, Mr. Chairman, I again would like to thank you and
members of the Committee for the opportunity to testify on the subject
of Gaming on Off-Reservation, Restored and Newly-acquired Lands. The
Paskenta Band of Nomlaki Indians of California are very appreciative of
you and your committee colleagues' time taken to review this issue,
given the growing concerns and protection needs of this great United
States of America. Thank you for your time, and I look forward to any
questions you may have for me regarding this issue.
[NOTE: Exhibits attached to Ms. Lohse's statement have been retained in
the Committee's official files.]
______
Chairman Pombo. Thank you very much.
Mr. Luger.
STATEMENT OF J. KURT LUGER, EXECUTIVE DIRECTOR,
GREAT PLAINS INDIAN GAMING ASSOCIATION
Mr. Luger. Good morning, Mr. Chairman and honorable Members
of the Committee. I am a little upset now. Leslie stole my
fire. She got it wrapped up pretty quick.
To all my colleagues, I can hear my friends in the
background whispering who is this guy, because I have a lot of
friends, but I have my cowboy hat off. So I have new rules for
this, only marrying, burying, and Congress. So I have a lot of
respect for you.
First off, I want to say who I am. I am Kurt Luger. I am
the Executive Director of the Great Plains Indian Gaming
Association. My office is in Bismarck, North Dakota. I am an
enrolled member of the Cheyenne Sioux Tribe and either
fortunately or unfortunately, I am Mark Van Norman's cousin.
The other thing I want you to know is a little bit about
who we are, real briefly. I represent 31 tribes from Montana to
Kansas, nearly all the tribes that have gaming compacts. This
issue is floating out there left and right. I heard some
comments today that are a little shocking to me. I guess George
Skibine kind of knocked me for a blow. I don't know how you can
dream up out of the air a 50-mile radius, because I can justify
it. Hell, in North Dakota, I drive 50 miles to go get gas to go
another 50 miles to get groceries. It is insane.
And so I guess what I am here to say--and I want to be
brief. I was going to give you some background on our tribes,
but I have that all into the written testimony. We have had
plenty of pain and suffering across Indian country. I don't
know that one tribe has received any more pain or less than
others, but I do want to leave you with this thought: the
Indian gaming where I come from is about jobs. We use the
``revenue'' word too darn much. I was suffering in 75 percent
unemployment in my region and all the social ills that come
without a job: alcoholism, drug abuse, the domestic violence,
everything else. Indian gaming has been a huge success in rural
America, and I certainly don't subscribe to the ``Time
Magazine'' seen article.
I have 17 million acres of trust and nearly a quarter of a
million Indians where I work, and one of the things that we
feel strongly about and so far we have been able to do in my
region, we don't pay revenue sharing. The States that we have
been in, we have been able to convince that it would be
detrimental to do so. The same with this off-reservation
scenario. I think it is absolutely critical that those historic
tribes that have operations on their reservation be given some
deference. We have a situation now at home, the Band of
Chippewa, after watching the news reports coming out of
Minnesota this last session between Red Lake and White Earth
and the rest of those folks wanting to put up a Twin Cities
joint venture thing in Minneapolis, hell, before we knew it, we
were paying for the Vikings and the Twins. That is how this
stuff gets blown out of proportion.
The one thing that I did want to say, obviously in our area
it is jobs, but this type of discussion is dangerous to tribes.
It pits tribes against tribes. I saw two Louisiana tribes here
who feel very distinctly about one another, and I can't see
that that is a healthy measure, and the one that isn't here
seemed to be coming off as the bad guy that somehow I heard
this world about lobbying heavy handed. What about them having
a right to protect their own backyard? I am a cowboy, and I am
telling you what. If somebody sticks a post hole in my
backyard, I get a chance to say I don't want that post hole in
there, and there is enough of this.
Indian gaming was never promised to be a panacea to
anybody. It was to be an upgrade for those that could take
advantage of it and move their circumstances up. Now we find
ourselves fighting about location and who has got more revenue
in what market and things like that. It is getting confusing,
and I am afraid that the American public is extremely confused
about this. On our historical lands, Indian gaming is
important. It is just one more arrow in the quiver and we treat
it as such, and we have brought our argument to the States I
have lived in. We don't pay revenue sharing. They understand.
That is important to us.
Just in North Dakota alone, that is 2,100 jobs in North
Dakota, full time, pension and insurance, unheard for most
tribal jobs. We have now one tribe that is looking at a
scenario. Just by looking at it, we have been in the newspaper
for about the last two months every day on every editorial
page. They are 200 miles away from their reservation boundary.
I have another tribe that is only 45 miles away, and these are
the types of things that get brought to the table and we wonder
how we get ourselves not unified.
At the Great Plains Indian Gaming Association, we
acknowledge the right of Indian tribes to apply to the
Secretary to take land into trust for Indian gaming under
Section 20 outside of its historic reservation, but we also
acknowledge that some of these transactions have been
controversial because those in nearby communities or members of
neighboring Indian tribes may be impacted by the acquisitions.
And I was a little bit taken back by Mr. Skibine and Ms. Martin
today in saying that that tribal input didn't have very damn
much weight, and that is what IGRA was about, to take and
address the horrific unemployment situations on reservation in
your homeland, and if you have good relationships with your
neighbors and good communication with your neighbors, then
nearly everything in Section 20 could be applied, but obviously
there are places in Indian country that they are not being able
to communicate or not being able to come to resolve, and it is
ending up in these types of discussions.
We feel it is very important for the Secretary to
thoroughly consult with neighboring Indian tribes. I have $250
million worth of infrastructure in North Dakota in those five
tribes, $35 million a year payroll, $50 million a year purchase
of in-State goods. If that off-reservation scenario hit in
Grand Forks, all of them in isolated areas--you have to drive a
couple of hours to get to each one of them--if one of those
would go that way, one of two things are going happen: State-
authorized gaming is just going to get blown up to keep up with
the competitive factor or, two, you are going to have four
tribes not ever speaking to one tribe until hell freezes over,
and that includes negotiations of the BIA and IHS, and that is
why I say to my brothers here in this room gaming is not
everything to us. That does not make us people. It is our
homeland. It is our language. It is our perseverance. It is our
ancestors, and if you can make it work for you, damn well good
luck, but do not take this as the only opportunity and see a
neighbor over there doing fairly well by it and take to that
individual or that tribe. They are on their historic ground.
Aboriginal claim? Hell, North and South Dakota is a total
aboriginal claim. There isn't an acre in North and South Dakota
that doesn't have an aboriginal claim to it, probably.
So these things are pretty serious stuff. I have 2,000--
well, in my region, I have nearly 6,000 full-time employees
that I am worried about, and I think that it is a must that the
tribes have some input on this process under Section 20 so
their negative is concluded with.
In conclusion, I just want to say in our view at the Great
Plains, the Secretary of the Interior must gather information
through the consultation process necessary to protect existing
Indian gaming on historic reservation lands because after all,
the main purpose of the Act is to protect the historical rights
to self-government on existing Indian lands. Under Section 20,
in order to fulfill the Federal trust responsibility to protect
Indian tribes, the Secretary of Interior must consult
thoroughly with neighboring Indian tribes and to act to protect
existing Indian gaming when considering any Section 20
application for the use of after-acquired lands of Indian
gaming. We believe that a thorough application of the existing
law and clear focus on real and substantial consultation will
ensure that the Section 20 process serves its purpose of
generating a substantial local and tribal community consensus
concerning the use of any after-land acquired for Indian
gaming. This will avoid the need for an amendment to the Indian
Gaming Regulatory Act.
And in closing, I would just again thank you for your time,
and I think that all of us in Indian country, we will be
chewing this over amongst ourselves as well be, but I don't
want those cross-comparisons to be made to my region. We don't
pay revenue sharing. We are huge. We have long distances
between us, and almost every little thing that one or the other
does impacts us, and so I think it is important that tribes,
the neighboring tribes--and I am not thrilled about this 50-
mile radius or hundred-mile radius. I don't imagine he could
tell you where he pulled that out of the hat at. I have asked
him twice, and he has never been able to give me an answer.
And with that said, I would like to close my testimony and
open up for any questions that you may have for me and I will
be happy to answer them.
[The prepared statement of Mr. Luger follows:]
Statement of J. Kurt Luger, Executive Director,
Great Plains Indian Gaming Association
Introduction
Good morning. Chairman Pombo and Members of the Committee thank you
for inviting me to testify today concerning Indian gaming on off-
reservation, restored, and newly-acquired lands.
My name is J. Kurt Luger and I am a member of the Cheyenne River
Sioux Tribe of South Dakota and my family resides on the Standing Rock
Reservation near Ft. Yates, North Dakota. I serve as the Executive
Director of the Great Plains Indian Gaming Association, which includes
28 Indian nations from North and South Dakota, Nebraska, Iowa, and
Kansas. We work closely with both the National Indian Gaming
Association and other regional Indian gaming associations, including
the Minnesota Indian Gaming Association. At Great Plains Indian Gaming
Association, my job is to alert our Member Tribes to the challenges
that we face in Indian gaming and to provide training and technical
assistance to our tribal government officials, tribal gaming
commissioners, gaming management and staff.
At the outset, let me say that Indian gaming is working in rural
areas of America. Indian tribes that faced 50, 60, and even 70%
unemployment are now generating jobs not only for their own tribal
members, but for neighboring non-Indians as well. I live and work in
Bismarck, North Dakota so I will use the situation of the North Dakota
Tribes as a representative example.
Indian Tribes in North Dakota
In North Dakota, 5 tribal governments operate Indian gaming
facilities: the Three Affiliated Tribes of Fort Berthold--Mandan,
Hidatsa, and Arikara; the Spirit Lake Sioux Tribe, the Turtle Mountain
Chippewa Tribe, the Standing Rock Sioux Tribe and the Sisseton-Wahpeton
Sioux Tribe. Both the Standing Rock Sioux Tribe's reservation and the
Sisseton-Wahpeton Sioux Tribe's reservation straddle the border with
South Dakota.
Three Affiliated Tribes. The Three Affiliated Tribes, Mandan,
Hidatsa, and Arikara, operate as a unified tribal government. These
Tribes have occupied the Missouri valley for hundreds and thousands of
years, planted corn, squash, and beans on the fertile flood plains, and
hunted buffalo and wild game. Living in stockaded villages, the Three
Affiliated Tribes were devastated by smallpox epidemics in 1792, 1836,
and 1837.
Early on, the Three Affiliated Tribes established friendly
relationships with the United States. They welcomed the Lewis and Clark
expedition into their villages and assisted them on their journey. In
1825, the Mandan, Hidatsa, and Arikara Tribes entered into Treaties of
Friendship and Trade with the United States, which states:
Henceforth, there shall be a firm and lasting peace between the
United States and the [Mandan, Hidatsa, and Arikara Tribes]...
The United States--receive the [Tribes] into their friendship
and under their protection.
The United States' treaty pledges of protection forms the basis for the
Federal Indian trust responsibility. The traditional lands of the
Mandan, Hidatsa, and Arikara encompassed an area of 12 million acres
from eastern North Dakota to Montana and as far south as Nebraska and
Wyoming. The Fort Laramie Treaty of 1851, congressional acts and
executive orders reduced the Tribes' lands to 1,000,000 acres in
western North Dakota.
In the early 1950s, the Three Affiliated Tribes were asked to
undertake a tremendous sacrifice by allowing the United States to dam
the Missouri River and flood their reservation. The original tribal
headquarters was flooded and families were moved away from the fertile
Missouri River flood plain up on to the high prairie. When Lake
Sakakawea was formed by the dam, the new lake divided the reservation
into three parts. The Tribes suffered an enormous loss of natural
resources, including the most fertile land on the reservation, their
community was divided and the small village life that many had known
along the Missouri River was gone. The tribal headquarters were
relocated four miles away in New Town, North Dakota. Today, the tribal
population is about 10,000 with about 5,000 living on the reservation.
Spirit Lake Sioux Tribe. The Spirit Lake Sioux Tribe is composed of
the Sisseton-Wahpeton and Yankton bands of the Dakota or Sioux Nation.
Originally residing in Minnesota and eastern North Dakota, the Spirit
Lake Sioux Reservation was established by the Treaty of 1867 with the
United States. The Treaty of 1867 provides that: ``The--Sioux Indians,
represented in council, will continue--friendly relations with the
Government and people of the United States''.'' The Treaty recognizes
the Spirit Lake Sioux Reservation as the ``permanent'' reservation of
the Tribe.
The Tribe has worked to develop jobs through manufacturing,
providing Kevlar helmets and military vests to the Pentagon through
Sioux Manufacturing Corporation, yet with a reservation population of
over 6,000 people, the Tribe has struggled with 59% unemployment as the
Defense Department budget was cut in the 1990s. The Spirit Lake
Reservation encompasses 405 square miles north of the Sheyenne River in
northeastern North Dakota.
Turtle Mountain Chippewa Tribe. The Chippewa or Ojibwe people
originally inhabited the Great Lakes Region and began to hunt and trade
in North Dakota in the late 18th and early 19th Centuries.
Historically, the Chippewa and the Dakota fought wars with each other,
but they settled their differences through the Treaty of Sweet Corn in
1858.
In 1882, Congress set aside a 32 mile tract in Northeastern North
Dakota for the Turtle Mountain Band of Chippewa 11 miles from the
Canadian border. With the passing of the great buffalo herds, the
Chippewa turned to agriculture and ranching, and faced many
difficulties due to encroachment by settlers. Today, almost 20,000
tribal members live on the 6 x 12 mile Turtle Mountain reservation, and
Belcourt, North Dakota has become the 5th largest city in the state.
Standing Rock Sioux Tribe. The Standing Rock Sioux Tribe is
composed of Sitting Bull's Band, the Hunkpapa, and the Yanktonai, with
some Black Foot Sioux on the South Dakota side. In the Fort Laramie
Treaty of 1868, the United States pledged that: ``The Government of the
United States desires peace and its honor is hereby pledged to keep
it.'' The Treaty also provides that the Great Sioux Reservation was to
serve as the ``permanent home'' of the Sioux Nation.
Yet, in 1876, General Custer and the 7th Cavalry came out to Sioux
country to force the Sioux tribes on to diminished reservations. In
1889, the Federal Government once again called on the Sioux Nation to
cede millions more acres of reservation lands, and the Standing Rock
Sioux Reservation was established by the Act of March 2, 1889. Sitting
Bull had opposed the land cession and in 1890, he was murdered by BIA
police acting in concert with the U.S. Cavalry.
The Standing Rock Sioux Reservation is composed of 2.3 million
acres of land lying across the North and South Dakota border in the
central area of the State. Like the Three Affiliated Tribes, the
Standing Rock Sioux Tribe was asked to make a substantial sacrifice for
flood control and ceded almost 56,000 acres of the best reservation
land for Lake Sakakawea. Tribal members were removed from their
traditional homes along the Missouri River flood plain and relocated
well up above the river. Today, the population of resident tribal
members is almost 10,000.
Sisseton-Wahpeton Sioux Tribe. Located in Southeastern North Dakota
and Northeastern South Dakota, the Sisseton-Wahpeton Sioux Tribe has a
total enrollment of over 10,000 tribal members and a resident
population of about 5,000 tribal members. The Tribe was originally
located in Minnesota, but pressure from white settlers pushed the Tribe
westward. The Treaty of 1858 with the United States established the
Sisseton-Wahpeton Sioux Reservation, which today has approximately
250,000 acres in North and South Dakota.
Indian Gaming in North Dakota
Since the beginning of tribal gaming in North Dakota, the primary
function has been to provide employment and economic development
opportunities. Indian gaming has also provided vital funding for tribal
government infrastructure, essential services including police and fire
protection, education, and water and sewer services, and tribal
programs, such as health care, elderly nutrition, and child care.
There are five Indian gaming facilities in the state--Four Bears
Casino & Lodge (Three Affiliated Tribes), Sky Dancer Casino & Lodge
(Turtle Mountain), Spirit Lake Casino (Spirit Lake Sioux), Dakota Magic
Casino (Sisseton-Wahpeton), and Prairie Knights Casino & Lodge
(Standing Rock). Together, the gaming facilities employ almost 2,000
North Dakota residents. About 70% of the employees are tribal members,
and the balance are our non-Indian neighbors, and taking into account
the multiplier effect of the $112 million of economic activity
generated by Indian gaming in North Dakota, Indian gaming generates an
additional 2,000 jobs statewide. Since 1997, the combined economic
impact of Indian gaming and related activity has exceeded $1 billion
statewide.
Tribal-State Relations
All of the North Dakota tribes have worked to maintain positive
government-to-government relationships with the State of North Dakota.
Our Tribal-State compact acknowledges that:
The Tribe and the State mutually recognize the positive
economic benefits that gaming may provide to the Tribe[s] and
to the region of the State adjacent to the Tribal lands, and
the Tribe and the State recognize the need to insure that the
health, safety and welfare of the public and the integrity of
the gaming industry of the Tribe and throughout North Dakota be
protected.
The Tribes in North Dakota have worked very hard to preserve a strong
relationship with the State, and the State for, its part, has worked in
good faith with the Tribes.
In fact, the State Attorney General is vested with authority to
regulate gaming under state law and works with the tribal governments
through our compacts. Attorney General Wayne Stenjhem has complimented
the tribal governments on our record of strong regulation and has
cooperated with the tribal regulatory agencies to apprehend and
prosecute those who attempt to cheat our casinos. The Attorney General
has recognized that Indian gaming has created important jobs and
generated vital revenue for tribal self-government and has made it
clear that he is proud that the State of North Dakota has not asked for
revenue sharing. State officials in North Dakota know that tribal
governments have many unmet needs and it helps the whole state, when
tribal governments have a way to create jobs and generate essential
governmental revenue.
After Acquired Lands
In general, the Indian Gaming Regulatory Act is intended to
strengthen tribal self-government by safeguarding Indian gaming as a
way to fund essential tribal government infrastructure, services and
programs. The Act establishes a general policy that Indian gaming shall
be conducted on trust land acquired prior to its passage in 1988.
Because of the complex history of Federal takings of Indian lands,
Section 20 of the Act provides several necessary exceptions:
Lands Contiguous to Indian Reservations or Within the
Last Reservation of a Tribe No Longer Has Reservation Borders;
Lands Recovered Under Land Claims;
Lands for Newly Recognized Tribes; and
Lands Acquired Through Consultation with Local
Governments and Neighboring Indian Tribes and a Two-Part Determination
by The Secretary of the Interior with the Concurrence of the State
Government.
The first three exceptions for trust land within historic
reservation boundaries, trust lands under land claims, and lands for
newly-acquired lands fall into the category of addressing problems
created by the United States' historic takings of Indian lands and
injustices. The last exception, however, is a discretionary exception
that requires the development of a broad consensus that such an
acquisition is in the best interests of the Tribe and not adverse to
the surrounding community.
The Indian Tribes in North Dakota are engaged in gaming on Indian
lands acquired prior to the Indian Gaming Regulatory Act, or in the
case of the Sisseton-Wahpeton Sioux Tribe, on trust land acquired
within the original boundaries of its reservation under the 1867
Treaty.
To date, there have been no off-reservation land acquisitions under
the two-part Secretarial process. The Turtle Mountain Band of Chippewa
has indicated that it is considering an off-reservation acquisition
under the secretarial process set forth in Section 20.
Section 20 explains that the limitation on Indian gaming to lands
acquired prior to 1988 shall not apply when:
The Secretary, after consultation with the Indian tribe and
appropriate State, and local officials, including officials of
other nearby Indian tribes, determines that a gaming
establishment on newly-acquired lands would be in the best
interest of the Indian tribe and its members, and would not be
detrimental to the surrounding community, but only if the
Governor of the State...concurs...
25 U.S.C. 2719(b)(1) (emphasis added).
At the Great Plains Indian Gaming Association, we acknowledge the
right of Indian tribes to apply to the Secretary to take land into
trust for Indian gaming under Section 20 outside of its historic
reservation. We also acknowledge that some of these transactions have
been controversial because those in nearby communities or members of
neighboring Indian tribes may be impacted by the acquisition.
Therefore, we believe that the right of neighboring Indian tribes to
consultation with the Secretary concerning such an application of after
acquired lands is as important as the right of an individual Tribe to
apply for it.
Therefore, we believe that it is very important for the Secretary
of the Interior to thoroughly consult with local governments and
``neighboring'' Indian tribes. In fact, in North Dakota we all consider
ourselves to be ``neighbors'' in the tribal community, and we believe
that all Tribes should be consulted concerning any Section 20 after
acquired land application in North Dakota or even near the North Dakota
border in Minnesota, South Dakota or Montana. After all, while we live
in areas that are large geographically, our population is small and we
often draw our customer base from a substantial distance away. The same
is true in other Great Plains states.
In addition, if a Section 20 after acquired land application proves
to be controversial, it is possible that it could damage relationships
with local governments or even the State where we reside. Therefore,
any hard and fast effort to define the term ``neighboring'' as 50 miles
or 100 miles, must be rejected.
In our view, the Secretary of the Interior must gather information
through the consultation process necessary to protect existing Indian
gaming on historic reservation lands because, after all, the main
purpose of the Act is protect the historic tribal rights to self-
government on existing Indian lands.
Conclusion
Under Section 20, in order to fulfill the Federal Trust
Responsibility to protect Indian tribes, the Secretary of the Interior
must consult thoroughly with neighboring Indian tribes and act to
protect existing Indian gaming, when considering any Section 20
application for the use of ``after acquired'' lands for Indian gaming.
We believe that a thorough application of existing law and clear focus
on real and substantial consultation will ensure that the Section 20
process serves its purpose of generating a substantial local and tribal
community consensus concerning the use of any after acquired land for
Indian gaming. This will avoid the need for amendment of the Indian
Gaming Regulatory Act.
Again, thank you for the opportunity to testify today.
Pilamayayelo.
* * *
As Chairman of the Great Plains Indian Gaming Association, I concur
in Mr. Luger's testimony.
Charles Murphy, Chairman, Standing Rock Sioux Tribe
______
Chairman Pombo. Well, thank you, and I want to thank the
entire panel for their testimony. It was very interesting for
me and I am sure for the entire Committee.
Mr. Luger, just to clarify for myself--
Mr. Luger. Sure.
Chairman Pombo.--do you feel that you there is a need to
have off-reservation gaming, that there should be the ability
to do that within the law?
Mr. Luger. Yes.
Chairman Pombo. You also feel that if this were to happen,
that besides State and local community involvement, other
tribes should also be heavily weighed in any of those
decisions?
Mr. Luger. Absolutely.
Chairman Pombo. If we were to look at this from--you know,
coming from California, we have our own set of issues out
there, and I am assuming that some of the same things are
happening in your area.
Mr. Luger. You sent them east. They came.
Chairman Pombo. That tends to happen. But in trying to get
our arms around this, one of the things that Mr. Marquez--
Chairman Marquez talked about this. One of the things is that
what is happening right now in California and in other parts of
the country is in my opinion endangering all Indian gaming as
well as sovereignty, because people are beginning to react to a
lot of what is happening with people that are applying for off
reservation.
Do you feel that is it is in the interest of all tribes
that we try to get in front of this thing before it goes much
further?
Mr. Luger. I think it would be--it is absolutely critical,
and I will use NIGA as an example, that this dialog be taking
place because it is growing. I mean, we are expected--look at
California. My God. They had to ante up a billion dollars to
the Gov over there. In my home country, we all had a heart
attack that morning when we saw it in the news, and the bottom
line is this, why is Indian country responsible for picking up
the deficit problem in the State of California? We are be used
for every little--nobody is questioning the leadership in the
State of California during the hay day of the nineties, but,
boy, they want that Class III money from Anthony Picot, and we
are having a real problem with that, and it is coming into our
neck of the woods. Kansas, Nebraska, Iowa, Montana just grew
into that problem.
And so you are correct in wanting to view this thing,
because I see wagons kind of getting a runaway train.
Chairman Pombo. Chairman Marquez, your testimony was very
enlightening, and I know a lot of the issues that you are
dealing with and some of the problems that you are trying to
get in front of, but do you believe that we should allow off-
reservation gaming if we follow the criteria that we were just
talking about, that the local community buys off, the State
buys off, the tribes that are local there buy off on it or sign
off on it, and it is a more open collaborative process than
what we are currently doing?
Mr. Marquez. I think under the Section 20, it allows for
that process to take place. What we have unfolding here in
front of us under the Timbisha Shoshone situation is a sidestep
to the Section 20 where the Act allows the tribe with proper
consultation with the Secretary of the Interior to acquire
lands that they both agreed to purchase. I think we can all
pretty much, especially in California, sit down and draw a
bubble, if you will, of what our ancestral lands are, and I
think it is a no-brainer to understand where your ancestral
lands are, and that is in my mind, in my opinion, that is where
you should be taking your off-reservation, quote-unquote.
I think often times some of these tribes are driven by
hungry investors and hungry attorneys to acquire land in more
what I would deem profitable centers for their own benefit and
not for the tribe's benefit, and I think it sets a horrible
precedent, as Mr. Luger alluded to.
Chairman Pombo. Would it not make more sense if a remote
tribe was trying to locate a gaming operation in what was your
historic area, for them to approach you and locate near your
operation and try to work something out with you rather than
spreading it all over the place the way that we see it
happening in California right now?
Mr. Marquez. If the question is proper consultation, I
think there is always something to be said when two sovereigns
can sit down and discuss whatever there is in front of them. I
think what is more in question here, it is not about a casino.
It is about an individual tribe coming into our ancestral land,
acquiring land under trust for their purpose of X, Y, and Z,
especially when our reservation is so limited and we don't have
much land to perform and do various functions as far as provide
housing. I think that, to me, is more critical than the fact
that this is about gaming.
As Mr. Luger said, we are much more than gaming, and this
is about taking land into trust that is not theirs ancestrally.
It is ours. I have a huge problem with that.
Chairman Pombo. Well, we better get in front of that,
because it is becoming all about gaming. That is what is
happening, and I can tell you in my district, in my
congressional district or immediately around it, I have five
different groups that are looking at lands for possible
casinos. That is driving public opinion and public perception,
and if we are not careful, it is going to all end up about
gaming, and everything else that you do and all of your other
efforts in terms of your culture and your language and your
sovereignty are going to be driven out because of this.
And that is one of the reasons why I am so concerned about
where we are going with all of this, and obviously in
California, we have a lot going on right now, and I think the
recent agreement with the Governor and a number of tribes in
California helps to drive that because the public perception
now is very different than it was just a few years ago in terms
of what is going on.
My time has expired, and I am going to recognize Mr. Baca.
Mr. Baca. Thank you very much, Mr. Chairman. First of all,
I want to commend you for having this hearing on this very
critical issue that is impacting not only the State of
California, but other areas too as well, and thank the
panelists for appearing here today on this very important issue
that we must address and hopefully that we can look at the
process that is in place and look at finding some kind of
resolution or consultation in dealing with the particular
problem as we deal with off-reservations, if we look at off-
reservations gaming or purchase of land as well, especially
geographical areas that are outside of the ancestry areas.
My question, first of all, is to Chairman Marquez. Where
are your ancestors' land located for San Manuel Band of Mission
Indians?
Mr. Marquez. Well, as I said in my testimony, it is the San
Bernardino area, San Gabriel Mountains to the southern
foothills as well as the Mojave Desert near Napa Valley as far
out as Barstow and as far east as Twentynine Palms and Yucaipa
Valley.
Mr. Baca. Thank you. If these were lands were taken into
trust by another tribe under the concept that we are trying to
negotiate or talk about for the purpose of gaming, what effects
would this have on San Manuel in terms of its economy and
heritage?
Mr. Marquez. If the question is about market share of the
casino, I don't believe it would be an issue with the situation
of where they are located. It is much deeper than that. I think
the first problem we have is the fact that the land is our
ancestral land as well as being close to our reservation as is.
The second problem I believe comes into play is when they go
into negotiations with the State, what concessions are going to
be given up, and those concessions resonate just in the tribes
in California, but they resonate across the country.
I have already seen the spill-over from the $1 billion
offering from those five tribes, and I have heard from
countless tribal leadership across the country of their fears
of their states coming to them asking for such the same, and
that is just simply not what we are here for, as Mr. Luger
alluded to. We are not here to bail out the State of California
or any other state for their problems, and I think that is the
second step that takes place. The third step is the public
outcry that is going to take place about reservation shopping,
and the fourth, I believe will be, as I alluded to in my
testimony, there are a lot of people out there looking to jump
into this mix. A lot of them are not suitable. I think there
should be a process that before tribes who are non-gaming
tribes engage in any investors must go through the NIGC to get
properly backgrounded and found suitable before having
conversations with these tribes.
Mr. Baca. Thank you, because that does create a problem,
because if they don't go through the appropriate channels, then
they can be going through the Governor such as they have in the
State of California for the purpose of bailing out for the
State. That creates quite a problem in terms of disharmony
amongst tribes, disrespect for one another. So now they are
negotiating based on revenue or dollars or the ability, which
means now that they are going to bail out the State, and the
Governor then can sign a compact with a certain tribe outside
of their ancestor area that creates a big problem for a lot of
us in our areas. Is that correct?
Mr. Marquez. That is correct, sir.
Mr. Baca. So that would really, you know, put a tremendous
burden on us. Then the Governor then would have the control in
the State of California to say, Well, I am going to negotiate
because these are the tribes that were willing to sign a
compact, so we are going to allow them to start a gaming casino
somewhere because we know that we are going to get revenue
versus one tribe that has already signed a compact, and in that
compact, that they already agreed to certain terms of an
agreement, but yet they are holding them hostage with a gun at
your head, saying that if you don't do this, this is what we
are going to do. That is wrong, isn't it?
Mr. Marquez. Well, it gets back to the Pete Wilson days
where basically you had to take it or leave it, and the Pollock
compact, obviously we chose not to take that, and that was back
in the late nineties which gave rise to the current compacts of
1999 under Davis. So it is the same process where they can hold
a gun to your head and demand a whole plethora of items that
the States are willing to take and the tribes are willing to
give up, and then that is placed on the other tribes in the
State of California across the country as well.
Mr. Baca. And beyond that. I think it was stated it pits
one tribe against another tribe and disharmony not only in
terms of sovereignty, but ancestry, lands too as well. I think
that is another problem that we have to deal with, because we
are talking about heritage, customs, and traditions, and those
values that would be impacted if we allow the off-reservation,
and I don't think anyone here is totally against off-
reservation if it is done within a geographical area of that
tribe, but when you are going from one area to another, it is
just like having one country invade us and say, Well, I am
going to take over your State. And that is basically what we
have. You know, Iraq is going to come in here and says, All
right, I am going to take over the San Bernardino area. I will
use San Bernardino as an example.
You know, are we going to allow Iraq to do that based on
the power and money that they have? It is the same situation.
Mr. Marquez. We also know that there are tribes, as you
stated, in the past panel from northern California, from
central California in our area, looking to acquire land, some
as close as five miles away from our current reservation. They
haven't formalized it yet, but we know that they are out there
shopping and looking, and again, they are being backed by
various groups such as Paragon Gaming, which was the group in
Oxnard that the Treasurer alluded to. We know those people are
out there.
Mr. Baca. Especially for most of us who are from southern
California, we know that the population which is approximately
36 million people in the State of California and the majority
of them being in the southern portion of California, the
majority of them all go right through our area right into Las
Vegas, use the I-10, the 215 right directly into that area. So
they know very well that if they are allowed to do this, it is
like a gold mine for them whether it is in Barstow--I have no
objection in terms of Barstow, but if it was done, you know,
through someone who had that ancestry in that area, basically
because I come from Barstow, but having a tribe come from the
northern portion to establish gaming in that area is a
difficult problem that I have because they know the flow of
traffic is there. They know that. They market it, and they know
that it is very easy and accessible, and then that would take
away from some of the other tribes too as well. I am not saying
that you are against it, but only against from the form of
having someone come into another portion that has nothing to do
with that particular area.
But what steps do you believe need to be taken by the
Secretary of Interior or by Congress to discourage what some
call the reservation shopping? And that is for any of the
panelists too as well.
Mr. Luger. I certainly have an opinion on it. First of all,
the easiest thing to do is get them to do their job now. They
should fully enforce the consultation policy, and, quite
frankly, I saw confusion in the ranks when they were testifying
up here earlier, and I have my own opinion on it. I don't think
it is motivated by lobbyists. I think it is flat confusion,
trying to do the right thing, but not knowing what to do, and
we have all ran across that before with most bureaucracies, but
in this case here, the signal that I--I read my history books,
and you guys, anybody in here can go back and read what
happened to Klymouth in Oregon. There is a time when tribes
have to stand up and say, Hey, look, our credibility is on the
line as well.
How many more ``Time Magazine'' articles or Andy Rooney
comments or things like that are we going to be able to endure
with the public? Once John Q. Public loses their guilty
conscience on the atrocities that we went through in the 1800s,
we are in trouble, and I know that. I have been there before.
And so this is one of those questions where the Secretary
needs to give clear direction to her troops that the
consultation policy must be fully enforced and that the tribes,
not just the local communities, are comfortable with that. It
is easy to say that one tribe was a bad guy because they worked
against another not to get developed. Let us flip the coin
around. The other tribe, what if they had $200 million worth of
infrastructure on the ground and in their homeland? It seems to
me like they have the right to say uncle.
So the pitting looks to me like it is headed toward tribe
to tribe, and actually it is Uncle Sam in the background again
adding confusion.
Mr. Baca. Let me follow up to that. Do you believe, then,
that the current Section 20 IGRA process addresses the problem
when it is difficult to determine where one tribe's ancestors
land ends and another tribe's begins? That is Question No. 1,
and that is for any of you to answer. And then as a follow-up,
how do you believe that this disagreement can be resolved for
the benefit of all tribes?
Mr. Luger. Which disagreement are you specifying? The one
that we heard this morning?
Mr. Baca. The one that I heard earlier by Chairman Marquez
in his testimony. Chairman Marquez states: ``was able to able
to reclaim the ancestral lands''. Do you believe that this is
fair to other tribes when their lands have the same area? So it
is a follow-up to that. I didn't get a chance to ask that
question to Chairman Marquez earlier.
Mr. Marquez. I think there are definitely going to be areas
where there is a setting where some areas were trade routes
where various tribes utilized those areas. I think when you
come to that crossroads, proper consultation should be had by
all of those involved in that area, because we are well known
to know that we have burial sites up in the area. There are
villages up in the area. We know that the Chimawaves were also
part of that trade route. We also know the Pyutes were part of
that trade route.
So there are other entities in that area that should be
properly dialogued with before another tribe steps in and
claims that land as theirs when it is really not. It is more
than just one.
Mr. Baca. Didn't we have a similar situation I don't know
how many years back, but when we had the Martinez tribe in that
area that was trying to claim a certain area, that we had
problems with some of the other problems as well? Do you recall
that?
Mr. Marquez. The Torres Martinez Cabazon conflict?
Mr. Baca. Yes.
Mr. Marquez. I recall it. Do I remember it vividly? I do
not.
Mr. Baca. But that was similar in one sense when we were
looking at it, but yet there was appropriate consultation that
they were able to settle their differences.
Mr. Marquez. After people started to raise the question
about what was there proper consultation. I think early on in
the process, there wasn't, but when people started to question
the process and question the practice, I believe the two tribes
finally got together and had what I would consider a proper
dialog.
Mr. Baca. OK. Thank you very much.
Mr. Chairman, I know that my time has expired, but, you
know, I hope that we continue to dialog and look at this,
because this would set a horrible precedent if we allow this
kind of exchange that goes on right now, and it would pit tribe
against tribe. It would divide our Nation too as well, and then
it would allow the highest bidder then to obtain the land
versus ancestry based on that particular area. So I think,
hopefully, we can take all of this into consideration before
any final decision, and as stated before, there is a process,
and hopefully if a decision is made wrong, that there is some
kind of appeal process too as well.
Ms. Lohse. Chairman, I would just like to add to what they
are saying. I know that a lot of concern is with southern
California in their more urban areas, but up in our rural area,
it is a negative impact. I want to emphasize about the
revisionist historians that rewrite our history and how that
will impact us down the road.
Indian gaming is not a Federal entitlement, so that needs
to be put on the table and considered when we talk about this.
I heard earlier about the re-recognition process and the tribe
that was landless. We were landless, but we were re-recognized.
There was clearly an identification of where we were from at
that time. I would suggest that the Government look at those
type of things, that type of language where it clearly
identifies where that tribe is from.
The other thing is that I heard the comment that there was
no rush to gain off-reservation gaming. It may not seem like a
rush to you, but to those of us that are being affected by it,
it is clearly a rush upon us to protect our tribal lands, our
culture, our history, and our traditions from those that would
do that. I think Chairman Marquez intimated that there were
tribes that were coming from northern California down to
southern California. It may not have hit the radar yet, but it
is there. It is happening.
And so to say that there is no rush, I believe there is,
and given the situation that California is in, in particular,
and I can only speak to California, there is definitely a
rumbling going on regarding those new compacts. They work for
those--I will say they work for those tribes. Our concern is
that they do not work for ours and that we will be held hostage
to come to the table to a certain degree that would not work
for us, but we can still work around that.
The other side of it is this type of land acquisition is
truly, truly becoming the bigger issue also because that will
impact down the road any kind of negotiations that we might
have.
So again, Indian gaming is not a Federal entitlement. It
was there as an opportunity, and I think I heard this morning
let the market bear out; we either keep Indian gaming or we
throw it all out. Well, I kind of differ with that opinion. The
point is not let the market bear out, but let the truth bear
out as to where these tribes are from and not let the market
dictate where they can re-enter and claim restored land.
Chairman Pombo. Mr. Pallone.
Mr. Pallone. I will try to be brief because I know we are
trying to wrap it up, but I agree. I wasn't here when Ms. Lohse
testified, but I agree with you that, you know, you have to be
concerned about how this dovetails with the whole issue of
Federal recognition, because if another tribe is claiming an
area that a tribe is trying to be recognized, it also claims,
it makes it all that much more difficult for them to get
Federal recognition, which is hard enough as it right now based
on hearings that we have had in this committee.
What I wanted to ask, you know, I am trying to put this in
perspective with the previous panels, because I heard the Jena
Band say that, you know, they didn't have--they were landless
and that the process of acquiring land for reservation in trust
was related to all this. Was this--what I wanted to ask
Chairman Marquez is, this example that you used with the
Timbisha Shoshone Tribe, are they federally recognized? Are
they a tribe that is federally recognized or that has any land
now?
Mr. Marquez. They are recognized. I believe their lands
base is in the Death Valley area.
Mr. Pallone. So the analogy, then, with Jena and some of
these others doesn't hold; they clearly have a land mass and
they are just looking to acquire additional land closer to you?
Mr. Marquez. I think there is an Act on the table that they
are utilizing to acquire more lands. I am not quite astute in
their Act of Congress, but they have some abilities to acquire
land off their reservation.
Mr. Pallone. But then if--you know, again, I missed it and
I am just going by your written testimony, but if they are
claiming that this is an initial reservation, how do they do
that if they already have one? I am confused.
Mr. Marquez. I am with you.
Mr. Pallone. You have the same question? OK.
Mr. Marquez. Yes.
Mr. Pallone. Because it seems like such a huge loophole to
get around if you already have--
Mr. Marquez. You know, I think what it boils down to is you
have tribes who are landless, tribes who have land, and then if
we want to make a third category, we can say there are tribes
who don't have usable land.
Mr. Pallone. I see.
Mr. Marquez. And that would be what we would fall into. So
it is kind of--you know, it is just wrong when somebody can
take land into trust and your ancestral land when you have--I
mean, if I was to give an example of my reservation, which is
840 acres, this room here would represent all the flat land we
have on our reservation, and then the rest of this building
would be the reservation. We couple that with the San Andreas
Fault running through our flat land. It does not make for the
most I guess suitable land to build on. So we have, you know,
obstacles to overcome and we have overcome those obstacles.
Then when you hear about a tribe who want to acquire land in
your backyard for the purposes of Indian gaming or for
whatever, I mean, in my mind, gaming is not the catalyst here.
It is just a process for taking land out of trust that is not,
you know, solely one hundred percent that tribe's. It is other
tribes's areas as well, and we are part of that mix.
Mr. Pallone. The problem that I see, though--again, I want
to keep going on here, is that, you know, if you listen to the
previous panel, on the one hand, Ernie said that he recognized
legitimate claims of the Jena and the other Oklahoma tribe, but
that they should fit within IGRA. You seem to be saying,
Chairman, that the Shoshone tribe may be getting around IGRA,
but yet you are not arguing that there be any change in the
law, just that it be applied the way you think it should be.
Right?
Nobody is suggesting any suggesting any change in the law
here.
Mr. Marquez. I think Mr. Luger probably said it best, just
follow the law, follow the process.
Mr. Pallone. OK.
Mr. Marquez. There is a process in place already, and when
you start to sidestep Section 20 in this case, this is the
dilemma we arrive in, and it is a paradox and, nonetheless, it
has to be addressed.
Mr. Pallone. OK.
Mr. Luger. Mr. Chairman.
Mr. Pallone. Go ahead. Sure.
Mr. Luger. Just one quick comment, and I want to put a
numerical perspective on this landless tribe situation, and I
can stand to be corrected, but I am pretty sure there is less
than a half of dozen of those, and there are 560-some
recognized tribes with land. So, you know, the perception that
while you have half of them out here that don't and the other
half do is incorrect. I actually think the number is five.
Ms. Lohse. And my understanding this morning is the Jena
Tribe had said that they did have a hundred acres in trust that
they didn't something else on.
Mr. Pallone. That was confusing to me too.
Ms. Lohse. So we are a little confused here in regard to
that, and I think that is kind of the thing here of having the
Timbisha Shoshone saying this is their first reservation when
it is not a first reservation, and the tribe that we have up
here is the same type of thing. They have a stipulation where
they should go, but because they don't want to or they actually
have lands there, but it doesn't fit the out-of-state
investors' purchase, then we all have to shift.
So I think we continue to say IGRA doesn't necessarily need
to be revised, but applied properly, and that is our concern,
is that it is not being applied properly because of, you know,
not paying attention to what the tribe was recognized to and,
again, not continuing to take Indian gaming as the lead for
recognizing or restoring land.
Mr. Pallone. OK. Thanks a lot.
Thanks, Mr. Chairman.
Chairman Pombo. Thank you. I want to thank this panel for
your testimony. It is obviously an issue I believe we need to
get out in front of, and I know that most of the people who
testified today said they didn't see a reason to amend current
law, and yet they had a whole list of problems with what was
going on, and I am of the opinion right now that we may have to
amend current law and get in front of this thing, because the
pressure that this committee is under right now from a number
of different people because of what is going on across the
country, I think it is in all of our interests that we maintain
as much control over this as we can because decisions are being
made that affect all of us and you in particular.
So I think we do seriously have to look at this and how we
are going to deal with it.
Chairman?
Mr. Marquez. I just want to add, you know, we heard a lot
about the Federal Government not performing or not practicing.
I think we also need to take step back as tribal leadership and
tribal governments and look at ourselves and ask ourselves are
we performing the best practices for our people, and I think
that is something we don't ask ourselves enough; and in this
case, who is driving this? It is not the Federal Government.
So I think we need to turn our eyes inward sometimes and
look at ourselves. That is all I wanted to say, sir.
Chairman Pombo. I think that is a very valid point.
Mr. Luger. Mr. Chairman.
Chairman Pombo. Yes.
Mr. Luger. I just wanted to take the time to congratulate
Tom Brierton. He came out to our region and took a good look
out there, and the tribe has found a good friend in Mr.
Brierton. I know he is on your staff, and I just wanted to
recognize that because he was very well received out there.
Chairman Pombo. Well, thank you. Both Tom and Chris and all
the staff have, I think, done an admirable job. One of the
things that we talked about early on was getting them out and
visiting as many areas as they possibly could. I had a chance a
few months back to go into South Dakota, and I understand what
you mean by you drive 50 miles for gas and 50 miles beyond that
for groceries, because I saw it.
One thing you said earlier--I know I have to go, but one
thing you said earlier was about sticking a post hole in your
backyard. If we could get all of the Federal Government to stay
out of your backyard, I would be lot happier, because I saw
those prairie dog holes all over the place and I would like to
get rid of some of those.
Mr. Luger. Thank you.
Chairman Pombo. But that is another issue that I think we
can deal with.
Mr. Luger. I just wanted to express your and your staff's
interest in the Indian country, it is greatly appreciated.
Chairman Pombo. Thank you.
Ms. Lohse. Chairman, we would like to also thank you. We
can't say enough about your staff. Chris has been very good. I
didn't want to let him go unnoticed, and we were discussing you
want us to pass a resolution to give him a raise and that kind
of stuff, but--
Chairman Pombo. There is too much pressure here.
Mr. Marquez. Chris, you will be staying home for a while.
Ms. Lohse. We very much appreciate it, and I know you were
honored through NCAI about your work in the Indian country, but
we do appreciate it, and we know there are a lot of things, and
we are glad that you are willing to get out there in the front
and get your arms around this, because then we know that we are
being protected and looked after.
Chairman Pombo. Thank you very much, and I want to thank
all of the panels for your testimony today. I will remind this
panel there will be additional questions. They will be
submitted to you in writing. If you could answer them in
writing, the hearing record will be held open for this purpose.
If there are any additional comments anyone would like to enter
into the record, I believe the hearing record will be held open
for 10 days to allow others the opportunity to submit written
testimony to be included as part of the hearing record.
If there is no further business before the Committee, I
again thank the members of the Committee and all of our panels
and our witnesses, and the Committee stands adjourned.
[Whereupon, at 1:43 p.m., the hearing was adjourned.]
[The following information was submitted for the record:]
A joint statement submitted by The Honorable
Nancy L. Johnson, The Honorable Christopher Shays and The
Honorable Rob Simmons; and
A statement submitted by John McCarthy, Executive
Director, Minnesota Indian Gaming Association.
[The joint statement submitted by The Honorable Nancy L.
Johnson, The Honorable Christopher Shays and The Honorable Rob
Simmons, follows:]
Statement submitted for the record by The Honorable Nancy L. Johnson,
The Honorable Christopher Shays, and The Honorable Rob Simmons
Mr. Chairman and members of the Committee, thank you for allowing
us to submit testimony today on the important subject of off-
reservation Indian gaming on restored and newly-acquired lands. This
subject is of great importance to our constituents because several
tribes in Connecticut are seeking to open Class III gaming facilities
on off-reservation lands. The Schaghticoke Tribal Nation of Kent is
seeking to build a casino in Danbury, Waterbury, or Bridgeport. The
Golden Hill Paugussett tribe of Colchester is seeking to build a casino
in Bridgeport. Both the Historic Eastern Pequot tribe of North
Stonington and the two Nipmuc groups in Massachusetts are seeking to
build casinos in Eastern Connecticut.
During previous hearings before the Committee, we have testified on
the seriously flawed federal recognition process. In recent decisions
involving petitioners from Connecticut, federal regulations have been
abrogated and existing precedent overturned in what appears to be a
results-oriented process. Recent hearings of the House Government
Reform Committee have revealed the substantial casino interests
financing acknowledgment petitions in Connecticut.
Further casino development will have a detrimental impact on the
small cities and towns in Connecticut. Federally-recognized tribes do
not have to adhere to local zoning laws, nor do they pay local property
taxes or federal income taxes, thus shifting the tax burden to the
surrounding communities. Local governance is done at the town level in
Connecticut, leaving localities, already struggling with tight budgets,
unable to cope with the high municipal costs that casinos create. Towns
hosting and bordering the two existing casinos in Eastern Connecticut
can testify to the tremendous social costs casinos bring: including
round-the-clock casino traffic, a heavy burden on local police and
emergency services, increased crime, and lower property values.
On the issue of Indian gaming, local communities are at a decided
disadvantage. Given this uneven playing field, and our experience with
an inconsistent and unfair federal acknowledgment process, it is all
the more urgent that federal law and regulations governing off-
reservation gaming be applied fairly and consistently.
The Indian Gaming Regulatory Act of 1988 (IGRA) and federal
regulations provide clear protections for local communities and state
authorities with off-reservation gaming on trust lands acquired after
IGRA's enactment. In order to approve Class III gaming on off-
reservation trust lands acquired post-IGRA, the Secretary is required
to consult with state and local officials and determine, with the co-
consent of the governor of the state in question, that gaming ``would
not be detrimental to the surrounding community.'' The detrimental
impacts of another casino in Connecticut are manifest.
Class III gaming by federally-recognized tribes can only be
conducted on federal trust lands. Federal regulations require the
Bureau of Indian Affairs to scrutinize trust applications for off-
reservation lands, giving increased weight to the concerns of local
communities as the distance from the reservation increases. With tribal
petitioners in Connecticut and New England seeking to build casinos far
from their reservations and closer to major interstates, and in some
cases crossing state lines to find more favorable gaming markets, this
scrutiny must be vigorously applied pursuant to the regulations.
Given the tremendous consequences of casino development in
Connecticut, we believe it is imperative that:
(1) federal law, federal regulations, and recognition criteria be
applied fairly and consistently, and
(2) local communities be given every appropriate consideration
pursuant to the regulations.
Thank you for considering our testimony today.
______
[The statement submitted for the record by John McCarthy,
Executive Director, Minnesota Indian Gaming Association,
follows:]
Statement submitted for the record by John McCarthy, Executive
Director, Minnesota Indian Gaming Association
Good morning Chairman Pombo, Ranking Member Rahall, and members of
the committee. My name is John McCarthy and I am the Executive Director
of the Minnesota Indian Gaming Association. Our Association represents
nine of the eleven federally recognized Tribes within the State of
Minnesota. Those tribes are geographically located in rural communities
throughout Minnesota. Our member Tribes are identified as follows:
Leech Lake Band of Ojibway in northern Minnesota, located
in proximity to the Bemidji, Walker and Grand Rapids areas.
Grand Portage Band of Ojibway in the far northeastern
corner of the State, located in proximity to Grand Marais and the
Canadian border.
Fond du Lac Band of Ojibway in northeastern Minnesota,
located in proximity to the City of Duluth, Cloquet and Sawyer,
Minnesota.
Bois Forte Band of Ojibway in northern Minnesota, located
in proximity to Virginia, International Falls and the Tower and Lake
Vermillion area of the State.
Mille Lacs Band of Ojibway in north central Minnesota
located in proximity to Brainerd, Garrison Hinkley, Pine City and the
Wisconsin border.
Upper Sioux Community in southwestern Minnesota, located
in proximity to Granite Falls and the Iowa boarder.
Shakopee Mdewakanton Sioux Community in southeastern
Minnesota, located in proximity to the Prior Lake, Savage and Shakopee
areas.
Prairie Island Sioux Community in southeastern Minnesota,
located in proximity to Red Wing, Cannon Falls and the Wisconsin
border.
Lower Sioux Community in southwestern Minnesota, located
in proximity to Redwood Falls and Morton Minnesota.
All Tribal governments in Minnesota negotiated compacts with the
State. In that process we promised the State that we would not expand
gambling by agreeing to limit our government gambling to certain games.
To date we have honored that promise and we have not in any way
promoted gambling expansion within Minnesota. All of our member Tribes
have limited their gambling operations within Reservation boundaries,
as per our agreement with the State.
Over the years many Tribes have been approached by outside
investors, gaming companies, cities, counties and others, with
proposals to open gambling operations. Minnesota Tribes have said no.
Tribal governments take very seriously, commitments and promises that
they have made.
At this time I would like to give you some facts about Tribal
Government gambling and the tremendous benefits that it has produced
for the rural communities throughout the State.
Tribal government gaming has spawned the growth of Reservation
economies like no other economic development tool has been able to do.
As Reservation economies have grown so too have the economies of near-
by rural communities.
Since 1989 Minnesota tribes have developed Tribal gaming businesses
that currently employ over 13,000 people. Tribal gaming is one of
Minnesota's top twelve employers. Twelve of the eighteen Tribal gaming
operations are the largest employer in their rural communities
Tribal gaming in Minnesota is one of the States largest tourist
attractions, second only to the Mall of America. In the year 2000,
Tribal casinos attracted more than 20.7 million patrons, with about 3.7
million of those individuals coming from out of State. Those
individuals spent an estimated $191.2 million on food, lodging, gas and
other purchases on and off the Reservation.
In 2000 Tribal government gaming employed over 13,339 Minnesota
residents. 78% of those employed were non-native employees. 22% were
Native American. These jobs all pay a fair and decent wage as well as
health and dental insurance and retirement benefits.
In 2000 Tribal government gaming operations paid $249,506,000 in
total direct annual payroll. The average wage for employees was
$18,705. $28,662,000 was paid toward benefits and pension funds.
$81,051,000 was paid in payroll taxes.
In 2000 Tribal governments paid $15,901,000, to local units of
government, in fees and services related to their gaming operations.
From 1989 through 1999 Tribes have spent $402,717,000 on
construction projects for Tribal government gaming.
In 2000 and 2001, Tribal governments spent an additional
$158,395,00 in construction dollars related to Tribal government
gaming.
In 2000 Tribal governments purchased $186,633,000 from Minnesota
vendors.
Tribal gaming has eased the burden on State and County public
assistance programs by offering gainful employment in rural
communities. According to State records, AFDC payments have decreased
by 17.8% in counties with Tribal gaming. The number of Native Americans
receiving general assistance has decreased by more than 58%. Nearly 6%
of casino employees were receiving some form of general assistance
prior to casino employment. An estimated 11.5% of persons employed at
Tribal casinos were receiving unemployment assistance prior to
employment at the casino. Nearly 22% had been out of work at least
three months, and 15% had been out of work more than six months prior
to casino employment.
IGRA establishes a general policy that Indian Tribes should only
conduct gaming on lands held in trust by the United States prior to
passage IGRA on October 17, 1988. 25 U.S.C. Sec. 2719. Congress also
accounted for historical circumstances such as diminished reservations,
terminated tribes, and Indian land claims, and established reasonable
exceptions to provide for the use of ``after acquired'' lands when
necessary. In addition, Congress established a more general exception
for the use of ``after acquired'' lands for gaming where the Secretary
of the Interior--after consultation with local governments and
neighboring Indian tribes--determines that Indian gaming on the lands
is in the best interests of the Tribe and would not be detrimental to
the surrounding community. The Governor of the State must then concur
in the Secretary's decision. Of course, the Tribe must also
successfully negotiate a compact with the State before conducting class
III gaming on such lands.
This process has been widely criticized as divisive among tribal
governments. While the procedure is not ideal, we feel that as long as
the process laid out in IGRA is followed and the necessary parties are
consulted, that there is no need at this time to amend the Act. Our
Association is concerned with the lack of clarity with regards to
Section 20 of the Act. In our opinion there needs to be more specific
language regarding the consultation process. There are no guidelines
detailing how the consultation is to be conducted and what value will
be placed on ``Impact to surrounding Tribes.'' It is our belief that if
there was a clearer definition of the sub-section referring to ``The
Secretary must also consult with the local area government and
neighboring Indian Tribes to ensure that such acquisitions would not be
detrimental to the surrounding community.'' 25 U.S.C.
Sec. 2719(b)(1)(A).
In 1995 our Association was in the middle of a very distasteful
battle with four Wisconsin tribes over a fee to trust transfer request
relating to a dog track in Hudson Wisconsin. We found ourselves having
to oppose the transfer requested by the Wisconsin Tribes. The ensuing
battle was long and left many hard feelings. We did not feel that the
Bureau of Indian Affairs took our concerns into account and that they
completely glossed over the financial impact that this transfer would
have on Minnesota markets. At the time we blamed the BIA for not
providing adequate consultation. In retrospect the problem more likely
was a lack of clear guidelines in the language spelled out in the act.
CONCLUSIONS
The Minnesota Indian Gaming Association, acknowledges the right of
all Federally Indian Tribes to apply to the Secretary of Interior to
take land into trust for gaming purposes under Section 20, outside of
its historic reservation. We are aware that some of the past
transactions have been controversial because those in nearby
communities or members of neighboring Indian Tribes would be impacted
by the acquisition. However, we also believe that all other neighboring
Federally Recognized Tribes have an equal right as Tribal Sovereigns,
to meaningful and fair consultation concerning such an application and
the impact it may have on them and their people. This consultation
should not be limited and should have clear guidelines allowing all
parties to be heard. The neighboring boundaries should be expanded to
include all bordering States as well as affected Tribes within that
state. We also believe that ``remoteness'' should not in and of itself
be a criteria for acquisition under this section.
Mr. Chairman and members of the Committee this concludes my
remarks. Thank you for providing me the opportunity to testify today.